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2006-09-20 (Queensbury ZBA Meeting 09/20/06) QUEENSBURY ZONING BOARD OF APPEALS FIRST REGULAR MEETING SEPTEMBER 20, 2006 INDEX Area Variance No. 46-2006 John P. Matthews 2. Tax Map No. 239.19-1-15; 239.18-1-51 239.19-1-13.1 Area Variance No. 48-2006 Daniel & Bethellen Mannix 10. Tax Map No. 296.12-1-23 Area Variance No. 49-2006 Peter Mitelman 13. Tax Map No. 302.7-1-39 Area Variance No. 50-2006 Larry Clute 20. Tax Map No. 301.17-1-3 Notice of Appeal No. 6-2006 Joseph Leuci d/b/a Mountainside Auto 28. Tax Map No. 296.9-1-7.2 Notice of Appeal No. 7-2006 Stephen & JoAnn Borgos 34. Tax Map No. 301.9-1-18.2 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 09/20/06) QUEENSBURY ZONING BOARD OF APPEALS FIRST REGULAR MEETING SEPTEMBER 20, 2006 7:00 P.M. MEMBERS PRESENT CHARLES ABBATE, CHAIRMAN JAMES UNDERWOOD, SECRETARY JOYCE HUNT CHARLES MC NULTY ROY URRICO RICHARD GARRAND MEMBERS ABSENT ALLAN BRYANT ZONING ADMINISTRATOR-CRAIG BROWN GIS SPECIALIST-GEORGE HILTON STENOGRAPHER-SUE HEMINGWAY MR. ABBATE- Good evening, ladies and gentlemen and welcome to the Town of Queensbury Zoning Board of Appeals hearing dated 20 September 2006. Prior to setting this hearing in motion, I would like to acquaint you with information that will familiarize you with the responsibilities of this Board, the mandated legal requirements we are guided by, and the procedures for a hearing before this Board. The function of the Zoning Board of Appeals is to listen to and consider all evidence that appears on the record, and may bear upon the issue we will be deciding. The Zoning Board of Appeals can grant (or deny) two types of relief; interpretive and variance. In either case, this Board will affirm, reverse or modify the enforcement officer’s decision. In doing so, the Board will either permit or deny the requested relief. If the appeal is for an interpretation, this Board’s decision will be based on the Town of Queensbury zoning regulations. If the appeal is for a variance, this Board’s decision will be based on the standards of proof contained in NYS Town Law 267-b. Additionally, the Zoning Board of Appeals may only authorize the minimum variance necessary to relieve the applicant. We will invite public comments on each appeal, however, in the interest of time please be crisp, organized and limit your comments to only the facts and information given this evening. On opening the public hearing the public will be allowed a maximum of 5 minutes to comment on a specific appeal. The purpose of this time limitation is to provide each member of the public an opportunity to be heard, and also to limit the length of the hearing to a reasonable time frame. I’m going to ask Ms. Hemingway to please monitor the time. Mr. Secretary, before we proceed I’m going to ask if we have any correspondence you would like to read into the record. MR. UNDERWOOD-Not at this time. MR. ABBATE-Not at this time. Okay. I’m going to, at this point, I’m going to introduce a resolution and the reason I’m going to introduce the resolution now is because I want to make sure that the public who are present, the majority of folks who are present this evening are here to listen to it, rather than wait until all the hearings are done and the public is not here. So I felt in public interest and fairness, I should do it now. This Board has received marginally completed applications that have resulted in a significant delay in the review process. After a very lengthy discussion with the Zoning Administrator, both he and the Chairman of the Zoning Board of Appeals have come to a mutual agreement in assisting the public, this Board and the Staff, in processing applications. Having said that, I move a motion to approve the following administrative procedures for review for the Zoning Board of Appeals. MOTION THAT EFFECTIVE 29 SEPTEMBER, ALL APPLICANTS MUST MEET WITH STAFF FOR A PRE-SUBMISSION CONFERENCE PRIOR TO SUBMITTING ANY APPLICATION TO THE COMMUNITY DEVELOPMENT DEPARTMENT FOR PROCESSING TO THE ZONING BOARD OF APPEALS. UPON RECEIPT OF AN APPLICATION, THE COMMUNITY DEVELOPMENT DEPARTMENT WILL DATE AND TIME STAMP THE APPLICATION. THE STAFF PERSON REVIEWING THE APPLICATION FOR COMPLETENESS WILL SIGN AND DATE THE TIME OF THE REVIEW. THE ZONING BOARD OF APPEALS WILL NOT ACCEPT AN APPLICATION 1 (Queensbury ZBA Meeting 09/20/06) NOT SUBJECT TO PRE-SUBMISSION CONFERENCE WITH STAFF. Introduced by Charles Abbate who moved for its adoption, seconded by Joyce Hunt: th Duly adopted this 20 day of September, 2006, by the following vote: MR. ABBATE-Prior to asking for a second, I’d like the Board to know that I have bounced this off of not only the Zoning Administrator but Staff as well as the Town Attorney and there is a consensus that this will help, not only the public, and the Staff, but the ZBA in processing applications. Having said that, is there a second? MRS. HUNT-Second. AYES: Mr. Underwood, Mr. Urrico, Mr. Garrand, Mr. McNulty, Mrs. Hunt, Mr. Abbate NOES: NONE ABSENT: Mr. Bryant MR. ABBATE-The vote to approve the resolution is six to zero. The resolution as stated is passed. It will be effective 29 September 2006. Staff, please take the necessary administrative action for distribution. Thank you very much. OLD BUSINESS: AREA VARIANCE NO. 46-2006 SEQRA TYPE II JOHN P. MATTHEWS OWNER(S): JOHN P. MATTHEWS ZONING: RR-5A LOCATION: 3219 STATE ROUTE 9L APPLICANT PROPOSES LOT LIINE CHANGES BETWEEN 3 CONTIGUOUS PARCELS. RELIEF FROM THE DOUBLE THE MINIMUM LOT WIDTH REQUIREMENTS FOR RESIDENTIAL LOTS ABUTTING ARTERIAL ROADS IS REQUIRED. ADDITIONALLY, SIDE YARD SETBACK RELIEF FOR EXISTING ACCESSORY STRUCTURES IN THE RR-5A ZONE IS REQUESTED. WARREN COUNTY PLANNING: AUGUST 9, 2006 ADIRONDACK PARK AGENCY: YES LOT SIZE: 1.5; 3.23; 3.42 ACRES TAX MAP NO. 239.19-1-15; 239.18-1-51; 239.19-1-13.1 SECTION 179-4-030; 179-19-020 JOHN MATTHEWS, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 46-2006, John P. Matthews, Meeting Date: September 20, 2006 “Project Location: 3219 State Route 9L Description of Proposed Project: Applicant proposes lot line adjustments between 3 contiguous parcels. Relief Required: Relief from the double the minimum lot width requirements for residential lots abutting arterial roads is required for the lot with the existing home. Lot width will be 182.04 – thus the requested relief is 217.96 feet. The adjacent lot to be given new road frontage will be consolidated with three lots owned by Mathews, and thus will meet the width requirement. Additionally, side yard setback relief for existing accessory structures in the RR-5A zone is requested. Both accessory structures exceed 120 square feet, thus the relief requested is 26 feet for the front structure and 15.7 feet for the rear structure. Parcel History (construction/site plan/variance, etc.): None found. Assessing records show property improvements in 1971 and 1973. Staff Comments The exact location of the western property line shared with the Marek property is currently under dispute by the Mareks.” MR. UNDERWOOD-“Warren County Planning Board Project Review and Referral Form August 8, 2006 Project Name: Matthews, John P. Owner(s): John P. Matthews ID Number: QBY-06-AV-46a County ID#: Aug06-29 Current Zoning: RR-5A Community: Queensbury Project Description: Applicant proposes a boundary line 2 (Queensbury ZBA Meeting 09/20/06) adjustment of two parcels. Parcel deed 651/533 existing area of 3.42 acres, proposed area of 3.8 acres; Parcel deed 660/1095 existing area of 33 +/- acres, proposed area of 35 +/- acres. The existing buildings require side setback relief. The garage is to be 14.3 ft. where 30 ft. is required and the shed is to be 3 ft. from the side property line where 30 ft. is required. Relief is also required for the road frontage where 182.04 is proposed and 200 ft. is required. The information submitted shows the lot configuration. The applicant has indicated the adjustment will allow for the construction of a single family dwelling on the adjacent parcel and to have access to the existing gravel driveway. Staff does not identify an impact on county resources based on the information submitted. Staff recommends no county impact. Warren County Planning Board Recommendation: No County Impact” Signed by Richard C. Merrill, Warren County Planning Board, 8/15/06. MR. ABBATE-Would the petitioner of Area Variance No. 46-2006 please approach the table, Mr. Matthews, and speak into the microphone and for the record please identify yourself and your place of residence. MR. MATTHEWS-John Matthews, , Queensbury, 9L. MR. ABBATE-Mr. Matthews, before we start, I really would like to clear something up for the record. Staff has indicated that the exact location of the western property line shared with the Marek property is currently under dispute by the Mareks. Is it in litigation at the present time? MR. MATTHEWS-Not that I know of. MR. ABBATE-Is there a dispute? MR. MATTHEWS-I had extensive survey work done over the winter to determine exactly where this line was. When I bought the property, it was staked, but over the years the stakes have disappeared. I knew basically where the line was, and I had Dickenson come in and reference and tie through all of my properties in the back, and after that was completed, I had him stake that particular line so that when the planners came they’d be able to see where it was. Shortly thereafter all the stakes were pulled out by the neighbors. I had Dickenson come in and re-stake the property and the same day the stakes were removed again. Now, I wasn’t aware that there was any issue with anything along this property line until the stakes were removed and I approached Mr. Marek and asked him what was going on, and he adamantly said that if I put anymore stakes in there, he was going to pull them out. I paid the surveyor. I’ve got a stamped survey. My deed reflects the coordinates or the property description that is reflected in the Marek’s deed. So my description is exactly the same as their description. So I’ve been waiting a month now to have their surveyor come and put the stakes back in, but evidently it’s not as important to them as I think. MR. ABBATE-All right. Well, thank you for answering that question, and before we proceed, I am assuming that you’re not represented by counsel. MR. MATTHEWS-Not at this time. MR. ABBATE-Okay. Then you understand the term burden of proof? In other words, the State law requires that you show that the benefit you’re going to receive falls squarely on your shoulders and not this Board. You understand that? MR. MATTHEWS-That’s correct. MR. ABBATE-Okay. If you’re prepared to proceed, tell us about your case, please. MR. MATTHEWS-I’ve owned the property where the house is located on the map since 1970, and I built the house in ’71. I’ve lived there with my wife and family since last summer. We’ve moved into another house. I would like to sell this particular house, and in the process of preparing myself for a sale, I wanted to get all of the adjacent properties tied together. I owned a parcel adjacent to this property to the east several years ago, and when I sold that parcel, I reduce it’s size by some frontage on Route 9L. That left a sliver hanging in the open. It had no basic description, other than I was getting a tax on it yearly. So at the same time, what I would like, am trying to do is develop the existing roadway as a parcel which is connected to the parcels in the back, so that I can give that to my son-in-law and my daughter, so that some day we can build a house back there for them. There’s several acres, and without a roadway or a deeded roadway, it’s basically not usable. So that’s why we’re here. In the process of laying it out, we discovered that 3 (Queensbury ZBA Meeting 09/20/06) we needed a variance for the setback for the little shed and the garage in the back, and then I was also informed that the, as per the new standards, because Route 9L is arterial highway, the requirements are a much larger road frontage. MR. ABBATE-All right. Since you’re not represented by counsel, let me go into a little more detail and explain to you that any time during this hearing, if there’s something you don’t understand, stop us. I’ll recognize you, and don’t be afraid to ask us a question, or during this hearing if there’s something perhaps you may have forgotten to tell us that may weigh in favor of your case, again, bring that to our attention, so those who are not accompanied by counsel we have a little more flexibility with. Okay. MR. MATTHEWS-Thank you. MR. ABBATE-You’re welcome. Members of the Board, do you have any questions for Mr. Matthews? MR. URRICO-Mr. Matthews, you have depicted one driveway coming in off of Route 9L? MR. MATTHEWS-There’s a driveway, an existing driveway for the existing house. MR. URRICO-Okay. MR. MATTHEWS-Which is a paved driveway and what not. Adjacent to that driveway is a partially paved road which goes to the rear property. MR. URRICO-The gravel road. MR. MATTHEWS-Correct, right, and the guard rail on 9L curves right in that roadway and what not. MR. URRICO-And you’re proposing to keep the roads as they are, or merge the two roads? MR. MATTHEWS-No. I’m going to keep the roads, so that the existing driveway that’s part of the house will stay with the house and then the separate road will be the road accessing the rear property. MR. URRICO-Thank you. MR. ABBATE-Okay. Folks on the Board, anyone else have any questions for Mr. Matthews? Okay. If there are no questions for Mr. Matthews, what I’m going to do, I’m going to open up the public hearing for Area Variance No. 46-2006, and would those members of the public, if there are any, who wish to be heard, please raise your hands, I will acknowledge you and request that you come to the table, speak into the microphone, and for the record identify yourself. Do we have any members of the public? PUBLIC HEARING OPENED JIM MAREK MR. MAREK-I’m Jim, and this is Patti Marek. We live just to the west of the Matthews’ property in question. Our address is 3229 State Route 9L. PATTI MAREK MRS. MAREK-We have submitted a document to the Board. Then we had it time th stamped on the 7 of September, and we wanted it to be read. MR. UNDERWOOD-I can read that in, sure. MRS. MAREK-Okay. MR. ABBATE-Yes, we have a copy and the Secretary will be happy to read it into the record for you. MRS. MAREK-Great. Thank you very much, Mr. Abbate. th MR. UNDERWOOD-This letter was received on September 7 from the Mareks. It’s addressed to the Town of Queensbury, Attention: Zoning Board, RE: The John P. 4 (Queensbury ZBA Meeting 09/20/06) Matthews Area Variance, “To Whom It May Concern: In regards to the Variance Application by John P. Matthews, we are requesting this application be tabled until several issues are resolved as follows: 1. We own the property to the West of Mr. Matthews which is the westerly property line that he wishes to move eastward. We do not believe he has ownership of a portion of that property which we intend to prove through our survey which has been ordered. Can a person move a property line they do not own? 2. The curb cut shown on his application is a dirt/gravel access with intermittent usage, to/from his quarry mine located to the south on a separate parcel; not shown on the maps submitted with his application. The curb cut is in “deadman’s curve” (locals’ name) of State Route Highway 9L and while intermittent usage has proven somewhat scary at times when those heavy quarry trucks exit and try to get up to speed; we are more than ever concerned about traffic increase from every day residential usage. It paints an ominous picture of “deadman’s curve”. 3. This access runs parallel to our property at a higher elevation. In the event a residential structure is permitted, the usage of this access will increase noticeably. We are gravely concerned about the future effect of adverse runoff from the increased usage, resurfacing, etc. will have on our property. Additionally, the location where Mr. Matthews proposes to build this residential structure is also at a higher elevation than our property further increasing runoff and further adversely affecting our property. This structure will have a tremendous impact with septic, hard surfaces, drainage systems, etc. 4. Our property contains 2 ponds of substantial size which are classified as an “A” feed to Lake George. It provides a sanctuary for many types of wildlife. And, although this is an environmental concern; runoff again is an adverse effect. 5. Any additional runoff will adversely impact our property and the wildlife sanctuary currently provided. As adjacent property owners we understand we are entitled to notification prior to any future scheduled meetings or date changes which may affect this requested Variance. Thank you for your prompt attention to tabling this Variance Request until further investigation can be completed by all concerned parties. We look forward to hearing from you in the near future. Sincerely, Gordon J. & Patricia M. Marek” That’s it. MR. ABBATE-Thank you, Mr. Secretary. Would you folks like to add anything to that? MR. MAREK-We have hired a survey company and we are on their books mid-October. That’s as soon as they could get to it. So we’re trying to get our own survey done so we have the paperwork to be able to argue this further. MRS. MAREK-I did speak with the survey company today the secretary was out of the office so they couldn’t give me an exact date, but the gentleman that I spoke with said that it probably will be mid-October. MR. MAREK-Many of our concerns have to do with the aspect of this road as if it stayed the way that it is with the gravel road, it may not be as important to us as it would be if they asphalted the road. The road runs along the pond, which when it’s snow plowed will directly go into Lake George. The water between the road is less than footage. If you put an asphalt road in that area, you’re going to end up with a lot more problems with Lake George, and that’s one of our concerns. Also the access to the quarry is a major problem for us. It’s a lot of traffic going to be coming out of there as well from the quarry, and we’re concerned with the safety getting into Route 9L, plus whatever the quarry has to offer the environment. MR. ABBATE-So, for the record then, you are stating that in fact there is a boundary dispute? MR. MAREK-Yes, I am. MRS. MAREK-Yes, there is definitely at this point. MR. ABBATE-Okay. Is there anything else you’d like to add? MRS. MAREK-Well, one of our major concerns that we’ve discussed at length with the neighbors is the stone quarry, and the understanding is that it’s a grandfathered quarry. MR. ABBATE-That’s correct. MRS. MAREK-But we have, we’re concerned about the increase of activity in that quarry th at this time. The fact is that since this letter was written on August 29, there has been absolute increase in activity with blasting that the neighbors have all made comment about shaking the foundations we have seen a substantial increase of trucks coming out of there, which access Route 9L. So there are several aspects of this that we feel it’s 5 (Queensbury ZBA Meeting 09/20/06) necessary to be viewed before a blanket curb cut that’s just kind of access to the rear property, because going through this rear property line where this residence is going to be is going to be constructed, Mr. Abbate, also goes into his quarry. So, you know, with that being the direct line to the quarry, that’s the only access to the quarry. So that’s kind of a concern to us. MR. ABBATE-Okay. All right. Thank you very much for your testimony. We appreciate it. Do we have any other folks in the audience, from the public, who would like to be heard addressing Area Variance No. 46-2006? If so, would you be kind enough to raise your hand so I can identify you? If not, Mr. Matthews, would you be kind enough to come back to the table, please, sir, and you have, if you wish, a right to address those issues that were raised by the public, if you wish. MR. MATTHEWS-Thank you. Yes, I do wish. First of all, I have no idea how they even would think of where I would put a house in the back, because I haven’t discussed or even talked to my daughter or son-in-law about this. This is something in the future. My stone quarry has been active lately, yes, I’m building stone walls on my new house. I’ve been going in and out of there three or four times a day. The people that I have had mining the stone and taking it out of there, they work there maybe three times during the summer. They come in and they do some work and then they haul some stone out and then they come back in and out. Over the last couple of months or weeks, few weeks, yes, they have been very active because they’ve got a big job that they’re trying to get stone out before the winter. Deadman’s curve, that’s the first time in my life, since I’ve been there, that I’ve ever heard of that road or section of road called Deadman’s curve. I’ve lived there and accessed my driveway since I’ve been there and never had a problem. I mean, the kids stood there and got on the school bus every single day, never had a problem. I don’t have any plans right now for paving the road, but I’m sure some day down the road it will be improved. My concern for the wetland, which is a good portion of my property in the back, is there also. I mean, I’m certainly not going to go in and rip things up and make a mess out of an area that I love so well. I’ve spent my life there keeping it up and the quarry is grandfathered. I’m only allowed to take, under the grandfathering rules, out so many ton a year, which is less than 1,000 ton, and by no means do we even come close to that. I mean, it’s a very small operation. MR. ABBATE-Mr. Matthews, let me assure you that the quarry is not part of this hearing this evening, okay. MR. MATTHEWS-Okay. Now, the other question that I have, he’s made an accusation that I’m moving a line to form this roadway, and I’m not moving any line. The line was there. The area that I’m asking for, the road frontage and the setback variances, are on the next lot over, not the lot in between his lot and my house. So really the variance does not include the roadway area at all, as far as the variances are concerned. They come off of the other lot line. So if you feel that it’s necessary to table this for this situation with the deed or the lot line, I have no objection to that. I just, frankly, don’t feel it has any relevance. MR. ABBATE-Would any members of the Board like to question Mr. Matthews? MR. UNDERWOOD-I had a couple of questions. MR. ABBATE-Please. MR. UNDERWOOD-The accessory structures, I assume they’ve been there for quite some time, the 70’s? MR. MATTHEWS-They’ve been there since the year after I built the house. So one is a shed that I built for wood storage, lawnmowers and a playhouse for the kids as they were growing up, a storage room, and the other was a garage that I’ve used since I’ve been there. MR. UNDERWOOD-I would assume, since those will be setback allowances from this newly configured lots, by the combining of those other lots, that he’s only going to be set back from the lot that he will own. MR. ABBATE-Okay. Any other members have any questions for Mr. Matthews? Okay. Before I ask members to offer their comments, I’d like to inform the public that the comments that are going to be offered by members are directed to me, the Chairman, and comments expressed by Board members to the Chairman are not open to debate. For the Board, may I respectfully remind the members that precedence mandates that 6 (Queensbury ZBA Meeting 09/20/06) we concern ourselves with the evidence which appears on the record to support our conclusions. And the evidence relied upon should be specifically stated. 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 Board members are obligated to make decisions on reliable evidence contained in the record of Board deliberations. Please bear in mind that, unlike a Use Variance test, this Board need not find in favor of the applicant on every one of the five factors set forth by State law. This Board must merely take each one of those factors into account. Having said that, I’m going to ask members to please offer their comments. MR. URRICO-I have a question, since the Staff brought it up in comments, about the property line dispute, are we not considering that? MR. ABBATE-It’s my opinion that there may very well, it’s not for me to provide direction to Board members, but I will say this, that I believe, my personal opinion, that there may be proximate cause to table this. That’s my opinion. MR. UNDERWOOD-I think, nonetheless, we can still discuss what’s before us. MR. ABBATE-We certainly may. If you wish, we can continue on. MR. URRICO-I have one more question for Mr. Matthews. Would you consider combining the access to one access between the two curb cuts that you’re sort of suggesting right now, there’s the existing one and there’s one that was there prior to that. Would you consider merging the two? MR. MATTHEWS-No. My reasoning for, they’ve been separate for 40 years, and if I’m going to give a parcel of land in the back to my son-in-law and daughter, I would like them to have their own driveway and not have to think about who’s plowing the driveway, who’s maintaining the road. If the people that buy my existing house decide to go to Florida for the winter or something like that, I just, I’m trying to alleviate that issue. MR. URRICO-The reason I’m asking is because in the regulations there seems to be an allowance for, under certain circumstances were adjoining residential lots exist or are proposed to be established and the width of each lot meets the required width for the zone, and ingress and egress is limited to and provided by a single common driveway, then that gives you the option of not having double the lot width. That gives you an opportunity not to have to use the double the lot width. The variance would therefore be easier for you to obtain is what I’m saying. MR. ABBATE-Okay. Do any other Board members have any questions? Okay. Mr. Urrico, was that your question, was that your comment? MR. URRICO-Yes. MR. ABBATE-Okay. So that was kind of sneaky but that’s okay. That worked out pretty well. Do we have any other volunteers at this point? MR. UNDERWOOD-Sure, I’ll go next. MR. ABBATE-Would you please. Thank you, Mr. Underwood. MR. UNDERWOOD-I think if you look at the map, it’s important for us, we should be concerned with what the Mareks had asked, that there be a proper review, but it’s been substantiated that surveys have been completed, and, you know, people are not that go out there and just like move things around to their advantage. I think that we could dispense with this this evening, in lieu of the fact that a survey will be completed in the future, if it came back that there was some major discrepancy, which I kind of doubt there would be, given that fact, but I don’t really think that that property line is really in dispute for us here this evening. We’re talking about the property line that’s going to subdivide that parcel as it exists, which is nowhere near that property line. That road that pre- exists there, that gravel drive that accesses the back of the parcel and the mine that’s actively being used in the back there has existed and been substantiated. It’s also on the survey map that it’s been there since the 70’s and maybe even before then for all we know, and I think that, in this instance here, I’m not that troubled with it. I mean, we’re not really adding a driveway. There’s a drive that’s pre-existing that’s already there. Certainly some day when a house exists there, we don’t know when that house is going to be created, but it will create a little bit more traffic, but individual residences don’t create thousands of traffic, car visits every single day. It’s usually a few trips per day. I 7 (Queensbury ZBA Meeting 09/20/06) think that what Mr. Matthews has asked for here this evening, as far as the house goes, it makes sense to have a separate driveway, and even though Roy’s suggestion is practical, it’s also impractical. I don’t think that whoever buys that house would want to have heavily loaded dump trucks with stone in them passing through their driveway on a daily basis. I don’t buy that either. As far as the other variance that we need to create here for the two buildings that are pre-existing, I think it’s been substantiated they’ve been there since the 70’s. MR. ABBATE-Yes, it’s grandfathered. MR. UNDERWOOD-They’re only going to need relief from that new property line that’s going to be created on the parcel that he’s going to own. So I think it’ll be up to those people who, you know, when that lot is sold in the front there, I don’t know if those would go with that or if they’ll stay with the back lot, those two structures. MR. MATTHEWS-The structures will go with it, and what I would do is give them a right of way to use my road to get to it. MR. UNDERWOOD-Okay. So I’m not troubled with doing this this evening. I mean, if it’s in agreement with, that the applicant wants to put this off, I mean, I think at least he’ll have an idea of how we’re going to vote if we each make a determination as far as that goes. MR. ABBATE-Okay. Thank you, Mr. Underwood. Anyone else on the Board like to go next. Rick, would you like to go next, please? MR. GARRAND-Certainly. Mr. Chairman, at this point I don’t feel comfortable voting on it, given that there’s a dispute with the Mareks as far as their property line. I have no idea what their upcoming survey may say about this. So at this point I couldn’t be in favor of voting for this application. MR. ABBATE-Okay. Thank you very much. MR. ABBATE-Mrs. Hunt? MRS. HUNT-Thank you. I have to agree with Mr. Underwood. I don’t see that the property line that’s in dispute would affect the variances that are being asked for, the relief for the double the minimum lot width requirement and the side setbacks for the two structures. So I would be in favor. MR. ABBATE-Okay. Mr. McNulty, please. MR. MC NULTY-I’m not sure that I’m greatly bothered by the property line dispute, because I think if we were to grant what the applicant’s asking for, we really aren’t dealing with the location of that particular boundary line. However, I am bothered, even though this is kind of a pre-existing situation, I am still bothered that we’ve got a request here to approve a lot width that is less than half the requirement in the Code, and allow not one but two entrances on to an arterial road, basically adjacent to each other, and granted that the traffic flow will be presumably minimal, but nevertheless it’s kind of a double whammy. It’s grant permission for half the width required and essentially double the access that I think was anticipated when this rule was written, and certainly that piece of road is a good example of why the rule was written. So I wouldn’t mind voting on this tonight, but I think I’m going to be opposed. MR. ABBATE-Okay. Mr. Urrico, I have a question mark here. Would you do me a favor and be a little more definitive on your position please. MR. URRICO-I think it’s our job to look at solutions to requests, and I was looking at an alternative, but I would be comfortable with voting on this tonight, and if I did, I would be in favor of this. MR. ABBATE-Okay. Thank you very much. I’ll tell you, this is just not my week. The vote probably looks like three yes and two nos, and now I have to make a decision here. I have listened to what Mr. Matthews has said, every word. I listened to what the public has said, every word, and I listened to what my Board members have said, every word, and I did indicate that I thought that there was proximate cause to table this thing based upon the controversy or however it was worded of a boundary line, but after listening to my Board members, I kind of tempered that somewhat and basically have stated to myself we really should make our decision based on the information that is not only 8 (Queensbury ZBA Meeting 09/20/06) provided to us in testimony this evening, but also on the evidence that’s contained in the record, and perhaps my anxiety over the fact that I said there might be proximate cause may have been a little exaggerated. I’m still not completely comfortable with it, but if we had to vote on it this evening, I would support the application. Having said that, I’m going to take the public hearing and close the public hearing for Area Variance No. 46-2006. PUBLIC HEARING CLOSED MR. ABBATE-And I respectfully remind the members that we have the task of balancing the benefit of the variance against the impact on the area, and while State law sets forth five factors to take into consideration, again, unlike a Use Variance test, this Board need not find in favor of the applicant on every one of the five factors. Rather we must merely take into account each one in deciding whether to grant an Area Variance. I’m going to ask for a motion, and I’m going to respectfully request that you introduce your motion with clarity, and the motion itself is not going to be subject to debate. Any member not favoring the motion may exercise the right to vote no and/or introduce their own motion. Now, gentlemen and ladies of the Board, I am seeking a motion for Area Variance No. 46-2006. , MOTION TO APPROVE AREA VARIANCE NO. 46-2006 JOHN P. MATTHEWS Introduced by James Underwood who moved for its adoption, seconded by Joyce Hunt: 3219 State Route 9L. The applicant is proposing a lot line adjustment between three contiguous parcels. The project location, again, is on State Route 9L, which is an arterial highway, and relief is from double the minimum lot width requirements for residential lots abutting arterial roads as required for the lot, with the existing home. The lot width will be 182.04. Thus the requested relief is 217.96 feet. The adjacent lot, which is the one in the back, which will be accessed by this pre-existing gravel drive, will be consolidated with three other lots owned by Matthews, and thus will meet the width requirement. So that one doesn’t seem to be a concern. The public has voiced a little bit, that there is some lot line adjustment that may be necessary. They’re also going to have a survey done in the next month, and I think that we recognize the fact that the record before us this evening, we do have a certified stamped survey done by a licensed professional, and so we can accept that as proof of what we’re doing here this evening. Side yard setback relief is also going to be necessary for the two existing accessory structures in this RR-5A zone, and both of those structures exceed 120 square feet, but they’ve been existing since 1970, and those structures will go with the new house when that lot is sold in the front there. As far as an undesirable change being produced in the character of the neighborhood, or detriment to the properties, concerns were raised about the gravel drive and whether or not it would be paved at some future date. That’s up in the air. I mean, that’s not really our purview here this evening. I think that we’re comfortable with the fact that it is used occasionally, and it’s a minor mining permit that exists. Can the benefit be sought by the applicant? Mr. Urrico pointed out that possibly the paved drive that accesses the house in the front could be combined with this gravel driveway, but that doesn’t really seem practical in the sense of having loaded dump trucks passing back and forth in front of a property that you’re not going to own in the future, and is the requested Area Variance substantial? It is quite substantial for that house that will be sold in the front there, if this lot line adjustment is made, but I think that we can live with it due to the fact that both those drives do exist at the present time. They’re not going to be creating any new ones onto that busy road. Will the proposed variance have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district? The pre-existing conditions aren’t going to change as far as we are concerned at this time. They may change in the future, but that’ll be subject to review by the Planning Board when the permits are issued for that house that may be constructed in the back, and is the alleged difficulty of the applicant self-created? I would say yes, but in a practical sense, he’s trying to access his property and keep it viable in the back. If he doesn’t have any access, he’s not going to be able to develop that property. 9 (Queensbury ZBA Meeting 09/20/06) Duly adopted this 20 day of September, 2006, by the following vote: th AYES: Mr. Urrico, Mr. Underwood, Mrs. Hunt, Mr. Abbate NOES: Mr. McNulty, Mr. Garrand ABSENT: Mr. Bryant MR. ABBATE-The vote for Area Variance No. 46-2006 is four yes, two no. Area Variance No. 46-2006 is approved. MR. MATTHEWS-Thank you. MR. ABBATE-Thank you. AREA VARIANCE NO. 48-2006 SEQRA TYPE: II DANIEL & BETHELLEN MANNIX ZONING: PO/SFR-20 SPLIT LOCATION: 552 BAY ROAD APPLICANT PROPOSES CONSTRUCTION OF A 320 SQ. FT. ACCESSORY STRUCTURE. RELIEF FROM THE MAXIMUM NUMBER OF ALLOWED ACCESSORY STRUCTURES PER LOT IS REQUESTED. CROSS REF.: BP 2006-470 WARREN COUNTY PLANNING: AUGUST 9, 2006 LOT SIZE: 8.66 ACRES TAX MAP NO. 296.12-1-23 SECTION: 179-5-020 DANIEL MANNIX, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 48-2006, Daniel & Bethellen Mannix, Meeting Date: September 20, 2006 “Project Location: 552 Bay Road Description of Proposed Project: Applicant proposes construction of a 320 sq. ft. accessory structure. Relief Required: Relief from the maximum number of allowed accessory structures per lot is requested. (Section 179-5-020) Parcel History (construction/site plan/variance, etc.): None found. Assessing records show numerous minor improvements from 1930 through 1990.” MR. UNDERWOOD-“Warren County Planning Board Project Review and Referral Form August 9, 2006 Project Name: Mannix, Daniel & Bethellen Owner(s): Daniel & Bethellen Mannix ID Number: QBY-06-AV-48 County ID#: Aug06-28 Current Zoning: PO/SFR-20 split Community: Queensbury Project Description: Applicant proposes construction of a 320 sq. ft. accessory structure. Relief from the maximum number of allowed accessory structures per lot is requested. Site Location: 552 Bay Road Tax Map Number(s): 296.12-1-23 Staff Notes: Area Variance: The applicant proposes to construct a pole barn/Gazebo adjacent to the pool area. The structure is to be about 320 sq. ft. Relief is requested for having more than one accessory structure on the property. The information submitted shows the location of the existing structures and the proposed one. The new structure is located towards the center of the parcel and over 100 ft. from the property lines. Staff does not identify an impact on county resources based on the information submitted. Staff recommends no county impact. County Planning Board Recommendation: No County Impact” Signed by Richard C. Merrill, Warren County Planning Board 8/15/06. MR. ABBATE-Okay. Would the petitioner of Area Variance No. 48-2006, Mr. Mannix, be kind enough to approach the table, speak into the microphone, and for the record identify yourself and your place of residence, please. MR.MANNIX-Good evening, Daniel Mannix, 552 Bay Road, Queensbury. MR. ABBATE-Okay. Again, before we proceed, I wish to advise you that the burden of proof to prove your case rests squarely on your shoulders and not this Board. Do we understand that, for the record? MR.MANNIX-Yes, sir. 10 (Queensbury ZBA Meeting 09/20/06) MR. ABBATE-We do. Okay. Are you prepared to proceed? If you are, go ahead. MR.MANNIX-Yes. The application before you seems straightforward to me. You see the picture they put up there. It’s a structure we want to place between the pool that you can see to the south of the house, in between the pool and the garage. The reason we need the variance is the previous owner, John Hughes, put a screen house within the pool area. It’s considered an accessory structure. That structure is about 10 by 15, as far as the usable area inside the structure. Other than that there’s a couple of rooms, changing rooms, that are probably three feet square, and we considered remodeling that and making that structure larger, but my wife and I discussed that we wanted the structure outside the pool area so that if we wanted to entertain without the kids having access to the pool area, we would be better to have it outside the fenced area. So we proposed this, I call it pavilion, pole barn. It started out as a simple plan of just being a 16 by 20 pole barn, but then, as my wife sees stone pillars and things, it seems to be getting more than just a simple pole barn. It was, again, our idea that we would just build something to keep an area for people to go under cover. We entertain quite a bit in the summer, both my birthday, my wife’s and my two children are all summer birthdays, June and July. Any family party we have, just with family, there’s a minimum of about 50 people, with brothers and sisters and aunts and uncles. So it’s a considerable undertaking to move them inside when there’s kids swimming in the pool and all adults cooking outside. MR. ABBATE-Before we commence, Mr. Mannix, Staff notes has made a statement, the relief from the maximum number of allowed accessory structures per lot, but they have failed to indicate the number of accessory structures you currently have. How many do you have? MR. MANNIX-One. MR. ABBATE-You have one. MR. MANNIX-The screened house. MR. ABBATE-You’re requesting an additional one, for a total of two? MR. MANNIX-Correct. MR. ABBATE-Okay. Is there anything else you’d like to say at this time? MR. MANNIX-Based on my understanding of the Code and what not, our density is very, very low for the size of the lot that we have. I don’t think it’s a very large improvement to the property, as far as increasing the density and buildings on the property. I think it’ll, again, I don’t believe it’ll be visible from people traveling down Bay Road. I don’t think the height of it will come up enough, more than 10 or 11 feet from grade. So if they can see from Bay Road, it would just be the tip of the roof. There is a couple of modifications to the plans, not significant, but instead of a metal roof it will be a shingle roof, matching the structures that are around. We proposed a metal roof. I don’t know if that concerns you guys, and then the size of the posts, four by four posts, we’re doing six by six, I think, if we’re approved. MR. ABBATE-All right, and as I said earlier, since you don’t have counsel, we’ll be a little more flexible. So any time during these proceedings, if you don’t understand something or you wish to introduce something else, let us know, we’d be happy to take a look at it. Having said that, do any members have questions for Mr. Mannix? Ladies and gentlemen of the Board, do we have any questions for Mr. Mannix? If we do not have any questions for Mr. Mannix, I’m going to open up the public hearing for Area Variance No. 48-2006, and would those wishing, in the public, to be heard, please raise your hands, I will acknowledge you and ask you to come forward to sit at the table, identify yourself and your place of residence. Do we have anyone in the public who would like to address Area Variance No. 48-2006? PUBLIC HEARING OPENED MR. ABBATE-Seeing nothing, then I’m going to continue on, and again I’m going to ask the members to offer their comments. I’ve expressed it earlier this evening that I’d like to inform the public that your comments are made to the Chairman and they are not open to debate, and I’ve already respectfully reminded the members about precedence mandating we concern ourselves with the evidence which appears on the record. I don’t 11 (Queensbury ZBA Meeting 09/20/06) have to go through that. Now I’m going to ask members to offer their comments on Area Variance No. 48-2006. Do we have a volunteer? MRS. HUNT-I think the proposed accessory structure is modest in size, 20 square feet, and the existing other accessory structure is very small. So I really don’t have any problem with it. I would be in favor. MR. ABBATE-Okay. Thank you very much. MR. GARRAND-Given the fact that this piece of property is almost nine acres, I don’t see where a structure of this size is going to make any significant difference to the character of the neighborhood, I’d be in support of this project. MR. ABBATE-All right. Thank you very much. MR. UNDERWOOD-Yes, I would have to agree with the comments made so far. It’s going to be located just about dead center on this property. I mean, the nearest property line’s 125 feet away. I don’t think it’s going to be a major change. I think that the Code, as it exists, is reflective of smaller lots in the Town, and as Mr. Garrand said, nine acres is pretty substantially larger than anything else there. MR. ABBATE-All right. Thank you very much. Mr. Urrico or Mr. McNulty, please. MR. MC NULTY-Okay. I can understand the argument. This is a large piece of property. The proposed structure is relatively small, but there is a house on the property, a garage on the property, and a screen house at the pool. So it strikes me that there’s more than one accessory structure already on that property. My count says two, and this’ll be a third one. So I think, on general principal, that this shouldn’t get a unanimous approval. I think I’m going to be opposed on principal that it is beyond what the Code allows and there might be a practical alternative of doing something different, attaching it to the garage or something else. So, on that basis, I think I’m going to be opposed. MR. ABBATE-Okay. Mr. Urrico, please. MR. URRICO-I kind of agree with Chuck, but I don’t think this case warrants us impeding the applicant from achieving what would be a benefit to him, and I don’t see any change to the neighborhood character as a result because the size of the property would pretty much compromise any situation that might arise from it. While it seems substantial on the face of it, I think, again, this is, considering the type of accessory structures that could be built on a property, and that this property is pretty large in comparison to some of the lots surrounding it, I don’t see this structure having adverse effect, and not necessarily being substantial in that respect. So I’d be in favor. MR. ABBATE-All right. Thank you, Mr. Urrico. I would have to say that I would agree with the majority of the Board members. I think that your request is not unreasonable and I suspect if I were in your position I would ask for the same thing. I think the Board members who indicated they are in favor of your application have stated it quite well, and I don’t see any reason I have to go through it again, and I concur with their findings, if you will. Having said that, I’m going to close the public hearing for Area Variance No. 48- 2006. PUBLIC HEARING CLOSED MR. ABBATE-And I’m going to ask the members, again, to remember that we have the task of balancing the benefit of the variance against the impact on the area, and we know what the five statutes are, and we know what we have to address. I’m going to ask for a motion. I’m going to ask that your motion please be made with clarity. Is there a motion for Area Variance No. 48-2006? MR. GARRAND-Mr. Chairman, I’ll make a motion. MR. ABBATE-Please. MOTION TO APPROVE AREA VARIANCE NO. 48-2006 DANIEL & BETHELLEN MANNIX, Introduced by Richard Garrand who moved for its adoption, seconded by Joyce Hunt: 552 Bay Road. The applicant proposes construction of a 320 foot accessory structure on the property. Relief requested is from the maximum number of allowable accessory 12 (Queensbury ZBA Meeting 09/20/06) structures per lot as requested, Section 179-5-020. Looking at the balancing test, can benefits be achieved by any other means feasible. Aesthetically, probably not. If the facility were attached to the garage, it probably wouldn’t add too much to the area. It wouldn’t exactly fit in. I think the placement of it is a good placement. So I don’t think you could achieve the aesthetic effects in any other way. Will it result in an undesirable change in the neighborhood? No, I don’t think so, not given the fact that the property is nearly nine acres, and this is a very small piece of that nine acres. The request is not substantial in that it’s listed as a second accessory structure and it’s not really going to have any impact on the neighborhood. You can’t see it from Bay Road. You can barely see any structure you’re going to put there from Bayberry Drive. Will it have adverse physical or environmental effects on the neighborhood? No, I don’t believe it will. As to whether the difficulty is self-created, you can say it’s self-created. Basically you wanted a screen house. So, basically I would say, yes, it is self-created. th Duly adopted this 20 day of September, 2006, by the following vote: AYES: Mr. Underwood, Mr. Urrico, Mr. Garrand, Mrs. Hunt, Mr. Abbate NOES: Mr. McNulty ABSENT: Mr. Bryant MR. ABBATE-The vote for Area Variance No. 48-2006 is five yes, one no. Area Variance No. 48-2006 is approved. Thank you very much. MR.MANNIX-Thank you. AREA VARIANCE NO. 49-2006 SEQRA TYPE: II PETER MITELMAN AGENT(S) MICHAEL S. BORGOS, ESQ. OWNER(S): THE BBS MITELMAN FAMILY TRUST ZONING: SFR-1A/LI IN PART LOCATION: 27 NORTH ROAD APPLICANT PROPOSES CONSTRUCTION OF A MASONRY AND WROUGHT IRON (OR SIMILAR ALUMINUM) FENCE WITH GATED ACCESS IN ARCHITECTURAL FRONT YARD. RELIEF FROM MAXIMUM HEIGHT OF FENCE IN A RESIDENTIAL ZONE REQUESTED. WARREN COUNTY PLANNING: N/A LOT SIZE: 9.06 ACRES TAX MAP NO. 302.7-1-39 SECTION 179-5-060 MICHAEL BORGOS, REPRESENTING APPLICANT, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 49-2006, Peter Mitelman, Meeting Date: August 23, 2006 “Project Location: 27 North Road Description of Proposed Project: Applicant proposes construction of a masonry and wrought iron (or similar aluminum) fence with gated access in architectural front yard. Relief Required: Relief from maximum height of fence in a residential zone requested. (Section 179-5- 060) Parcel History (construction/site plan/variance, etc.): None found. Assessing records indicate property improvements in 1931.” MR. ABBATE-Okay. Would the petitioner of Area Variance No. 49-2006 please approach the table, speak into the microphone, and for the record identify yourself and your place of residence. MR. BORGOS-Good evening. Michael Borgos. I have an office at 82 Glenwood Avenue in Queensbury. I’m here for petitioner, Mitelman Family Trust. Mr. Mitelman regrets that he cannot be here in attendance tonight. He’s got some business out of town. He’s asked me to convey to you a little bit about why he’s seeking to put this fence and a gated access in his home. MR. ABBATE-Before we begin, counselor, I don’t have to go through this. I’m sure you heard this before. You understand the term burden of proof, you understand all that for the record? MR. BORGOS-I heard you all the first time. 13 (Queensbury ZBA Meeting 09/20/06) MR. ABBATE-Then if you’re prepared, if you want to suffer through this thing, proceed. MR. BORGOS-Thank you. MR. GARRAND-Mr. Chairman, at this time I’d like to recuse myself from this. MR. ABBATE-Yes, if you feel you must recuse yourself, please feel free to do so. MR. BORGOS-I’m just curious why Mr. Garrand is recusing himself. MR. ABBATE-Yes, Mr. Garrand, before you leave, please, the counsel for the appellant requested that you provide a brief description, if you will, or a singular word, to describe why you are recusing yourself. You don’t have to go into a long dissertation. MR. GARRAND-In the interest of justice, it might appear as a conflict of interest. MR. BORGOS-Are you related to Mr. Mitelman or to me? MR. GARRAND-I know Mr. Mitelman personally. MR. BORGOS-Okay. That’s fine. MR. GARRAND-All right. Thank you. MR. ABBATE-Counselor, proceed, please. MR. BORGOS-Mr. Mitelman has been coming to this area for 30, 35 years. He’s a resident of Montreal. He’s a native of Montreal I believe, and he’s finally found the home of his dreams to serve as a compound for his family to enjoy the area. He’s always stayed in rentals or in other facilities. He purchased the property in June and is not able to stay here 365 days a year. His family is here, at intervals when he is not, and one of his concerns was their safety. It’s a rather isolated, dead end road, a lot of wonderful homes in the area. It’s a great neighborhood, but a lot of wooded area around it and it is a dead end. So it’s not a high traffic area. So he looked around the neighborhood and noticed that there were some other high walls and fences and gates and thought that this home, which was built in 1931, really deserved to have some type of architectural enhancement if he was going to put some type of a fence in front for his security concerns. So he designed what we have submitted to you in order to address that concern. We submitted two different drawings to you. We tried to convey exactly what this would look like and also deal with the concerns that I think resulted in the Code having a four foot height limitation. If you look first at what I’ll call drawing number one, which has the elevation drawing of the fence on it, the top of that drawing has a section of it showing the gate which is proposed to be 14 foot wide with an opening at the center to swing in or out, probably in I guess. It would swing in, I’m sorry, and that will be controlled by some type of a code or a key access. The pillars have been designed to be consistent with the home itself. They’re proposed to be a brick of a similar type, and the wrought iron, which may not be real wrought iron, these days aluminum is a little bit more practical and less expensive, would fill the gaps between those pillars. There is a home at the end, just one lot away at the end of the cul de sac that has something a little bit bigger even, but we tried to match that in style. We knew that the Code requirement is really, as we see it, for two purposes. It should be no more than four feet, so there’s no obstruction of view, both from a driver’s or pedestrian’s standpoint, as they’re on the public right of way, and also aesthetically so you can view the home and the landscaping beyond, and make it a neighborhood feeling. We think that that has not been compromised at all by this design because of the wrought iron, the openness of it. There’ll be more light and air between the pillars than obstruction, and the alternative, as we start looking through the balancing test, one of the alternatives would be to build a compliant fence of four feet in height. That’s clear. That could be done, but given the scale of the property and of this home and those around it, we think that, frankly, it would look rather silly. It just would be dwarfed by the size of the home. The second drawing that I submitted to you deals with the visibility issue. This property is on the inside curve. It’s a subtle curve in North Road, but it is on the inside. So there’s certainly no corners that are going to have view sight obstructions. We threw the car in there so you could see that on the scale, a car will be able to exit the gate without any obstructions to the left or to the right. So there’s plenty of room to see. The setback is five feet beyond the Town right of way, which is measured 25 feet from the center of the road. So there are no setback issues, no obstructions. We think that if you look through this balancing test, certainly there are alternatives, and it’s not required that he have a fence in the front 14 (Queensbury ZBA Meeting 09/20/06) yard, but if his stated goal is to provide some type of a security feeling and an enhancement to the property aesthetically, then there really is no alternative, because if you were to go to a four foot compliant fence, it would not fit the scale of the property. If there are any questions, I’d be happy to field those. MR. ABBATE-Okay. MR. UNDERWOOD-You have depicted on the first drawing that you discussed here the lights that are up on top of each of those over height posts that support the wrought iron or aluminum fence. MR. BORGOS-Correct. MR. UNDERWOOD-But I’m going to guess that the Planning Board would be basically not in favor of that when it comes up for site plan review. MR. BORGOS-I’ve discussed that with my client, and he is willing to eliminate those lights from the top of the posts. MR. UNDERWOOD-Okay. MR. BORGOS-That’s been one of the concerns that was raised by the neighbors after this was submitted. They came over and discussed it with him and he wants to be a good neighbor. He said he’ll gladly remove those. MR. ABBATE-Okay. Do any other Board members have any other questions for counsel? MR. URRICO-How would the applicant feel about reducing it to six feet? Six feet is the maximum height for A type fences. You know the Code has four different options in terms of where the property is located. A would be a corner lot. This is not a corner, but in practicality it is. MR. BORGOS-I’m sure he’d be amenable to that if that was the only way that he would receive approval tonight. We did consider a lower height, and just from a scale perspective, this is what was created, but if the Board felt that the lower height was more acceptable, then he’s already given me authorization to say yes to that. MRS. HUNT-The brick structures are seven feet. You’re requesting seven feet in height. MR. BORGOS-Correct. MRS. HUNT-And the wrought iron six feet. MR. BORGOS-Correct. MR. UNDERWOOD-I’m trying to remember when we had, we had a similar request for one of these fences last year, I think it was Kubricky. MR. ABBATE-Yes, I think you’re correct, Jim. MR. UNDERWOOD-Does anybody remember how high that one was? MR. URRICO-It was a farmhouse up behind Rolling Ridge, somewhere in there. MR. UNDERWOOD-Yes, Kubricky was that big white fence there. MR. ABBATE-Ten feet, I think the Zoning Administrator says ten feet. MR. UNDERWOOD-Okay. MR. ABBATE-Any other questions from members of the Board? Okay. What I’m going to do, then, since there are no questions, I’m going to open up the public hearing for Area Variance No. 49-2006, and if we have anyone in the public who would like to address this particular variance, would you be kind enough to raise your hand? Yes, I will identify you. Approach the table, tell us who you are, where you reside, and what your relationship is to this case, please. PUBLIC HEARING OPENED 15 (Queensbury ZBA Meeting 09/20/06) BRAD KRAUSE MR. KRAUSE-Good evening. My name is Brad Krause, and I’m an attorney with McPhillips, Fitzgerald and Cullum here in Glens Falls, and we’re attorneys for Thomas and Elizabeth Meath. Mr. and Mrs. Meath reside at 38 North Road, adjacent to the applicant. Like nearly all of their other neighbors who I believe have sent in correspondences, they oppose the present application, and I believe that in reviewing the application and the applicable criteria for the granting or the evaluating of an Area Variance pursuant to the Town Law Section 267b3, that it’s pretty clear that the Area Variance should not be granted. The only benefit gained by the applicant is simply that they are able to build a fence to their tastes. There’s no objective reason or purpose, other than that. They simply want to build something that is to their taste and to their liking, that just happens to be against the Zoning Ordinance. However, beauty is in the eye of the beholder, and due to the prominent location, size and design of the fence, the neighbors of this community, including my clients, will be left to view a fence that they find garish, visually intrusive and aesthetically displeasing on nearly a daily basis. They’re full-time residents there. The claimed benefit of the added security is belied by the fact that as a general rule there is little or no crime in this neighborhood, and by the fact that the fence does not enclose the property or the applicant’s house. While it might control vehicular access to the property, I don’t know that it needs to be seven, perhaps eight feet high, when you consider the globes at the top of the pillars to accomplish that purpose. There really is no reason to vary from the Ordinance. Again, it’s simply a matter of the applicant’s desires and tastes in the fence, and it being at odds with the law. The relief sought is inconsistent with the stately and quiet single family residential character of the neighborhood. I’ve had an opportunity to look at the neighborhood myself, and the neighborhood contains open, well maintained and manicured lawns that create a park like atmosphere or ambience, and granting this variance to permit a fence of this size and nature would detract from that ambience, and because of its prominence and its uniqueness, it will be the only structure of this kind on North Road. The fence will create a more closed and institutional, perhaps commercial atmosphere, particularly with the numerous globes atop the many masonry pillars that are proposed. In reviewing the application, the applicant admits that there are feasible alternatives that comply with the Zoning Ordinance, but dismissed them merely because they are aesthetically unpleasing to them and not for, again, any objective purpose or reason. The applicant’s contention that a compliant fence would not blend into the neighboring residences must be disregarded because if this were true, then everyone in the neighborhood would be entitled to a fence height variation, thereby rendering the Zoning Ordinance meaningless in this particular neighborhood. The amount of relief sought is substantial, particularly since when you include the globes, the total height of the fence appears to be nearly eight feet, twice the height allowed by the Ordinance, and, again, that’s when you consider just the pillars and the globes. I understand that the wrought iron fence portion is smaller than that. Also I think it’s important to consider that the environmental and physical conditions of the neighborhood will be adversely impacted as well, if the variance is granted. The applicant proposes adding 15 large globe lighting fixtures to the top of the seven foot pillars, and the light emitted from the globes will only add to light pollution in this otherwise appropriately lit, quiet residential area, and I think it would only foster or create a more institutional or commercial atmosphere in the neighborhood. If I had to succinctly state, you know, what really is at the bottom of at least my client’s objection, it’s the height and the globes. All these, you know, 15 globes will create a lot more light in the neighborhood that will detract from the character of the neighborhood and also I think impact the physical and environmental conditions by adding to some light pollution in this neighborhood, and for all of these reasons, I think when you look at all of the criteria, there just really is, you know, the balance tips in favor of denying this application. Thank you. MR. ABBATE-You’re welcome. Thank you very much. Do we have anyone else in the audience who would like to address Area Variance No. 49-2006? MR. UNDERWOOD-I have two other letters that we received. MR. ABBATE-Please. nd MR. UNDERWOOD-This one was received on August 22. “Members of the Queensbury Zoning Board, Upon review of the plans of the Mitelman family to erect an eight foot fence across the front of their property, we have the following objections. The eight foot height of each of the fifteen pillars, spanning a hundred and thirty two feet, is totally out of character in this quiet, understated neighborhood. The luminescence from the lights atop these pillars will create a glaring, garish commercial like atmosphere on 16 (Queensbury ZBA Meeting 09/20/06) an already adequately lighted street. The height of the fence will also give the home an institutional appearance and will alter the complexion of our surroundings. Please consider these thoughts when making your decision. Respectfully yours, John & Mary nd Gijanto” And the last one. This one was just received, I believe. It’s dated August 22, to the Zoning Board, RE: the variance application by the BBS Mitelman family trust for relief from fence maximum height restrictions “I am the owner of approximately four acres (4) with frontage of 503 feet on 24 North Road immediately facing the Mitelman’s proposed fence and I very much object to the granting of the variance. The proposed fence would contain fifteen columns, seven feet in height, with a twelve inch high light fixture on each one. This would make an 8’ high structure which would double the size of the allowable fence height. This proposed fence will not provide additional security since the rest of the property will not be fenced. The established Zoning Ordinance itself recognizes the aesthetic importance of limiting fence height and the historical enforcement of this Ordinance has provided the neighborhood with a consistent character to this residential community. I feel it is crucial to support the current Zoning Ordinance in order to maintain the established character of the neighborhood and I very much object to the granting of the requested variance. Sincerely, (Josie Beckos Wood) Mrs. Charles R. Wood 24 North Road Queensbury, NY 12804” MR. ABBATE-Do we have any other correspondence, Mr. Secretary? MR. UNDERWOOD-That’s it. MR. ABBATE-Counselor, would you like to address that rather extensive brief? MR. BORGOS-Sure. MR. ABBATE-Okay. MR. BORGOS-I think we already addressed the fact that nobody likes the lights. So we’ll gladly remove the lights from the pillars. That’s been discussed already. I would like to point out that indeed there were two similar properties with large fences. At the end of the road, I think it’s the Whitney Estate has had a very high wall for many years, and at the other corner, on Garrison and North, Mr. Wood’s former estate that Mr. Leombruno owns now, has a large wall, I think it’s over eight feet, certainly, around it. So I do think there are some other examples. We believe it’s a very unique property. It’s a very unique neighborhood. Just those several lots right through there are, you can’t find similar homes anywhere else in Queensbury. You really can’t, certainly not with the age and the history. We appreciate the fact that it is a park like setting and that is beautiful left open in some people’s eyes, but when I talk about security, what Mr. Mitelman is trying to express there is that they feel more secure. Certainly there are many opportunities to come in from the Bard property to the northeast, or from Bay Road to the due east, but it’s a very thickly overgrown woodsy area, and I think their concerns are more like, you know, can somebody just ride up across the lawn. It’s an intangible thing, rather than an alarm system type approach. Those are the major issues that I’ve heard, and we’re certainly willing to reduce the height of those pillars to make it less of an issue from a height standpoint, and without the globes there, I think it’s just the intermittent nature of those pillars that are going to be so high above. MR. ABBATE-If I understood you earlier, you indicated that you would be willing, at least your client would be willing to eliminate the lights. You’d be willing to lower the height to, what was it, six foot, is that what you said? MR. BORGOS-Yes. MR. URRICO-Mr. Chairman, if I could get some clarification. What is the variance at this point? I don’t know what the allowable. MR. UNDERWOOD-They need three feet, at the present time, for what they’re asking. Four feet is the max. MR. URRICO-Four feet. So, according to our Code, this is considered a C, or a C on the drawing that we have that depicts the various height allowances? MR. ABBATE-I think, if I’m not mistaken, I’m going to ask the Zoning Administrator, am I correct that they’re asking for, or, counsel, you’re asking for four foot of relief? MR. URRICO-He hasn’t indicated that in his submission. 17 (Queensbury ZBA Meeting 09/20/06) MR. UNDERWOOD-No, it’s three feet. MR. BORGOS-The application is on here for three feet of relief. MR. ABBATE-Three feet of relief. MR. BORGOS-Correct. MR. ABBATE-Okay. MR. BORGOS-And that’s depicted on, again, the first drawing here. You see the four foot line is drawn in (lost word) cross, so you can see what a compliant fence would be, and then above it, the wrought iron would extend two feet. MR. UNDERWOOD-So it’ll be two feet on the wrought iron. It’ll be three feet on the columns. MR. BORGOS-As proposed. MR. ABBATE-Two feet and three? MR. BORGOS-Correct. MR. ABBATE-Okay. MR. URRICO-I’m not clear on why that’s the case. I’m not clear why four feet is the maximum. How do we determine that? MR. ABBATE-Well, this is what I’m going to do. I’m going to ask Staff, how do the Ordinances read in terms of fences, maximum height? MR. HILTON-As this is the front yard, or the front yard in front of the main entrance, architectural front yard, if you will, the Code states four foot high maximum fence allowed in residential areas in front of the main entrance of a home. So the requirement is four feet. MR. ABBATE-Thank you very much, Staff. Okay, Roy? MR. URRICO-Yes. MR. ABBATE-Okay. Let’s continue on here. MR. UNDERWOOD-I would just make a comment. The only fence that’s similar to this that I’ve seen around town is that one that’s on, I don’t know if you’ve driven down West Mountain Road, there’s a substantially long fence along that stretch by the end of Peggy Ann there, and that’s similar to this, but I’m not sure what the height of that one is. I know it’s not this high, but that one I think is compliant. MR. BORGOS-That’s all wrought iron. I believe it’s six feet high. MR. UNDERWOOD-It is six. MR. ABBATE-Okay. Any other comments or questions before I begin? Okay. I’m going to continue on, and I’m going to close the public hearing for Area Variance No. 49-2006. PUBLIC HEARING CLOSED MR. ABBATE-And, again, I respectfully remind the members we have the task of balancing the benefit. We know what the five criteria are, and I’m going to ask for a motion. Again, I would request that the motion be made with clarity and definition. MR. UNDERWOOD-We’ve got to make our comments first. MR. ABBATE-We didn’t do our comments? I’m terribly sorry. I apologize to the Board. Let me do this. Jim, since you reminded me I was in error, why don’t you go first. MR. UNDERWOOD-Okay. MR. ABBATE-Thank you. 18 (Queensbury ZBA Meeting 09/20/06) MR. UNDERWOOD-I’m unsure as to how I’m going to finish voting on this one, but here’s what I have to say. I think that we do have examples of fences that are, you know, plain wrought iron fences, which, to me, are a lot more reasonable than these added column type fences here which I think are a little bit over the top. I think that if you did have a six foot high wrought iron fence that went across the front, and you put a lot of plantings on that, it would probably be a lot more acceptable to the neighborhood, and I think it would fit in more. However, I will say there are pre-existing fences, you know, the Wood one, you know, the original Charlie Wood estate there on the corner probably is the example that most of us look at and say, you know, it is a little bit out of character with what’s there on the rest of that street. This request isn’t really extraordinary to me, because I think that, you know, it is at the end of a road. If it were out on the main street there, I would say, no way, because it would be way out of character with the openness that the neighborhood has made a request be kept that way. So, at this time, I think that you could go back and modify your plan further. I think that a plain wrought iron fence would be more in keeping with the character of the neighborhood without those columns. I think it’s a little over the top. MR. ABBATE-Okay. Thank you, Mr. Underwood. Mr. McNulty, please. MR. MC NULTY-I will agree that some efforts put into the design of this fence to make it attractive and to alleviate some of the objections. However, I think I’ve got to agree with some of the comments that were made during the public comment period that it strikes me that the neighborhood for this house is really North Road. It’s not the whole area there, and it strikes me that this would be out of character with the neighborhood. I think It would affect the appearance and the nature of the neighborhood, and that weighed fairly heavily with me. That combined with the fact that it certainly is not an entire security system and there’s some alternatives, including a compliant fence that would control vehicular traffic, if that were a problem. So I think there’s some alternatives if the owner really feels he needs a fence there, but mostly I think it’s out of character with the neighborhood and I think it’s going to be a detriment to the neighborhood. So I’m going to be opposed. MR. ABBATE-Okay. Thank you. Mrs. Hunt, please. MRS. HUNT-Thank you. I have to agree. I think the benefit could be achieved by some other means. I think the house is quite close to the road and I think this proposed fence is over the top. I would like to see some modifications. I would not be in favor of this. MR. ABBATE-Okay, and Mr. Urrico, please? MR. URRICO-Yes, I think I’m looking for some sort of a scale back on this as well, whether it’s a reduction or elimination of the brick posts and maybe a reduction, definitely a reduction in the wrought iron fence as well. MR. ABBATE-Okay. Counselor, I am going to concur with my fellow Board members and it appears that you may not have support for your appeal, and to make sure that we provide you and your client with every opportunity for a fair and impartial hearing, I’m going to suggest you consider the option of tabling, and if you do take the option of tabling, I’m going to request that you formally ask me, as Chairman, to please be kind enough to table your application, to take into consideration the thoughts of the members of the Zoning Board of Appeals this evening. So the decision is yours. MR. BORGOS-I would very much like to make that request to table this. We appreciate the comments, and that was one of our goals was to try to get some feedback, both from the neighbors and from the Board. We will take all that into consideration and come back with a new design for you to consider. When might we be able to get on the agenda? MR. ABBATE-Okay. I’m going to get to that right now. So you are formally asking me to table your application, for the record? MR. BORGOS-That’s correct. MR. ABBATE-Thank you. Now I’m going to ask that you please submit all the copies of th this new data to the Staff no later than the 15 of October 2006. Would you agree to that? MR. BORGOS-Yes. 19 (Queensbury ZBA Meeting 09/20/06) MR. ABBATE-You will agree to that. Okay. Having agreed to that, then I’m going to move that Area Variance No. 49-2006 be scheduled for a hearing on November 2006. MOTION TO TABLE AREA VARIANCE NO. 49-2006 PETER MITELMAN, Introduced by Charles Abbate who moved for its adoption, seconded by Joyce Hunt: 27 North Road. Tabled to November 2006. th Duly adopted this 20 day of September, 2006, by the following vote: AYES: Mr. McNulty, Mr. Urrico, Mr. Underwood, Mrs. Hunt, Mr. Abbate NOES: NONE ABSENT: Mr. Bryant MR. ABBATE-The vote to table Area Variance No. 49-2006 is five yes, zero no. The motion is carried. Area Variance No. 49-2006 is tabled for November 2006. Thank you, Counselor. MR. BORGOS-Thank you. AREA VARIANCE NO. 50-2006 SEQRA TYPE: II LARRY CLUTE AGENT(S): VAN DUSEN & STEVES OWNER(S): SHIRLEY HARVEY ZONING: SR-1A LOCATION: 489 WEST MOUNTAIN ROAD APPLICANT PROPOSES A MODIFICATION TO A 2- LOT RESIDENTIAL SUBDIVISION. RELIEF FROM THE DOUBLE THE MINIMUM LOT WIDTH REQUIREMENT FOR RESIDENTIAL LOTS ABUTTING ARTERIAL ROADS IS REQUESTED. CROSS REFERENCE: SB 27-2005 WARREN COUNTY PLANNING: AUGUST 9, 2006 LOT SIZE: 1 ACRE AND 1.26 ACRES TAX MAP NO. 301.17-1-3 SECTION: 179-19-020 JON LAPPER, REPRESENTING APPLICANT, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 50-2006, Larry Clute, Meeting Date: August 23, 2006 “Project Location: 489 West Mountain Road Description of Proposed Project: Applicant proposed a modification to a 2 lot residential subdivision. Relief Required: Relief is requested from the double the minimum lot width requirement for residential lots abutting arterial roads. (Section 179-19-020). Parcel History (construction/site plan/variance, etc.): SB 27-2005 Staff comments: None of the surveys filed with the application are signed or sealed. The applicants original subdivision approval included a shared drive along their shared lot line perpendicular to West Mountain Road. This shared drive exempted the lots from the double lot width requirement. The property owners now want separate drives. The Board may wish to review the purpose of the double lot width requirement (Section 179-19-020(A)) as part of your consideration of this application.” MR. UNDERWOOD-“Warren County Planning Board Project Review and Referral Form August 9, 2006 Project Name: Clute, Larry Owner(s): Shirley Harvey ID Number: QBY-06-AV-50 County ID#: Aug06-26 Current Zoning: SR-1A Community: Queensbury Project Description: Applicant proposes a modification to a 2-lot residential subdivision. Relief from the double the minimum lot width requirement for residential lots abutting arterial roads is requested. Site Location: 489 West Mountain Road Tax Map Number(s): 301.17-1-3 Staff Notes: Area Variance: The applicant proposes a modification of an existing 2-lot residential subdivision. The lots are located 20 (Queensbury ZBA Meeting 09/20/06) on arterial road requiring double the lot width. The lot width for Lot A is 150 ft. and Lot B is 126 ft. where 300 ft. is required. The applicant has indicated the two homes are pre existing and have their own driveways onto West Mountain Road. Staff does not identify an impact on county resources based on the information submitted. Staff recommends no county impact. Warren County Planning Board Recommendation: No County Impact” Signed by Richard C. Merrill, Warren County Planning Board 8/15/06. MR. ABBATE-Okay, and I see that the petitioner, as well as counsel, is at the table. Would you folks be kind enough to speak into the microphone and identify yourself and your relationship to Area Variance No. 50-2006. MR. LAPPER-Good evening. For the record, Jon Lapper and Larry Clute. Larry constructed the new house, which is the house on the southern lot, and he’s here at the request of the subdivider, Mrs. Harvey, who asks that this condition be modified. Just to get started, we all recognized that when the subdivision was approved the joint driveway, shared driveway on the property line was a condition of that subdivision approval, and we’re not saying that it can’t be done. It can be done. It’s just a question of whether that’s the best, appropriate way to handle this, and we’d like to give you a bunch of reasons why we think it would be better, under these circumstances, to have a separate driveway, but, obviously, if that’s turned down, then our other choice is to have a shared driveway. MR. ABBATE-Good. I’m glad you feel that way, counsel. Then I don’t have to remind you of the burden of proof? MR. LAPPER-Yes, sir. MR. ABBATE-Thank you very much. MR. LAPPER-What happened after the house was constructed was that it was discovered what you have on your map, which was not on the original subdivision, that there is a water line that runs to the house on the back, on what’s identified as the Darrow and Linda Maille property, which is just in an inconvenient location because it’s right underneath where a shared driveway would go. That’s an existing right of way that the lot in the back has to get Town water. So that’s a constraint, in terms of putting the driveway on the property line, part of it because it’s five feet underground, and there are grading issues. I know that you’ve all been to the site, and so that’s just one issue, but the real problem is that the existing house will have to have a driveway that comes across the front lawn to hook up with the shared driveway, and, again, while that’s not impossible, there’s a grade change issue there. It’s just not the best driveway location because it’s going to be about a 15% or more grade change to get up there, and the grade can’t really be changed because of that water line, but perhaps the best reason in this case, the justification or the theory behind the arterial road is to have the double the lot size or the shared driveway is because of traffic safety, obviously, and in this case, the better sight distance is from the existing house, from the driveway on the existing house. So by requiring that the driveway be constructed on the common property line, you’re basically moving the cars from both houses to a place which has less sight distance. So in this particular case, I think it would be preferable, it would be safer for the existing house to use the access with better sight distance, so that you only have one house or two cars, basically, using the driveway which has less sight distance, and that’s really the practical reason, and Mr. and Mrs. Belanger, who are the purchasers of the new house, are here and they will speak at the public comment period to talk about how it effects them. They also would prefer that they have a separate driveway, but they also understand that if the decision is no, that they’ll have to have a combined one. MR. ABBATE-All right. Good. You’ve temporarily concluded your argument up to this point? MR. LAPPER-Anything you want to add at this point, Larry? LARRY CLUTE MR. CLUTE-Yes. Hi. Larry Clute, agent for Shirley Harvey. At the time of the initial application for the subdivision, possibly due to a lack of time put into the site walk for myself, looking at it two dimensional, it worked out very well, but looking at it reality, the grade issue there, leaving Sherman Avenue dropping south, is a dramatic grade difference, and it does create some issues when you come off of the Belangers’ house moving towards Harvey’s house. You end up with a pretty good rise to go into her yard, which actually accents the issue, the sight distance that Jon had brought up. We 21 (Queensbury ZBA Meeting 09/20/06) possibly could have come up with a better contour when I was grading, but with the water line issue with this rear property, standard practice you want to stay five foot above that, and so that kind of controlled the contour as well. We weren’t able to get a smooth transition between the two houses. So, again, it created a pretty healthy slope going up into what would be Shirley’s shared access versus Mr. Belanger’s access. Mr. Belanger is nice and level and typical. Shirley’s is rather dramatic, and it creates an issue, and the water line is what honestly created that, and then another issue with the water line. It’s not standard practice to have taps or water lines under a driveway. As a matter of fact, it’s not recommended at all, for frost reasons. MR. ABBATE-Okay. Well, thank you very much, Mr. Clute. Members of the Board, do you have any questions for the appellant? MR. URRICO-When was the subdivision approved? MR. CLUTE-2005, but I’m not sure exactly when. MR. ABBATE-It was 2005? MR. CLUTE-Yes, sir. MR. ABBATE-Okay, that’s accurate. MR. UNDERWOOD-Twenty-six, so it probably was like in the beginning of the year, like March or something. MR. ABBATE-Okay, 2005. Any other members have any questions? MR. GARRAND-Quick question. Is there another option? Is re-grading an option? MR. CLUTE-It’s really not, as I just explained, with the, I wish I’d have spent more time before I got into, because it’s a good slope. West Mountain Road itself, coming from Sherman Avenue, shooting down into a gulley, so to speak, it’s a pretty dramatic drop, and so just in that respect, the road itself creates some contour issues. Add the water line, which I was totally unprepared for, into that, and it multiplies the issues of grading between these two homes. So it makes it really difficult, and the grade that I have now in place really is probably the best I’m going to be able to accomplish if this action is not approved, simply because of those issues. MR. ABBATE-Staff, do we have a topographic map you could show us on this on here by any chance? No, we don’t? All right. MR. HILTON-Not to any great detail. MR. ABBATE-All right. Would it show what Mr. Clute was just saying, the slope, the dramatic slope? MR. HILTON-It would probably show 10 foot contour intervals and nothing more than that. I’ll work to put it up. You can decide whether or not you want it. MR. ABBATE-Okay. MR. UNDERWOOD-Is that water line only feeding that one house in the back, too? MR. CLUTE-All the way to the back, yes. I discovered it by accident, to be honest with you. No idea. We discovered it by accident and put it back, and then at that point I called the Water Department to have them re-inspect that I complied with Queensbury Code, because I fully exposed this man’s water line. MR. LAPPER-You found it with a backhoe, in other words? MR. CLUTE-Well, we found the tap. The water line itself, we never got down to the lower level, you know, down the five foot that’s required, but out towards the road we found the tap, and I was, I couldn’t understand where the tap had come from, and initially I thought the tap belong to the pre-existing, there used to be a pre-existing structure. Shirley Harvey’s mother actually used to live on this, it wasn’t two lots at the time, but there was a house with a pre-existing driveway, and I said, well, gee, maybe that’s a tap that serviced that home. I went to the Water Department and they said, no, they were on a point well at the time. So I had them come out and search it down, and we were told it 22 (Queensbury ZBA Meeting 09/20/06) belonged to that rear house and they located that water line. That’s how Matt was able to put it on this map. They come out, the Water Department literally came out and located the water line as well as the tap, but that was sheer accident, and we didn’t do any damage when we discovered it. MR. UNDERWOOD-Could I ask Craig a practical question. Since we weren’t privy to this when this original subdivision was done, what would the Planning Board suggestion have been, do you think, regarding this, had they known the water line was there? I mean, no one knew about this water line? MR. BROWN-Well, we just found the date, it’s January 17, 2006 is when it was finally. It was a 2005 subdivision. It didn’t get done until 2006. Do you want me to speculate on what the Planning Board would have said? MR. UNDERWOOD-Yes, I mean, just for practical reasons, like, what would they have suggested? MR. BROWN-I couldn’t guess at that one. I don’t know. I’m sure it was discussed. It’s a requirement that they do that. It is for traffic safety access issues on the West Mountain Road. It was agreed to, and then changed position after the house was built. MR. UNDERWOOD-So the original house that was on site was taken down? MR. BROWN-Correct. MR. UNDERWOOD-So that originally had its own driveway to begin with, though, correct? MR. BROWN-That I don’t know. MR. LAPPER-I think that’s still on the map. MR. UNDERWOOD-It depicts it on the map. MR. BROWN-Okay. Yes, I don’t have the map in front of me. MR. ABBATE-Any other Board members have any questions? Yes, Mr. Clute, please. MR. CLUTE-Excuse me. I’m sorry. Going on recollection of that meeting when they did authorize that, a few of the Board members recognized the two driveways and thought that it wasn’t a bad idea to have two driveways, but it wasn’t in compliance with the Code that they were trying to adhere to. So they were forced back to the shared driveway, but initially there were two driveways, and a few of the members actually spoke up and said that it actually sat better, but in order to accomplish what we were after, it had to come back to Queensbury regulations which required, the minimum lot width required the shared driveway. MR. UNDERWOOD-Are you going to have to go back to Planning Board with this? MR. CLUTE-Honestly, I’m not sure. MR. UNDERWOOD-I don’t know. I mean, I assume they will. MR. ABBATE-Yes, they will. MR. UNDERWOOD-I mean, because in a practical sense, the Planning Board suggested the combining of the two driveways. I mean, if we approve this and it goes back, we can send it to them with our approval for two driveways and then say why don’t you guys make the best decision, what you think is reasonable. I mean, we could do it that way. MR. ABBATE-Once we make a decision, the Planning Board cannot override it or modify it. MR. UNDERWOOD-Well, they’ve already put their plan. MR. ABBATE-Put forth a recommendation, but once this Board makes a decision, nobody in the Town can override it or modify it. So whatever decision we make, they’re going to have to deal with. That kind of thing. Anybody else have any questions? 23 (Queensbury ZBA Meeting 09/20/06) MR. MC NULTY-Potential for a driveway from the existing house to Sherman Avenue extension? MR. CLUTE-It’s labeled as Sherman Island extension, but I call it Clendon Ridge. It’s a dramatic drop from that elevation. I don’t know if you’ve driven over there, but the hillside, you’re probably 15 to 20 foot rise from that road level. MR. MC NULTY-Okay. MR. LAPPER-So it’s not practical in this case? MR. CLUTE-No. MR. ABBATE-No, that’s a very steep incline. MR. LAPPER-I asked that question also before I went out and looked at it. MR. URRICO-I see the width from the existing house driveway to the property line, but what’s the width from the, it would be the second driveway, if you were granted that to the property line? What’s the difference? MR. CLUTE-Typical is 12 to 16 width of a driveway. MR. URRICO-I’m sorry, I’m not asking the question right. The width between what is now the existing driveway and what would be the second driveway that you’re proposing, in lieu of the. MR. CLUTE-Distance, you mean? MR. URRICO-Yes. MR. CLUTE-I’m going to use this scale, roughly, that’s on this map. I don’t know how accurate I’d be, but if you see the existing home, just to the right of their driveway is a survey mark, and then come to the corner property line they’re showing 126 foot between those two marks. MR. URRICO-Right. MR. CLUTE-So I’m going to guesstimate that you’re probably 140, maybe 140 foot between. No, if you go with the new driveway, the proposed driveway, you’re going to be roughly that 126, maybe a little bit. MR. URRICO-I see 44.79 there. Does that represent anything? I’m not sure what that represents. It’s sort of next to the crushed stone drive, or in the middle there. MR. CLUTE-That’s the side line, 44.79, yes, that’s the setback from the house to the property line. MR. URRICO-But the driveway that you’re proposing would be where, if it was? MR. CLUTE-This is a side load garage. You see the 44.79. That’s a side load garage. MR. LAPPER-That’s in the middle of the driveway. MR. CLUTE-Right. So it would literally to the right of that garage, you’d still have to exit and right now as we see it, you see it dotted in there. That driveway exists. It literally goes right to that property line. MR. LAPPER-Are you asking the distance between the two driveways, Roy? MR. CLUTE-One hundred and twenty, roughly. MR. LAPPER-Yes, I would say 115 to 120. Because it’s that 126 goes to the far side of the driveway. MR. URRICO-And the second part of the question, the different question would be, what would be the difficulty in paving over a water line, aside from a drop in the? 24 (Queensbury ZBA Meeting 09/20/06) MR. CLUTE-The rule of thumb is if you’re in an exposed area, frost tends to settle with traffic. When you end up with a blanket of snow, it minimizes your frost depth. It doesn’t creep down so fast or so deep. You do a road or a driveway, it’s more exposed and it’s more traveled and so the travel forces the frost down further and so does the exposure. So your frost typically settles. So they came up with a, actually it is Code. You have to have Queensbury inspect it. Your water lines have to be minimal five foot, and their taps, honestly, are supposed to be, I don’t know this, but I know my water lines, when they come and inspect them, are five foot or more. Their taps, I’m assuming their water lines, the municipal water lines, are the same, and that would be the reason. MR. URRICO-Were they five feet? MR. CLUTE-Yes, because again, I didn’t expose the water line. I didn’t get to the copper. We didn’t get that far down, but a tap literally is a pipe that comes right up to the surface. I exposed that and didn’t know where that came from. So we stopped, got Tim out there, the Water Department, to come on out and inspect, determine what it actually was. Initially I thought it belonged to the pre-existing home that was here. It was determined it wasn’t. It belonged to the man out in back. MR. URRICO-Okay. Thank you. MR. ABBATE-Okay. Anyone else have any questions for Mr. Clute? Okay. No questions, then I’m going to open up the public hearing for Area Variance No. 50-2006, and if we have any folks in the audience who would like to comment on this, would you raise your hands and I will acknowledge you. Yes, sir, and ma’am, would you be kind enough to come to the table, have a seat, speak into the microphone, tell us who you are and where you reside, please. PUBLIC HEARING OPENED STEVEN BELANGER MR. BELANGER-Steven Belanger. My fiancé, Gerry Perry, 477 West Mountain Road. We’re the purchasers of the new home on the subdivided lot, and we just really wanted to say, since we moved in in June, with the new existing driveway, it’s been kind of a nuisance for the cars, for Mrs. Harvey and her family to come in, because what they do is they have to, in the most part forcibly come around to the back yard of their property and at night time and during the day, especially at night time with the headlights going in and out, it shines right into our living room, which is in the back side of the home. We were just really kind of, just wanted to say that we are more for the proposed driveway where I guess it used to be, and we just kind of wanted the Board just to look and hopefully look at our perspective to see if it might be accomplished. MR. ABBATE-So make this a little clearer for me, please. Are you supporting the proposal? MR. BELANGER-Yes. MR. ABBATE-Okay. So for the record, you folks who are affected by this are supporting the proposal of Mr. Clute? MR. BELANGER-Yes. MR. ABBATE-All right. I just wanted to clear that up. Is there anything else you’d like to say? MR. BELANGER-No, that would be it. MR. ABBATE-All right. Thank you so very much for your testimony. We appreciate it. Do we have anyone else in the audience who would like to address Area Variance No. 50-2006? Hearing none, counselor, would you and your client please come back up to the table. Okay. We’ve reached a point now, again, I’m going to ask members to offer their comments concerning this Area Variance, and I’ve already respectfully reminded the members of our mandates, and having done that previously on several occasions, I’m going to ask members to offer their comment on Area Variance No. 50-2006, and do I have a volunteer who would like to go first? 25 (Queensbury ZBA Meeting 09/20/06) MR. URRICO-I’d just like to point out that the next driveway south of this is quite a bit a way, the house that’s south of that property, that next driveway is quite a distance away from this proposed driveway, just as a point, just as a point of reference. MR. LAPPER-Because it’s on the south side of that lot. MR. URRICO-Yes. MR. ABBATE-Thank you very much, Mr. Urrico. I appreciate that. Okay. I’m going to ask members to offer their comments, and I’m going to assume that was not Mr. Urrico’s comments. So let’s start, do we have a volunteer? MRS. HUNT-I’ll volunteer. MR. ABBATE-All right, Mrs. Hunt, would you be kind enough, please. MRS. HUNT-Yes. My first reaction was to deny because of what the agreement was to have a shared driveway, but hearing the evidence, the water pipe, the water service, and that no one is objecting to the two driveways, and it is affecting the new homeowners, I would be in favor. MR. ABBATE-Thank you very much. Do we have someone else who’d like to volunteer? MR. URRICO-Yes, I’ll go. MR. ABBATE-Mr. Urrico, please. MR. URRICO-This is not the first time we’ve heard this type of request for West Mountain Road. Let’s assume that they’re coming before us previously unheard. That would be the fairest way to go about this, I think, and we’ve actually asked two requests of this nature basically because the double width drive is difficult to speculate on until you really see it, and also because we’re trying to keep curb cuts to a minimum, but at the same time we have to be reasonable about them, I believe, especially on this road. Now that we see what we’ve created here basically, I think the applicant has basically brought forth a reasonable request. I think by granting this variance, I think it’s not necessarily a detriment to the health, safety and welfare of the community. I’d like to point out, as I did a few minutes ago, that if we grant this request, the driveway to the south is much further away, it’s almost double the lot width down to the south of here. So I believe adding this curb cut here is really going to be a minimal effect on West Mountain Road and particularly that area. So I think the benefit to the applicant, although we pointed out feasible means that he could achieve, I don’t think feasible, in this case, is the best means. I don’t really see an undesirable change in the neighborhood. It’s one more curb cut, I understand that, but I don’t think it’s going to change the character of nearby properties, and the request is substantial, but had this not been on an arterial road like West Mountain Road, this wouldn’t even be an issue, and I don’t see any physical or environmental effects, and the difficult isn’t really self- created. It was created by having a water pipe running under the property. So I’d be in favor of it. MR. ABBATE-All right. Thank you, Mr. Urrico. Do we have someone else? MR. UNDERWOOD-I’ll go next. MR. ABBATE-Please. MR. UNDERWOOD-I would echo Roy’s comments, too. I think in this sense we have to be practical, and, you know, with the water pipe there, you’ve basically made your case as to why it’s not practical for the siting of this as proposed by the Planning Board, and I think the Planning Board probably was acting in good faith, but if they didn’t know that the water pipe was there, I’m sure they would have had to modify their ideas, too. I think that the topographic constraints of the lot, you know, the practicality of going over to the road there, to Clendon Brook Road, then one to the north is labeled as Sherman, isn’t really practical either. It just makes it a longer more torturous ride to get out onto the road. In the sense of West Mountain Road, to each his own is not what we want there. I don’t think we want to see a driveway for every parcel, and when we can combine them in a practical sense, we would prefer to do that, but in this instance, as Roy said, a driveway did pre-exist there on that site, in approximately the same area. So it’s not going to create that much more of a traffic snarl in the morning for people heading to work and coming home in the evening. So, I’d be for it. 26 (Queensbury ZBA Meeting 09/20/06) MR. ABBATE-All right. Thank you. Mr. McNulty or Mr. Garrand, please. MR. GARRAND-I’ll go ahead. MR. ABBATE-Please, thank you. MR. GARRAND-I think here tonight we’ve explored that there are other means by which this can be accomplished, they just don’t seem feasible at this point. It seems the gist of 179-19-020 is that so that we don’t impede or hinder the flow of traffic and we keep traffic flowing in a safe manner. This area isn’t by any means really congested, and I don’t think, at this point, we’re going to be impeding traffic in any serious way. So I’d be in favor of this application. MR. ABBATE-Thank you very much. Mr. McNulty, please. MR. MC NULTY-I guess I’m going to stay with my negative streak. This property was subdivided based on a shared driveway. Sitting there looking at it, the day that I was there, it struck me that this is a perfect example of why there’s the requirement for double lot width out on an arterial road, the way the cars were buzzing by there. I think there’s a lot of arguments for keeping a shared driveway and, yes, it’s going to be a little more difficult to cope with, but it’s not impossible to solve the problem with a shared driveway. It just strikes me that it is going, separate drives are going to contribute to endangering the health, safety and welfare of people there, and so I’m going to be opposed. MR. ABBATE-Okay. Thank you very much. My position basically is going to be with the majority of the Board. I listened to what everybody had to say, including Mr. McNulty. He certainly has a point, but the Zoning Board of Appeals is really an appeal board where we act as a safety valve, if you will, to address these particular issues. I believe that the presentation this evening by the appellant and his attorney were appropriate. Had I been in your situation, I would be requesting the same thing, and so based upon what the majority of the Board members had to say, I support their position. Having said that, I’m going to close the public hearing for Area Variance No. 50-2006. PUBLIC HEARING CLOSED MR. ABBATE-And again, I respectfully remind the members of what our task of balancing the benefit is all about, the five statutory criteria, etc. Again, I’m going to ask for a motion, and I’d request that your motion be made with clarity, and at this point, I’m going to ask for a volunteer for a motion for Area Variance No. 50-2006, please. MOTION TO APPROVE AREA VARIANCE NO. 50-2006 LARRY CLUTE, Introduced by Roy Urrico who moved for its adoption, seconded by James Underwood: 489 West Mountain Road. The applicant is proposing a modification to a two lot subdivision. In doing so the applicant is requesting relief from the double the minimum lot width requirements for residential lots that abut arterial roads, that would be Section 179-19-020. In making the application, in addressing the five factors, the five criteria that we’re asked to use as a balancing test, I believe the applicant has explored a feasible means as an alternative, but that feasible means seems to have its own problems, and this would be a better solution to the problem. As far as an undesirable change in the neighborhood character, I don’t see any as a result of adding this one curb cut. I’d like to point out that this is pretty well spread out between those two properties with 120 feet between this driveway and the driveway south of it, and the position of the driveway further south, the next property down, there’s quite enough room separating those two as well. So I don’t see this as being a change in the neighborhood character. The request is substantial. We are putting a second curb cut, a second driveway where double the lot width is asked for, but again, this is minimized, I think, by the problems that have been produced because of the water line running through that proposed shared driveway. I don’t see any adverse physical or environmental effects, and the difficulty is not self- created, basically because of that same existing water line. I move that we approve this Area Variance. th Duly adopted this 20 day of September, 2006, by the following vote: AYES: Mr. Garrand, Mrs. Hunt, Mr. Underwood, Mr. Urrico, Mr. Abbate NOES: Mr. McNulty 27 (Queensbury ZBA Meeting 09/20/06) ABSENT: Mr. Bryant MR. ABBATE-The vote for Area Variance No. 50-2006 is five yes, one no. Area Variance No. 50-2006 is approved. Thank you very much. MR. LAPPER-Thank you very much. MR. ABBATE-You’re welcome. NEW BUSINESS: NOTICE OF APPEAL NO. 6-2006 SEQRA TYPE: N/A JOSEPH LEUCI d/b/a MOUNTAINSIDE AUTO AGENT(S): STEFANIE DI LALLO BITTER, ESQ. OWNER(S): GUIDO PASSARELLI ZONING: HC-INT. LOCATION: 1110 STATE ROUTE 9 APPELLANT IS APPEALING THE NOTICE OF VIOLATION ISSUED ON JULY 11, 2006 BY CODE COMPLIANCE OFFICER, AND FROM THE DETERMINATION BY THE ZONING ADMINISTRATOR DATED JULY 20, 2006 REGARDING THE NECESSITY FOR SITE PLAN REVIEW FOR THE ADDITION OF A PARKING FACILITY USE TO THE SUBJECT PROPERTY. CROSS REF.: SPR 14-97 & SPR 55-98 WARREN COUNTY PLANNING: N/A LOT SIZE: 5.82 ACRES TAX MAP NO. 296.9-1-7.2 SECTION: 179-9-020, 179-16-050 STEFANIE BITTER, REPRESENTING APPLICANT, PRESENT MR. UNDERWOOD-Okay. Prior to reading this, I guess I should read what the notice of violation and order to remedy was, just for the record. MR. ABBATE-Let me do this first. Counselor, would you be kind enough to tell us who you are, who you represent, please. MS. BITTER-Stefanie DiLallo Bitter, for there record. I’m here this evening on behalf of the applicant or the appellant, Joe Leuci, doing business as Mountainside Auto. MR. ABBATE-Okay. Please. MR. UNDERWOOD-Okay. This letter was sent to Mr. Leuci, and it says, “You are hereby notified that you have been found to be in violation of the Town of Queensbury Code: Section 179, Subsection 4, Paragraph 010, Section 179, Subsection 4, Paragraph 020 and Section 179, Subsection 9, Paragraph 020 (See attached copy of code). Additionally, you are in violation of your approved Site Plan 55-98 (including both modifications). The specific violation is: you are operating a public parking facility in the HC-Intensive Zone (in addition to your Site Plan approved use per SP 55-98 and both modifications) without a site plan review approval for such use, as observed by the Code Compliance Officer on July 7, 10 and 11, 2006. Your Site Plan 55-98 approval/approved modifications do not include the use of the property for a Parking Garage/Facility. You are hereby directed to eliminate the violation by ceasing the unapproved use in order to avoid the issuance of an Appearance Ticket for the Town of Queensbury Justice Court. You may apply for a site plan review to allow for the use, as it is allowed in the HC- Intensive Zone with a site plan review approval; however, the use must cease until time such use is approved. This is the only notice of violation you will receive regarding these matters. Our next communication to you will involve a formal enforcement action against you. If you have questions, or believe that you are not in violation of the Town of Queensbury Zoning Code, please contact this office.” And that was signed, Bruce Frank, Compliance Officer. The letter was received back from their agents, Ms. Bitter I think will get into that this evening, and I’ll just read that quick brief back. Please be advised that our firm represents Joe Leuci, dba Mountainside Auto with regard to the Notice of Violation that was issued on July 11, 2006. As you are aware, the violation was issued because of Mr. Leuci’s alleged use of this parcel for public parking. The specific violation was that he allegedly was operating a public parking facility in the HC Intensive Zone without site plan review approval, as observed by the Code Compliance Officer on July 7, 10, and 11, 2006. Although Section 179-4-20, identifies that in the Highway Commercial Intensive Zone a public parking facility requires Site Plan Review, under Section 179-9-020 it states that “Changes in use that would not increase the parking requirement by more than 10 spaces do not require site plan review.” At this time the property has a Site Plan Approval under SP 55-98. With this approval both auto sales and auto service are allowed at the site with the parking outlined in the approved Site Plan. A copy of which I have enclosed. The Parking Requirement as identified in Section 179-4-040 Table 5 identifies that for an Auto Sales and Auto Service use it is necessary that the property maintain 1 parking space for every 200 square feet and 1 28 (Queensbury ZBA Meeting 09/20/06) parking space for every 600 square feet of service. In this case the building at issue is 12,100 square feet, and the property maintains 130 spaces. The parcel obviously has more than enough parking for the Auto Service and Sales use. In addition, no where in Table 5 does it identify a parking requirement for a public parking facility. As a result, because the Code does not identify a parking requirement for a public parking facility, it would be assumable that so long as your parcel has parking spaces that exceed the parking requirements identified in the Code for the other uses, that adding public parking would not exceed the parking requirement by more than 10 spaces, and therefore Site Plan Review would not be necessary. Moreover, due to the fact that this parcel is located on the same side as The Great Escape, the pedestrians are not crossing the street, which of course provides for a safer environment. If you would please review this information with the violation and identify if it could be retracted I would appreciate it.” And that’s it. MR. ABBATE-All right. Counselor, you have identified yourself and your relationship to this applicant. I don’t have to remind you about the burden of proof. MS. BITTER-Yes. MR. ABBATE-And I raise that issue for a reason. I notice that in your response to Mr. Brown, you used the word alleged, and I also noticed that the only thing you’re appealing this evening is the Zoning Administrator’s decision. So I’m assuming by omission you accept the fact that your client is operating a public parking facility. MS. BITTER-That’s correct. MR. ABBATE-Thank you, for the record, thank you very much. If you’re prepared, please proceed. MS. BITTER-Yes. What we were identifying, and just to sum up the letters that I have specified or included in the appeal, the Section of the Code that’s referenced in his violation is Section 179-9-020. I specifically identify in my appeal that the sentences that are at issue is the changes in use sentences, and I’ll reiterate them. Changes in use which would not increase the required parking by more than 10 spaces do not require site plan review. Changes in use that increase the parking requirement by more than 10 spaces do require site plan review. If you reference the table, there’s nowhere in the table that identifies what is the parking requirement for a public parking facility. So clearly an ambiguity exists. As you’re aware, courts have identified that any ambiguity that exists in the zoning law should be determined in favor of the land owner. When I brought this up to Craig’s attention, Craig identified that he just looks at this as an additional use and references that site plan review is required for public parking facilities, but I still don’t see how it’s clear from this Section of the Code that a violation in this instance is clear to exist. MR. ABBATE-Okay. MR. UNDERWOOD-Can I just ask a question? MR. ABBATE-Let’s wait, because the procedure’s a little bit different. MR. UNDERWOOD-All right. MR. ABBATE-Counsel for the appellant for Appeal 6-2006 has made an opening statement, and I’m going to give the Zoning Administrator an opportunity to respond, please. MR. BROWN-Is Counsel finished? MR. ABBATE-Yes. MS. BITTER-Yes. MR. BROWN-Did you want to read the Staff notes? I notice you didn’t. MR. UNDERWOOD-Yes. I was going to do that next. MR. ABBATE-Please do that. STAFF INPUT 29 (Queensbury ZBA Meeting 09/20/06) Notes from Staff, Notice of Appeal No. 6-2006, Joseph Leuci d/b/a Mountainside Auto, Meeting Date: September 20, 2006 “Project Location: 1110 State Route 9 Description of Proposed Project: Appellant is appealing to the Zoning Board of Appeals relative to a July 20, 2006 decision made by the Zoning Administrator regarding the addition of a use on the subject property prior to the necessary Site Plan Review approval. Staff comments: The issue at debate here is whether or not the addition of a Parking Facility use to the subject property requires Site Plan Review or not. Both parties agree that the use did occur and may likely be occurring to date and both parties agree that a Parking Facility use is an allowable use in the Highway Commercial, (HC-Mod) zoning district. Apparently, appellants’ argument offers that the previously approved site plan for the auto sales/service use allows them to utilize the parking areas associated with that approval for a Parking Facility use without any additional Site Plan Review approvals. It is the position of the Zoning Administrator that the Parking Facility use is a new, separate use on the property and is subject to Site Plan Review per Town Code section 179-9-020, Applicability. A Parking Facility use is called out in the zoning code as a separate use and is not in any way included in the definition of an Auto Sales/Service use. Additionally, the approved site plan for the site does not include any provisions for parking other than for its own customers, employees and display vehicles.” MR. ABBATE-Okay. Now, Mr. Zoning Administrator, you have the option to respond. MR. BROWN-I guess I don’t have a whole bunch to add to those comments. I think the point that I’d like to stress is that it’s my position that it’s an additional use to the property. It’s not a change in use. If this was a change from, hey, we’re going to take out the Auto Sales and Service use and we’re going to change out and be a parking facility, that’s a change in use. If you’re going to continue to maintain the Auto Sales and Service use and now have a new separate use, which is listed as a site plan review use. It’s not listed as an accessory use. Parking facility has its own definition. It has its own availability to be a separate use on a piece of property. So if now the plan is to operate this second use on the property, it’s additional use, further site plan review is necessary. MR. UNDERWOOD-Can I ask a practical question? MR. BROWN-Sure. MR. UNDERWOOD-In dealing with the other one that we had previous to this, the one across on the other side of the road there, you worked out an agreement with them so that we didn’t have to see that, we didn’t have to hear that one. MR. BROWN-That was a change in use. MR. UNDERWOOD-Was there any way that this one could be worked out, or because the current use is still in effect you’re adding a third use, essentially. MR. BROWN-Well, a second use to this property. MR. UNDERWOOD-Yes. MR. BROWN-Right. MR. UNDERWOOD-Yes, I understand where you’re coming from. MR. BROWN-Okay, and that’s all I have, unless there’s any questions. MR. UNDERWOOD-Do we, not in reference to this, but we have that other place up the road that’s doing the same thing, too. Are we going to see that one in the future? MR. BROWN-Potentially. MR. UNDERWOOD-I would say obviously. Okay. 30 (Queensbury ZBA Meeting 09/20/06) MS. BITTER-What I incorporated in my appeal, not to reiterate, but. MR. ABBATE-If you want to respond, to ahead. MS. BITTER-Right. The change in use, I look at it as change of use can be additional use or change of existing use. It’s not really clear and it’s not defined in the Code, and I understand that that’s the Zoning Administrator’s job is to interpret what change in use is to identify, but again, it’s kind of ambiguous that changes in use could include additional uses as well, and that’s why I incorporated that in my appeal as well. MR. ABBATE-Let me ask you a question. Based upon your argument, then, is it conceivable that if we had another, let’s take Della, who sells automobiles, and they have a rather large parking area, then based upon your argument, they could, without a site plan review, rent out some of that space. MS. BITTER-Could utilize the extra spaces that they have. MR. ABBATE-Is that your argument? MS. BITTER-That’s my argument. MR. ABBATE-And you’re basing it on the fact that the Town Ordinances are ambiguous, is that correct? MS. BITTER-That’s correct, and I think if that’s a concern that this Board has, then it should be identified in the future with zoning amendments that are being provided to this Code as to what the public parking requirement is, so that this Section which identifies that if you’re not increasing or changing use by 10 spaces of the public parking requirement, or the parking requirement, couldn’t be done, or could be clarified. MR. ABBATE-Okay. So every automobile agency that has the same facilities as your client for repairs and selling that may have additional space, based upon your argument, they could very well, without a site plan review, rent the space out? MS. BITTER-I’m not saying just automobile sales. I don’t mean to make that, I’m saying every car dealership that exists here. My point is that there’s not a parking requirement that exists in your Code for a public parking facility. MR. ABBATE-Okay. All right. Thank you very much. Board members, would you like to ask Counsel any questions? MR. UNDERWOOD-I would just say hypothetically, I mean, like when Great Escape instituted the charge for parking there, I mean, was that a part of their original site plan review when they did the master plan for the park, that they were going to charge for parking? I don’t recall. MR. BROWN-I believe it was part. I remember the tollbooths being on the original plans. MR. ABBATE-Anybody else have any questions for Counsel? Okay. Having heard the appellant’s position and that of the Zoning Administrator, I’m going to open up the public hearing for Appeal No. 6-2006, and to meet the obligation of Public Officers Law Sec: 3 for a fair and open process the public hearing will now be open for Appeal No. 6-2006 and before I recognize the public, in the interest of time, please be crisp in any public comments, organized, and limit your comments to only the facts and information given this evening, and would those wishing to be heard please approach the table, speak into the microphone and identify yourself. You will be limited to five minutes. Do we have anyone in the public who would like to address Appeal No. 6-2006? Yes, sir. PUBLIC HEARING OPENED JOHN SALVADOR MR. SALVADOR-Good evening. My name is John Salvador, and I’d like to speak to the issue of Parking, with a Capital “P”. When parking is charged for separately, it becomes a separate and distinct use. It is a form of storage. It is, whoever charges for the parking accepts the responsibility of the care, custody and control of what’s being parked, consequently sales tax is due. We get into this in our business. We park trailers, boat trailers. We charge for it. A sales tax is due on that. We don’t charge for parking cars. 31 (Queensbury ZBA Meeting 09/20/06) It’s included in other taxable services that we offer, but to the extent that it is a separate use, and I say Parking with a Capital “P”, in the sales tax law, it is a taxable item. Mr. Brown should recall that we brought this fact to his attention with regard to a neighboring marina to us where they put up a sign charging five dollars a day for parking. This constitutes a new use, and it’s a sales taxable item. Now no action was taken there, for some reason, but that’s the point I would like to make, that that is that type of new use. MR. ABBATE-Thank you, Mr. Salvador. Your input is always appreciated. Do we have any other members of the public who would like to address Appeal No. 6-2006? I see no hands raised. Counselor, would you come back to the table, please. Since there’s no other interest in the public, the public hearing is closed for Appeal No. 6-2006. PUBLIC HEARING CLOSED MR. ABBATE-I’m going to request the Board members to offer their commentary, and I respectfully remind the members that precedence mandates we concern ourselves with the evidence which appears on the record to support our conclusions, and the evidence relied upon should be specifically stated. This is necessary in the event there’s a judicial review. Now, having said that, do we have a volunteer who would like to address Appeal No. 6-2006? MR. UNDERWOOD-Sure, I’ll go first. MR. ABBATE-Please, Mr. Underwood. MR. UNDERWOOD-I think in this instance, the Zoning Administrator has been correct, and I think that in informing the applicant that they were in violation, it will be necessary, if they want to continue it as a parking facility in the future, that they should come in for site plan review. I don’t think that’s a big stretch of the imagination to ask them to come in for site plan review, and I think that in this instance here, a parking facility probably would be something that would be looked at favorably, because there is adequate parking place for cars on site there, but I think that because you have extended the use into some area, a gray area that’s not defined, in this instance I think that we do have to think about the public safety. I think that, you know, to your benefit, you are located on the side of the park where the pedestrians will walk down a sidewalk to get to The Great Escape. They don’t have to cross busy Route 9 there, but who knows what the future holds. I mean, we’re not a protection racket for The Great Escape either by not allowing free enterprise to flow, and if somebody wants to make a buck by parking cars, then that’s an allowable thing, as far as I’m concerned, as long as you get approval for it, but I think you are going to have to go in and get approval, or some kind of nod from the Town to pursue that in the future. MR. ABBATE-Thank you, Mr. Underwood. Do we have someone else who would like to address this issue? MRS. HUNT-I will. MR. ABBATE-Please, Mrs. Hunt. MRS. HUNT-I agree with Mr. Underwood. I think that I agree with the position of the Zoning Administrator that this parking facility use is new and separate and subject to site plan review. MR. ABBATE-Okay. Thank you, Mrs. Hunt. Gentlemen, do we have anybody else? How about Mr. Garrand. Would you like to give it a shot, please. MR. GARRAND-Certainly. MR. ABBATE-Thank you. MR. GARRAND-While Counsel has stated that there is some ambiguity in the Town, I have to say that a parking facility at this site is a new use, and it should be up for site plan review. So I would, at this point, have to agree with the Zoning Administrator’s decision. MR. ABBATE-Okay. Thank you very much. Either Mr. Urrico or Mr. McNulty, please. MR. URRICO-I’d support the Zoning Administrator’s position. 32 (Queensbury ZBA Meeting 09/20/06) MR. ABBATE-Okay. Thank you very much. Mr. McNulty, please? MR. MC NULTY-It’s going to be nice to be on the winning side this time. I also am going to support the Zoning Administrator. He made a point that I was going to bring up if he hadn’t, that when I first looked at this Section, I was lamenting the vagueness that we have in the Code, and hopefully we’ll solve some of that as we go on with the revision process that we’re involved in now, but I eventually settled on the word “change” again, and to me, the way it’s worded, I think it clearly implies an exchange, not an addition. So if they were going to discontinue their automotive use or they’re going to discontinue the auto repair use and exchange that for public parking, then I think the applicant would have some ground to stand on, but in this case, I think change clearly says I’m going to change one thing for another, and that’s not what is happening. I also agree with the comments that some of the other Board members made that, that aside, it certainly seems like this kind of an activity should be subject to site plan review, and I’m glad we can conclude that maybe it will be. So I’m going to support the Administrator. MR. ABBATE-Counselor, you know, I hate to do this, but I agree with the Board members and I support the decision of the Zoning Administrator. It’s true, you’re accurate. The law does read if something is ambiguous and it states that the Zoning Board of Appeals has the option to change, etc., but when I asked you the question, would any other agency having the same services as your client, would they also be entitled to commercially park automobiles, you said yes. Then I said to myself, well, then the logic, the counsel is attempting to empty a sea of logic with a thimble, and it just didn’t ring with me. So, unfortunately, Counsel, I’m going to have to support the majority of the members of the Board. Now, let me continue. Is there a motion for Appeal No. 6- 2006? Now, listen carefully. The motion, then, will do one of two things. Number One, it will support, the motion will support the appellant’s challenge to the Zoning Administrator’s decision, or, B, to uphold the Zoning Administrator’s decision. Those are the only two options that we have, and I’ll say it one more time. I need a motion, one, either to support the appellant’s challenge to the Zoning Administrator’s decision or, two, to uphold the Zoning Administrator’s decision, and Board members in either case, please be precise in your motion and state clearly the facts in which you made your decision. Having said that, is there a motion? MS. BITTER-I’m sorry, I don’t mean to interrupt, but since the whole point is that there’s an ambiguity with the word “changes”, I would just ask that possibly you include that in your determination. If it is the Board’s decision that changes in use only apply to something that’s existing in exchange for, as opposed to in addition to. I think that would clear things up in the future. MR. UNDERWOOD-Sure, that’s fine. MR. ABBATE-Mr. Zoning Administrator? MR. BROWN-Yes, I would just caution you a little bit on rendering determinations. Fortunately or unfortunately, I look at it, that’s my duty. Yours is to either agree with me or agree with agree with the appellant and not render any new decisions about the Code. MR. ABBATE-And I would agree. Counsel, now, you know this. MS. BITTER-Right, and I guess that’s the point that I’m here, is that the changes in use is an ambiguous term, and that’s essentially the reason for our question why the violation existed. MR. ABBATE-Okay, but it’s not our function. The only person in the Town of Queensbury who has the authority to interpret a Code is the Zoning Administrator. The function of the Zoning Board of Appeals, as I said earlier, is not to be an advocate of the Town or of the appellant, but to interpret, basically, what decisions have been made by the Zoning Administrator, and so we have two decisions we can make this evening, based upon the logic of the Zoning Administrator. Is his opinion correct, in our opinion, and if it is, we support it, and if we don’t believe it is, we don’t support it, but you’re not going to box us in to suggest that we will make a interpretation of any Code. That’s not our function, nor our authority. MS. BITTER-Okay. MR. ABBATE-Okay. Having said that, you said you got it. You know what I’m looking for. So is there a motion, guys? 33 (Queensbury ZBA Meeting 09/20/06) MR. UNDERWOOD-I’ll make the motion. MR. ABBATE-Thank you very much. MOTION TO UPHOLD THE ZONING ADMINISTRATOR’S DECISION REGARDING NOTICE OF APPEAL NO. 6-2006 JOSEPH LEUCI D/B/A MOUNTAINSIDE AUTO, Introduced by James Underwood who moved for its adoption, seconded by Richard Garrand: 1110 State Route 9. The appellant was appealing to the Zoning Board of Appeals relative to a July 20, 2006 decision made by the Zoning Administrator regarding the addition of a use on the subject property prior to the necessary Site Plan Review approval. The Board essentially concurs with the Zoning Administrator in this regard. We’re fully in belief that he was correct in his determination, and that if they want to pursue another use on this site, in addition to the ones that are presently in use there, they will have to come in for a Site Plan Review. In this instance it would be a parking use that they would be proposing. th Duly adopted this 20 day of September, 2006, by the following vote: MR. URRICO-Can I ask a question. Mr. Underwood said “a” use. Are we talking about a parking? MR. UNDERWOOD-Well, in this instance it is a parking use that they would be proposing in site plan review. MR. ABBATE-So we’re clear for the record. Thank you, Mr. Urrico. Okay. That’s good. AYES: Mr. McNulty, Mrs. Hunt, Mr. Urrico, Mr. Underwood, Mr. Garrand, Mr. Abbate NOES: NONE ABSENT: Mr. Bryant MR. ABBATE-The vote is six to zero to uphold the Zoning Administrator’s decision. Thank you, Counsel. I appreciate you being here this evening. MS. BITTER-Thank you. NOTICE OF APPEAL NO. 7-2006 SEQRA TYPE: N/A STEPHEN & JOANN BORGOS AGENT(S): MICHAEL BORGOS, ESQ. OWNER(S): STEPHEN & JOANN BORGOS ZONING: SFR-1A LOCATION: 289 POTTER ROAD, SOUTH SIDE/CORNER OF POTTER RD. AND WEST MT. RD. APPELLANT IS APPEALING THE ZONING ADMINISTRATOR’S DETERMINATION OF JUNE 16, 2006 REGARDING THE MAXIMUM SQUARE FOOTAGE REQUIREMENTS FOR A PRIVATE GARAGE. CROSS REFERENCE: AV FOR OVERSIZED GARAGE, PENDING WARREN COUNTY PLANNING: N/A LOT SIZE: 10 ACRES TAX MAP NO. 301.9-1-18.2 SECTION: 179-2-010, 179-16-050 MICHAEL BORGOS, REPRESENTING APPLICANT, PRESENT MR. UNDERWOOD-And I’ll read that letter. MR. ABBATE-Please. MR. GARRAND-Mr. Chairman, at this time I’d just like to, once again, recuse myself. MR. ABBATE-All right. Would you do me a favor before counsel asks, in a very short sentence, would you please explain why you’re recusing yourself. MR. GARRAND-I’m going to recuse myself due to a potential conflict of interest. I know the Borgos’ now, and I just want to avoid any conflict of interest that may arise. MR. ABBATE-That’s fair enough. Thank you very much. Mr. Secretary, would you continue please. th MR. UNDERWOOD-Okay. This letter is dated June 16 to Steven & Joann Borgos, RE: Building Permit No. 2006-391 for an oversized garage. “Dear Mr. and Mrs. Borgos: I’m writing to you with regards to the above-referenced Building Permit application that has 34 (Queensbury ZBA Meeting 09/20/06) been submitted to us on your behalf. I have reviewed your application materials and find that your proposed project does not comply with the requirements of the Town of Queensbury Zoning Ordinance. Therefore, your plans will need to be revised or you will need to pursue an Area Variance application with the Town of Queensbury Zoning Board of Appeals before we can issue a permit for you. Specifically, your proposed garage exceeds the 900 sf maximum allowable by the Town of Queensbury Zoning Code. Your application materials cannot be further reviewed until these matters have been resolved. Revised plans, or an Area Variance application can be submitted at the Building Department desk at any time, Monday through Friday, 8:00 am - 4:30 pm. Variance application submittals are subject to the submittal deadlines outlined in the application. Should you have any questions, comments or additional information that might alter this determination, please do not hesitate to contact this office.” The letter that was sent back from the Borgos’, I’ll read that in. This one was dated August 10, 2006, from Steve and Joann Borgos, and this is RE: Appeal from decision of Zoning Administrator “We are in the process of building a new home on the south side of Potter Road near West Mountain Road. We have owned the property for about five or six years. The land is bordered on the east by a small parcel we own, on the south by the Glens Falls Watershed property, on the west by West Mountain Road, and on the north by Potter Road. Our home is being constructed approximately 300 feet off Potter Road, behind a large stand of pine trees. It is about 150 feet from the southern boundary of the property, over 500 feet from West Mountain Road, and about 125 feet from our own property to the east. The construction is intentionally isolated from other housing. [We have attached a copy of an aerial view of the house – except for the garage/storage area footings which were not poured at that time.] During the course of our building design, we were aware of the garage size limitation of the Town of Queensbury, and we instructed our designer to adhere to that regulation. We noticed that Queensbury permits garage space for no more than three vehicles, and there is a further restriction that no garage shall be greater than 900 sq. ft. We interpreted the restriction as mostly due to fire safety concerns, and directed our design person to construct a fire wall and fire door between our garage [two car] and our storage area. [Please see attached plan.] He did that. At this point, we met with David Hatin and asked him to review the plans. He said that we had followed the regulations and with the fire wall, as well as fire door, we had followed the rules. When we submitted the final plans, they were approved by Mr. Hatin, but they were rejected by the Zoning Administrator because in his opinion we had exceeded the 900 sq. ft. limitation. We disagreed, and said that the garage portion is less than 900 sq. ft., [actually 821 sq. ft. was noted on our plan by the Zoning Administrator] and the other room is a storage area for lawn and garden tools and supplies. The Zoning Administrator said he had no problem with that, but because we indicated a garage door on that space, we could put a vehicle in there and, in his mind, that was a violation of the rules. He said we could appeal his decision to the ZBA. He said that if we agreed to change the 10 foot wide door to six feet wide on our plans, he would approve the building permit, but he would not allow a Certificate of Occupancy if the original door is constructed. We argued the Zoning Administrator’s decision, but could not afford any further delay in our two year project just to get the permit. We told the Zoning Administrator that we would appeal his decision and requested a written determination. [A copy of the letter is attached]. We are submitting this request for a reversal of the determination on the basis that we have not exceeded the 900 sq. ft. limitation on garage space; the garage space is only 821 sq. ft. Thank you for your time and attention.” STAFF INPUT Notes from Staff, Notice of Appeal No. 7-2006, Stephen & Joann Borgos, Meeting Date: September 20, 2006 “Project Location: 289 Potter Road, south side/corner of Potter Rd. and West Mt. Rd. Description of Proposed Project: Appellant is appealing to the Zoning Board of Appeals relative to a June 16, 2006 decision made by the Zoning Administrator regarding the proposed construction of an oversized garage. Staff comments: The issue at debate here is whether or not a portion of a proposed structure should be considered as garage space or not. Apparently, appellants’ argument offers that the area in question is only intended for the storage of lawn and garden tools and supplies. It is the position of the Zoning Administrator that, consistent with the Town of Queensbury Zoning Ordinance §179-2-010 definition of a: GARAGE, PRIVATE 35 (Queensbury ZBA Meeting 09/20/06) PARKING, the area in question does allow for the shelter of an automobile and shall therefore be included in the overall calculation for garage square footage for the project.” MR. UNDERWOOD-Can we ask for a clarification. This structure as has been proposed here, is it 821, does that include the three pieces? Just the two? MR. BROWN-Correct, 821 is the two bay garage. MR. UNDERWOOD-Right. MR. ABBATE-Okay. Good. I see that the counsel and his clients are at the table. Would you folks be kind enough to speak into the microphone and identify yourselves, please. MRS. BORGOS-Joann Borgos, currently living at 286 Butler Pond Road. MR. ABBATE-Thank you. MR. BORGOS-Steve Borgos, same location. MR. BORGOS-Michael Borgos, office at 82 Glenwood Avenue. MR. ABBATE-Okay, and again, counsel, you are before us this evening, and I don’t believe I have to advise you about the burden of proof. I suspect, for the record, you understand that. MR. BORGOS-Thank you. MR. ABBATE-Okay, and if you do, would you like to make an opening statement? MR. M. BORGOS-I would. MR. ABBATE-Thank you. MR. M. BORGOS-I’m handing out two copies of the definitional section from the Code, if you don’t have that handy, along with diagrams taken from the applicant as well, which have been marked up to indicate the intended use of that storage area with the space to be taken up by the various pieces of lawn equipment, for example. We really believe that this is an interesting question, because what is a garage? Is it simply because of the, as is in this case, it comes down to the fact that there’s an overhead door. Is that what makes it a garage, the fact that, as Mr. Brown has stated, that it may shelter an automobile brings into the definition of a private garage. We think you have to take into account the intended use as well, because if you look at the definition of storage shed, that says not including trucks, automobiles or recreational vehicles, but there’s certainly many storage sheds that have overhead doors or have doors that open wide enough to get a vehicle inside, but it’s not a permitted use of a storage shed. What we’re saying here is that we don’t think it’s fair to pre-judge an applicant’s intended use and determine guilt before any inappropriate use is actually undertaken. MR. ABBATE-Not on the part of this Board, for the record, let’s make that clear. MR. M. BORGOS-Exactly. Okay. I’m sorry, on the part of the Zoning Administrator to make a determination like that. We believe that it would become, I suppose, an enforcement action. For example, even if, under the current definition, one commercial vehicle such that it’s not exceeding one and a half tons capacity, may be stored in a private garage, but what if it’s a two ton capacity commercial vehicle? How is that going to be dealt with? Well, the Code I’m sure would say, and does say, that the Code Enforcement Officer would have to write up a violation for that, and handle that in due course. We think the same thing here. The plans have clearly anticipated this space as 821 square feet and in fact as we’ve delivered to you today, with the construction under way, it was determined that the step into the stairs going down to the lower level in the basement was not a good idea, just as an abrupt change in elevation. A larger step was poured, and we think that Mr. Brown would probably agree with us that consistent with his exclusion of the sink/wash tub basin from his earlier calculation of square footage, he would probably exclude that raised step as well, because you wouldn’t be able to park a vehicle on it. That would bring the square footage down to 779 square feet. So both calculations are clearly within the allowable limits, and that, again, was the intent. The depth of the garage is necessary for a truck with a plow mounted on it, which is going to be necessary to maintain the driveway in the wintertime, and then the storage area is 36 (Queensbury ZBA Meeting 09/20/06) what was left over. Again, from a design standpoint, the roof lines and everything allowed for the extra space, and rather than construct an accessory structure to store this equipment, it made a lot of sense to integrate it with the house, and to enclose it. So the fire wall was built, per Code. The fire door was put in there. Again, everything was approved by Dave Hatin to say, yes, it meets the Building Code. So it comes down to just the interpretation of is it a garage space because a vehicle may be stored there. Well, we’re showing you today that the storage area is going to be used for storage, not for an automobile. It’s going to be for a lawnmower for a large shelving unit that’s four by eight feet in dimension. You’re not going to be able to fit a vehicle in there once that’s in there. It’s just impossible. The door is going to be an overhead door proposed, for the purposes of being consistent with the other two doors. It would look unusual to have two larger doors and then a much smaller one and still be an overhead door. The other concern is the width. These garden implements and tractors are getting bigger all the time, and the one at present is nearly six feet wide, with the discharge shoots for the mower deck, and it’s difficult to negotiate and maneuver that into small spaces. So the larger size door is a practical consideration as well. We don’t think it’s a garage space. We’d be happy to answer any other questions. MR. ABBATE-Okay. Well, first of all, before we ask for any questions, we’re going to ask the Zoning Administrator would like to respond. MR. BROWN-Again, in the Staff notes, you know, what this boils down to from my point of view is does the space have the potential to store a vehicle, and that’s the way the definition’s written, and I think the answer’s clear, and if you ask the appellant, I think that they would agree that, could you potentially store a vehicle in there. I think the answer would be yes. That’s why I call it a garage, and that’s really the short of it. MR. ABBATE-So your determination, then, is based upon the fact that the garage, as currently proposed, has the capability, or capacity to house a vehicle? MR. BROWN-Based upon the definition of what a private parking garage is, an area that can shelter a vehicle. MR. ABBATE-Right, based upon the definition. Okay. MR. UNDERWOOD-Craig, I’m trying to think of the other instance we had with one of these previous, and that was a long time ago down on Hudson Pointe. Remember we had that garage and they were putting a post in the middle of it so you couldn’t drive a car in there? And then later on we had to modify that one because somebody with a handicap van wanted to park their van in there. Remember? Down by Tim Brewer’s house, in that neighborhood. I think the only other thing I can think of is, in a practical sense, is, I know when Dan Valente came in, he’s got three bays on his house, over on Country Club Road, and I know that we made stipulations about that. I don’t even remember what they were, that he couldn’t park his commercial business vehicles there, I think. MR. BROWN-Yes, all three of those instances you refer to all required a variance for oversized garage. MR. ABBATE-Okay. All right. Would any members of the Board have any questions for the appellant and/or the Zoning Administrator? If not, I’m going to open up the public hearing for Appeal No. 7-2006, and again, to meet the obligations of the Public Officers Law Sec: 3 for a fair and open process, the public hearing is open for Appeal No. 7- 2006, and I’m going to request if we have any folks in the audience who would like to address Appeal No. 7-2006, please raise your hand and I will acknowledge you. Do we have any folks in the audience who would like to address Appeal No. 7-2006? I see no hands raised. So I’m going to move on. PUBLIC HEARING OPENED NO COMMENT PUBLIC HEARING CLOSED MR. ABBATE-And I’m going to now ask that Board members offer their commentary on Appeal No. 7-2006. Do we have any volunteers? MR. UNDERWOOD-Yes, I’ll go first. 37 (Queensbury ZBA Meeting 09/20/06) MR. ABBATE-Would you, please. MR. UNDERWOOD-If we add this on as garage space, what’s the total square footage going to be? Are we going to be like 1200? MR. BROWN-I haven’t done that calculation based on the new information provided tonight. MR. UNDERWOOD-It’s probably 350 or 400 square feet, would you guess? MR. BROWN-I couldn’t guess without doing it. MR. ABBATE-Counsel, do you have that figure? MR. M. BORGOS-Just under 1,000, 996. MR. UNDERWOOD-996 total, with the three bays? MR. M. BORGOS-Yes. MR. UNDERWOOD-So we would be 96 feet over the allotment. MR. ABBATE-Right, because 900 is acceptable. That’s correct. MR. UNDERWOOD-I mean, in a sense here I think where it’s headed towards is that you’re going to have to get a variance for an oversized garage, if, indeed, the feeling of the Board members is that it’s an oversized garage. I mean, you know, you give people the benefit of the doubt. I mean, if somebody tells me they’re going to use their garage for storage space, in a practical sense, I can buy that, but I think that the Zoning Administrator, in this instance here, probably is being cautious in saying, well, if it looks like a garage, it probably is a garage, and it could be used for parking, which may not be the intent of the present owners, but if somebody were to purchase the property in the future, they certainly could use it as a third garage bay, and I don’t think in this instance here it’s going to hurt you to have to come back in and ask for a variance for an oversized garage. I think, given the size of your parcel that you have there, we’ve given these to, like Dan Valente’s got one. The other one, I think we even gave an extra garage, I think, to somebody over going on Gurney Lane there. That was Nelson Miller’s property there, and that was one that we granted in the last year. I don’t think the Board, in this instance, would frown upon your request, you know, and I think that in this instance probably it makes sense for the Zoning Administrator to look at these things and say, yes, it looks like it could be used as a garage, and, reluctantly, I would have to go along with the Zoning Administrator and make the comment that you will have to come in for it. I don’t think I would have any problem in giving you a variance for this request because I think you’re being honest in what you’re saying here. MR. ABBATE-Any other members of the Board like to comment on this? Your comments, please, Mrs. Hunt. MRS. HUNT-I have to agree with Mr. Underwood. While the Borgos’ might not want to park three cars there, another owner could, and I’d have to agree with the Zoning Administrator this evening. MR. ABBATE-All right. Mr. Urrico or Mr. McNulty, would you like to comment? MR. MC NULTY-I’m going to have to agree with the Zoning Administrator also, partly on a practical basis. As has been kind of mentioned now, while the current applicants are saying that they’re going to use this strictly as storage, at some point in the future it’s going to be a garage, when the next owner or the owner after that buys the place. They’re going to use it as a garage, unless there’s structural changes made to make that impossible, which is either a smaller door or a poured cement wall down the middle or something. I don’t know just what, and even the point about large garden tractors and what not. At some point, the little lawnmower becomes a farm tractors, and farm tractors are parked in barns or garages. They’re not parked in storage sheds. So again, we’re dealing with the definition of a garage and some practicality on the Town being able to enforce this. It certainly seems conceivable that this Board, looking at an Area Variance, might possibly approve this, but I’m not going to make any promises, because the composition of the Board changes periodically, but given the current set of circumstances, I think we have to support the Zoning Administrator. 38 (Queensbury ZBA Meeting 09/20/06) MR. ABBATE-Thank you very much. Mr. Urrico, please. MR. URRICO-I support the Zoning Administrator’s position on this. MR. ABBATE-Okay. Thank you very much, and I would agree, counselor, and both appellants, that I think the Zoning Administrator’s correct, and I base my position on the fact that not only do I believe that he’s being cautious, but I do believe that if it looks like a garage, it probably is a garage. However, all is not doomed, because I think if you heard from the members of the Zoning Board this evening, we certainly, and you are entitled to, to request a variance, but until that time, I’m afraid that I would have to agree with my fellow Board members and I think at this point I’d have to support the Zoning Administrator. Is there a motion for Appeal No. 7-2006, to either, one, support the appellant’s challenge to the Zoning Administrator’s decision, or, two, to uphold the Zoning Administrator’s decision? I need a volunteer, folks, please. MOTION TO UPHOLD THE ZONING ADMINISTRATOR’S DECISION REGARDING NOTICE OF APPEAL NO. 7-2006 STEPHEN & JO ANN BORGOS, Introduced by Joyce Hunt who moved for its adoption, seconded by James Underwood: 289 Potter Road. The appellant is appealing to the Zoning Board of Appeals relative to a June 16, 2006 decision made by the Zoning Administrator regarding the proposed construction of an oversized garage. I support the Zoning Administrator’s decision. th Duly adopted this 20 day of September, 2006, by the following vote: AYES: Mr. McNulty, Mr. Urrico, Mr. Underwood, Mrs. Hunt, Mr. Abbate NOES: NONE ABSENT: Mr. Bryant MR. ABBATE-The vote is five to zero to uphold the Zoning Administrator’s decision. Now, if you would like to say something, you’re most welcome to say it. MR. S. BORGOS-I’d just like to say that I still strongly disagree with the Zoning Administrator’s position and with the position that you’re now supporting, for a number of reasons, because you just opened up another whole ball of wax, because if, indeed, this is a garage, we’re going to have to go in and re-design how the walls are going to be done, the fire safety things. We’re going to take out a door that has been a fire safety door required to separate a garage from a storage area. You’re going to open it up wide now. So now you’re going to allow the potential hazard of a garage to get into a storage area and indeed into a kitchen area. Before we’ve taken a precaution not to have that. So this doesn’t seem right to me. Also, as I said to a few people, what you’re saying to me is that if we get a permit to build something we tell you we’re going to do and use for a particular purpose, if it could possibly be used as something else, we can’t do it. That’s like saying if I buy a car that can do 120 miles an hour, before I set foot in it you’re going to arrest me for speeding because it could do 120 miles an hour. I don’t understand. I understand that if I break a rule, you put me in jail, you fine me, whatever. How can you do that if you’re making me guilty before I’ve even been charged? It’s a very strange uncomfortable feeling. MR. ABBATE-Okay. Now you have a son who’s a very capable attorney. I would suggest that you address that question to him. Thank you very much. MR. M. BORGOS-Just a couple of procedural notes. We had submitted, in the alternative, this review or for the variance. We understand that the Board is awaiting survey before the next application for the Area Variance is heard in October. Mr. Brown has informed me that, upon receipt of a letter requesting the waiver, you’ve agreed to grant that waiver. MR. ABBATE-That’s absolutely right. He’s absolutely correct. MR. M. BORGOS-And we’ll be returning in October for that. So I just wanted to thank you for that waiver. MR. ABBATE-But just make sure that that waiver is submitted. Not to me, it has to be addressed to the Zoning Administrator, who then comes to me. 39 (Queensbury ZBA Meeting 09/20/06) MR. BORGOS-So we’ll be able to hear that in October. We’re concerned from a timing perspective. MR. BROWN-We’ve already forwarded it to the October agenda. I would request if you could supply us with an updated floor plan with the changes you’ve made, so we can make sure when we hear the variance it’s accurate. MR. M. BORGOS-It may very well be that we’ll have the survey by that date anyway. It depends on their availability. MR. ABBATE-Right. I did schedule you for October, absolutely right. The Zoning Administrator discussed that Wednesday. MR. BORGOS-That was our concern, just to make sure we could have an answer on that before the completion of construction. MR. ABBATE-Hopefully we’ll do that. Right now I think they’re scheduled for, what, the th 18? MR. BROWN-Whatever the first meeting is. th MR. ABBATE-If that’s the first date in October, you’re scheduled for the 18. MR. M. BORGOS-Great. MR. ABBATE-Providing, of course, you comply with the request. Okay. Thank you very much. MR. M. BORGOS-Thank you. MR. ABBATE-And this hearing is closed. On motion meeting was adjourned. RESPECTFULLY SUBMITTED, Charles Abbate, Chairman 40