ZBA - Email and Letter from John Caffry dated May 13, 2019 TOW1V OF QLZEENSBZZZ2Y
242 Brsy Aorsd, Qsereaesbsoy, NY. 12804-5902
TOc ZBA Members
FROM: Zoning Offic�
RE: Attached is an������e//////mail and supporting document/letter
NOA 1-201 S and NOA 1-2019 Freihofer Appeals
DATBo May 15, 2019
Attached is an email and supporting document£or the above-re£eren�ed£ales to become part of
your review at your scheduled meeting= Wednesday,May 22, 2019-
TOWN OFOUEENSBURY
DEPT. OF COMMUNITY DEVELOPMENT
ZONING OFFICE
742 BAY ROAD
QUEENSBURY, NY12804
' H o m¢ o f N rt [ ee r rs 1 B ¢n u £f ... A Good P I rt ¢¢ [ o L i ri¢
Sue Hemingway
From: loM1n W.Caffry <jcaffry@caffryiawoffice.com>
5¢nt: Montlay, May l3, 2019 3:58 PM
To: Su¢ Hemingway
Cc Craig Brown; Mark Sc M1acM1nar Esq MMSH; 'Jonathan G. Lap per'; Laura Moore; Sunny
Sweet; Leah Everhart (LEv¢rbart@mmshlaw.com) (LEverhart@mmsM1law.co m)
Subj¢ct Fr¢ihofer Appeals. NOA �-2018 8[ NOA iF 1-2019
Attacbm¢u<s SKM_C224e1905"13l'1290.pdf
Sue:
The attached letter Is submitted i espons¢to a letter filed by the property o ner at Iasi mont M1's ZBA meeting. I
req uas[that you forward it to the ZBA members prior to next week's me¢tingW
If you need hard copies,or the Town has any questions, please lat me know.
Thank you.
John
TM1is e- ail is sent by a law firm and may contain information tM1at is pnvilagetl o onfid¢nbal. If you are not tM1e ini¢nd¢d
recipient. p10as¢ dale[e[na a-mail and any attacM1 menu and notify us Immediately_
John W. CaKry
Attorney at Law
Caffry 8 Flower
<00 Bay Strae[
Giens Falls, NV 1280"I
5'i 8-792-'1582
Fax_ 5'I S-793-0541
caffrylo7caffrvlawoff"ce.com
From: kmbsmfp@gmaiLcom <Kmbsmfp@gmaiLcom>
Sent: Monday, May 13,2019 12:30 PM
To:John W. Caffry<jcaffry@caf£rylawoffice.co m>
5ubjec<: Message£rom KM_C224e
1
Barbara A. Rottie� Esq.
53 Norman Ridge Road
Varmonnille,NY 129g9
518-S91-J8J8
May u,2oas
John Caffry Esq
100 Bay SY
Glens Falls, NY 12801
Reo Freihofer Matter
Oear John.
1 was able Yo raviewtwo of your letters to the ZBA and}onathan Lapper`s response dated
September 20,2015_ I have net reviewed Hs¢deeds and attached documenss,as i realize lime Is
of Lhe essence. 1 was Associate Counsel at tM1e AdirontlacK Park Agency for 25 years, refiring in
2010,and on occasion,served as Acting Counsel. i note tM1at for all my ZS years at APA, I was i
charge of the JurisdlcClonal Program. The law has always been applied as you st-at¢In your legal
papers_
Mr_tapper in a few places (e.g.pg.3,2nd full par.)seems to belittle the Idea that if"at o e point
in time"two parcels were under the same ownership,they become merg¢d_ BUY that is exactly
what the APA Ac[says[ExectrtNe Caw S11(i)(a)�see also,Agency Regulation:9 NYCRR 5>3.4(g)j.
However, ft is no[at any old tlma�ii is a speciRc daLe�namely May 22, 19J3,that merger taRes
effect as a matter of law. (That is also the effective date of the APA ACC)
He also poln[5 io 2ha Ac['S use n4 tho word"may"b+ ' aV b¢tr¢at¢d together as one loc"in 811
(1)(a)as indication that merger Fs discretionary. But this ignores the regulation which applies this
law,in ¢£feet for almost as long as the APA Acf_ Regulatory SecYlon SJ3.4 (gJ states that they
'shall"be treated as one IoC For my entire 25 years at the APA,merger was appiietl exactly as the
regulation states.
Mr. tapper asseKs tM1at 611(1)(a)does not apply to these two separately acquired lots because
they were already"subdiVidetl,"referring to SJ3.4(g). There are problems wish chls argument.
The(and would have been lawfully su bdivlded if one of the two atlJacent parcels had been sold Lo
nobler party before May 22, 19>3. But that was not xhe case. Rasher,iha merger under
Executive Law 811(1)(aj occurred. in iMs c e,pny proposed separa[con of the two parcels after
tM1ai date would have requlretl an Agency perrrdt as one of the Tots Is wb-standard 1n size. Once
erger occurred,[he subdivision would have 20 be deemed"pre-existing"to escape Agency
Jurisdiction(or local jprisdiCtion, if the Town hatl an Agency approved local}and u e program)_ Irt
ihai case, Execul o Law 602E49)app/Ias,which d¢ftnes"preeadsting subdivision"as any
subdlvlsfon"lawfully in existence'prtorio August 1,19J3.
The d¢Rnition of^pro-¢xisting subdivisiprt^is TvsYher implemented In Agenry regulation 5>3.4ff).
To qualify as"pre-existing,"a proposed subtllvision must have all required approvals,would have
to be "substantially commenced,^have"substantial expenditures made for structures or
Improvem¢nis"and "demonstrated off r-is to sell lots,^all prior to August 1, 19>3 [5¢¢5>3.4(f)for
entire Its(of requirements]_ The Agenry has intarpret¢d LAes¢sections Tom n[ha2 there muST
be an approved and£)fed plat plan showing the subdlvislon loss. And some substanLia!par[of the
ubdW(sion must be sold and/or built 1 am not sure of a!I of the facts In[his cases, but you say that
There is no£11¢d subdlvislon plaT. Thera were no e£for[s to Sell the relevant portion of Lh¢property
or improvements thereon prior to August i, 19>3. There ware jvst[wo parcels, adjacent,owned
by one parson on May 22, 1973.The parcels were"merged"as of that tla2¢and do not qualify as a _
"pre-existing subtlivisionJ'
Here is an important poinC The languag¢of 811(1)(a)is YUTally us¢I¢ss if t[m¢ans what Mr. tapper
slates. If any two ad}oining petrels owned by Lba same parson as of May 22, 19>3 are
automatically a ^subdlvislon,"then whaT possibl¢purpose Is the merger language of that law? IL
n have no possible use, no two lots fltting Thal description w uld EVER be merged under Mr.
topper's legs£argument. Tha law states what tt s[atesc two adjacent fots to the same ownership
n the magic date are deemed mergetl. Agency r¢gulatlon 5>3.4(g)mah¢s it mandatory.
regardless of whe[h¢r the parcels were In one deed or separate tleetls on May 22, 19>3.
1 noTe YhaT Queensbury has an APA apprpvetl loot land u e program. Obtaining such approval Is a
chatl¢nging under[aldng,due So The tltfFicuhy nF na¢eHng both APA antl local law r¢quirem¢nts An
approved program, aY a minimum,must incorporate the m nimum shoreline req Wrem¢nis[see
80>(2)(e)]. [also,e n HYhis was a^pre-existing subtlivisipn"The shoreline lot widths stilt apply
pursuant[0 5�3.4(f)(1),s nce there was no Department of Health approval for a separate toT7. The
Ag¢nry always requires Yha merger provision Lo be incorporated in The local program fn ortler for
That program co be approved. This is pretty basic. The Agency gels Class A projects To review,and
[he To n gets Class B protects_ The}u sdiciinnal tails with regard x obdivisiors ar r:ritirsh
either the Agency has jurisdiction or Lhe town does. Therefore,Lhe Ag¢nry and Town must maKe
lurlstllcilonal calls The same way. Hence,The need Lo "count Ip[s" in a subdivision ih¢same
manner. Th¢merger o£adjacent parcels as of May 22, 19>3 Is an essential legal face,and it
dictates wheth¢r fur[h¢r proposals involving The land require a Class A or Class B perm i2.
Regarding another of Mr_Lappet's argu rnents: In discussing Soros,he equates Ioo1 laws outstde
Th¢ Park with Section 811 of the APA ACT. Th¢APA Act is a nigp¢creature of stale lawp f[stands
compleTely diHerenL from local lantl u e laws. While the Act's use of the word"may"s
clear,in the cos¢of state admlNRrative law,there era regulations which further implement The
state statute,which also control. The regulations are clear. However, tool land use Taws which
are und¢ar are dl8erenty iheY do trot stave furih¢r Ymplamentlng regulations
He also argues that for merger statutes to be enforceable, ^Yh¢y need to reFerence a particular
moment in lime...." (Capper pg.4.1st full par_j_ May 22, 19>3 k a predse potni in Time!
Mr.tapper argues Epg- 1, Znd pee.and pg.4,2nd full part chat 811(1](a)merger does npt apply'Yo
any other scenario than at'projec[r view'." He goes on to define what Is a "projett." The quote is
from 811(1). However, he is wrong as to Its meaning. S11's title(re-stated in the first paragraph)
r¢fors to"special provisions relaxing To Agency proj¢tt review jurisdictign and ih¢shoreline
restrictions.^ Ha ignores She word•'jurisdiction." This whole seGLlon is about The dMermination of
Agency jurisdection. Ft has nothing to do with the subsequent reyie of a jurisdittional project.
The merger occurred as a matter of law as of May 22, 19J3,antl the subsequent re-division of such
land was a subdiytslon,regardless ofi when it was proposed,which subdivision In this case happens
20 be jurisdfttlonaf.
In The same paragraph he stales That"The theory that a merger could occur merely from a
mon ownership at any moment in Tim¢befiies(sic)the plain language within the statute. H the
legislature had wanted to provide for such a mechanism, it would have done so.^ The legislature
sp¢dflcally did proytde that mechanism—to 811(i)(a]. It does not matter what the ownership of
Lhe land was when Davis applied for a permi[�what mailers Is The merger law applied a after
of Iaw on May 22,19�3,and any svbsegvenT proposal to separate those parcels is evaluated
subject to the fact of xhe merger.
Ins ary,o e landowner owned two adjacent parcels for a vary long time,before and after
19>3m Whe[her she nwned them via o e deed ortwo deeds makes no difference,as spedflcally
rtai¢d in 573.4(g)y they merged as a matter of law on May 22, 1973.
1 note that each of your three f¢ga4 arguments atone should be caws¢for tlenlal of the project.
Syinn�cerel�y,
Barbara A. Nuttier