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2006-06-21 (Queensbury ZBA Meeting 06/21/06) QUEENSBURY ZONING BOARD OF APPEALS FIRST REGULAR MEETING JUNE 21, 2006 INDEX Area Variance No. 8-2006 David R. Kelly, M.D. & Sally N. Kelly 1. Tax Map No. 239.15-1-3 Area Variance No. 46-2005 Jean M. Hoffman 2. RE-HEARING 227.17-1-9.11 Area Variance No. 34-2006 Bruce Lant 40. Tax Map No. 295.19-3-68 Area Variance No. 35-2006 LeRoy & Katharine Cormie 45. Tax Map No. 301.18-1-71 Area Variance No. 66-2005 Clute Enterprises 50. Tax Map No.295.14-1-21 THESE ARE NOT OFFICIALLY ADOPTED MINUTES AND ARE SUBJECT TO BOARD AND STAFF REVISIONS. REVISIONS WILL APPEAR ON THE FOLLOWING MONTHS MINUTES (IF ANY) AND WILL STATE SUCH APPROVAL OF SAID MINUTES. 0 (Queensbury ZBA Meeting 06/21/06) QUEENSBURY ZONING BOARD OF APPEALS FIRST REGULAR MEETING JUNE 21, 2006 7:00 P.M. MEMBERS PRESENT CHARLES ABBATE, CHAIRMAN JAMES UNDERWOOD, SECRETARY JOYCE HUNT LEWIS STONE ALLAN BRYANT CHARLES MC NULTY ROY URRICO ZONING ADMINISTRATOR-CRAIG BROWN TOWN COUNSEL-MILLER, MANNIX, SCHACHNER, & HAFNER-CATHI RADNER STENOGRAPHER-SUE HEMINGWAY MR. ABBATE-Mr. Secretary, do we have any correspondence, and if so, would you please read it into the record? MR. UNDERWOOD-We had a request received late this afternoon, and that was for the first item on the agenda this evening, and that was Clute Enterprises. “Due to a conflict with other Board meetings tonight, I will not be able to be at the Queensbury Zoning Board at seven. Could you please move the Clute application to last on the agenda, so that I may be able to fulfill my obligation to this client, and so that I may attend my other Board meetings tonight. Thank you, Matt Steves” MR. ABBATE-Okay. So those folks who are here to hear, under Old Business, Clute Enterprises, Area Variance No. 66-2005, I’ll bring it to your attention, the Secretary brought it to your attention, the fact that we are going to be moving that to last this evening. It will be heard this evening, but it will be last. We will honor his request. AREA VARIANCE NO. 8-2006 SEQRA TYPE: II DAVID R. KELLY, MD & SALLY N. KELLY AGENT(S): JONATHAN C. LAPPER, ESQ. OWNER(S): DAVID R. KELLY & SALLY N. KELLY ZONING: WR-3A LOCATION: 8 ROCKY SHORE DRIVE APPLICANTS PROPOSE DEMOLITION OF THE EXISTING 1,892 SQ. FT. TWO- STORY SINGLE-FAMILY DWELLING ANDTO REBUILD A 2,662 TWO AND ONE-HALF STORY SINGLE-FAMILY DWELLING. RELIEF REQUESTED FROM SHORELINE SETBACK REQUIREMENTS. CROSS REF. BP 2002-854 DEMOLITION; BP 2002-855 DOCK; BP 2004-094 BOATHOUSE; SPR 57-2002; AV 8-2003; SPR 9-2003 WARREN COUNTY PLANNING: FEBRUARY 8, 2006 ADIRONDACK PARK AGENCY: YES LOT SIZE: 0.89 ACRES TAX MAP NO. 239.15-1-3 SECTION: 179-4-030 th MR. UNDERWOOD-The second letter was one received on the 15 of June, and that was from Jon Lapper. This is for a future Area Variance, 8-2006. “Dear Chairman Abbate: As you are aware, my clients are in the process of revising their applications pursuant to the Board’s comments and suggestions which was communicated at the February Zoning Board of Appeals meeting. Pursuant to my April 11, 2006 request, the Board was kind enough to extend the tabling motion to provide for a June 15, 2006 submission deadline. Due to the additional information that is required in order to redesign the project, I am requesting on behalf of the applicants a further extension of the tabling motion to allow them until the September 15, 2006 to make a revised submission. Jon Lapper” MR. ABBATE-Okay. Board members, Counsel for Area Variance No. 8-2006, in a fax letter dated June 14, 2006, has requested tabling, and the Secretary has read that communication into the record. I will open the public hearing for Area Variance No. 8- 2006, if we have anyone who wishes to address that particular Area Variance. PUBLIC HEARING OPENED MR. ABBATE-I see no one in the public wanting to be acknowledged. Do any members of the public wish to be heard? Apparently not. Hearing none, I move that we table Area Variance No. 8-2006. 1 (Queensbury ZBA Meeting 06/21/06) MOTION TO TABLE AREA VARIANCE NO. 8-2006 DAVID R. KELLY, M.D. & SALLY N. KELLY, Introduced by Charles Abbate who moved for its adoption, seconded by Joyce Hunt: th 8 Rocky Shore Drive. To the 15 of September 2006 hearing date. st Duly adopted this 21 day of June, 2006, by the following vote: AYES: Mr. Underwood, Mr. Bryant, Mr. Urrico, Mr. Stone, Mr. McNulty, Mrs. Hunt, Mr. Abbate NOES: NONE MR. ABBATE-The vote is seven yes, zero no to table Area Variance No. 8-2006. Area Variance No. 8-2006 is tabled to the 15 September 2006 hearing date. We have one other bit of administrative function to do this evening, gentlemen, ladies and gentlemen th of the Board, and effective this year, the 16 of March, this Board, in its wisdom, moved a motion for Use, Area, and Sign Variance applications for the Town of Queensbury to include a survey map, which was a good thing. At our last Staff meeting, which I was present at, and the Chairman of the Planning Board was present at, as well as a number of Staff were present, it was decided that perhaps it might be good to add a sentence immediately after the first sentence, to include as follows “The survey map must contain a stamp and signature of the licensed professional engineer or licensed professional land surveyor preparing the survey map and the date prepared”. So I offer a motion to amend the Area, Use, and Sign Variance applications for the Town of Queensbury Zoning Board of Appeals. MOTION TO AMEND THE AREA, USE, AND SIGN VARIANCE APPLICATIONS FOR THE TOWN OF QUEENSBURY ZONING BOARD OF APPEALS WHICH WE APPROVED ON FEBRUARY 15, 2006 AS FOLLOWS: ADD TO PARAGRAPH ONE, IMMEDIATELY AFTER THE FIRST SENTENCE, “THE SURVEY MAP MUST CONTAIN A STAMP AND SIGNATURE OF THE LICENSED PROFESSIONAL ENGINEER OR LICENSED PROFESSIONAL LAND SURVEYOR PREPARING A SURVEY MAP, AND THE DATE PREPARED”., Introduced by Charles Abbate who moved for its adoption, seconded by Joyce Hunt: st Duly adopted this 21 day of June, 2006, by the following vote: AYES: Mr. Underwood, Mr. Bryant, Mr. Urrico, Mr. McNulty, Mrs. Hunt, Mr. Abbate NOES: NONE ABSTAINED: Mr. Stone MR. ABBATE-The vote is six yes, with one abstention. The motion is passed. This change is effective 10 July 2006, all other provisions remain in effect. Thank you, ladies and gentlemen of the Zoning Board of Appeals. Mr. Secretary, would you be kind enough to read into the record Area Variance No. 46-2005. AREA VARIANCE NO. 46-2005 REHEARING SEQRA TYPE: II JEAN M. HOFFMAN AGENT(S): WILLIAM J. KENIRY, ESQ. OWNER(S): JEAN M. HOFFMAN ZONING WR-1A LOCATION 159 CLEVERDALE ROAD APPLICANT HAS CONSTRUCTED AN 1,170 SQ. FT. BOATHOUSE WITH 978 SQ. FT. SUNDECK AND SEEKS 3.5 FT. OF RELIEF FROM THE MAXIMUM HEIGHT REQUIREMENTS FOR SUCH STRUCTURES. CROSS REF. AV 46-2005; SPR 38-2005; AV 90-2004; SPR 50-2001; SUB. NO. 15-2003; AV 91-2001; SPR 15-2001; AV 30-2001; SUB. NO. 14-1999; AV 60- 1999 WARREN COUNTY PLANNING MAY 10, 2006 ADIRONDACK PARK AGENCY YES LOT SIZE 3.43 ACRES TAX MAP NO. 227.17-1-9.11 SECTION 179-5-050 WILLIAM J. KENIRY, REPRESENTING APPLICANT, PRESENT MR. ABBATE-Would the petitioner of Area Variance No. 46-2005 please approach the table, speak into the microphone, and for the record identify yourself, please. MR. UNDERWOOD-I guess I could read back some of the history on this, if people want me to, again. Otherwise, I’ll just read the Staff notes regarding this project. In the interim, we have received a couple of significant submissions, and I’m sure you’re going to cover those this evening, also, but again, the project was commenced in 2001, and at the time that the project was completed, it was determined that the building was over 2 (Queensbury ZBA Meeting 06/21/06) height, and that height variance is what being sought here this evening. The original Code specifies a 14 foot height maximum, and this Board had granted one foot of relief. So it should have come in at 15 feet. So we’re still talking a discrepancy, and the building itself is compliant, as we said. It’s the railings up on top that are non-compliant. STAFF INPUT Notes from Staff, Area Variance No. 46-2005, Jean M. Hoffman, Meeting Date: May 17, 2006, “Project Location: 159 Cleverdale Road Description of Proposed Project: The applicant has constructed an 1170 sq. ft. boathouse, with a 978 sq. ft. sundeck, at 17.5- feet high. The applicant proposes to reduce the size of the sundeck to 700 sq. ft. Relief Required: The applicant requests 3.5 feet of relief from the 14-foot maximum height requirement, per §179-5-050(A10). Parcel History (construction/site plan/variance, etc.): SP 50-2001 Mod: 11/23/04, approved with conditions, for boathouse with 978 sq. ft. roof (remove land bridge). AV 90-2004: 11/17/04, approved with conditions, 1-foot of height relief for boathouse no sundeck (remove railings). BP 2002-142: 04/08/02, 1,170 sq. ft. boathouse with 700 sq. ft. sundeck. SP 50-2001: 11/27/01, 1,170 sq. ft. boathouse with 700 sq. ft. sundeck. AV 91-2001: 11/15/01, size relief for a 1,170 sq. ft. boathouse. Staff comments: The applicant has submitted previous application materials for AV 46-2005 and AV 90- 2004, elevation drawings illustrating the existing condition and the proposed, and an investigative report by Leonard Fiore, a NYS Certified Appraiser, who researched the surrounding areas and examined the suitability of the boathouse as it pertains to the issue of height. On April 19, 2006, the Board approved the applicant’s request to rehear AV 46-2005; “With the Counsel’s statement that the contractor would testify if this was reheard, and this was, an issue of contractor error” (see resolution to rehear). AV 46-2005 was denied on July 20, 2005, for a 700 sq. ft. sundeck, 17.5-feet high (see resolution). The same amount of relief as sought in AV 90-2004, with the offer to reduce the size of the sundeck from 928 sq. ft. to 700 sq. ft. AV 90-2004 application was for a 928 sq. ft. sundeck, 17.5-feet high. The Board granted approval (11/17/04) for a 15-foot high structure (1-foot of height relief)” MR. ABBATE-Okay. Thank you, Mr. Secretary. Counselor, would you identify yourself and your client, please. MR. KENIRY-Yes, Mr. Chairman, William J. Keniry, Tabner, Ryan & Keniry, LLP., attorneys on behalf of Mrs. Hoffman, who’s here with me in person tonight. MR. ABBATE-Okay. Thank you. Before we start, Counselor, you certainly are entitled to have at your own request deposition services, and I see that there is, this evening Martin Deposition Services, Inc. and that you’re requesting your own transcript, but I must say, for the record, and I want it clearly understood, that, and I want to enforce the fact, that only the minutes of the Zoning Board of Appeals are the official record of this hearing, not the transcript that you’re doing. Do we agree? MR. KENIRY-That is understood, Mr. Chairman. MR. ABBATE-Thank you very much. Please proceed. MR. KENIRY-Okay. Mr. Chairman, members of the Board, respectfully, I look at the result from the last meeting, in the nature of a commitment that we made to all of you in connection with that vote, and that is that the contractor, Mr. Creede, is required to be here. So I am calling him as the first witness and asking to proceed with him at this time. MR. ABBATE-Question, Counselor, do you represent Mr. Creede? 3 (Queensbury ZBA Meeting 06/21/06) MR. KENIRY-I do not. MR. ABBATE-Does he have retained counsel? MR. KENIRY-You certainly could ask him. That I don’t know. MR. ABBATE-Well, before we proceed I really would like him to come up to the table and ask him that question. Would you mind calling your witness please? MR. KENIRY-I do not. Mr. John Creede, please. MR. ABBATE-Mr. Creede, would you be kind enough to tell us your name and your place of residence, and your profession, please. JOHN CREEDE MR. CREEDE-Good evening. John Creede, Pro Built Docks. I build docks and boathouses. MR. ABBATE-Okay. Now, Mr. Creede, do you have a retained attorney? MR. CREEDE-No. MR. ABBATE-You have not. Well, I raise this issue, in view of the fact that it’s my intention to swear you under oath this evening, and I’m going to offer you an opportunity, if you wish, to consult with an attorney who is sitting next to you concerning the ramifications of providing sworn testimony in this proceedings, and I will offer you the opportunity to take a ten minute recess, if you wish, and I would strongly urge you to take that option and speak to counselor concerning the ramifications of being sworn under oath. Would you like a ten minute recess? MR. CREEDE-No. MR. ABBATE-You would not? Okay. Let the record show that Mr. Creede was offered a 10 minute recess to communicate with counsel and he felt that it was not necessary. Mr. Creede, would you do me a favor, please. I’m going to swear you under oath, and here’s what I would like you to do. I would like you to stand. Then I’m going to ask you to raise your right hand and repeat after me. Fair enough? MR. CREEDE-Okay. I do have a question. MR. ABBATE-By all means. MR. CREEDE-Bible? MR. ABBATE-We don’t need a bible. MR. CREEDE-Okay. Is this a court of law? MR. ABBATE-This is a quasi-judicial board. That’s why I suggested, sir, you consult with counsel before you’re sworn under oath. MR. CREEDE-Just a question, sir. MR. ABBATE-Are you prepared? MR. CREEDE-Yes. MR. ABBATE-All right. Please stand. Please raise your right hand. I, state your full name. MR. CREEDE-I, John M. Creede. MR. ABBATE-Do solemnly swear to tell the truth. MR. CREEDE-Do solemnly swear to tell the truth. MR. ABBATE-The whole truth. 4 (Queensbury ZBA Meeting 06/21/06) MR. CREEDE-The whole truth. MR. ABBATE-And nothing but the truth. MR. CREEDE-And nothing but the truth. MR. ABBATE-So help me God. MR. CREEDE-So help me God. MR. ABBATE-Mr. Creede, consider yourself under oath. Now, I’m going to ask the first question concerning your witness, counsel. Mr. Creede, for the record, have you received or been offered or promised any type of compensation for your testimony? MR. CREEDE-No. MR. ABBATE-No. Thank you very much. Members of the Board, would you prefer to proceed, Counsel? MR. KENIRY-Mr. Chairman, respectfully, I certainly am prepared to proceed, and I mean the pleasure certainly is yours. I had anticipated that in all likelihood what you would be inclined toward would be a direct examination style question and answer, affording the witness, obviously, with an opportunity to answer the questions, and then to some extent, I’m open to whatever procedure you’d prefer. If you wish to each individually ask of the witness, you could ask him if he has any objection, but I don’t have any objection to that format. That seems to be the most efficient. MR. ABBATE-Sure, and you know what, Counselor, I’m going to honor that. So I’m going to proceed to the next step and I’m going to ask members of this Board if they have any questions for either Counsel or Mr. Creede. MR. KENIRY-But aren’t we going to do the, the format is to ask him the questions and have him make the answers and then you can ask all of your questions, right? MR. UNDERWOOD-Sure. MR. ABBATE-Yes, by all means. MR. KENIRY-Okay. MR. ABBATE-Mr. Bryant, please. MR. BRYANT-Thank you, Mr. Chairman. During the process, I guess you’re here primarily to testify that you made an error, and the dock was higher than you anticipated. Is that correct? MR. CREEDE-I did not make an error, sir. MR. KENIRY-Can I do my direct examination so that his testimony is out there, and then you can ask him the questions? MR. ABBATE-Well, one thing, Counselor, you’re not going to coach your witness. MR. KENIRY-No. MR. ABBATE-I’m telling you right now you’re not going to coach your witness because it’s my opinion that he is an adult. He is mature. Unless you have some medical evidence or other evidence to provide to this Board, I consider him to be competent. MR. KENIRY-I don’t know that he’s anything other than fully competent, and I think we’re prepared, at this point, to proceed with our direct examination with respect to the proof of our case. My respectful suggestion, format wise, just to some extent for efficiency, and I’m looking for some direction, if this is your pleasure, but my sense was that there would be a direct examination of him, a formal question and answer, so that you could elicit the proof, and then you would each and all then be able to ask him any questions that you wish. 5 (Queensbury ZBA Meeting 06/21/06) MS. RADNER-Mr. Chairman, if I may clarify. When an attorney says direct examination, what they’re normally talking about isn’t leading questions, but asking questions as they would of their own witness, so they’re going to ask general questions and give Mr. Creede an opportunity to explain what happened, but by asking him open-ended questions lead him to that extent, but in a direct examination setting one isn’t permitted to ask the, when did you start beating your wife sort of leading questions. This is a quasi-judicial proceeding. It is not a formal court of law. So the rules are relaxed. You, as the Chairman, do direct the format that’s taken tonight. I believe, and Mr. Keniry can correct me if I’m wrong, I believe what Mr. Keniry is suggesting, though, is that typical to what normally occurs, he’ll help Mr. Creede make the initial presentation, and then allow the Board to cross examine, in a general sense, and ask additional questions to fill out the record. MR. ABBATE-What is the Board’s pleasure? MR. BRYANT-I have a number of questions that I’ve outlined that I’d like to ask the contractor. If it would go a little bit quicker and be a little bit more complete for the Counsel to ask the contractor the questions and make his presentation and then allow us the opportunity to ask questions as a result of the information, I’ve got no problem with that. MR. ABBATE-Gentlemen on this end? MR. STONE-It’s fine with me. MR. MC NULTY-It makes sense to me. I think probably the attorney has got some questions lined up in the logical order, which we might not follow if we were to shotgun questions from the Board. MR. ABBATE-Fair enough. Folks at this end. MR. URRICO-I have no problem with it, if we were to find out as much information as we can. MR. ABBATE-Then we will follow your format as suggested, Counselor. MR. KENIRY-Thank you, Mr. Chairman. MR. ABBATE-All right. Proceed. Go ahead. MR. KENIRY-Thank you. Would you please state your name, your residence, address, for the record. MR. CREEDE-John Creede, Kattskill Bay. MR. KENIRY-And, Mr. Creede, are you currently employed? MR. CREEDE-Self-employed. MR. KENIRY-And who is your employer? MR. CREEDE-Self. MR. KENIRY-And what do you do? MR. CREEDE-I take great pride in building quality docks and boathouses. MR. KENIRY-All right. Can you describe for us what the nature of your work is? MR. CREEDE-I like to try to create something original. I like to make each and every job different from the previous job that I had been at. That involves work, a lot of work, working with wood. MR. KENIRY-What do you build? MR. CREEDE-Crib docks and custom boathouses. MR. KENIRY-All right, and for how long have you been so employed? 6 (Queensbury ZBA Meeting 06/21/06) MR. CREEDE-Since 1987. MR. KENIRY-And since 1987, can you give us some general estimate of the number of docks that you’ve constructed? MR. CREEDE-I would say in the neighborhood, between 75 and 85. MR. KENIRY-And can you describe for the members of the Board, for their benefit, generally where have you undertaken your professional work over the course of the years since 1987? MR. CREEDE-Mostly in Kattskill Bay, some in Pilot Knob, some in Cleverdale, a few in Northwest Point, some in Assembly Point, some near the Village of Lake George, and we are currently working on one up in Hague. MR. KENIRY-Now did there come a point in time, in connection with the performance of your professional duties, when you first became acquainted with the applicant in this case, Mrs. Hoffman? MR. CREEDE-I believe we met through word of mouth, through neighbors and previous customers. MR. KENIRY-And in connection with your becoming acquainted with Mrs. Hoffman, did there come a point in time when you had occasion to discuss with her a possible project? MR. CREEDE-Yes. MR. KENIRY-And when was that? MR. CREEDE-I’m going to say in the neighborhood of Winter of 2001. MR. KENIRY-And can you describe, for the benefit of the members of the Board, maybe not word for word, but the sum and substance of what was discussed with her at that time? MR. CREEDE-She wanted me to use my imagination. She wanted me to come up with something unlike anything else that’s existing on the Lake. She wanted me to make it look like it’s always been part of the Lake. MR. KENIRY-And did there come a point in time in your conversations with Mrs. Hoffman when you obtained certain plans and specifications? MR. CREEDE-I received plans through the Queensbury Building and Codes. MR. KENIRY-How did that come about and when? MR. CREEDE-Spring of 2002. I went and picked them up through the Building and Codes Department at Queensbury. MR. KENIRY-All right. Now when you picked up the plans, was it here at the Town Hall? MR. CREEDE-Yes. MR. KENIRY-Okay. When you picked up the plans, what, if anything, did you do? MR. CREEDE-I studied them in great detail. MR. KENIRY-Can you describe, for the benefit of the members of the Board, what did your study consist of? MR. CREEDE-I had to visit the site. It wasn’t the first time. It was an existing crib dock of solid construction that I had to remove. I had to orientate the structure to meet setbacks. Then I wanted to orientate it in such a way that it would meet with the existing white cedar trees which ultimately the boathouse is constructed with, and still meet setback, which we did. Scaled out the drawings and just proceeded forward from there. MR. KENIRY-Let me ask you this, in connection with the plans that you received from the Town, and the study that you undertook. Did you understand the plans and specifications at the time that you had received them? 7 (Queensbury ZBA Meeting 06/21/06) MR. CREEDE-Not entirely. MR. KENIRY-All right. When you say not entirely, why do you say that? MR. CREEDE-Because the plans that I received from the Building and Codes were unlike any scale that I was familiar with. MR. KENIRY-All right, can you tell, to some extent in layman’s terms, describe for us what you mean when you say that, to the best of your ability. MR. CREEDE-Usually, I go by one eighth of an inch equals one foot. The plans that I was provided with had no illustrated scale on any of the schematics. So, I knew that the cribs were going to be six feet in width. So I used that as a benchmark or a baseline, and re-scaled it out to an eighth of an inch equals six feet. The plans that I was provided with, if you scaled that out, it came out to be seven eights of an inch wide, as opposed to an inch equals six feet. MR. KENIRY-Mr. Creede, for purposes of certainty amongst the members of the Board and their record, are the plans that you’re referring to and that you have in your possession today and that you received from the Town plans and specifications that are stamped by Ivan Zhdrahal, licensed professional engineer, State of New York with the title, Lands of Hoffman, Cleverdale, NY, March 6, 2002 and consisting of three numbered sheets? MR. CREEDE-Yes. MR. KENIRY-And those are the plans that you received? MR. CREEDE-Yes. MR. KENIRY-All right. After you received the plans, after you studied the plans, what did you then next do? MR. CREEDE-Well, proceeded to remove the existing dock and build the crib dock, which took six months alone to do. MR. KENIRY-For the removal portion? MR. CREEDE-No. For the removal, we kind of did two things at once. We removed the existing and used the existing stone to re-fill the cribs, or to fill the new cribs that will ultimately support the boathouse. MR. KENIRY-Can you describe for the members of the Board the total length of this project, in terms of how long it took you to do it, and perhaps give them some understanding, in terms of time, of how long each stage took you to accomplish each stage of your work? MR. CREEDE-I can give you the, roughly one year, two months, two weeks from start to finish. It wasn’t until September or October of 2003, I believe, that we were actually starting the boathouse, and from there, that’s, from that point, we concentrated on working on the boathouse. MR. KENIRY-Okay. Could you generally describe for the members of the Board how the construction progressed? But I am directing you to focus on the issue with respect to the height of the improvement. MR. CREEDE-I don’t quite understand your question. MR. KENIRY-Can you describe for the members of the Board the progress of the construction, specifically with respect to building the improvement up from the water? Tell them what you did. MR. CREEDE-Well, considering that I had to work with non-dimensional material. MR. KENIRY-Is that significant? MR. CREEDE-It’s even more significant that I had to work with whole trees with bark on it, as opposed to logs, where there is some consistency. With these, there is variations 8 (Queensbury ZBA Meeting 06/21/06) and deviations, and many other factors, and it was very challenging to get everything to blend, to work right, to become level, straight, to become level, straight. MR. KENIRY-Can you describe, in layman’s terms, the significance of the distinction on a project of this nature, when you build the improvement using non-dimensional material as opposed to dimensional lumber? MR. CREEDE-Well, dimensional number is two by two, six by six, eight by eight, etc. Very straightforward to work with. With non-dimensional, logs or trees as we work with, there is a great deal of compensation that has to take place. For instance, each upright had to be culped, in other words, soddle-notched on the top to support the bearing beams which will hold trees. We tried to blend all these trees together, bearing beam wise, uprights, angle braces, to all make it look like it’s growing together, but there’s a lot of compensations, deviations to overcome. There’s hips and height differences. Everything has to be notched to try to get to the ultimate height of the boathouse. Dimensional lumber, like I said, it’s pretty straightforward what has to be done. You determine your height, cut it to length, etc., etc. That’s the best way I can explain it to you. MR. BRYANT-Mr. Chairman, may I ask a question? MR. ABBATE-You can ask me a question. MR. BRYANT-I want to ask you a question. I don’t understand whether or not this portion of the testimony is even germane to what, you know, this is not the first building that was ever built with trees. MR. CREEDE-Yes, it is. MR. ABBATE-Excuse me. Counsel, caution your witness. We have procedures here. MR. BRYANT-I’m asking you a serious question. The issue in my mind, and according to the motions that were made in the previous hearings, were relative to the contractor’s error in the project, okay. The fact that it took a year to build and the fact that they used non-dimensional lumber doesn’t address that issue. MR. ABBATE-Let me respond this way. Counsel has every right to introduce whatever evidence he thinks might be relevant to his case, and he has that right and we have the obligation to hear it. MR. UNDERWOOD-Can I make a comment? MR. ABBATE-Yes, by all means, please. MR. UNDERWOOD-All right. I think what he’s trying to do is to differentiate between conventional building and log building, as I have previously tried to do with the Board members, too, and I think in this instance here, our reason for having Mr. Creede show up this evening was so that he could explain the process, as I had previously tried to do to the Board members, and I think that it’s pertinent to the case and I think that we should allow them to continue. You’re going to have a question and answer period afterwards. MR. ABBATE-And we will allow you to continue. So please proceed. MR. KENIRY-And maybe I can try to ask the question in a better manner. I’m trying to focus on height. Mr. Creede, can you explain for the members of the Board how the use of the natural material is different, as compared to the use of dimensional lumber, specifically with respect to the issue of the height of the improvement. MR. CREEDE-Well, again, there are variations that have to be overcome to get to the ultimate height. The best way I can answer it for you is I took this drawing. MR. KENIRY-Indicating Sheet Number One of Three. MR. CREEDE-Scaled it out, to a familiar scale that I was used to working with, determined the height of what the ultimate height of this drawing would be scaled out to, and built it accordingly. That’s the best way I can explain it. 9 (Queensbury ZBA Meeting 06/21/06) MR. BRYANT-What does it scale out to be? We don’t have the drawing, Mr. Chairman. It’s not fair to address something that I can’t see. MR. ABBATE-I know. Listen to me for a second, please. MR. BRYANT-Okay. MR. ABBATE-If you have questions, please write them down. I want Counsel to finish the presentation and then, ladies and gentlemen of this Board, you may do and ask whatever questions you wish. I think it will cause this to go a little faster, please. MR. BRYANT-I apologize. MR. ABBATE-That’s okay. MR. KENIRY-Did there come a point in time when you identified some deficiencies with respect to the scaling? MR. CREEDE-Deficiencies as there was never an illustrated scale. So I did the best way I know how to scale this out properly to duplicate exactly what was approved. MR. KENIRY-What is the result of that lack of a scale on the plans? Can you describe the result for the Board? MR. CREEDE-Well, I could describe to you the ultimate result is it’s built within inches of exactly what’s depicted in the drawing. I’m puzzled why the Building and Codes have come up with such a gross height difference. MS. RADNER-I’m going to object, because I know this isn’t a typical judicial setting, but for the record, the Building Department doesn’t plan and design the project, and the fact that the records came from them, I don’t want the record to appear to reflect the fact that these are plans designed by the Town of Queensbury. They’re certainly not. I’m sorry, I can’t help being a lawyer sometimes. MR. ABBATE-To go one step further, later on, when you’re done with your presentation, I certainly have some questions, I’d like our code enforcement officer to address some of his complaints, if you will. So proceed. MR. KENIRY-Can you describe for the members of the Board the significance of that which is depicted on the plan, as far as the height is concerned, and the difference in the height of the improvement and how that came about? MR. CREEDE-Again, the best way I can explain it to you is that I built this thing to the best of my ability to depict exactly what is on this drawing. As for the height difference, I don’t understand exactly what it’s such a difference in what the Code Enforcements have come up with. MR. KENIRY-Let me ask you this. From time to time, in the course of constructing the improvement, did you take certain measurements? MR. CREEDE-Yes. MR. KENIRY-With what frequency did you measure the height of the improvement? MR. CREEDE-I established roughly the mean low water mark, which I derived from the mean high water mark, which is roughly 30 inches in a higher elevation, and then I calculated the height of each upright, as with respect to the thicknesses of the bearing beams, and how the roof was going to end up, and ultimately the deck and railing thicknesses. So, to answer your question, it was right from the beginning of the first upright. Each upright had to be compensated for, the thicknesses in the bearing beam. In other words, the bearing beams may end up as 18 inches on one end, and 8 or 10 inches on the other, and then they will go back from eight inches, where I tried to blend them together, to maybe as much as twenty-four inches on the other end. MR. KENIRY-What is the result of each of those instances where you must compensate? MR. CREEDE-The result is, again, exactly what is depicted in the approved drawings. 10 (Queensbury ZBA Meeting 06/21/06) MR. KENIRY-Well, let me ask you this. What significance, if any, is there with respect to the plans and specifications, Sheet Number Two, where it depicts a 14 foot height from the mean high water level? MR. CREEDE-The way I scaled that number out, it is incorrectly illustrated. It’s closer to 16 foot 6. MR. KENIRY-Why do you say that? MR. CREEDE-Because the scale is an unfamiliar, it’s unfamiliar to what I’m used to working with. In other words, the scale, it does not scale out correctly? MR. KENIRY-And why is that? MR. CREEDE-I do not know. MR. KENIRY-All right. As a result of your finding that the plan did not scale correctly, what, if anything, did you do? MR. CREEDE-First of, I didn’t see it as a problem. MR. KENIRY-Why? MR. CREEDE-Because, again, ultimately, I was building exactly what was approved in the drawing. It still worked out to be the same. MR. KENIRY-Why do you say that? MR. CREEDE-Again, I didn’t see it being a problem the way I was proceeding. MR. KENIRY-Was that a determination that you, individually, made in the field as you constructed the improvement? MR. CREEDE-Yes. MR. KENIRY-What consultation, if any, did you have with the owner, the applicant in this hearing, in connection with the determination that you made? MR. CREEDE-None. MR. KENIRY-At any time, did Mrs. Hoffman or anyone on her behalf direct you to construct anything other than that which is depicted on Sheets Number One, Two, and Three? MR. CREEDE-No. MR. KENIRY-At any time, did Mrs. Hoffman or anyone on her behalf direct you to exceed the limitations with regard to height as shown on the plans and specifications that we’ve discussed tonight? MR. CREEDE-No. MR. KENIRY-Let me ask you this. With what frequency was the improvement inspected by third parties, say, for instance, the Town? To your knowledge. MR. CREEDE-To my knowledge, no one from the Town, except the two elderly women from the Town Assessor’s Office, visited us on, I believe, two occasions. MR. KENIRY-Did there come a point in time when the project was completed, when you were later told that there was a problem with respect to the height? MR. CREEDE-If my memory serves correct, it was over a year after we had finished. MR. KENIRY-And, at that time, what, if anything, did you do when the problem was brought to your attention? MR. CREEDE-Well, initially I did nothing because I thought it was a joke or something just wasn’t right, and later when I found that there was something going on, I had met 11 (Queensbury ZBA Meeting 06/21/06) Mrs. Hoffman out in the Lake and offered my help in trying to clarify what I did and how I built it. MR. KENIRY-As you sit here today, do you believe that the reason for the height differential is because of the judgment that you’ve exercised with respect to the scaling of the 14 feet from the mean high water level? MR. CREEDE-Yes. MR. KENIRY-Did there come a point in time when you were asked to consider what remedies, if any, may exist for the condition that was created? MR. CREEDE-Yes. MR. KENIRY-And when was that? MR. CREEDE-Roughly speaking, I’m remembering somewhere in 2004, late. MR. KENIRY-And at that time when you were asked to consider remedies, what, if anything, did you do. MR. CREEDE-Well, I did try to come up with a solution. I consider myself a good problem solver with any type of building construction, and I really couldn’t come up with anything without disturbing the integrity of everything as a whole. In other words, cutting down the uprights wasn’t an option. Your roof pitch would have remained the same. However, you would not have had any head room on the ends of the dock. Trying to lower the deck inside the roof, that was really impossible to consider because of drainage, and of course removing the railing, then that only serves half of what this whole project was all about was to cover the boats and offer a sundeck over that. MR. KENIRY-Could you describe for the members of the Board what involvement, if any, Mrs. Hoffman had in connection with your exercise of judgment with respect to the depicted 14 feet on Sheet Number Two of Three dated March 6, 2002? MR. CREEDE-It was never discussed. MR. KENIRY-At any time, ever, did you intend to build anything other than that which was depicted on the plans that were presented to you? MR. CREEDE-No. MR. KENIRY-I don’t have anything further of this witness. The only thing, Mr. Chairman, respectfully, that I would ask is I might want to reserve a minute, depending on what questions the Board members have. Thank you. MR. ABBATE-Sure, by all means. I just have a question I have to ask, because it’s been bothering me. You indicated that you’ve been in the business since 1987 and you indicated, under oath, that the plans that you were looking at were unlike anything that you’ve seen before and you were unfamiliar with them. Now, you also indicated that you worked on this project for approximately a year and two months. During that period of time, have you ever had an opportunity, or did you ever make an effort to contact Staff from the Town of Queensbury to ask them about these things, and/or avail yourself of an opportunity to check the Codes, the Building Codes in the Town of Queensbury? MR. CREEDE-I was familiar with the Codes, sir. As for contacting them, no, I did not contact them. MR. ABBATE-You were familiar with the Codes? MR. CREEDE-Yes. MR. ABBATE-Wonderful. Well, when you built this, were you aware of the fact that you were over-sizing this boathouse? MR. CREEDE-No. I didn’t think it was a problem because the Code existing at that time was based on water height, not mean high water, and another thing, I was surprised that Codes accepted a schematic with no scale or dimensions. So, I used my best judgment, really, to scale this out, again, to create exactly what was here. I really did not maliciously try to deviate and make this thing too big. 12 (Queensbury ZBA Meeting 06/21/06) MR. ABBATE-Okay. Having said that, now I think we have an obligation to ask the Zoning Administrator to perhaps comment on a couple of statements that were made. Would you be willing to do that, Mr. Zoning Administrator? Particularly the fact that an individual working since 1987 in this field was unlike and unfamiliar with the scales, please, just to clear it up. MR. BROWN-Do you have a specific question? MR. ABBATE-In your opinion, the scales on, what’s that exhibit you refer to? Are they unusual? MR. BROWN-Well, there’s a variety, you know, a countless number of scales you can develop any drawing to, depending on the detail you want to show, the lack of detail you don’t want to show, if it’s conceptual. It depends on what you want to show as to the scale that you pick. Regardless of what the scale is, I think the Number One rule that any contractor of any audience will tell you is, you never, never, never scale the drawing. You use the dimensions that are on the drawing as your design limits. The numbers are on there for a reason. You don’t put a scale to the drawing. You rely on the numbers that have been applied to it by the designer. So, if there’s a question with the height, and they don’t scale out, I think you’ve violated Rule One and Rule Two is, these are my rules, by the way, Rule Two is if you don’t understand the drawing, you contact the person who made the drawing and have them clarify whatever questions you may have. So I don’t know if that answers your question or not. MR. ABBATE-That answers, did you contact the individual that made the drawing? MR. CREEDE-No. MR. ABBATE-You did not. Okay. MR. URRICO-Can I just jump in. Question. The drawing we’re talking about did not originate with the? MR. BROWN-The drawing we’re talking about was submitted on behalf of the applicant, through our normal building permit process. Mr. Creede obtained the drawings as he picked up the approved building permit plans. MR. URRICO-So those are the drawings he’s talking about, those that were approved? MR. BROWN-Those are the plans that were approved with the building permit for the structure, that’s correct, but they were submitted by the applicant, on behalf of the applicant. MR. ABBATE-Okay. Thank you. Let’s try it this way. Jim nudged me a little while ago. He asked me if he could speak first, and I forgot about that, but then I’ll honor Mr. Bryant. MR. BRYANT-I’ll allow Mr. Underwood to go first. MR. ABBATE-Would you, please. MR. BRYANT-But I would like to see the drawings with the notes on them. MR. ABBATE-Yes, by all means. While he’s examining that, Mr. Underwood, you had something you wanted to say? MR. UNDERWOOD-Sure. Craig’s going to put a picture up. MR. ABBATE-Go ahead, please. MR. UNDERWOOD-All right. I tried to make this explanation to the Board before, and I’ll try and do that again with Mr. Creede’s help this evening, here. I did go out to the site again on Monday this week early in the morning. So I didn’t get to see anybody. I just got to wander around and admire what a work of art’s been created out there. At the same time, I speak with a little bit of knowledge about how the process works out there, because I am a graduate of a log building school and I built my own conventional log home in much the same manner as has been done here, but just to explain the process. As Mr. Creede alluded to, there is a problem because when you build with conventional docks, you’re dealing with dimensional lumber. You pick up an eight foot piece of eight 13 (Queensbury ZBA Meeting 06/21/06) by eight for a post, and it’s exactly, when you measure it out, it’s exactly eight feet tall, and when you determine what you’re going to use for your carry beam, in the case of logs, we call those purlins, all right. Purlins are the beams that run horizontally on top of the posts and the beams that are coming up at an angle there are just support beams. They’re more nominal as far as actually strengthening the building, but when you build with logs, you have to make sure that things are engineered properly, and as Mr. Creede has done here, you can see that both the posts, the vertical elements of the building, and the horizontal ones, which you see the log ends up on top of those posts, kind of compliment each other. They have to be substantial, and as everyone knows a tree, when it grows, tapers as it goes towards its tip. Those posts, in other words, those carry beams up on top, have to be set in as they’re set in. The top of the posts might be eight inches in diameter. The but of that post might be 20 inches in diameter. So you have a huge discrepancy there. Now when I went out to the site to look at it, I had talked to Chairman Abbate about it and I said to him, you know, I’m going to go out there because I want to go out with eyes wide open and determine, could he have actually built this thing nominally, within the guidelines as proposed by the Town? And the thing that really would determine it in this instance here, that makes this so different than most of the boathouses that we see up on Lake George is that a conventional boathouse on Lake George is basically a box. It’s square. It’s got a horizontal element to it, and it’s basically like the center portion of what you see there, and when you guys came in and approved for this oversized boathouse with the three bays instead of having a single bay in the middle, you ended up with those wings off to the sides of it. So, in order to determine what you’re going to do, that does have a pitched roof that runs off to the side, and I’m not sure, I mean, it’s at about a 3/12 pitch, Mr. Creede, is that what you would say? MR. CREEDE-Actually, exactly, it’s 2.78/12. MR. UNDERWOOD-I figured it had to be about three when I looked at it, and in looking at the dimensions of it, as he had mentioned before, the actual height of the building that you’re going to end up with in the center, and there is a central part of that building that has a horizontal element. That’s the part where the actual deck is up on top there. That’s flat. All right. If you go out to the edges of the buildings and you look to where the overhangs come down off onto those side docks, that would determine what the ultimate height was going to be way up high there, and if you walked out to the edge and measured, what I came up with on the right hand side was six foot eight in height, and that was where the rafters came down to the drip edge of the roof, and secondly, over on the other side, on the north side of the building there, it was six foot four. I don’t think you could build anything any shorter than that. That six foot eight right there, the standard opening that you have on the door, so six foot four you’d have to subtract some off of there, and if you stood in their doorway, and you stood out there underneath the log rafter, I think you would say, I don’t think it could have been built any other way possible than that, and as you go towards the center of that building, the pitch of that roof that allows the water to run off of the roof there, you know, comes up at a nominal angle. A 3/12 pitch is about as low a pitch as you want to build on a roof. I don’t know of too many people that have built at a 2/12 pitch, which would have lowered the building down, but a 2/12 pitch would have brought that building down probably four to six inches maybe in height, I’m guessing, ultimately over that distance from the sideline over to the center, and so I really don’t see that building with log construction, as has been done here, could have been done any more compliantly than what was done. I think he kept a good eye on what he ended up with, and in an instance, if you measure from the actual top of those docks, in other words, the decking that you would walk on on the docks themselves, up to the decking up on top, where the deck is up there is 13 feet high, and I would think that if you probably went out to most sites on the lake and measured boathouses, you would come up with, you know, something in that neighborhood, probably within a foot or two of that. That’s what really made the thing as high as it is, and as far as I’m concerned, I really don’t see that it could have been done, any change, unless you would have had a completely flat roof across the whole structure, which wouldn’t have achieved what the plans advised him to build there on site. How many log structures like this have been built up on the lake? MR. CREEDE-Nothing with trees with bark on. There have been several structures but they’re peeled logs. There of different design, but nothing with whole trees. We used the whole tree, right from the root right up to eight inches in diameter, and then we further used that, the smaller sections, incorporated into the rail system. MR. UNDERWOOD-Okay. I’ll stop for now. MR. ABBATE-Mr. Bryant, please. 14 (Queensbury ZBA Meeting 06/21/06) MR. BRYANT-At one point you state that you picked these up from the zoning. MR. CREEDE-Building and Code. MR. BRYANT-Building and Code place, whatever. At one point you entered into a contract with Mrs. Hoffman to build this dock. Was it prior to seeing those drawings or after receiving those drawings? MR. CREEDE-First off, sir, I had no contract with Mrs. Hoffman. She asked me to build the boathouse. MR. BRYANT-So you (lost word) the time and material? MR. CREEDE-Yes. MR. BRYANT-Okay. Because my primary question was, how could you even begin to estimate a project when you don’t understand the drawings, or you can’t scale the drawings? MR. CREEDE-No, it wasn’t, that’s not, what was the most difficult is I had no idea how long this was going to take. That’s the reason for time and materials. It was fair to her and fair to me. MR. BRYANT-So if it was time and materials, regardless of the configuration of the dock, Mrs. Hoffman actually paid for a 16 foot 6, whatever it is height? MR. CREEDE-I don’t understand your question. MR. BRYANT-Isn’t that correct? It’s time and materials. So whatever it cost in materials, it makes no difference. If I’m a contractor and I’ve got a drawing that says 14 foot high, and I estimate a dock as 14 foot high, and I build 16 and a half foot, I look for a change order, but you built it time and materials. So ultimately the owner paid to build it 16 foot high. MR. CREEDE-I still don’t understand your question. MR. BRYANT-Okay. I’ll go to the next question. If this second drawing which you didn’t show me, Drawing Number Two, clearly shows a 14 foot height, why did we deviate from that? MR. CREEDE-Again, if it’s scaled out to the scale that’s depicted in there. MR. BRYANT-Well there is no scale. It doesn’t say scaled anything here. So the question is, there is no scale, it’s a sketch. It’s not scaled. It doesn’t say scaled to quarter inch, eighth inch, 10, 20, engineered scale, it doesn’t say that. MR. CREEDE-Correct. MR. BRYANT-It’s a sketch. So let’s forget about the scaling. The question is Sheet Number Two obviously, on the original drawing, says 14 feet height? MR. KENIRY-Would you like me to answer? I can tell you exactly what it has. It has two distinct hash marks, if you will, one at the top, one at the bottom. The bottom is labeled MHWL-320.2, and then it shows 14 feet between the two hash marks. That’s on Sheet Number Two, March 6, 2002. MR. BRYANT-I want to go back to my questions later. All right. MR. ABBATE-Thank you, Mr. Bryant. Gentlemen, ladies, do we have any other questions? MR. URRICO-I have a question. MR. ABBATE-Yes, please. MR. URRICO-Mr. Underwood makes a very compelling case. However, what I’m trying to understand is, Mr. Creede, I don’t hear you saying that, given the type of materials you were working with, regardless of the scale or the depiction in the drawing, you would not 15 (Queensbury ZBA Meeting 06/21/06) be able to achieve that height, given the type of materials you were working with. You were at their mercy. Is that the case? MR. CREEDE-Again, the best way I can answer the question for you, sir, is the drawing that I was provided with, and it was approved by your Building and Codes Department, I created exactly to the best of my ability non-maliciously like what is depicted in the drawing. Maybe I’m not understanding your question entirely. MR. KENIRY-Yes. I don’t think that’s his question. He’s asking you about the distinction between dimensional or non-dimensional lumber. MR. URRICO-Did you not understand the drawing and that’s the reason we got to the height we were at, or did you get to that height because the materials you were working with make it impossible to really come up to a certain height? MR. CREEDE-Well, the architectural theme of the whole thing, Mr. Underwood described the roof pitches, the ultimate height at the very ends of the meeting, dimensional or non-dimensional still would have to be built to the height that it would come up with. It was just a level of difficulty having to work with whole trees to get to that ultimate height. As well as variations in log thicknesses, the uprights, the purlins. That’s the best way I can answer it for you. MR. URRICO-There’s a three foot discrepancy, two and a half foot discrepancy. Would that be accounted for in the type of materials, the type of trees, or is that because the drawing was mis-read? Because I’m hearing two different arguments. MR. CREEDE-Okay. Yes, to answer that. Dealing with the logs, the way this whole thing is designed, okay, that has a little bit of both. Let me answer it to you that way. MR. ABBATE-Gentlemen, ladies? Please, Mr. McNulty. MR. MC NULTY-Specific for Mr. Creede, you’ve stated and obviously were aware the need to meet setbacks when you were building this because you mentioned that you were siting it to make sure you met the side setbacks. MR. CREEDE-Yes. MR. MC NULTY-Were you aware at that time that there was a height limit in the Code that you also had to meet? MR. CREEDE-The way I interpret the Code it was ambiguous, 18 feet for a peaked roof and 14 foot, and it was based on water level. The water level can vary a great deal. MR. MC NULTY-Okay. So there was some confusion there, then. Second question, which may be appropriate for you or maybe the attorney will want to approach it later, but I’m wondering, have we established what the actual height of the roof or the deck of the sundeck is at now? MR. KENIRY-Mr. Underwood, did you, if I remember you hearing correctly, 13 feet? MR. UNDERWOOD-I took it from grade where the shoreline meets the dock, all right, and here’s my thinking on that one. When we measure any other conventional building in the Town of Queensbury, we take the measurement to the highest point of the building from the lowest point at grade, on boathouses we take it from the mean low water mark. So as far as I’m concerned, this is just my personal opinion, of course, it doesn’t jive with the Code, but you’re actually measuring below grade when you go down to the height of the water from the decking on that dock. The shoreline is, the dock is an extension of the shoreline coming out where land curves, all right. So when I measured up, I measured 13 feet from the top of that dock, where the crib dock walkway would be anywhere on that dock, up to decking up on top of the dock where you would walk on the conventional sundeck up there, and it was 13 feet 3 or something like that. That’s what I came up with. MR. STONE-May I ask Mr. Brown a question, and Counsel. That’s an interpretation, but the Code says 14 feet from mean high water, does it not? MR. UNDERWOOD-That’s what it says. MR. BROWN-As do the plans, yes. 16 (Queensbury ZBA Meeting 06/21/06) MR. STONE-Thank you. MR. MC NULTY-Okay. Well, let’s leave that question out there for now. Where I’m going with it is what we’re being asked to approve, should we approve this. The Staff notes indicate that, the application, I think, is asking for three and a half feet of relief, which suggests you’re looking for a total height to the top of the rail of 17 and a half feet, and somewhere also in the application package, in the Staff notes, it indicated that the rail, by Code, must be three and a half feet high. So what I want to make sure is that we shouldn’t be asked to approve something that’s 18 or 18 and a half feet rather than 17 and a half. We certainly don’t want to approve 17 and a half and then have you come back later and say, oops. MR. KENIRY-Right. I think we can give you the specific measurements, and I think we’re prepared to do it. The difficulty has been the prior grant of relief that we received indicated that when we were successful in the grant for prior variance, it was within the realm of 15 feet, and so as a result of that, we treated that grant of variance literally and never zeroed in on exactly 15 feet, but I think we would be prepared to provide the exact dimensions. The other thing, Mr. McNulty, what we had done, for purposes of certainty of the record, we wanted to avoid a dispute with the Town about how or what measurements were being taken. That was not our object. So to some extent, if we are successful, and if we are able to get to that point, then it would be my intention to simply agree, rather than have a dispute about what is the actual height, and for purposes of the discussion, we would accept the measurements that the Town has, so that there would be no issue about who’s measurements are right. MR. MC NULTY-Okay. I guess the other question I’ve got probably is more appropriate to wait until later. MR. ABBATE-Gentlemen, ladies? MRS. HUNT-I have a question about the plans. There were no dimensions on the plans and no scale of any kind? MR. CREEDE-No scale, ma’am. Page Number Two indicates 14 feet from the mean high water mark, and 40 feet for the crib locations as 317.74 located at the bottom of the lake, 40 feet from that mark. That’s the only dimensions that I had to go on. MR. ABBATE-Town Counsel would like to have a copy of Number Two, please, now. MR. KENIRY-Would you like me to hand it up? MR. ABBATE-Would you please? MR. KENIRY-Sure. MRS. HUNT-Is this usual? This was unusual, these plans? MR. CREEDE-In my opinion, yes. MRS. HUNT-So as I see it, it was a combination of the plans being unusual, and difficult to follow, and the fact that the materials were different? MR. CREEDE-Yes. MRS. HUNT-Okay. MR. ABBATE-Do we have any other questions from members of the Board? MR. STONE-Mr. Chairman, let me express some confusion. We’ve heard arguments, both by the applicant, the builder and Mr. Underwood that building a dock in this manner is, I don’t want to say haphazard, I don’t mean that, but there’s a lot of variation in it, and we’re being asked to understand this. It’s my understanding that we considered that when we granted the extra foot of relief and asked that the railing come down. I mean, we heard these arguments before, not quite as well spoken as Mr. Creede, but we did hear arguments that it was a unique design and therefore very hard to pin down the measurements, and we said, okay, we’ll grant one foot of relief so that the top of the dock, the roof of the dock, if you will, will be at 15 feet. That’s what we agreed to. That’s 17 (Queensbury ZBA Meeting 06/21/06) the variance that we granted, and quite frankly, anything else I hear, to me, doesn’t help me at all. MR. ABBATE-Okay. Thank you. Do we have any other comments or questions? Yes, Mr. Bryant, please. MR. BRYANT-I have a question for Staff. In the motion that Mr. Stone made back in November ’04, relative to that foot, there were three conditions. Unfortunately, I don’t have the, they’re not spelled out. Can you clarify those conditions? MR. BROWN-If you can just give me a second, I’ll try and find it here. MR. BRYANT-Take your time. MR. BROWN-I’m sure that it’s going to be in the record, the file. MR. BRYANT-I looked and I couldn’t find it. MR. BROWN-Okay. MR. BRYANT-I see he makes a comment to the original three conditions to another hearing, and I just don’t see it anywhere. I’m getting old. MR. BROWN-I could read you the November 17, 2004 motion to approve, which was Introduced by Mr. Underwood and Seconded by Mr. Abbate. Is that the resolution? There’s no conditions in it. It ultimately says bring it down within the realm of 15 feet. MR. BRYANT-During the period, July 20, 2005, Mr. Stone introduced a motion to deny, and he said that, back in 2004, on a site plan, they outlined three conditions, and those conditions weren’t met. MR. BROWN-Okay. The site plan resolution. I thought you said variance resolution. MR. BRYANT-Okay. MR. BROWN-We can find that one. That’s a different resolution by the Planning Board. MR. BRYANT-I’m looking at Page Two, just while we’re waiting to locate those conditions. The dimensions are clearly spelled out, 14 feet by 40 feet, and so forth and so on. I don’t understand the confusion. I don’t understand how we could assume it’s 16 foot 6 and not 14 feet. MR. CREEDE-The best way I can explain it to you, as I said over and over again, when I scaled it out to the best. MR. BRYANT-There is no scale, sir. MR. CREEDE-I realize that. MR. BRYANT-It doesn’t say to scale anywhere. Okay. You’ve been in the business 20 years. If there’s no scale, it’s a sketch. Okay, and you have to go by the dimensions. If it’s scaled, that’s another question, but there is no scale. It doesn’t say the scale, the key for the scale anywhere on the drawing. So I know you’ve said it 1,000 times, but I’m asking the question specifically, the dimensions are clear. There’s no way that you could think anything else, regardless of the picture, configuration, or whether you’re building with logs or toothpicks. The scale, the drawing clearly says 14 foot high, 40 feet long. MR. CREEDE-If I were to have tried to accomplish that, that boathouse would only have been made useful for ompa loompas. MR. BRYANT-You mean the two feet make the difference? MR. CREEDE-Made a huge difference. MR. BRYANT-What is the inside ceiling level? MR. CREEDE-Not the ceiling level, the roof pitch. 18 (Queensbury ZBA Meeting 06/21/06) MR. BRYANT-I’m not saying the pitch, but obviously the guy who did this is an engineer. He knows what the pitch has got to be, and he says it’s going to be 14 foot high. MR. CREEDE-Sir, I hold a degree in engineering, too. Okay. The roof pitch, at 3/12, is the lowest that I could go with, and I actually exaggerated that to two and seven eighths inches, and twelve inches. Okay. MR. BRYANT-But you’re telling me you built exactly this picture, what your picture indicates, it’s exactly, except for the height and the width and the dimension. MR. CREEDE-The dimension is incorrect. It’s incorrectly illustrated. MR. BRYANT-So you’re saying this 14 foot would be impossible to accomplish? MR. CREEDE-Exactly. MR. BRYANT-Is that what you’re saying? MR. CREEDE-Yes. MR. BRYANT-Based on your engineering degree? MR. CREEDE-Yes. MR. BRYANT-That’s a better explanation than trying to scale. MR. ABBATE-Gentlemen, ladies on the Board? MS. RADNER-We found the conditions, if you want them read. MR. ABBATE-Please, are we prepared to read it into the record? MS. RADNER-This was the resolution introduced by Craig MacEwan and seconded by Richard Sanford for Site Plan No. 51-2001, for Jean Hoffman. We find the following: The application is hereby approved in accordance with the resolution prepared by Staff, and subject to the following conditions which shall be listed on the final plan submitted to the Zoning Administrator: Number One, the land bridge be removed, and, two, no railings will be reinstalled on the top portion of the boathouse roof, and three, revised plans to be submitted to Town Planning Office no later than December 31, 2004 which correctly illustrate the removal of the railings, the land bridges, and show the corrected height given by the ZBA variance to the top of the roof line. That was Duly adopted the rd 23 day of November 2004. MR. BRYANT-Is the land bridge removed? MR. KENIRY-At this time, the status quo has been maintained as we’re aware and we had discussed at a prior meeting, this is a subject of review by the court. MR. BRYANT-Did they re-submit the drawings? MS. RADNER-Nothing further happened. They filed a petition under Article 78 for review by the courts, and that’s where it’s been ever since. MR. ABBATE-Ladies, gentlemen, do we have any other questions, questions or comments? Okay. Good. I’m going to open up the public hearing for Number 46-2005, and would those wishing to be heard please be kind enough to approach the table, speak into the microphone, and for the record identify yourself and place of residence. Do we have any individuals in the audience who would like to address Area Variance No. 46-2005? Would you raise your hands, please. PUBLIC HEARING OPENED MR. KENIRY-Mr. Chairman, may I retain my seat, because I have a feeling I’m going to end up back here. MR. ABBATE-Counsel, you can retain your seat, but under no condition will you attempt to interrogate these individuals. MR. KENIRY-No, I intend to ask any of these individuals any questions. 19 (Queensbury ZBA Meeting 06/21/06) MR. ABBATE-Okay. As long as we understand that. Your name, madam, and where do you reside, please. LEIGH BEEMAN MRS. BEEMAN-I’m Leigh Beeman. I’m Mrs. Hoffman’s neighbor to the north. She purchased the property from me, in 2001, and the property belonged to my parents. She has treated the property with great respect since that time, and everything that she has done, the changes she has made, have been beautiful. The dock is one of them. I watched it being built. I know that the materials were difficult to deal with, particularly the tree type materials and several were sent back because they weren’t right. That was the biggest problem that I recall, and my issue is that it’s a beautiful dock. I would hate to see that railing removed. It’s going to look like an airplane hanger without it, and there are some docks in my neighborhood there that are so ugly that it’s just hard to believe that they’re allowed to exist. One of them has a little shack on top with white aluminum siding. You can see it all over the lake. Mrs. Hoffman’s dock is absolutely a work of art, and I’d like to see it remain just as it is. Thank you. MR. ABBATE-Thank you very much. Would you be kind enough to approach the table, speak into the microphone, and for the record identify yourself and place of residence, please. JOHN SALVADOR MR. SALVADOR-My name is John Salvador and I’ve asked the Zoning Administrator to put this photograph on the screen. I have a set of these plans. I got them through FOIL requests from the Building and Codes Department. These plans have been certified, and let’s look at what’s been certified. The only thing that’s been certified are some section members, no lengths have been specified. Somebody has got to take these drawings and make a cutting schedule, what we might call a shop drawing. I think the problems have come about. MR. ABBATE-Mr. Salvador, would you do me a favor. The gentleman in the back of the room can’t hear you. Would you speak into the microphone, please. MR. SALVADOR-Okay. I think the problems with the height have been derived from the fact that the pier decks are inordinately high above the water level, if you look at that, and then when you start to set the structure on top of that, of course you’re throwing everything up higher, but there is no way that anyone could construct that building from these drawings without some kind of intermediate, what I would call a shop drawing, a cutting schedule, and the envelope within which those cuttings fit is defined here, the height of the building, of the boathouse. The other thing, you’ll see on the drawing that there’s a note. The designer’s note here is all calculations have been taken from log span tables, and then he refers to that. All these drawings tell a builder is what section log he’s going to use in what place, whether it’s a column, a roof beam, a purlin, whatever it is, that’s what’s on here. That’s what’s been designed. Just the section. This Code that’s referred to here gives a lot of detail and requirements for these materials, and particularly the connections. That hasn’t been shown here. Connection details haven’t been shown, and that’s very, very important in this kind of construction. So a lot had to be done between receiving these drawings and starting to cut members in the field. A lot of work had to be done. The other thing that, the only other point I would like to make, because I don’t think I’ll be able to come to the microphone again, whatever is decided here tonight, whatever is decided, the finished product, in whatever form you approve it, must be recertified. If it hasn’t been built as these drawings, they’ve got to be re-certified before a CO can be issued. MR. ABBATE-I think we have a gentleman who had his hand up. Yes, sir. Would you be kind enough to come to the table, speak into the microphone, and state your name and place of residence, sir. TED HANSON, III MR. HANSON-Thank you very much. My name is Ted Hanson, III. I live on Gunn Lane in Cleverdale. First I just had a couple of questions, just really briefly, to help me better understand the proceedings. As I understand it, within reason, this Board has discretion to approve or deny this relief request, this variance, within reason. MR. ABBATE-Is that your question? 20 (Queensbury ZBA Meeting 06/21/06) MR. HANSON-Yes. MR. ABBATE-The answer is yes. MR. HANSON-Yes, they do, and they are allowed to take in any factors that they deem relevant to do so? MR. ABBATE-Well, we take only the evidence that’s contained in the record. Period. MR. HANSON-Okay. Then just really briefly, I’d just like to voice my opinion. I don’t really have a dog in the fight or anything like that, but I’ve spent the better portion of my life on Lake George, and I’m from a younger generation. So take my opinion with a grain of salt, but I’ve spent a lot of time on the lake, and I would just like to voice that I think it would be extremely unfortunate if anything were to happen to that dock to alter it from the condition that it’s currently in. Because it’s my personal opinion, in riding around in my boat on a good portion of the 33 miles in Lake George, that it’s the prettiest dock, it’s the prettiest boathouse on the lake. That’s pretty much all I wanted to say. MR. ABBATE-Thank you very much. We appreciate that. MR. HANSON-Thank you for having me. MR. ABBATE-Do we have anyone else in the audience who would like to? Yes, ma’am. Would you be kind enough to come to the table, speak into the microphone and state your name and place of residence, please. MAGGIE STEWART MS. STEWART-Maggie Stewart from Assembly Point, and my objection to the dock basically is, first of all the original plans met both your Codes and the Park Commission Codes, but the finished project is not conforming, and therefore I feel it’s illegal. Now it doesn’t matter who’s at fault here, whether it’s Mr. Creede or Mrs. Hoffman or the man on the moon, but I think what matters is that a precedent not be set for someone else to do the same thing around the lake. I think her dock must be brought into compliance, as best as possible, and at the very least the railing needs to be taken down from the deck and the bridge has to be removed, and I think there should be a definite time for this to be accomplished, and I also know that this is an enforcement case with the Park Commission because they don’t grant after the fact variances, but that’s their problem. However, I think that’s a good policy to follow, and those are my comments. MR. ABBATE-Thank you very much. Do we have anybody else in the audience who would like to address Area Variance No. 46-2005? If so, would you raise your hand. MS. RADNER-Mr. Abbate, before you ask, you might want to specifically ask if there’s anybody who had acted on reliance on the original approval or denial granted by this Board, as a re-hearing part of your obligation is to assure yourself that there’s nobody who has a vested right, based on their good faith reliance upon the original order. MR. ABBATE-That was a question Town Counsel, and I will state that for the record, that as a question. Is there anyone here who falls into that category? MS. RADNER-Under Town Law, part of your obligation, when you’re re-hearing a prior order, is to make a determination that there’s no one who has relied in good faith upon your original order, who’s rights are vested, and who’s going to be prejudiced if you find differently today. So you want to give anybody an opportunity to say that they do fall in that category and to explain how they’ve been prejudiced. MR. ABBATE-Okay. Is there anyone in attendance this evening who falls into the specific category as stated by Town Counsel? Would you please raise your hand so you can be recognized. Then there is an assumption, since no one has raised their hand, that no one falls into that category, Counsel. Thank you very much. Is there anyone else, last call, anyone else in the audience who’d like to be heard concerning Area Variance No. 46-2005? Mr. Secretary, if we have some correspondence concerning this case, would you be kind enough, please, to read those into the record. MR. UNDERWOOD-This letter was received on May 4, 2006. It’s addressed to Chairman Abbate. “This letter is to offer our support to Jean Hoffman during her boathouse and dock hearing. Her boat house is, without question, one of the most 21 (Queensbury ZBA Meeting 06/21/06) beautiful boat houses ever built on Lake George. It blends beautifully into the natural Adirondack Lake George setting. It is nicely proportioned and certainly compliments the neighborhood and shoreline. Any building project that Ms. Hoffman has embarked on has complimented our neighborhood and the surrounding Cleverdale properties. This boathouse offers the neighborhood a very positive appeal. We hope that more home owners will emulate Ms. Hoffman and place as much sensitivity and consideration into the aesthetic qualities and the setting as she has done with the design and function of her boathouse. We would like to request that you take into consideration all the plus features of this boathouse and rule in favor of Ms. Hoffman’s zoning request. Thank you for your interest in this request. Sincerely, Fred and Linda McKinney” This one was received on May 10, 2006 “Gentlemen: I understand that the Board is requiring Ms. Jean Hoffman to remove the upper railings on her new boathouse. I respectfully request that you reconsider on this matter. I watched this beautiful dock being built from my own residence as her neighbor on Cleverdale. Practically every motor boat that cruises by our shore slows or stops for a moment to admire the detailed woodwork involved in its construction. Reminds us of the old Adirondack Great Camps. This boathouse does not detract from the beauty of Harris Bay, but, in fact, it adds to the beauty of the bay. If Jean Hoffman does remove the rails from her boathouse, it will destroy the design completely. The roof is wide to cover the three boat slips, and if the rails are removed, it will look ugly, like a large airplane hanger….and I doubt that those boats passing by will slow down to look at that! I hope the Board will reconsider. Respectfully, Ted Hans 5 Duncan Cove Cleverdale, NY 12820” I have another one. “I’m writing this letter on behalf of Jean Hoffman of Cleverdale in reference to your decision to have her alter her dock. I am a real estate agent and property owner as a family on Pilot Knob for 75 years. When I tour people on the lake, Ms. Hoffman’s boathouse is one of my stops with clients. I believe that this boathouse is very beautiful and artistic, and in keeping with the character of the lake. I have seen many boathouses that should come down but do not. This boathouse does not obstruct anyone’s view, is good for others to imitate and I see no reason whatsoever to force her to alter it in any way. Respectfully, John Skinner, III”. And the last one, “To Whom It May Concern: I am a resident of Cleverdale (year-round) and on occasion ride by the Hoffman property by boat. I watched as the above project progressed over the past few years and could observe how labor intensive it was. I have to admit that I was very impressed by the end result. In my mind, it fits the category of a “True Adirondack Boat House”. I recently heard that alterations might have to be made to the finished structure so that it complies with new regulations. I don’t know if these were in effect when the original permit was granted. It would be unfortunate if alterations were now required not only for the expense involved but the negative effect it would have for the aesthetics of the structure. I hope the Board will allow the boathouse to remain as is for I feel the existing structure is a definite asset to our lakefront. Yours truly, Thomas A. Burke” That’s it. MR. ABBATE-Thank you. Counsel, I have a question for you. I just want to make sure that I’m correct. I went through all the masses of paper that we have, and I could be wrong on this thing, but does this particular project come under any kind of Lake George Park Commission or the APA? In other words, is this a part of it? If it is, what’s the status. MR. KENIRY-I believe that it does, Mr. Chairman, and I think your agenda, in fact, accurately reflects that the application is subject to review and approval by the Warren County Planning Board, which I believe has, in fact, occurred. I also believe that, as your agenda correctly indicates, that it is subject to the Adirondack Park Agency. There was reference made, by one of the speakers in the public hearing, concerning the subject of, I believe the Lake George Park Commission, and it’s my understanding, I think I would know if there were an enforcement proceeding that had been commenced. To my knowledge, no such enforcement proceeding exists, nor has it been commenced. I believe that there have been, I state very candidly, some frank discussions concerning the subject, and I believe that it’s the applicant’s sincere intention to file an application for a variance. MR. ABBATE-To? MR. KENIRY-To the Lake George Park Commission. MR. ABBATE-That hasn’t been done until the present time? MR. KENIRY-No. MR. ABBATE-Okay. 22 (Queensbury ZBA Meeting 06/21/06) MR. KENIRY-But there is an existing dialogue. It’s not that this exists in some vacuum. They’re very well aware and, in fact, they also know, specifically, that we were here, what was it, not last month but the month before. MR. ABBATE-Okay. Thank you very much. MR. KENIRY-Yes, sir. MR. URRICO-Mr. Chairman, I have a couple of questions, just for clarification. MR. ABBATE-By all means. MR. URRICO-I’m still trying to assimilate all of this. The three and a half feet of relief that we’re speaking of is represented by the railing? MR. ABBATE-Yes. MR. URRICO-Is that the entire railing, the horizontal portion of the railing, the vertical portion of the railing? Where are we measuring the railing from? MR. BROWN-The overall height measurement was performed by Bruce Frank and I, on a date that’s in the file. I apologize for not having it in front of me, but we measured to the horizontal portion of the top rail right in that center section you see in that photo. We did not count the rails. Nor did we take into account the light fixtures. So we used the horizontal portion. MR. URRICO-And just so I understand the sequence, the first variance that came before us, they asked for, was in 2001, and height was not an issue with that, if I recall, from the notes. MR. ABBATE-At that time, that is correct. MR. URRICO-They came back after the fact, and then requested the height variance. That’s when the problem appeared. So between 2001 and 2004, that’s when the problem developed, and they came before us and we granted them one foot of relief, with no railings. MR. ABBATE-That is correct. MR. URRICO-As the condition. MR. ABBATE-That is accurate. MR. URRICO-Okay. MR. KENIRY-And for clarification in that regard. MR. ABBATE-Sure, by all means. MR. KENIRY-The sequence was that there was not an enforcement proceeding here, but, in fact, and I think you have prior testimony specifically on it, that when the condition was brought to Mrs. Hoffman’s attention, we did, in fact, immediately file the application for the variance at that time. MR. STONE-Mr. Chairman, I’m becoming more and more troubled with my position on this Board at this particular time, because of some of the arguments I’ve heard from the public about the beauty and the consequences of taking down the railing. Since I’m currently trying to sell my property on Lake George, I feel I must, at this time, recuse myself from further discussion. MR. ABBATE-All right, Mr. Stone. Thank you very much. MR. BRYANT-A question for Staff. Just correct me if I’m wrong. The railing is three and a half feet. We’ve already granted them a foot without the railing. So, are we saying that they need a total relief of four and a half feet? MR. BROWN-No. I think the overall height here was 17 6, and Attorney Keniry can come up with that number. 23 (Queensbury ZBA Meeting 06/21/06) MR. KENIRY-I believe that’s correct. MR. ABBATE-Excuse me a second. Mr. Stone, you are under no obligation to leave the room. MR. STONE-I know. MR. ABBATE-All right. Sorry about that. Go ahead. MR. BRYANT-So why did we have the one foot of relief if, theoretically? MR. BROWN-I think the one foot of relief was granted to allow for some sort of aesthetic maintenance of a portion of the rail and the top of the boathouse. MR. BRYANT-Okay. MR. KENIRY-Mr. Bryant, though, can I just address, I mean, that really zeros right in on the heart of it, because the result of the one foot of relief is that it doesn’t accomplish the ultimate project that was originally proposed, I think as you know. MR. BRYANT-Okay. I have two remaining questions, one for Counsel and one for the contractor, if he wouldn’t mind coming back up to the microphone. MR. ABBATE-Go right ahead. MR. BRYANT-The land bridge, if we were to approve the height variance, what’s going to happen to the land bridge? Is that going away? MR. KENIRY-No, and we don’t go away, but we won’t be back here. We’ll go to the Planning Board. As it stands now, and it’s been some time, and I, to some extent, differ to Cathi on the procedure, but we, I believe, have a current application pending before the Planning Board that was agreed as being held in abeyance, and that is the best of my recollection. However, the practical point is that we’re still subject to finalization with respect to site plan review at the Planning Board. MR. ABBATE-Okay. MS. RADNER-My memory, just so we’re clear, here, is that there was a visit to the Planning Board. They gave the approval with the three conditions that we discussed earlier. Article 78 petition followed. Nothing further has been filed with the Planning Board, to my knowledge. They couldn’t return to the Planning Board to seek additional approvals without first getting approvals from this Board. MR. KENIRY-That’s absolutely correct. You are a prerequisite to us getting there. MR. BRYANT-Okay. The question I have for you, Mr. Creede, one of the speakers had mentioned the necessity, and I totally agree with him, of going from the engineered sketch, at some point, you would have had to, you ordered the material? MR. CREEDE-Yes. MR. BRYANT-Okay. You would have had to have had some kind of list of material, the sizes, configuration, so forth and so on. Where is that list? I mean, did you make a sketch? MR. CREEDE-Right here. MR. BRYANT-You had to write it down at one point. You don’t have it all in your head. MR. CREEDE-No, I did write it down at one point, but that is, you know, gone. MR. BRYANT-Okay. Now you stated before that you have an engineering degree, and you made the determination that there was no way in the world that the roof could be 14 feet or the overall height could be 14 feet, and you could live with it. At one point you made that determination, whenever that was. Did you bring it to anybody’s attention that this doesn’t work as approved? MR. CREEDE-Yes, my father and I, no one else. 24 (Queensbury ZBA Meeting 06/21/06) MR. BRYANT-You didn’t bring it to Mrs. Otte’s attention? You didn’t bring it to the Zoning Administrator’s attention? MR. CREEDE-No. MR. BRYANT-You didn’t bring it to anybody’s attention. You took it upon yourself to violate the Code and build this 17 and a half feet high? MR. CREEDE-I don’t consider it a violation of Code. MR. BRYANT-Well, it obviously is a violation if it doesn’t meet the regulations. So, the question is, you didn’t talk to anybody about it? MR. CREEDE-No. MR. BRYANT-No, okay. MR. ABBATE-Mr. Garrand, I want to ensure that Counsel has the benefit of a full Board. Are you prepared to sit on this Board and address Area Variance No. 46-2005? That is, have you done sufficient research that you will feel comfortable? MR. GARRAND-I feel comfortable addressing this. MR. ABBATE-And you’ve heard the testimony this evening? MR. GARRAND-Yes, I have. MR. ABBATE-And would you feel comfortable sitting on the chair? MR. GARRAND-I feel comfortable. MR. ABBATE-Would you be kind enough, please, to sit in the chair. MR. GARRAND-Certainly. MR. ABBATE-And this provides, makes it quite clear, Counsel, that we’re providing you a fair and unbiased hearing with a full Board. MR. KENIRY-Thank you. MR. ABBATE-You’re welcome. MR. ABBATE-Chuck, did you have something that you wanted to say? Please, do. MR. MC NULTY-I’ve got one other question that I’d like to put out. Not knowing where we’re going with this, but obviously we previously had approved a 15 foot height variance with the assumption of removing the rail, and leaving the boathouse intact. Nevertheless, in a lot of the material that was supplied, at least prior to that determination, and I think maybe some of it that’s been supplied since, speaks to the only alternative, if this height variance is not approved, is tearing down the entire structure, and I’d like to know a little more about that. It strikes me that a viable alternative is, don’t use the sundeck. You’ve still got a boathouse. If that’s not a viable alternative, I need to know why. MR. KENIRY-I think that I can address it in this manner. The project, obviously, has a considerable amount of history. The applicant undertook a very significant undertaking when we first sought all of the permits and all of the approvals from the various Boards. As a personal aside, I remember walking out of here one evening, and the person who appears before you with some frequency said that was amazing, that all of those prerequisites came together and they had been here with some frequency, so that they saw the project come together. I don’t think that anyone can fairly say that at any time the applicant intended to do anything or apply for anything or for that matter build anything other than that which was depicted, and to some extent, I can speak with some personal knowledge in that regard, because I was involved in the approval process. Had we desired to obtain approvals for something other than what we actually obtained approvals for, we would have sought them. There was some very significant interaction with the Town in order to achieve the final result. In this instance, the entire project, from its inception, was premised upon the applicant’s desire to have a flat surface on the top of the boathouse that their family could utilize, and the practical effect, or the result, if 25 (Queensbury ZBA Meeting 06/21/06) you will, of the elimination of the railing, is that that flat surface will no longer exist. As a result, that guts the essence of the originally intended project. MR. ABBATE-All right. Okay. Have you concluded your argument, Counsel? Presentation? MR. GARRAND-Mr. Chairman, I have a couple of questions for Mr. Creede. MR. ABBATE-By all means. My apologies for not asking. Please do. MR. GARRAND-Mrs. Hoffman, in her submittals here, says that she experienced difficulties with you, and she ultimately terminated you as a contractor on this project? MR. CREEDE-No, that’s not exactly true. We left in haste, but I was never terminated. MR. GARRAND-Okay, because she, in her submission here, it says, ultimately, this resulted in the contractor being terminated. My next question is, looking at the sketches, from what I can see, it doesn’t exactly match the dock as built. It does readily appear that the dock and the boathouse, the boathouse in the sketch certainly appears to be at a different pitch than the drawings here. Was that as a result of the materials that you had to use? MR. CREEDE-I view it as nearly exact in the pitch. You have to superimpose the blown up photograph I have over the drawing, and you’ll see that the deviation, if any exists, is negligible. MR. GARRAND-Okay, because according to this sketch, it appears like the sun deck is considerably wider in the sketch, or that the whole boathouse has been compressed in some way, shape or form. Also, the walking areas around the pillars are also different in the sketch. MR. CREEDE-Well, the drawing depicts the uprights of being more centralized in each dock pier where I’ve moved them to the edge to tie them in with the fenders or dock posts, to stabilize the boathouse, as well as for ease of navigability around, walking around the dock. In other words, the upright was right in the center of the dock, you’d have to walk around each upright. Where if it were placed on the sides of the dock, it’s a lot easier to walk around and enter and exit a boat. MR. GARRAND-Okay. Thank you. MR. ABBATE-Counsel, do you have anything else before I proceed? MR. KENIRY-I do not with respect to this witness. However, I have the other witnesses here for you. MR. ABBATE-You have other witnesses? MR. KENIRY-I do. MR. ABBATE-Okay. Would you ask your witnesses to come to the table and identify themselves. MR. KENIRY-Certainly, Mr. Chairman. MR. ABBATE-And then explain to me who they are. MR. KENIRY-Sure. The first witness, Mr. Chairman, is a woman who prepared a report that I believe you have in your possession and her name is Linda Stancliffe, and she is employed, I believe, or she’ll tell us, by the firm of Erdman, Anthony, and Associates, on Brick Church Road in Troy, New York. MR. ABBATE-Do me a favor, would you please, and present this to the secretary down there. She’ll enter it into the record. Thank you very much, and when you approach the table, please identify yourself, your place of employment. MR. BROWN-Mr. Chairman, did you close the public hearing after, is it still open? MR. ABBATE-I don’t believe I did. No, I did not. 26 (Queensbury ZBA Meeting 06/21/06) MR. BROWN-Okay. MR. ABBATE-Let me double check and make sure, make sure our proceedings are correct. No, I am correct, sir, the public hearing is still open. Thank you for your question. Madame, please. LINDA STANCLIFFE MS. STANCLIFFE-Good evening. My name is Linda Stancliffe. I’m a licensed landscape architect with Erdman, Anthony and Associates. I reside at 317 Lockwell Road in Troy, New York. MR. KENIRY-Mr. Chairman, with your permission, I’m going to meld a series of questions, if it’s okay, together. I’m going to ask Ms. Stancliffe to state for us her educational background, her employment background, and her professional experience, if that’s the pleasure of the Board, in one question and one answer. MR. ABBATE-I’m so delighted that you’re finally learning our procedures. Thank you very much, and you may proceed. MR. KENIRY-Thank you. MS. STANCLIFFE-I am a licensed landscape architect in the State of New York, Maine and Pennsylvania. I’ve been employed in the industry for 14 years. I have a bachelors degree in landscape architecture, 1992, from Syracuse University School of Forestry. MR. KENIRY-Ms. Stancliffe, did there come a point in time where you were contacted by me in connection with this matter? MS. STANCLIFFE-Yes. MR. KENIRY-And do you know when that was? MS. STANCLIFFE-It was about May of this year. MR. KENIRY-And in connection with my contacting you, were you given a specific assignment? MS. STANCLIFFE-Yes. I was asked to prepare a visual analysis of a boat dock in Lake George. MR. KENIRY-Could you describe for the members of the Board what you did and how you did it? MS. STANCLIFFE-I used a professional process by which we analyze elements within the landscape. Typically I use this visual analysis to analyze telecommunications towers. That’s probably the most that this is used, analyzed. We also use it in highway reconstruction of bridge reconstruction. In this case, we used the same ideology throughout all of the visual analysis. It deals with context, intensity and visibility. We assess the item that we are analyzing with respect to its surrounding, with respect to how much it is visible, and that is a factor of topography and vegetation, and the intensity to which it is visible, and that is determined based on the perspective of the viewer, in relation to the object. You have a copy of my report. If you’d like me to explain it further, I can. MR. ABBATE-Ladies and gentlemen of the Board, we all have received copies of the report. It is at your pleasure that she review it, or are you satisfied with your results? What is the Board’s pleasure? I suspect that we’ll accept the documents that were of evidence that were submitted by Counsel, that is relevant. MR. KENIRY-Thank you, Mr. Chairman. I will ask her then, what is it, in fact, that she did, and then I’ll ask her what conclusions and opinions she arrived at in connection with her engagement. MR. ABBATE-Please do. MR. KENIRY-Thank you. 27 (Queensbury ZBA Meeting 06/21/06) MS. STANCLIFFE-In order to provide the visual analysis, I first gathered mapping of the project site, based on an address. I collected tax maps and U.S.G.S. maps. Then I visited the site, driving through the area on Assembly Point and on Cleverdale point, to locate the object in from different view sheds. I took photographs from various locations throughout that area and I brought that information back to my office. In the meantime I created a view shed analysis, which is in the report. That view shed map is what we used to talk about visibility of the project site. The view shed map is based on industry recognized standards for view shed map analysis. MR. ABBATE-Okay. Now, do you wish to introduce this into evidence, is that correct? MR. KENIRY-It’s attached to your report, Mr. Chairman. MR. ABBATE-All right. Great. Thank you very much. MS. STANCLIFFE-This is a copy of that, which is in your report. In this view map, we show the subject parcel at the center of the circle, and then this shaded area is that which has potential views of the potential dock, of the dock. That area is then computed, and it comprises five percent of the total area, approximately 670 acres of the 12,567 acres of the 2.5 mile view shed. We also used this map to talk about the intensity, that is the foreground which is within one quarter mile of the proposed visual intrusion is identified as having the most significant impact. From the foreground to the middle ground, which is one mile, we have less of an impact, and in the background, objects fade into the landscape. Then we also look at the project in relation to its surrounding environment. I’ve provided you with a number of photographs in your report, and they show the similar docks within the landscape. They also show the height relationship of other adjacent structures. There’s a structure to the south of the Hoffman property, and we have drawn lines across this photograph, which was taken from Assembly Point, to show the relationship of the top of different structures on adjacent docks in relationship to the Hoffman dock, and we used two of the most visually intrusive docks from our view and that was a dock to the south, which includes a flagpole, any moving object draws your eye and draws the viewer to that object, and also it’s painted white, reflecting the most amount of light, and then another structure to the north of the Hoffman dock, which is also painted white, a large solid structure, which also attracts the view from Assembly Point, and we showed that relationship to the existing Hoffman dock and labeled that information for your review. We also talked about the reflective quality of materials. Again, aluminums and painted structures reflecting more light than natural wooded structures like the Hoffman dock, and then a perception of a potential viewer, and areas of visual interest in the view when you’re looking at the Hoffman dock. Again, there are movable object on a dock to the south and existing lighting on that dock which extends above the dock sundeck, which draws your eye to that, rather than to the Hoffman dock, which fades into the landscape. Those are all factors that we look at in addressing the context of the Hoffman dock in relation to other docks, and from that information, the view shed map, the analysis, we form opinions based on our professional experience regarding the visual intrusion of this object into the landscaping, and from that conclusion is drawn that there is a minimal visual impact of this dock in relation to other docks in the landscape along the shore of Cleverdale point. MR. KENIRY-To some extent, Mr. Chairman, I can ask a specific question with respect to every opinion that’s enumerated in the witness’s report, but in the interest of your agenda and time, if you wish, I can ask her, do your firm attest to the fact that all of the opinions that are set forth in your report are true, accurate and correct to the best of your ability? MR. ABBATE-Unless there’s an objection from members of the Board, we’re going to assume that that’s correct, that the information submitted, documentary evidence is accurate and relevant. Do we have any objections from any members of the Board? There are none, so we will assume. MR. KENIRY-And then I just have one other question for the witness, and that is whether or not she has an opinion, to a reasonable degree of landscape architectural certainty, as to whether or not the height differential as built, as compared to strict compliance with the Code, is significant? MS. STANCLIFFE-No, I don’t feel that it is significant. MR. KENIRY-And why is that? 28 (Queensbury ZBA Meeting 06/21/06) MS. STANCLIFFE-Well, the structure is, it creates an element that is in relationship to itself, i.e. it has essentially three units, side wings and a central unit. Those side wings come up and then the central unit has a finisher or fenestration to the top of it. That fenestration is the railing, and that fenestration is translucent because it has no solid, it is not a solid fixture on the top of the dock. The roof, if you’re looking at it from the south or the north, the roof is a solid fixture. It visually is a solid piece, and the handrail you can see through, and so visually, take it away or leave it, you can still see through it. MR. KENIRY-I have nothing further, Mr. Chairman, thank you. MR. ABBATE-You’re welcome. Ladies and gentlemen of the Board, do you have any questions for this young lady? Hearing no questions, I’m assuming that she’s concluded her testimony, Counselor? MR. KENIRY-Yes, sir. Thank you. MR. ABBATE-And you have another witness, did you indicate? MR. KENIRY-I do. MR. ABBATE-Please present him. MR. KENIRY-Mr. Leonard Fiore, please. With the permission of the Chair, I’ll meld all of the first series of questions together, and to some extent ask Mr. Fiore to. MR. URRICO-When we agreed to hear a witness earlier, and have Counsel interview each one, I thought we were talking about one. Are we going to parade a bunch of? MR. ABBATE-There’s a difference. The initial witness that was presented by Counsel, Counsel was optimistic that he would be presenting relevant information in terms of how it was constructed, and as a result of that, because it was relevant information, which may or may not influence how this Board will go, I felt it was appropriate at that time to swear that witness under oath. These other witnesses that are coming before us, I really see no reason to swear them under oath, but to answer your question, Counsel has every right to submit to this Board witnesses and evidence that he feels may be relevant, and we have an obligation to allow him to do this. We can certainly accept or reject whatever he feels is relevant or irrelevant, whatever the case might be. MR. URRICO-But does this come before the public hearing? Will the public have a chance to re-address these issues, then? MS. RADNER-The public will have to be given a chance to address these issues. You opened the public hearing, you weren’t aware that there were more witnesses to be presented. MR. ABBATE-Yes. Sure. Yes, the public hearing is still open, to answer your question. We haven’t closed it, and the public will certainly have an opportunity, Mr. Urrico, to ask whatever questions that they wish. Okay? All right. Proceed. MR. KENIRY-Mr. Fiore, would you please state your name, your address, if you would, your professional experience, your educational background, and any relevant licensure, in this instance. LEONARD FIORE MR. FIORE-My name is Leonard Fiore. My address is 1522 Main Street in Pattersonville, New York. I am a general certified appraiser. I am a licensed real estate broker. I am a New York State certified instructor. I write continuing education classes for both the real estate and the appraisal community, and I teach those classes in Albany. I have been an appraiser since 1985, before licensing came into effect, and have been appraising on a full time basis since then. MR. KENIRY-Mr. Fiore, do you have some particular experience or familiarity with the Queensbury, New York area? MR. FIORE-Yes. Our company does many residential appraisals in Warren County, several hundred, to be exact, and we do quite a few high end properties in the Town of Queensbury, in Lake George, as well as off water properties town homes, that type of thing. 29 (Queensbury ZBA Meeting 06/21/06) MR. KENIRY-Other than the assignment that you have in connection with this application, when was the most recent work that you performed of an appraisal nature in the Town of Queensbury, other than his assignment? MR. FIORE-The earlier part of this month a sale of a high end home in the Town. MR. KENIRY-Did there come a point in time when I contacted you concerning the application that’s presently before this Board? MR. FIORE-Yes, it was some time in April of this year. MR. KENIRY-And did I give you an assignment? MR. FIORE-Yes, you did. MR. KENIRY-And what was that assignment? MR. FIORE-The specific assignment was to determine what impact a difference in height between the Building Code of the Town of Queensbury and the constructed height of the dock at 159 Cleverdale Road. MR. KENIRY-And did you consider, in connection with that assignment, the impact, if any, on value with respect to the subject property, as well as generally the surrounding properties? MR. FIORE-Yes, I did. MR. KENIRY-All right. Could you describe for the Board what you did and how you did it? MR. FIORE-It was quite an extensive project, from the standpoint, first of all, learning the history, and apparently this project has been before this Board since 2001, 2002. So reading all of the documentation, getting all of the notes, visiting the property, visiting the site, looking at the issue, walking the dock, looking at the surrounding properties, pulling tax maps, not only of the subject property, but of the surrounding homes, and then researching sales, especially those that were specific to this type of property to try and determine or get a handle on what impact value, because of an item that may be an amenity, such as this, or perhaps the absence of that amenity, and what impact it has on the market. MR. KENIRY-In connection with your assignment, can you describe for the Board what exactly you did, and then did you at some point come to certain conclusions or formulate some particular opinions? MR. FIORE-I made a careful study of the boathouse, and compared it and looked at the surrounding boathouses in the immediate area. One of the observations that I made of the 18 parcels that adjoin this particular property that the Hoffman parcel has one of the few parcels in the immediate area that has the largest front footage on Lake George. The second observation that I made about the parcel, and I believe one of the photographs of the dock illustrates that, her parcel is unusual from the standpoint of elevation. It happens to be one of the higher elevated parcels in the immediate area. It slopes gently to the left and to the right. When I view this, and I’ve looked at the natural landscape around this dock, and I viewed the dock itself. It had been made of natural substance, manmade materials, and it had, one of the observations that I noticed was what I call the principal of conformant. That in order to determine whether something creates value or there is a loss of value, how does it conform to the surrounding properties, and the dock itself conforms very well to the environment, and as a result it was one of the conclusions that I came to that because of the beach frontage, or the front foot, that this dock was in proportion to the site, and it’s probably one of the few sites where you can build this type of structure. MR. KENIRY-Did you make any other findings, and did you make any findings in connection with the surrounding properties or the improvements on surrounding properties? MR. FIORE-The surrounding properties, many of them date back to the 40’s, 50’s, 60’s, 70’s, a period of architecture that we were building geometric shapes, if you will. We were building rectangles. We were building squares. Some of them look like they were 30 (Queensbury ZBA Meeting 06/21/06) additions. Some of them having living quarters above them. Some of them looking, standing out against the landscape simply because of the type of structure that it was and of the materials that were typical and common 50, 60, 70 years ago, aluminum siding, vinyl siding. The use of railings in the 50’s and 60’s was also very geometric. So, by comparison to the Hoffman dock, which, quite frankly, has all the ear markings of a boathouse that is from a William West Durant Great Adirondack Camp, and it’s something that is not seen quite frequently, but something that conforms very well to the landscape, something that does not take away from the existing parcel or the surrounding homes. MR. KENIRY-In connection with the assignment, did you come to a point where you formulated certain conclusions or opinions with respect to the consideration of value or benefit or detriment with respect to the subject improvement? MR. FIORE-Yes. The conclusion I came to is there would be a diminishment of value if Mrs. Hoffman was asked to remove the deck, the railing. Removing the railing would render the deck obsolete, and quite honestly, that is living space for most people who have summer homes, and you don’t necessarily have to have a home on the water to have a deck, but certainly most of us do live on decks during that period of time. The deck itself, if the railing were removed and the deck was rendered obsolete, then 50% of this structure would be rendered useless. Then the only value to it is the boathouse without any living space. MR. KENIRY-What is the significance, if any, with respect to value as it pertains to the living space that you’ve described? MR. FIORE-That deck adds significant value to the project. MR. KENIRY-When you consider the value that you described, can you describe for the Board, what, if any, detriment arises to surrounding properties as a result of the benefit that this property has obtained as a result of this improvement? MR. FIORE-There I was hard pressed, to be very honest, to find any detriment to any of the surrounding properties. I found quite the opposite. I found that this structure, which sits almost center of these 18 parcels, and serves as a focal point for that shoreline, does not detract from any of the surrounding homes and if anything sets an example to future owners of using materials that are natural, materials that allow the structure to conform to the surrounding area and the environment is in good keeping. MR. KENIRY-Mr. Chairman, I do not believe that I have anything more for this witness at this time. MR. ABBATE-I have a question for your witness. Did I hear you correctly when you said that you researched out the Building Codes for the Town of Queensbury? MR. FIORE-I don’t believe, did I say that? MR. ABBATE-What did you say? MR. FIORE-I researched the tax maps. MR. ABBATE-Researched the tax maps, okay, not the Building Codes. MR. FIORE-I did read the Building Code. MR. ABBATE-You did research the Building Code? MR. FIORE-Yes, I did. MR. ABBATE-Did you find this task to be insurmountable, researching out the Building Codes of the Town of Queensbury? MR. FIORE-No. In fact, I’d like to compliment the Town of Queensbury because your website is wonderful. It’s user friendly, and I was able to extract a lot of information. MR. ABBATE-So are you suggesting, sir, that using a little initiative, anyone, basically, could research out the Building Codes of the Town of Queensbury? Is that what you were suggesting? 31 (Queensbury ZBA Meeting 06/21/06) MR. FIORE-If you are computer literate. MR. ABBATE-Thank you very much, sir. Thank you, Counselor. MR. BRYANT-I have a question. MR. ABBATE-Yes, please. MR. BRYANT-You made a statement about removing the railing and rendering 50% of the building useless. So, I want to understand that statement. Are you saying that a boathouse without a deck is totally worthless? MR. FIORE-I’m saying that if they didn’t want a deck, they probably would have designed a boathouse that was a lot different than what we see today, that the original intent was dual, as are many boathouses today. Some of the sales that go down within the Town of Queensbury that pre-exist, that are nonconforming, it is not uncommon that one of the reasons for the increase in value is because of that living space that that either deck or the finished space allows the homeowner to enjoy. MR. BRYANT-What did you determine the actual, I mean, you said it would substantially reduce the value, what is that dollar figure? MR. FIORE-The dollar figure is going to range. It’s going to range depending upon the buyer. It’s going to range depending upon the view amenity, and this certainly has, and that sometimes the most difficult thing to quantify is the view amenity in the sale of a home, but the view amenity from this dock, it’s superior, and not having that dock or living space would also deny them that view amenity from the top of that area. MR. BRYANT-You mentioned that in your conclusion. However, you also failed to mention that the neighbors, who have that benefit, their docks are conforming heights. So, you know, I understand what you’re saying. MR. FIORE-I didn’t want to address that because I am not sure, I’m not an expert in heights of some of the docks that I view, and there was personal property on some of these docks that make it appear higher than they should be. MR. BRYANT-I just found that interesting that it was omitted. Thank you. MR. ABBATE-At this time, I probably owe the public an explanation. This particular appeal so far has been running a little over two hours, and we are very tolerant, and let me explain to the public why. Every appeal that comes before us may result in what we refer to as a judicial review, and as such, quite frankly, as Chairman, I would prefer to err on the side of fairness and allow every opportunity for Counsel to present his case so that in the event of a judicial review, we will not be found in error. Thank you very much. Does anyone else have anything they wish to say at this time. Counselor, please? MR. KENIRY-I have nothing further at this time, Mr. Chairman. I’m prepared to proceed pursuant to your direction. MR. ABBATE-Okay. Fine. Now at this point, do we have any individuals in the public who have any questions for any of the last two witnesses that were presented by Counsel? Yes, sir. Would you be kind enough, please, to come to the table, speak into the microphone, state your name and place of residence, please, and I would prefer that you ask your questions to the Board so that there’s no confrontation, please. JOHN SALVADOR MR. SALVADOR-Thank you. My name is John Salvador, again. I have one question for the Zoning Administrator, and that is, roughly how many of these sort of variances, that is height variances, dealing with boathouses, has the Town been entertaining in recent years? MS. RADNER-Do you want us to answer that question, Mr. Chairman? MR. ABBATE-What is the relevancy of the question? MR. SALVADOR-Well, to frame the subject, I mean, is this a once in a lifetime issue, or is it happening every day? That’s my interest. Is it a repetitive problem in the Town? 32 (Queensbury ZBA Meeting 06/21/06) MR. ABBATE-Is it a repetitive problem in the Town? I think that’s a fair question. MR. BROWN-Well, I think anyone, probably, on this Board could answer the question as well. It doesn’t have to come from me. You guys see all the variances. You’re charged with reviewing them. Maybe one or two a year. I don’t think it’s a high frequency issue. MR. ABBATE-Okay. Thank you very much. MR. SALVADOR-Thank you. MR. ABBATE-Thank you, sir. MR. SALVADOR-I have a question for the landscape architect. Do you think our height limitation on boathouses, that is 14 feet above mean high water level is reasonable? MS. RADNER-Again, the question should be presented to the Board. Then the Board will ask the question. MR. ABBATE-Yes, that’s what I asked you to do initially. MR. SALVADOR-Okay. My question to the landscape architect is, our Code limits the height of a boathouse to 14 feet above the mean high water mark. Is that considered in the arena of architectural design a reasonable number? MR. MC NULTY-Mr. Chairman, I’m not sure that that’s germane to this issue. MR. SALVADOR-Okay. MR. MC NULTY-It might be germane to the PORC Committee, but we’re confined by what the height limit exists, and we don’t get to change it. MR. ABBATE-I would probably agree, but I’m going to defer to Counsel and ask for her opinion, please. MS. RADNER-I would have to agree with Mr. McNulty that this Board doesn’t have the power to change what the Town Board has adopted as its Code. MR. ABBATE-This is true, that’s a fact. MR. SALVADOR-I’m not asking you to change it. I’m asking for the reasonableness of the Code, that’s all, someone’s opinion, a professional person’s opinion as to the reasonableness of our Code. MR. ABBATE-And I think a professional person has already addressed that issue. MR. SALVADOR-Okay. Thank you. MR. ABBATE-You’re welcome, and I see a gentlemen in the back of the room, please. Yes, you have a question. Do you have a question for the witnesses? If you have no questions, you’re not going to be acknowledged. MR. CREEDE-I wanted to follow up on some. MR. ABBATE-I understand. MR. CREEDE-Mr. Salvador brought up an interesting point. MS. RADNER-State who you are for the record. MR. CREEDE-John Creede. Why is it that Queensbury has the only height restrict, 14 feet, when all the other municipalities on the entire Lake George go to 16 feet or beyond? MR. ABBATE-That’s a good question. I would suggest that you reduce that to writing and submit it in writing to the Executive Director of Community Development in the Town of Queensbury. It’s not an issue for this Board. MR. CREEDE-Okay. 33 (Queensbury ZBA Meeting 06/21/06) MR. ABBATE-Thank you very much. Do we have anyone else in the audience who would like to have any questions? Yes, ma’am. Come up to the table. MS. RADNER-She wants to make a statement. She can. MR. ABBATE-A statement. I didn’t hear that. Yes. Please. I’m sorry, please identify yourself. MS. STEWART-Yes. Maggie Stewart, Assembly Point, and this will be short, but it seems to me when you allow one person to exceed the height limit on a house or boathouse or whatever, then that becomes the new height limit, and I think that’s pretty hard to deal with. MR. ABBATE-Okay. Your comments are noted for the record. Thank you. TED HANS, III MR. HANS-A very brief statement. MR. ABBATE-What is the subject of your brief statement? I want to determine the relevancy of it. MR. HANS-As I understand this Board for an individual property. MR. ABBATE-Okay. Come up to the table. Identify yourself and speak into the microphone, please. MR. HANS-Ted Hans, III, Gunn Lane, Cleverdale. As I understand it, this Board reviews a variance for the individual property, so if the variance is granted for this, for Mrs. Hoffman’s dock, that in no way sets a precedent for any other property anywhere else in the Town of Queensbury. A variance is granted, pursuant to the individual property, and any other variance requested, anyone else that wants to build their dock above, will have to go through a hearing like this. I mean, I’m sure there’s a ton of other permit applications and things like that, but (lost word) generous, this Board looks at every variance application individually. Isn’t that correct? MR. ABBATE-That is correct. MR. BRYANT-Mr. Chairman, in response to your question, sir, you’re absolutely correct that every single property is treated differently, and that there’s no such thing as precedent, but the reality is that there are attorneys that’ll sit at the table and say, you have to view every single property, and they’ll come back the next week and they’ll say, but the property next door has a height of 16 feet, and so therein lies the difficulty. MR. ABBATE-No, I’m sorry. There will be no more. I’m closing this portion. There will be no more. We’ve gone on long enough. I think we’ve heard everything that’s been relevant so far. I’m going to continue on, unless, Counselor, you have anything you want to say. MR. KENIRY-One item that’s germane. If you recall at the last meeting, we talked about precedent, and actually we had a section from I think the practice commentaries that dealt with that, in terms of the tremendous deference to your discretion, and I think to some extent, as Mr. Bryant correctly states, every single piece of property is different. That’s all. Thank you. MR. ABBATE-All right. Thank you very much. Before I ask members to offer their comments, and that’s exactly what I’m going to do at this portion of the hearing, I would like to inform the public that the comments that are going to be offered by members are directed to the Chairman only, and comments expressed by Board members to the Chairman are not open to debate. Having said that, I’m going to ask members now to please offer comments on Area Variance No. 46-2005, but before I do, I want to make it clear and respectfully remind the members that precedence mandates 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, and any position you may take must be based on the regulatory review criteria of our laws and not simply on subjective preferences or not liking a project, and due process guarantees that government ensures a fair and open process, and Board members make decisions on reliable evidence contained in the record of Board deliberations. Now, having said that, I would like to ask. 34 (Queensbury ZBA Meeting 06/21/06) MS. RADNER-Mr. Chairman, before you go on, may I remind you, too, that your determination, because you’re doing a re-hearing tonight, any determination you make, and you’re not required to make it tonight, you can reverse, modify, or annul the original decision. It has to be a unanimous vote of all members present, and the Board has to find that the rights of any persons who relied in good faith upon your previous order will not be prejudiced. You also have to apply the usual criteria for an Area Variance, and I want to remind you that the Area Variance that’s under discussion is Area Variance No. 46-2005, which called for the 700 square foot deck. MR. ABBATE-Thank you, Counselor. I appreciate that. MR. KENIRY-Mr. Chairman, may I just confer with your Counsel for one minute? MR. ABBATE-You certainly may. Then what I am going to do is this. I’m going to recess for five minutes. That will give everybody an opportunity to do whatever they have to do. This Board is recessed for five minutes. Okay, ladies and gentlemen, this Board is back in session again, and I ended with respectfully reminding the Board members of our procedures, and I was in the process of asking individuals for their comments. I’d like to start, if I may, perhaps, with a volunteer, rather than arbitrarily selecting one. Do we have a volunteer who would like to start first? If not, okay, Mr. Garrand, since you are a junior, you just volunteered. MR. GARRAND-Thank you, Mr. Chairman. MR. ABBATE-You’re welcome. MR. GARRAND-Basically I have no other case to reference this on. I have to, the only thing I can do is refer to the balancing test. When I look at this, whether benefit can be achieved by any other means feasible to the applicant. I don’t see, basically, how any other means can be achieved to the applicant. The next thing I have to look at is will approving this cause an undesirable change in the neighborhood, and I don’t believe so. I think it actually enhances the neighborhood. Next I go down to whether the request is substantial, and, yes, I do believe the request is substantial. I do not believe it will have any physical or adverse environmental effects on the neighborhood. I look at whether the difficulty is self-created. I don’t believe it’s self-created. I look at a drawing of what was submitted to the Town of Queensbury, and I looked at that deck, and I’ve looked at that deck over nine separate occasions, including yesterday. It doesn’t appear as though the builder built it as per that drawing that was submitted to the Town. I don’t believe that Mrs. Hoffman asked this builder to modify this deck to be a nonconforming structure. So I’d be in favor. MR. ABBATE-Okay. Thank you very much. Mr. McNulty, please. MR. MC NULTY-Well, several thoughts that are going through my head, and frankly I’m not exactly sure how I’m going to come down on this, but several notes that I made. One, we’ve heard testimony about how it probably was not possible to build this deck to Code, and my response to that is, okay, then it probably should not have been. Building material difficulty is not a license to proceed and violate the Code. I think the same thing applies to who made the mistake. I don’t think it’s fair to blame the builder, at least not entirely. I think it’s the responsibility originally, ultimately of the applicant to build or see that something is build to what was agreed upon, and because the builder made a mistake, I don’t think, again, that’s an excuse for violating the Code, and likewise, even though we heard testimony about the extra value that would be gained by the applicant because of the way the building was, or the structure was built, and I’m not suggesting that it was done deliberately, but again, added value is not necessarily a reason or a license to violate Code. Looking at the criteria that we’re asked to look at, I guess I have to agree that there probably won’t be an undesirable change produced in the character of the neighborhood as long as we remember when the next application comes in that that’s a separate application and we evaluate it based on its merits. However, whether the benefit sought by the applicant can be achieved by some other method, I guess it depends on what you look at as the benefit sought. The entire structure benefit, no, can’t be achieved any other way. The benefit of having an Adirondack style boathouse, yes, that can be achieved, it’s just that the sundeck wouldn’t be available. Whether the requested Area Variance is substantial. Yes, I’ll agree that it is substantial. Impact on the neighborhood, probably not great. Difficulty self-created. There I have to argue that maybe it is, because there was a failure in not adhering to the Code, and again, I think that’s a responsibility of the applicant and the owner. It doesn’t matter how difficult it is 35 (Queensbury ZBA Meeting 06/21/06) for somebody to accomplish that, it’s still the responsibility. I don’t know where I’m going to come down. MR. ABBATE-Fine. Thank you, Mr. McNulty. Mr. Bryant, please. MR. BRYANT-Thank you, Mr. Chairman. I’m not going to go through the five criteria. I’m just going to touch on two of them. One of them was the self-created issue, and I think that’s where I fell down early on in this project, and primarily it was Mrs. Hoffman’s statement that it was contractor error and therefore she wasn’t totally responsible, and my view, at that time, was that it’s really a civil matter, and not for this Board to decide, in that regard, that it will still ultimately the owner’s responsibility, and therefore it was self- created. After hearing the contractor, and now understanding the terms of the relationship there, I don’t understand, you know, even with Mr. Underwood’s explanation and the contractor’s explanation, how in the world the construction has any bearing on the overall height and how they couldn’t figure that out from the get go and how an engineer would lay out a building and cut and size the material and make a self- determination that he could not meet Code, he couldn’t build it as it was approved by an engineer, certified engineer, and then to top it off, of course, it’s a time and material situation. There’s no real civil recourse there. So I really have empathy for Mrs. Hoffman, and when we get back to the self-created issue, I’d have to say that Mrs. Hoffman is probably not responsible for this error, and that it was contractor’s error, as originally stated. The second issue is relative to the environmental impact, and I’ve got to compliment you on your landscape artist’s presentation. It was indeed all the photographs and the detail, it really changed my mind on the project. So, in this particular circumstance, I’m going to be in favor of the application. MR. ABBATE-All right. Thank you very much. Mr. Underwood, please. MR. UNDERWOOD-I think what we have to remain focused on is what we’re talking about tonight, and that’s the three and a half feet of relief that is being requested for the height of this building, and as has been mentioned, that’s particularly just the sundeck up on top and the railings as they protrude up. I think that a reasonable explanation has been given by Mr. Creede as we had requested, as to the, how the whole process came into being here tonight, and I think that one of the things that we need to remember when we do the test here is was there any intent on his part to build an over height building, and I don’t think, in any way, shape or form you could say, and anyone would back up that comment, that anyone had tried to build something bigger than what they had. The materials at hand, the materials that were provided to him work with are very variable, as he suggested, and that’s part, I would say part and parcel to the end result of what we ended up with on this building here. The jury of peers of the neighbors, I don’t see people with protestor signs up on Lake George saying tear this thing down. No one seems to feel that way, and as was mentioned before, our Board is, when people come before us is to ask for relief. They’re not asking for anything more than a reasonable decision on our part, and I think in this instance here we can be reasonable, too. This is an asset to the community. One hundred years from now, people are going to say, wow, that guy really knew what he was doing when he built that place. It looks great. It’s still standing, and, you know, if this was the turn of the century, and as mentioned, if he were William West Durant and you were designing a building, there was a lot of leeway involved because of the materials that were used. Nothing happens. It’s not an easy process, and the end result is what we should focus on. There’s no detriment to the community. It does violate the Code by a little bit, but as mentioned, too, the shoreline, the vegetation on the shoreline, mitigates the process because we have that green vegetation behind it. It’s not a clear cut lot like most of the, I want everybody to see what I built, people up on Lake George. So in this instance I think that we can go with the applicant’s request here. I think it is reasonable, and I don’t think there’s going to be any detriment or hurt to the community. It’s an asset. MR. ABBATE-Thank you. Mrs. Hunt, please. MRS. HUNT-Thank you. Well, I’m going to look at it from a different perspective. If they had come to us and asked for three and a half feet of relief, in the first place, I would have said no, and I find the elevation, Page Two, where it distinctly says 14 feet from the mean high water mark, to be rather damning. So I really don’t know. I kind of agree with Mr. McNulty. I’m really not sure how I’m going to vote at this point. MR. ABBATE-Okay. Thank you. Mr. Urrico, please. MR. URRICO-The scariest thing for me is to realize that this is almost six years ago, and I was on the Board for each of these hearings. So that means I’ve been here six years. 36 (Queensbury ZBA Meeting 06/21/06) Going back, I think it’s important to remember how we got to this point. The original request granted 400 square feet of relief on the dock. So we did understand the enormity of the project at the time. It was not something that was lost on us. What we didn’t have at the time was the opportunity that we have now is to look back at it and see what the project would actually look like. We had sketches. We had an idea, but we didn’t know what would be brought about. When you came to us with the height variance, three years later, there was a problem. We offered you a solution, and that solution wasn’t accepted. So now we’re here, six years later, almost six years later, with a problem. We basically have a project we either accept on the way it is, or not, because of the three and a half feet. So we didn’t get to this point because the Board is trying to make a point of something. We got to this point because the original plans that were submitted to us, with the original specifications, isn’t what the project is today. As Mrs. Hunt said, many times in projects like this, we look at it and try to think, what would we do if this was being presented to us right now? Frankly if we were presented with something like this, which looks wonderful, everybody agrees, the railings are going to be three and a half feet too high, but we gave them one foot of relief. So we’re really giving, it’s two and a half feet beyond what we approved. Would we accept that? It’s kind of hard to say no to that, but we did get to this point for very specific reasons that weren’t due to this Board’s decision making but basically due to the way things unfolded. We have five criteria to balance this with. The benefit, as it is now, can it be achieved by other means feasible to the applicant? Well, the only feasible means would be to lower the deck or to cut it down, and obviously that’s not a feasible alternative. The undesirable change in the neighborhood, and I want to address somebody that brought up precedent earlier. If this dock is allowed to stand, and the neighbor next door decides to build a dock that’s three and a half feet high, or the neighbor next to him decides to get a variance as well, it doesn’t create precedent, but it changes the character of the neighborhood, and in doing so, it does make a change, perhaps, in the way we view things, because one of the criteria is whether it’s an undesirable change. Well, if enough change is created, then it’s no longer undesirable. Now it becomes the rule rather than the exception. The request is not substantial in my estimation, and I don’t see any adverse physical or environmental effects, but I do think this is self-created, but the Number One rule of the balancing test is balance the benefit to the applicant against the detriment to the health, safety and welfare of the community, and to me that’s the telling statement, and I think the benefit to the applicant outweighs any detriment to the health, safety, and welfare of the community, and I would be in favor of it. MR. ABBATE-You would be in favor of it. Okay. Thank you, ladies and gentlemen. My position is going to be approached from a slightly different angle. My position is based on the fact that the ZBA may act only after the basis for action has been established by evidence obtained at a public hearing, and actions of this Board are subject to review by the courts, as we all know, to determine whether this Board acted within the limits of its jurisdiction, and whether the standards imposed by Statute, Ordinance were respected, whether the procedural rights of litigants were observed, and whether this Board was chargeable with any abuse of its discretion. Further, since judicial review or the conduct of this Board is not a trial de nova of the matter which was decided by this Board but a review primarily on the record made before this Board, the task of the court will vary in its complexity with the completeness of the record made. A decision is not ready for intelligent judicial review where the reasons for the decision have not been set forth by the Board, and findings are adequate where they are sufficient to show the grounds for the decision and provide a basis for judicial review. This Board must make a decision on a rationale basis with specific reasonable grounds supported by evidence, and findings which are merely conclusiory in form are insufficient, and my decision, my position is based on discretionary authority granted through the judiciary in quasi-judiciary boards, and I listened very carefully to the witness’ testimony, which I believe were relevant, and read with care the two pieces of documentary evidence submitted by the appellant, which I also believe was relevant, and finally it should be noted that the number of persons who are for or against the granting of this variance is neither a relevant nor a proper consideration in determining the merits of any appeal. The courts have stated, and I quote, a denial on the grounds that neighbors disapprove of a use or where public opposition is strong will not be sustained. The judgment I have taken is based on a review of our laws and not simply on subjective preferences or not liking a project, and when I take all this into consideration, as well as the task of balancing the benefit of the variance against the impact on the area, as well as the fact that State statutes spell out five statutory criteria that must be carefully considered in deciding whether to grant an Area Variance, and based on the standard of fairness, I support the applicant’s request for a variance. However, with a condition, a viable alternative, and that condition and viable alternative is the removal of the railings. Now, having stated that, the public hearing for Area Variance No. 46-2005 is closed. 37 (Queensbury ZBA Meeting 06/21/06) PUBLIC HEARING CLOSED MR. ABBATE-I respectfully remind the members, at this point, that we have the task of balancing the benefit of the variance against the impact on the area as well as the fact that State statutes spell out five statutory criteria that must be carefully considered in deciding whether to grant an Area Variance, and if you have and wish to introduce a motion, introduce it, please, with clarity, and in the event a member does not understand the motion as stated, please advise me and I will request that the motion be repeated a second time. The motion itself will not be subjected to debate, and any member not favoring the motion may exercise their right to vote no, or introduce a motion to deny. At this point, I wish to caution the members of this Board that the approval requires a unanimous vote. Having said that, is there a motion for Area Variance No. 46-2005? MR. BROWN-Mr. Chairman, if I could ask a quick question. MR. ABBATE-By all means. MR. BROWN-So I’m clear, it’s going to fall upon my office to do the enforcement of whatever decision is rendered here tonight. If I understand your condition that you would support the application with the removal of the railings, are you saying with the offered removal of the railings, the front portion as shown in this photo to bring the deck, the sundeck portion back to the 700 square feet, the removal of the front portion you’d support, or are you talking about the entire railing? MR. ABBATE-That was my recommendation, not the Board’s. It was my position that all the railings be removed, and why do I say that? I say that because then it would come into basically compliance, and to me that is a feasible alternative. MR. BROWN-Again, I just wanted to be clear. MR. ABBATE-Sure. MR. BROWN-It wasn’t discussed at great length tonight. The offer that’s on the table from the applicant, and don’t take this for an argument on either side, only because it wasn’t discussed, like I said, in any detail tonight, is a portion of the application offered a removal of a section of the railing of the sundeck to bring the enclosed deck portion down to the previously approved by the Planning Board 700 square feet area, and my understanding is, and Mr. Keniry can correct me if I’m wrong, here, the goal there is to lessen the height impact from the lake by removing that rail to whatever that distance is back to get it down to 700 square feet. So I just wanted to be clear that in addition of the offer of removing a portion of the rail, I just wanted to understand what your removal of the rails condition was. MR. ABBATE-And my instance, of course, is not binding, it was only my personal opinion. MR. BROWN-I understand. MR. ABBATE-And I would be willing to yield to any members of the Board if they wish to modify it a little bit, but my initial intent was this. All the railings be removed and I would be in favor of it. MR. BROWN-I understand. MR. ABBATE-Okay. MR. KENIRY-Mr. Chairman, if I’m out of order, tell me, but I think what Mr. Brown stated is correct, and I just want to make sure that that is clear, as far as the applicant’s request, if you will, of you. Certainly we are asking that it remain as built, and as I answered, I think Mr. McNulty’s question with respect to the measurements, we would accept the measurements that the Town has established to date, so that there doesn’t become some gotcha or big question about, well, what exactly is the height. So we would accept those measurements as it is built. That is the applicant’s preferred relief, and that is what we respectfully ask for. MR. ABBATE-A feasible alternative. 38 (Queensbury ZBA Meeting 06/21/06) MR. KENIRY-As it has been correctly stated, we have tried to provide some measure to ameliorate what we perceive to have been the harm that offended the Board, and that’s how that arose. MR. ABBATE-Let’s get it cleared up, gentlemen, ladies. MR. BRYANT-I just want to understand this. Are you saying that that’s your feasible alternative, that you would just move the railing back away from the lake so it’s not quite so visible? You’d still need the same height variance. It wouldn’t change that. MR. KENIRY-That is 100% percent correct, Mr. Bryant, and, Mr. Bryant, you should know that that proposal was the product of discussions that we had with representatives of the Town. It wasn’t as if that was our idea or that we just came up with that out of thin air. MR. ABBATE-And let me make it quite clear, Counsel, I think you haven’t really been before us that often. At that point in the meeting, that is only a temporary position. It was by no means a vote. Because, quite frankly, there are instances in which other Board members hear what other folks have to say, they change their point of view. So that was merely a position, if you will, not in stone. My position. MR. KENIRY-I respect that, and I understand that. MR. ABBATE-Okay. MR. BRYANT-Could I ask you a question, Mr. Chairman? MR. ABBATE-You can ask me anything you wish. MR. BRYANT-Relative to your statement, you said you wouldn’t accept it as it was. With this alternative solution, is that favorable to you? MR. ABBATE-Yes. I would agree to a reasonable, feasible alternative. MR. BRYANT-Reducing the size of the deck to 700 feet? MR. ABBATE-Yes. MR. BRYANT-Okay. So you would then be in favor of it, if they reduced the size of, I just want it clear in my mind what you’re saying. MR. ABBATE-Yes. I am looking for, in other words, both parties, I think the Supreme Court made it quite clear. When he asked that it be brought back to us, he is suggesting, I would think, and correct me if I’m wrong, that the both parties try to work out something that is feasible, that is fair, that is not biased. Would you agree with me, Counselor? MR. KENIRY-I do. MR. ABBATE-Okay. There you go, and before we start, Chuck, I’d like to give you another opportunity, because you weren’t sure, and I’d like you to perhaps make a comment, if you will. MR. MC NULTY-Well, I’m still not sure what I’m going to do. MR. ABBATE-Okay. All right. MR. MC NULTY-It strikes me that the removal of the sundeck is a feasible alternative. It’s not the alternative the applicant wants, but I’m not sure that I’m convinced that the sundeck has to be there. MR. ABBATE-Well, let me say this, Ladies and Gentlemen of the Zoning Board of Appeals of the Town of Queensbury, we do not have to make a decision this evening. We have up to 62 days to make a decision. If the Board is not quite comfortable, I am willing to yield to whatever position they wish to take. We can postpone our decision, and we can take the timeframe that’s authorized by law, and then make our decision. MR. URRICO-Can we try a motion? 39 (Queensbury ZBA Meeting 06/21/06) MR. ABBATE-All right. Yes, let’s try a motion. I’d be happy to do that. I’m looking for a motion. Is there a motion for Area Variance No. 46-2005? A MOTION WAS MADE TO APPROVE AREA VARIANCE NO. 46-2005 JEAN M. HOFFMAN, Introduced by James Underwood who moved for its adoption, seconded by Allan Bryant: 159 Cleverdale Road, Sunnyfields Lane. The applicant has constructed a 1,170 square foot boathouse with a 978 square foot sundeck at 17.5 feet high. In reviewing this this evening, our Board in general seems to feel that while they could remove the sundeck completely, that the applicant seems to be satisfied if the edge of the boathouse is moved back from the 978 square foot into the conforming 700 square foot, which was approved by the Planning Board. It does seem to be felt in general that removing the deck entirely would negate their use of that deck up there, which would be a detriment to them, as property owners. I think a reasonable explanation was made this evening, also, as to why this height was exceeded, and that was, again, based upon the materials as used and the best judgments of the builder in building the project to completion. While the request does seem substantial at three and a half feet of relief, we have to keep in mind that it’s a railing up there. It’s not a solid structure that would be visually intrusive. The studies provided by the applicant seem to point us in the direction that this was not going to have a detrimental effect on the neighborhood. No neighborhood criticism was given, other than I think one person criticized the project, but the direct neighbors did not seem to be effected, and in general, the adverse effects on the physical or environment do not appear to be a consideration for us. Whether the alleged difficulty is self-created, it was felt, in general, that it was due to the materials at hand. It’s not a conventional structure. It was built to the best ability, using those construction materials, and it seems to be a reasonable structure. If you go out and walk underneath it, it’s not over height, in a sense of walking through the alleyways alongside the dock space inside. In general, then, I would move for its approval. That the boathouse would remain as is, with the exception that the boathouse as depicted up there now for us on the screen would be shrunk back to the 700 square feet as originally proposed and approved by the Planning Board. It would still be three and a half feet over height. The boathouse itself is in conformity. It’s the railing above that we’re speaking of specifically. st Duly adopted this 21 day of June, 2006, by the following vote: MR. BROWN-I just wanted to be clear that it’s the railing. You said boathouse. MR. UNDERWOOD-The railing. MR. BROWN-Just the railing. MR. ABBATE-Yes, make it clear for the record, the railing. AYES: Mr. Urrico, Mr. Garrand, Mr. Bryant, Mr. Underwood NOES: Mr. McNulty, Mr. Abbate ABSTAINED: Mrs. Hunt MR. ABBATE-The vote to approve Area Variance No. 46-2005 is four yes, two no, and one abstention. In view of this, Area Variance No. 46-2005 is disapproved. AREA VARIANCE NO. 34-2006 SEQRA TYPE: II BRUCE LANT OWNER(S): BRUCE LANT ZONING: SFR-1A LOCATION: 14 FOX FARM ROAD APPLICANT PROPOSES CONSTRUCTION OF A 248 SQ. FT. RESIDENTIAL ADDITION. RELIEF REQUESTED FROM SIDE SETBACK REQUIREMENTS OF THE SFR ZONE. CROSS REF: BP 2006-209 WARREN COUNTY PLANNING: N/A LOT SIZE: 0.46 ACRES TAX MAP NO. 295.19-3-68 SECTION: 179-4-030 BRUCE LANT, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 34-2006, Bruce Lant, Meeting Date: June 21, 2006 “Project Location: 14 Fox Farm Road Description of Proposed Project: The applicant proposes a 248 sq. ft. (footprint) residential addition to the eastside of the existing 1,925 sq. ft. single-family dwelling. Addition is 2-story and approximately 400 sq. ft. total. 40 (Queensbury ZBA Meeting 06/21/06) Relief Required: The applicant requests 8-feet of side setback relief (eastside), where 20-feet is the minimum, per § 179-4-030, for the SFR-1A zone. Parcel History (construction/site plan/variance, etc.): 2006-252: Issued 5/26/06, for a 540 sq. ft. residential addition and 495 sq. ft. 2-car attached garage. 2006-209: Pending AV approval, for a 400 sq. ft. addition (modify permit). 1995-690: Issued 12/15/96, for a single-family dwelling with 2-car attached garage. Staff comments: This proposal is for a residential addition including bedroom on the first floor and living space on the ground level. The addition is proposed on the eastside of the existing single-family dwelling. A building permit has been issued for the addition on the Westside of the house. It appears that feasible alternatives to siting the addition are limited, possible siting at the back of the house could be discussed. The request for 8-feet of relief from the 20-foot setback requirement could be considered substantial. Consideration could be given to reducing the proposed width of the addition, thus reducing the variance request.” MR. ABBATE-Okay. Would the petitioner of Area Variance No. 34-2006 approach the table, which you have, I see, speak into the microphone, and for the record identify yourself, please. MR. LANT-My name is Bruce Lant, and I live at 14 Fox Farm Road. MR. ABBATE-Okay. Now you’re not represented by counsel? MR. LANT-No, sir. MR. ABBATE-Okay. So then what I’m going to do is explain to you, tell us why you feel we should approve your variance and if you have any questions or don’t understand any of our procedures, stop us and we’d be more than happy to explain them to you. MR. LANT-Sure. MR. ABBATE-So go ahead, tell us why. MR. LANT-The side setback currently is at 20 feet. There’s some other residences. There’s a building development that’s directly behind me that has a side setback of five feet with a sum of 15. So I didn’t really think that it was substantial in my request to begin with. The second thing was that we had looked at other alternatives to expand the home, being that there’s five of us in the home. It’s a fairly cramped house with no storage space. We had explored adding up under the home and discovered that it was just cost prohibitive to do that. We are going to add on to the west side of the house, as the permit, 252, outlines. That’s inclusive of this, actually, variance, you’ll see in the plans, that the plans include that addition as well. So I reapplied, and the east side abuts a vacant lot that’s owned by my next door neighbor as well, that they can’t actually build on. They could sell the lot, but they can’t build a home on it because of the front feet, I guess the road frontage is minimum. MR. STONE-Frontage on a Town road. MR. LANT-Yes. So it’s always going to be a wooded lot. Even if you clear cut it, you’re still looking at a couple of hundred yards between my home and the next door neighbor’s home, and none of the neighbors are in opposition of the proposed addition. MR. ABBATE-Okay. That’s fine. If there’s anything else that you think you’d like to let us know, bring to our attention, we’ll address it. MR. LANT-Sure. MR. ABBATE-Do any members of the Board have any questions for Mr. Lant? 41 (Queensbury ZBA Meeting 06/21/06) MR. BRYANT-Staff notes addresses the issue of possibly putting the addition behind the house. Why isn’t that possible? MR. LANT-We explored that alternative. Unfortunately the septic tank and the septic leach field is directly behind that portion of the home, and if we moved it any further west on the back side of the home, then you’re actually looking at going off where the kitchen currently is, which defeats the purpose of what we’re trying to do, is accomplish a larger bedroom area and modify a current bathroom that’s on the upper level, for future plans of modifying the kitchen, to make it a little bit larger. MR. BRYANT-Where exactly is the septic tank? MR. LANT-The septic tank should be on the site plan. There should be two site plans. One shows the septic and one does not show the septic. It’s only approximately probably eight feet from the corner going west, and we had also explored the viability of making it slightly narrower to even just look for a smaller variance and elongate it, but unfortunately there’s an egress window and also the service entrance is located on that front portion of the home, and more importantly really the egress window was there, and that’s a full basement, that’s a full casement window that’s there, and I didn’t really want to remove that window and put a window on the front of the house which would have created a smaller house which wouldn’t have provided any exit from the basement area. MR. STONE-You said that the neighbor to the east, northeast, whatever it is, that’s not a buildable lot as it currently stands. MR. LANT-Correct. MR. STONE-Have you ever approached him about buying part of the lot so you don’t need a variance? MR. LANT-He’s not interested in selling the lot. MR. STONE-He’s not at all? MR. LANT-No. MR. STONE-You’ve explored it, though? MR. LANT-Yes. MR. STONE-Okay. Thank you. MR. ABBATE-I think Mrs. Hunt had a question. MRS. HUNT-Yes, the width is, what, 14 feet? MR. LANT-Fourteen feet, that’s correct. MR. ABBATE-Okay. Do we have any other members that have any questions for Mr. Lant for Area Variance No. 34-2006? MR. BRYANT-The two story addition, what is it going to be, bedrooms? MR. LANT-It’s noted as a two story addition because of the lay of the land, actually because it slopes back. We’re actually pouring a full basement level on the lower level. I wanted to list it and also build it as living space because if I wanted to put a shop down there, you know, or whatever, but currently we’re actually just going to be doing it as storage, because there is no storage in that home right now at all, other than closet space. So that lower level is going to be for storage or possibly to put tools in and things, and then the upper level will be the master bedroom and the current bedroom is off that corner, I’m going to modify that into a larger bathroom, and there’s a smaller bathroom that’s not depicted in the plans because it’s, we’re not changing it currently, but I wanted to be able to leave it where it is because the kitchen, if we modify the kitchen, I’m actually going to go into that bathroom area and make it into a smaller like powder room, actually. MR. STONE-Mr. Secretary, do we have anything from the neighbor? MR. UNDERWOOD-I have nothing on file. 42 (Queensbury ZBA Meeting 06/21/06) MR. STONE-Nothing. Okay. Thank you. MR. MC NULTY-Going back to the question of the septic or moving that addition to the back of the house, or partially on the back, I’m not sure whether I was listening clearly at the time. The septic is there. Any other reason? If the septic were not there? MR. LANT-There’s also another egress window downstairs as well, which is where there’s a bedroom down there as well. So if I were to move that around the corner, then I would also have take into consideration making that bedroom that’s down there even larger or modifying that lower level even more than it already is. MR. MC NULTY-Okay. So it would be an additional cost? It could be an alternative, but not a desirable one, because you could move the septic tank without moving the drainage field. MR. LANT-Correct. MR. MC NULTY-And swing that around part way, but it would mean other modifications in the basement. MR. LANT-Yes, we had explored moving the septic for, when we were going to actually add up, because if we had added up, I would have added, I think, two more bedrooms than the existing plan called for. So I would have had to increase the septic. Unfortunately, when we purchased the home, we also had landscaped. So now there’s five feet of fill over the top of where, not the septic tank, but the leach field. So I can’t even tie into the existing leach field anymore. I would have to actually move my leach field to the left as well. MR. ABBATE-Okay. Do any Board members have any other questions for Mr. Lant? All right. If not then what I’m going to do is open up the public hearing for Area Variance 34- 2006, and do we have anyone in the audience who would like to address Area Variance No. 34-2006? PUBLIC HEARING OPENED MR. ABBATE-I see no hands raised, so I will then continue on. Again, I ask the members for their comments, and I went through before, I’d like to inform the public that the comments are to the Chairman and are not subject to debate, and I respectfully reminded the Board members earlier about precedent mandating our concern with evidence and what have you, and having stated that, do we have a volunteer who would like to address Area Variance No. 34-2006? Okay. Mr. Stone. MR. STONE-Obviously this is a relatively simple variance. I mean, I would prefer, like all variances, that we don’t really have to have one. I would like, as the question I asked, you know, buy 10 feet, and then you’re in conformity. I would question your statement it’s not buildable, because that’s why we sit here and we’ve had people come in many, many times and say, well, I’ve only got 20 feet on a Town road. Can you give me a variance, and it’s a debatable issue. That’s all I’m really saying. We have to be very careful. Having said all that, I think your request is minimal. I think you’re still going to be 12 feet from the property line. It certainly is not going to be a detriment to the community, as it exists right now. It’s self-created, and I’ve listened to some of the discussions before. When somebody builds something, it can be very easily determined self-created. When you have a property that you bought and all of a sudden you realize that it’s undersize, that becomes one of those difficult things, but I don’t think it’s a detriment to the community. I don’t think it’s going to affect the health, welfare, environment or anything else. So I would be in favor. MR. ABBATE-Thank you. Mr. McNulty, please. MR. MC NULTY-I guess I’d be reluctantly in favor, too. There’s several things to argue against this. Just because it’s going to cost a little more to put that on the back side instead of the side of the house is one factor. As Mr. Stone indicated, there’s no absolute guarantee that somebody some day won’t want to build a house on that lot next door if conditions change, zoning changes or whatever, but at the same time, we’re balancing, again, the benefit to the applicant versus detriment, and certainly it’s going to be much more difficult, from what’s been explained, to put that addition on the back of the house or tie it to the back rather than the side, and the applicant’s indicated that he’s investigated the possibility of buying a strip of the adjacent lot and has been turned down. So, that’s one alternative that’s been explored and apparently is not available. So 43 (Queensbury ZBA Meeting 06/21/06) given the current conditions and doing the balancing act, I think it comes out slightly in favor of the applicant, so I’d be in favor. MR. ABBATE-Okay. Thank you. Mr. Bryant, please. MR. BRYANT-Thank you, Mr. Chairman. I somewhat agree with Mr. McNulty. However, I think that the feasible alternative issue should be explored further. I think that there’s got to be a way that that can be put on the back of the house, and as Mr. McNulty states, or Mr. Stone stated, there are a number of houses that are close to the line in the area, and maybe this is not really that much of a detriment to the community. The reality is, it is a substantial variance. I’d like the feasible alternative issue explored further. So as it stands, I’d be opposed. MR. ABBATE-Okay. Mr. Underwood, please. MR. UNDERWOOD-Part of the difficulty we have is in these well established neighborhoods that the, you know, the builders at that time decided that they were always going to place these houses directly center on the lot, and that always creates problems because then you don’t have room on either side. In this instance, you do have room on the one side for your addition, and it’s understandable, with five people in the house, why you would want to add on that other side there. As far as the detriment to the neighborhood, most of the structures in that neighborhood, and the newer ones that have been created, too, have maintained the wooded buffers between the lots. So there is a little bit of a change in between as far as things not running into each other as a solid wall of buildings surrounding the block there, but in this instance here, although you’re asking for eight feet of relief, I don’t think it’s out of character of the neighborhood and it’s not a great request. I don’t think it’s going to alter the neighborhood to any great degree, and it’s going to allow you to achieve what you’re trying to do here, which is more space for your family. So I’d be in favor of it. MR. ABBATE-Okay. Thank you. Mrs. Hunt, please. MRS. HUNT-Thank you. I have to agree with Mr. Underwood and Mr. McNulty and Mr. Stone. I don’t think this is too great a request. It’s a modest addition, and I would be in favor. MR. ABBATE-Thank you. Mr. Urrico, please. MR. URRICO-Yes. I would be in favor of the project for the previous reasons given before me. MR. ABBATE-And I would agree with the majority of the Board that it’s a reasonable project. I don’t think it’s something that’s going to be a detriment to the community. So, having said that, I’m going to, at this time close the public hearing for Area Variance No.34-2006. PUBLIC HEARING CLOSED MR. ABBATE-And again, the members are well aware of the fact of balancing the benefit that we require, and I’m going to ask for a motion. Is there a motion for Area Variance No. 34-2006? MOTION TO APPROVE AREA VARIANCE NO. 34-2006 BRUCE LANT, Introduced by Joyce Hunt who moved for its adoption, seconded by Roy Urrico: 14 Fox Farm Road. The applicant proposes a 248 square foot residential addition to the east side of the existing 1,925 square foot single family dwelling. Addition is two story and approximately 400 square feet total. The applicant requests eight feet of side setback relief, east side, where 20 feet is the minimum per Section 179-4-030 for the SFR-1A zone. I think the benefit could not be really achieved by any other means feasible to the applicant. It will not cause an undesirable change in the neighborhood character or to nearby properties. While it might be considered substantial, the fact that the property next to it is buffered with trees ameliorates that. The request will not have adverse physical or environmental effects on the neighborhood, and it’s self-created only in the fact that he wants to add to the size of his home. So I would request that we approve Area Variance No. 34-2006. st Duly adopted this 21 day of June, 2006, by the following vote: 44 (Queensbury ZBA Meeting 06/21/06) AYES: Mr. McNulty, Mr. Stone, Mr. Underwood, Mrs. Hunt, Mr. Urrico, Mr. Abbate NOES: Mr. Bryant MR. ABBATE-Area Variance No. 34-2006, in a vote six yes, one no, is approved. MR. LANT-Thank you. MR. ABBATE-Yes, you’re welcome. AREA VARIANCE NO. 35-2006 SEQRA TYPE: II LE ROY & KATHARINE CORMIE OWNER(S): LE ROY & KATHARINE CORMIE ZONING: SR-20 LOCATION: 25 FAWN LANE APPLICANT PROPOSES CONSTRUCTION OF A 312 SQ. FT. DECK ADDITION. RELIEF REQUESTED FROM REAR YARD SETBACK REQUIREMENTS AND REQUIREMENTS OF THE SR ZONE. CROSS REF.: BP 2006-180 WARREN COUNTY PLANNING: N/A LOT SIZE: 0.24 ACRES TAX MAP NO. 301.18-1-71 SECTION: 179-4-030 LE ROY & KATHARINE CORMIE, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 35-2006, LeRoy & Katharine Cormie, Meeting Date: June 21, 2006 “Project Location: 25 Fawn Lane Description of Proposed Project: The applicant proposes a 312 sq. ft. deck on the back of the existing single-family residence. Relief Required: The applicant requests 10-feet of rear setback relief, where 20-feet is the minimum, per § 179-4-030, for the SR-20 zone (Sherman Pines subdivision). Parcel History (construction/site plan/variance, etc.): 2006-180: Pending AV, for a 364 sq. ft. deck. 2006-020: Issued 2/3/06, for a 360 sq. ft. residential addition with septic alteration. 2001-407: Issued, for a 252 sq. ft. deck. 1999-395: Issued 7/13/00, for a 1,536 sq. ft. single-family dwelling with attached 2-car garage. Staff comments: The Building permit associated with this variance request (BP 2006-180) is for a 364 sq. ft. deck, 8-feet from the rear property line. If the plan has changed to a 312 sq. ft. deck, 10-feet from the rear property line, then the building permit will have to be revised. A previous deck was removed and replaced with 360 sq. ft. of additional living space. This proposal is to reassemble the deck that was removed around the back and the side of the addition. The property abuts in the rear a common area for the subdivision (Sherman Pines), where the community septic system is located. Therefore, it does not appear that a negative impact to that property would result. A feasible alternative may be to locate the entire deck on the side of the addition, not on the back and side as proposed. A 22-foot setback presently exists from the addition to the rear property line. It may also be possible to reduce the area of the proposed deck, and thus, reduce the size of the variance request.” MR. ABBATE-Would you speak into the microphone and for the record identify yourself, please. MRS. CORMIE-I’m Katherine Cormie. MR. CORMIE-LeRoy Cormie, 25 Fawn Lane. MR. ABBATE-Okay. Fine, and again, I’m assuming that you haven’t retained an attorney? MR. CORMIE-No. 45 (Queensbury ZBA Meeting 06/21/06) MR. ABBATE-Okay. So basically you heard what I said earlier. Since you have not retained an attorney, you just present your case to us. Tell us why you feel we should approve it, and then if you folk have any questions that we can answer, clear up for you, we’d be more than happy to do it. Fair enough? MR. CORMIE-Sure. MR. ABBATE-Okay. Tell us why you feel we should approve this. MR. CORMIE-Because we want a deck. I’m listening to everything that’s going on here. No, no. It’s kind of a unique piece of property in that the common leach field is behind the property. We’re 20 feet, or 22 feet, the new addition, the one I’m working on now, is 22 feet from the rear line, but there’s another 50 or 60 feet back to the wooded area, and then beyond that there’s another 100, 120 feet to Sherman Avenue, which we were told, we bought the house a year ago, we were told it was unbuildable. There was a buffer zone granted to the original developer, and I don’t think the original developer was Schermerhorn, but our particular house was built by Schermerhorn. One of the things they did do on such small lots is by centering them, I think they’re aesthetically more pleasing. When we looked at the house, we liked the fact that we could see West Mountain from the deck that was attached to the house at the time of our purchase. We did, because we lived in our last house and learned the amenities of a family room, it was something we hoped to do, and we knew, at least for that, we would not need a variance. So we went ahead and purchased the home, and I have not been unhappy about doing so. The deck being where we propose it to go would give us a couple of advantages. One would be it wouldn’t be sunlight of it, the house itself facing, sunlight to the deck wouldn’t be blocked by the two story house, because it would be adjacent to the one story addition and quite a ways away, would get sunshine in the summertime. The septic system, as you can see on the drawings I gave you runs, it’s one of the reasons why the small portion of the deck would really be just an expanded landing area, and a way to walk around to the larger portion of the deck because right next to it is where the line runs and for the permit that you granted us earlier to build this family room that we’re currently working on, we did move the septic out so it was in compliance at the time Kruger Excavating moved it out away from both where the hoped the deck might go and certainly to be in compliance with the building permit for the additional living space. In looking around the neighborhood, too, we tried to compare and we talked to neighbors even before we did any of this, how our house would appear afterwards, if this were, indeed, granted to us to build a deck back there, and we decided that a lot of fences in our neighborhood, we don’t have a fence around our property, but most of the fences are set I guess by Code, right on the back, or are allowed to be set right on the back line. So our deck which we consider, I don’t know if anybody else would agree with us on this, a fence is less attractive than landscaping, which we prefer. Our deck wouldn’t go back to, it would still be 10 feet off the back line, and would be aesthetically pleasing. Let’s put it that way, and we also knew that our next door neighborhood had a variance for a pool, which visually go back, because of the fence required around everything, actually makes hers look much deeper than ours, where our deck would end, if, indeed, we were to get this variance. I looked at your alternatives when you sent them to me. The one suggestion being that we build it right behind the house. As I said, the septic line runs out there. If the deck were small enough, it wouldn’t get out far enough to the septic tank to affect the septic tank. We did break up the old tank and remove it, as I say, with the other permit, and again, it would be a dark deck that would be not as usable, in our opinion, aesthetically less appealing, and I’m trying to use the materials that I, the house is seven years old, and I’m trying to use materials that I took off. So the house looks basically the way it is, because as promised in the other thing, everything would match. As a matter of fact, the deck I intend to look exactly like the deck we took off, just be 18 feet further from the main house than the original deck was. MR. ABBATE-Okay. Any members of the Board have any questions? MR. STONE-I’ve got several. MR. ABBATE-Yes, please. MR. STONE-One, that area that’s covered with that tarp, that’s going to be the living addition, right? MR. CORMIE-That is the other building permit you granted which didn’t (lost word). MR. STONE-Right. 46 (Queensbury ZBA Meeting 06/21/06) MR. CORMIE-Yes. MR. STONE-Because it says built. MR. CORMIE-I’m working on it. I retire tomorrow. So I’ll have more time. MR. STONE-All right. So you want to build back. Now it seems to me that you have landscaped the common land behind you? MR. CORMIE-I haven’t. The previous owners did, yes. MR. STONE-The previous owners. MR. CORMIE-And actually one piece of that landscaping is not on our, it’s shared by two adjacent lots. MR. STONE-Okay. Now the pile of wood, is that in the common area? MR. CORMIE-The pile of wood, fire wood or building wood? MR. STONE-Building wood. MR. CORMIE-That’s the deck. MR. STONE-Okay, that’s the deck. MR. CORMIE-I put it back. It is on the common area, yes. MR. STONE-Okay. I was just trying to get a lay of where the 10 feet goes to, that’s all. MR. CORMIE-Well, there was a birch tree that was taken down before we moved in, too, stacked back there. That’s why when you said wood I didn’t know if you meant the birch tree. No, the pressure treated lumber is the old deck that I moved to the back. MR. STONE-Okay. So then most of your back lawn isn’t yours. MR. CORMIE-Half of our back lawn probably isn’t ours. MR. STONE-Okay. MR. CORMIE-Well, they didn’t tell us that when we bought it, but we didn’t know. As a matter of fact, the Town of Queensbury didn’t know that we had a shared leach field, which I found fascinating because there are 83 homes in there. No one in Building and Codes knew, as a matter of fact, they told me I was crazy. There’s no such thing. MR. ABBATE-Let me ask a question, are you an engineer? MR. CORMIE-No. MR. ABBATE-Good. The reason I ask you that, I’ll tell you why it’s good. It seems to me that you had enough initiative to ask questions. MR. CORMIE-Yes, I tried to. MR. ABBATE-I have to congratulate you. MR. CORMIE-Thank you. MR. ABBATE-Did it take much of an effort to ask questions of the Town? MR. CORMIE-No? MR. ABBATE-Thank you very much. MR. CORMIE-Yes, it’s been very good. MR. ABBATE-Okay. 47 (Queensbury ZBA Meeting 06/21/06) MRS. HUNT-I have a question. MR. ABBATE-Yes, please. MRS. HUNT-Your house faces what direction? MR. CORMIE-Directly south. MRS. HUNT-Directly south. So I can see, then, you wouldn’t want one. MR. CORMIE-Well, it would be nice if we didn’t have to. MRS. HUNT-Wouldn’t get much sun. MR. CORMIE-It’s just better, definitely better, yes. We would get the morning sun, afternoon sun, and too close to the two story would block it, right. MRS. HUNT-Yes. MR. STONE-The common area, is that Association land? MR. CORMIE-Sherman Pines Association owns all that, including the leach field. MRS. CORMIE-All in the back. MR. CORMIE-As a matter of fact, I have to, it is in our agreement or our deed that we have to allow access to that common leach field, although I think it can be made also off Sherman Avenue, but they’re right of way’s down through there. MR. STONE-Okay. MR. ABBATE-The public hearing will be open for Area Variance No. 35-2006. If we have anyone in the audience who wishes to address Area Variance No. 35-2006, raise your hands. PUBLIC HEARING OPENED MR. ABBATE-I don’t see any hands raised, so I’m going to move on, and again, you know the members, I’m going to ask for your comments, and you know that I respectfully reminded you earlier about precedent mandating we concern ourselves with the evidence. So, having said that, do we have a volunteer to address Area Variance No.35- 2006? Anyone? MR. STONE-I’ll address it. MR. ABBATE-I was going to break a precedent and go first. Do you want me to do it? MR. STONE-Sure. MR. ABBATE-Okay. I don’t normally do this. Quite frankly, if I were in your position, I would do the same thing. I would make the same request. I feel that your request is reasonable. I don’t see any disastrous results that will happen if we go ahead and approve your application. Mr. Stone, please. MR. STONE-I was going to say basically the same thing. The fact that, and the reason I asked the question about the lawn, it’s very nice back there, and whoever put it in, and whoever’s maintaining it, the two of you are doing very well, and I also ask the question, do we have any correspondence from the Homeowners Association or any neighbor, and having none, I think that the detriment to the community is minimal. I think that the advantage for you is obviously very clear. It’s self-created. You’ve got a very small lot and you want to put an addition on you want to restore a deck that was there. You just want to move it back a little bit. I just don’t have any problem with the whole thing. MR. ABBATE-Okay. That’s fine. Mrs. Hunt, you’re next, please. We’ll change it. MRS. HUNT- Okay. Thank you. Well, I have to agree with Mr. Abbate and Mr. Stone. I think it’s a modest request and I would be in favor of it. MR. ABBATE-Okay. Thank you. Mr. Bryant, please. 48 (Queensbury ZBA Meeting 06/21/06) MR. BRYANT-I agree with Mr. Stone, Mrs. Hunt, I’d be in favor of it. MR. ABBATE-Mr. McNulty, please. MR. MC NULTY-Okay. I guess I would agree. My first reaction’s I would have preferred to see it in the “L” shape, but you made a good case for why you’d like to have it on the back side. It bothers me a little bit that we keep granting variances for the back side of these lots in this development, mostly with good reason, mostly for pools which can’t be crammed anywhere else, but at the same time, when possible, I would prefer not to grant variances consistently across the line, but I think in this case, the benefit to the applicant clearly outweighs any detriment. So I’d be in favor. MR. ABBATE-Thank you. Mr. Urrico, please. MR. URRICO-Yes. I agree with Mr. Bryant. MR. ABBATE-Okay. Mr. Underwood, please. MR. UNDERWOOD-If I lived there, I would not want my deck on the dark side of the forest. So I would agree with you. It’s the best place for it. MR. ABBATE-Okay. Having heard all the comments of the Board, the public hearing is now closed for Area Variance No.35-2006. PUBLIC HEARING CLOSED MR. ABBATE-And again, ladies and gentlemen of the Board, I respectfully reminded you the task of balancing the benefit of the variance against the impact on the area. Having said that, do we have a motion for Area Variance No. 35-2006? MOTION TO APPROVE AREA VARIANCE NO. 35-2006 LE ROY & KATHARINE CORMIE, Introduced by James Underwood who moved for its adoption, seconded by Joyce Hunt: 25 Fawn Lane. They’re proposing a 312 square foot deck on the back of an existing single family residence and they’re going to need 10 feet of relief where 20 feet is the minimum per Section 179-4-030 for the SR-20 zone in the Sherman Pines subdivision. This request is that they be able to re-erect their deck, as submitted on this plot plan to us this evening. This will be on the back of an addition currently under construction and just about done. They’re request for this, even though it’s going to intrude into the setback, it’s recognized that this is a common area and that, you know, it appears to be part of their lawn, even though it’s part of the common area in the back there, too. There really is no detriment to the neighborhood, as far as, if we grant this request here this evening. Although it will be quite close to the property line, that’s a forever wild area in the back there where that area is and it’s not going to be built on or disturbed in the future. So it’s not seen that there’s any great detriment to the neighborhood if we grant this request. So I would move for its approval. st Duly adopted this 21 day of June, 2006, by the following vote: AYES: Mr. McNulty, Mr. Stone, Mr. Urrico, Mr. Bryant, Mr. Underwood, Mrs. Hunt, Mr. Abbate NOES: NONE MR. ABBATE-The vote for Area Variance No. 35-2006 is seven yes. Area Variance No. 35-2006 is approved. MR. CORMIE-I didn’t want to say this before we had begun because I didn’t want to look like I was kissing up, but we lived in Glens Falls for 28 years, and once or twice had the occasion to sit in on both Zoning Board of Appeals, Planning Board meetings. You guys do a good job, and I know how much you get paid for it, and we appreciate it, as taxpayers. I’ve sat in on a lot of meetings, and you’re doing what you should be doing. MR. ABBATE-For the record, did I understand you correctly that you stated that we do a fine job? MR. CORMIE-You do a fine job. 49 (Queensbury ZBA Meeting 06/21/06) MR. ABBATE-Thank you so much. MRS. CORMIE-And your website is great. MR. ABBATE-Thank you so much. MR. ABBATE-You’ll have to compliment the Town for that, not us. It’s wonderful to hear that. I appreciate that. MR. CORMIE-And I wasn’t kissing up, just for the record. Thank you. OLD BUSINESS: AREA VARIANCE NO. 66-2005 SEQRA TYPE: UNLISTED CLUTE ENTERPRISES AGENT(S): VAN DUSEN & STEVES OWNER(S): H. HOEGER ZONING: SFR-1A LOCATION: BENNETT & ELDRIDGE ROADS APPLICANT PROPOSES A 2-LOT SUBDIVISION IN LOTS OF (LOT 1); 0.72 ACRES AND (LOT 2); 0.31 ACRES RESPECTIVELY. RELIEF REQUESTED FROM MINIMUM LOT SIZE REQUIREMENTS FOR BOTH LOTS AND FROM MINIMUM LOT WIDTH REGULATIONS FOR LOT 2, BOTH FOR THE SFR ZONE. CROSS REF.: SUB. NO. 17-2005 WARREN CO. PLANNING: N/A LOT SIZE: 1.03 ACRES TAX MAP NO. 295.14-1-21 SECTION: 179-4-030 MATT STEVES, REPRESENTING APPLICANT, PRESENT; LARRY CLUTE, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 66-2005, Clute Enterprises, Meeting Date: June 21, 2006 “Project Location: Bennett & Eldridge Roads Description of Proposed Project: Applicant proposes to subdivide a 1.03-acre land-hooked parcel into two lots of .72 (lot 1) and .31 (lot 2), acres respectively. Relief Required: Lot 1: .28-acres of relief from the minimum lot size requirement of 1-acre. Lot 2: .69-acres of relief from the minimum lot size requirement of 1-acre and 81.36-feet of relief from the minimum lot width requirement of 150-feet. All relief per §179-4-030 for the SFR-1A zone. Parcel History (construction/site plan/variance, etc.): None Staff Comments: As you will recall, a similar application was heard and tabled by the Board on October 19, 2005 (see resolution). That proposal was for a 3-lot subdivision, and with that, more relief was requested (see previous staff notes). Lots on Eldridge Road range from .18-acres to .56-acres, with the average lot size being .37-acres. Similarly, lots on Bennett Road range from .32-acres to 2-acres, with the average lot size at .50-acres. Few lots in this neighborhood have the required 1-acre minimum. While the granting of these variances may be consistent with the character of the neighborhood, substantial relief is required relative to the ordinance. Feasible alternatives to this proposal are limited because of the existing lot configuration with the land-hook across Eldridge Road. This is a SEQR Unlisted Action and a short EAF has been submitted. The Board should either request that the applicant revise Part I or the Board make corrections before proceeding to Part II. The project description has changed from a 3-lot to a 2-lot subdivision (Question no. 6) and Town Planning Board approval for the subdivision is needed (Question 10).” 50 (Queensbury ZBA Meeting 06/21/06) MR. ABBATE-Okay. Thank you. I see the petitioners are at the table. Would you be kind enough to speak into the microphone and identify yourselves, please. MR. STEVES-Good evening, Matt Steves representing Larry Clute, Clute Enterprises on this application, and Larry Clute is here with me. MR. ABBATE-Okay. MR. STEVES-I’ll make it very brief, Mr. Chairman. Thank you very much for honoring my request because I had a previous engagement in another town, and I do agree with you, by the way, on other matters. So, I didn’t want you to feel left out on that. MR. ABBATE-Thank you, sir. MR. STEVES-And this was before you before looking to take the westerly lot and break it into two. We had discussions with this Board and we also had discussions with the Planning Board, and they liked the idea, as well as some of the Board members when we were back in October, of not trying to subdivide the lot that is on in the interior between the two roads. We have come back with a plan that is exactly what exists now, two lots. Because of the ownership of the Eldridge Road at the Town of Queensbury, it was left over land that was land-hooked from the original owner of all this property, but it’s on two sides of a public right of way. So the proposal is to construct two single family homes, one on each lot. The narrower lot on the east side of the road, the house would be set as far easterly as possible, to maintain the buffer, as you can see to the north. There is not many lots that would be affected by that, on the east of that lot, and on the larger portion to the west on the center of the horseshoe, that is substantially wooded as well, and placing the house facing the new construction on the east side, again, would leave a large buffer area, and we’d leave it open to any questions the Board may have. MR. ABBATE-Okay. Thank you very much. Do any members of the Board have any questions? MR. URRICO-The term land-hooked, what does that refer to? MR. STEVES-One tax map number is given to a parcel, even though it is divided by another ownership. MR. URRICO-Okay. We’re not talking about actually hooking the property so that they might get relief for a bigger house on one of them? MR. STEVES-No. MR. URRICO-Okay. It’s been used in portions of the Town as well. MR. STEVES-There have been some conflicting things with that. Last night at the Planning Board, for example, there was a parcel that was divided on Birdsall Road by the bike path, and the Planning Board, even though it was one tax parcel, deemed that it was separate because of the ownership, and that’s what typically has been the standard is just that there are parcels that are left prior to that stance by the Town and by the County. Prior to that stance they were land-hooked. You owned property. If you owned lots on either side of the road, they, for simplicity reasons, for taxation, they made it one tax parcel, but in reality it’s divided by another ownership, so it’s really two different parcels. MR. STONE-Would you anticipate needing a variance to build the house on Lot Two? MR. STEVES-We showed that setback requirement. The exact house, dimension is shown. Lot Two being on the back side, 20 foot is required. To maintain the 30 foot, which we think is more consistent with the neighborhood, and less of an impact in the neighborhood to ask for the back relief than the front relief. So the house, the exact house that Mr. Clute would be building, would require 15.5 instead of the 20 foot in the rear. MR. STONE-So you will be back when he’s ready to build? MR. STEVES-Or we could ask for that at this time. That is exactly the house we would be building. 51 (Queensbury ZBA Meeting 06/21/06) MR. BRYANT-You can’t ask for it right now. MR. STONE-It’s not advertised. MR. STEVES-Okay. MR. ABBATE-Very good. Very good. Any other members have any questions? MR. STEVES-But we can ask for it. MR. STONE-You can ask. MR. STEVES-Understood. As long as you know it’s a building lot, and knowing that that will come back if this is approved. We would just like to know if that is something that this Board would look favorably on. We understand you cannot make a determination. MR. ABBATE-Yes, the Board is correct that it really has to be advertised first. MR. STEVES-No, I understand. I’m not asking you to make. MR. ABBATE-Understand. MR. STEVES-Thank you, sir. MR. ABBATE-Any other questions from members of the Board? No other questions from members of the Board. Okay. If there are no other questions from the members of the Board, then I’m going to open up the public hearing for Area Variance No. 66-2006, and if we have anybody in the audience who wishes to address that, would you raise your hands, please. PUBLIC HEARING OPENED MR. MC NULTY-Mr. Chairman, while we’re at this point, I’ve got a comment. A couple, one personal though, one factual. There was somebody here from the public that wanted to comment on this. They were here at seven o’clock. They couldn’t want. I have no idea what their comment was, but we lost public comment. Second, as we’ve discussed previously, our agendas are prepared well ahead. I think it’s rude of an attorney or a surveyor or any other representative to ask us to move their application to another position because it’s not just the applicant and the Board it’s also the public that’s involved, and this is a good example. We lost public comment because we moved this. I think once we set our agenda, unless there’s a death in the family or something, we shouldn’t be moving agenda positions. MR. URRICO-It was the first item on the agenda tonight. MR. UNDERWOOD-It was the first item on the agenda. MR. MC NULTY-It was first on the agenda. MR. ABBATE-Do you have a copy of our agenda? Let me look at this for a second. All right, Mr. McNulty, your comments are noted. MR. MC NULTY-The agenda may or may not indicate that it can be changed, but the effect is what bothers me, and whether we legally can change it or not is an entirely different question. MR. ABBATE-I understand. Okay. MR. STEVES-And I understand and respect that opinion. I do have one comment with that, just as a comment. There was a member here, or an audience, a neighbor, he also could have left a written comment before he had to leave, and I do sincerely apologize. I don’t think I’ve ever asked for that request, but I’ve had four Planning Board meetings in two nights and I had nobody left at the office to cover for me. I asked six different people whether or not I could get somebody to cover for me, and I could not. I did make a valiant effort to have somebody cover for me, and I do apologize. MR. ABBATE-Well, Mr. McNulty’s comments are well stated, but let me bring to the attention of everybody on the Board that on the agenda it states the agenda is subject to change. 52 (Queensbury ZBA Meeting 06/21/06) MR. URRICO-I’m sure if somebody went to the website, they wouldn’t have found that information for tonight. MR. ABBATE-You’re right, they wouldn’t have. MR. URRICO-But maybe an alternative would have been to open the public hearing at that point, let people here to speak on it be given the opportunity to speak at that point. MR. ABBATE-Good point. However, let’s not make ourselves the bad guys here. I made it quite clear that we were going to be moving it. It would seem to me that if there were anyone in the public that concerned, they would have raised their hand, and made it clear that they wished to comment. I saw no hands raised at that time. If I had, I may not have changed it. MR. BRYANT-You asked for comment. MR. ABBATE-Yes, I did. I opened the public hearing. MR. URRICO-Well, maybe that lady didn’t know that she was going to be sitting here for three hours. MR. ABBATE-Well, you know, the burden of responsibility is not always going to be on our shoulders. The public has to assume responsibility, too. MR. URRICO-Okay. MR. MC NULTY-Did we open a public hearing on this application? MR. ABBATE-Yes, I did. MR. MC NULTY-I don’t believe so. MR. ABBATE-I did not? MR. STONE-No, but you stated. MR. BRYANT-He asked if there was anybody here that was here for that particular application. MR. MC NULTY-No, that was the next item that was re-tabled, I believe. MR. URRICO-I mean, I don’t want this to be prejudicial against the applicant. MR. ABBATE-Do you remember what I said? Help me out, Sue. MS. HEMINGWAY-You did not open a public hearing. You just opened it up now. MR. ABBATE-Okay, but did I make the announcement that we were going to move it from the first? MS. HEMINGWAY-Yes. MR. ABBATE-I did. MR. MC NULTY-You made that announcement, but a member of the public isn’t going to know, unless they’re really aggressive, that they can object to that point or something. I just wanted to make the statement to make sure we understood we lost public comment. MR. ABBATE-Let me make this clear. Do members of the Board feel that we shouldn’t hear this and perhaps table this to another time, so that the public can provide us with input? I will yield to whatever the majority says. MR. BRYANT-Can I make a comment? MR. ABBATE-Sure you can. 53 (Queensbury ZBA Meeting 06/21/06) MR. BRYANT-This is the first time in this forum, but it’s not like it’s the first time that they’ve come before us on this property. I mean, the public has had ample opportunity to discuss it and one individual, he could have been for it. MR. MC NULTY-They may have. MR. BRYANT-We don’t know. MR. MC NULTY-And I’m not picking on this particular applicant. It’s just generally it’s a problem for the public, whether we, you know, whether it’s done this way or whether you move somebody that’s near the end to the first, because if it’s near the end, the public’s not going to show up at seven. They’re going to show up at 7:30, assuming that they’re still going to sit for a half hour or an hour, and if you move it to the first, again, you lose the public comment. MR. ABBATE-And you’re right. What I did was on the one I tabled until September, I did open up the public hearing for that one. You’re absolutely right, Sue, but I didn’t do it on this one. You’re correct. You’re absolutely correct. MR. STONE-I have no problem. MR. BRYANT-I have no problem. MR. MC NULTY-I have no problem with hearing this one. MR. URRICO-I believe the lady left a note. MR. UNDERWOOD-No, that was Maggie Stewart. She gave a note. MR. STONE-She got the note on the dock. MR. MC NULTY-Yes. It wasn’t Stewart. It was another lady. MR. ABBATE-Let’s be fair about this, too. Mr. McNulty has a point. MR. STONE-He does. I just have one further question. This is the exact same thing we tabled last time? MR. STEVES-No. We took no action, right? MR. MC NULTY-We discussed the possibility of some of us being happy if it were a two lot. MR. STONE-Right. MR. STEVES-And actually I believe it was asked to go to the Planning Board and get their input and we did that. MR. ABBATE-Right. MR. STEVES-And they felt the same way, and so now we’ve re-grouped. We’ve come back. We’ve re-negotiated, and we’re back in front of this Board. MR. STONE-Okay. MR. ABBATE-All right. So we’re all set now? So I opened the public hearing I do believe, and I didn’t see any hands raised. Since I didn’t see any hands raised, I’m going to continue on, and again, gentlemen, ladies, I’m going to ask for your comments, and you know what the procedures are. Do we have any individuals on the Board who’d like to comment on Area Variance No. 66-2005? MR. BRYANT-I volunteer. MR. ABBATE-Please do, Mr. Bryant. MR. BRYANT-Thank you, Mr. Chairman. During your last visit, we talked about this whole issue specifically. This is a logical solution to the problem. I was totally opposed to three, but I said I would accept two, and I’m in favor of the application. 54 (Queensbury ZBA Meeting 06/21/06) MR. ABBATE-Wonderful. Mr. McNulty, please? MR. MC NULTY-I’d basically agree with Mr. Bryant. I think I was inclined to accept the two. It would be nicer not to have to offer any variances, but in this case, there’s nothing else that I can see can be done here. So I’d be in favor. MR. ABBATE-Okay. Mrs. Hunt, please? MRS. HUNT-Yes, thank you. I have to agree with the two previous Board members. MR. ABBATE-Okay. Mr. Urrico, please? MR. URRICO-There haven’t been many nights where I’ve been able to say twice in the same night I agree with Mr. Bryant, but I also, this shows that the process works. It’s really heartening to see the applicant go back, take our suggestions and make it work. So I’d be in favor of it. MR. ABBATE-Thank you. MR. STEVES-Thanks. MR. ABBATE-Mr. Stone, please. MR. STONE-Well, I’m trying to figure out with whom I agree. I agree with everybody who has spoken thus far. I think the comment that Roy just made is a worthy comment for us to keep in mind. The process works. MR. ABBATE-It does. MR. STONE-I mean you came in for three, and obviously you raised the ire of a number of us, and we said we could live with two. You can live with two, let’s move on. MR. ABBATE-Mr. Underwood, please. MR. UNDERWOOD-It’s a reasonable solution to leftovers. MR. ABBATE-Okay, and you know, folks, the process does work, and let me state this, not to be dramatic, but, for the record, I’d like everybody to know just how proud I am to be Chairman of the ZBA because each of our members have not only a great deal of integrity, but they really believe the position that they’re setting forward, whether we agree with it or whether we disagree with it, but at least we have sufficient demeanor and what have you to accept what folks have to say. So, anyway, having said that. MR. UNDERWOOD-We’ve got to do the Short EAF for this one. MR. ABBATE-Yes, this is Unlisted, folks. MR. UNDERWOOD-I’ve taken into consideration the request in the Staff notes and modified the one that’s in the book here now. So Number Six says it’s a proposed two lot residential subdivision from one tax parcel divided by a road. I don’t know if divided by a road is still applicable, and also down below where it says, does the action involve a permit, approval or funding from any other governmental agency, and that should be yes. MR. ABBATE-Okay. MR. UNDERWOOD-Does the action exceed any Type I Threshold? I would say no. MR. STONE-No. MR. MC NULTY-No. MR. UNDERWOOD-Will the action receive coordinated review? Yes. MR. STONE-Yes. MR. UNDERWOOD-Could the action result in adverse effects associated with the following: Air quality, ground water, noise levels, traffic patterns, solid waste or disposal, potential for erosion, drainage or flooding problems? No. 55 (Queensbury ZBA Meeting 06/21/06) MR. BRYANT-No. MR. BROWN-Did you answer yes on the coordinated review? If you’re doing your own SEQRA now, the Planning Board’s going to do theirs, then it’s definitely a no. MR. UNDERWOOD-That’s what I thought. MR. MC NULTY-It’s a no. MR. UNDERWOOD-So it should be a no. Excuse me, I’ll correct that. The aesthetic, agricultural, archeological, historic or other natural or cultural resources; or community or neighborhood character? No. MR. ABBATE-No. MR. STONE-No. MR. UNDERWOOD-Vegetation or fauna, fish, shellfish or wildlife species, significant habitats, or threatened or endangered species? I would say no. MR. STONE-No. MR. ABBATE-No. MR. UNDERWOOD-A community’s existing plans or goals as officially adopted or a change in use or intensity of use of land or other natural resources? I would say no. MR. STONE-No. MRS. HUNT-No. MR. UNDERWOOD-Growth, subsequent development, or related activities likely to be induced by the proposed action? No. MR. STONE-No. MR. ABBATE-No. MR. UNDERWOOD-Long term, short term, cumulative, or other effects not identified in C1-C5? No. MR. STONE-No. MR. ABBATE-No. MR. UNDERWOOD-Other impacts including changes in use of either quantity or type of energy? No. MR. STONE-No. MR. ABBATE-No. MR. UNDERWOOD-Will the project have an impact on the environmental characteristics that caused the establishment of a Critical Environmental Area? No. MR. STONE-No. MR. ABBATE-No. MR. UNDERWOOD-Is there or is there likely to be controversy related to potential adverse environmental impacts? No. MR. STONE-No. MR. ABBATE-No. MR. UNDERWOOD-We need to vote on that. 56 (Queensbury ZBA Meeting 06/21/06) MOTION THAT THE SHORT ENVIRONMENTAL ASSESSMENT FORM PROVIDED BY THE APPLICANT INDICATES THAT THERE ARE NO SIGNIFICANT NEGATIVE IMPACTS CAUSED BY THIS PROJECT, AND UNLESS THERE IS A CHALLENGE FROM MEMBERS OF THE BOARD, I WOULD MOVE TO ACCEPT THAT BASIS IN ANTICIPATION OF NO NEGATIVE RESPONSES. AS SUCH I MOVE THAT THE SHORT ENVIRONMENTAL ASSESSMENT FORM BE APPROVED, Introduced by Charles Abbate who moved for its adoption, seconded by Lewis Stone: st Duly adopted this 21 day of June, 2006, by the following vote: AYES: Mr. McNulty, Mr. Urrico, Mr. Bryant, Mr. Underwood, Mr. Stone, Mr. Abbate NOES: NONE MR. ABBATE-In a seven yes to zero no vote, the Short Environmental Assessment Form is approved. The public hearing is now closed for Area Variance No. 66-2005. PUBLIC HEARING CLOSED MR. ABBATE-And gentlemen and ladies on the Board, I’m going to respectfully going to request a motion for Area Variance No. 66-2005. Do I have one? MR. BRYANT-I’ll do it. MR. ABBATE-Mr. Bryant, please. MOTION TO APPROVE AREA VARIANCE NO. 66-2005 CLUTE ENTERPRISES, Introduced by Allan Bryant who moved for its adoption, seconded by Joyce Hunt: Bennett & Eldridge Roads. The applicant proposes to subdivide a 1.03 acre land- hooked parcel into two lots of .72, Lot One, and .31, Lot Two, acres respectively. The relief required, Lot One: .28 acres of relief from the minimum lot size requirement of one acre. Lot Two: .69 acres of relief from the minimum lot size requirement of one acre, and 81.36 feet of relief from the minimum lot width requirement of 150 feet as per Section 179-4-030 for the SFR-1A zone. In reviewing the criteria, how would you benefit from the granting of this Area Variance, they would be able to subdivide this 1.03 acre land-hooked parcel into two separate lots. What effect would this variance have on the character of the neighborhood? Primarily no effect since the majority of the lots in the neighborhood are in the range of a half acre. Are there feasible alternatives to this variance? This is a natural division, and actually it’s not going to be noticeably significant at all. Is the amount of relief substantial? It is by virtue of the Code. However, again, it’s naturally divided by the road. Will the variance have an adverse effect or impact on the neighborhood, environmentally, no, again, most of the lots are in that same size range. For those reasons, I move that we approve this Area Variance. st Duly adopted this 21 day of June, 2006, by the following vote: AYES: Mr. McNulty, Mr. Stone, Mr. Urrico, Mr. Bryant, Mr. Underwood, Mrs. Hunt, Mr. Abbate NOES: NONE MR. ABBATE-The vote for Area Variance No. 66-2005 is seven yes, zero no. Area Variance No. 66-2005 is approved. MR. STEVES-Thank you. I just wanted to point out one thing, that I wasn’t trying to hide anything from you in the application, so you understand. The map did show the 15.5 and the Area Variance worksheet we did ask for the 15 feet. I know it wasn’t advertised that way, but we did show that. MR. STONE-Okay. MR. ABBATE-Thank you very much. MR. STEVES-I didn’t want you to think, hey, you’re putting in a smaller building. We were right up front with the fact that we are going to need that on there. 57 (Queensbury ZBA Meeting 06/21/06) MR. ABBATE-Okay. Well, don’t go away, because we’re going to be upfront, too. Mr. Secretary, would you read something into the record, please. I want you to listen very carefully to this, please. MR. UNDERWOOD-It’s addressed to Mr. Charles Abbate, Chairman of the Zoning Board of Appeals. “Dear Charlie: Thank you for your understanding and time and effort you and the rest of the Board had at the meeting. It has been a very long and laborious journey. However yours and the Board’s efforts are truly appreciated. Please pass my personal thanks to all those there at the meeting. I didn’t write down all the names. On another note, you did a hell of a job as Chairman. Congrats. Regards, Michael Della Bella” MR. ABBATE-The Zoning Board of Appeals hearing for this date is closed. On motion meeting was adjourned. RESPECTFULLY SUBMITTED, Charles Abbate, Chairman 58