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2006-06-28 (Queensbury ZBA Meeting 6/28/06) QUEENSBURY ZONING BOARD OF APPEALS SECOND REGULAR MEETING JUNE 28, 2006 INDEX Area Variance No. 24-2006 Stephanie & Travis Norton 1. Tax Map No. 290.00-1-84 Area Variance No. 25-2006 Christopher Kollar 7. Tax Map No. 226.12-1-47 Area Variance No. 68-2005 Northeast Dining & Lodging 8. d/b/a Golden Corral (Cont’d Pg. 31) Tax Map No. 296.18-1-6 Area Variance No. 36-2006 Steven B. Jackoski 9. Tax Map No. 289.17-1-39 Area Variance No. 37-2006 Andrea Peek 20. Tax Map No. 227.9-1-11 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 6/28/06) QUEENSBURY ZONING BOARD OF APPEALS SECOND REGULAR MEETING JUNE 28, 2006 7:00 P.M. MEMBERS PRESENT CHARLES ABBATE, CHAIRMAN JAMES UNDERWOOD, SECRETARY CHARLES MC NULTY ALLAN BRYANT ROY URRICO JOYCE HUNT LEWIS STONE TOWN COUNSEL-MILLER, MANNIX, SCHACHNER, & HAFNER-CATHI RADNER STENOGRAPHER-SUE HEMINGWAY OLD BUSINESS: AREA VARIANCE NO. 24-2006 SEQRA TYPE II STEPHANIE & TRAVIS NORTON OWNER(S): STEPHANIE & TRAVIS NORTON ZONING SR-1A LOCATION 920 RIDGE ROAD APPLICANT PROPOSES CONSTRUCTION OF A 576 SQ. FT. 2-CAR DETACHED GARAGE. RELIEF REQUESTED FROM MINIMUM SHORELINE SETBACK REQUIREMENTS OF THE SR-1A ZONE. CROSS REF. SPR 16-2006 WARREN COUNTY PLANNING APRIL 12, 2006 ADIRONDACK PARK AGENCY YES LOT SIZE 0.69 ACRES TAX MAP NO. 290.00-1-84 SECTION 179-4-030; 179-6-060 STEPHANIE & TRAVIS NORTON, PRESENT MR. UNDERWOOD-We heard this at a previous meeting, and they changed a few things around. So that’s what we’re going to be reviewing tonight. STAFF INPUT Notes from Staff, Area Variance No. 24-2006, Stephanie & Travis Norton, Meeting Date: June 28, 2006 “Project Location: 920 Ridge Road Description of Proposed Project: The applicant proposes a 576 sq. ft., 2-car detached garage. Relief Required: The applicant requests 50-feet of shoreline setback relief from the 75-foot minimum, per §179-4-030 for the SR-1A zone. Parcel History (construction/site plan/variance, etc.): SP 16-2006: Pending, for filling or hardsurfacing within 50-feet of a wetland. BP 2005-754: Pending, for a 576 sq. ft. garage BP 2005-313: Issued 5/20/05, for a 192 sq. ft. deck. BP 2002-921: Issued 11/14/02, for construction of an 832 sq. ft. single-family dwelling. Staff comments: As you will recall, this application was tabled on April 26, the Board requested that the applicant delineate the wetland boundary for the entire parcel and to explore feasible alternatives (alternate locations for the garage). With the updated drawing, the applicant has shown the required 75-foot shoreline setback from the rear and from the south wetland boundary. With that, the garage would require a variance at any location on the property. The applicant has moved the siting of the garage 10-feet south, closer to the house, thus the relief is 10-feet less than previously requested (from 60-feet to 50-feet). Although the requested relief is substantial, it does not appear that the benefit sought by the applicant can be achieved by any other method other than an area variance due to the site constraints. 1 (Queensbury ZBA Meeting 6/28/06) The Warren County Planning Board, at their April 12 meeting, recommended No County Impact with the condition that, “Implementation of appropriate stormwater and erosion control measures for the garage due to the proximity to the wetland.” Site plan review is required (SP 16-2006) for filling or hard surfacing within 50-feet of a wetland, per §179-6-060.” MR. ABBATE-Okay. Thank you very much. Would the petitioner of Area Variance No. 24-2006, Mr. and Mrs. Norton specifically, be kind enough to approach the table, speak into the microphone, and for the record identify yourself and place of residence, please. MRS. NORTON-Stephanie Norton, 920 Ridge Road, Queensbury, New York. MR. NORTON-Travis Norton, 920 Ridge Road, Queensbury, New York. MR. ABBATE-Okay. Now you’ve come before us, this, I believe, is the second time we’ve requested specific information. Is there anything else you’d like to add, anything else you’d like to say? MRS. NORTON-The only addition that I have is that Craig Brown sent us a letter because site plan took a look at the information so far and asked that we have the entire property surveyed by the Army Corps, and I had that done, and I just received the surveys yesterday, and that’s what Susan just gave you a copy of, so that the line is the exact same line that shows on the survey that everyone has, but the other survey indicates it’s just the edge of fill, and this survey indicates it’s the edge of fill and it’s also the edge of the wetland. MR. ABBATE-I have a slight problem. This map I think we can assimilate this evening. That’s not a problem, but did you make copies for everybody? If you did, could you pass them out? MRS. NORTON-I just have three of them. MR. UNDERWOOD-It’s the same what we had. MR. ABBATE-It’s the same? Good. MRS. NORTON-It’s the same, but the line just is, it has a different title. MR. ABBATE-Okay. Do me a favor, guys, pass this down, would you please, and would you do me a favor, if you have an extra copy, just pass it down, just for the record, so the folks know what’s going on, and we’ll see that you get those back, please. MR. ABBATE-Now while they are examining this survey, would you like to add anything to your appeal? Okay. So you’re just waiting for us, then, to go through the procedures. Okay. MRS. NORTON-Yes. MR. ABBATE-Give us a few minutes, please, while they digest this, and then I’ll continue. MRS. NORTON-Sure. MR. ABBATE-And I’ll take this opportunity, particularly since you’re not represented by counsel, during this appeal, if there’s anything you don’t understand, you stop me, and we’ll do everything in our power to explain it to you. If there’s anything that you feel you may have neglected to tell us, to support your case, at any time during the hearing, stop us, and you certainly will be allowed to do that. Okay? MRS. NORTON-Thank you. MR. ABBATE-Okay. Good. Okay, folks, any members of the Board have any questions for the appellants, Mr. and Mrs. Norton? MR. BRYANT-I have a question, Mr. Chairman. MR. ABBATE-By all means. 2 (Queensbury ZBA Meeting 6/28/06) MR. BRYANT-Could you tell me why you selected that place for the garage, why isn’t it an attached garage to the back of the house where the deck is? And also, does it have to be a two car garage? Can we get away with a one car garage? MRS. NORTON-At this particular time, we do have two vehicles, and in the past we’ve had accidents come through our yard. My car was actually hit, and we would like to be able to secure all of our personal items in addition to that. MR. BRYANT-I understand that, but there’s nothing in the statute that says everybody’s entitled to a two car garage. I don’t have one, okay, and so, again, my question is, can we have a smaller garage, and can we attach it to the back of the house, to alleviate some of this relief? MRS. NORTON-Well, if we attached it to the back of the house, we would be closer to the wetland, so there would be more of a variance required. MR. BRYANT-I don’t understand how you come to that conclusion. You’re going to have to explain that to me. MRS. NORTON-Okay. Could I come up and show you? MR. BRYANT-Sure. MR. ABBATE-If you’re up here, do me a favor and speak into the microphone, please. MRS. NORTON-If we come here, we have the distance here, if we come here. MR. BRYANT-Your driveway’s going to be here. So why not move it right here, and you’ll only need minimal amount of relief. MRS NORTON-If we move it here, then we’d be required to remove our deck, and we would have to move the sliding glass doors that are here to a different area of the house, and we’d have to remodel the entire upstairs of the house, because it’s a brand new home, because this back wall right now is our kitchen area. So we’d have to completely remove the kitchen, move it to a completely separate area of the house. MR. BRYANT-I don’t understand why the kitchen can’t be next to the garage, I don’t understand that. MRS. NORTON-It’s not that it can’t be next to it, but if you’re putting the garage here, the kitchen is already here. This where the kitchen is. You come into this kitchen and the dining room is over here. MR. BRYANT-You can’t go into the kitchen from the garage? MRS. NORTON-I’m not saying that you can’t do that, however we’d have to remodel everything because we’d have to move the sliding glass door back here, and you can’t have a sliding glass door right in the middle of your, because there’s cabinetry all across the back. So we’d have to pull all the cabinets out in order to put the door there. MR. BRYANT-Okay. MRS. NORTON-Does that answer your question? MR. ABBATE-Go ahead and add your comment, please. MR. NORTON-We would just have to take apart the whole kitchen, remove all the cabinets, all the countertops, to put a door there. MR. BRYANT-I don’t understand why you have to have a door there. You have a door going into the garage. MRS. NORTON-To get to our deck. We have to have, because you can’t go through. MR. BRYANT-In other words, you can’t have a, okay. I didn’t look on the inside of your house. So I don’t know really what you’re talking about. MRS. NORTON-I could draw you a picture to explain where the cabinets are. 3 (Queensbury ZBA Meeting 6/28/06) MR. URRICO-Your pictures from last time probably would help. MRS. NORTON-Yes, I have pictures of the house, but they’re not interior. MR. BRYANT-I saw the house. MR. ABBATE-Well, we’ll pass them down anyway. While Mr. Bryant is taking a look at the pictures, do any members of the Board have any other questions for Mr. and Mrs. Norton. MR. STONE-Yes, Mr. Chairman, I have a concern. In light of something that I have said many times, that no build is a feasible alternative. I am troubled by a line in Staff notes that says although the requested relief is substantial, it does not appear that the benefit sought by the applicant can be achieved by any other method, other than an Area Variance. It also should say that not necessarily do we have to grant a variance so that a garage can be built. No build is a feasible alternative. MR. ABBATE-It’s on the record, Mr. Stone, and you’re correct. Okay. Well taken. Any other members have any comments concerning Area Variance No. 24-2006, Mr. and Mrs. Norton? MR. URRICO-When did you consider adding on the garage? Was it part of the original plan or did you think about it? MRS. NORTON-Yes, we were actually going to pour the foundation when we built the home, but we wanted to get into the home to save some money before we actually did everything. So here we sit. MR. URRICO-And was that the location you originally anticipated for it? MRS. NORTON-Yes. Well, not what you’re looking at. It was the original map. I actually have a copy of that, because this is the second proposal. If you want to see that. It’s just back a little bit further. MR. URRICO-Basically you anticipated having it attached from the house. MR. ABBATE-Any other members? Yes, Mr. McNulty, please. MR. MC NULTY-Comment more than anything. I want to make it now, I guess, so that everybody’s got a chance to think as they go on with this. I made essentially the same comment the last time we were considering this, and looking at the minutes, I’m not sure it was understood the way it I intended it. I was trying to make the point that these people are now parking vehicles on their property, essentially where they’re going to put the garage. I think a garage would be an improvement, environmentally, for the wetland. Right now, if those vehicles are leaking oil or anything else, they’re leaking it into the ground where the rain can then wash it through the ground to the wetland. If that’s going to occur and the house is there, the lot’s there, there’s nothing we can change about that. Putting a roof over that and a cement floor under that is going to tend to confine any leakage of that sort in the garage directly under it without letting water wash it through. So, I think, just environmentally, it’s probably better to have a garage there than it is to not have a garage there, even though it’s going to be closer than the setback to the wetland. MR. ABBATE-Okay. That’s an excellent observation, Mr. McNulty, and it’s certainly on the record. Any other members of the Board wish to comment on this particular appeal? If not, I’m going to open up the public hearing for Area Variance No. 24-2006, and those wishing to be heard, would you be kind enough to raise your hand so I can recognize you, and I will ask you to come to the table. Do we have anyone in the public who would like to address Area Variance No. 24-2006? PUBLIC HEARING OPENED MR. ABBATE-I see no hands raised, then I will continue on, and before I ask members to offer their comments, I’d like to inform the public that the comments that are now going to be offered by members are directed to the Chairman only, and comments expressed by the Board members to the Chairman will not be open to debate. I’m now going to ask members to please offer their comments on Area Variance No. 24-2006, and again, I respectfully remind the members that procedure mandates that we concern ourselves with the evidence which appears on the record to support our conclusions. And that the 4 (Queensbury ZBA Meeting 6/28/06) evidence relied upon should be specifically stated. This is necessary for an intelligent Judicial review. Additionally, any position you may take must be based on the regulatory review criteria of our laws and not simply on subjective preferences or not liking a project, and due process guarantees that government ensure a fair and open process, and Board members make decisions on reliable evidence contained in the record of Board deliberations. Having said that, do I have a volunteer to address Area Variance No. 24-2006? MR. BRYANT-I’ll volunteer. MR. ABBATE-Mr. Bryant has volunteered. Thank you, sir. MR. BRYANT-Thank you, Mr. Chairman. I want to allude to a couple of things that other Board members have said during the back and forth. Mr. Stone mentioned something out of the Staff notes relative to, that the benefit to the applicant could not be achieved by any other method, and I just want to extrapolate on that. Sometimes the applicant is seeking something that is physically impossible because of the configuration of the lot or his particular request. As far as the comment by Mr. McNulty, looking at these photographs, they’re newer model cars, and I doubt they’re going to be leaking oil any time soon. I don’t think that’s really even an issue or a concern. The bottom line is that with a smaller garage, closer to the house, or attached to the house, and not taking into consideration the situation with the deck, not knowing what the configuration of the kitchen is, that garage could be closer, it could be a one car garage. It could require minimal relief, and it would be probably satisfactory to the Board. As it stands right now, this is what the applicant wants, and it’s not necessarily the right thing for the environment. Twenty-five feet away from wetlands is not really a desired result. So I’m going to be opposed to this application. MR. ABBATE-All right. Thank you very much. Mr. Underwood, please. MR. UNDERWOOD-Last time you came in here, I was in agreement with Mr. McNulty, and I think that in this instance here, the hard surfacing of this wetland area occurred quite some time ago prior to your purchasing the house and building the house on the property there. I think that in this instance we have to go with what the applicants are proposing here. Last time I also mentioned the fact that, you know, when you’re set 25 feet back from those wetlands, there seems to be sufficient percolation going on on that soil. When I went by there today, there didn’t seem to be puddles all over or lakes on there and things like that. I think that, properly designed, that the stormwater prevention as recommended can be done so that it’s infiltrated into the ground. It’s not going to have any effect on that wetland. I mean, certainly in the instance of Waterfront Residential property, we build a lot of things too close to the lake and things like that. This is a wetland, and wetlands serve a useful purpose, as I said last time, for absorbing runoff water and things like that. I don’t really think this is one that’s going to trigger any change in the wetlands down there. It’s a minimal disturbance. It’s not going to disturb or fill in anymore wetlands, and I think that this garage where they want it makes perfect sense to me. They need a place to turn around. It’s a dangerous road there, as we talked about last time and I think it’s a reasonable request. MR. ABBATE-All right. Thank you, sir. Mr. McNulty, please. MR. MC NULTY-Okay. I’ll try not to repeat everything I said previously, but I think, looking at the diagram that the applicant’s provided this last time with the colored lines on them, there’s virtually no compliant location for this garage, and almost all no more compliant, because the more you move away from one setback, the more you move in to another one or two setbacks, and I can’t see the benefit of re-engineering their home. In this case, I, again, think that a garage is better than no garage is better than no garage, and I think a one car garage would be 50% as effective as the two car garage. The other factor that comes in here is there’s been indication that they will have to take care of stormwater plan for what comes off the roof of that garage. So it won’t be producing runoff, polluted runoff at least, into the wetland. So I think, sum total, while I’d prefer this entire lot and building wasn’t there, it’s there, and I think the garage is going to be better than no garage. So I’d definitely be in favor. MR. ABBATE-And, for the record, you understand, you have the responsibility to address, as Mr. McNulty stated, runoff? MRS. NORTON-Yes. MR. ABBATE-And you accept that, for the record? 5 (Queensbury ZBA Meeting 6/28/06) MRS. NORTON-Yes. MR. ABBATE-All right. Thank you. Mr. Urrico, please. MR. URRICO-Yes. I’m in agreement with Mr. Underwood and Mr. McNulty on this. I think there’s a definite benefit to the applicant on this. The applicant certainly has the option of not building a garage, but what would be left is cars on the property, which certainly would create an environmental hazard, as well as a visual site as well. I think the benefit certainly to the applicant is something that wouldn’t be a detriment to the health, safety and welfare of the community, which is the critical balancing test in this. The request is substantial, but as has been pointed out, there really is no area on the location where they can put a garage and still not require a variance, and as far as adverse physical or environmental effects, I do agree with Mr. McNulty on this, in that not having the garage probably would create a greater environmental hazard than having the garage, and I think the difficulty may be self-created, but I also think having a garage that would house their cars probably is something that everybody would like. If it was me, I definitely would want to have one, especially in that location. So I’d be in favor of it. MR. ABBATE-Thank you very much. Mr. Stone, please. MR. STONE-Thank you, Mr. Chairman. In his earlier presentation, Mr. McNulty made a very good point about the stuff on the ground, and I think Mr. Bryant talked to that. However, I feel that the wetlands must be protected directly, not indirectly. Protection is mandated. We should not interfere to this degree. We’re asking for an awful lot of relief, something that has been judged, a setback that has been judged to be important as far as protecting wetlands. I think by putting this garage in, and somebody referred to they prefer that this house hadn’t been built in the first place, I think putting a garage on it at this point will compound a felony. In my judgment, there is more detriment to the community, to the environment, than the benefit to the applicant, and I would vote no. MR. ABBATE-All right. Thank you very much. Mrs. Hunt, please. MRS. HUNT-Thank you. Well, I agree with Mr. McNulty, Mr. Underwood and Mr. Urrico. I think this is a reasonable request, and there are wetlands, there are different classes of wetlands, and I don’t know that this is such an environmentally sacred one or not, and I think it would be an improvement to the neighborhood to have a garage, than to have cars parked in the yard. So I would be in favor. MR. ABBATE-Thank you, Mrs. Hunt. I listened carefully, I truly did, and I read everything, not only from the first meeting and the second meeting, and we kind of sent you away and requested that you provide us additional information, which you folks did, and I listened to your argument this evening, and I listened very carefully to what my fellow Board members said, and I would agree with the majority of the Board. I agree with Mrs. Hunt, Mr. McNulty, I agree with Mr. Underwood and Mr. Urrico. I don’t see any real devastation if we were to grant you permission to build a garage there. You are, after all, parking two automobiles in the same spot as you intend to build a garage, and I think it was a good point that Mr. McNulty made. It may not be agreed by other Board members, but I think he made a good point that if there’s going to be any type of a detriment to the wetlands, I believe that the garage, the floor of the garage will absorb that kind of stuff and would not roll, in the event of an oil leak, which seldom happens today, if you have a relatively new car. So, based upon what I’ve heard this evening, and based upon the factors, I, too, would support the application. Having said that, I’m going to close the public hearing for Area Variance No. 24-2006. PUBLIC HEARING CLOSED MR. ABBATE-And again, I respectfully remind the members that we have the task of balancing the benefit of the variance against the impact on the area, as well as the fact that State statutes spell out five statutory criteria that must be carefully considered in deciding whether to grant an Area Variance. Please introduce your motion with clarity. Now, having said that, ladies and gentlemen on the Board, I’m going to seek a motion. Is there a motion for Area Variance No. 24-2006? MOTION TO APPROVE AREA VARIANCE NO. 24-2006 STEPHANIE & TRAVIS NORTON, Introduced by Joyce Hunt who moved for its adoption, seconded by Roy Urrico: 6 (Queensbury ZBA Meeting 6/28/06) 920 Ridge Road. The applicant proposes a 576 square foot, two car detached garage. The applicant requests 50 feet of shoreline setback relief from the 75 foot minimum, per Section 179-4-030 for the SR-1A zone. I think that the benefit to the applicant could not be achieved by any other means. In fact, they did move the garage 10 feet further away from the wetland, which showed good faith. I don’t think there will be an undesirable change in the neighborhood character or nearby properties. In fact, I think it will be a positive one. While the request is substantial the site really requires that much relief. I don’t think the request will have adverse physical or environmental effects. It’s been stated that the cars are already parked there and the garage would not have any more effect than that, and the alleged difficulty is only self-created in the fact that the Nortons want a garage. So I would ask that we approve Area Variance No. 24-2006. th Duly adopted this 28 day of June, 2006, by the following vote: AYES: Mr. McNulty, Mr. Underwood, Mrs. Hunt, Mr. Urrico, Mr. Abbate NOES: Mr. Stone, Mr. Bryant MR. ABBATE-The vote for Area Variance No. 24-2006 is five yes, two no. Area Variance No. 24-2006, Mr. and Mrs. Norton, is approved. Good luck to you. MRS. NORTON-Thank you very much. MR. NORTON-Thank you very much. MR. ABBATE-You’re welcome. AREA VARIANCE NO. 25-2006 SEQRA TYPE II CHRISTOPHER KOLLAR OWNER(S): FREEBERN, ET AL MICHAEL FREEBERN ZONING WR-1A LOCATION 345 CLEVERDALE ROAD APPLICANT PROPOSES DEMOLITION OF TWO EXISTING DWELLINGS (900 SQ. FT. AND 884 SQ. FT.) AND CONSTRUCTION OF A 3,300 SQ. FT. SINGLE-FAMILY DWELLING. RELIEF REQUESTED FROM MINIMUM SIDE YARD SETBACK REQUIREMENTS OF THE WR-1A ZONE. WARREN COUNTY PLANNING APRIL 12, 2006 ADIRONDACK PARK AGENCY YES LOT SIZE 0.37 ACRES TAX MAP NO. 226.12-1-47 SECTION 179-4-030 MR. UNDERWOOD-We previously heard this at another meeting, and I think that we were looking for more information, I believe, the last time. So I’m just going to read the Staff notes. STAFF INPUT Notes from Staff, Area Variance No. 25-2006, Christopher Kollar, Meeting Date: June 28, 2006 “Project Location: 345 Cleverdale Road Description of Proposed Project: The applicant proposes demolition of two existing seasonal dwellings (totaling 3,144 sq. ft.) and construction of one 3,300 sq. ft. single-family year-round residence. Relief Required: The applicant requests 5-feet of (North) side setback relief and 5-feet of (South) side setback relief, both from the 20-foot minimum per §179-4-030 for the WR-1A zone. Parcel History (construction/site plan/variance, etc.): BP 2006-194: Pending, for a 3,300 sq. ft. SFD. Staff comments: Floor plans were not submitted with this application nor with the building permit application, therefore, a FAR determination has not been made at this time. Applicant seeks side setback relief only. It appears as though there is area available for compliant construction. The applicant has indicated that the proposed is more compliant than what exists on site and that a new septic system and stormwater management would be installed. The Warren County Planning Board, at their April 12 meeting, recommended No County Impact for this project.” 7 (Queensbury ZBA Meeting 6/28/06) MR. ABBATE-Okay. Thank you. Would the petitioner of Area Variance No. 25-2006, Mr. Kollar, Mrs. Kollar, please approach the table. Is Mr. or Mrs. Kollar here this evening? Mr. and Mrs. Kollar are not here this evening, and for the record I want to make the following statement. The Zoning Administrator sent correspondence to Mr. Kollar on April 28, 2006, requesting additional information, as discussed at the April 26, 2006 meeting, that must be submitted no later than 15 May 2006 4:30 in the afternoon, in order to be considered by this Board on June 28, 2006. Neither were floor plans submitted nor building plans submitted, and the request by the Zoning Administrator was not honored by Mr. and Mrs. Kollar. In view of that, I’m going to table Area Variance No. 25-2006. MOTION TO TABLE AREA VARIANCE NO. 25-2006 CHRISTOPHER KOLLAR, Introduced by Charles Abbate who moved for its adoption, seconded by Allan Bryant: 345 Cleverdale Road. Tabled to the August 23, 2006 hearing date, with the provision that all the information requested by the Zoning Administrator and this Board be submitted no later than July 17, 2006 to the Community Development center. th Duly adopted this 28 day of June, 2006, by the following vote: AYES: Mr. McNulty, Mr. Stone, Mrs. Hunt, Mr. Urrico, Mr. Underwood, Mr. Bryant, Mr. Abbate NOES: NONE MR. ABBATE-The vote to table Area Variance No 25-2006 is moved to the August 23, 2006 hearing date with the proviso and condition that all the documentation be submitted to Community Development no later than July 17. AREA VARIANCE NO. 68-2005 SEQRA TYPE: UNLISTED NORTHEAST DINING & LODGING, INC. D/B/A THE GOLDEN CORRAL RESTAURANT AGENT(S): JONATHAN C. LAPPER, ESQ. & CHRIS ROUND – CHAZEN CO. OWNER(S): RICHARD & MONIQUE CUNNINGHAM ZONING: HC-INT. LOCATION: QUAKER ROAD APPLICANT PROPOSES CONSTRUCTION OF A 10,330 SQ. FT. RESTAURANT AND ASSOCIATED SITE WORK. RELIEF REQUESTED FROM MAXIMUM ALLOWABLE PARKING SPACES AND SHORELINE SETBACK REQUIREMENTS FROM WETLANDS. CROSS REF: SPR 57-2005 WARREN COUNTY PLANNING: SEPTEMBRER 14, 2005 LOT SIZE: 2.88 ACRES TAX MAP NO. 296.18-1-6 SECTION: 179-4-040; 179-4-030 CHRIS ROUND, REPRESENTING APPLICANT, PRESENT MR. UNDERWOOD-We previously heard this application and I believe that we asked for some more information from them. MR. ABBATE-Yes, we did. MR. UNDERWOOD-I do not see the applicants here. MR. ABBATE-Okay. I’m going to take care of that right now. MR. ROUND-We apologize. Attorney Lapper’s not here. MR. UNDERWOOD-Do you want to wait? MR. ROUND-If we could wait. MR. ABBATE-Yes, I’ll be more than happy to do this, but when Counsel arrives, I want to make it quite clear that when we set up an agenda, we expect you people to be here on time. MR. ROUND-Understood. MR. ABBATE-Thank you, and would you relay that to Counsel, please. Thank you. A Board member just mentioned that it’s possible that there may be individuals here this evening who, based upon the agenda, may want to put in some public comment. If it is, you can either do it now, or you can wait until we hear this. It’s up to the public. I see nobody responding. So what we’re going to do, then, we’re going to move Area Variance No. 68-2005 to a later time this evening. 8 (Queensbury ZBA Meeting 6/28/06) NEW BUSINESS: AREA VARIANCE NO. 36-2006 SEQRA TYPE: II STEVEN B. JACKOSKI OWNER(S): STEPHEN MILLER ZONING: WR-1A LOCATION: BIRDSALL ROAD APPLICANT PROPOSES REMOVAL OF TWO DOCKING AREAS TOTALLING 100 SQ. FT. AND CONSTRUCTION OF ONE 120 SQ. FT. DOCK. RELIEF REQUESTED FROM SIDE YARD SETBACK REQUIREMENTS FOR DOCKS. WARREN COUNTY PLANNING: N/A LOT SIZE: 0.35 ACRES TAX MAP NO. 289.17-1-39 SECTION: 179-5-050 STEVEN JACKOSKI, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 36-2006, Steven B. Jackoski, Meeting Date: June 28, 2006 “Project Location: Birdsall Road Description of Proposed Project: The applicant proposes to remove an existing 100 sq. ft. dock and four dock piers and replace with a 120 sq. ft. dock. Relief Required: The applicant requests 20-feet of (E.) side setback relief from the minimum 20-feet required, this is the preferred option “A”. Additionally, 4-feet of relief from the 45-feet minimum lake frontage for 1 straight pier, is required. All relief is per §179-5-050 for docks and moorings. Parcel History (construction/site plan/variance, etc.): NOA 3-2003 (Salvo): Resolved 9/24/03, appeal ZA determination that a building permit was required for dock replacement. Staff comments: Feasible alternatives include dock option “B” (20-feet of side setback relief, same as requested in the preferred option “A”) and dock option “C” (10-feet of side setback relief). The Jackoski property is the only affected party by the granting of side setback relief. They will have exclusive use of the East side of the proposed dock, and prefer the option with the dock along their property line. The amount of relief (20-feet where 20-feet is the minimum) is substantial (100%), however, this appears to be a unique situation whereby access and usage to the “beach lot” is shared between several neighboring properties.” MR. ABBATE-Okay. Thank you very much. MS. RADNER-Mr. Chairman, before you proceed, I have a conflict of interest on this particular application. I participated in the litigation. So I’m going to leave the table and you’re going to fly solo on this one. MR. ABBATE-Thank you, ma’am. You are recused. Okay. Here we go. Would the applicants for Area Variance No. 36-2006 please approach the table. Thank you, and while at the table, would you speak into the microphone and for the record identify yourself and your place of residence, please. MR. JACKOSKI-My name is Steve Jackoski. I reside at 113 Birdsall Road, Queensbury, New York. MR. ABBATE-Okay, now, again, obviously you haven’t retained counsel. MR. JACKOSKI-Correct. MR. ABBATE-Okay. Now, having not retained counsel, let me say to you this, that we expect you to tell us why you feel we should approve your appeal and during the hearing, if you have any questions, or anything that you are not sure about, ask us, we’ll stop and 9 (Queensbury ZBA Meeting 6/28/06) we’ll try to answer your question. If during the hearing there’s anything else you feel you may have forgotten to tell us, raise your hand, let us know, and we will allow it into the record. Fair enough? MR. JACKOSKI-Yes, thank you. MR. ABBATE-Okay. Now, what I’d like you to do is tell this Board why you feel we should approve your appeal. MR. JACKOSKI-Okay. Our appeal is one that we’re looking to eliminate two existing dock structures, which are identified on each of the three choices that we’ve provided this evening, Options A, B, and C. One of the docks in particular crosses over projected boundary lines of the parcel. It is a very unique parcel on Glen Lake, being that it is pie shaped. It is practically impossible for us to actually meet any of the setbacks on this parcel, and we are looking to also work out a situation where the ten parties have, in fact, agreed to the resolution via a civil matter with Judge Aulisi in the Supreme Court. MR. ABBATE-That’s, for the record, the State of New York, County Court, County of Warren you’re referring to? MR. JACKOSKI-Yes, that’s correct. MR. ABBATE-Okay. Fine. MR. JACKOSKI-I do believe, for the record, we have also supplied those stipulations to the Board. MR. ABBATE-Okay. All right. Now, ladies and gentlemen of the Board, do you have any questions for Mr. Jackoski? MRS. HUNT-Yes, I do. You said there are two docks. MR. JACKOSKI-There’s one existing dock at this point, which is on the easternmost section. MRS. HUNT-Right. MR. JACKOSKI-There are the pylons or piers or whatever you want to call them on the western side, which are the remainders of a dock that was part of that NOA that was mentioned earlier, where the Zoning Administrator, I believe, had them remove the deck but allowed them to keep the posts. MRS. HUNT-Okay. Thank you. MR. JACKOSKI-You’re welcome. MR. ABBATE-Okay. MR. BRYANT-I’m assuming you own the lot where the house is on and the beach lot also? MR. JACKOSKI-We only own the property to the east, where on the maps you see a residence and a dock. The parcel of property to our west, which is known as the beach lot, is actually owned in fee by Mr. Steven Miller. Mr. Miller is here this evening, by the way. MR. ABBATE-Okay. Any other Board members have any question on Area Variance No. 36-2006? Okay. Hearing none, I’m going to open up the public hearing. The public hearing. MR. BRYANT-I’m not understanding. Now I’m really confused. MR. ABBATE-All right. Take you time and ask the question. MR. BRYANT-So the dock is being built on somebody else’s property? MR. JACKOSKI-The dock is being built on the property owned by Steven Miller. Yes, that property is affected by deeds of nine other parcels which allow for boating, bathing and recreation. 10 (Queensbury ZBA Meeting 6/28/06) MR. BRYANT-It’s a common area? MR. JACKOSKI-Yes, but nine other families, including Mr. Miller’s own personal residence, have access to that parcel, yes. MR. BRYANT-Okay, and is that what this court thing is all about? MR. JACKOSKI-Yes. MR. BRYANT-Okay. MR. STONE-So in other words, the court has said it is, in fact, usable by all ten parties, and all you want to do, are you representing the parties who want to build the dock? MR. JACKOSKI-I’m representing the plaintiffs and the defendants. The court stipulation specifies that a new dock is to be built as close to the Jackoski property line as possible. MR. ABBATE-That’s correct. You’re absolutely right. Any other Board members have any questions? MR. BRYANT-You being the closest property adjacent to the dock, okay, how do you feel about the dock? You’re the property owner that’s most affected. MR. JACKOSKI-Yes. We have a unique situation. We are the only party who has our own lakefront but also has boating, bathing, and recreational rights to that beach lot. In the stipulation we have agreed that if we build the dock as close to the line as possible, that as long as the eastern most side of it is restricted to our exclusive use, then we’re fine with it. It allows us, instead of being in a rotation for the other sides of the dock, it allows us to use the one side closest to us. MR. BRYANT-Okay. MR. JACKOSKI-And I should note, Staff did ask us, in Option B, to minimize the angle of the dock, to try to straighten it out a little bit or make it more perpendicular with the shore, and from what I could understand in the judge’s order, he did note that as close as possible to the line. So we are in keeping with the judge’s stipulation. MR. BRYANT-Doesn’t your property have its own dock? MR. JACKOSKI-Yes, it does, but the other parties don’t have access to my property. MR. BRYANT-No, I understand that, but I’m curious as to why you also want the other dock. MR. JACKOSKI-Because we don’t need to share in the rotation. So we thought, as an offset for us, if we kept it as close to our property, I mean, some owner, in the future, may not like that idea, but if we agree to it, the dock’s there on the line and we have use of it, we’re okay with it. MR. BRYANT-Thank you. MR. URRICO-I’m also a little confused. Shouldn’t the application be made by the party that owns the beach lot? Isn’t the variance something that stays with the property? MR. ABBATE-If you take a look and go through the County of Warren appeal that was amended motion to incorporate the stipulation, they basically stated that Mr. Jackoski, in compliance with the total of 10 families, if I’m not mistaken, that he can, in fact, come before us. MR. JACKOSKI-To clarify, it’s the plaintiffs, and the plaintiffs have asked me to be. MR. ABBATE-Legally he’s entitled, based upon this stipulation right here, he’s legally entitled to come before us and represent the whole group. Yes, to answer your question. All right. Do any other Board members have any other questions concerning this? MR. BRYANT-Option C, do you object to Option C, other than the fact that it’s not going to be on your property line. You’re not going to have exclusive use of one part of the dock or another. 11 (Queensbury ZBA Meeting 6/28/06) MR. JACKOSKI-Option C actually has not been accepted by any of the parties. Option C would require us to go back to the courts and get approval by all parties, because of the exclusivity of the eastern side, because it’s not up to 40 feet long, because there’s docks on both sides instead of one side, and also, quite frankly, there are young families in the area. We’re trying to maximize as much shoreline as possible to not have boats in the beach area. So we’re trying to gain as much reasonable access to the lake, instead of having a dock with two boats, one on each side, right in the middle of the property. MR. BRYANT-But Option C does require less relief, and we’re charged with allowing the least amount of relief possible. Okay. So Option C really is. MR. JACKOSKI-Option C is not an option for any of the applicants at this point. MR. BRYANT-Thank you. MR. ABBATE-Okay. Any other questions from members of the Board? If not, I’m going to open up the public hearing for Area Variance No. 36-2006, and would those in the public that would like to comment, would you be kind enough to raise your hands. Yes, ma’am. Come up to the microphone and for the record, please state your name and your place of residence. PUBLIC HEARING OPENED SUSAN SALVO MS. SALVO-My name is Susan Salvo. My residence is 10 Apple Tree Lane in Clifton Park, New York, 12065. One of the things that I’d like to question is, aren’t all parties supposed to be notified about this hearing this evening, any party that owns property or rights to this property? Because we were not notified, my sister and I, and we are property owners of two lots, existing for sharing for this property. MR. ABBATE-Okay. Would you give me about 10 seconds. Staff, would you respond to that, please. Were they notified? MS. HEMINGWAY-The answer to that is yes. I sent out notices to those property owners within 500 feet. You didn’t get your notice? MS. SALVO-And they have not sent us any notices in all of the time we’ve owned this property for anything in that area, and I have come here. MS. HEMINGWAY-What’s your name, again? MS. SALVO-The name is Susan Salvo, at 10 Apple Tree Lane in Clifton Park. MR. ABBATE-Okay. We’ll check it out right now. MS. SALVO-And Nancy Ambrecht is the second owner. MR. UNDERWOOD-No, you’re not on the list. MS. SALVO-Thank you. MR. ABBATE-Are you within 500 feet? MS. SALVO-We own two of the lots of the 10 people. MR. UNDERWOOD-For some reason, you weren’t on the list. I apologize for that. MS. SALVO-Nancy Ambrecht of Long Island, also. MR. UNDERWOOD-No. MR. BRYANT-You’ve got to be within 500 feet. MS. SALVO-We are within 20 feet. MR. UNDERWOOD-For some reason they’re not on there either. Sorry. 12 (Queensbury ZBA Meeting 6/28/06) MS. SALVO-Okay. Nancy has sent a letter overnight, as we have just found out about this. We are objecting to this. We are not a party that has agreed to this. In fact, I sent letters to the attorneys stating that we were not agreeing to this. We are also, I am the case that you made me take down the top of the dock but allowed us the pylons, to be able to use for my father’s boat, and we are objecting to have to take those pylons, you stated at that time many things, at which point we would like the time to go back and get transcripts of that hearing back in 2003, and to be able to reference that to what’s going on now for the same lot. MR. ABBATE-What is in that envelope, you referenced? MS. SALVO-This is a letter. MR. ABBATE-What I would like you to do is explain the exhibit that you have in the microphone so it’s on the record, so we all know what’s contained in that envelope, please. MS. SALVO-It’s a letter, sealed letter, from Nancy Ambrecht. She did not get notified either, so she sent a letter to this Board because we did not receive notice to prepare for this, and this is the letter from her, overnight expressed, because of no notice to prepare for this. MR. ABBATE-And is that to the Zoning Board of Appeals? MS. SALVO-Yes, it is. MR. UNDERWOOD-I can read it in if you want. MR. ABBATE-We’ll have to read it into the record if you present it to us. Sure. MS. SALVO-Okay. WILLIAM ANDREWS MR. ANDREWS-Sir, I think I should explain. I’m William Andrews. MR. ABBATE-Okay. MR. ANDREWS-I think if you’ll look on your list, I’m the one that was notified, and it took me time to notify my daughters of this hearing. MR. UNDERWOOD-I would just ask the question, are you listed as the property owner, or are you the property owner, sir? MR. ANDREWS-No, I’m not the property owner. I have lifetime tenancy on the property, and that’s all. I do pay the taxes. That’s probably where you’re getting my name. MR. MC NULTY-That would explain why the daughter didn’t get notified because these notices go to the tax payer of record. MS. SALVO-But I have notified this Town of that for years, and they continue to not send Nancy or I any documentation of any hearings for this. MR. ABBATE-And you are the property owners? MS. SALVO-Yes, we are. MR. URRICO-They’re listed as the defendants on the court case. MR. ABBATE-Well, Staff, or someone, would you be kind enough to take this into consideration and bring it to someone’s attention so they can definitely be, in the future, notified? Yes, sir, go ahead. MR. ANDREWS-Here is a copy of the deed, in their name. MS. SALVO-Do you need a copy of that? MR. ABBATE-You know what, would you be kind enough to present us with a document of your deed so we can put that in the record, please. 13 (Queensbury ZBA Meeting 6/28/06) MS. SALVO-Okay. We’ll have to have copies made. MR. UNDERWOOD-You can forward them to us, that’s all. MR. ABBATE-Well, don’t forward them to us. What I suggest you do is forward them to the Community Development Planning, and specifically, Sue, would you suggest Craig or you? MRS. BARDEN-Either is fine. MS. SALVO-Craig Brown? MRS. BARDEN-Yes. MR. ABBATE-Yes. MS. SALVO-He has already seen this document. I presented that in 2003 to him. MR. BRYANT-Could very easily go on the Queensbury website and look at the property and who owns what piece of property that we’re talking about, and maybe she’s not listed as the property owner for some reason. It’s something you could verify right now. MR. MC NULTY-Well, we had this discussion a while ago on an issue and as it was explained at the time, the mailings go to the person that receives the tax bill. If it happens to be a bank that pays the tax bill, that’s who gets the notice. That’s the procedure that’s used, right or wrong, and that’s why she didn’t get notice. MR. UNDERWOOD-Can I ask a question. Were you involved with the suit that was filed, in any way, shape or form? MS. SALVO-No. MR. UNDERWOOD-Any of you people? MS. SALVO-In fact the only thing was a letter to them that we do not agree where Mr. Jackoski just came up and told you all of the properties, 10 properties, we are owners of two of those properties, and the letter went out that we were not in agreement. We are not a party to the part of the dock, the rotation of the dock. They did not make us a party to that. They have taken all rights away. The only thing that we have is the pylons that you allowed us to have when you made us remove the top of our dock, when I did a repair on the top of the dock, and we did not get a variance ahead of time, in November of 2003, we did not get the variance ahead of time, and you stated, and that’s why I would like transcripts, that no one may even put in for a variance that does not own the property, and I would like to have the transcripts before we actually have this heard. MR. ABBATE-You’re certainly entitled to that. You can do that with what they refer to as a FOIL. So what I would suggest you do tomorrow, at the first opportunity, go to Town Hall and request a copy. MS. SALVO-But I mean we didn’t have any notification to prepare for this. MR. ABBATE-Well, unfortunately, and I apologize, we have no control over that. That’s the responsibility of Staff. MS. SALVO-Okay. MR. UNDERWOOD-If your father was notified, then I would agree that that was probably adequate notification. MS. SALVO-Two days is not adequate to be able to. MR. ABBATE-Well, we’re not going to belabor the argument over this thing, okay. The fact is you stated that you were not notified. Your father was, and as far as I’m concerned, that’s the end of the argument. Now is there anything else you’d like to say? MS. SALVO-Well, we’re against this based on your orders from the past. 14 (Queensbury ZBA Meeting 6/28/06) MR. ABBATE-Okay. That’s fair enough. All right, yes, sir, would you like to say anything else? MR. ANDREWS-Only that we did get the permission from Craig Brown to keep those pylons. In 2003 I personally got permission to keep those pylons for the anchoring of my boat. They were there for over 20 years, and Craig agreed with me that they would do no harm to that area or to the beach, and therefore I could keep them. If I’m asked to remove those, I’ll tell you honestly, I will have nothing left for me to be there for, for the simple reason, the new dock that they’re talking about, one side would be reserved for Mrs. Jackoski. The second side will only have two anchorings. One anchoring will be the owner of the lot, justifiable. The remaining anchoring will be for the nine families to locate in. Well you can see what’s going to happen in the summer. Nobody’s going to be able to really have much time on that dock or near it. So what’s the sense? MR. ABBATE-Now, for the record, what I have here in front of me is State of New York Court, County of Warren. What this is is an amended motion to incorporate court stipulation into a judgment. For the record, were you folks included in this? MR. ANDREWS-By default, we only got the copies. MR. ABBATE-So for the record, you were included in that. All right. Thank you very much. Is there anything else you’d like to comment about? MS. SALVO-My boat has already been taken off the lake and had to be removed to another lake. This is what this is causing, for us to be pushed out, this is what has been tried. This is what they’re succeeding in, and this Town is, in my opinion, helping them in forcing us to take the other dock down. We had to remove our boat. It would not be able to go back on. They have made a size speculation on that, stating that we can only have a certain size. My boat was just over that. They made sure that our boat, my boat would not be able to go on it, my son and I joint own a boat that is beyond the limits of what they have, that was on the dock, was docked to that other dock. I’ve had docks, boats on that other dock for over 20 years. MR. ABBATE-Okay. You indicated for the record that you are, and in fact you are a party to this. This is civil litigation. Have you appealed this? MS. SALVO-No. MR. ABBATE-You have not. Thank you very much. MS. SALVO-Actually that litigation states that it had to be approved by here. So without your approval, they couldn’t do it anyway. We wouldn’t need to. MR. ABBATE-Yes. You’re correct. Okay. Anything else you’d like to say? MS. SALVO-My big concern is that I don’t feel that we can give you information without having received any notification, proper notification. So I feel that this should be held at another time anyway, both my sister and I. MR. ABBATE-Okay. Your comments are well noted. Yes, sir. MR. ANDREWS-I have one question. Back when we were told we had to take the other dock down. MR. ABBATE-When was this, sir? MR. ANDREWS-November 2003. MR. ABBATE-Okay. MR. ANDREWS-We were told, one of the big reasons for taking it down was because we had replaced more than 75% of surface area. MR. ABBATE-Okay. MR. ANDREWS-They’re asking now to remove 100 square foot dock and replace with 120. Now, this is just. 15 (Queensbury ZBA Meeting 6/28/06) MR. ABBATE-Okay. Your points are on the record, and we have noted that and heard that. Is there anything else you’d like to say? MR. ANDREWS-No, that’s all. MR. ABBATE-All right. Thank you very much. Do we have any other folks in the audience who would like to address Area Variance No. 36-2006, would you be kind enough to raise your hands. No? Okay. Mr. Jackoski, would you be kind enough to come back. MRS. BARDEN-Mr. Bryant, I just have Steven Miller as the owner. Steven Miller I have listed as the only owner on the property. MR. BRYANT-What about the 3 Apple Tree, what did she say her address was? MRS. BARDEN-Well, it could be that we just have, you know, again, one person that the tax bill goes to, but the only owner I have listed is Steven Miller on this property. There may be more. MR. STONE-I think we’re talking about the Land of Andrews, though. That’s the thing that’s in question. There were two lots on the survey, the Land of Andrews, I assume, that’s Mr. Andrews. MR. ABBATE-And Mr. Andrews was notified? MR. UNDERWOOD-Yes, he was. MR. ABBATE-Okay. I just want to make it for the record. Okay. All right. We have Mr. Jackoski back at the table. Ladies and gentlemen of the Board, do you have any questions for the appellant? Any Board members have any questions? MR. BRYANT-I just want to clear it up in my mind, this court situation. Miller owns the lot. Is that correct? MR. JACKOSKI-Miller is the fee owner, yes. MR. BRYANT-Okay. He’s the owner of the beach lot. MR. JACKOSKI-Yes. MR. BRYANT-Okay, and this thing went to court against Miller for the right to use that property. I don’t understand that concept. MR. JACKOSKI-It went to court. The plaintiffs filed with the court to clarify the usage. MR. BRYANT-Well, how are they clarifying the usage of somebody else’s property? I don’t understand that. MR. JACKOSKI-Because that property was subject to rights of way by the other nine parcels. MR. BRYANT-And that’s in the deed? MR. JACKOSKI-Absolutely. MR. ABBATE-It’s an ROW. Definitely. MR. BRYANT-That’s in all the deeds? MR. JACKOSKI-All the deeds in some way or another mention, they’re not all exactly the same words, but they all mention boating, bathing and recreational purposes. MR. BRYANT-From that parcel. MR. JACKOSKI-Yes. MR. ABBATE-Mr. Jackoski’s correct. MR. BRYANT-Do we have a copy of one of the deeds to see that? 16 (Queensbury ZBA Meeting 6/28/06) MR. UNDERWOOD-No, but. MR. ABBATE-I think it was stipulated in the judgment. MR. BRYANT-Okay, and the question is, they basically, these nine parties sued the owner of the property in order to enforce that deeded right. MR. JACKOSKI-In essence, yes. MR. BRYANT-Okay. MR. STONE-Let me go further. Why were the Andrews and the Salvos Ambrechts also defendants? MR. JACKOSKI-It is my understanding, and I’m not counsel, but my understanding is that when a parcel with multiple people having rights to it is in litigation, all parties must be identified as either plaintiffs or defendants, and the Andrews family, I do believe, chose to default and be defendants. They did not agree to join the plaintiffs in this matter, but the judge’s stipulation, which you are correct, Mr. Abbate noted that there is a stipulation here that forced them to accept it, and they were made aware of it back in September. So they certainly did know of what was going on. MR. STONE-Thank you. MR. ABBATE-Okay. Is there anything else you’d like to state before we continue on? MR. JACKOSKI-No. MR. URRICO-What’s the size of your boat? MR. JACKOSKI-My boat? MR. JACKOSKI-Yes. MR. URRICO-I don’t actually have a boat for that side of the dock at this point. MR. ABBATE-Well, that wasn’t the question. He asked you the size of your boat. Do you have a boat? MR. JACKOSKI-Yes, I do. MR. ABBATE-Then answer his question. What’s the size of it? MR. JACKOSKI-My boat, I think it’s 20 feet. MR. URRICO-Because it says in the testimony that Mr. Miller’s boat is approximately 16 feet in length, and that his would be grandfathered in. However, all further boats which are to be stored on the western side of the new dock will not be longer than 16 feet in length. It doesn’t mention anything about the eastern side. MR. JACKOSKI-That is correct because there is discussion in the stipulation. We had agreed, if you read the stipulation, we don’t only agree to one craft on that side of the dock, not two. There’s also, it should be in there, I mean, I can flip through there and find it. The reason they chose up to 40 foot dock is because from the shoreline the water wasn’t deep enough to actually have the boat sitting right at the shore. MR. URRICO-It’s my understanding that Mr. Miller is a co-applicant on this? MR. JACKOSKI-The stipulation requires all parties to file this application, yes. MR. URRICO-Then how come he’s not come forward tonight? MR. JACKOSKI-He is here. I don’t know. MR. URRICO-Do you have anything to add about this? Are you comfortable with the 16 feet? MR. ABBATE-Who are we asking, Roy? 17 (Queensbury ZBA Meeting 6/28/06) MR. URRICO-Mr. Miller. MR. ABBATE-Where is Mr. Miller? Would you like to comment on this? If so, would you be kind enough to come to the table, speak into the microphone and identify yourself and your place of residence, please. Would you repeat your question, please, sir. MR. URRICO-Are you aware of the stipulation in the testimony about your boat size? STEVEN MILLER MR. MILLER-Yes, I am. It was part of the agreement. MR. URRICO-And you’re comfortable with that? MR. MILLER-To be honest, no, but I agreed with it to end the lawsuit, to be perfectly honest with you. MR. URRICO-When you say no, why no? MR. MILLER-Well, as owner of the property, you know, just to be restricted on that part of it, I didn’t think it was right, but to be honest with you, I agreed with it to end the lawsuit. MR. URRICO-Okay. Thank you. MR. ABBATE-Okay. All right. Any other Board members have a question they want to ask? Okay. If not, then I’m going to open up the public hearing for Area Variance No. 36-2006. MR. UNDERWOOD-We already did that. MR. ABBATE-I already did that. I’m that efficient. Okay. Then I’m going to move on, and I’m going to ask Board members to offer their comments and I’d like to inform the public that the comments offered by members of the Board are directed to the Chairman, and comments expressed by Board members are not open to debate. I’m going to ask members to please offer their comments. I’ve already indicated respectfully reminding the members about precedence mandating our concern with evidence, and I don’t believe I have to go into it again. Having said that, do we have a volunteer who would like to speak on Area Variance No. 36-2006. MR. BRYANT-I’m just going to address, out of the five criteria I’m going to address the feasible alternative, and in my view, the applicant has provided a feasible alternative and Option C, which is requiring less relief, and actually if that dock were centered in the parcel it would probably be relief free, or close to it. So I think it’s a better solution, rather than granting 100% relief, regardless of the rights of the property and deeded rights and all that stuff. I would prefer to see it centralized on the lot, since it’s a recreation lot anyway. So I’d be opposed to it. MR. ABBATE-Okay. Thank you very much. Mr. Stone, please. MR. STONE-I’m troubled by this whole thing. I don’t want to have this Board put in a position of approving something that is still in debate and still subject to a lawsuit, and I really think that Mr. Andrews and his daughters, Susan Salvo and her sister, Nancy Ambrecht, should be allowed to pursue judicial relief before we get in the middle, because if we make a determination, that it’s okay, that certainly hinders their case, and they have stated that while official notification was given to the father who is the taxpayer and who has life tenancy, I would prefer to table this thing until such time that this is more resolved. I don’t believe, although because the courts have said you will do this, I don’t see anything that they really did any talking at the thing. There may have been some representation, legal representation, but I would prefer to wait, at this point in time. MR. ABBATE-All right. Mr. Underwood, please. MR. UNDERWOOD-I would have to disagree with Mr. Stone’s comment. I think that the judge clearly, in his summation at the end of this thing, suggested the fact that these people worked out this solution to the problem. It was not imposed upon them by the judge. This solution seemed to be the best way to deal with the problem as it presently exists on site over there, that the parties did agree to it, even though it wasn’t palatable, 18 (Queensbury ZBA Meeting 6/28/06) completely, to all the parties that this was the best solution here. I think that the people who are there this evening complaining that they were not given representation could have been a part of that. They could have gone. They could have voiced their opinions to the judge at the time. They chose not to do that. So, I mean, that’s their choice, and I don’t think that our decision here this evening really has anything to do with that. I mean, this was agreed upon by the parties. If they didn’t want to be a part of the solution, then that’s their problem. It’s nothing to do with us. I think in this instance here, the dock will be a better solution because it doesn’t cross over onto Mr. Jackoski’s property as it currently exists. We dealt with the previous dock last year when Mr. Miller brought it our attention, and I think that that may have been there for a long period of time, as suggested by the aggrieved party here this evening, but at the same time, you’re trying to work out something that has to do with many multiple parties, and if the vast majority of the parties have agreed upon this, then I think that that’s the decision that we should go with. MR. ABBATE-Okay. Thank you, Mr. Underwood. Mrs. Hunt, please. MRS. HUNT-Thank you. I have to agree with Mr. Underwood. Obviously a lot of time and effort went into this lawsuit, and at the end it says the court says you realize by consenting and joining in this stipulation, this ends the lawsuit, and they all agreed, and so I would be in favor. MR. ABBATE-Okay. Thank you very much. Mr. McNulty, please. MR. MC NULTY-Okay. This is a kind of very difficult situation and I think the parties involved have worked out what they can to the best of their ability, not necessarily leaving everybody or even anybody totally happy with the solution, but it strikes me as being a reasonable solution, and in this case, with the argument that’s presented in the application that one of the purposes is to maximize the amount of beach area that’s left unencumbered by a dock, such things, placing the dock on the property line seems to be a reasonable choice in this situation, and I’ll agree with the comment that the people, the Salvos and what not, taxpayer of record was notified. They had an opportunity to do something with the lawsuit when it was in progress. I can understand why they’re not happy with the situation, but I think the location is reasonable. It is much a benefit as it can be to all the parties involved, and I don’t see it being a detriment to any of the parties. So I’d be in favor. MR. ABBATE-Thank you very much. Mr. Urrico, please. MR. URRICO-Well, as everybody has said, this is a difficult case to absorb, and I think we have to go back to one of our prime tenants, which is to grant minimum variance necessary, and in this case I agree with Mr. Bryant, that I think Option C, where the limited amount of relief is requested or required is preferred in my opinion, and that would be what I would be looking at. MR. ABBATE-Okay. Thank you very much, gentlemen and ladies, for putting me in this predicament. Again, it looks like it’s going to be three and three, basically. MR. STONE-Well, Mr. Chairman, to help you a little bit, I’ll make it harder. If the Board feels that we shouldn’t table it, and I certainly don’t get any feeling for that, I would side with those two gentlemen who believe that the least variance is important, and therefore I can vote for Option C. MR. ABBATE-Okay. That’s fair, and that does help out. This is my position on the thing. It has gone to litigation. There’s no question about it, and a competent judge has reviewed the case and made a decision. As in any kind of lawsuit, there’s going to be one winner and there’s going to be one loser. Somebody’s going to be happy and somebody’s going to be unhappy. We have been provided a copy of the minutes of that hearing, and I am satisfied that there has been sufficient notice to property owners. I don’t have a problem with that at all. I’m bordering on the fact that this has gone through litigation, and the courts have not made any demands on us, I suspect because they know better, and now they have allowed the individual, specifically Mr. Jackoski, to come before the Board representing a total of nine other families other than yourself, a total of ten families, and plead his case. Mr. Jackoski has pleaded his case, and now it’s up to us to make a decision on the merits of the case. Having said that, based upon the record of the court, based upon the testimony this evening, I would support the application. Having said that, I’m going to move on and I’m going to close the public hearing for Area Variance No. 36-2006, and again I’m going to respectfully remind the members of the Board that we have the task of balancing the benefit of the variance 19 (Queensbury ZBA Meeting 6/28/06) against the impact on the area, as well as the fact that State statute spells out five statutory criteria that must be carefully considered in deciding whether to grant an Area Variance. Now, I’ll seek a motion, and when I seek a motion, I’m going to respectfully request that you make your motion with clarity. MRS. HUNT-I have a question of Mr. Jackoski. How would dock Option C affect the agreement? MR. JACKOSKI-We’d have to go back and start all over again. MRS. HUNT-You’d have to start all over again. MR. ABBATE-Okay. Fair enough? MR. ABBATE-Okay. Ladies and gentlemen of the Zoning Board of Appeals, I’m going to ask for a motion. MOTION TO APPROVE AREA VARIANCE NO. 36-2006 STEVEN B. JACKOSKI, Introduced by James Underwood who moved for its adoption, seconded by Joyce Hunt: Birdsall Road. The applicant is proposing to remove an existing 100 square foot dock and 4 dock piers and replace them with a single 120 square foot dock, and the applicant is requesting 20 feet of east side setback, and that’s Option A. It should be noted that this option was agreed upon by the majority of the parties that were involved in this process, that all the ten families were notified properly, and had ample time to comment on the process as was done in the judgment by the Warren County Court. We have to keep in mind in this instance here that this is an involved process because it involves parcels that are not waterfront property owners that have use of this property. It’s been agreed upon that the dock would be best placed where they are proposing it on the property line of Jackoski, and this would allow for the other nine property owners to have adequate beach front for them to utilize as agreed upon by all the parties involved, including Mr. Miller, too, who owns the property. Although this is a substantial amount of relief that is being requested here, that explanation isn’t because they want to use it as beach front property. As part of the agreement, they will be removing those piers over on the far side of the property that currently exist over there, and they will be, as the judge reminded them, rotating in the usage of boats on the west side of that dock. While the benefit could be achieved by the applicant by other alternative methods, this was the agreed upon one by the aggrieved parties in this instance. As far as an undesirable change in the neighborhood, a dock currently exists on that site that is more nonconforming than the new one that will be created. Whether the request is substantial, yes, we are giving them 100% relief, but as agreed upon, this is a very narrow beach front area. Whether the request would have adverse physical or environmental effects, no, there won’t be any that I can see, and whether the alleged difficulty is self-created, I think it’s reached a reasonable conclusion based upon the judge’s meanderings with the parties involved. So I think it’s reasonable. th Duly adopted this 28 day of June, 2006, by the following vote: AYES: Mr. McNulty, Mr. Underwood, Mrs. Hunt, Mr. Abbate NOES: Mr. Stone, Mr. Urrico, Mr. Bryant MR. ABBATE-The vote for Area Variance No. 36-2006 is four yes, three no. Area Variance No. 36-2006 is approved. MR. JACKOSKI-Thank you. AREA VARIANCE NO. 37-2006 SEQRA TYPE: II ANDREA PEEK AGENT(S): THOMAS R. FROST, JR. ZONING: WR-1A LOCATION: 108 ROCKHURST ROAD APPLICANT PROPOSES A 117 SQ. FT. RESIDENTIAL ADDITION AND RECONSTRUCTION TO EXISTING 2,805 SQ. FT. SINGLE-FAMILY DWELLING. RELIEF REQUESTED FROM MINIMUM FRONT AND SHORELINE SETBACK REQUIREMENTS OF THE WR ZONE. ALSO, RELIEF REQUESTED FROM CONTINUATION OF A NONCONFORMING STRUCTURE. CROSS REF.: SPR 29- 2006; TOWN BOARD OF HEALTH RES. NO. 8-2006 MEETING 12, DEFEATED WARREN COUNTY PLANNING: JUNE 14, 2006 ADIRONDACK PARK AGENCY: YES LOT SIZE: 0.30 ACRES TAX MAP NO. 227.9-1-11 SECTION: 179-13-030; 179- 4-030 20 (Queensbury ZBA Meeting 6/28/06) MICHAEL O’CONNOR & TOM JARRETT, REPRESENTING APPLICANT, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 37-2006, Andrea Peek, Meeting Date: June 28, 2006 “Project Location: 108 Rockhurst Road Description of Proposed Project: The applicant proposes partial demolition and expansion of an existing 2,800 sq. ft. single- family residence with attached garage. Relief Required: The applicant requests 1-foot of front setback relief (at the road), where 30-feet is the minimum and 11.1-feet of shoreline setback relief; both per §179-4-030 for the WR-1A zone. Parcel History (construction/site plan/variance, etc.): BOH 8, 2006: Resolution pulled, 4/3/06, for sewage disposal variances (see resolution). BP 2006-150: Issued 4/5/06, for a 504 sq. ft. sundeck. SP 45-2005: Approved 7/19/05, for a sundeck and handicapped ramp. Staff comments: The existing and proposed front (road) setback of 29-feet is an existing condition that the applicant’s propose to maintain. The shoreline setback is increased 5-feet in this proposal, existing is 33.9-feet and proposed is 38.9-feet. The house, existing and proposed, is 50-feet from the shoreline; the request for relief is from the decks that are attached to the house on the lakeside. Feasible alternatives may be reducing the size of the decks, or relocating or eliminating them, to increase the shoreline setback. The front setback existing and proposed requires 1-foot of relief, which is not substantial. The shoreline setback is an improvement of 5-feet, but the 11.1-feet requested could still be considered substantial. Site plan review is required as well as Town Board (local BOH) approval for the septic variances.” MR. UNDERWOOD-“Warren County Planning Board Project Review and Referral Form June 14, 2006 Project Name: Peek, Andrea Owner(s): Andrea Peek ID Number: QBY-06-AV-37 County Project#: Jun06-35 Current Zoning: WR-1A Community: Queensbury Project Description: Applicant is proposing to remove a portion of existing floor, walls & roof and add another course of block to existing foundation to increase minimal ceiling height in basement level. The project also includes removing a portion of existing deck to construct a dining area at first floor level, storage area below existing kitchen area & proposed dining area at basement level. Site Location: 108 Rockhurst Tax Map Number(s): 227.9-1-11 Staff Notes: Area Variance: The applicant proposes to remove a portion of existing floor, walls & roof and add another course of block to existing foundation to increase minimal ceiling height in basement level. Also, remove a portion of existing deck to construct a dining area at first floor level, storage area below existing kitchen area & proposed dining area at basement level. The addition is to be located 29 ft. from the front setback where 30 ft. is required, 38 ft. from the shoreline where 50 ft. is required. The plans indicate a new septic system is to be installed on the site at the road side of Rockhurst. The information provided indicates a variance from the local board of health it is not clear if this was granted. Staff recommends no county impact with the condition that the construction meets the septic system capacity and obtain all other necessary approvals i.e. DOH. County Planning Board Recommendation: No County Impact with Stipulation The Warren County Planning Board recommends No County Impact with the condition that the construction meets the septic system capacity and obtain all other necessary approvals i.e. Local Board of Health.” Signed by Richard C. Merrill, Warren County Planning Board 6/16/06. MR. ABBATE-I’m going to assume that the folks who are interested in representing Area Variance No. 37-2006 are presently at the table. Okay. Identify yourself, speak into the record and tell us who you are and who you represent and where you reside. TOM FROST 21 (Queensbury ZBA Meeting 6/28/06) MR. FROST-My name is Tom Frost. I’m an architect, and I’m the applicant’s representative, officially. I live in Saratoga Springs, New York. KEITH MANZ MR. MANZ-Keith Manz, Professional Engineer. I designed the septic system. I live in the Town of Wilton, Saratoga Springs mailing address, New York. MR. JARRETT-Tom Jarrett, Jarrett-Martin Engineers. I’m representing the stormwater system. BRAD PEEK MR. PEEK-I’m Brad Peek. I’m the applicant. I reside in Saratoga Springs, New York. MR. O'CONNOR-I’m Michael O’Connor from the law firm of Little & O’Connor, and am assisting the applicant. MR. ABBATE-Okay. Since you are represented by counsel, we will direct our remarks basically to counsel, if you will. Then if he desires, and if you wish to comment, you certainly may. Since you are represented by counsel, counsel knows the procedure, counsel, are you prepared to proceed? Please do. MR. O'CONNOR-Yes, but Mr. Frost is going to make the presentation. MR. ABBATE-Fine. MR. FROST-I guess some of the outlines that you read, some of the responses to the application that you read, I think pretty much describe what we feel is a fairly positive change to this residence. One of the things that really got the Peeks looking at something fairly serious to the building was not only its appearance and its physical condition, which is relatively marginal. It’s a lot of rock, a lot of systems that don’t work well, windows don’t, are old and very leaky, and those fairly simple things. It is a four season building. It does have a central heating system. They don’t live there permanently, but they could live there during any season if they wanted to. So they want to bring those parts of it up to Code. One of the problems that they have is that an important part of the structure, in terms of its livability, is the basement. It’s really a walkout full basement, walkout finished space. There currently is one bedroom down there now. There’s a bar, a fireplace, and it has a head room, there’s something like, I think it’s six ten, I think, or something like that, anyways, very marginal head room. So one of the things that Brad wants to do with this house is raise the first floor, or the main floor of the house to give himself eight inches more head room downstairs. That entails removing the first floor walls and roof and adding a layer of concrete block to the basement floor, putting a new flooring system in, and then re-building the house above that. All of this will enable him to build something that will be substantially more sound, will be able to be insulated to Code, proper windows in it, get better head room in the basement, get a roof that needs to be replaced anyway, get a new roof, maybe add a little architectural elements to the roof to enhance it a bit, and that’s really what started driving, I think, the reason to even be here. One of the spaces that needs, that they don’t have, they don’t have a dining room space. They’re going to fill in a little corner in the northeast part of the building to do that, and then remove an existing deck that’s off the master bedroom, replace it with one that has a roof on it. Also part of what they want to do is remove, the current garage is in the lower level, and you drive into it from the south end of the building, but to get to it, you’re going down from Rockhurst Road down along side the building with a big paved area, and then of course there’s back out turn around area at the garage when you get to it. They’re turning that garage into a bedroom, and what that effectively does is remove all the paving from Rockhurst down to the lower level of the building. They will keep a paved area at the very top, up by Rockhurst. That will be just a parking area, but the rest of the existing impervious area that represents a driveway is going to be remove and replaced with grass. So that’s a benefit. Moving the building back, we’re not physically moving the building, but we are removing a covered deck and adding a covered deck, but there’s a net increase of distance from five feet from the lake that happens in that process. The rear yard setback is already a given, and we’re not changing that. We’re asking to have that approved. I’m trying to think of what some of the other things are that they’re doing. There is, on one end of the basement, it would be the south end of the basement, right now, underneath the existing kitchen which is on piers and has dirt underneath it, they’re going to excavate that out a bit and create under that in the proposed dining area a storage space, which will be under there, and that’ll be purely for storage of dock equipment, kayaks, canoes, that 22 (Queensbury ZBA Meeting 6/28/06) kind of stuff, furniture that you’d use in the summertime would go in there. That’s not living space and it will not meet Code for habitable space. We do have a power point thing here, and we assume it’s working. I can just walk you through this quickly. North is to the right on this, and of course the water is down at the bottom of the site plan. You can see the dock, the U-shaped dock that’s there. The yellow portion of it is the existing building footprint, and the lower left hand corner of that, which would be the northeast part of the building, you can see there’s a cut out in that corner. That’s where the dining room would go. What’s called the upper deck, which would be on the left end of the building, on the front side or on the lake side, that’s the deck that’s outside of the master bedroom, that’s the one that’s going to be removed and replaced with a covered porch, and then you can see right in the middle of the residence on the lakeside there’s a thing that says roof, and that is an existing covered sauna deck kind of thing, and that’s being removed. The wood deck’s being removed, and the lower left hand corner of the site, there’s an odd shaped thing called a wood deck, and that’s already been removed, and you can see the driveway starting up at Rockhurst and how it kind of comes at the house and then goes toward the left or towards the south and wraps all the way down to the south end of the house to the paved parking area. All of the driveway part of that is going to be removed. I think if you go to the next plan, this is the proposed residence. We’ve replaced the driveway with what looks like some kind of aquamarine water or something, but that’s grass, and at the top off of Rockhurst there’s a light gray. That’s existing paving, and a darker gray, that would be additional paving. There would be no garage. That’ll be just a parking area at the top, and then in the existing residence, you can see the red, which is new construction, and new footprint, I guess we’d call it, in the lower right hand corner, that is the new dining area, and in the lower left hand side facing the water, that’s the new covered porch off the existing master bedroom. The reason that the house shows so much yellow, which is representing reconstruction, is that’s the portion of the house that Mr. Peek is going to remove and replace. That’s the portion he’s going to raise up eight inches. The left hand portion of the house, which is the white under the word “existing”, that is not going to be changed. That is the master bedroom, and it’s already raised up a bit, above the existing first floor, other than the roof line, change that. Okay. This is existing basement floor plan. You see the garage to the left. There’s a bedroom down there facing the water. The play room faces the water, and that’s a walkout. There’s a mechanical and storage area in the left of the main part there, and there’s a mechanical room to the left, and then stairway you can see in the back of the basement goes up to the second floor, sort of a bar in there next to that mechanical room. On the upper right hand side of this floor plan you can see where the chimney sticks out there on the north wall. That dotted rectangle on the northwest part of the house, that’s the footprint of the kitchen up above. That’s what’s right now on piers and just has dirt under it, and then this is what they’re planning to do to the basement, turn the garage on the left hand side into a bedroom, remove the existing bedroom that was sort of in the middle there and that gets revised into a bathroom, and then the play room basically stays the same, and underneath the existing kitchen and the proposed dining addition will be a storage area that’ll just be a concrete block, probably a rat slab underneath it with a door to store stuff in. Okay. The main floor, there’s an entry on the top side there. That’s how you walk into the building. The existing kitchen on the right hand side, the great room in the middle. There are two bedrooms, the one facing the road and then a bathroom facing the lake, and probably got one of the nicest views that you can get from a piece of porcelain. The bedroom on the left is the master bedroom and it’s up a little, it’s up about four feet above the great room level, and of course has its own bath and closet. The deck outside the bedroom is the existing piece that’s going to be removed and re-built as a porch, and then off the kitchen you can see a deck and that’s the location of the dining room which will pop up on this next slide I think. So the dining room fills in that corner. We fill in a little corner of the entry to square that off, and then there’s a change to that porch off of the bedroom. This is just a section through the house and the site and it shows basically what’s going on with the height. The dotted line in the top of the picture represents a dimension of 28 feet above grade, almost as if you put a 28 foot deep blanket out over the whole site. That’s where the top of it would be. The proposed addition, the proposed new roof will still be a couple of feet below that. So there’s no intention to require a variance to that part of the Zoning Code. These are just shots of the existing building. This is the corner where the dining room’s going to go. The kitchen’s on the right hand side there, and this is looking down over the roof that you see the hot tub down below on that sort of semi-circular deck, that whole thing is being dismantled and the roof will go with it, and this is a view from the southeast part of the site looking up towards the existing deck that’s off of the master bedroom. That’s the one with pipe, those E-shaped pipe supports, that that’s going to be removed and be replaced, and the roof over the hot tub is that thing in the center of the picture there, down below the main level. This is the garage end, the south end of the building, which would be changed to a bedroom down below, upstairs it won’t be changed, and this is the Rockhurst side of the building, in the foreground is the master bedroom, and then the 23 (Queensbury ZBA Meeting 6/28/06) whole, there’s a bedroom just beyond that with the double window kind of half open and then you can see the entry just beyond that, and that driveway, by the way, that was in that picture, is what’s currently going to be removed, that whole thing there, going down to the garage door to the lower right there. Okay, and this is the existing basement walkout, for which, when we re-do the floor structure above, we should be able to get rid of that beam that’s sitting on top of that pipe column and get the whole ceiling up another eight inches. It would be a great improvement to livability and actual code situation of that space. This is the relief required. I think it was pretty much outlined. You know what that is, and these are just a graphic of what we’re asking for, probably don’t need to dwell on these either. This is sort of a summary of what we’re accomplishing by this, reducing the hard surfacing that we’re proposing to put in a new septic system to replace the old one which is located somewhere under that existing driveway. No one’s really sure of the condition of it. Some stormwater basins on the site, increase the shoreline setback by five feet, otherwise not make any changes to setbacks and increase the head room down in the walkout basement. All right. MR. ABBATE-All right. Anything else before we proceed, gentlemen? Okay. Then I’m going to ask members of this Board if they have any questions concerning Area Variance No. 37-2006. Before I begin, I’d like the record to reflect the fact that a site plan review is going to be required, in view of the fact that it’s in a Critical Environmental Area, and this is an expansion of a nonconforming structure. Having said that, ladies and gentlemen of the Board, do you have any questions? MR. STONE-Sir, how do you spell the word, used about three times, raised? MR. FROST-Well, I would spell it both ways. MR. STONE-Okay. So it is going to be torn down and then. Okay. MR. FROST-It’s going to be razed to be raised. MR. STONE-Okay. I wanted to be sure. That’s all. MR. BRYANT-I have a question for Staff, Mr. Chairman. MR. ABBATE-Yes. By all means. MR. BRYANT-Okay. That circular deck that’s shown on the back, it’s a deck and it’s not a patio. Why was it never included in the calculation of the setback. My understanding that a patio doesn’t require, doesn’t affect the setback, but a deck, any kind of deck, would affect the setback. MRS. BARDEN-That’s at grade, and if it’s at grade, it does not. MR. BRYANT-It’s at grade? MRS. BARDEN-Yes. MR. BRYANT-Can you tell me what Section that’s in? MRS. BARDEN-I’m not sure that that’s in a Section. I think that’s a determination that’s been made by the Zoning Administrator when he determined shoreline setback. MR. BRYANT-It’s my understanding from a previous application on the lake, relative to a dock, not a dock but a sun deck kind of scenario, they talk about deck versus patio, and even a deck on the grade would require setback relief where a patio would not, and that was the whole discussion about that particular application. I don’t remember the application in particular, and they ended up approving their sun deck or whatever they were building, okay, but it’s my understanding that any kind of deck requires relief if it’s in that zone. MRS. BARDEN-The shoreline setback that is identified is the second, the deck off of the garage, not this one, on your plan, the shoreline setback is identified as the deck with the roof overhang is the shoreline setback. MR. BRYANT-Yes, I know, that’s my question exactly. It wasn’t initially, and it’s not being recognized now. 24 (Queensbury ZBA Meeting 6/28/06) MRS. BARDEN-They’re removing the roof on the circular deck and the deck is at grade. So it’s not considered. MR. PEEK-We’re removing that deck, too. MR. BRYANT-It says that it’s going to remain. MR. PEEK-No, the upper deck. MR. BRYANT-I’m assuming it’s going to remain. The circular deck is going, too? MR. FROST-Along with the hot tub that’s on it and the roof that’s above it. MR. STONE-That whole thing. MR. URRICO-My concern is that we’re going from a shoreline setback of 33.9 feet to 38.9. I think we’re going in the wrong direction. Is there something that we can do? There’s an increase of five feet in the proposal. MR. O'CONNOR-The relief decreases. The required is 50. The existing is 33. After construction the setback will be 38 feet. So we’ve improved it by five feet. MR. URRICO-Okay. My apologies. MR. UNDERWOOD-Is it currently year round residence now, or is it just seasonal at the present time? MR. PEEK-It’s insulated and it has central heating. We don’t use it for that. MR. UNDERWOOD-I assume you’re just using it in the summer. MR. PEEK-Yes, we use it in the summer. MR. ABBATE-Any other questions from members of the Board? MR. UNDERWOOD-My only question would be this. I was at the Town Board meeting and I went to listen to what they said at the septic, and I know they weren’t happy about it and they didn’t reach a resolution as to what was going to happen with the septic, but I would ask your engineer, you know, we have a 100 foot setback from the lake, and you’re going to be at 88 feet, I believe, is essentially what it amounts to here. That’s probably the best case scenario you could achieve on that property, as it exists. Are there concerns about the fact that it is that close, if you’re going to go to year round usage on it? I mean, with the volumes increasing? MR. MANZ-Yes, Keith Manz, again. I’m not concerned with it being 88 feet because, Number One, it’s an Eljen system which has the two layer system. It’s treated once through the bio mat and secondarily through the sand, six inches of concrete sand underneath it, and it’s going to be much better than what’s there now. Apparently it’s been there since ’58. It’s a seepage pit or drywell in the ground, and it’s, I’m going to be doing an analysis of the condition of whether it’s failing or not, but allegedly it is, or it’s about to, so it’s not working properly, let’s put it that way, right now. MR. O'CONNOR-We are also amenable to doing a belt and suspenders with that, and if the Town Board requires it, we may pre-treat it before it goes to the Eljen system. It’s going to be a great improvement over what’s there now. You’ve talked, Keith, why don’t you talk about the pre-treatment. MR. MANZ-Yes. In lieu of the septic tank, one option is to use or (lost word) singular biokinetic system which basically what comes out of this is secondary effluent, and that would go through the Eljen system after that, which would treat it basically two times more, and this could really go directly into the ground being the secondary effluent out of this, in lieu of septic tank. So that’s one option we’re considering when we go back to the Town Board for those variances. MR. STONE-Is the Town Board, do you believe, ready to reduce the requirements for an advanced system, which I agree you’re talking about, and right now Town Code does not reflect the improvements that have been made in on site systems. Do you think they will go with 12 feet of relief? 25 (Queensbury ZBA Meeting 6/28/06) MR. MANZ-Well, that’s the smallest system you can fit on that site and it’s basically one foot off the property line, meaning the road side property line. So I don’t know what else you could do, short of using the existing system, which is in very. MR. STONE-I would wish you well. I have been involved in on site systems as a volunteer, and I would wish you well. If we could get the Town Board of Health to understand that there are some very good on site systems that then they don’t need some of the relief that we’re talking about, but we don’t have that yet, obviously. As I say, I wish you well. MR. O'CONNOR-The Town Board does appear to recognize some of those. They had one the other night that was a Pete system, and they accepted that and granted variances. I don’t actually remember the footage that was required, but it was of the same circumstances, and we’ve done one with the aerobic pre-treatment before it goes into the Eljen, and they gave us variances on that. I think at that time we were 77 feet from the lake. MR. STONE-Good. I’m glad to hear that, Mr. O’Connor. MR. O'CONNOR-We really didn’t come necessarily fully prepared to talk about the septic, because we know that we’ve got to come here and we’ve got to go to site plan, and then we’ve got to go to the Town Board, and the Town Board is the one that has the authority and discretion to either grant or not grant the septic variance, but we’re prepared to offer one that will be a significant improvement over the existing system, and we feel confident about that. MR. ABBATE-Okay. Members of the Board, do we have any other questions? If not, I’m going to open up the public hearing for Area Variance No. 37-2006, and do we have any folks in the audience who would like to address this? Would you be kind enough to raise your hand so I can recognize you. Yes, sir. Would you be kind enough to come to the table, speak into the microphone, and identify yourself and your place of residence. PUBLIC HEARING OPENED JOHN SALVADOR MR. SALVADOR-Good evening. My name is John Salvador and I’d like to comment on this. Firstly, I’m happy to hear that you stated that this is in a Critical Environmental Area. I would like to address two issues, one, the front yard setback, and second is the wastewater system. Our Town Code Section 179-1-030 talks about compliance required, more restrictive provisions to prevail. No land use or development shall be undertaken or maintained except in conformity with all provisions contained in this Chapter relating to both the zoning district and the land use area in which the land, water, site, structure or use is located or is proposed to be located and in conformity with the permit requirements of Article 16 Administration. Where this Chapter is more restrictive than covenants or agreements between parties or other plans or other rules or regulations or ordinances of the Adirondack Park Agency, the provisions of this Chapter, that is 179, shall control. I would think, conversely, if there are covenants and agreements between parties that are more restrictive and are part of another plan than this Town Code, they would be controlling. I have a copy of the deed here, and this is where covenants and conditions are spelled out, and this deed refers to a plan that has been approved, and I have copies of it here, and this is the plan for the subdivision of Rockhurst, the whole peninsula of Rockhurst on Lake George, and their deed refers to this plan. The deed refers to this plan, and it talks about some things that shall not be done. One detached family dwelling not to exceed two and a half stories in height and a private garage of not more than two cars. I think we’re within that parameter. All sewage disposal systems shall be installed on the rear or roadside of the premises. No building shall be nearer than 12 feet to the rear lot line, the rear lot line being the nearest boundary line of the 16 foot road, with the exception of Lots 14, which doesn’t apply to this. No building for residential purposes shall be erected nearer than 7 feet side lot line. No garage shall be erected nearer than four feet. Now, the grantor, the originator of this subdivision, accepted and reserved the right of egress and ingress and the necessary easements over and upon the rear or roadside of the premises hereby conveyed for the purposes of installation and maintenance of public utilities. This plan shows that easement to be 10 feet wide. The foregoing covenants and restrictions shall be deemed to run with the land and be perpetual restriction of the use of the premises hereby conveyed. So I think we have to pay attention to that 10 foot zone in there, and that’s where we measure the setback from, not the road. Further, our Town Code Section 179- 5-110 states, and this is entitled Sanitary Requirements for Waterfront Residential 26 (Queensbury ZBA Meeting 6/28/06) Districts, which we are in. Any increase in floor area of a principal structure serviced by sanitary sewage facilities of any kind that is located in a Waterfront Residential District, and which requires a building permit, shall conform to the requirements of Chapter 136 of the Code of the Town of Queensbury. I think the system they’re proposing does not conform to the Town Code, and therefore they would need variances for that. Not only its location, its type, everything about it. So thank you. MR. ABBATE-Thank you, Mr. Salvador. Your comments are duly noted. Thank you very much. MR. SALVADOR-I have copies of all of this, if you need it. MR. ABBATE-If you wish to submit them, we will be happy to accept it. Do we have anyone else in the audience who would like to address Area Variance No. 37-2006? Would you be kind enough to raise your hand please? I see no others. Would the appellants and attorney please return to the table. MR. UNDERWOOD-I have one letter. MR. ABBATE-All right. Our Secretary will read into the record a piece of correspondence, please. th MR. UNDERWOOD-I have one letter that was received on June 28 from the Lake George Association. It’s addressed to the Community Development Office. Comments RE: Andrea Peak, 108 Rockhurst Road. “I question the agenda stating that the applicant is adding 117 sq. ft. and requesting relief from a shoreline setback, when in fact additional sq. ft. may not have been included (the applicant will eliminate one roofed deck but create another, the storage area of approximately 287 sq. ft. was not in the newly constructed sq. ft. nor was the entry way addition (the FAR calculation was not in the file when I reviewed it and it could not be faxed to me, so my calculation of a FAR of 24.9% cannot be confirmed). I just checked the agenda again, and there is no indication that anything is being added except the dining room of 117 sq. ft. I presume because the FAR is not on the ZBA agenda, it has been calculated less than 22%? From what I see in the file, the entire existing foundation will remain as is (except one block will be added to increase the height). In contrast, the window schedule would indicate that there will be changes to the basement windows on the lakeside and obviously the garage door will be replaced and a new storage area will be constructed on that level. Will the foundation be replaced on these two elevations? Should this construction project actually be considered new construction? Is the renovated garage designed for two bedrooms or st one with two exits (one for going upstairs to the 1 floor and the other for going up/down (somewhere?) from the playroom (bathroom accessed from the playroom)? From the first floor there is a stairway that is going up from the hallway outside the master nd bedroom (but there is no proposed 2 floor in the application). From my interpretation of these drawings, will the home have 4 different levels? I saw no elevation drawings in the file, so I don’t know what the actual building looks like (application states a basement st and 1 floor only). Permeable surface calculation has a decrease of 117 sq. ft. in the porches/decks (which identifies the conversion of the deck to the dining room) although there are indications on S1.1 that other construction should affect this calculation (addition of an 11’ 8” x 24’ 4” storage area on ground level and a new roof on a deck (with removal of another deck roof)). In the file I did not see the location of the new septic, although I am told that it was in the file (location not identified on copy of Survey Map dated 5/18/06 nor Proposed Site Plan S1.1). Thank you for your careful review of all proposed development on this congested peninsula, as all development will impact the quality of Lake George’s water. Sincerely, Kathleen S. Lindberg Bozony Land Use Management Coordinator” MR. ABBATE-Thank you, Mr. Secretary. Gentlemen, would you like to comment on the comments? MR. UNDERWOOD-And I have one more just short one. MR. ABBATE-All right, please. MR. UNDERWOOD-This was a record of phone conversation between Maria Gagliardi, Planning Office, and Kathy Miller, who’s a neighbor. Ms. Miller states she would like to have the public hearing held open as the “file was lacking key information” such as Floor Area Ratio calculations, elevations, etc. She is also “concerned about the Zoning Office’s vision for Rockhurst Point”. That’s it. 27 (Queensbury ZBA Meeting 6/28/06) MR. ABBATE-Okay. Gentlemen? MR. O'CONNOR-I’d like to respond. Let me respond first to comments from the speaker from the floor. I think we’ve all agreed many times here that restrictive covenants are a private matter, and not something that the Board tries to enforce or take part in. So I won’t go into too much depth there. I do take exception to his understanding that you would measure a setback from a supposed utility easement as opposed to the property line. We’ve always measured setbacks from the property line. There are no public utilities that I’m aware of within that 10 feet. Hopefully someday there will be public utilities and at that time accommodations would be made, and I would hope that one of those would be a public sewer system and we would do away with the septic system which is the only thing that we’re actually placing within that 10 foot area, nine feet of it, and probably some of it is not the actual structure, the system itself, but the sloping that goes away from the system. I did not understand, I guess he’s bringing to your attention that we will need septic variances and we agree with that, and we would presume that if you were to approve the application, you would condition it upon us obtaining all necessary variance to put a conforming septic system on the property. We’ve acknowledged that we know that we have to go to the Town Board for that. So I don’t know really know where that is. I have a Floor Area Ratio which I think was submitted to the Staff, and the Floor Area Ratio on this actually improves a little bit. The existing Floor Area Ratio right now is 21.4, and if this construction proceeds, it’s 21.1, both of which are under the 22%, which is different than you hear on a lot of these applications where people come in and ask for expansions or to tell you that they’re going to re-build one of these homes where they try to go above the Floor Area Ratio. So the applicant was aware of that and did his best to make sure that he didn’t exceed that. The comments by the LGA, as to permeability, I’m not sure if I understood that. My understanding is the permeability of the lot increases by nine percent, I think. It goes from, presently right now the nonpermeable area is 38.4%, and that will decrease by 9.7% and it will be 28.75% when they’re done. We think that the areas that are required to be included in the Floor Area Ratio were included. I didn’t make those calculations. Mr. Frost’s office made those calculations, but they were approved by Town Staff. Probably that storage area was not included, and it’s not living space under our definition, and typically it’s not included, and if you take a look at the structure of it, I don’t think there’s any issue there, and I’m not sure if it was included or not included, Tom. MR. FROST-The storage area downstairs was, the new storage area was not included in the FAR. One of the things that’s deceptive about the FAR, and the way that we understand it’s calculated, has to do with roof overhangs. The guidelines for including or not including roof overhangs, in most areas that I’ve been at, when they talk about a footprint and the area of a footprint of a house, it includes the roof overhangs, whether they’re one foot, two feet, or whatever they are. They’re included in the footprint. In these calculations, it’s been our understanding that if the roof overhang is 18 inches or more, it’s included in the FAR. In this case the roof overhangs are either three feet or two feet. So all the roof overhangs are well over that 18 inches. So, in the existing FAR, all the roof overhangs are included in the square foot calculations. When we re-build the roofs, the overhangs will be less than 18 inches. So none of those overhangs will be included in the FAR. Now, it’s a technicality, but it’s the rule that we’re going by, and it reduces the Floor Area Ratio by quite a lot to take all of those overhangs out of there. The overhangs combined are larger than the area of this new dining space we’re putting in, for instance. So it’s a significant piece of that, and it would be missed, I think, by somebody coming in and just reading the plans. The other thing that she mentioned in that letter was, is this a four story building, and it’s a four level building. She’s right about that. The south end of the building which has the garage and the master bedroom above it right now, is approximately four feet higher than the basement and the first floor of the main house right now. So you’d go into the basement. You’re going to go up about four feet to get to the level of that new bedroom that’s going to go in where the garage is, and when you’re on the first floor, you go up another four feet to get to the master bedroom. So you have this sort of thing going on in there, and there actually are four levels to it, but not four stories. MR. ABBATE-Okay. MR. UNDERWOOD-Susan, would you go back to the picture showing the garage and how far it goes up again? MR. O'CONNOR-The other comment that you made that I would respond to directly is how many stairs there are between the main floor and the basement area. There’s one staircase. There are some other smaller interior stairs to accommodate that change in grade, going from the basement area up to the garage area. 28 (Queensbury ZBA Meeting 6/28/06) MR. FROST-There is a separate staircase from the garage up to the main floor area now, and there will continue to be a separate staircase from the new bedroom up to the main floor, when it’s done. So there really are two staircases going to that lower level. She’s right about that. MR. ABBATE-Okay. All right, ladies and gentlemen of the Board, do we have any other questions for this particular Area Variance, 37-2006? MR. BRYANT-I’m a little concerned about the height. You’re right there at the level, and the reason I’m concerned is because the property, the nature of the property from the road to the shoreline there’s a 20 foot drop in elevation. So it could easily, an error could occur, (lost word) contractor’s error recently. Do you know where I’m going? MR. FROST-Yes, I understand what you’re saying, that it’s a real concern of ours. That’s a difficult thing to measure, of course, in the field at the present time, or out there with tape measures and that kind of recording. Right now, the way this is planned is that the new roof will be 26 feet, as opposed to 28 when it’s complete. That includes the eight inch raising of the existing building, basically, but that’s something that’s going to have to be really nailed down, and in the working drawings, we would have to be very careful that that’s adhered to, and we would do that, and of course Mr. Peek will hire the most expensive and most competent contractor in the North Country and make sure that it’s built according to the drawings. Your brother. MR. UNDERWOOD-If you look at the picture up there now, is your roofline going to be basically the same level all the way across with what’s over the garage, in essence? MR. FROST-No, it’ll still be lower than what’s over the garage because really all we’re doing to that existing roof that you see in the center of the picture is raising it eight inches. If we can get a little more pitch out of it and stay, you know, around that 26 feet, we will do that, but essentially the configuration of the roofs will be basically the way they are now. MR. O'CONNOR-There’d still be two levels of roofs. MR. ABBATE-Gentlemen, ladies, any other questions? Okay. Then I’m going to, if you have no other questions, I’m going to close the public hearing for Area Variance No. 37- 2006. PUBLIC HEARING CLOSED MR. ABBATE-And I’m going to ask the members of our Board to offer their comments, and I’d like to inform the folks in the public that the comments of the Board are directed to the Chairman and are not subject to debate. So I’m going to ask the Board members to offer their comments. Again, I respectfully reminded you earlier about precedence mandates we concern ourselves with the evidence, etc., because of an intelligent judicial review. I don’t think I have to go through that again. Having said that, do I have a volunteer to comment on Area Variance No. 37-2006? MR. URRICO-Having been corrected about my glasses and the wrong way I was looking at this, I believe this is a better plan that what existed there before. I think we’re gaining some distance to the lake. I think there are some improvements being made to the property, and what I can see, it’s a well thought out and well presented plan. I would be in favor of it. MR. ABBATE-Okay. Thank you very much. May we go to Mr. McNulty, please. MR. MC NULTY-I guess I have to agree with Mr. Urrico. On the one hand, I’d prefer not to see any variances, but it’s kind of difficult to accomplish on some of these lake front lots, and at least this is not a proposal to double or quadruple the size of the house. It’s a proposal to basically re-work what’s there, and we’re gaining some improvements on the edges as we go. Obviously there’s a concern about the septic system, but that concern belongs to the Board of Health, not to this Board. So with the confidence that the Board of Health will look at that and properly resolve whatever needs resolving on it, I think I can be in favor. MR. ABBATE-All right. Thank you, sir. Mr. Bryant, please. 29 (Queensbury ZBA Meeting 6/28/06) MR. BRYANT-Thank you, Mr. Chairman. I think this is a well-conceived, well designed project. I agree with Mr. McNulty. There are improvements all around by eliminating one of the main driveway there, you increase permeability, and you also increased your setback from the shoreline. So I think you’re doing as much as you can to improve the situation, rather than what we normally get. So I’m going to be in favor of this one, actually. MR. ABBATE-Thank you very much. Mrs. Hunt, please. MRS. HUNT-Thank you. Well, I have to agree with my fellow Board members. I don’t think the benefit could be achieved by any other means feasible to the applicant, and I don’t think it’ll be an undesirable change in the neighborhood character or properties, I think it’ll be a positive one. I don’t think the request is substantial. As has been noted before, there have been some improvements, and it’s only self-created in the fact that they want to improve the building, and I would be in favor. MR. ABBATE-Thank you, ma’am. Mr. Underwood, please. MR. UNDERWOOD-I would basically be in agreement, too. I think that in this instance here you’re not asking for the moon or the sun, as most often occurs up here. I think it’s, you know, the amount of relief that you’re requesting, the 117 square feet, is reasonable. The reconstruction of the home by raising it, I don’t think that’s any big deal either. I don’t think it’s going to have any real change on the neighborhood or impact on the lake as far as that goes. I would wish you well with your proposal for your septic solution here. I think that’s the logical way to put it, and if, indeed, at some point in time, the Town gets their act together and actually puts a system in out there for the Point, which has obviously been needed for many years, you can hook up to that at that point in time. You’re still going to have to go to site plan review on this. MR. ABBATE-Right, correct. MR. UNDERWOOD-And I think what you’ve proposed here is pie in the sky. They may not buy in the other bedroom and the garage and things like that. So I mean that’s something you’re going to have to deal with and figure out if it’s worth your while to do all the improvements if you don’t get everything you want, but that’s not our domain here, neither is the septic, but I think it’s reasonable what you’re asking. MR. ABBATE-Thank you. Mr. Stone, please. MR. STONE-Thank you, Mr. Chairman. I think my fellow Board members have adequately spelled out my position. I would just re-echo or echo what Mr. Underwood just said. I do wish you well on the septic system. I have spent a great deal of my volunteer life working on on-site systems or talking about them, at least, and I really would love to see the Town recognize the advances that have been made in new septic systems. Having said that, I would also want to comment about Mr. O’Connor’s understanding of the warning about height. We’ve said it. It’s on the record and that’s good. I also, one I heard that was very good was that the semi-circular patio, or where the hot tub is, is going and that’s certainly a desired change, as far as I’m concerned. So the proposal as I hear it, as it has been presented, I am in favor of. MR. ABBATE-Thank you very much. I, too, agree with my fellow Board members. I think there has been a tremendous amount of work by experts in the field, as indicated by the gentleman sitting before us this evening. I certainly would support the application. I’m going to move on, and I’m going to close the public hearing for Area Variance No. 37- 2006, and I’m going to again respectfully remind the members that we have the task of balancing the benefit of the variance against the impact on the area, and please include, in any recommendation or motion, your five statutory criteria. I would also request that you include the fact that it requires a site plan review and as a condition also that this application meets all conditions, particularly the approval by the Town Board. Having said, is there a motion for Area Variance No. 37-2006? MOTION TO APPROVE AREA VARIANCE NO. 37-2006 ANDREA PEEK, Introduced by Allan Bryant who moved for its adoption, seconded by Lewis Stone: 108 Rockhurst Road. The applicant proposes partial demolition and expansion of an existing 2800 square foot family residence with attached garage. The relief requested, the applicant requests one foot of front setback relief at the road where 30 feet is the minimum and 11.1 feet of shoreline setback relief, both per 179-4-030, for the Waterfront Residential 1A zone. The applicant would benefit from the construction. It would be a 30 (Queensbury ZBA Meeting 6/28/06) major improvement to the existing house, and also it would give them the added height, ceiling height, by adding eight inches to whatever part of the building. As far as the character of the neighborhood, changing the character of the neighborhood, the effects would be positive. The house is in need of repair and work and the reconstruction would be a positive effect. The feasible alternatives. There appear, because of the size of the lot, that there are no real feasible alternatives. Is the relief substantial? The front setback relief or the road setback relief is mild. It’s not substantial. The shoreline could be considered moderate. However, it is an improvement from the existing condition which is a benefit. Will the variance have an effect on the physical and environmental conditions of the neighborhood, there will be positive effects, in so much as the removal of the driveway will increase permeability, and the reconstruction will also increase the setback from the waterfront. It is self-created. I do want to make one stipulation, though, and that is that it’s with the condition that the Board of Health approve any variances necessary for the septic systems, whatever needs to be done in that regard, and also you have to go to the Planning Board for site plan review. So, with that in mind, I move that we approve this. th Duly adopted this 28 day of June, 2006, by the following vote: AYES: Mr. Underwood, Mr. Urrico, Mrs. Hunt, Mr. McNulty, Mr. Stone, Mr. Bryant, Mr. Abbate NOES: NONE MR. ABBATE-The vote for Area Variance No. 37-2006 is seven yes, zero no. Area Variance No. 37-2006 is approved, gentlemen. MR. O'CONNOR-Thank you. Mr. Chairman, I’ve heard rumors that Mr. Stone may be leaving us. th MR. ABBATE-The 30 of June. MR. O'CONNOR-And though I’ve often disagreed with him, I thank you for your service. MR. STONE-Thank you, Mr. O’Connor, I appreciate it. OLD BUSINESS: AREA VARIANCE NO. 68-2005 SEQRA TYPE: UNLISTED NORTHEAST DINING & LODGING, INC. D/B/A THE GOLDEN CORRAL RESTAURANT AGENT(S): JONATHAN C. LAPPER, ESQ. & CHRIS ROUND – CHAZEN CO. OWNER(S): RICHARD & MONIQUE CUNNINGHAM ZONING: HC-INT. LOCATION: QUAKER ROAD APPLICANT PROPOSES CONSTRUCTION OF A 10,330 SQ. FT. RESTAURANT AND ASSOCIATED SITE WORK. RELIEF REQUESTED FROM MAXIMUM ALLOWABLE PARKING SPACES AND SHORELINE SETBACK REQUIREMENTS FROM WETLANDS. CROSS REF: SPR 57-2005 WARREN COUNTY PLANNING: SEPTEMBRER 14, 2005 LOT SIZE: 2.88 ACRES TAX MAP NO. 296.18-1-6 SECTION: 179-4-040; 179-4-030 JON LAPPER & CHRIS ROUND, REPRESENTING APPLICANT, PRESENT MR. UNDERWOOD-We have previously heard this earlier on and I think that we had significant concerns about the amount of parking proposed and also the setbacks from the wetlands that surround the property on three sides. Staff notes, I’m going to read those in, but I’m also just going to refresh people’s memory by reading the old Staff notes in, too, because I think they’re pertinent to what we’re going to do here tonight. MR. ABBATE-Fine. MR. UNDERWOOD-And I would like to see or hear from the applicants what the differences are. On the old ones: “The applicants propose a 10,330 sq. ft. Golden Corral restaurant and associated site work, including 154 parking spaces. The site is currently vacant with Army Corps wetlands present. Relief Required: 31 (Queensbury ZBA Meeting 6/28/06) The applicants request 60-feet of relief from the wetland setback requirements, where 75-feet is required in the HC-I zone, per §179-4-030. The applicant requests relief from the maximum allowable parking spaces in excess of 20% for the restaurant use, per §179-4-040. Parcel History (construction/site plan/variance, etc.): None Staff comments: The parking calculation for the restaurant is provided on the submitted site plan. 104 parking spaces are required for the use, the Code allows for additional parking spaces not to exceed 20% of what is required. The applicants are requesting 154 total spaces, which is an additional 29 spaces over the 20% maximum of 21 spaces. The 154 total requested is almost 50% more spaces than required by Code. The applicant’s justification for the increased number of parking spaces is due to the fact that they operate the same restaurant in Wilton which has 180 spaces, “and there are still times when the parking lot is completely full”. The Wilton site has 206 total parking spaces on the total 7-acre parcel; however these service the 354 seat restaurant AND a 61-room Super 8 Motel. In lieu of the excessive parking, consideration should be given to keeping an area reserved for additional parking in the future if needed. Or, a portion of the proposed parking area could remain unpaved. Another option is to reduce the size of the restaurant, and with that, the number of seats. The Golden Corral franchise offers three building sizes to tailor the land and building investment to the population, demographics and potential of the markets (Golden Corral Restaurant Franchising). These are 282, 384, and 468 seat facilities. The applicants could consider the smaller restaurant, requiring less parking, which may be a better fit for the size of the site and could increase the distance to wetlands. The required shoreline setback identified on the application was stated erroneously at 15-feet, the actual minimum requirement is 75-feet in the HC-I zone. The application states a proposed 13-foot setback, but the map shows 15-feet, this should be clarified. With that, the required relief is either 60-feet or 62-feet. It appears that the proposed driveway accessing the site is only approximately 100-feet from the existing driveway to the West into Mark Plaza. In §179-19-010, the driveway spacing standards for this use on an arterial road would be 550-feet. The Planning Board can waive the separation standards if the applicant can demonstrate that no negative impact on the transportation system will result in the relaxing of this standard. Or, a variance is required. The Board could ask that a site plan application be made to the Planning Board, so that one, coordinated SEQRA review could be done. The current proposal requests an area variance, site plan review, and a DOT work permit/curb cut permit. Given that a major component of this application is a significant request for additional parking spaces it is reasonable to ask questions relative to vehicle trip numbers and the applicability of a traffic study. Typically, these questions are investigated during SEQRA, which in this case, would likely be better performed in a coordinated review by the Planning Board.” MR. UNDERWOOD-I think in the interim they have reviewed that. Okay. I’ll read tonight’s in. STAFF INPUT Notes from Staff, Area Variance No. 68-2005, Northeast Dining & Lodging, Inc., Meeting Date: June 28, 2006 “Project Location: Quaker Road Description of Proposed Project: The applicants propose a 10,330 sq. ft. Golden Corral restaurant and associated site work, including 154 parking spaces. The site is currently vacant with Army Corps wetlands present. Relief Required: The applicants request 60-feet of relief from the wetland setback requirements, where 75-feet is required in the HC-I zone, per §179-4-030. The applicant requests relief from the maximum allowable parking spaces in excess of 20% for the restaurant use, per §179-4-040. 32 (Queensbury ZBA Meeting 6/28/06) Parcel History (construction/site plan/variance, etc.): SP 57-2005: Pending, for this project. Staff comments: On June 20, the Planning Board completed their coordinated SEQR review of the total project and issued a SEQR Negative Declaration (see resolution). Wetlands are present on three sides of the property. The setback relief required is from the wetland area on the southwest corner of the property to the structure. The request is 80% of relief (60-ft. of relief from the required 75-ft. setback). The property is located in the Lower Route 9 Corridor, and therefore, subject to the design guidelines of that area. “Currently the Lower Route 9 Corridor is characterized by an overabundance of asphalt, large stores with poorly landscaped parking lots, variable setbacks, limited plantings and no continuity.” A feasible alternative to the substantial variance request may be to move the restaurant back, increasing the shoreline setback, and orient it fronting the road. This would meet the design objectives of the corridor by having the, “store entrance located on the street frontage” and would maintain continuity with the surrounding businesses. The parking calculation for the restaurant is provided on the submitted site plan. 104 parking spaces are required for the use, the Code allows for additional parking spaces not to exceed 20% of what is required. The applicants are requesting 154 total spaces, which is an additional 29 spaces over the 20% maximum of 21 spaces. The 154 total requested is almost 50% more spaces than required by Code. The applicant’s justification for the increased number of parking spaces is due to the fact that they operate the same restaurant in Wilton which has 180 spaces, “and there are still times when the parking lot is completely full”. The Wilton site has 206 total parking spaces on the total 7-acre parcel; however these service the 354 seat restaurant AND a 61-room Super 8 Motel. In lieu of the excessive parking, consideration should be given to keeping an area reserved for additional parking in the future if needed. Or, a portion of the proposed parking area could remain unpaved. Another option is to reduce the size of the restaurant, and with that, the number of seats. The Golden Corral franchise offers three building sizes to tailor the land and building investment to the population, demographics and potential of the markets (Golden Corral Restaurant Franchising). These are 282, 384, and 468 seat facilities. The applicants could consider the smaller restaurant, requiring less parking, which may be a better fit for the size of the site and could increase the distance to wetlands.” MR. ABBATE-Okay. Thank you. Folks, apparently you have already approached the table. Would you be kind enough to speak into the microphone and identify yourself. MR. LAPPER-For the record, Jon Lapper, with the project applicant, Neral Patel, who’s the President of Northeast Dining and Lodging, and Chris Round from the Chazen Companies. I’d like to start off by apologizing for any inconvenience. I was at the Fort Edward Planning Board, and even after all these years, I can never predict how long these things are going to go. So I’m sorry that you had to wait for me. MR. ABBATE-Well, counselor, yes, you were late. You’re absolutely right, and you know that I’m considered structured to a fault. However, you also know I never allow my lack of flexibility to affect my judgment when it comes to you. I always temper it with humanitarian considerations. MR. LAPPER-I guess just to start with, we were here in the Fall, and at that time, the Board, my recollection was a little bit different than Jim, because I think that the Board was favorably disposed, in certain respects, to the application, and certainly in terms of why we located the building to block the side of Mark Plaza, and we’ll get into that, but in general, even though this wasn’t a Type I action for SEQRA. Based upon Staff comments, and the Board’s issues you determined that it should be referred to the Planning Board for a coordinated review. We went through a pretty detailed process with the Planning Board, looking at traffic studies, soils, wetlands, stormwater and the Town Engineer passed on it and the Planning Board did recently grant us a Negative Dec, after really a lengthy review. So we’re certainly glad to be back here. We characterized these variances, these two variances, as really relatively minor, and the 33 (Queensbury ZBA Meeting 6/28/06) reason for that is as follows. In terms of parking, Staff suggested maybe you could reduce the parking and have more green space and leave it as un-built or un-paved, and in this case, we’re not asking for a green space variance. So that site is able to accommodate the green space requirement of the Town and the parking and treat the wetlands. The reason that Neral is asking for the extra parking is quite simply it’s a popular restaurant, and he doesn’t want to create a situation where he’s got more parking demand than he has availability. Obviously Quaker Road is not a road where you can pull off on the side of the road and have on street parking. So he wants to make sure that he can handle the parking on his site, and that is simply the justification for the variance, that he knows from experience the similar restaurant in Wilton that he operates that with 154 spaces he’ll be able to handle the parking. In general, Chris will go into some of the explanation of the site plan to show you our justification, but in general, the way the site was designed is that all of the stormwater is treated in the rear of the site. There are stormwater filtration devices so it is treated before it is released back onto the property, and the wetland that we’re seeking a variance from, we’ve characterized it last time as a very minor wetland because it really is cattails that have developed in a drainage ditch from when Quaker Road was developed, but as I stated in the cover letter, generally the building setback from the wetland is because you want to make sure that you’re not adding any pollutants to the wetland, and because of the way the site is designed, it drains away from the wetland. It drains into this treatment facility that’s under the parking lot, and it’s not released into this wetland. So there’s no impact on the wetland itself. Ironically, there’s not a setback, this setback doesn’t apply to parking. So we could do pavement closer to the wetland. I mean, without a variance, the site could be re-designed so you had parking in the front of the building and the building farther back, but there would be no benefit to that. In both cases, the stormwater will be treated towards the rear of the site, released to the rear of the site away from this wetland. The benefit, however, of allowing the building to be placed closer to the front of the site is a very significant visual benefit because we’re looking at Mark Plaza, which I assume was done before site plan review in this Town, when you’re looking at the east side of that building, and I remember from last time that the Staff had some photographs. You’re looking at a loading dock, a bunch of wooden pallets that frequently I’ve noticed sit out there, a lot of weeds. It’s either partially paved or unpaved. It’s just very unattractive. So we’re trying to use this building, in terms of the design guidelines, in terms of the impact on Quaker Road, we’re trying to position this building so that it blocks the visibility of that really unkempt loading area on the side of Mark Plaza. If the building was moved back, you’re going to see what we’re trying to cover up, and instead you’d have parking in front of the building. So there was a comment about all the asphalt. If we put more asphalt on Quaker Road, and put the building back, it’s going to be more visible. We think this was designed as an attractive building. We’ve discussed with the Planning Board at the SEQRA meeting earlier this month that they’re going to want the architecture to be more Adirondack and Neral said he will do whatever they want in terms of colors and material. So what we’ve got there is our initial proposal and we’ve already discussed with the Planning Board at site plan review that the building will become more in the character of the Adirondacks. So it’s going to be an improvement visually for what’s there. Let me, at this point, turn it over to Chris and just let him give some of the details. MR. ROUND-Thanks. Jon’s done a good job of introducing the project. I know Mr. Bryant and Mr. Stone were not here the last time. So I will go back over just a few things. As Jon mentioned, we did site the building closer to Quaker Road, rather than set it back. I think the Route 9 Design Guidelines, which I think were really crafted speaking to Route 9 because of I think the realization that not a lot of buildings are going to be sited at the street on Route 9. They recognized that buildings would be set back and there’d be plaza style parking in front. In this case, what we’re trying to do is we’re trying to mirror what’s on the adjacent site. There’s a building basically at the street. We brought our building to the street and brought it as close as we could to the property line to do this, Jon said, is shield the view of that facility. What we did is these wetlands are Army Corps of Engineers wetlands. We are proposing less than one tenth of an acre disturbance. So we’re not required to obtain a permit from the Army Corps of Engineers because we’re below their permit threshold. We did consult with DEC because there is a large DEC wetland along the power lines in this area, and we consulted with DEC, and DEC indicated that they would not exercise jurisdiction and that they would not classify this as a DEC wetland. It’s just interesting that your Zoning Ordinance recognizes a building setback and specifically calls out New York State DEC wetlands and specifically does not cite Army Corps of Engineers wetlands, and I think the case is there is that the DEC does have a wetland setback rule. Army Corps of Engineers does not have a setback rule. Our setback is measured here at the building face. It is 15 feet from this wetland that is basically, if you were to look at it in the field, it’s this drainage ditch that runs along Quaker Road. We believe that was created at the time Quaker Road was 34 (Queensbury ZBA Meeting 6/28/06) built. Quaker Road was a fill. This site, as you see it, was filled during the 60’s and 70’s when Mark Plaza was constructed and when the Quaker Road was constructed. So what we’re trying to do is use that area of the site that has been filled, and because of that, we do not want to construct stormwater management structures off that disturbed area, and so what we’ve done is, you can’t see it on this plan, but you have it on your site plan. There is a very elaborate and very expensive stormwater management system. All stormwater is collected through conventional catch basins and then is metered or measured into a series of culvert pipes that provide volume storage, and then water is released from those storage pipes into what they call a storm filter system, which is a cartridge filter system in which went into great detail with the Planning Board. Basically it’s like barrel size filters that provide sand filtration of the stormwater to meet the New York State DEC requirements and that system’s over in this area, and then water is released consistent with the stormwater pollution prevent plan requirements to the wetland, and that’s a permitted and preferred treatment method according to the DEC, and so that’s how stormwater is being handled, and that allows us to use the site for parking and not to create some pond or basin in the wetland areas. One of the reasons we have the building sited here is, as Jon mentioned, is because there’s an existing fill right here. There is an existing driveway. If you’ve been to the site, you can pull into the site at this location, and you can access the site at this location. If we were to re-locate the building or relocate the driveway, we’d be required to fill a wetland, which would require us to obtain an Army Corps of Engineers permit. So we want to avoid that, and so we’re avoiding wetlands impacts to the extent that we can, and one of the other functions that we’re using, we’re using a retaining wall around this site, so that we can avoid our fill, in order to keep this parking pad at that location. I’ll just show you a rendering. I think there were some comments on the rendering previously, is that we do have a green space in the front of the site, and we haven’t yet talked about landscaping details, per se, with the Planning Board. They’ve asked us to look at, perhaps, some landscaping at the side of the building or adding some other types of species rather than a maple tree. They’ve asked us to look at white pines or spruces or something more in the Adirondack flavor. Rather than get into more site plan details, I’d rather maybe field some questions from you. MR. ABBATE-Sure. Board members, do you have any questions? MR. BRYANT-I have a question for Mr. Round. MR. ROUND-Sure. MR. BRYANT-When you were at the Planning Board, did they address at all stormwater management, or was it just an environmental review? The reason I ask that, on Quaker Road there in recent months there’s been a serious problem with flooding on Homer and Everts and problems with the actual storm flow that’s supposed to go underneath Quaker Road and then to the Jiffy Lube side and there’s been a major problem with that, okay. Basements flooded and so forth and so on. Did they address any of that? MR. ROUND-Yes, they have. I didn’t bring my whole file with me tonight. I was hoping to travel light, but we prepared a stormwater pollution prevention plan which is required for disturbances related with commercial facilities and that stormwater pollution prevention plan goes into the details that I try to brief you on, and with that you’re required to attenuate flow. What that means is during a storm event you need to control stormwater on your site so that it does not leave your site in any more rapid a fashion than it would under the current conditions, under the no build conditions, and so that’s what we’ve done. Engineers have reviewed that and signed off on that. The Town Engineer signed off on that. We’re also familiar with the Quaker Road project, the Homer Avenue. I know Warren County Soil and Water looked at that particular location and it’s a blockage of the culvert which is largely the culprit in that case, and it is a clearing of that culvert, and perhaps the culvert may be undersized, but that’s a part of the road system, and another thing to add is those, we’ve had some near record rainfalls in the last two years. It seems very highly unusual. We’ve had some 25, 50 and 100 year storms which you don’t usually see all at this time, and I know like Monday we got like nearly four inches of rain. MR. ABBATE-We did receive four inches of rain. MR. ROUND-And that’s a significant amount. I think that’s approaching a 50 year storm event. MR. UNDERWOOD-What were their concerns, did they have any concerns about the amount of traffic generated? I know you guys were saying. 35 (Queensbury ZBA Meeting 6/28/06) MR. ROUND-From an environmental perspective? MR. UNDERWOOD-Well, I know you guys have a high turnover rate at the restaurants, and it’s good for business and all, but I’m just wondering, with a single ingress/egress point, if that’s going to be a bottleneck. MR. LAPPER-We spent a lot of time on traffic, and the main benefit of this site is that it’s on a five lane road with a designated center lane for left turns. So we did a detailed traffic study and the Town Engineers reviewed it and we spent a lot of time talking about it with the Planning Board before we got the Neg Dec and they didn’t get to that point lightly. They had to be satisfied, but the other thing that Chris didn’t mention, the reason that fill was located where the driveway location is, that was something that, in terms of the distance from the traffic light, that was something that was put there as the intended place for the one curb cut for this site by the State and County when Quaker Road was expanded. So that’s there on purpose, but we certainly went through the traffic counts and the whole thing. MR. ROUND-Just to add to that, Jim, I know traffic was probably the Number One concern of the Planning Board, and I think Susan can chime in at any time. Generally with traffic you’re concerned with a number of issues. You’re concerned with capacity on the highway system, and I think we got the Planning Board very comfortable. Quaker Road is a huge pipe. Just think of it in pipe terms. Quaker Road is a huge pipe. There’s not a capacity problem on Quaker Road. The other issue is delay, when you’re entering and exiting the site, and the concern there was you’re used to those, you’ve heard those, the grade level of service in A to F fashion and A is excellent, and C and D is acceptable. E is approaching failure, and F. We’re operating at B’s and C’s with our driveway under the build condition. We collected traffic counts in a facility in Colonie that operates a Golden Corral and we suggested to use those numbers for our traffic generating numbers. The Planning Board said we don’t think those are accurate, so we want you to use these ITE rates, which are higher volumes from other stores that aren’t similar to ours. So we used those ITE rates. So we used a very conservative approach. One of the other concerns was. MR. ABBATE-Before you go to that, wasn’t the ratio 341 per hour or something like that? MR. ROUND-At a peak? MR. ABBATE-Yes. MR. ROUND-Yes, it’s a vehicle entering and a vehicle exiting at a peak rate on a Saturday PM peak approaches like 346. So the other concern was that we were going to block the adjoining driveway, vehicles entering our site would block the adjoining driveway. You can see on the photo there’s two driveways for the Mark Plaza site. The primary entrance is the entrance located further west. The secondary entrance is the one closest to our site. The concern there was our vehicles that were stopped to make an entrance into our site would block the driveway. We did a count, we did an analysis and a model that says, even during the peak periods, there’ll be no more than one vehicle stopped there. You know, it sounds incredulous, but there’s a number of gaps and just the rates the vehicles enter that you’re not going to have blockage of that driveway. The Planning Board had concerns about vehicles leaving our site making a left hand turn would cause additional accidents or would cause additional delay at the signal at Lafayette Street. We agreed to prohibit a left hand turn leaving the site. So we went the extra yard. We were very conservative. MR. ABBATE-It’s been addressed, is what you’re saying? MR. ROUND-Yes. MR. URRICO-What is the size of the Wilton restaurant? NERAL PATEL MR. PATEL-It’s identical. MR. URRICO-It’s the same size, and how many parking spaces do you have there? MR. PATEL-That site, totally, has somewhere in the neighborhood of 180. I went through similar processes when that was getting approved and conceded at that point 36 (Queensbury ZBA Meeting 6/28/06) that, okay, the Town of Wilton standards call for so many spaces. Now those 180 odd spaces are shared between a 63 room Super 8, not a 61 room, and the same size restaurant. So the reason why the amount of parking is so critical to me is I’m experiencing it down there that going less than 154, really we’re at max occupancy at the motel, which really (lost word) about 125. With the number of employees and the number of seats, it’s really not good for the flow of traffic around the parking lot. It really becomes a congestion on the site, and that’s why the amount of parking spaces that I’m standing for, for this project, is I’m very firm on it that really to keep it safe, especially during winter, when you have snow plowing and everything else happening, and you start dropping off dozens of spaces, it becomes even more of a hazard, and that’s why the 154 is so critical. MR. URRICO-Have you done any marketing surveys to determine or approximate how many of the Wilton customers will be, how that will be mitigated somewhat by having a Queensbury location? How many from this area are going down to Saratoga? MR. PATEL-A cannibalism study, so to speak, is really what you’re asking about. I haven’t completed, but I do have a large database of where we take polls of customers and where they come from. Most of our customers come from anywhere from Exit 17 to Exit 12. We do get a very loyal group of customers that do come as far north as Exit 22, Exit 23. For that matter, there’s a couple that I meet once a month that come from Plattsburgh. So it is a big draw. However, right now the guest flow that comes into the Wilton location is primarily from Exit 17 to Exit 12, and of course with I’d say 15 to 20% coming from north of there. MR. ABBATE-But there is a major difference between the Wilton and Quaker Road. Wilton is somewhat isolated in that it’s well removed from the highway. It’s sort of set back considerably, with the traffic light all the way in the back on the left hand side, and there’s a huge mall project there. MR. LAPPER-In terms of visibility. MR. ABBATE-Yes, exactly. So there is a difference in the statistics. MR. URRICO-It’s located across from Wal-Mart also. So it has more than enough visibility. A question about the buses. Do you have a designated bus parking area? MR. PATEL-Yes. MR. URRICO-And how many buses do you anticipate handling on a typical day? MR. PATEL-The number of buses, it’s really tough to tell. Obviously, being the Town of Queensbury’s location, it’s proximity to the Adirondacks, Six Flags, I’d really anticipate a little more bus traffic than the one in Wilton, per se. However, to give you a projection, I’d rather not make a quote, but worst, I mean, I would have to say no more than maybe a bus during each meal period is what I would anticipate, and that’s (lost words). MR. URRICO-And the average eating time? MR. PATEL-In a study that was conducted, I think, in ’04, by Corporate, I think the eating time was 47 minutes. MR. URRICO-Thank you. MR. ROUND-Just speaking a little bit about parking, when we were here back in September, let me just show you the bus parking area, that was a Planning Board concern, was that buses would enter and they were able to pull off. We have a designated pull off area here to get them out of the traffic, and the radiuses on these parking areas, we’ve put a truck template or basically a tractor trailer template on that and tractor trailers are able to make those turns and navigate the site, but when we were back here in September, we talked about the difference, our facility is considered a high turnover restaurant. Your parking center has a restaurant and it has fast food, and we made the comparison that if we were classified fast food facility in Queensbury, we’d be allowed 434 parking spaces, okay, and I think Mr. Urrico talked about, hey, I’d rather have 154 rather than the 434. We also compared the parking standard to other communities. We looked at Bellingham, Mass. We looked at Glenville, and their parking ratios for just a standard restaurant were significantly higher. We chose those communities because they were available on the Internet, and they had similar populations or similar demographics, and Bellingham would allow us 207 parking 37 (Queensbury ZBA Meeting 6/28/06) spaces, and Glenville would allow us 146, without any variances, and so we’re just trying to put into perspective how does the parking standard relate to what we’re requesting, and we felt that was a reasonable request, and it’s not so much a significant request as that the parking standard doesn’t really recognize this type of facility, and I think also Neral had presented some parking standards that you had looked at for Applebees and Outbacks, and contrasted the number of seats with the number of parking spaces that were requested and a ratio, I guess, the number of parking spaces per seat, and we compared it favorably with all those locations and I don’t know if you’d like us to go into further detail on that. MR. ABBATE-Okay. Mr. Bryant had a question, please. MR. BRYANT-I had a question there about the chart. What the chart is saying is that Outback has 218 seats as opposed to your 384. MR. PATEL-Correct. MR. BRYANT-And they only have 125 parking spots as opposed to 154? MR. PATEL-Correct. MR. BRYANT-That’s correct. I think the Town ought to re-evaluate the parking on these types of restaurants because the parking at Outback is atrocious. Most of the time you go there there’s no parking, and there’s hardly any wait. Just a parking issue, and this particular type of restaurant, the high turnover. It’s not quite fast food, requires more parking. The more people that are traveling, go in and, you know. MR. LAPPER-That’s why we’re here. MR. ROUND-It’s important, and I think what the standards and design guidelines are trying to do is like, well, there is a negative stigma attached with large asphalt areas. I think we’ve tried to address those with our landscaping plan and with the placement behind and in the rear of the building, but it’s a difficult thing. MR. LAPPER-I want to add one other thing. I virtually every other community that I’m familiar with, the parking standard is a minimum, because you want to make sure that you’re providing enough parking so that you’re not going to have a parking problem where people are parking on the grass. Queensbury, and everybody here knows this, but as a result of projects like K-Mart where there are empty fields that never get used, the Ordinance was used, so that same standard became a maximum, a minimum and a maximum, and that’s why in this case we’re saying that we’ve got a restaurant that’s not fast food, but it’s also not quite the same as a sit down, cook to order. It’s somewhat of a blend, and if it was in any other town, it would be no problem to create extra parking. You wouldn’t need a variance, but here we do. So Neral is not trying to spend extra money on pavement or to create more pavement than he needs. He’s just trying to make sure that there’s enough parking so that he’s not creating a parking problem in the neighborhood, and because we’ve got it situated so a lot of the parking is in the back, behind the building, or some of it anyway, it’s not like you’re going to be looking at all asphalt. The building covers up the parking lot. MR. STONE-Just for my own personal edification, there’s no plans to put a hotel on this? MR. LAPPER-Only if they could acquire the Mark Plaza. MR. STONE-Okay. MR. URRICO-How many employees do you have there on a normal basis? MR. PATEL-There’s two parts to this. During peak period, I would say total employees, 25, and during off peak, that number drops down to about 15. MR. URRICO-Is that typical or more or less? MR. PATEL-That’s typical, and obviously Queensbury is a tough one to really predict as far as what the peak season will bring for volume, but I don’t anticipate it being higher than 35 employees and 20 employees during off peak. MR. URRICO-And will you have a separate designated parking area for them? 38 (Queensbury ZBA Meeting 6/28/06) MR. PATEL-Yes, well, employees, unfortunately, are required to park at the furthest point on the site, but as far as a designated area, as noted on the site, there isn’t one yet. MR. URRICO-Two other questions. Because we’ve heard encouragement of connecting, interconnecting, adjacent parking lots, will there be any connection to the Mark Plaza? MR. LAPPER-Well, we’re showing the easement behind the building, Chris can show you where it is, because we’re required to show it, but it would have to be up to Mark Plaza to allow it. In this particular case, there’s not a great place to put it, because we’ve got the building next door and the loading dock. It’s not where their parking lot is, but we’re certainly showing it. We’re required to show it, and if the Mark Plaza came in for a site plan review in the future to change something, they would then have to address it. MR. UNDERWOOD-Are you going to get into a situation, though, when you’re at peak, though, you know, like when people go to Applebee’s at peak times, you know, they park over at Lowe’s and it’s sort of a melding of the two parkings between them. I don’t know if that’s something to consider. MR. LAPPER-That’s really why we’re here asking for the variance to avoid that, to make sure that there’s enough parking, and Neral feels the 154 will be sufficient. There’s no real good access because you’ve got the loading docks. MR. URRICO-Just anticipating future variance requests. MR. LAPPER-There’s nowhere else on the site. MR. URRICO-Just because the building is turned sideways, so to speak, will you be coming before us asking for an additional wall sign variance? MR. LAPPER-No. The sign faces Quaker. We went through that with the Planning Board as well. MR. URRICO-Okay. MR. LAPPER-There’s one side on the building, and there’s also a pole sign on the front, or monument sign I think we agreed to. MR. ABBATE-So for the record, you’re not coming back to us and asking for variances on signs and what have you, for the record? Okay. Fine. MR. PATEL-For the record. MR. BRYANT-Your building now, the way it’s shown, it meets side and front setbacks? MR. LAPPER-Yes, absolutely. MR. BRYANT-Okay. MR. LAPPER-The only setback is that one variance to that little wetland in the front, the one. MR. BRYANT-And you’ve got wetlands on three sides. The question is, the only wetland in the variance that you’re requesting is that gutter in the front where the water runs? MR. LAPPER-Exactly right. Yes. MR. BRYANT-That’s it. MR. LAPPER-Yes. MR. BRYANT-Nothing on the back, nothing on the sides? MR. LAPPER-No. We’re careful to design this site to protect because we didn’t want to have to go for permits. MR. BRYANT-What kind of barrier are you going to have around? 39 (Queensbury ZBA Meeting 6/28/06) MR. LAPPER-It’s an actual retaining wall built from the edge of the wetland up, to make the parking lot level. So no one’s going to be down by the wetland. MR. BRYANT-Okay. MR. STONE-I have a question, only because I don’t know the operation. How many, do you serve breakfast, lunch and dinner, or just lunch and dinner? MR. PATEL-Right now lunch and dinner is all that’s planned. Breakfast might be served on Saturday and Sunday. MR. STONE-Okay. Thank you. MR. ABBATE-Do we have any other questions? All right. Then I’m going to open up the public hearing for Area Variance No. 68-2005, and if anyone in the public wishes to be heard, would you please approach the table, speak into the microphone and state your name. Would you raise your hand? Do we have anyone in the public? PUBLIC HEARING OPEN MR. ABBATE-I see no hands raised, so I’m going to move on. I’m going to ask members to offer their comments, and again, I’d like to inform the public that the comments offered by the members are directed to the Chairman and they are not subject to debate. I’m going to ask members of the Board, please, to comment on Area Variance No. 68-2005. MR. BRYANT-Actually I’ve already said what I wanted to say about the parking, okay. I think the parking is critical and the extra spaces are really need in this type of operation. May we need another classification for this type of restaurant. Because the same applies to Outback, to Applebee’s, if there’s going to be a TGI Fridays or whatever. Those things have to be looked at, you know, so that part of the application I have no problem with. The other part that relates to the wetlands, it’s a minor encroachment, it’s a minor wetlands. I am concerned about that whole stormwater problem. I know some people that were affected by it. I know you’re not really that close to it at this point, but, you know, I’m glad that the Planning Board is looking into all those aspects and taking care of that situation. So, that being said, I’m actually in favor of the project. MR. ABBATE-Thank you. Mr. Urrico, please. MR. URRICO-Yes. I’m also in favor of it. I believe the amount of parking spaces, at least in my opinion, based on the evidence presented, is justified. I think it’s not a fast food restaurant but it’s not a slow food restaurant, either. It’s somewhere in between, and the number of cars going in and out of there is going to definitely increase the need for more parking. I think the applicants have satisfied my feelings about the wetlands and what might be affected. I think, going through the process with the Planning Board certainly, in my belief, has certainly satisfied what I was concerned about. So I would be in favor of it. MR. ABBATE-Good. Mr. McNulty, please. MR. MC NULTY-I can basically agree with what’s been said. I think in this case there’s certainly some design effort at least here to protect what little wetlands will be affected by this project, and I think in this kind of a situation we have to rely on the applicant to ask for the number of parking spaces that they really believe they’re going to need. They obviously want enough to keep their business flowing and they just as obviously don’t want to spend extra money paving land that they’re not going to use. So I think, all told, it sounds like a reasonable request, and I’d be in favor. MR. ABBATE-Thank you, sir. Mrs. Hunt, please. MRS. HUNT-Thank you. I have to agree with my two fellow Board members who spoke I think allowing the extra parking is preferable to having, for safety for having people riding around and then going out, and I also don’t think the wetland setback is a problem because it’s a minor wetland. So I would be in favor. MR. ABBATE-Thank you. Mr. Stone, please. MR. STONE-Well, this is my last one. I was concerned, and I think the applicants and the Board members have thoroughly addressed the wetland situation. We always hate 40 (Queensbury ZBA Meeting 6/28/06) to encroach, but I think the assurance, and therefore the understanding that I have that this really isn’t a wetland, it’s a wetland but it was kind of manmade because it is a drainage ditch, alleviates a lot of my concerns. The amount of parking doesn’t bother me because of the way the project is sited, the way the building is sited. Sometimes we worry that if the business isn’t as successful as the owner would like it to be we’re going to see a lot of empty asphalt. Here, if we have empty asphalt, it’s more likely going to be in the back, towards the back, and it won’t be visible from Quaker Road very much anyway. So I think that alleviates the problem, and I agree with Mr. Bryant that parking for a restaurant is something you don’t want to search too long for because, and certainly the owner doesn’t because you go somewhere else if you can’t get in, and therefore I certainly can approve this application. MR. ABBATE-Thank you. Mr. Underwood, please. MR. UNDERWOOD-Yes, I think the wetland setback is something I can live with. Again, it’s out on the front side there and it’s not anything that’s really going to harm any wetland or cause a negative effect on it. I think that your explanation of the stormwater prevention devices makes the parking lot more palatable to me at this point in time. I think, you know, whether the traffic volume is reasonable or not, it will remain to be seen there. It’s probably going to exacerbate the problems on that part of Town, but as you said, it’s two meals a day, it’s not three. It’s not during peak times during the morning, and I think that it’s something that people will just have to learn to live with. MR. ABBATE-Okay. Thank you. I agree with my fellow Board members. I happen to be privy to the minutes of the meeting of the Planning Board, and I can assure the Board members that the Planning Board did a thorough job and they addressed all the issues, and I’m quite satisfied with that, and I certainly would go along in supporting the application as well. Having said that, I’m going to close the public hearing for Area Variance No. 68-2005, and again, I remind the members respectfully of balancing the benefit and the statutory criteria really should be taken into consideration. MR. STONE-Is this an Unlisted Action, Mr. Chairman? MR. ABBATE-It’s shown. I think we covered that initially, but thanks for reminding me anyway. MR. LAPPER-The Planning Board covered it by its coordinated review. MR. ABBATE-They did. I read it. So I’m going to ask for a motion for this. I’ll give Mr. Stone the honor of moving a motion. MOTION TO APPROVE AREA VARIANCE NO. 68-2005 NORTHEAST DINING & LODGING, INC. D/B/A THE GOLDEN CORRAL RESTAURANT, Introduced by Lewis Stone who moved for its adoption, seconded by Roy Urrico: Quaker Road. A 10,300 square foot restaurant including 154 parking spaces. In order for the applicant to achieve this, they request 60 feet of relief from the wetlands setback requirements where 75 feet is required in the HC-1 zone per 179-4-030, and the applicant further requests relief from the maximum allowable parking spaces in excess of the 20% over the specified number for a restaurant of this size per 179-4-040. In this particular case, the excess is a total of 154 parking spaces, which is 29 above the 20% allowable, which represents 46%. The applicant has shown that a restaurant of this similar size in a neighboring community has, in fact, used all 154 spaces, if that’s all they had, and obviously doesn’t wish to constrain business by having less parking. The wetland in question, from which relief is sought, is minimal in nature, having been described and the description accepted by this Board that it is, in fact, a constructed drainage ditch along Quaker Road, and that minimal effect will happen upon this particular thing because of all the stormwater remediation devices that will be installed on this site. Having said that, obviously the benefit to the applicant would appear to outweigh the detriment to the community. There seem to be no real environmental hazards, as evidenced by the negative declaration on SEQRA by the Planning Board as Lead Agency. Obviously it is self-created, and I guess I’ll get my one part in the motion that almost everything is self-created, but that’s the law under which we have to operate. Having said that, I think on balance, which is the test that we are given, that this application should be approved and I so do so. th Duly adopted this 28 day of June, 2006, by the following vote: AYES: Mr. McNulty, Mrs. Hunt, Mr. Bryant, Mr. Underwood, Mr. Urrico, Mr. Stone, 41 (Queensbury ZBA Meeting 6/28/06) Mr. Abbate NOES: NONE MR. LAPPER-We are honored to receive Mr. Stone’s last motion, and we’re always honored to get a unanimous approval from this Board. So thank you very much. MR. ABBATE-The vote for Area Variance No. 68-2005 is seven in favor, zero against. Area Variance No. 68-2005 is approved. Good luck, gentlemen. MR. LAPPER-Thank you. MR. ROUND-Thank you. MR. ABBATE-You’re very welcome. Now, before we leave, before we conclude. I was anticipating an Executive Session. I don’t think we’re going to have one, but I wanted to, th on the record, state that Mr. Stone is leaving us on the 30 of June, and I want to thank Mr. Stone, Lew, quite specifically, for all of the services and sacrifices that he’s made. Now, in many instances he and I may not have agreed on all things, but nonetheless, he bit the bullet and he sacrificed his time and volunteered his time, not only he, but Mrs. Stone as well, and I would like to congratulate not only Mr. Stone but Mrs. Stone, and I wish them the very best for the future. MR. URRICO-Here, here. MR. STONE-Thank you, Mr. Chairman. I appreciate that. I will, just for the record, I will be trying to speak at Monday night’s Town Board meeting, just to say thank you to the Board for the opportunities they’ve given me and also to give one parting shot on something I feel very strong. MR. ABBATE-Okay. Now, gentlemen, and ladies of the Board, counselor, we had scheduled an Executive Session, but obviously the attorney for that particular subject has not shown up this evening. What do you suggest? MS. RADNER-I suggest, we hadn’t invited him formally in writing. We’ve invited him by telephone after our conversation. I’m wondering if he perhaps checked the agenda and didn’t see it on the agenda and didn’t realize. I will follow up with him and find out what happened and find out if, indeed, he does want to attend and participate in an Executive Session for the purpose of discussing the ongoing litigation and will communicate back to the Board. MR. ABBATE-Then you will forward a formal letter requesting his appearance and honoring his request to you. MS. RADNER-I will first of all speak with yourself, Mr. Chairman, and confirm when you want that Executive Session to take place and what time. MR. ABBATE-Please, yes, and if necessary, because I know it’s still in litigation and if necessary, because of time restraints, if necessary I’ll go to a special hearing and hear it by itself. MS. RADNER-It shouldn’t be necessary, but I appreciate that. MR. ABBATE-Okay. You’ll let me know. MS. RADNER-Thank you. MR. ABBATE-Thank you very much. Ladies and gentlemen of the Board, I thank you very much. MR. BRYANT-This is not worth talking about in Executive Session, just because the attorney is not here, we can’t come to some kind of consensus or at least spell out what the issue are? MS. RADNER-You certainly can. Any member of this Board can make a motion to go into Executive Session for any of the allowed purposes of Executive Session, and if it is the pleasure of the Board, we can certainly do so. I’m here and willing to do so if you think it would have value. Otherwise, we can put it off until Mr. Keniry can be here. 42 (Queensbury ZBA Meeting 6/28/06) MR. BRYANT-Don’t you think if you get some kind of consensus, just questioning, to get some kind of consensus when you talk to the attorney you can say, this is the sentiment of the Board? MS. RADNER-I’d be happy to do that if you think a consensus can be reached. MR. BRYANT-That’s entirely up to you. What do you think, Mr. Chairman? MR. ABBATE-I’m reluctant to do that, and I’ll tell you why. I think it’s more appropriate to have the attorney for the appellant present whenever any of us make any comments. However, I will yield to the majority of the Board. It’s up to you folks, whatever you want to do. MR. BRYANT-There are a lot of things, though, that we may not say in front of the other attorney. MS. RADNER-And the way an Executive Session works is that you are allowed to invite whomever you wish to participate in Executive Session, but you can exclude anybody else, and so if you wanted to have an Executive Session where you first discussed it yourselves and then you included him and then perhaps invite him back, that’s allowed, too. MR. ABBATE-It’s up to the Board, guys. I’m kind of leery of this. I’m leery but I will yield. MR. URRICO-I guess my concern is this case seems to be ongoing. MR. ABBATE-It is in litigation right now. MR. URRICO-I understand that, and it’s being protracted to a certain degree, and before we head into an Executive Session with participants, I’d like to know what we may be getting into if we, opening this door. MR. ABBATE-All right. That’s a question we will answer. MR. UNDERWOOD-The only thing I would say is this. Last time the people that were basically in favor of granting it, the changes, there were only the two of you that were against it. So you’re the guys that kind of have got to get on board if you really want to resolve this thing. MR. BRYANT-There are some issues relative to those two. MR. UNDERWOOD-Right, there are some, and there’s outstanding issues with the land bridge and things like that, you know, and those are sort of tertiary to the problem, but also at the same time, we haven’t seen the minutes from what we did the last time. MR. ABBATE-No, we haven’t. MR. UNDERWOOD-And it would be nice to read back through there and say well, here’s the points that, you know, because we can all go through and highlight what needs to be looked at and say, well, here’s the thing that’s bugging people or here’s the thing that’s not bugging people, and work through it that way. MR. ABBATE-Okay. MR. UNDERWOOD-I would rather wait. MR. ABBATE-Okay. Chuck? MR. MC NULTY-I guess I’m neutral. I don’t feel any compulsion that we need to discuss it tonight. I’m willing to if others want to. MR. ABBATE-Neither do I. MR. BRYANT-Can we have the minutes tomorrow? MS. HEMINGWAY-They are done. MR. ABBATE-Okay. Well, the answer then is probably yes. 43 (Queensbury ZBA Meeting 6/28/06) MR. BRYANT-Can’t we do it tomorrow after our training session? MR. ABBATE-No. I would not advise, counsel, I do’s think that’s appropriate at the workshop, because the agenda has already gone out and Bob Vollaro and I have committed ourselves that we will not be discussing cases, nor will we be discussing Zoning Ordinances in the workshop. MR. BRYANT-Yes. Okay. It’s after the workshop. MR. ABBATE-An Executive Session, you’re going to throw everybody out? Planning Board members can’t stay. MR. UNDERWOOD-Don’t be in a hurry. MR. ABBATE-That’s my point. What’s the hurry, gentlemen? What’s the hurry? MR. URRICO-I’m not in a hurry to talk about this tonight. MR. ABBATE-That’s what I’m saying. MR. MC NULTY-It’s conceivable that counsel for the other party may have decided that he doesn’t want to do this, in which case, it’s a finished issue. MR. ABBATE-Sure, and we don’t know yet. That’s why I think it’s inadvisable even to address that issue this evening because he may have changed his mind and said, to heck with it, I’ll let the Supreme Court decide. We don’t know that. So I’m going to ask counsel to check it out first. Do I have a consensus on that? MR. MC NULTY-I would agree. MR. ABBATE-Okay, guys, then we’re not going to have an Executive Session and you’ll follow through for me, correct? MS. RADNER-Yes, I will. MR. ABBATE-Okay. Thanks much. This session of June 28, 2006 is adjourned. On motion meeting was adjourned. RESPECTFULLY SUBMITTED, Charles Abbate, Chairman 44