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05-22-2019 (Queensbury ZBA Meeting 05/22/2019) QUEENSBURY ZONING BOARD OF APPEALS FIRST REGULAR MEETING MAY 22, 2019 INDEX Area Variance No. 9-2019 Gary Hillert 1. Tax Map No. 289.10-1-53 Area Variance No. 20-2019 Reece Rudolph 2. Tax Map No. 289.6-1-34 Area Variance No. 16-2019 Robert Spath 4. Tax Map No. 240.5-1-10 Notice of Appeal No. 1-2018 Charles C. Freihofer, III 6. Tax Map No. 239.18-1-27.1 & 27.2 Notice of Appeal No. 1-2019 Charles C. Freihofer, III 11. Tax Map No. 239.18-1-27.1 & 27.2 THESE ARE NOT OFFICIALLY ADOPTED MINUTES AND ARE SUBJECT TO BOARD AND STAFF REVISIONS. REVISIONS WILL APPEAR ON THE FOLLOWING MONTH’S MINUTES (IF ANY) AND WILL STATE SUCH APPROVAL OF SAID MINUTES. 1 (Queensbury ZBA Meeting 05/22/2019) QUEENSBURY ZONING BOARD OF APPEALS FIRST REGULAR MEETING MAY 22, 2019 7:00 P.M. MEMBERS PRESENT HARRISON FREER, CHAIRMAN MICHAEL MC CABE, VICE CHAIRMAN ROY URRICO, SECRETARY RONALD KUHL JAMES UNDERWOOD MICHELLE HAYWARD MEMBERS ABSENT JOHN HENKEL ZONING ADMINISTRATOR-CRAIG BROWN MR. FREER-Welcome to the Zoning Board of Appeals meeting. For those who haven’t been here in the past, it’s actually quite simple. Although we have a few unusual things going on this evening. On the back table is some material. We’ll call applicants to the table and then we’ll go through some administrative business and then we actually have an Appeal decision or, what’s the right word, discussion that we’re going to cover tonight which is a little unusual for this Board. So I’d like to take care of some administrative business first. AREA VARIANCE NO. 9-2019 SEQRA TYPE II GARY HILLERT AGENT(S): VAN DUSEN & STEVES OWNER(S) GARY HILLERT REVOCABLE TRUST ZONING WR LOCATION 366 GLEN LAKE ROAD APPLICANT REQUESTS TO MAINTAIN A DECK ADDITION NEXT TO THE SHORELINE WITH A PORTION OVER THE SHORE. PROJECT ALSO INCLUDES MAINTAINING A 60 FT. SECTION OF FENCE TO THE SHORELINE ON THE WEST SIDE OF THE HOME. RELIEF REQUESTED FROM MINIMUM SHORELINE SETBACK REQUIREMENTS FOR THE DECK. RELIEF IS ALSO REQUESTED FOR THE FENCE THAT HAS BEEN CONSTRUCTED NEAR SHORE AREA. CROSS REF SP 31-2019 WARREN COUNTY PLANNING N/A LOT SIZE 0.69 ACRES TAX MAP NO. 289.10-1-53 SECTION 179-3-040. MR. BROWN-I think first what we probably want to do is since the public hearing was advertised we probably want to open it, and then you can table it from there. MR. MC CABE-All right. So the first one will be Area Variance 9-2019. MR. FREER-All right. So is there correspondence on Gary Hillert? Could we read that in? MR. HENKEL-Do we have to read it in? MR. BROWN-Just the agenda description is fine. You’re going to table it. MR. URRICO-The applicant is requesting to maintain a deck addition next to the shoreline with a portion over the shore. Project also includes maintaining a 60 foot section of fence to the shoreline on the west side of the home. There relief requested is from minimum shoreline setback requirements for a deck. Relief is also requested for the fence that has been constructed near shore area. 2 (Queensbury ZBA Meeting 05/22/2019) MR. BROWN-So last night at the Planning Board meeting the applicant was not able to get a recommendation from the Planning Board. So therefore you guys can’t really move forward with it. So you’ll just table it off to whatever day you pick. MR. FREER-Okay, but there is a public hearing scheduled for this application. MR. BROWN-There was one advertised for tonight. MR. FREER-And so I’d like to open that public hearing and is there anyone here in the audience that would like to make a statement about Area Variance 9-2019? Seeing no one, Roy, is there any written comment? MR. URRICO-There is no comment. MR. FREER-Okay. I’m going to leave the public hearing open, right? And request a motion to table this item. The Zoning Board of Appeals of the Town of Queensbury has received an application from Gary Hillert. Applicant requests to maintain a deck addition next to the shoreline with a portion over the shore. Project also includes maintaining a fence sections on the shoreline side of the home. Relief requested from minimum shoreline setback requirements for the deck. Relief is also requested for the fences that have been constructed near shore area. MOTION TO TABLE AREA VARIANCE Z-AV. 9-2019, Gary Hillert, Introduced by Michael McCabe, who moved for its adoption, seconded by Ronald Kuhl: Tabled to the July 17, 2019 Zoning Board of Appeals meeting with re-submission of materials by June 15, 2019. nd Duly adopted this 22 day of May 2019 by the following vote: MR. MC CABE-Now normally we’d table it to a specific date, but you said the date is open? So why don’t I table it to July, and that should give us enough time. MR. BROWN-Sure. The first July meeting. th MR. MC CABE-The first July meeting with any additional data to be submitted by the 15 of June. AYES: Mr. Urrico, Mr. Kuhl, Mr. Underwood, Mrs. Hayward, Mr. McCabe, Mr. Freer NOES: NONE ABSENT: Mr. Henkel MR. MC CABE-Okay. So the next one will be AV 20. MR. FREER-So Area Variance 20-2019, Reece Rudolph. AREA VARIANCE NO. 20-2019 REECE RUDOLPH AGENT(S) DAVID HUTCHINSON OWNER(S) REECE RUDOLPH ZONING WR LOCATION 24 NACY ROAD APPLICANT PROPOSES TO REMOVE EXISTING ½ STORY ROOF AREA OF 392 SQ. FT. AND TO CONSTRUCT A 715 SQ. FT. SECOND-STORY ADDITION TO THE EXISTING HOME. RELIEF REQUESTED FROM FLOOR AREA AND PERMEABILITY REQUIREMENTS. 3 (Queensbury ZBA Meeting 05/22/2019) CROSS REF SP 29-2019 WARREN COUNTY PLANNING N/A LOT SIZE 0.21 ACRES TAX MAP NO. 289.6-1-34 SECTION 179-3-040 ANDREW PARSONS, REPRESENTING APPLICANT, PRESENT MR. URRICO-The applicant proposes to remove existing half story roof area of 392 square feet and to construct a 715 square foot second-story addition to the existing home. Relief is requested from floor area ratio and permeability requirements. MR. BROWN-So for this particular project they’re required to provide a certification that the septic system is up to current standards. They were not able to provide that last night for the Planning Board so they could do a recommendation. So again that will have to be tabled until we can get that submitted. MR. FREER-Okay, but we do have a public hearing scheduled for this application this evening. Are you the applicant? MR. PARSONS-I am an agent to the applicant. I actually am not Mr. Hutchinson who was in the original application. I have an application form that’s signed by Reece Rudolph for myself to be the agent tonight. So I can get that to you. MR. FREER-Well, we can’t deal with it because the Planning Board didn’t make a recommendation last night. MR. PARSONS-Right. So what we wanted to do is to make sure that we’re getting the engineer to verify the septic part of the application, which was what was requested, and we didn’t want to lose, it’s past the application time for next month’s meeting. So we were hoping to move forward at next month’s meeting regarding that, if we could. MR. MC CABE-We have a full schedule for next month’s meetings. MR. BROWN-I don’t think it’s full. MR. FREER-Okay. So let me just first open the public hearing because that was advertised for this evening, and then we’ll table it and we’ll listen to your request for the tabling. Okay. So we have a public hearing scheduled for this application this evening. Is there anyone in the audience that would like to make a comment about Area Variance 20-2019? Seeing no one, Roy, is there any written comment? MR. URRICO-There’s no written comment. MR. FREER-We’re going to leave the public hearing open and identify yourself please and tell me why you want to waive the lead of the septic thing so that you can go next month which is already past due. Is that? MR. PARSONS-Yes. So we found out on Friday of last week. I’m sorry, my name is Andrew Parsons. We found out Friday of last week that this portion of the application needed to be verified by a licensed engineer. That didn’t give us enough time before last night’s meeting to get that done. We spoke with Laura Moore and she asked us to come and explain that and make sure that we could get onto next month’s meeting and not have to wait two months. MR. FREER-When are you going to have the engineering thing? MR. PARSONS-I believe he’s coming in two weeks. He’s already been selected by Mr. Rudolph so he’s already got that process started. He wasn’t able to get him this week. 4 (Queensbury ZBA Meeting 05/22/2019) MR. FREER-All right. So we want to make a motion to table this. MR. MC CABE-Well two weeks, yes, I guess that will just give us enough time for the first meeting, or should I table it to the second meeting in June? MR. BROWN-Yes. I mean what they’re submitting doesn’t really impact the status of the application other than to say we have that certification. It doesn’t change the variance request or anything like that. MR. FREER-So it’s not going to put a burden on you guys in terms of administrative lead time. MR. BROWN-Once we get the letter. MR. MC CABE-So I’m going to make a motion that we table. The Zoning Board of Appeals of the Town of Queensbury has received an application from Reece Rudolph. Applicant proposes to remove existing ½ story roof area of 392 sq. ft. and to construct a 715 sq. ft. second-story addition to the existing home. Relief requested from setback, Floor Area Ratio and permeability requirements. MOTION TO TABLE AREA VARIANCE Z-AV-20-2019, REECE RUDOLPH, Introduced by Michael McCabe, who moved for its adoption, seconded by Mrs. Hayward: Tabled to the June 19, 2019 Zoning Board of Appeals meeting pending septic certification. nd Duly adopted this 22 May 2019 by the following vote: AYES: Mrs. Hayward, Mr. McCabe, Mr. Urrico, Mr. Underwood, Mr. Kuhl, Mr. Freer NOES: NONE ABSENT: Mr. Henkel MR. FREER-Okay. Thank you. MR. PARSONS-Thank you. MR. FREER-So the next item of correction is for required setback relief for Robert Spath. Is that what we want to do next, Craig? MR. BROWN-Yes. So what happened there is in the Staff Notes for Spath the setback requirement was correct. The drafted resolution that we prepared for you for the meeting had the wrong setback requirement. So we’re just correcting it from the wrong 20 foot to the correct 12 foot number. So the decision doesn’t change. We’re just correcting that typo. MR. FREER-Okay. So can I get a motion? Or I’ll make a motion. The Zoning Board of Appeals of the Town of Queensbury has received an application from Robert Spath. Applicant proposes construction of two residential additions on either side of the existing home. The first addition will be to the shoreline side of the home; raise existing 240 sq. ft. roof to create a vaulted ceiling for the affected living area. The second addition will be to remove 98 sq. ft. of existing living area and rebuild this portion of the home for new living space. Project includes new 33 sq. ft. entry with cover and a 32 sq. ft. awning roof at the 5 (Queensbury ZBA Meeting 05/22/2019) shoreline side of the home. Relief requested for setbacks, FAR and permeability. Planning Board: Site Plan Review required for expansion of a nonconforming structure. Relief Required: The applicant requests relief for setbacks, Floor Area Ratio and permeability in the Waterfront Residential Zone. 179-4-030 Dimensional requirements The applicant proposes renovations of an existing home –the roadside addition replacement is to be placed 7.8 ft. from the side property line that requires a 12 ft. setback. The shoreline addition is 2.9 ft. from the side property line where 12 ft. is required. The new awning over the basement area on the shoreline side is to be 4.8 ft. where 12 ft. setback is also required. In addition, relief is requested for floor area ratio that is proposed to be 23% and 22% is the maximum allowed. SEQR Type II – no further review required; A public hearing was advertised and held on Wednesday, April 17, 2019; Upon review of the application materials, information supplied during the public hearing, and upon consideration of the criteria specified in Section 179-14-080(A) of the Queensbury Town Code and Chapter 267 of NYS Town Law and after discussion and deliberation, we find as follows: 1. There is not an undesirable change in the character of the neighborhood nor a detriment to nearby properties as the effort that this applicant is proposing is an improvement. 2. Feasible alternatives are really limited, if we want to say they’re really not possible. 3. The requested variance is not substantial again because of improving the roof lines and changing the door location. It’s a minor impact on anything. 4. There is not an adverse impact on the physical or environmental conditions in the neighborhood or district. 5. The alleged difficulty is self-created because of the property and the house. 6. In addition the Board finds that the benefit to the applicant from granting the requested variance would outweigh (approval) the resulting detriment to the health, safety and welfare of the neighborhood or community; 7. The Board also finds that the variance request under consideration is the minimum necessary; 8. The Board also proposes the following conditions: a) Adherence to the items outlined in the follow-up letter sent with this resolution. BASED ON THE ABOVE FINDINGS, I MAKE A MOTION FOR CORRECTION ON REQUIRED SETBACKS FOR APPROVAL OF AREA VARIANCE Z-AV-16-2019 ROBERT SPATH, Introduced by Harrison Freer, who moved for its adoption, That we accept the correction of 12 ft. as the proper setback as compared to the 20 ft. which was a typo in the resolution. Seconded by Ronald Kuhl. 6 (Queensbury ZBA Meeting 05/22/2019) Duly adopted this 22 day of May 2019 by the following vote: MRS. HAYWARD-I wasn’t present at the meeting but I have enough information that I would vote affirmatively. AYES: Mr. Kuhl, Mr. Underwood, Mr. Urrico, Mrs. Hayward, Mr. Freer ABSTAIN: Mr. McCabe NOES: NONE ABSENT: Mr. Henkel MR. FREER-So that’s most of the administrative stuff. Correct? MR. BROWN-Right. MR. FREER-Okay. Now we’re on to continuing deliberation on a couple of Appeals, the Freihofer Appeal, and there’s been some new data associated with that. So the first couple of things I want to make sure is that everyone here has gotten access to the new data that’s nd been supplied. The first piece of data is the memo dated May 2, 2019 from Miller, Mannix. Everybody got a copy of that? Everybody familiar with that? Okay. And then the other th new correspondence is the May 11 John Caffry letter from Barbara Rottier. Everybody got a copy of that and had a chance to review it? Okay. So I had an opportunity to talk to Mr. Schachner today, or I’m sorry on Thursday to discuss a way forward. One of the things that he wanted to make sure is that if new material came that the normal process was for us to disseminate it to the Board. So, Mr. Caffry, you can come forward if you like since part of the Appeal is the new information that you supplied. The other thing that I wanted to address today is to sort out the position of the various people who have not been part of the hearings to date. Mr. Henkel wasn’t at the original Appeal meeting. He’s not here this evening. Mr. McDevitt was here originally and is not here now. Mrs. Hayward and Mr. McCabe weren’t at the initial but they are here and they’re regular members. MR. MC CABE-Well first of all what I’d like to disclose is that I was not at the original meeting. However, I read all of the letters that we’ve been presented with and I‘ve read the meeting minutes and I believe that I’m prepared to make a decision. MR. FREER-Okay. So you’re up to speed. That’s good and I believe, Michelle, was that the same for you? MRS. HAYWARD-Yes. MR. FREER-Okay. So Mr. Schachner couldn’t be here this evening and we discussed re- opening the public hearing since there’s new information, and I’m prepared to do that unless somebody from the Board has an objection to that. Okay. So I’m going to re-open the public hearing on this topic. That actually gives us longer to make a decision, and we’ll deliberate to make sure if people have questions about the new material and then if there’s anyone here who wants to make a public statement they have an opportunity to do so. MR. BROWN-Just a procedural question. Are you opening the public hearing on which Appeal or both Appeals? MR. FREER-Okay. That’s a good point. Let’s hold off on that, because the first thing I would like to do is try to request I guess, invite Mr. Caffry. So we have these two Appeals, and I understand that you appealed the first time because you weren’t sure what was going 7 (Queensbury ZBA Meeting 05/22/2019) to happen next and you felt like that was appropriate. However, now that we have an official determination, in my view the first Appeal is kind of overlapping and we’ve listened to it, but very much overlapping and the content and gist of both Appeals are more encapsulated and more germane in the actual determination that was made. So would you consider, so I consider the first Appeal virtually moot and would invite you to withdraw that one so that we could focus on the substantive one. MR. CAFFRY-I would like to accommodate your request, but they’re not entirely the same. The first Appeal, there’s the main issue of is it one lot or two lots. So that’s the Appeal. The first Appeal, 2018, also included issues of setbacks that were not presented by Mr. Brown’s decision in 2019. So I didn’t put them in the 2019 Appeal. So there are issues in that first Appeal that aren’t present in the second one. If I withdraw them I risk the chance that they would go away without being decided, and I know you, the Board, has the option to decide that the first Appeal was not an appealable document. You could do that, but I don’t agree that it’s not appealable. I think it was or I wouldn’t have appealed, but if you do that, you rule it’s not an appealable document, that’s one thing, but for me to withdraw it, then I put myself and my client at risk procedurally and I’d rather not do that. MR. FREER-Okay. So then I want to deal with the first Appeal, then, if you’re not going to be able to concentrate on the main issues of whether it’s one lot or two lots, and refer the Board to the memo that we received from legal and open the public hearing on the first Appeal, and like to know if there’s anyone in the audience that, so the additional information on the first Appeal is your letter? NOTICE OF APPEAL 1-2018 SEQRA TYPE II CHARLES C. FREIHOFER, III AGENT(S): JOHN W. CAFFRY, CAFFRY & FLOWER OWNER(S): DARK BAY PROPERTIES, LLC & LAWRENCE A. DAVIS ZONING: WR LOCATION: 3300 STATE ROUTE 9L APPELLANT IS APPEALING THE ZONING ADMINISTRATOR’S LETTER OF JULY 26, 2018 COMPLIANCE LETTER FOR SP 67-2017 GREGORY TERESI. SP 67-2017 SITE PLAN APPROVAL WAS GRANTED BY THE PLANNING BOARD FOR THE CONSTRUCTION OF A SINGLE-FAMILY HOME. CROSS REF. SP 67-2017. WARREN COUNTY PLANNING: N/A. LOT SIZE: 1.5 ACRES & 0.23 ACRES. TAX MAP NO. 239.18-1-27.1 & 27.2 SECTION N/A JOHN CAFFRY, REPRESENTING APPLICANT, PRESENT MR. CAFFRY-The letter that I submitted from Ms. Rottier, I think it applies to both Appeals equally to the main central issue of the number of lots. She didn’t address the setback issues in the 2018 Appeal, but the issue she did address, the one lot or two lot issue, is common to both Appeals. MR. FREER-Yes, but okay, you just double spoke what you were trying to say. If this letter only applies to one lot or two lot, then I don’t want to deal with it on the first Appeal because that’s the one that I want to deal with first. MR. CAFFRY-Well the first Appeal includes that issue also. MR. FREER-Okay. So do you want to read it in or do you want to address it? MR. CAFFRY-Yes. I don’t see a need to re-read it. You have it. It’s in the record. I believe that the, I copied the property owner’s attorney on it. So I believe everybody’s had a chance to see it. I’d just like to give a little background on why I submitted that letter. MR. FREER-Okay. 8 (Queensbury ZBA Meeting 05/22/2019) MR. CAFFRY-At the last meeting Mr. Teresi filed a September 2018 letter from his partner Mr. Lapper addressed to Mr. Brown, and that’s what triggered Mr. Brown’s January 2019 decision which is what we appealed from on the second Appeal, but at the last meeting one of your members wondered if it was possible to get some input from APA on how it had handled this issue because of the overlap between how APA handles it and how the Town has to follow the same procedure as the APA. So I tried to provide that. This isn’t a new or novel issue. As long as I’ve been practicing law it’s been my understanding and any other real estate attorney that I ever dealt with that in the Adirondack Park pre-existing undersized shoreline lots were merged by the APA Act as of May 22, 1973 and nobody’s ever questioned that until now. So last fall when the lawyers were corresponding with Mr. Brown, and I was wondering if I was missing something. Why were they challenging this when it seems so obvious? So I decided to check with an independent source and see what they had to say and I spoke to Ms. Rottier who’s an acquaintance of mine for a long time, and asked her what she thought, and she agreed with me, based on her 25 years-experience at the APA, and being the primary person responsible for the appealing of this issue there, that the two lots have been merged as a matter of law, and I mentioned that discussion in my letter to Mr. Brown of October 19, 2018 which I think is attached to the current Appeal. Apparently that didn’t persuade Mr. Brown. So after last meeting I spoke to Ms. Rottier again, and she agreed to give me a letter that I can file with you which you have, and her position, based upon how APA does this, is that the lots were merged by operation of law in 1973 and that’s how the APA has always done it because that’s what their law and regulations say and as I’ve pointed out in my letter, as she points out in her letter, within the Park, because Queensbury has an approved Local Land Use Plan, all regulations that apply in the Park have to be approved by the APA before the Town Board can vote on them and the APA will not approve them if they’re not consistent with how the APA does things, and so by extension however APA applies it is the same way the Town has to apply it. As she points out, if Mr. Brown’s interpretation is upheld, it basically guts the rule. There is no longer a rule, this merger rule, and anybody could just wait until they want to develop a property and then split them apart because that’s not how it works. So that’s the reason for that letter. No matter how you look at the APA Act and rules, that these are single lots. They’re legally merged by law in 1973 and they can’t be undone without a variance. That’s the background. MR. FREER-Okay. Thank you. So I have re-opened the public hearing on the first Appeal. Is there anyone in the audience that would like to make a statement about the additional information that was provided? PUBLIC HEARING RE-OPENED MR. FREER-Okay. Seeing no one, I’d like to continue the deliberations, and just deal with the first Appeal and the real germane question for me is, is this even Appealable? Right? Because it wasn’t a determination, and then if we decide that it is appealable and how do we find in terms of the decision? So are you okay with me so far? MR. BROWN-Yes. MR. FREER-Do you want to make any additional statement? MR. BROWN-Not yet. MR. FREER-So based on the information that we have now, I’d like to poll the Board in terms of the first position is, is this first Appeal, do we consider it appealable? I think some of us have already expressed some decision, but we have new information. So I’d like to start back with Jim. MR. UNDERWOOD-Yes. I think the letter that we recently received from Ms. Rottier who is legal counsel for the APA for 25 years, I think she tries to dial in what the jurisdictional responsibilities are, and I think if I was going to sum it up I would say the Town of 9 (Queensbury ZBA Meeting 05/22/2019) Queensbury has an approved plan by the Adirondack Park Agency so they’re subject to all the APA’s approvals. Our plan was approved by the APA, but the APA, because this lot is located within the Adirondack Park, it falls under special clause. It’s not something where we start at the bottom and work our way to the top for an approval, but the approvals come from the top down. So the APA has the ultimate right to approve or disapprove anything that we do as a Board here this evening. I think that probably what they’re trying to Appeal here, my opinion as to what they’re trying to appeal here, is the fact that the compliance letter was issued for Site Plan 7-2017, Gregory Teresi and Site Plan 7-2017 Site Plan approval was granted by the Planning Board and signed off by Craig, and I think that was in error because the Planning Board isn’t granted any ability to sign off on a lot that clearly was not approved by the APA for subdivision purposes. This lot was approved as if it was a normal lot that was available, and I think at the last meeting I said that we should have questioned that. I mean a 40 foot wide waterfront lot on Lake George is very extraordinary. I don’t think it’s something that we’ve ever had before us as a Board. MR. FREER-Okay, but you’re discussing more whether we should uphold the decision. MR. UNDERWOOD-I think what we’re being asked is was the approval of them to proceed with the building permit on this lot correct. In the APA’s light I think it would not have been approved. I think they would overturn us on that decision making process. So I would say that it should not have been approved as presented. MR. FREER-Okay. Ron? MR. KUHL-Well you’re talking specifically the first Appeal is on the June 26, 2018 letter. Right? MR. FREER-Correct. MR. KUHL-Now that letter from Craig Brown in my view, I’m not a lawyer, I’m just a common person, but that letter to Teresi was just a letter of requirement, a global letter. I don’t think it defined any parts of our documentation, and in being a global letter, it satisfies minimum requirements. I don’t think that the Appeal is appealable. MR. FREER-Okay. MR. KUHL-I don’t think that letter can be appealed. Because it doesn’t state fact. It doesn’t define the requirements. Just minimal requirements. MR. FREER-Michelle? MRS. HAYWARD-I do not think it’s appealable. It was a form letter that was sent to all applicants as evidenced by documentation I’ve poured over several days and there’s no determination in that letter. That’s the basis of my interpretation. MR. FREER-Okay. And, Mike? MR. MC CABE-It’s my feeling that if it’s appealable then that denotes that a decision was made, and I think in this particular case the letter went out automatically as a condition and not as a decision. So I do not believe it’s appealable. MR. FREER-Okay. Roy? MR. URRICO-Yes. I do not think it’s appealable. 10 (Queensbury ZBA Meeting 05/22/2019) MR. FREER-Okay. Nor do I believe that it’s an appealable determination. So with that, I think we can make a motion to say that the initial Appeal is not appealable. MR. MC CABE-Do we want to make a motion at this particular time or do we just want to indicate to the applicant that he doesn’t have enough votes to pass that particular portion of it? MR. FREER-No we need a motion to deal with this first Appeal. So he wouldn’t withdraw it because he thinks that there’s some other content and issues that he may want to take to the judicial side of things, but we need a motion that this Board decides that the initial Appeal is not approved. MR. BROWN-Before you get to that motion, if that’s the way you’re going to go, just make sure you close the public hearing. Because you opened it and accepted his letter. You want to close it and then go to resolution, if that’s the direction you’re going. MR. FREER-Okay. So I’m going to close the public hearing. PUBLIC HEARING CLOSED MR. FREER-And seek a motion that the first Appeal, July 25, 2018, be denied on the basis of we believe, whoever wants to make the motion. MR. MC CABE-I’ll make the motion. The Zoning Board of Appeals of the Town of Queensbury has received an Appeal application from Charles C. Freihofer, III; Agent: John W. Caffry, Esq. The Appellant is appealing the Zoning Administrator’s letter of July 26, 2018 compliance letter for SP 67-2017 Gregory Teresi. SP 67-2017 Site Plan Approval was granted by the Planning Board for the construction of a single-family home. SEQR Type II – no further review required; A public hearing was advertised and held on Wednesday, April 17, 2019 and Closed and Re- Opened on Wednesday, May 22, 2019 and Closed; Upon review of the application materials, information supplied during the public hearing, and upon consideration of the applicable criteria of the Queensbury Town Code and Chapter 267 of the NYS Town Law and after discussion and deliberation, we find as follows: Based on the above findings I make a MOTION TO DENY APPEAL NO. 1-2018, CHARLES C. FREIHOFER, III; AGENT: JOHN w. CAFFRY, ESQ. OF CAFFRY & FLOWER , Introduced by Michael McCabe, who moved for its adoption, The Board declines the applicant’s motion that there was a decision by the Zoning Administrator; we do not believe that there was a decision involved, and therefore, we don’t believe that it is appealable. Therefore, we deny the appeal. Seconded by Ronald Kuhl: nd Duly adopted this 22 day of May 2019, by the following vote: AYES: Mr. McCabe, Mr. Urrico, Mr. Kuhl, Mrs. Hayward, Mr. Freer NOES: Mr. Underwood ABSENT: Mr. Henkel 11 (Queensbury ZBA Meeting 05/22/2019) MR. FREER-Okay. So I understand your rationale and we’ve accomplished, but we need to make sure that we now focus on the content of one versus two and all the additional information that clearly was a determination, or at least in my mind. Is there any disagreement that this second Appeal does include a determination by the Zoning Administrator? MR. MC CABE-Did we need to say anything about standing and timing? MR. BROWN-I think that was all covered at the last meeting. MR. FREER-Right. MR. MC CABE-So we’re all set there. MR. BROWN-And you got through deliberations to the point where you just tabled for further discussion. So, yes, we’re over those hurdles. MR. MC CABE-Okay. NOTICE OF APPEAL 1-2019 SEQRA TYPE II CHARLES C. FREIHOFER, III AGENT(S) JOHN W. CAFFRY, CAFFRY & FLOWER OWNER(S) DARK BAY PROPERTIES, LLC & LAWRENCE A. DAVIS ZONING WR LOCATION: 3300 STATE ROUTE 9L APPELLANT IS APPEALING THE ZONING ADMINISTRATOR’S DECISION OF JANUARY 4, 2019 WHICH HAS BEEN DETERMINED THAT THE TWO TAX MAP LOTS OWNED BY LAWRENCE A. DAVIS AND DARK BAY PROPERTIES, LLC ARE LEGALLY PRE-EXISTING SEPARATE NONCONFORMING LOTS. THE APPEAL IS IN RELATION TO SP 67-2017; SITE PLAN APPROVAL WAS GRANTED BY THE PLANNING BOARD FOR THE CONSTRUCTION OF A SINGLE-FAMILY HOME. CROSS REF SP 67-2017 WARREN COUNTY PLANNING N/A LOT SIZE 1.5 ACRES & 0.23 ACRES TAX MAP NO. 239.18- 1-27.1 & 27.2 SECTION N/A JOHN CAFFRY, REPRESENTING APPLICANT, PRESENT MR. FREER-Okay. So now I’d like to open the public hearing on the second Appeal and I guess, is there anyone in the audience that wants to make a comment about the second Appeal? Okay. There is someone. Could you guys step aside and let them come up. PUBLIC HEARING RE-OPENED GREGORY TERESI MR. TERESI-Good evening. Gregory Teresi with Bartlett, Pontiff, Stewart & Rhodes, one of the partners with Jon Lapper. I’m here before you to make a request. In talking with Mr. Lapper about the case yesterday and today, one thing that he had mentioned to me was that in his opinion, based on case law research and prior experience, that my clients, Dark Bay Properties, LLC and Larry Davis, should be considered a real party in interest. The application that, the Appeal that’s before you revolves around an application that Dark Bay Properties, LLC and Larry Davis put into place and at the last meeting when I was afforded the opportunity to speak, I was limited much like the general public, and I believe that there is case law to support the fact that we should be given fair opportunity to make a full presentation. That being said, the gentleman on the right, I’m sorry, I don’t know your name. No disrespect. MR. UNDERWOOD-Underwood. 12 (Queensbury ZBA Meeting 05/22/2019) MR. TERESI-Mr. Underwood referenced the APA along with Mr. Caffry and their determination as to whether these two lots should be considered one, and Mr. Caffry is correct. I have researched this topic. There’s not a lot of case law on it, but there is a distinguishing factor that I’m going to ask this Board to consider. The cases that I included in my letter reference a requirement within our law that any time there’s a merger of lots that there needs to be a defined triggering event. There needs to be something that advises property owners as to when those properties are merged, and if you look at the APA law and if you look at the Town law, I’m going to try to boil this down as simply as I can, they both talk about projects and they both talk about development. They don’t talk about the lots, they do talk about the lots being owned by the same person, which I’m not going to dispute the fact that they were owned by the same person at the time that that law came into effect, but they also talk about a triggering event, development, a project, and at the time that this occurred in 1976, there was no project, there was no development going on. I realize that might be an issue for the courts to decide. I realize that might be an issue for the legislature to look at and say, geez, that wasn’t our intent. However, if there’s ambiguity in the law, it has to go in favor of the applicant. My clients can’t be punished or should not be punished because this law has some ambiguity. I’d ask you to consider that. The only other thing that I’d ask you to consider is that there was an application that was before the Planning Board. It was voluminous. I don’t know if you’ve received the whole thing. I’m hopeful that you have. I do think it’s important that it’s according to your record because regardless of what the decision is here, I’m sure that this is going to carry on and at some point there’s probably going to be a court that’s going to decide this because it is a unique issue, and other than that, I appreciate the opportunity to be heard and like I said I’d ask the Board to consider allowing my clients to be a real party in interest and allow us the same opportunity to speak and present just like Mr. Freihofer. MR. KUHL-The law was ’73, not ’76. MR. TERESI-’73. MR. KUHL-Just in case you wanted to do your homework. MR. TERESI-I appreciate the correction. MR. KUHL-Yes, sir. MR. FREER-Okay. Do you have anything else to say? MR. TERESI-No, sir. MR. FREER-Okay. Thank you. And, Lionel? I did say this last time, but I’ll just repeat myself. We’re not here to provide a variance or anything like that. We’re just dealing tonight with the issue of a decision, appeal of a decision that the Zoning Administrator made. Okay. LIONEL BARTHOLD MR. BARTHOLD-I’ll make it very brief. I want to remind the Board that I speak on behalf of our own family property owners, the Boomers, the Denooyer family, the Kraskow family, all of whom I’ve been told I can speak for who are very strongly opposed to this intensification of usage on Lake George and waterfront. The four buildings, three or four depending on your count, and the exist lot, this would add either a fourth or fifth to that small lot. I think that would be a very bad precedent to set in future decisions on the intensification of Lake George. I don’t know whether it’s ever been brought up in this, but if you drive by there and see the slope of which this lot approaches 9L, try to imagine driving up that slope and seeing the blind curve to the east of that, or vice versa, coming around 13 (Queensbury ZBA Meeting 05/22/2019) that curve and trying to see a car. It’s an unsafe approach in addition to all the other problems it poses. MR. FREER-I’m sorry, Lionel, can you state your name for the record? MR. BARTHOLD-Lionel Barthold. MR. FREER-Thank you. Okay. Is there anyone else in the audience who would like to make a comment on this Appeal? Okay. Would the Appellant please come back. MR. BROWN-There was one public comment in letter form. MR. FREER-Is there any written comment, Roy? MR. URRICO-I just have a letter from Gregory Teresi. MR. BROWN-Right. He just referenced it. Just make sure it’s in the file. MR. URRICO-Okay. I don’t have to read it, though. MR. BROWN-I think he covered everything that’s in the letter. MR. FREER-Okay. Thank you. So would you guys want to make any comments on what you just heard? MR. CAFFRY-Yes. I would like to comment on that, and we’ve gone back and forth on this question more than once. And it’s very similar to the way Mr. Brown made his decision. When Mr. Lapper filed the letter last October he raised a number of issues which he said I’ll show that this was too much, but when it came down to it Mr. Brown just looked at one and said there was no date set forth in the APA Act and therefore there was no date to tell them that happened. What Mr. Teresi just said was there was no triggering event. A few things about that and I’ve addressed this before and Ms. Rottier addresses it in her letter. The cases he’s talking about were decided outside of the Adirondack Park using Statewide laws of generally applicability. Like a lot of things the APA Act is very different on this issue than other laws. So Statewide cases often don’t apply when you’re interpreting the APA. The second ting is there’s a definite triggering action that caused these lots to be merged and that was the passage of the APA Act. 811 1A which is the Section referenced in the Town Code also says, refers to any vacant lot which is on record on the date this Act shall become a law, and that date, and I’ll give you those sources in a minute, but that date was May 22, 1973. The APA Act became a law on that date. That was the triggering action if you want to use that term. Where does that date come from? Well most all laws in New York are called, what’s called McKinney’s Consolidated Laws in New York is the official publisher of the laws, and they always include in there the date the statute becomes a law, and it says for this Act it became a law on May 22, 1973. That date is also provided in the APA regulations which interpret and clarify the statute. So that is the date in question. If you want to have a date of the triggering act, that was the triggering act. So there’s no question as to when that merger took effect. May 22, 1973 and unless they get an Area Variance and subdivision approval that is the applicable date that it became law or they became a single lot. So we think based on that that you should overturn Mr. Brown’s decision. MR. FREER-Okay. So we’re on to the second Appeal. How are we referencing this, Craig? MR. BROWN-The first one had a 2018 number. This is a 2019 number. MR. FREER-Okay. Because it’s 1-2019? 14 (Queensbury ZBA Meeting 05/22/2019) MR. BROWN-Correct, 1-2019. MR. FREER-So I’d like to close the public hearing. PUBLIC HEARING CLOSED MR. FREER-And poll the Board. And I’m going to start with Ron. MR. KUHL-Thank you, Mr. Chairman. I was the one that said last time it was pre-existing, non-conforming. It should go forward, but you know the more I review this, the APA made a law. Now if the APA would have said 27.1 and 27.2 are now 27 X, the Town wouldn’t have picked it up as 239-18-1-27.1 and 27.2, but along the way, how many times did it change ownership? How many of these people paid lawyers, title search companies to do the legal end, to represent the buyers and sellers? Here we have another lawyer coming forward saying it’s wrong. And in reality as far as I’m concerned you know if APA law trumps the local Town law, they never changed the number. Why? I don’t know, you know, when you pass a law, how is the law enforced? When we go out and purchase something we get legal advice. We pay for legal advice. The seller has legal advice. Somebody should have come out and found this to be 27 X, not 27.1 or 27.2. From my vantage point, this should have been merged. There were activities. Each time that changed hands, this should have come out, that was one lot not two. So as far as I’m concerned, I’m siding with the appellant, that these should have been one lot, where before I believed it was pre-existing, non-conforming. Because we discussed, when we changed title on properties here, does it go to the APA before it becomes official? And we found out, no, it doesn’t. Well how is that supposed to come through in an issue like this? Right here. But anyway, that’s my view. MR. FREER-Michelle? MRS. HAYWARD-I feel very similarly to Mr. Kuhl after reading over the voluminous papers. I found Ms. Rottier’s letter very compelling and, you know, I just feel it should be considered one lot. So does that make sense for the record? MR. FREER-Yes. I think so. Mike? MR. MC CABE-As far as I’m concerned, this has been two lots for a long time and it’s still two lots. We, as a Town, follow our laws and APA follows their laws. They’ve overruled us several times, but in terms of the Town, I believe that these are two lots, and therefore I uphold the Zoning Administrator’s decision. MR. FREER-Okay. Thanks, Mike. And Roy? MR. URRICO-I’m going to side with the Zoning Administrator’s decision as well. MR. FREER-Okay, and, Jim? MR. UNDERWOOD-I think what we have to do is we have to think about the beginning of where this began, and as far as I’m concerned the beginning of APA law started in 1973. It’s clear from the letter from the counsel for the APA for 25 years that that’s the case. I think the other thing to consider is the greatest common denominator here is, even though you guys approved this first one here on the 40 foot wide lot, I think that we sometimes overlook the fact of the greatest common denominator. These are larger lots. It used to be three acre zoning down there. It was one acre zoning or two acre zoning. That’s changed now so it’s easier to get relief, but at the same time I think that it should be considered to be a single lot. MR. FREER-Okay. So just to be clear. 15 (Queensbury ZBA Meeting 05/22/2019) MR. BROWN-He’s supporting the appellant. MR. FREER-Right. So all three of you are supporting the Appeal. MR. KUHL-Yes. MR. FREER-Okay, and I, too, support the Appeal. I believe it’s similar in my mind to reading the Federalist Papers of the guys who had the intent of the constitution on what they really meant and it’s my understanding that the APA law meant that when the law got past that was the time when all of the non-conforming lots that were owned by the State were merged. So with that I think we can vote on the Appeal. So what we’re going to do is we’re not going to actually write the minutes for the Appeal because we want the lawyer to see them and review them and make sure that they don’t have any hidden, and we will try to get that decision through the system in plenty of time now that we’ve had a separate public hearing based on the new evidence. I don’t think we’ll get to it next week, but certainly we will have a motion that’s been reviewed by Counsel at our first June meeting. Questions? MR. CAFFRY-What happens if, you’re saying six people aren’t here at your June meeting? MR. UNDERWOOD-I think we have to vote yes or no tonight. The language we can basically say we uphold the appellant’s appeal. MR. FREER-Okay. I’m fine with that. We can make a motion to uphold the appellant’s appeal of the decision. Do you want to add anything, Jim? MR. UNDERWOOD-No, it’s just Site Plan 67-2019 that was approved by Craig Brown and the Zoning Administrator’s decision, we overturn that. MR. CAFFRY-I think what you’re overturning is not that decision, but the Zoning Administrator’s January 2019 letter. MR. BROWN-Yes. I think the cleanest way is just to make a motion to uphold the Appeal. MR. FREER-Okay. MR. BROWN-Then you’re not parsing words and which one you’re upholding. In support of the appellant. MR. FREER-Okay. The Zoning Board of Appeals of the Town of Queensbury has received an Appeal application from Charles C. Freihofer, III; Agent: John W. Caffry, Esq. The Appellant is appealing the Zoning Administrator’s decision of January 4, 2019 which has been determined that the two tax map lots owned by Lawrence A. Davis and Dark Bay Properties, LLC are legally pre- existing separate nonconforming lots. The Appeal is in relation to SP 67-2019; Site Plan approval was granted by the Planning Board for the construction of a single-family home. SEQR Type II – no further review required; A public hearing was advertised and held on Wednesday, April 17, 2019 and Closed; Re- Opened on Wednesday, May 22, 2019 and Closed; Upon review of the application materials, information supplied during the public hearing, and upon consideration of the applicable criteria of the Queensbury Town Code and Chapter 267 of the NYS Town Law and after discussion and deliberation, we find as follows: 16 (Queensbury ZBA Meeting 05/22/2019) Based on the above findings I make a MOTION TO UPHOLD / APPROVE THE NOTICE OF APPEAL NO. 1-2019, CHARLES C. FREIHOFER, III; AGENT: JOHN w. CAFFRY, ESQ. OF CAFFRY & FLOWER , Introduced by James Underwood who moved for its adoption; having carefully considered the information provided to us; we all have determined, we will uphold the Appellant’s Appeal, the Zoning Administrator’s decision of January 4, 2019; seconded by Ronald Kuhl: nd Duly adopted this 22 day of May 2019, by the following vote: AYES: Mr. Underwood, Mr. Kuhl, Mrs. Hayward, Mr. Freer NOES: Mr. McCabe, Mr. Urrico ABSENT: Mr. Henkel MR. FREER-Okay. Thank you. So is there any other business that folks, that we need to discuss this evening? I’ll entertain a motion to adjourn. MR. MC CABE-I’ll make a motion that we adjourn. MR. KUHL-I’ll second that motion. MOTION TO ADJOURN THE QUEENSBURY ZONING BOARD OF APPEALS MEETING OF MAY 22, 2019, Introduced by Michael McCabe who moved for its adoption, seconded by Ronald Kuhl: nd Duly adopted this 22 day of May, 2019, by the following vote: AYES: Mr. Urrico, Mr. Kuhl, Mr. Underwood, Mrs. Hayward, Mr. McCabe, Mr. Freer NOES: NONE ABSENT: Mr. Henkel On motion meeting was adjourned. RESPECTFULLY SUBMITTED, Harrison Freer, Chairman 17