Loading...
2007-04-18 (Queensbury ZBA Meeting 04/18/07) QUEENSBURY ZONING BOARD OF APPEALS FIRST REGULAR MEETING APRIL 18, 2007 INDEX Area Variance No. 12-2007 Legacy Land Holdings, Inc. 1. Tax Map No. 296.11-1-21.1 Area Variance No. 7-2007 Vance Cohen 1. Tax Map No. 295.8-1-2 Sign Variance No. 9-2007 Richard Sabayrac d/b/a Estate Consignments 2. Tax Map No. 288.12-1-14 Area Variance No. 22-2007 Alice V. Jenkins 7. Tax Map No. 303.16-1-53 Area Variance No. 23-2007 Lloyd Helm 12. Tax Map No. 309.14-1-6 Area Variance No. 24-2007 Agnus J. Vincze-Rosen 19. Tax Map No. 226.16-1-49.1 Area Variance No. 30-2007 BBS Mitelman Family Trust 30. Peter Mitelman 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 04/18/07) QUEENSBURY ZONING BOARD OF APPEALS FIRST REGULAR MEETING APRIL 18, 2007 7:00 P.M. MEMBERS PRESENT CHARLES ABBATE, CHAIRMAN JAMES UNDERWOOD, SECRETARY ROY URRICO JOYCE HUNT CHARLES MC NULTY RICHARD GARRAND JOAN JENKIN, ALTERNATE EXECUTIVE DIRECTOR-BLANCHE ALTER LAND USE PLANNER-SUSAN BARDEN TOWN ATTORNEY-FITZGERALD, MORRIS, BAKER FIRTH-MATT FULLER STENOGRAPHER-MARIA GAGLIARDI MR. ABBATE-Good evening, ladies and gentlemen and welcome to the Town of Queensbury Zoning Board of Appeals hearing dated 18 April 2007. 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 are 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, this 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. Other than administrative items, public comments will be invited 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. All questions from the appellant or the public will be addressed to this Board. All dialogues during the hearing will be between the appellant and this Board, and I’m going to ask that our Secretary monitor the time, and, Mr. Secretary, do we have any correspondence, if so, would you be kind enough to do it for me, please. MR. UNDERWOOD-I have two letters this evening. The first one is for Area Variance No. 12-2007 which was supposed to be first on our agenda this evening. AREA VARIANCE NO. 12-2007 SEQRA TYPE: II LEGACY LAND HOLDINGS, INC. AGENT(S): JARRETT-MARTIN ENGINEERS, PLLC OWNER(S): LEGACY LAND HOLDINGS, INC. ZONING: PO LOCATION: BAY ROAD APPLICANT PROPOSES A 15-LOT COMMERCIAL SUBDIVISION. RELIEF REQUESTED FROM MINIMUM FRONT SETBACK REQUIREMENTS OF THE PO ZONE FOR 3 OF THE LOTS. WARREN COUNTY PLANNING: FEBRUARY 14, 2007 LOT SIZE: 26.16 ACRES TAX MAP NO. 296.15-1-28 SECTION: 179-4-030 MR. UNDERWOOD-We received this letter today and it’s addressed to Chairman Abbate and the Zoning Board of Appeals members. “Dear Chairman Abbate and Board Members: This letter is to withdraw pending application, #12-2007. We have developed a new subdivision design that does not require a zoning variance. If you have any questions, do not hesitate to contact us.” Sincerely, Jarrett-Martin Engineers, PLLC H. Thomas Jarrett, P.E. Principal” AREA VARIANCE NO. 7-2007 SEQRA TYPE: II VANCE COHEN AGENT(S): RON MOGREN, SARATOGA ASSOCIATES OWNER(S): DR. MITCHELL COHEN ZONING: HC-INT. LOCATION: 1159-1161 STATE ROUTE 9 APPLICANT 1 (Queensbury ZBA Meeting 04/18/07) PROPOSES CONSTRUCTION OF A PARKING FACILITY. RELIEF REQUESTED FROM MINIMUM PERMEABILITY REQUIREMENTS OF THE HC-INT. ZONE. CROSS REF.: MANY (TOO MANY TO LIST) WARREN COUNTY PLANNING: FEBRUARY 14, 2007 LOT SIZE: 0.60 ACRES TAX MAP NO. 295.8-1-2 SECTION: 179-4-030 MR. UNDERWOOD- The second letter was a fax that was received last week, and that was for Area Variance No. 7-2007. That was Vance Cohen, and that was the project located at State Route 9. “This fax serves as a request to pull Area Variance No. 7-2007 – Vance Cohen, from the agenda of the ZBA on 4/18/07. I will resubmit to the Planning Board this Friday to maintain my spot on the 5/15/07 Planning Board. Thanks – Ron” Last night at the Planning Board I guess they were turned down there, and I guess they’re pulling it completely now. So we won’t be hearing that at all. MR. ABBATE-Okay. Thank you, Mr. Secretary. Ladies and gentlemen of the public, at this particular point in time, we are going into Executive Session, and we’re going into Executive Session to discuss litigation. So I’m going to make a motion. MOTION TO GO INTO EXECUTIVE SESSION, Introduced by Charles Abbate who moved for its adoption, seconded by Joyce Hunt: th Duly adopted this 18 day of April, 2007, by the following vote: AYES: Mrs. Hunt, Mr. Urrico, Mrs. Jenkin, Mr. Underwood, Mr. McNulty, Mr. Garrand, Mr. Abbate NOES: NONE MR. ABBATE-The vote is seven yes and zero no, and as such we are moving into Executive Session at this particular time. MS. GAGLIARDI-Excuse, Mr. Chairman, you have to make a motion to come out of Executive Session. MR. ABBATE-Yes. Thank you. MOTION TO COME OUT OF EXECUTIVE SESSION, Introduced by Charles Abbate who moved for its adoption, seconded by James Underwood: th Duly adopted this 18 day of April, 2007, by the following vote: AYES: Mr. Underwood, Mrs. Jenkin, Mr. Urrico, Mr. Garrand, Mr. McNulty, Mrs. Hunt, Mr. Abbate NOES: NONE MR. ABBATE-We are out of Executive Session by a vote of seven yes, zero no. OLD BUSINESS: SIGN VARIANCE NO. 9-2007 SEQRA TYPE: UNLISTED RICHARD SABAYRAC d/b/a ESTATE CONSIGNMENTS OWNER(S): FIVEASIDE, LLC c/o SILVER BUILDERS, INC. ZONING: HC-INT. LOCATION: 6 STATE ROUTE 149 APPLICANT PROPOSES CONSTRUCTION OF AN 18 SQ. FT. WALL SIGN. RELIEF REQUESTED FROM NUMBER OF ALLOWABLE SIGNS. CROSS REF.: BP 2006-843 WALL SIGN WARREN COUNTY PLANNING: FEBRUARY 14, 2007 LOT SIZE: 0.70 ACRES TAX MAP NO. 288.12-1-14 SECTION: 140-6 RICHARD SABAYRAC, PRESENT STAFF INPUT Notes from Staff, Sign Variance No. 9-2007, Richard Sabayrac d/b/a Estate Consignments, Meeting Date: April 18, 2007 “Project Location: 6 State Route 9 Description of Proposed Project: Applicant proposes an 18 sq. ft. wall sign to be located on the side of the building for Estate Consignments. Relief Required: 2 (Queensbury ZBA Meeting 04/18/07) Applicant requests relief for a second wall sign, two signs per business is permitted, per §140-6. The business currently has one wall sign on the front of the building and one freestanding sign. Criteria for considering an Area Variance according to Chapter 267 of Town Law: 1. Benefit to the applicant: Applicants would be permitted to erect an additional wall sign on the building. 2. Feasible alternatives: Feasible alternatives appear to be limited to replacement of one of the existing signs for the proposed. 3. Is this relief substantial relative to the ordinance?: The relief requested for a total of 3 signs, where the maximum allowable is two per business, could be deemed considerable. 4. Effects on the neighborhood or community: Effects on the neighborhood or community appear to be minimal. 5. Is this difficulty self-created? The difficulty can be interpreted as self-created. Parcel History (construction/site plan/variance, etc.): BP 2006-844: Issued 11/30/06, sign for Estate Consignments. BP 2006-842: Issued 11/29/06, sign for Estate Consignments. Staff comments: The applicants currently have a 64 sq. ft. wall sign on the front of the building and a 12.5 sq. ft. freestanding sign, both advertising the business. The request for an additional sign totaling 3, where the maximum allowable per business is 2 is considerable; however it does not appear that the proposed would be detrimental to the neighborhood or community at only 18 sq. ft., and setback a considerable distance from property lines (180-feet from front and 55-feet from side). SEQR Status: Unlisted” MR. ABBATE-Would the petitioner of Sign Variance No. 9-2007 please be kind enough to approach the table, and would you have a seat and please inform us of your name and where you reside, sir. MR. SABAYRAC-My name is Richard Sabayrac. I live at 49 Overlook Drive in Queensbury. MR. ABBATE-Okay. Are you familiar with our proceedings, sir? MR. SABAYRAC-Not really. MR. ABBATE-Okay. You’re not. You’re not accompanied by an attorney? MR. SABAYRAC-No. MR. ABBATE-Well, what I’m going to ask you to do is to present your case to us and basically what I’m asking you to do is try to convince us why you believe that we should approve your Sign Variance, and if at any time during the hearing there’s something you don’t understand or a process, please stop us and we’ll be more than happy to explain it to you, or, if there’s anything else during the course of the hearing in which you feel you left out some information that might be advantageous to your case, please bring it to our attention. Do you understand that? 3 (Queensbury ZBA Meeting 04/18/07) MR. SABAYRAC-Yes, sir. MR. ABBATE-Are you prepared to proceed? MR. SABAYRAC-I am. MR. ABBATE-Then please proceed. MR. SABAYRAC-Okay. I’ve left you with the package that has these photos on it, very nice screen here, and what we’re proposing is to put a sign right there at the eaves of that building, right under the gable. Basically from the north side of the property, which is 149, you really can’t see what the building is or what the business is. We’ve been open now three months, and a lot of customers drive around, drive around, looking for us, and they turn in the corner, go around, have a hard time finding us from that angle. The only place they can really see us really well is from right in front of where the Log Jam is, from Route 9, then they have to get kind of off, because we’re kind of cuddled behind there. So it would really help our business to have it. No detriment. No negative to anybody. MR. ABBATE-Well, you still have opportunities to explain anything else you may have forgotten. All right. If, at this time, you have concluded your little argument, let me move on then and go to the Board and ask the Board members, do they have any questions for Mr. Sabayrac concerning Sign Variance No. 9-2007? MR. URRICO-Is that property considered part of the Log Jam outlet or any of the others? MR. SABAYRAC-No. MR. URRICO-So you wouldn’t be able to share a sign, one of the monument signs on Route 9? MR. SABAYRAC-No. This property basically runs north and south, starting at Route 149, and going back towards the Log Jam. As you can see the Log Jam is the building. You can see the snow on the building on the right of the log cabin there, and this other building is a standalone building. MR. URRICO-And that’s a standalone building as well. MR. SEGULJIC-This is a standalone building over here. It’s basically unoccupied. So there’s really no sign for that. We’ll eventually have to share a sign where it says, on this post sign here, where it has our sign. We’ll eventually have to share that sign. MR. ABBATE-Okay. Do we have any other members on the Board who would like to ask Mr. Sabayrac any questions concerning Sign Variance No. 9-2007? Do we have any other questions? All right. If we have no other questions, let me continue. I’m going to open up the public hearing for Sign Variance No. 9-2007, and if we have anyone in the public who would like to address this issue, if you would be kind enough to raise your hand, I’ll recognize you. PUBLIC HEARING OPENED MR. ABBATE-I see no hands raised, so we will continue. I’m going to ask members to offer their comments, and I’d like to inform the public that the comments offered by members are directed to me, the Chairman, and comments expressed by Board members to the Chairman will not be open to debate, and may 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. Additionally, any position you may take must be based on 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 the Board’s deliberations. Now, I’m going to ask members to please offer their comments, and I’m looking for a volunteer, and I saw, I think, Joan, you moved your hand. Would you be kind enough, please. MRS. JENKIN-Okay. My feeling is that there is no other benefit. I think, knowing that area, it is not easy to see what that store is. I’ve been by it and I’ve wondered what it was. I think the benefit is considerable to put a sign up. I don’t think there’s any undesirable change to the neighborhood. I think it would be an advantage, actually, for that store and for the area to know what store is on there, and I think it probably is self- 4 (Queensbury ZBA Meeting 04/18/07) created but it may not be because of the position of the store, and I’d be agreeable to this. MR. ABBATE-Thank you very much, Mrs. Jenkin. Do we have someone else who would like to go? MR. UNDERWOOD-Sure. MR. ABBATE-Would you please, Mr. Underwood. MR. UNDERWOOD-Yes. I think we have to keep in mind the nature of the neighborhood there, because it’s sort of in the backwater part of the mall section there. There’s been a whole series of businesses that have come and gone, with Moose Creek out on that building in front there. I think with that sign placed in front of that empty building, I think a lot of people might say, well, it looks like they closed up. So I think there would be some benefit to having that small sign placed at the apex to the roof up there. I think that the 18 square foot is not going to change the neighborhood or cause any detrimental effects, and we’ve kind of tried to revive the area down there, so we can help him out. MR. ABBATE-Okay. Thank you, Mr. Underwood, I appreciate that. Can we start down at the end with Mr. Urrico, please. MR. URRICO-I agree. I think given the unique location of this building and the extreme difficulty in probably finding it from Route 9, even 149, I think having an extra sign would certainly help the situation. I would be in favor of it. MR. ABBATE-Okay. Thank you very much. Can we go to Mrs. Hunt, please. MRS. HUNT-Yes. I have to agree with the rest of the Board members who’ve spoken. I, myself, when I went, I was confused about which building. I thought maybe there were two buildings. So I can see that there is really a need, and I would be in favor. MR. ABBATE-Okay. Thank you very much. Rick, please? MR. GARRAND-Certainly, Mr. Chairman. I readily don’t see how benefits by any other means can be achieved in this situation. The business is set back from the road and it is somewhat obscured, and hard to locate readily from the road. Request might seem a little substantial. Given the position of this building, I don’t consider it substantial, a substantial request, so I’d be in favor of this. MR. ABBATE-Thank you very much. Mr. McNulty, please. MR. MC NULTY-Well, since Mr. Bryant isn’t here, I’m going to have to do what he does very often. I’m going to go the other direction, for two or three reasons. One, this building does have a sign on one side of it. It has the allowable number of signs. There is a sign on 149 with an arrow that directs people in to the general area of the property. I think the problem could be solved with one or two directional signs which would not need a variance and could be added down low to guide people, once they’ve turned in there, where to go, because I’ll agree that once you turn in, based on the sign on 149, the next question’s, okay, where do I go, but I think directional signs would accomplish that, and there would be less relief that way than it would be for a sign on the end of the building, and the other thing I’m looking at, again, the wording in the Sign Ordinance is a bit different than an Area Variance criteria, and it pretty clearly says that a Sign Variance should be granted only if the applicant would be deprived of the practical use of his sign, and I don’t think that’s the case here. I think there’s an alternative with directional signs. So I’m going to be opposed. MR. ABBATE-All right. Thank you, Mr. McNulty. Again, I listened to what the appellant had to say, and I listened to what the Board members had to say, and unfortunately, Mr. McNulty, I’m going to have to side with the majority of the Board. I really believe that there are really no detriments for you putting up an additional sign. So I would certainly support the application. Having said that, I’m going to turn to our Secretary and ask the Secretary if he would be kind enough, since this is Unlisted, to do what you have to do, please. MR. UNDERWOOD-Okay. We’ll go down through the form. The applicant is Richard Sabayrac. The project name is Estate Consignments. It’s located at 6 Route 149 in Lake George, New York. Actually that’s the postal address there. The request is a 5 (Queensbury ZBA Meeting 04/18/07) variance to place a second sign on the wall of the building on the north end gable. Will the proposed action comply with the existing zoning? Only one wall sign is allowed, and this is a request for a variance to allow a second sign. What is the present land use in the vicinity? It’s a retail shopping mall. Does the action involve a permit approval or funding now or ultimately from any other governmental agency, federal, state or local? I would say no. Does any aspect of the action have a currently valid permit or approvals? There are Queensbury sign permits P2006-0842, and P2006-0844. “Does the action exceed any Type I Threshold?” Do you want me to read through them all, or can we just make a blanket statement, in this case, since it’s a sign? I don’t think a sign is going to trigger any of those environmental concerns. MR. ABBATE-That’s taking away from crossing the T’s and dotting the I’s, Jim. MR. UNDERWOOD-Okay. MR. ABBATE-Please. MR. UNDERWOOD-Okay. “Will the action receive coordinated review as provided for Unlisted Actions?” I would say no. MRS. HUNT-No. MR. UNDERWOOD-“Does the action exceed any Type I Threshold?” No. “Could action result in any adverse effects associated with the following: Existing air quality, surface or groundwater quality or quantity, noise levels, existing traffic patterns, solid waste production or disposal, potential for erosion, drainage or flooding problems?” No. “Aesthetic, agricultural, archeological, historic, or other natural or cultural resources; or community or neighborhood character?” I would say no. “Vegetation or fauna, fish, shellfish or wildlife species, significant habitats, or threatened or endangered species?” No. “A community’s existing plans or goals as officially adopted, or a change in use or intensity of use of land or other natural resources?” No. “Growth, subsequent development, or related activities likely to be induced by the proposed action?” I would say none. “Long term, short term, cumulative or other effects not identified?” I would say no. “Other impacts including changes in use of quantity or type of energy?” No. “Will the project have an impact on the environmental characteristics that caused the establishment of a CEA?” No. “Is there or is there likely to be controversy related to potential adverse environmental impacts?” I would say no. So I guess that’s it. MR. ABBATE-Okay. Thank you very much. MOTION THAT THE ENVIRONMENTAL ASSESSMENT FORM BE APPROVED, Introduced by Charles Abbate who moved for its adoption, seconded by Roy Urrico: th Duly adopted this 18 day of April, 2007, by the following vote: AYES: Mr. Urrico, Mrs. Hunt, Mr. Garrand, Mr. McNulty, Mrs. Jenkin, Mr. Underwood, Mr. Abbate NOES: NONE MR. ABBATE-In a seven yes, to zero no vote, the Environmental Assessment Form is approved. At this particular point, I am closing the public hearing on Sign Variance No. 9-2007. PUBLIC HEARING CLOSED MR. ABBATE-And I’m going to request, again, respectfully, of 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 each one into account in considering whether to grant an Area Variance. Please introduce your motion with clarity. The motion itself is not subject to debate. In the event a member moves a motion to approve and believes the appeal is substantial, please make clear your judgment for that basis. Having said that, ladies and gentlemen, I’m going to ask for a volunteer for a motion for Sign Variance No. 9-2007. Do I have a volunteer, please. MR. UNDERWOOD-I’ll make a motion. 6 (Queensbury ZBA Meeting 04/18/07) MR. ABBATE-Okay. Thank you, Jim. MOTION TO APPROVE SIGN VARIANCE NO. 9-2007 RICHARD SABAYRAC d/b/a ESTATE CONSIGNMENTS, Introduced by James Underwood who moved for its adoption, seconded by Joan Jenkin: 6 State Route 149. The applicant has proposed an 18 square foot wall sign to be located on the side of the building, and that will be on the north side gable end of the building. Specifically we will be granting relief for a second wall sign where two signs are permitted. There is a sign out on 149, but the business owner feels that this sign will be of assistance in people identifying his building which is on one of the back sort of portions of the mall there. So it’s a difficult place to locate. Under the benefit to the applicant, he will be allowed to have this extra sign. There doesn’t really seem to be any reasonable alternative to this, as far as the signage, unless he would take out one of the signs that he already has up. Effects on the neighborhood or community appear to be minimal, and it is self-created, but it’s also created by the location of the building and its setback from Route 149. So based upon that, I would move for its approval. th Duly adopted this 18 day of April, 2007, by the following vote: AYES: Mrs. Jenkin, Mr. Urrico, Mrs. Hunt, Mr. Garrand, Mr. Underwood, Mr. Abbate NOES: Mr. McNulty MR. ABBATE-The vote for Sign Variance No. 9-2007 is six yes, one no. Sign Variance No. 9-2007 is approved. Good luck, sir. MR. SABAYRAC-Thank you. MR. ABBATE-You’re very welcome. NEW BUSINESS: AREA VARIANCE NO. 22-2007 SEQRA TYPE: II ALICE V. JENKINS OWNER(S): ALICE V. JENKINS ZONING: MU LOCATION: 472 DIX AVENUE APPLICANT HAS CONSTRUCTED RESIDENTIAL ADDITIONS OF 168 SQ. FT. AND 84 SQ. FT. AND SEEKS RELIEF FROM THE SETBACK REQUIREMENTS OF THE MU ZONING DISTRICT AS WELL AS RELIEF FOR THE EXPANSION OF A NONCONFORMING STRUCTURE. CROSS REF.: BP 2006-906 WARREN COUNTY PLANNING: APRIL 11, 2007 LOT SIZE: 0.19 ACRES TAX MAP NO. 303.16-1-53 SECTION: 179-4-030 ALICE JENKINS, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 22-2007, Alice V. Jenkins, Meeting Date: April 18, 2007 “Project Location: 472 Dix Avenue Description of Proposed Project: Applicant has constructed an approximately 84 sq. ft. enclosed front porch and landing and an approximately 168 sq. ft. enclosed rear porch with ramp, both are residential additions to an existing 1560 sq. ft. single-family dwelling. Relief Required: The applicants request front setback relief of 9-feet (Dix), 11-feet of front setback relief (New Pine), 12-feet of rear setback relief (opposite Dix), and 6-feet of rear setback relief (opposite New Pine). All from the minimum 20-feet required, per §179-4-030 for the MU zone. It should be noted that all dimensions are approximate (as scaled by staff) as they were not identified on the plot plan submitted. Additionally, relief for expansion of a nonconforming structure is required, per §179-13- 010. 7 (Queensbury ZBA Meeting 04/18/07) Criteria for considering an Area Variance according to Chapter 267 of Town Law: 1. Benefit to the applicant: The applicant would be able to maintain the residential additions. 2. Feasible alternatives: Feasible alternatives appear to be limited. 3. Is this relief substantial relative to the ordinance?: The request for front setback relief (Dix) of 9-feet is a moderate 45%, the request for 11- feet from front (New Pine) is a moderate 55%, the request of 12-feet of rear (Dix) is a considerable 60%, and 6-feet of rear (New Pine) is a moderate 30%. Cumulatively, requests for relief from all four sides of the property should be deemed substantial. 4. Effects on the neighborhood or community: Moderate effects on the neighborhood may be anticipated as a result of this action. 5. Is this difficulty self-created? The difficulty may be interpreted as self-created. Parcel History (construction/site plan/variance, etc.): BP 2006-906: Pending, porch. Staff comments: The setbacks from the property lines to the newly constructed porches are approximate figures only, therefore, an as-built survey should be required prior to the granting of relief. SEQR Status: Type II” MR. UNDERWOOD-“Warren County Planning Board Project Review and Referral Form April 11, 2007 Project Name: Jenkins, Alice V. Owner: Alice V. Jenkins ID Number: QBY-07-AV-22 County Project#: Apr07-44 Current Zoning: MU Community: Queensbury Project Description: Applicant has constructed residential additions of 168 sq. ft. and 84 sq. ft. and seeks relief from the setback requirements of the MU zoning district as well as relief for the expansion of a nonconforming structure. Site Location: 472 Dix Avenue Tax Map Number(s): 303.16-1-53 Staff Notes: Area Variance: The applicant proposes to rebuild an existing porch to enclose a 6 ft. by 4 ft. porch for a 3- season porch. The existing home is located 15 from Pine Street property line where 20 ft. is required. The applicant has indicated the porch is pre-existing and they intend to close it in to allow for mudroom use with a porch. The plans show the location of the porch and construction details. 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 Paul Gollhofer, Warren County Planning Board 4/12/07. MR. ABBATE-Would the petitioner of Area Variance No. 22-2007 approach the table please, have a seat, tell us your name and where you reside, ma’am, please. MRS. JENKINS-I’m Alice V. Jenkins. I reside at 472 Dix Avenue, Queensbury, New York. MR. ABBATE-Okay. Now you heard the procedures I explained to the gentleman before you, what our procedures are? MRS. JENKINS-Yes. 8 (Queensbury ZBA Meeting 04/18/07) MR. ABBATE-Do you have any problems or questions with that? MRS. JENKINS-No. MR. ABBATE-Okay. You understand them? MRS. JENKINS-Yes. MR. ABBATE-All right. Are you prepared to proceed? MRS. JENKINS-Yes. MR. ABBATE-Okay. Please do. MRS. JENKINS-Basically what I did is this is what the new work looks like. They’re on file. I didn’t know I needed to bring pictures with me, but I have improved the value of that house. The porch that I replaced was falling apart. I was denied homeowner’s insurance because of the condition of the porch. So I took it upon myself and had it replaced. The front part, I don’t understand exactly what you’re asking for a variance, because I didn’t do, all we’re doing is closing in the porch. We didn’t add anything to it. So I don’t understand that part, and also there was something said about a ramp and I don’t have any ramps on my property. They’re all steps. MR. UNDERWOOD-Yes, it shows it on the drawing. MR. ABBATE-On the drawing. Okay. MRS. JENKINS-Okay, yes, but it’s changed to a steps. It’s no ramp. On the drawing, yes, it does show a ramp. MR. ABBATE-They are definitely steps? MRS. JENKINS-Yes. MR. ABBATE-All right. We’ve cleared that issue up. MRS. JENKINS-Okay. That’s basically, I guess, my thing. The thing is, the porch is where it was. I didn’t know that there’s a variance that I have to move, I mean, I can’t move my porch. My porch is put where it was originally, on the property, I guess, when I looked, went to the office to file these papers, I saw a picture of the house, and the porch is exactly where the porch was, except now it’s closed in, and in better condition. MR. ABBATE-All right, and is there anything else you’d like to add at this time? MRS. JENKINS-No, sir. MR. ABBATE-All right, and if you can think of anything else during the hearing, let us know, please. MRS. JENKINS-Okay. MR. ABBATE-Thank you very much. Members of the Board, do we have any questions for Area Variance No. 22-2007? MR. GARRAND-Question. Who was the contractor here? MRS. JENKINS-Chris Walsh. MR. GARRAND-Okay, and did he get the permits for this before he began work? MRS. JENKINS-No, he did not. MR. ABBATE-Staff, we have another instance, again, in which permits were not applied for, what have you. Would you be kind enough to take note of that and bring that to the attention of our Code Enforcement folks, please. MRS. BARDEN-Yes. MR. ABBATE-And hopefully they’ll do something about it. Anything else, Rick? 9 (Queensbury ZBA Meeting 04/18/07) MR. GARRAND-No, sir. MR. ABBATE-Okay. Do any of the Board members have anything else they wish to ask Mrs. Jenkins at this time? MR. UNDERWOOD-Now I would assume you’ve been to the Town and gotten a building permit now, and that’s all been taken care of? MRS. JENKINS-Yes, well, that’s why I’m here, because they won’t permit me the building permit because I have to get a variance. MR. UNDERWOOD-Sure. MR. ABBATE-Yes, right. That’s correct. Any other questions or comments? All right. If none, I’m going to move on. I’m going to open up the public hearing for Area Variance No. 22-2007, and do we have anyone in the public who would like to address this issue? If you’d be kind enough to raise your hands, I’ll recognize you and ask you to come forward. Any hands? PUBLIC HEARING OPENED MR. ABBATE-I see no hands. We’re going to continue. Again, I’m going to ask Board members to offer their comments. I’m going to inform the public once more that the comments offered by the members are directed to me, the Chairman, and they are not open to debate. I’ve already respectfully reminded the members about precedence and the evidence that we’re mandated to concern ourselves with. I don’t believe I have to do it again. I’m going to now ask members to please offer their comments on Area Variance No. 22-2007. Do we have a volunteer? Joyce, would you please. MRS. HUNT-While I don’t look kindly on an after the fact variance, but this is a rather a modest, 84 square foot enclosed front porch and 168 square foot rear porch with steps, and while relief could be considered considerable, it’s a mixed use area, and the house has been here for awhile. So I would be in favor of it. MR. ABBATE-Thank you very much. Okay. Do we have someone else? Let’s start at the end. Chuck, would you please like to comment, please? MR. MC NULTY-Sure. MR. ABBATE-Thank you. MR. MC NULTY-I think, in this case, with the applicant essentially replacing parts of the house that were already there, that it was more of a repair than a replacement, and I think that goes a long ways towards mitigating, I guess, how I would feel otherwise, because I agree. I don’t like after the fact applications, but I can understand where the mistake might have been made, too. This is a nonconforming house, and it’s closer to Dix Avenue than a house would be allowed to be built if you were building a new house today, and that’s why the work that you did on the front of the house came into question on the variance. Not because he extended anything that didn’t exist already, but what existed already was in to the setback, but given all that, I think in this case there certainly was good reason for doing this work. It didn’t expand anything. It obviously has made the house a better neighbor in the neighborhood, if you will. So I’ll be in favor. MR. ABBATE-Thank you very much. Mr. Garrand, please. MR. GARRAND-Well, I agree with Mr. McNulty. Granting variances after the fact is something we don’t like to do here, but also I have to agree with him when he said that most of what is here now was here before. This is a mixed use area, and it’s not going to have a huge environmental impact by having the applicant replace basically what was already there. I think, aesthetically, it does improve the area. I would, reluctantly, be in favor of this application. MR. ABBATE-Thank you very much. Mrs. Jenkin, please. MRS. JENKIN-I would agree with this. It definitely has improved the area. You’ve done a nice job with the house. It’s on the corner. So it really wouldn’t have an effect on neighbors or anything because you are right on the corner lot, and I think the request, 10 (Queensbury ZBA Meeting 04/18/07) because it was already there, even though it’s finished now, it was there and you haven’t increased any of the square footage of the house. So I’d be in favor of it. MR. ABBATE-Okay. Thank you very much. Mr. Underwood, please. MR. UNDERWOOD-Yes, I think this request, though it appears to be moderate, really is a minor request. I don’t have any doubt that we would have approved this had they come in and asked to do these things. It’s reconstruction and updating of what was there, and I think that the change in the neighborhood is a positive one with making the house look much nicer than it did prior to the construction. So I have no problem with it. MR. ABBATE-Okay. Thank you, and Mr. Urrico, please, sir. MR. URRICO-Yes. I essentially agree with everybody, and I’m not going to beat up the applicant any longer on the after the fact issue. I think this was a repair, and would have definitely gotten approval from us. The one concern I do have has to do with the permit process not being followed and the applicant getting this far without truly understanding the application for a variance. Somewhere along the line, something should have been explained to her so she understood why she’s here. I think that’s a problem that needs to be addressed. MR. ABBATE-Okay, and before I make my decision on this, too, you do understand, of course, Mrs. Jenkins, that in the future what the proper procedures are? For the record you do, is that correct? MRS. JENKINS-Yes. MR. ABBATE-Thank you very much. I, too, would agree with my fellow Board members. I think there probably are some mitigating circumstances to this, and I think what you’ve done probably is going to enhance, if you will, the neighborhood, and so I will support your application as well. Having said that, I’m now going to close the public hearing for Area Variance No. 22-2007. PUBLIC HEARING CLOSED MR. ABBATE-And again, ladies and gentlemen of the Board, I respectfully remind you about our task of balancing the benefit of the variance against the impact on the area. I’ve already said it once this evening. I don’t feel I have to go through it again, but I am going to ask that when you introduce your motion, please introduce it with clarity, please. Now, having said that, I am looking for a volunteer to address Area Variance No. 22- 2007. Do I have a volunteer? MRS. HUNT-I’ll make a motion. MR. ABBATE-You will? Thank you, Mrs. Hunt. MOTION TO APPROVE AREA VARIANCE NO. 22-2007 ALICE V. JENKINS, Introduced by Joyce Hunt who moved for its adoption, seconded by Roy Urrico: 472 Dix Avenue. The applicant has constructed an approximately 84 square foot enclosed front porch and landing and approximately 168 square foot enclosed rear porch. Both are residential additions to an existing 1,560 square foot single family dwelling. The applicant requests front setback relief of nine feet on Dix, eleven feet of front setback relief, New Pine, twelve feet of rear setback relief opposite Dix, and six feet of rear setback relief opposite New Pine, all from the minimum twenty feet required as per Section 179-4-030 for the Multiple Use zone. It should be noted that all dimensions are approximate. Additionally relief for expansion of a nonconforming structure is required per Section 179-13-010. The benefit to the applicant would be that she would be able to maintain the residential addition she has put up. I don’t think there will be an undesirable affects or changes to the neighborhood. In fact, I think it’s a positive one. The feasible alternative are limited, and while the relief might be considered substantial, it is really no change from what was there before, and it’s self-created only in the fact that the applicant wished to repair and upgrade the building. So I would ask that we approve Area Variance No. 22-2007. th Duly adopted this 18 day of April, 2007, by the following vote: AYES: Mr. Urrico, Mrs. Hunt, Mr. Garrand, Mr. McNulty, Mrs. Jenkin, Mr. Underwood, Mr. Abbate 11 (Queensbury ZBA Meeting 04/18/07) NOES: NONE MR. ABBATE-The vote for Area Variance No. 22-2007 is seven yes, zero no. Area Variance No. 22-2007 is approved. Good luck. MRS. JENKINS-Thank you. AREA VARIANCE NO. 23-2007 SEQRA TYPE: UNLISTED LLOYD HELM OWNER(S): QUEENSBURY PETROLEUM, INC. ZONING: MU LOCATION: 107 MAIN STREET APPLICANT PROPOSES CONSTRUCTION OF A 2,520 SQ. FT. CONVENIENCE STORE AND RELATED SITE IMPROVEMENTS. APPLICANT SEEKS RELIEF FROM THE SETBACK REQUIREMENTS OF THE MU ZONE. CROSS REF.: BP 2006-559; COM’L ALT.; BP 2005-638 C/O; BP 98-3208; BP 98-3167; BP 97-3157; BP 97-672; BP 97-585 COM’L ALT. WARREN COUNTY PLANNING: APRIL 11, 2007 LOT SIZE: 1.01 ACRES TAX MAP NO. 309.14-1-6 SECTION: 179-4-030 LLOYD HELM, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 23-2007, Lloyd Helm, Meeting Date: April 18, 2007 “Project Location: 107 Main Street Description of Proposed Project: Applicant proposes construction of a 2,520 sq. ft. convenience store, fuel pumps, and related site improvements. Relief Required: The applicant requests front setback relief of 62-feet, from the maximum (build to line) 42.5-feet from the centerline of Main Street, and side setback relief of 7-feet from the minimum 20-feet is also required, per §179-4-030 for the MU-Main St. zone. Criteria for considering an Area Variance according to Chapter 267 of Town Law: 1. Benefit to the applicant: Applicants would be able to construct the proposed convenience store in the desired location. 2. Feasible alternatives: Feasible alternatives appear to be limited due to the applicant’s desire to maintain the existing pump island. 3. Is this relief substantial relative to the ordinance?: The request for front setback relief of 62-feet from the maximum 42.5-feet is substantial at 147%. The request for side setback relief of 7-feet from the minimum 20-feet is moderate at 35%. 4. Effects on the neighborhood or community: Minimal effects on the neighborhood or community may be anticipated as a result of this action. 5. Is this difficulty self-created? The difficulty may be interpreted as self-created. Parcel History (construction/site plan/variance, etc.): BP 2006-559: Issued 9/26/06, COMMERCIAL ALTERATION. BP 97-672: Issued 11/12/98, CANOPY COVER FOR PUMPS / 1728 SQ FT CANOPY COVER FOR PUMPS. AV 41-97: Approved 8/27/1997. 12 (Queensbury ZBA Meeting 04/18/07) Staff comments: The applicant proposes to utilize the existing footprint, maintaining the front setback (81- feet from the property line and 104.5-feet from the centerline of Main St.) and improving the side setback from 10-feet to 13-feet. This is an Unlisted Action and is subject to Planning Board site plan review, and subject to the design guidelines of the Main St. Corridor, per §179-7-030. With that, the Board could request that the Planning Board seek lead agency status with regard to SEQR and make recommendation to this Board prior to entertaining the requested variances. SEQR Status: Unlisted” MR. UNDERWOOD-“Warren County Planning Board Project Review and Referral Form April 11, 2007 Project Name: Helm, Lloyd Owner: Queensbury Petroleum, Inc. ID Number: QBY-07-AV-23 County Project#: Apr07-42 Current Zoning: MU Community: Queensbury Project Description: Applicant proposes construction of a 2,520 sq. ft. convenience store and related site improvements. Site Location: 107 Main Street Tax Map Number(s): 309.14-1-6 Staff Notes: Area Variance: The applicant proposes to demolish and rebuild a convenience store. The new building is to be 18.5 ft. from the side property line where 20 ft. is required. The applicant has indicated the existing site includes gas pumps and diesel pumps that are to remain where the new building will accommodate these existing features. The plans included lighting and landscaping with some drainage information. The property is bordered by the NIMO land on the east where the variance is sought and I-87 on the west. 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 Paul Gollhofer Warren County Planning Board 4/12/07. MR. MC NULTY-Mr. Chairman, before you proceed, I’m going to recuse myself from this application. MR. ABBATE-All right. That’s fine. Thank you very much. Would you like to join us this evening? Do you feel prepared enough to discuss it? Please, then, take a chair. Thank you. Would the petitioner of Area Variance No. 23-2007 please approach the table, have a chair, and speak into the microphone and tell us your name and where you reside, please. MR. HELM-Hi. My name is Lloyd Helm, and I reside at 10 Loudon Heights North, Loudonville, New York. MR. ABBATE-Now you heard me explain the procedures to those folks who are not accompanied by an attorney. Do you understand those procedures? MR. HELM-I do. MR. ABBATE-Okay. Are you prepared to proceed? MR. HELM-Yes. MR. ABBATE-Please do. MR. HELM-Okay. Roughly three or four years ago we purchased the Sunoco station at Exit 19, and we went in front of the Town Planning Board and their main concern with us at that location was it was one of the first sites that people had when they came into Queensbury, and we spent a year and a half through the Planning Board process, and we came up with what we thought was a nice solution that, you know, it looks like a gas station, but was nicer than a Sunoco station would normally look with the blue canopy and pumps and flat roof and everything else. We’d like to do the same thing with our property at Exit 18. Currently, it’s an eyesore. It looks terrible. I realize that we are on the Main Street corridor, but no matter what you do with that property, it’s never going to feel like the Main Street corridor. You’re always going to have the ramp to the Northway on our west side, and on our east side we’re going to have the National Grid right of way and then directly after that the new road that they will be constructing, and I believe after that there’s a cemetery. So there’s not going to ever be any kind of Main Street appearance in that section. If we were to build to the build to line, it would require that 13 (Queensbury ZBA Meeting 04/18/07) we move the pumps either behind the building, which then no one would be able to see, or to the side of the building, and if we moved the pumps and the canopy to the side of the building, it would require that we move the tanks. Not, again, really a feasible job. The new structure will be built within the footprint of the existing structure. So we would not be infringing any more on any setbacks that are currently existing, and finally, too, the request, or the comments by the Town Staff that this could be put off to the Planning Board, I don’t really feel that’s a fair request. It doesn’t seem like it would be hard to make a decision on this tonight, and to defer us to the Planning Board, which I know is going to be a long process, probably, you know, up to a year, and then have to come back just seems like a waste of time. If at all possible, we would like to request that a decision be made on this this evening. MR. ABBATE-Okay. Have you, for the moment, concluded your little argument? Of course you always have an opportunity to address additional issues with us during the hearing. MR. HELM-Yes. MR. ABBATE-Okay. Gentlemen, ladies of the Board, you heard what Mr. Helm has had to say in Area Variance No. 23-2007. Do we have any Board members who have any questions for Mr. Helm? MRS. JENKIN-The south elevation, is that the one that fronts on Main Street? MR. HELM-Yes. MRS. JENKIN-Okay, and then the other one is the side that’s next to the Northway? MR. HELM-Would face the Northway, yes. MRS. JENKIN-Because I don’t know my east/west/north/south in this area. Okay. That was my question. MR. ABBATE-Okay. Anyone else have any questions? Yes? MR. URRICO-You won’t have any right of way to the new road once it’s put in there, from your location? MR. HELM-I don’t believe so because we don’t abut it. In between the new road and our property is the right of way for National Grid. MR. URRICO-Right, and you won’t have right of way through that. MR. HELM-No. MR. URRICO-So the traffic pattern there is going to change, at least in terms of getting to that station. Whereas before the northbound traffic off of the Northway would be making a right and then a left into your station, now they would be making a left and a right into your station. MR. HELM-With the new exit ramp? MR. URRICO-Yes. MR. HELM-Yes, that’s correct. MR. URRICO-And are you planning on changing the access to your station as a result? MR. HELM-Well, our plans show that we’re reducing the curb cuts, and would have an in and an exit, but I guess to answer your question, in effect not really. I mean, it still would be entering from the front of the property. MR. URRICO-Across a third lane. There’s going to be a center lane there. MR. HELM-Right. MR. UNDERWOOD-All the traffic’s got to go through there to get back on anyway. MR. URRICO-Yes. 14 (Queensbury ZBA Meeting 04/18/07) MR. UNDERWOOD-So it doesn’t matter. MR. ABBATE-All right, folks. Do we have any other questions for Mr. Helm concerning Area Variance No. 23-2007? MR. UNDERWOOD-Have you been in for any preliminary stuff with the Planning Board yet on this? MR. HELM-No. We submitted an application to the Planning Board and it was denied based on zoning. That’s why it seems to be sent back to Planning. MR. UNDERWOOD-I mean, I’m thinking about the other gas stations on the corner that have been re-done or the ones that are pre-existing up the road. You’ve got the Hess station and the Cumbie’s store up the road that we re-did, and, you know, I think based upon the lot here, I guess the feasible alternative would be to put the pumps over towards the Northway on ramp on that western side of the property there, but, you know, certainly it seems more logical to have the pumps out front there where you don’t have all the traffic, that would allow for parking for people coming into the convenience store over on that side, instead makes more sense to me. MR. HELM-I would think that the cost involved to move the tanks and the pumps, because of all the regulations that would be required, would probably make us not do anything to the property. MR. UNDERWOOD-What’s the general replacement life of the pump, of the tanks and stuff like that underground, for you guys? MR. HELM-Well, I believe the tanks are guaranteed for something like 20 years, but once you take a tank out of the ground, it has to be re-certified, even if it’s out for five minutes and carried by a crane, you know, 30 feet and plopped back in. It still has to be re-certified to its integrity. MR. UNDERWOOD-And the only place to put the pumps, really, if you put the canopy over on that side it would be way in the back, which would make the access even more difficult for the trucks dumping gas. MR. HELM-Right, and it’s also a pie-shaped. MR. UNDERWOOD-It gets narrower as you go back. MR. HELM-It gets narrower as you go back. So that would increase the paved amount. MR. ABBATE-Any other questions or comments? Staff, do me a favor and read to me 179-7-030 please. MRS. BARDEN-Any section? MR. ABBATE-I want you to read me the section that says the Unlisted action is subject to Planning Board site plan review, and subject to design guidelines of the Main Street corridor. I’d like that confirmed, please. MR. UNDERWOOD-Maybe the Main Street guidelines, you know, essentially, to explain that, the buildings are supposed to be closer to the road than this one is. MRS. BARDEN-Do you want me to read the design guideline standards? MR. ABBATE-Well, I’d like to confirm that this is correct before we, in order words, what you’re basically saying is that we have no choice. You’re saying that this Board has to, because it’s an Unlisted action, and it’s subject to Planning Board site plan review and subject to the design guidelines of the Main Street corridor, I’d like that confirmed before we go any further. MRS. BARDEN-It’s certainly the Board’s discretion whether or not they would like to have the Planning Board seek Lead Agency status to do SEQRA review. MR. ABBATE-So we do have the discretion? MRS. BARDEN-Absolutely. 15 (Queensbury ZBA Meeting 04/18/07) MR. ABBATE-That’s exactly what I wanted on the record. Gentlemen on the Board, we do have discretion in this matter. MRS. BARDEN-That’s why it says the Board could request. MR. ABBATE-Under SEQRA, not under the guidelines. Just wanted that cleared up. Any other Board members have any questions concerning this? MR. UNDERWOOD-Just out of curiosity, Susan, on the canopy where it exists at the present time is set back pretty far from the road. It appeared to me to be setback at about the same as the ones at the Cumberland Farms store, further up the way there. I would say they’re pretty similar to their setbacks. In a way it seems to make sense to leave them where they are, as opposed to re-inventing the wheel here and having to reconfigure a whole site to make somebody go through that whole process. MR. ABBATE-Okay. Do we have any other comments from Board members? Yes, sir, please. MR. CLEMENTS-I just, in looking at the parking here, Parking 15 and 16, which are out in front of the store, in between there and the pump island. I’m wondering whether that’s a good idea to have two parking places there where cars are going to be going out and getting gas through there. MR. HELM-I think that’s probably a valid point. Because there isn’t a lot of room, currently, between the building and I think the engineer was trying to get handicap parking spaces close to the door when you drew those in. That could easily be moved to the west side of the building, so there would be an entranceway over there also. MR. ABBATE-Okay? MR. CLEMENTS-Okay. MR. ABBATE-All right. Any other comments from the Board members at this particular time? Okay. I’m going to move on. I’m going to open up the public hearing for Area Variance No. 23-2007. Do we have any folks in the public who would like to address that issue? If you would raise your hands, I would be more than happy to recognize you. PUBLIC HEARING OPENED MR. ABBATE-I see no members of the public. I see no hands raised, so we’re going to continue on. Again, members, I’m going to ask for your comments, please, and again to the public, the comments offered by members are directed to the Chairman and they are not open to debate. I’ve listed what are requirements are before, ladies and gentlemen of the Board, and what we must concern ourselves with evidence on the record. I don’t feel I have to go through it again. I’m going to now ask members to please offer their comments on Area Variance No. 23-2007. Do we have a volunteer, please? MR. CLEMENTS-I will. MR. ABBATE-Mr. Clements, would you be kind enough, sir, please. MR. CLEMENTS-Yes. I would be in favor of this. I think it’s going to be, I would be in favor of this if you moved the parking places to the west side, as you were talking about. I think it’s going to be an enhancement to the area, and I think it’ll be a much nicer spot. MR. ABBATE-Okay. So what you’re suggesting, Mr. Clements, is that you would approve this, however, there must be conditions? MR. CLEMENTS-Yes. MR. ABBATE-Okay. I just wanted to make that clear. Well, let’s just start on this end. Start with Mr. Urrico, please. MR. URRICO-All right. I understand the applicant’s concerns, and desire to have this application speed through, but we spent a lot of time planning this area, the Town has, and there’s a lot of activity going on around that in terms of planning as well, and I would feel a heck of a lot better if it went through Planning Board first, because I think there’s more to consider than just this one lot. 16 (Queensbury ZBA Meeting 04/18/07) MR. ABBATE-Okay. All right. That’s fine. So you’re recommendation then is that before we make any moves, basically we should go to the Planning Board and request a recommendation. Fine. Okay. Let’s see, Mrs. Hunt, please. MRS. HUNT-Yes. I have to agree with Mr. Urrico. I would like to see the Planning Board get Lead Agency and make recommendations to the Board before requiring a variance. MR. ABBATE-Okay. All right. Thank you very much. Mr. Underwood, please. MR. UNDERWOOD-I’m sort of torn between, you know, going with my two associates to the right of me here, but at the same time, this is sort of the transitional area here. Main Street corridor, I think, is supposed to reflect Main Street as it goes in towards the City of Glens Falls, and I think that, when you’re out here on the fringe here, there’s room for a little more leeway here. I can understand why you might want to maintain that Main Street façade look all the way down through the whole corridor to the very end of it, but you’ve got a separation zone there with the NiMo power line. You’ve got the Main Street connector going over to Luzerne Road further down, too, and I think that at this point in time, you know, you’re sort of like playing a chess game. There’s different moves you could make to make things better, but I think at this station here really is, in its present form and as envisioned by the applicant, with the new building the way it’s going to look, I would much rather get out of my car and be well away from the road there. We’ve already got the Northway on ramp there and lots of traffic and busyness there. These pumps are set back the same basic distance off the road as the other ones on the Main Street corridor, and I don’t see any reason to make somebody totally reconfigure their whole lot and all their plot on here, just to accommodate somebody’s whim. Even though it is a Main Street guideline, I can understand that, but I think that I would go along with the request this time. MR. ABBATE-Okay. Thank you. Mr. Garrand, please. MR. GARRAND-Thank you, Mr. Chairman. Mr. Chairman, this is a Main Street Travel Corridor, the purpose of which is to convey traffic. That’s exactly what I think this design does, conveys traffic. For the applicant, I think, moving the pumps to another location would prove to be cost prohibitive. I also think that he can’t achieve what he wants to do any other way, except with the design that he’s proposed to us. At this point I would be in favor of this application in its current form. MR. ABBATE-Okay. Thank you very much. Mrs. Jenkin, please. MRS. JENKIN-Yes. I think this is the first property that you’ll see as you come off the Northway, and right now it really is in dire need of improvement. It looks just awful, and being a little bit farther off the street, then you will have the ability to do the landscaping that you have in your plans, which I think will really add to the whole feel of coming on to Main Street and feeling as if you’re coming on to a nice area. I think it makes sense to be farther back, just because of that reason. So I would agree with this, and I think that the building is going to make a big difference to the appearance of it, and I would be for this. I think it’s a real improvement. I’m for the motion. MR. ABBATE-Well, this is what I get paid for, correct? It would appear that that we have three individuals who have some concerns, two individuals with concerns, and one of our Board members has a yes with conditions. MRS. HUNT-Mr. Chairman, I would go along with the yes votes at this point. MR. ABBATE-Would you? Thank you so much, Mrs. Hunt. You saved me. Thank you very much. MR. CLEMENTS-I could also go along with it without conditions. MR. ABBATE-Thank you so very much. I owe the both of you. Well, I’m certainly glad to hear that. I listened very carefully to what the majority of the folks had to say and quite frankly, I agree with the majority. I believe that what you are attempting to do is fine. Really, realistically, and also I have to take into consideration, with my vote to support your application, after all, we serve as a safety valve. That’s what, basically, this Board is all about, and we must take into consideration a lot of factors, but I think your recommendations and your submissions to us quite frankly to me make sense, and I will support the application. All right. Having said that, this is Unlisted, Mr. Secretary. 17 (Queensbury ZBA Meeting 04/18/07) MR. UNDERWOOD-Yes. Okay. The project applicant is GRJH, Inc. The project location is 107 Main Street, Queensbury, New York. In describing the project briefly, they’re going to be taking down the existing building and constructing a new convenience store, and the applicant has requested that they be allowed to keep the canopy where it is and not have to move the fuel storage tanks over on the west side of the property there. What is the present land use in the vicinity of the project? It’s commercial. Does the action involve a permit approval or funding now or ultimately from any other governmental agency, State, Federal or Local? No. Does any aspect of the action have a currently valid permit or approval? No. As a result of the proposed action, will the existing permit or approval require modification? Certainly during site plan review there’s probably going to be some modification of the parking and things like that, and possibly where the ingress and egress on the property are, but that’s not really our purview. “Does the action exceed any Type I Threshold in 6 NYCRR?” I would say no. “Will the action receive coordinated review as provided for for Unlisted actions?” I would say no, other than the Planning Board’s going to review the site plan. That’s it. MR. FULLER-Yes. If you were going to undertake a SEQRA review tonight, it would be uncoordinated. MR. ABBATE-Right. It would be uncoordinated. Absolutely correct. MR. UNDERWOOD-All right. MR. FULLER-If you were going to coordinate, you would coordinate with the Planning Board. MR. ABBATE-Okay, but it’s not the majority of the Board’s intention to coordinate. MR. UNDERWOOD-“Could action result in any adverse effects associated with the following: Existing air quality, surface or groundwater quality or quantity, noise levels, existing traffic patterns, solid waste production or disposal, potential for erosion, drainage or flooding problems?” I would say no. They’re essentially going to be re- building the building. They’re going to add a lot more landscaping. “Aesthetic, agricultural, archeological, historic, or other natural or cultural resources; or community or neighborhood character?” It appears to me to be an enhancement of the character from what it is at the present. “A community’s existing plans or goals as officially adopted, or a change in use or intensity of use of land or other natural resources?” Although it’s a modification of the Main Street guidelines, it appears to be the general feeling of the majority of the Board members that this is a transitional zone and that we can live with what the request is. “Growth, subsequent development, or related activities likely to be induced by the proposed action?” I would say it would be a benefit, growth, it would be about the same. “Long term, short term, cumulative or other effects not identified?” I would say no. “Other impacts including changes in use of quantity or type of energy?” I would say no. “Will the project have an impact on the environmental characteristics that caused the establishment of a CEA?” I would say no. “Is there or is there likely to be controversy related to potential adverse environmental impacts?” I would say no. That’s it. MR. ABBATE-All right. The Secretary has narrated each of the questions on the Environmental Assessment Form, and we have responded. MOTION THAT THE ENVIRONMENTAL ASSESSMENT FORM BE APPROVED, Introduced by Charles Abbate who moved for its adoption, seconded by Joyce Hunt: th Duly adopted this 18 day of April, 2007, by the following vote: AYES: Mrs. Jenkin, Mrs. Hunt, Mr. Garrand, Mr. Clements, Mr. Underwood, Mr. Abbate NOES: Mr. Urrico MR. ABBATE-The vote is a total of six yes, for approval, and one no for disapproval. In a six yes to one no, the Environmental Assessment Form is approved. The public hearing is now closed for Area Variance No. 23-2007. PUBLIC HEARING CLOSED MR. ABBATE-We’ve reached the point now, again, I remind the members of our duties and responsibilities and the five factors to take into consideration. I’ve already mentioned it earlier. I don’t believe I have to go through it again. I’m going to look for a 18 (Queensbury ZBA Meeting 04/18/07) motion. I’d request that your motion be made with clarity. Having said that, do I have a volunteer for a motion for Area Variance No. 23-2007? MR. UNDERWOOD-I’ll do it. MR. ABBATE-Would you do that for me, Jim? Thank you very much. MOTION TO APPROVE AREA VARIANCE NO. 23-2007 LLOYD HELM, Introduced by James Underwood who moved for its adoption, seconded by Joyce Hunt: 107 Main Street. The applicant is proposing construction of a 2,520 square foot convenience store with fuel pumps and related site improvements, and they’re specifically requesting front setback relief of 62 feet from the maximum build to line, and 42.5 feet from the center line of Main Street, and side setback relief of seven feet from the minimum 20 feet where it’s required for the Mixed Use Main Street zone. As far as the benefit to the applicant, they would be able to reconstruct the new convenience store in the same location as the present building. Feasible alternatives appear to be limited due to the applicant’s desire to maintain the existing pump island out there, as well as the fuel underground storage tanks. Is the relief substantial relief relative to the Ordinance? The request for front setback relief of 62 feet from the maximum 42 and a half feet is substantial at 147%. The Main Street guideline require buildings to be located closer to the main thoroughfare out in front on Main Street, but in this instance here, it’s generally felt by the Board, due to the busy nature of that corner there with the on ramp of the Northway, that the proposed is better than moving the building closer to the road. Also the request for side setback relief of seven feet from the minimum twenty feet is moderate at thirty-five percent, but again, that’s also just from the power line of National Grid to the east on the property there. Effects on the neighborhood or community? It’s felt that those effects will be minimal and in general I think that the difficulty is self-created by the owner wanting to build his building in the present shape and form as it is here, but we can generally say, I mean, the other argument I think we can make in this instance is that there’s almost two fronts on there with the on ramp and Main Street together, there’s two sides. So I would move for its approval. th Duly adopted this 18 day of April, 2007, by the following vote: AYES: Mrs. Hunt, Mr. Garrand, Mr. Clements, Mrs. Jenkin, Mr. Underwood, Mr. Abbate NOES: Mr. Urrico MR. ABBATE-The vote for Area Variance No. 23-2007 is six yes, one no. Area Variance No. 23-2007 is approved. Thank you very much. MR. HELM-Thank you. AREA VARIANCE NO. 24-2007 SEQRA TYPE: II AGNUS J. VINCZE-ROSEN AGENT(S): CIFONE CONST. CO., INC. LITTLE & O’CONNOR OWNER(S): AGNUS J. VINCZE-ROSEN ZONING: WR-1A LOCATION: 262 CLEVERDALE ROAD/260 CLEVERDALE ROAD APPLICANT PROPOSES REMOVAL OF EXISTING 807 SQ. FT. SUNDECK/BOATHOUSE AND CONSTRUCTION OF A 742 SQ. FT. SUNDECK/BOATHOUSE. APPLICANT SEEKS RELIEF FROM THE ACCESSORY STRUCTURE REQUIREMENTS FOR BOTH SIDELINE SETBACKS AS WELL AS RELIEF FROM THE MAXIMUM HEIGHT REQUIREMENTS. CROSS REF.: BP 2005- 831 DEMO OF SFD; BP 2005-830 SFD WARREN COUNTY PLANNING: APRIL 11, 2007 ADIRONDACK PARK AGENCY: YES LOT SIZE: 0.48 ACRES TAX MAP NO. 226.16-1-49.1 SECTION: 179-5-050 MICHAEL O’CONNOR, REPRESENTING APPLICANT, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 24-2007, Agnus J. Vincze-Rosen, Meeting Date: April 18, 2007 “Project Location: 262 Cleverdale Road/260 Cleverdale Road Description of Proposed Project: Applicants propose to maintain the existing E-shaped dock and replace the existing 1250 sq. ft. boat-roof with 307 sq. ft. sundeck with a proposed 1220 sq. ft. boat-roof with 742 sq. ft. sundeck. Relief Required: 19 (Queensbury ZBA Meeting 04/18/07) The applicants request side setback relief of 18-feet, from the minimum 20-feet required, per §179-5-050. In addition, height relief of 7.2-ft. of relief from the maximum height requirement for boathouses of 14-feet is requested, per §179-5-050. Criteria for considering an Area Variance according to Chapter 267 of Town Law: 1. Benefit to the applicant: Applicants would be able to construct the proposed boathouse and sundeck at the desired location and height. 2. Feasible alternatives: Feasible alternatives to the side setback relief request appears to be limited, however feasible alternatives to the height relief request could be explored. 3. Is this relief substantial relative to the ordinance?: The request for side setback relief is substantial at 90%, and the request for height relief is substantial at 50%. 4. Effects on the neighborhood or community: Moderate effects on the neighborhood or community may be anticipated as a result of this action. 5. Is this difficulty self-created? The difficulty may be interpreted as self-created (see staff comments below). Parcel History (construction/site plan/variance, etc.): BP 2005-831: DEMOLITION OF SINGLE FAMILY DWELLING BP 2005-830: 3398 SQ FT SINGLE FAMILY DWELLING WITH 2 FIREPLACES Staff comments: While the request for side setback relief is substantial, it appears to be only partially self- created due to the existing nonconforming location of the E-shaped dock. However, the request for height relief is substantial, self-created, and feasible alternatives could be explored. The applicants have combined the two adjoining parcels. The granting of any relief for the proposed should be conditioned on the removal of the dock to the north. SEQR Status: Type II” MR. UNDERWOOD-“Warren County Planning Board Project Review and Referral Form April 11, 2007 Project Name: Vincze-Rosen, Agnus J. Owner: Agnus J. Vincze-Rosen ID Number: QBY-07-AV-24 County Project#: Apr07-47 Current Zoning: WR-1A Community: Queensbury Project Description: Applicant proposes removal of existing 807 sq. ft. sundeck/boathouse and construction of a 742 sq. ft. sundeck/boathouse. Applicant seeks relief from the accessory structure requirements for both sideline setbacks as well as relief from the maximum height requirements. Site Location: 262 Cleverdale Road/260 Cleverdale Road Tax Map Number(s): 226.16-1-49.1 Staff Notes: Area Variance: The applicant proposes to remove an existing boat roof 1,250 sq. ft. and sundeck of 307 sq. ft. to construct a 1,220 sq. ft. boat roof with a 742 sq. ft. sundeck. The existing and proposed structure is 2 ft. from the projected property line where a 20 ft. setback is required. The height of the structure includes an 8 ft. by 8 ft. sundeck roof where the overall height is to be 21 ft. where 14 ft. is the maximum allowed. The applicant has indicated that new structure will be built in the same footprint to match the new home. The plans indicate the previous structure had an awning structure on the 20 (Queensbury ZBA Meeting 04/18/07) sundeck. 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 Paul Gollhofer Warren County Planning Board 4/12/07. MR. MC NULTY-Mr. Chairman, before we go further, a couple of questions, I guess, for Staff. MR. ABBATE-Yes, please. MR. MC NULTY-The description on the agenda, which I presume reflects what was advertised, indicates that the applicant’s proposing the removal of an 807 square foot sundeck. Staff Notes say that it’s a 307 square foot. That’s question number one. I presume the Staff Notes have got a typo, but I’d like to confirm that. The second thing that leaves me wondering is if the description in the agenda does reflect what was advertised, it’s suggesting that they’re removing an 807 square foot sundeck or roof and replacing it with a 742, which is a little different than removing a 1250 square foot roof and replacing it with a 1220 square foot roof. I wonder if the advertising’s adequate or not. I’m not arguing either way. I’m just asking the question. MR. ABBATE-Right. Mr. McNulty, you raise a valid issue. I have been in heavy debate, for the last couple of days, or certainly last day, with Staff Notes not matching the project description as advertised to the public, not only on this particular one, but on the one following this, and I’m under the opinion, quite frankly, that it doesn’t. MR. UNDERWOOD-I would think we would have to look at it in the context of the affected neighbors, you know, who would have been notified, and I think that they probably would understand that the whole project was going to be a re-do. So that’s really where it comes down to. We’ll wait for the public comments and see what we get. MR. ABBATE-We could do that. MR. O'CONNOR-I could address that part also. MR. ABBATE-Absolutely. You’ll have an opportunity to do that. MR. O'CONNOR-I didn’t see it. Does anybody have the ad? MR. ABBATE-I think we can get it. Mr. McNulty has raised an issue concerning the advertisement on the project description, as compared to the Staff Notes. In his opinion, there’s inconsistency, and I indicated that I have discussed this with you and Mrs. Barden, not only on that one, but on the following case as well, where the project description does not match the descriptions in the Staff Notes, and I’m going to give Counsel an opportunity to respond to that as well. MS. ALTER-Well, it’s been my past practice in other communities that we always state the explicit relief, that it not be generalized. In other words, if you need 39.7 feet, you say you need 39.7 feet. My concern with the way that these were worded was that somebody reading it might not understand what the relief requested was. MR. O'CONNOR-How was it worded in the advertisement? MR. ABBATE-I have it here. I could read it to you. Here’s how it was worded. Applicant proposes removal of existing 807 square foot sundeck/boathouse and construction of a 742 square foot sundeck/boathouse. Applicant seeks relief from the accessory structure requirements for both side line setbacks as well as relief from the maximum height requirements. Nowhere in there does it indicate 21 and ¾ feet, 14 feet for the roof height, 90 foot sundeck and what have you, and I think that was one of Mr. McNulty’s concerns. MR. MC NULTY-Well, that was my question. As I say, I’m not necessarily arguing either way, other than it’s obvious that we want to make sure that it’s adequately advertised. MR. ABBATE-I agree. MR. MC NULTY-And it just struck me that describing the square footage of the sundeck when we’re dealing with actually removal of the roof and replacement reflected a difference, plus the fact that the Staff Notes say that it’s a 307 square foot sundeck not an 807. We’re assuming that was a typo. 21 (Queensbury ZBA Meeting 04/18/07) MRS. BARDEN-You’re correct. MR. MC NULTY-And we’re assuming that what’s in the agenda, which is the description we’re reading, is what was in the ad. MRS. BARDEN-Yes. MS. ALTER-I think the height is significant. MR. O'CONNOR-Well, let me make it insignificant. We’ll withdraw that request for a variance. So whether it’s advertised or not is not material. MS. ALTER-Counsel, what I was going to suggest, and maybe you want to re-think this. I mean, you don’t have to listen to me, but my suggestion would be that we keep the hearing open, re-notice it for the next time. MR. O'CONNOR-I don’t think that’s necessary. I intended to withdraw the request for height relief, even without this issue. MR. ABBATE-Okay. MS. ALTER-Okay. MR. O'CONNOR-I’m not doing it in response to that, but I can clear that issue by doing this in advance of when I was going to do it as part of my presentation. MR. ABBATE-That’s acceptable. I don’t have a problem with that. I think that’s fair. MS. ALTER-Okay. Thank you. MR. ABBATE-All right. I think, before you start, Counselor, I think a point has been raised, a valid point by you, Chuck, and when it comes to the next one, I’m going to raise the same issue as well. MR. O'CONNOR-For the purpose of your record, I’m Michael O’Connor from the law firm of Little & O’Connor. I represent the applicants, and with me is Matt Cifone from Cifone Construction who is the contractor for this particular project. This is a lot like a project that I was here for a week ago, and basically what we’re going to do is replace an existing dock, in where it is, and I did get into a little bit of discussion, and I’m not sure where we’re necessarily coming from and where we’re going to go, okay, because when I read the Ordinance, you’re talking about Section 179-5-050, sub section B. Under their miscellaneous provisions for docks, it says a permit is not required for repairs to an existing dock if such repairs do not alter its size, shape or location. We aren’t changing the dock. We’re changing the boathouse, to some degree, that’s on top of the dock, but we are not changing the dock, and if you take a look further under the section that deals with nonconforming structures, Section 179-13-050, A, Area Nonconformity, it says any structure which is nonconforming due to a setback violation or in the case of multiple family housing due to a greater intensity than would be allowed by this Chapter, which is destroyed wholly or in part by fire, flood, wind, hurricane, tornado or other act beyond the control of man shall be allowed to reconstruct according to its original dimension and intensity within 18 months of said destruction. MR. ABBATE-Okay, Counselor, let me interrupt, is that 179-13-050? MR. O'CONNOR-Yes. MR. ABBATE-That you’re referring to. Okay. You’re talking about Subsection A, Area Nonconformity? MR. O'CONNOR-Right. MR. ABBATE-Yes. Okay. MR. O'CONNOR-And that’s really the variance that’s before the Board at this point. If you extend the south property line out into the lake, we don’t comply with the idea that you have free board of 20 feet north of that line. Our structure is two feet at the closest point to what would be an extension of that property line. Our existing structure is the same thing, and if you really look at docks, and I understand that somebody has come 22 (Queensbury ZBA Meeting 04/18/07) up with an idea that if you take a dock down to the water level, it’s not considered a repair. I differ with that opinion. Talk to most dock builders and they will tell you that if you’re talking about a crib dock, probably 80% of your value is in the cribbing that you have in place. This cribbing’s been in place since 1948. We’re not going to replace the cribbing. We’re going to re-deck it and we’re going to build a better looking boathouse than what’s there. This thing was built probably as a single boathouse and then another boathouse was built next to it, and then there’s like a bridge connecting the two parts of it and part of it’s a flat roof on top, part of it’s not a flat roof. We think that what we’re going to build for the boathouse itself is a great improvement, will be an improvement for the neighborhood. We have spoken to the neighbor to the south. We don’t have a letter from him. We’ve explained to him what we propose. He’s the one that’s most impacted by the encroachment on his line. He has no objection. In fact, in 1990, and this is probably unique to this property, the parcel to the south and the parcel that the boathouse on the south of our property exists on were part of one parcel, and at that time that parcel was subdivided, and when that parcel was subdivided, the two owners wrote a very odd easement, a riparian easement if you want to try and classify it, which I don’t know if they really have jurisdiction to do or not, but they said that even though our dock structure wasn’t 20 feet from the boundary line, and their dock structure wasn’t 20 feet from their boundary line, they could continue to berth a boat on that dock and we could continue to berth a boat on our dock. I’ll give you a copy that I thought when we submitted the application that we made that as part of the application. MR. ABBATE-Staff, was that part of the application? MRS. BARDEN-What he’s handing out? MR. ABBATE-Yes. MRS. BARDEN-I believe not. MR. O'CONNOR-It’ll make it more complete. MR. ABBATE-Thank you. MR. O'CONNOR-The first paragraph, or the first document on there is a title affidavit, if you will, between the owner on the south saying that when he was selling the property that nobody ever used the dock as opposed to his rights to do it. If you take a look at the deed that went to Mr. and Mrs. Rosen, on the second page of that deed is a paragraph that says together with the right and easement to dock a boat, not to exceed 23 feet in length on the southerly side of the southerly most dock shown on the aforementioned map and extending into the waters of Lake George from the premises conveyed here under, and then it’s subject to the rights of the other fellow to dock at his dock. So the docking rights as herein described are rights which entitle a crossing of a prolongation of the southerly boundary of the premises being hereby conveyed as same runs easterly and into Lake George, and the docking right, in this conveyance, is subject to, is the right of the owner of the parcel to the south, the rest of it says, and it talks about the 20 foot that lie, that should be on the prolongation. So the people were aware of it. People try to settle the things among themselves when they divided those two parcels, but back to what we’re building, at the same time that we apply to, we’re applying to the Lake George Park Commission for replacement. I’ve talked twice to Molly Gallagher in the last couple of days. She indicates that we will be getting their permit. When we did our pre-application discussions with her, she said the height was going to be a problem. The Lake George Park Commission wouldn’t give a variance on it. So we took it off that. Okay, and that’s why I readily took it off this application also. MR. ABBATE-Okay. MR. O'CONNOR-In fact, the height of this new structure is going to be 13 feet 7 and ¾ inch from the mean high water mark. The old structure, without the frame canopy that was up on the top, was 14 feet 11 inches. So it was almost 15 feet. We’re going to be improving that height by decreasing it about a foot and a half, a foot and five inches. MR. UNDERWOOD-Is that going to be your deck or to your railings? MR. O'CONNOR-That’s to the railings. To the top of the frame of the, you saw the metal galvanized framing up there that we put canvas on in the summer and they it in the past, which shows up in the old photographs for the Lake George Park Commission. That was actually 19 feet 10 inches. So if we had stayed with the variance argument, I would have 23 (Queensbury ZBA Meeting 04/18/07) argued against Staff saying that we’re looking for a 50% increase, but as it is, we’re decreasing that. So that we will be compliant, and we’ve withdrawn that application. MRS. JENKIN-So you’re taking the metal off? MR. O'CONNOR-Yes, we are. Yes, it’s going to be just a, we’re talking the metal off, and on our plans that we submitted to you, we showed a wood structure like a cabana. I called it a cupola, a cabana on the top I guess is a better way of saying it. That comes off. So it’ll be just the railing. MRS. JENKIN-So you won’t have any cover or any protection? MR. O'CONNOR-No, we will not. MRS. JENKIN-Just an umbrella. MR. O'CONNOR-Probably an umbrella. Probably something that would be moveable. MR. ABBATE-All right. MR. O'CONNOR-A good part of the reason why the people want to do this is to make that upper area handicap accessible. Mrs. Rosen has a significant problem, a deteriorating problem, which I understand is a personal problem and maybe not legal grounds for you to pass a variance on, but if she uses a straight staircase as opposed to the existing staircase that’s there, she can make arrangements so that there’s a lift that will take her up there. We’ve got a photo of the old, don’t we have a photo of the old staircase? You see it goes up and then goes to the right. MR. ABBATE-I see it now, okay. MR. UNDERWOOD-They want to have a straight shot up. MR. O'CONNOR-We’d rather have a straight shot up. MR. ABBATE-Okay. I understand. MR. O'CONNOR-But our argument, I guess, is basically that we have really no impact on the neighborhood. The person that might be impacted has already consented by recorded document, that we can do what we’re doing. We actually are improving the structure that’s there. We’re lowering the height of it. I’m not sure of the basis that Staff has suggested that we give up a separate freestanding dock, which has great value. That’s not something we’re willing to do. MR. ABBATE-Okay. Have you finished your argument? MR. O'CONNOR-Yes, I have. MR. ABBATE-All right. Okay. Ladies and gentlemen of the Board, do we have any questions for Counsel on Area Variance No. 24-2007? MR. UNDERWOOD-Yes. In regards to the removal of the other dock, you’ve combined two previous lots that were together? I mean, how long have they been together, those two lots? MR. O'CONNOR-They’ve been together probably two years. This is a long term project. I didn’t go into the history of the house. The Rosens owned one parcel. It was a, if I recall right, it was a tear down. It was not in very good shape. We went through a number of meetings with your Board, I believe, and with the Planning Board and got approval to build a freestanding house on that, so that there would be two separate houses on these two parcels. When we actually went to do the construction, we determined that it wasn’t really going to work and in the meantime, they had bought the property to the south of them. So what they ended up doing is tearing down the tear down, and the house on the property where this dock was, which was a nice house, and have built one home on both lots, a home that is totally in compliance with all the setbacks, sizes and everything else, and in fact they built a septic system for that home, replacing the two other homes that were there on a third lot, which is on the opposite side of the road. So they’ve environmentally improved the lake significantly with what they’re doing, although that’s not necessarily here before you. They have decent frontage. I mean, they’re just short of 150 feet, which is a different level for docking. 24 (Queensbury ZBA Meeting 04/18/07) MR. UNDERWOOD-Given the fact that you’ve got the E-shaped dock, though, and that you can tie up boats on either side of it, too, I mean, it really gives you the effect of having one, two, three, four berths for boats there. MR. O'CONNOR-Right. MR. UNDERWOOD-So, I mean, how do you argue that taking out a dock, that other one is going to be a detriment or a real burden on the property owner? I don’t understand that. MR. O'CONNOR-It’s an asset to the property right now. It’s probably worth $40,000, $50,000. To simply tear it, to remove it, there doesn’t seem to be a basis for it. I mean, they could piecemeal repair these docks, and I think also my arguments may be sound. They could repair the docks without a variance, based upon our existing statute. I don’t know any place in our statute that talks about a percentage of dock before you treat it other than as a replacement or maintenance. MR. UNDERWOOD-But I think in general, I think if we’re looking at the future, as more and more of these parcels as the value of the properties goes up up there, you’re going to see more and more and more consolidations, and I think that at that point in time it’s proper to probably address the number of docks that individuals have, so you don’t end up with a dock-a-minium up there, you know, where you’re just renting out space. I mean, it does pay the rent, but that’s understandable. MR. O'CONNOR-I don’t think they rent out the dock. They haven’t in the past. I think in the past Mrs. Rosen’s father has kept a boat there. It’s been family members. MR. UNDERWOOD-But is the Park Commission going to buy into that argument in the long term? MR. O'CONNOR-Yes. MR. UNDERWOOD-I mean, I’m just guessing as you develop more and more larger properties on the lake, that’s probably going to be the trend in the future. I think you have an opportunity to get rid of some of the dockage where it’s just wall to wall docks, like this section of lake appears to be. MR. O'CONNOR-The Park Commission, in this particular instance, has said that they will approve it. They have, as long as we took the height issue out of it. They have one question. On one of their photos there’s a “V” at the front of the dock, and the actual construction to the dock is not a “V”. So there looks like there was a fill-in, and they may tell us that we have to not have that fill-in. That’s the only reservation. Molly had thought that she would get me the approval today, but she wasn’t able to. I’m not sure, and I think that the Lake George Park Commission, I’ve gone through this. I’ve seen people go through it. They go back to your dockage rights, Mr. Underwood, in 1988 or ’82, and those dock rights are the dock rights that you maintain for your property, even if the property has been subdivided afterward, and I don’t know what the best example of that. So you’ve got about six towns on the lake, and the only one, it’s not an issue in the other five towns, if there are six, or whatever there are on the lake. MR. ABBATE-Is that a fact, that even though it was subdivided, you still maintain the original rights? MR. UNDERWOOD-That’s if you break it up. MR. O'CONNOR-That’s what they did. I know that that’s been through the courts and many, many arguments with Green Harbor. MR. ABBATE-They confirmed it? MR. O'CONNOR-Yes. My reading of what they did in Green Harbor is they went back to what was the 1988 number of docks, number of moorings. MR. ABBATE-I think I remember that case. I think I do. MR. O'CONNOR-I haven’t really had many cases with them where we’ve gotten into that issue. 25 (Queensbury ZBA Meeting 04/18/07) MR. ABBATE-All right. Do any other members have any questions? Please, Mr. Garrand. MR. GARRAND-Question for Counsel. There is a provision in there that says that any alteration to the size, shape, or location of a dock. I guess the Town could argue that, you know, size, by putting in a lift, by altering the size of the beams, would be altering the size of the dock by altering the square footage. Either higher or lower could be altering the shape of the dock, and it would be subject to a permit, which would subject you to a variance. MR. O'CONNOR-I’m not arguing that as being the basis for what we’re doing. I’m arguing this variance on the basis that we have no impact upon anyone. We’re not going to have any effect on the environment. We’re going to have an improvement to it, but I would argue with you that the restrictions that we’re looking at have to do with the dock, and not the boathouse, and this dock is going to be identical to the other dock. MR. GARRAND-But we also have an opportunity here, I think what we have here is, you know, we don’t have 20 foot setbacks on either one of these docks right now. We have an opportunity here to be more in compliance, to actually improve the appearance of the lakefront here, by eliminating some of the dockage in front of these properties. MR. O'CONNOR-That’s why we’re trying to reconstruct this dock, so that we can make it more attractive. We think that this is a decent offer for making it more attractive. MR. ABBATE-I have a question. Where’s the frontage? Give me the estimate of the frontage, would you, please. MRS. BARDEN-143. MR. ABBATE-I’m sorry? MRS. BARDEN-143. MR. ABBATE-143 feet? MRS. BARDEN-Yes. MR. ABBATE-Okay. Thank you. MR. O’CONNOR-At 150 feet you can have two docks or one E-dock. MR. ABBATE-Or one straight, “T”, “L”, or “U” shaped wharf. That’s what it says, 66 to 150. Number of feet of lake frontage, 66 to 150, the docks, separate subject, across from that is one straight “T”, “L”, or “U” shaped wharfs, plural, wharfs. MRS. BARDEN-No, one. MR. ABBATE-Then the “s” should not be in there. It says wharfs. Wharfs is plural. MR. O'CONNOR-We’re seven feet off from being at 150, which then gets you to the next level, which allows you to have two docks. MR. ABBATE-That’s correct. MR. O'CONNOR-And if you get into your mathematical, even your mathematical comparison as to whether this is substantial or not substantial, it’s seven feet on 150 feet frontage is not very substantial. MR. ABBATE-Okay. MRS. JENKIN-This other dock that you say is just a dock, it’s a double dock, correct? There’s two here. Is that on the other property? MR. O'CONNOR-No, it’s on the very north end of our property. MRS. JENKIN-Both of these pieces? This is not on your property? MR. O'CONNOR-No, that’s the neighbor’s property. Our dock on the north does comply. 26 (Queensbury ZBA Meeting 04/18/07) MRS. JENKIN-This one is 20 feet away from the corner? MR. O’CONNOR-Yes. MRS. JENKIN-Because that dock is not in good shape either. MR. O'CONNOR-They think it’s in decent shape, for what they use it for. It’s just one dock. MRS. JENKIN-Because I was thinking that, and I don’t know. This may not be, but it would be more, when we’re talking about the lake itself, and protecting the lake, that to put this one side of the dock that is too close to the edge of this other property, the south side, you could move it over the other side. There’s a lot of room for it there, and you could still make your three places. MR. O'CONNOR-You understand, I think, that this is built on cribs that are filled with rocks. MRS. JENKIN-Right. MR. O'CONNOR-And the amount of environmental damage that would be done to that portion of the lake. MRS. JENKIN-To make another crib? MR. O'CONNOR-No, to excavate out the old crib. You also have a rule and regulation, you have to excavate the old cribs out. You wouldn’t just leave the cribs in place. MRS. JENKIN-No, but you can’t take those rocks and move them over there? It would be a problem would it, to do that? MR. O'CONNOR-We think it would be a waste of money. I mean, we have an easement from the fellow who’s immediately south of us who we impact that says that we can do what we’re doing. When this property was subdivided, both of those owners agreed to that. Why would we give up that right that we’ve paid for? MRS. JENKIN-And that’s a legal right. MR. O'CONNOR-That’s a legal right. That’s why I gave you those legal documents. MRS. JENKIN-Because I also feel that it’s just dock and dock and dock and dock, and if there’s an opportunity to make the lake a little better now, it would be advantageous to do that. MR. O'CONNOR-What we offer is to make the dock lower, make it a modern dock, make it an attractive dock, take that thing off the top, and that’s what we’ve offered for mitigation. We think that we’ve done significant improvement to that neighborhood and to the lake by what we’ve done upland of this. MRS. HUNT-Just to clarify now, what you’re asking for is just the side setback relief of 18 feet from the minimum 20 feet required? That’s all you want now? MR. O’CONNOR-Yes, and that’s the area that we have the easement on. MR. ABBATE-Okay. Thank you for making that clear, Mrs. Hunt, I appreciate that. Any other questions from Board members? No? Okay. Then I’m going to open the public hearing for Area Variance No. 24-2007, and if we have any members of the public who wish to address this particular variance, would you be kind enough to raise your hands and I’ll recognize you and ask you to come forward. Do we have any hands raised? PUBLIC HEARING OPENED MR. ABBATE-I don’t see any hands raised. One more check, so I’m going to continue on, and before I, again, ask members to offer their comments, I’d like to inform the public that the comments offered by the members are directed to the Chairman and they are not going to be open to debate, and again, I respectfully reminded the members of this Board earlier about precedence and what our concerns with evidence in the record are. We don’t make decisions based on (lost word) statements. We make decisions based on the evidence in the record. We don’t make decisions on whether we like a particular 27 (Queensbury ZBA Meeting 04/18/07) project or not. Just on the evidence contained in the record. Having said that now, I’m going to ask members to please offer their comments on Area Variance No. 24-2007, and do I have a volunteer? MRS. HUNT-I’ll go. MR. ABBATE-Would you mind? Thank you very much, Mrs. Hunt. MRS. HUNT-When I first looked at this application, my main objection was to the height relief, and since that’s been removed, I have no problem with this application. I would be in favor. MR. ABBATE-Okay. Thank you very much, Mrs. Hunt. I appreciate that. Okay. Would anyone else like to go? How about we start with Mr. Urrico. MR. URRICO-I’d be in favor of the application as presented with the height relief excluded from the application. MR. ABBATE-Thank you very much. I appreciate that, and Jim Underwood, please. MR. UNDERWOOD-Yes, I basically could go along with it, too, subject to the permitting from the Park Commission. I think that’s the ultimate authority. If they decide something’s got to go, then it’s got to go, and I would go along with that, too. I still think it’s excessive dockage along that section of the lake there, and I think that if it could be improved, it’s a shame that people did that over the years, but for you to have to remove it again is going to be a big burden, too. So I buy that argument also. MR. ABBATE-Okay. You would support it subject to the Park Commission. MR. UNDERWOOD-Park Commission permitting process. MR. ABBATE-Okay. Fair enough. Mrs. Jenkin, please. MRS. JENKIN-I think that the setback relief of 90%, the 18 feet from the minimum 20, I think that’s a lot. I think it’s too much, and I am not in favor of this. MR. ABBATE-Okay. Mr. Garrand, please. MR. GARRAND-Mr. Chairman, I’d be in agreement with Mrs. Jenkin. I think benefits can be achieved by other means here. I think it’s a lot of relief for the setback. I think that something also could be done with the dock to the north. I think we could definitely improve the landscape here and actually be a little more in compliance. I think we should make more effort to be in compliance here. So I wouldn’t be in favor of this application. MR. ABBATE-Okay. Thank you very much. Mr. McNulty, please. MR. MC NULTY-If this were a new construction, I’d have a real problem with it, but given that it’s basically a repair of what’s there, so it’s not changing much in the way of existing conditions, other than improving them, I’m inclined to go along with it. So I’d be in favor. MR. ABBATE-Okay. Thank you very much. Let’s see. I caught everybody other than myself. Okay. I listened to what the Counsel had to say. I listened to what all the Board members have to say, and I would agree with the majority of the Board. I think that, I would agree that this is certainly going to be an improvement, and I don’t have a problem with it. We do have one yes that is subject to a Park Commission, and whoever does the motion may want to include that, but basically I would support the application. Having said that, I’m going to close the public hearing on Area Variance No. 24-2007. PUBLIC HEARING CLOSED MR. ABBATE-And again, I respectfully remind the members of our task of balancing the benefit, and I’m going to ask that you please introduce your motion with clarity, and at this particular point I’m going to ask for a volunteer to come up with a motion and address Area Variance No. 24-2007. Do we have someone who would like to move a motion? MRS. HUNT-I’ll make a motion. 28 (Queensbury ZBA Meeting 04/18/07) MR. ABBATE-Would you, Mrs. Hunt. Thank you. MOTION TO APPROVE AREA VARIANCE NO. 24-2007 AGNUS J. VINCZE-ROSEN, Introduced by Joyce Hunt who moved for its adoption, seconded by Roy Urrico: 262 Cleverdale Rd./260 Cleverdale Rd. Applicants propose to maintain the existing E- shaped dock and replace the existing 1,250 square foot boat roof with a 807 square foot sundeck with proposed 1,220 square foot boat roof with 742 square foot sundeck. The applicants request side setback relief of 18 feet from the minimum 20 feet required per Section 179-5-050. The benefit to the applicant, the applicant would be able to construct the proposed boathouse, or reconstruct it, and sundeck at the compliant height and in the desired location. Feasible alternatives appear to be limited. This was an easement granted with the property. It may be substantial, but again as I said, it’s an easement that was granted when the property was subdivided. The effects on the community would be moderate, and the one who would be affected most is to the south and has no objection. It may be considered self-created in the fact that they wish to repair and upgrade their dock. I condition this on approval by the Park Commission. The request for height relief of 7.2 feet has been withdrawn. th Duly adopted this 18 day of April, 2007, by the following vote: MR. O'CONNOR-Mr. Chairman, may I just make sure that what we’re going to have is a proposed 1220 square foot boat roof with a 742 square foot deck, in the future. I’m just trying to be sure. MRS. HUNT-Would you like me to repeat that? MR. ABBATE-Yes, would you mind doing that for me, please. MRS. HUNT-All right. Applicants propose to maintain the existing E-shaped dock and replace the existing 1,250 square foot boat roof with a 807 square foot sundeck with proposed 1,220 square foot boat roof with 742 square foot sundeck. AYES: Mr. Urrico, Mrs. Hunt, Mr. McNulty, Mr. Underwood, Mr. Abbate NOES: Mr. Garrand, Mrs. Jenkin MR. ABBATE-The vote for Area Variance No. 24-2007 is five yes, two no. Area Variance No. 24-2007 is approved. Good luck. MR. O'CONNOR-Mr. Chairman, can I ask you a question on the record? MR. ABBATE-Yes. MR. O'CONNOR-I’m told that the Lake George Park Commission is going to approve the E-shaped dock as we have it, with the sundeck and the staircase as we have it, but they modify the first floor decking, if we can’t show that that first floor decking was in place in 1982 or 1988, but they will substantially approve or approve substantially everything we have here. If the question is there at all, we would build less than what we have here. Is that satisfactory to your idea of the Lake George Park Commission approving this? I don’t want them to approve something that’s two square foot different and then have to come back through the process. MR. UNDERWOOD-No, that’s fine. MR. ABBATE-No, I don’t think that’s a problem at all, and your comments are noted for the record. MR. O'CONNOR-I thank you very much. MR. ABBATE-Thank you very much. MR. O'CONNOR-Okay. Thank you. My other suggestion and comment is always, take those sections I just referred to to the PORC Committee and tell them that they need to reconcile with what we’re doing, because I don’t think docks that are taken down to the water level are more than simply repair. If they’re a crib dock. If it’s a stake dock, I agree with you, but if you’ve got 80% of your value that you’re leaving in place, that’s not a replacement. Staff some place has come up with that rule. I’m not sure where. 29 (Queensbury ZBA Meeting 04/18/07) AREA VARIANCE NO. 30-2007 SEQRA TYPE: II BBS MITELMAN FAMILY TRUST PETER MITELMAN OWNER(S): PETER MITELMAN ZONING: SFR-1A LOCATION: 27 NORTH ROAD APPLICANT PROPOSES CONSTRUCTION OF A 20 FT. BY 40 FT. INGROUND POOL IN THEIR SIDE YARD. APPLICANT SEEKS RELIEF FROM THE ACCESSORY STRUCTURE REQUIREMENTS FOR THE PLACEMENT OF THE POOL IN THE SIDE YARD. CROSS REF.: BP 2006-626 POOL; BP 2006-628 OPEN PORCH WARREN COUNTY PLANNING: APRIL 11, 2007 LOT SIZE: 9.06 ACRES TAX MAP NO. 302.7-1-39 SECTION: 179-5-020 MICHAEL BORGOS, REPRESENTING APPLICANT, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 30-2007, BBS Mitelman Family Trust, Peter Mitelman “Project Location: 27 North Road Description of Proposed Project: Applicant proposes installation of a 20 ft. x 40 ft. in-ground pool in the side yard. Relief Required: Relief requested from the accessory structure requirement that pools may be erected only in the rear yard, per §179-5-020. Criteria for considering an Area Variance according to Chapter 267 of Town Law: 1. Benefit to the applicant: The applicant would be able to locate the pool in the desired location. 2. Feasible alternatives: Feasible alternatives appear to be limited to siting the pool in a compliant location. 3. Is this relief substantial relative to the ordinance?: The request is considered substantial. 4. Effects on the neighborhood or community: Minimal impacts to the neighborhood or community could be anticipated as a result of this action. 5. Is this difficulty self-created? The difficulty may be interpreted as self-created. Parcel History (construction/site plan/variance, etc.): 2006-626: Pending, INGROUND POOL. BP 2006-628: 630 sq ft open-porch AV 49-2006: Withdrawn, Applicant proposes construction of a masonry and wrought iron fence with gated access in architectural front yard. Relief from maximum height of fence in a residential zone requested. BP 2006-628: 630 sq ft open-porch Staff comments: The applicant’s agent, in a cover letter submitted with the application, states that the site conditions in the rear of the property hinder placement of the pool in that area. It is further stated that the proposed would not negatively impact the neighbor to the south because the side yard is screened by vegetation and a 6-foot privacy fence is to be erected around the pool. The pool is proposed at approximately 25-feet from the southern property line. SEQR Status: 30 (Queensbury ZBA Meeting 04/18/07) Type II” MR. UNDERWOOD-“Warren County Planning Board Project Review and Referral Form April 11, 2007 Project Name: BBS Mitelman Family Trust, Peter Mitelman Owner: Peter Mitelman ID Number: QBY-07-AV-30 County Project#: Apr07-36 Current Zoning: SFR-1A Community: Queensbury Project Description: Applicant proposes construction of a 20 ft. by 40 ft. inground pool in their side yard. Applicant seeks relief from the accessory structure requirements for the placement of the pool in the side yard. Site Location: 27 North Road Tax Map Number(s): 302.7-1-39 Staff Notes: Area Variance: The applicant proposes to install a pool in the side yard where a pool is only allowed in the rear yard. The information submitted indicates the lot is 9.06 acres. The home is located over 100 ft. from North Road and over 53 ft. from the side property line where the pool is to be located. The pool will be located over 20 ft. from the side property line. The applicant has indicated this site provides convenience to the residents and is adjacent to the patio. 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 Paul Gollhofer Warren County Planning Board 4/12/07. MR. ABBATE-Okay. I see that we have the petitioner, accompanied by an attorney. MR. GARRAND-Mr. Chairman, may I interject just for a minute? MR. ABBATE-By all means. MR. GARRAND-I’d like to take this opportunity to recuse myself. MR. ABBATE-Yes, you certainly may. MR. GARRAND-Thank you very much. MR. BORGOS-Mr. Chairman, could I just request that Mr. Garrand state on the record the reason for his recusal? MR. ABBATE-Yes, by all means. You have that right. Would you explain your reason for recusal, please. MR. GARRAND-Certainly. I’ve met Mr. Mitelman previously, and I just want to avoid any possibility of misinterpretation of impropriety here. PETER MITELMAN MR. MITELMAN-I, unfortunately, don’t remember when we met. MR. ABBATE-It doesn’t make any difference. If the Board member wishes to recuse himself to avoid any potential perception of impropriety, you have a right to do so. You can recuse yourself. MR. GARRAND-Thank you, Mr. Chairman. MR. ABBATE-Would you like to sit in, please? Thank you. Counselor, would you be kind enough to tell us who you are, please and we’ll go from there. MR. BORGOS-For the record, my name is Michael Borgos of Borgos & Delsignore. I’m here representing the applicant. I’m here with Mr. Peter Mitelman, who is the principal behind the Mitelman Family Trust. MR. ABBATE-Okay, and before I ask you to proceed with your argument, I would like to read something into the record, please, and I’ll be more than happy to provide you with a copy. I received an e-mail, Tuesday, April 17, 2007, at 4:09 p.m. It was from Daniel W. Ryan, P.E., who is the Town Engineer, and the subject was North Road variance, and he said, “Mr. Abbate, it’s my understanding that a variance has been presented for North Road. I believe the applicant is Mitelman. I just wanted to touch base with you to let you know I am currently working on a stormwater/drainage study for this area. There apparently has been some significant changes in the groundwater and drainage conditions in this vicinity in recent years. I met with local residence on Garrison Road in February and discussed problems also with North Road residence around the same time. The TB has requested that I evaluate the area to possibly determine any potential 31 (Queensbury ZBA Meeting 04/18/07) causes and for verification of the stated conditions. This takes time and weather has delayed the site work to be completed. My goal will be to perform site work in April and to offer recommendations and report to TB sometime during month of May. I do not know details of the application and offer this information at the request of TB members such that consideration be given to this when reviewing.” MR. UNDERWOOD-Why did we receive this letter? Did we solicit this? MR. ABBATE-No, I can assure members of this Board I did not solicit this. This came as a complete shock to me. MR. UNDERWOOD-Well, what does this have to do with us, then? MR. ABBATE-It was submitted to me, and I have to put it in the record. It’s all part of the record since it was submitted to me. MR. UNDERWOOD-I know, but we’ve never once in this history of any zoning resolution have we ever had something like this submitted. I would just voice the opinion that I would think that someone probably made a phone call to somebody and generated this letter trying to sway us immediately. MR. ABBATE-Okay. MR. UNDERWOOD-And so I think that we can hold that letter in abeyance, as opposed to letting it reflect our decision making process. MR. ABBATE-All right. Here’s how I responded to Mr. Ryan. As Chairman of the Board, I have a duty and obligation. “Mr. Ryan, thank you for providing me with information re: AV #30-2007(Mitelman Family Trust). Please be advised that I consider this information “for the record” and will alert ZBA members of your comments. I would encourage you to consider appearing before the ZBA on Wednesday 18 March 2007 to personally share your thoughts. Thank you for your interest in the ZBA.” So I have no position on this thing. All I can say to the Board members, and to you, I did not solicit this, and in the 10 years that I’ve been on the Board, I’ve never received such a letter before, but I have a duty and an obligation to ensure that this is made a part of the record, and I’m sure, Counselor, you’d have to agree with me, whether we like it or not. MR. BORGOS-I don’t have a problem with you making it a part of the record. MR. ABBATE-Thank you. That’s all I can say, and would you make that a part of the record? Now, if you’re prepared to proceed, please do. MR. BORGOS-We are. I’d like to introduce Mr. Mitelman to give a presentation on what he hopes to do here, but the information you’ve given me I would like to comment on, before it goes any further, since it’s on point now. I don’t know of any relevance to this application that that letter would have, and unless Mr. Ryan is here to present something during the public comment period, I really don’t see anything. I would be happy to respond to it at that time if it’s brought forward, but I don’t think there’s been anything presented to this Board members who have heard this letter or not, being aware of it before now either. I just wanted to clarify our position. I don’t think it’s relevant in any respect, and there’s certainly no evidence before the Board of an engineering or scientific basis that this would have some impact upon this application. We’re here for an Area Variance. We’re not creating a pond or diverting some surface runoff or anything of that nature. It’s very confusing. I think Mr. Underwood’s quite accurate in saying it’s unusual. I’ve never seen that done before, but certainly the Chairman has the obligation to present it to the Board as a whole, but I just wanted to state our position that it’s an anomaly. I don’t think it means anything, and I’d love to see Mr. Ryan here to explain the basis for that concern. I’d like to delve into that deeper at some point, but I’ll have some comments after Mr. Mitelman is done presenting things, but he’s here today to tell you a little bit about what this project’s all about, and then I’ll try to frame some of the questions, but before he starts that, I think I can sum up our application here very succinctly. We believe that this pool is proposed to be placed in what is really a rear yard, but because of the very unusual design of this home from 1931, and the unusual estate like environment that it’s on, it’s on over nine acres in Queensbury. It’s very unusual for Queensbury and certainly very different from what was contemplated when the Zoning Code, Zoning Ordinance was created many, many years later. It’s in the rear yard of all the neighboring properties here. If you had a line across the front of the setback from the road, if you had a similarly situated house, this would be far in the rear, and certainly is in the rear here, and I’ll talk more about that in a few minutes, but I think 32 (Queensbury ZBA Meeting 04/18/07) that’s really what it comes down to. We believe this is really in the rear yard, but for the definition, and I’ve spent several months going back and forth with the Zoning Administrator on interpretation here, and it was a difficult decision for the Zoning Administrator to make, but when you referred to the definition, the issue really is what is the definition and was the definition in the Ordinance contemplating a situation like this? I believe the very fundamental basis and purpose of the Zoning Board of Appeals is to address the anomalies that were not anticipated or contemplated at the time the Ordinance was drafted. In other words, you draft the Ordinance to cover the majority of the properties. There were going to be a few exceptions, and that’s where the variances come in, and we think here is a very good example of that. So, without further ado, Mr. Mitelman can present what he hopes to do here. MR. ABBATE-Okay. Fine. Thank you. Would you ask your client to speak into the microphone, please. MR. BORGOS-Sure. MR. MITELMAN-My name’s Peter Mitelman, 27 North Road. It’s interesting because it seems that I’ve created somewhat of a turmoil in my own community. Just under a year ago we bought a magnificent home in a magnificent neighborhood, and our only vision for that home was to make the necessary improvements to bring it back to it’s original stature. We did minimal work on the inside, but the outside required some additional work. We did some magnificent work in terms of the outdoor family room, the patios that were falling apart. We came before this committee to create a fence in the front, and after countless, countless hours of research on the Internet as to what type of fence would properly reflect the stature of that home, it was indicated over and over again that it was columnar with fence in between, and it got to the point where it was almost comical, where it didn’t make a difference what we did. It didn’t make a difference what we said. It didn’t make a difference what we committed to change in terms of what we said to our neighbors, and our neighbors committed to us what they would accept. The end result was that nothing was acceptable. So what we decided to do was put our hands up and say, we don’t want to create a situation where we are now no longer neighborly. So we decided that we were going to shrub that particular area and create the enclosure that way. Honestly, it’s the worst possible way of doing it, because those types of homes have to be shown off. When you drive on the street, you have to be able to see the stature of that particular home, and putting it behind six or seven foot shrubs is really defeating the purpose, but again, creating a sense of privacy and security, which was the ultimate goal of that home, or that particular request, we need to do something. So we gave up on that. Then we said, okay, let’s move on to the next project. The next project obviously was the only thing that was lacking on that home was a pool. So we looked for the ideal situation, where the ideal spot to put the pool, and it is directly where it should be in the presentation, because it flows from the sunroom to the terrace to the actual pool area. It becomes, if I could make that picture a little bit larger. So, as you drive in through the driveway, you have the front lawn is here. We have heavy vegetation through here. We have a circular driveway. The garages are actually in this part of the house. We had heavy vegetation here, and on the next slides, or some of the other slides I’ll show you, we actually went ahead and built a children’s playground. I have two grandchildren. I’m blessed. So this is something that we built for them. Over here we have a magnificent oak tree which is 200 feet high. Over here we have another garage or a storage unit, and behind here we have beautiful lawn. It’s very much of a park area, very beautiful, but it is substantially too far away from the home to build a pool. So from a proximity, from an accessibility standpoint, from a point of having access to wash rooms and changing rooms, so forth, we decided to put the pool, or the only place we could put the pool, actually, would be right off the patio coming into here, and this basically represents the pool. This represents a six foot fence that actually doesn’t exist right now, but we do have a four foot type of chicken wiring that exists or wood fence that exists currently, but this would be replaced with a six foot wide fence, from here right through here. Another four foot fence would be here. So we wouldn’t be blocking this area out. What I wanted to say also was that there is a front door here, but this front door is not representative of the front door of the house. It is architecturally the front door of the house, but it hasn’t been designed that way. The front door is right here. As you drive through the driveway, there is the front door. This is where, and actually on the original plans, this is deemed the entrance, the main entrance. This is where you have your cloak rooms. You have your changing rooms, your powder rooms. So this is the primary entrance. In fact, to get access to this in the middle of winter would be disastrous, because the snow coming off the slate roof, and I witnessed this, is really dangerous. Nobody would be using this entrance ever. If you have a party and you want to create a situation where you want people to come through this entrance, that’s great, but in fact this is the front door, and if you walk through it, this is the sunroom. 33 (Queensbury ZBA Meeting 04/18/07) This is the patio and then this becomes the backyard. Now, unbeknownst to me, I wasn’t aware of the fact that we could not put in a pool in the side yard, but if we look where this fence will be drawn, okay, in relationship to my neighbor’s home, it is at least 50 feet behind it, and if you look at where the pool will be residing, it’s probably closer to 75 or 100 feet. So I understand the law about side to side. I understand the regulations about having it next to each other. If you have two homes, and if our home was here and I wanted to put the pool here, then I understand. I don’t think I’d be asking for a variance. At this particular point in time, we’re in the backyard. We’re behind our neighbor’s backyard, and unfortunately there really is no other comfortable place to put the swimming pool. MR. ABBATE-Okay, Counselor, do you want to continue? MR. BORGOS-Yes. If I may just add a few more points while that slide is still up there. I just wanted to clarify, there was this line here. I just wanted to make sure that everybody knew that this would be a compliant fence here. This is not a six foot high fence. I wasn’t sure if that was clear from the presentation, and as Peter indicated, this area here is the rear yard of the Gijanto home. From here back it’s wooded, and as he mentioned, this is more than 50 feet here. Due to the location, the setback of this home from the road, they essentially would be penalized to reduce the amount of area that they would have available to them to utilize, because of the extreme setback, and most people would consider that to be a favorable thing to have a greater setback, but in this case it would be a penalty to them. When I spoke to the Zoning Administrator about just putting up a simple six foot fence, taking out the pool out of the equation, the practice in the zoning office, it’s my understanding that you take a line from the corner of the front of the house and you draw it to the property line, on a line consistent with the corner of the neighboring house. So that line would bring the fence on an angle here. We’re not asking to do that. We’re not proposing to do that. We’re looking to bring it consistent with the side of the main house, and for a conventional home within Queensbury of 2,000, even 3,000 square feet, that would be this section right here. We’re talking about putting the pool behind that. This is an unusual layout and design that has a very narrow projection here to the dining room, and then behind that, when this was built in 1931, it had a servant’s kitchen and some servant’s quarters in the rear. So you’ve got a very skinny projection here, that under the definition in the Code, would say the rear yard begins here, and as you saw in some of the other slides, that area, maybe during your site visit you saw it, too, they have the outdoor kitchen, the brickwork that’s there, and then the child’s playground there. There’s no other suitable location in close proximity to the home to put a pool, other than here. Unfortunately, per definition, it’s a side yard. Now, as I was preparing for this, I took a look at the informational brochure available from the Community Development office about pools, and I think it’s Informational Brochure Number Four. I brought it with me today to refer to. I don’t know if any of you have seen it. It’s for informational purposes, but my point is going to be that there are many homes in Queensbury that have a similar situation where a pool has been placed in a side yard, and I’ll pass this around because it demonstrates that, for example, on this drawing here, this illustration, shows a corner lot, and of course a corner lot has two front yards. The way that that is treated is essentially with creating a 20 foot setback requirement for both frontages, but you’ll see here that there’s an allowable pool area in the diagram that actually ends up looking very similar to what we’re proposing to do here, where an allowable pool area, without a variance, for a corner lot, would put a pool immediately adjacent to a neighbor’s side yard, and presumably the Ordinance was done so you don’t look out your side windows and see the children next door splashing in the pool, making a lot of noise, and disrupting your peace and quiet. That’s not going to happen here. Not only will there be a larger buffer of distance and vegetation, and six foot high fence, but it’s beyond the rear of the cleared land in the back yard. So I’d just like to submit this. MR. ABBATE-Before you do that, Counselor, I want you to identify that and submit it as Exhibit A. MR. BORGOS-I will. This is Informational Brochure Number Four, entitled “Pools” from the Town of Queensbury, and I’d be referring to the illustration on the back of that, on Page Two. MR. MITELMAN-One of the things that caught me somewhat off guard was the outcry. When I got a copy of the e-mails and letters that opposed this particular project, I was really taken aback. It was a situation where I was reading every word in every one of those letters and e-mails, and they basically said nothing. They said that this would affect quality of life, or somebody else’s quality of life. They said that it would, Mr. Mills, my next door neighbor, said that no variance should be allowed until the water problem 34 (Queensbury ZBA Meeting 04/18/07) in the area is resolved. Well, again, I don’t understand this type of outcry for something which is very personal, and if I had chose to put it in a different part of the property, nobody would have said anything. What we’re talking about is a pool. My next door neighbor, Mrs. Gijanto, said that her quality of life would be affected by the noise of the filters or the machines. Everybody knows that they’re practically silent, and they would be nowhere near her area. I have a window air conditioner that probably makes more noise than anything that that does. So all of a sudden people are looking for a reason. It would devalue her property. I mean, I would like to understand what it means, how a pool in my yard would devalue her property. So the arguments that have been brought forward are really quite ridiculous, and again, if there is one legitimate argument that really can be substantiated, I will walk away from this, but today, you know, I’ve read these things, and I have to say, why is it happening? Why is it that, you know, neighbors that I know and I don’t know have banded together to stop this? I feel somewhat of the same thing happening that has happened with the fence. People are resisting a form of change, and I don’t understand why. Again, we bought the property in good faith, and we are good neighbors. We are good neighbors, and all we’re doing right now is adding value back to the community. If I were to ever sell that home that I bought for a million dollars, and I sold it for a million and a half dollars because of the improvements that I made, have I devalued the neighborhood? I haven’t devalued anything. So, again, I’m trying to understand the reason for this. I understand the variance, and this is why we’re here, to sort of ask for your permission to build in this particular spot, because it is the only spot that makes sense on the property. MR. ABBATE-Okay. Have you concluded right now? Of course you have as many opportunities as you wish to make statements, but right now have you concluded? MR. MITELMAN-I can put up one more picture on the screen that would show you the property layout. MR. ABBATE-All right. Before we do that, Counselor, I’m going to ask the Secretary to enter this as Exhibit A, Informational Brochure Number Four “Pools” into the record, please. MR. BORGOS-Mr. Chairman, while we’re getting that situated, I know I commented, and Mr. Mitelman commented that the main entrance hall, as depicted on the original plans, is right adjacent to the driveway. I have brought those original plans, but they’re not easy to submit. Would you like to see them, or would you take our word for that? MR. ABBATE-Well, I would rather they be entered into the evidence, please. If you have copies available to you, I would like each Board member to have copies, please. MR. MITELMAN-So, what I’ve done here is basically shown the representation of the home, with this being the front stairs, and this being the primary entrance that we use. Actually in the wintertime we also use the garage an awful lot, but this is representative of the family room, the four season room, onto the terrace staircase going down to a patio with the inset pool, and this is representative of the actual size, and what you see here, in fact, is you see the fence is up here, and then you also have a set of trees. The property right now is treed along there. In the summertime, you cannot actually see your neighbor’s house. So, you would have a six foot fence, and then in front of that you would have complete trees, and then we would continue this six foot fence through here and gate it into the front yard. All to say that there is no other space in the proximity of the property. We did consider taking down the oak tree, but this is one of the most magnificent trees on the property, and it would break my heart to have to do that. MR. UNDERWOOD-In regards to the area where your patio is there, where your steps come down, as you’re going to have them come down to the pool, could you go off to the south, you know, go off more to the east, then, off that way? I didn’t know if the roofline came down that way, in that area? MR. MITELMAN-This way? MR. UNDERWOOD-Yes, could you put the pool over in that area? MR. MITELMAN-What’s not represented here, and it may be represented in another picture, is one of the most magnificent stone walls that runs through there. Again, it’s a work of art that you really do not want to disturb. If I can’t get the variance granted, then I will have to do, then obviously I’ll have to do what I have to do, but if you’ve visited the property, and you may see them on some of your pictures, there’s a magnificent wall 35 (Queensbury ZBA Meeting 04/18/07) running the full length of the driveway here, and then there’s a magnificent wall through here, and it’s a work of art. It’s really stone. MR. ABBATE-Okay. At this point can we proceed, Counselor, or do you have anything else to add? You certainly may add anything during the proceeding. MR. BORGOS-We’re set for now. I imagine you’re going to open the public hearing. MR. ABBATE-Well, no, before I do that, I’m going to ask Board members for some comments, please, and then we’ll go through the regular procedure. MR. BORGOS-That’s fine. MR. ABBATE-All right. Ladies and gentlemen of the Board, we’ve heard what Counsel had to say. We’ve heard what the appellant has to say. Do we have any Board members who have any questions for the appellant? If so, would you let me know, bring it to my attention please. MR. CLEMENTS-I just had a question about the fencing here. MR. ABBATE-Okay. MR. CLEMENTS-And I think you’ve explained it on the side of the property that’s against the Gijanto property. You’re going to have a fence that’s going to go along, all the way along from way behind the pool to way out to the road. MR. BORGOS-There’s an existing fence there now. MR. MITELMAN-There is an existing fence there now, but all I was trying to depict with that was the actual property line, stretching all the way down to the street along here. MR. CLEMENTS-But you’re going to replace that fence. MR. MITELMAN-I wasn’t planning on replacing this particular fence. I was replacing, I was putting a six foot fence around the pool area. MR. CLEMENTS-Okay. MR. MITELMAN-So six foot fence in the front, six foot fence around, on the Gijanto property line, and then a four foot fence on the inside, on the inside land. MR. URRICO-Will the pool be illuminated? MR. MITELMAN-Yes, not only will the pool be illuminated, but the pool also, we’ve spent $10,000 to put in a security cover, an automatic security cover, that is controlled by. MR. BORGOS-Heat. MR. URRICO-What kind of lighting will be there? MR. MITELMAN-The property is, again, around the pool it’s completely lit up right now. There’s, on the actual terrace itself, there’s a series of lights in the terrace. There’s overhead lighting from the patio, and then there is night lighting that surrounds the entire property. MR. URRICO-Thank you. MR. ABBATE-Any other members from the Board? MRS. JENKIN-You did carefully consider moving the pool farther back. I know the tree is there. MR. MITELMAN-That stone wall is a killer. Honestly, Mrs. Jenkin, if you come to the property and you say. MRS. JENKIN-I came to the property. MR. MITELMAN-Did you see the stone wall? 36 (Queensbury ZBA Meeting 04/18/07) MRS. JENKIN-I saw the stone wall. MR. MITELMAN-It’s, the stone wall is in summertime is in bloom. That whole area is designed with flowers and it truly is a work of art. Yes, I can take the wall down. The answer is, yes, I can take the wall down. MRS. JENKIN-I also noticed that when you are standing at the pool area, there is not a lot of tree cover on that property line, and it’s very, very obvious. You can see right through to Gijanto’s property. MR. MITELMAN-In the wintertime, yes, you can. In the wintertime. In the summertime, that really does blossom, and it becomes much, much heavier cover. I can put up a picture that actually shows that, if you like. MRS. JENKIN-I just, when I was standing there, I thought it could easily, I agree that that’s a good location, that on that side property is a good location, but because of the patio, to put the pool maybe even 40 feet back or 50 feet back behind, it would ease Gijanto’s property a lot. MR. MITELMAN-Again, I would have to probably destroy the tree. If I moved it 30 or 40 feet further, I would not only take down the wall, but I would be affecting the roots of the tree, and I am putting in that six foot fence, that will create total privacy. MR. JENKIN-Now your shrubs are going inside of the fence or outside of the fence? MR. MITELMAN-They’re inside my fence. Like the shrubs are now inside my fence. MRS. JENKIN-So the fence will back on Gijanto’s property? MR. MITELMAN-Yes, absolutely. MRS. JENKIN-Not yours. MR. MITELMAN-I will have the shrubs. She will have exactly what she has. There are shrubs on both sides, by the way. We have a fence today, and there are shrubs on her side and shrubs on my side. So, the fence will be behind my shrubs. MR. ABBATE-Do we have any other questions from members of the Board at this time? Okay. Then I’m going to continue on. I’m going to open up the public hearing for Area Variance No. 30-2007, and would those wishing to be heard, please raise your hand, I will identify you and then ask you to come up to the table. All right. I will recognize that gentleman in the back of the room. He had his hand up. Would you come to the table, sir, have a chair, speak into the microphone, and tell us who you are and where you reside, please. PUBLIC HEARING OPENED MIKE MILLS MR. MILLS-I’m the other neighbor. I’m at 29 North Road. My name is Mike Mills, and I did send an e-mail saying that at this point in time, I feel very strongly about any variance for anything. I don’t, Peter, when he first came to my house. MR. ABBATE-Okay, now who is Peter, sir? MR. MILS-Peter Mitelman. MR. ABBATE-Thank you. MR. MILLS-And talked about his wall, I told him at the time I don’t have any objection to the wall, and I didn’t make any objection. I figured if he wants to put up a wall, whether it be standard or non-standard, he should be able to do that. So I just want to make that one point. The last three years we have had serious water problems, all on North Road, and, Mr. Underwood, I wouldn’t dismiss the letter that was sent so quickly, and I didn’t have anything to do, I don’t know Mr. Ryan. I’ve never spoken with the gentleman, but I have spoken to a couple of other engineers in Town, and we are floating, not only this year, but last year and the previous years. Now what Mr. Mitelman did not say is he cleared the lot between our two properties, and before it was cleared, it had vegetation on it, and the level of both properties was pretty close to the same. Last year and in 37 (Queensbury ZBA Meeting 04/18/07) previous years, we’ve been there 22 years, and our kids played with the Zoli children. So we’ve been there the long time, who was one of the previous owners of the house. We didn’t have runoff or spill off on our property the way we had after he cleared his acre and put large ponds there. Now, he and I have spoken about that, and that’s not the only problem. There’s so much ground water there, that when he pumps his pond to the back of his property, water bubbles up from underneath the ground. It’s not even spill off water. It just bubbles up. So we have a severe problem. Dr. Kerr on Garrison met with Dan Ryan and a group of people. I wasn’t one of them. I happen to work in Philadelphia, and I got the notice that, on Friday, so I changed my schedule so I could be here tonight. If we can get the water problems, which are severe, and we don’t seem, and it’s not just on my property, and I don’t have water in my basement, but I do have water on my property in the back which I’m going to have to bring in a lot of fill and create French drains going into my pond to fix, but I don’t know if there’s something else also regarding Bard because the last several years, last three years, my son and I have gone over there, and their catchment area, during the winter, has been totally blocked by ice and snow, and we chipped out the ice and snow so that we’d get the water moving. What I’m asking for, and this probably sounds disjointed, is that we study, we have an engineer that has no axe to grind, that studies what the water problems are on North Road and Garrison Road, and figures out whether a 20 by 40 foot pool, where’s the water going to go? I mean, any little thing that happens changes the eco system. Now I’m just telling you this because I think it’s important to understand. If the engineering problems can be solved, and this is not going to be detrimental to Gijanto’s property, to my property, then personally I could care less if Mr. Mitelman puts a pool in or not, but I am concerned about more damage being done to our properties because of water, and there’s no place for the water to go. We’re floating. So that’s all I have to say. I hope it wasn’t too disjointed, but let Dan Ryan do his study. Let him find out what’s the problem, you know, is it all the asphalt that Bard built for their parking lot and the runoff? I know right in back of us we’ve got about 100 feet between our fence and Bard, and that’s half under water. So we’ve got a problem there, and we need some help from you guys. Thank you. MR. ABBATE-Thank you. Do we have any other members of the public? Yes, sir. You had your hand up. Would you be kind enough to come forward, please. Be kind enough, please, to have a seat, speak into the microphone and tell us who you are and where you reside, please. ARNOLD ABRAMS MR. ABRAMS-My name is Arnold Abrams. I live at 30 Garrison Road, Queensbury, 12804. MR. ABBATE-Okay. MR. ABRAMS-I’m here because I received a notice from the Board that there was going to be a discussion concerning granting a variation, and a variance on putting a pool on the side. First of all, having lived in any number of communities in the last 12 years, I have found that once you give a variance to one house, you’re leaving yourself open to the possibilities of other homes coming in and asking for a pool on a side yard. Mr. Mitelman has said today that he doesn’t use the front door. His guests don’t use the front door. Well, neither do I, because my garage is in the back, and I go from the garage into the house. His driveway, people park in the driveway, they go in through that side door. He has, per this request, a nine acre piece of ground. With nine acres, a 20 by 40 pool is 800 square feet. If you put a 10 foot area around it, so now you’ve got a 40 by 60, 2400 square feet, on a nine acre, there’s plenty of room there. He has trees. I have trees. I have a pool in my back yard. It was there when we bought it, but it’s in the back. I have enough ground that it could have been in the front yard, on the side yard, because just similar to his, but my driveway, I don’t have to do it. Now this floodplain that Mr. Underwood seems to have a problem with, Mr. Ryan, I have no idea who Mr. Ryan is. I don’t know, this is the first I hear of it, but I will tell you that there are any number of people on Garrison Road, which is right around the corner from North Road, who have had water in their basement this year for the first time in their history, people who have lived there for 20 and 25 years there. My neighbor across the street had the fire department out one night because she had six inches, directly across the street of me, so I know that the water in the area. The so called side pool area that Mr. Mitelman is talking about, in showing you a picture of what amounts to the rear yard of a house south of him is only because the road curves. If the road didn’t curve right there, it wouldn’t be that way there. Again, I’m wondering, he mentioned that once you give a variance to one, you lead yourself open to a variance of other homes in the area. 38 (Queensbury ZBA Meeting 04/18/07) MR. ABBATE-Thank you very much. Do we have any other members of the public? I see a gentleman with his hand raised. Sir, would you be kind enough to come to the table, sit in the chair, speak into the microphone, tell us who you are and where you reside. JOHN CAFFRY MR. CAFFRY-I’m John Caffry with Caffry and Flower of Glens Falls. We’ve been retained by the Gijantos who are the adjoining property owners. They’re in Florida at the moment and couldn’t be here tonight and asked me to be here on their behalf. We think the variance should be denied. There’s no basis, under the regulations, to grant it. There’s no need for it, other than the convenience of the applicant. The rules in the Zoning Ordinance exist for a reason. They exist to protect neighbors and to keep pools from being built close to the neighbor’s house, and we think those rules ought to be enforced. As to, there’s five criteria you need to look at to grant this variance. We don’t think it meets any of them. In terms of undesirable change in the neighborhood, our clients are concerned about the noise they would get from this, as their letter that they faxed to you states, and they say, for instance, where they live in Florida, there’s a pool that’s farther away from this, and the pool machinery is very noisy and bothersome. MR. ABBATE-Counselor, let me interrupt you for a minute, please. I want something cleared up. Maybe I missed it when I was talking to the Executive Director. You say your clients? MR. CAFFRY-The Gijantos. MR. ABBATE-Okay. All right. Thank you very much. MR. CAFFRY-Immediately to the south, and this would be closest to them. They’re also concerned about water and drainage problems, and I think if anybody’s going to be affected by water and drainage, it would be them. You’re adding an awful lot of impervious, I don’t see the map up there that the applicant submitted, and I’d like to suggest that those be filed and made part of the record. I think the applicant submitted them, the aerial photo and the house plan and all that. They ought to be made part of the record, but it shows a 20 by 40 pool, and then an enormous patio around it. So you’re creating an awful lot of impervious surface, right on my client’s property line, and they state that, again they’re very concerned about water issues, and if there’s already an existing water problem in the neighborhood, this is only going to make it worse, and I think there is a potential for precedent here. If this is granted, it will only encourage other people to apply for variances, and this is probably one of the worst cases for a variance because they’ve got nine acres. They’ve got plenty of room where they could put a pool somewhere without putting it in the side yard. On the issue of alternatives, again, I don’t see the photo up there, but I think there is room for it, for instance, in the area where what he called the children’s playground is. It looks like a couple of pieces of yard equipment that could quite easily be moved. It is near the driveway, but they could put a fence around it so that it’s not right there next to the driveway. I think their own photos show that the suitability of alternatives, my client says a lot of lawn area back there, and it’s not all trees. That’s actually a slightly higher location, and it would be sunnier and a much better place for a pool. The argument about, well, this location in the side yard is really the back yard, I think it’s a red herring. The rule is there to protect neighbors. It does not have to do with the architecture of the house or the interior design of the house or which door you go in and out of and where the coat room is, and there is the quite clear definition of what’s the rear yard of a house. Again, it doesn’t have to do with where the door is. It’s based on the, it’s between the house structure and the rear property line, and that’s where the pool should be. So I don’t think there’s really any argument there. In terms of family members being able to access the pool, as Mike O’Connor said earlier, I can’t believe I’m finding something to agree with Mike O’Connor on, but some of you have seen me argue with Mike before this Board before, but, you know, the personal circumstances of the family members is not grounds for granting a variance, and so we don’t think that’s really an issue. If you were to move it back to the area just behind the house where the swing set and stuff currently is, it looks like in the aerial photos they have there’s plenty of room to put the pool there. Maybe the patio would have to be a little bit smaller, but I certainly think it would fit in there. It wouldn’t affect the oak tree. It wouldn’t affect the stone wall, and it wouldn’t be that much farther from the house. You’re talking maybe 30 feet farther, I think, and we don’t think a six foot fence is going to help with the noise issues. With regard to the vegetative buffer, the Gijantos point out that what vegetation is there, and if you look at the aerial photos, the area by the pool has the least vegetation of any area the house there. That vegetation is, to the extent there is any, my clients say you can see through it, and it’s mostly on 39 (Queensbury ZBA Meeting 04/18/07) their property. We think the variance is substantial. The Staff Notes say it’s substantial. We don’t think it’s the minimum variance. MR. ABBATE-Counselor, I’ll give you sixty seconds more. MR. CAFFRY-Okay. We don’t think it’s the minimum variance. We think it’s a self- created problem, because by their desire to put the pool there in the ideal location that they perceive, but that’s not what the Ordinance requires. In conclusion, we think that the detriment to the neighborhood, in particular my clients, outweighs any potential benefit to the applicant of having the pool exactly where he’d like to have it. They have an alternative. It can go in the back yard. It could comply, and then they wouldn’t need a variance. Thank you. MR. ABBATE-Okay. Thank you very much. Do we have anyone else in the public who would like to address this issue? Do we have any hands raised? Yes, ma’am. Would you be kind enough, please, to come to the table, have a seat, speak into the microphone, provide us with your name and where you reside, please, ma’am. BEVERLY KERR MRS. KERR-Beverly Kerr, 47 Garrison Road, Queensbury. MR. ABBATE-Yes, ma’am. MRS. KERR-I believe you have a letter from several of our neighbors, and the two points that we addressed in that letter talk about precedent and water. So I just wanted to make sure that that letter was read. MR. ABBATE-It will be. Our Secretary will read everything into the record. MRS. KERR-Thank you. MR. ABBATE-You’re welcome. Do we have anyone else in the audience who’d like to address Area Variance No. 30-2007? Okay. If not, then what I’m going to do, I’m going to ask members, Counselor, before I do that, sorry about that. I’m going to give you an opportunity to rebut what was said. MR. BORGOS-Thank you. I can take them in order of the speakers. I think Mr. Mills went first, and I think, I wrote down a note here that said he was opposed to anything that Mr. Mitelman was doing. I think that kind of sums up the way we feel about the neighborhood opposition. As we mentioned at the outset, there’s been a long history with the fence application, and there was some collaboration among the neighbors, some unity to oppose any change, and at one point during that argument, they basically came out and said we don’t want any fence at all. We don’t want a change in the appearance of the house. Well, Mr. Mitelman explained that this is all taking place in what we consider the rear yard. It’s going to be behind a fence that he can put up without the need for any variance and he’ll probably install anyhow. We don’t see that there are any substantial issues raised here. They are all, to borrow from Mr. Caffry, I think all their arguments are red herrings. Certainly the noise issue that he raises, I would classify as ridiculous, because a pool is not going to generate anymore noise than children playing on a swing set play area with the pool, guess where the play set’s going to go, right next to Gijantos. There’s no setback requirement for a play set like that. It can go closer. There’s no fencing requirement. It can be a lot louder, a lot noisier. MR. UNDERWOOD-Do you want me to read these letters, in case you want to respond to them? MR. BORGOS-I’ve read those already. So I’ll encapsulate them, thank you for the offer, though. I saw those earlier. Mr. Mills continued and went off topic a little bit into the water issue, and I think that’s really what’s driving it. There certainly has been raised an issue with the water in that neighborhood for a long time. I know Mrs. Kerr has raised that issue and has been one of the driving forces behind it, and she’s raised it with Town Board members, with Staff, and I’ve heard about it from many other sources. I believe they’ve also complained about the development at Turnberry, further down Bay Road, as contributing to those problems, and that may very well be. I think that’s why engineer Ryan has been asked to take a look at all the issues, but Mr. Mitelman’s application for a pool is not going to impact that. There’s no evidence that it would. Mr. Caffry raised the issue, I believe he was talking about surface runoff from the pool deck. Well, the pool would be designed to contain any water. So there’s not going to be any water leaking 40 (Queensbury ZBA Meeting 04/18/07) out of the pool, and that surface area. So if we’re talking about any surface area runoff and sheet flow, it’s going to be from the pool deck, and I think the 25 feet between that and the property line is sufficient to contain that, without an engineering study. It’s all going to be green with a lot of shrubs and bushes to soak that up. This seems like an incongruity in their argument. The problems with the neighborhood further down Garrison Road. Halfway Brook runs through there. There’s a large pond next to Mrs. Kerr’s home. If there’s water coming to the basement, that’s a more likely source than this property which is a good quarter mile, maybe a half mile away. Without engineering studies to demonstrate that, it’s just, again, a red herring not relevant here. We have not been ignoring the fact that these issues have been raised however. Mr. Mitelman has retained the services of Tom Jarrett, the engineer, to consider how to deal with this issue, to determine if there is any contribution to Mr. Mills’ problem from his property, and he’s already undertaken certain steps to solve any sheet flow issue if there was any. The clearing that was alluded to was simply maintaining the property that had fallen into disrepair and trimming branches, removing overgrown shrubs and brush that was between their property line. There was no mass clearing. He hasn’t created multiple ponds as alleged. MR. ABBATE-Excuse me a second. You mentioned a study that was conducted by Jarrett did you say? Do we have the results on the record? MR. BORGOS-No, he hasn’t completed that. MR. ABBATE-He hasn’t completed it yet. So we really don’t know what the results are. MR. MITELMAN-If I may answer that. I agreed with Michael Mills to hire an engineer. Michael hired an engineer and he came back with a no study. There was, everything was inconclusive. There was nothing other than to say that this particular year there was four inches more of rain than in the previous years, and that possibly that the water on his ground was caused by that. I’d like to put into the record that when we did clear the land between Michael and ourselves, what we did, in fact, is solve a problem. What was happening there, unbeknownst to everybody, it was swamp. When the water in the pond swelled, it just ran into that particular swamp area. It was all swamp. Today it is not swamp. It is completely contained within my pond. There is no way for any seepage from my pond today to go on to his property, and he’s aware of that at this particular point in time. What we have done, in fact, is we have created a complete, an exit for the, we’ve taken and provided a drain or a swale, is that what it’s called, okay, where there’s actually a hose, okay, that takes water from the pond, should it overflow, to the back of my property at a low point. So I have provided myself with the ability to make sure that my pond is actually never overflows or never affects the land of Michael. So I’ve been very, very diligent about that, and I spent a tremendous amount of money to make sure that this happened, and again, when there was no report from, there wasn’t an adequate from, Michael, who was the, I don’t remember the name. MR. MILLS-Since you’re taking everything out of context, I’m not going to tell you. MR. ABBATE-Counselor, we’re going to have to come to some sort of conclusion here. This is going on and on, and I really see no purpose to this. Let’s get down to the facts and only the facts, nothing dealing with sentimentality. Please. So continue. MR. BORGOS-Okay. Addressing the comments about the water that Mr. Mills raised, I also spoke to Code Enforcement Officer Bruce Frank about that. He visited the site, reported back to me that he had a conversation with Mr. Mills, after inspecting the property, inspecting the Bard property, the drainage over there. His conclusion was that the pond on Mr. Mills’ property was improperly configured to drain his property, and it wasn’t actually draining. He suggested bringing in fill to direct sheet flow away from Mr. Mills’ residence. I think that’s what Mr. Mills was referring to earlier, but he assured me that nothing on Mr. Mitelman’s property was affecting Mr. Mills’ property to the north. Mr. Abrams raised some issues about precedent. I think this Board has heard that issue raised many times before, and I’d state our position that we would agree with the understanding that there is no precedent set. Every case is unique. Every case has its own facts, and we think this property is unique. Certainly I was present a few months ago when Mr. Tingley looked for a side yard pool variance on his property. In fact, I spoke in favor of it because his property was also unique. He had another location that was compliant on his property next to his driveway, but it wasn’t as suitable as the side yard, and it wasn’t affecting anybody, just the same as here. Just because neighbors complain, doesn’t mean it is a justifiable complaint that would affect the neighborhood quality, and that’s what we’re driving at here. The setback issue, just because of the road curve, I think that statement from Mr. Abrams is factually incorrect, and that’s pretty 41 (Queensbury ZBA Meeting 04/18/07) clear from the overhead photos. Mr. Caffry made an excellent point, and we will submit the rest of the photos that were displayed on the overhead to the Secretary for inclusion within the record. We can do that now, but those photos will demonstrate that there is actually a much greater setback for this house, and it has to do with the scale of the home as we’ve talked about. Overall, the other arguments we think are outweighed by the benefit to the applicant here, and that’s the test. Putting aside all these complaints, it really comes down to that balancing, and here the benefit to the applicant certainly outweighs it because it is the only practical location for a pool. If you walked in the home, the place that you would look for a pool would be off that adjacent patio, and that’s the proper place for it, and we ask that you grant the variance. MR. ABBATE-Okay. Fair enough. Mr. Secretary, do we have any correspondence that should be read into the record? If so, would you please read it. MR. UNDERWOOD-Yes. We have several letters here, public comments. MR. ABBATE-Thank you. MR. UNDERWOOD-This letter is addressed to me. “We, the undersigned, would like to register our concerns about the Mitelman Family Trust proposed variance. Those concerns are: 1. Setting of a precedent for others to request the location of pools in a side yard. The current ordinance requires that pools must be located in the back yard of a residence. The applicant has sufficient acreage to place a pool in the required location. 2. Further displacement of soil in an area of the Town which is already saturated. This is creating problems for many of the neighbors who are experiencing water in their basements. The neighbors have had several meetings with Rich Sanford, Dan Ryan and Craig Brown addressing this issue. Your consideration of our concerns will be greatly appreciated. Thank you. Yours truly, Beverly Kerr, Edmund Kerr, Helen Laroche, Leonore Lebour, John Eisenhart, Mary Eisenhart, Jim Keating, Nancy Keating” Another letter says, RE: The Peter Mitelman variance request, “With a sense of deja vu, we are writing to object to the zoning variance request of Mr. Mitelman, 27 North Road, Queensbury, to place a an inground pool in the side yard of his property. The verbal contortions undertaken by Mr. Borgos in describing the obvious side yard as a “back yard” are both ridiculous and humorous. Standing on North Road and observing the house, it is obvious that the side yard where Mr. Mitelman has indicated he would like to place his pool is indeed “the side yard”. We do not want a neighborhood “side yard pool”. There are more than enough alternate locations available, the most obvious one being directly east of the patio. Very Truly Yours, Thomas E. Meath, Elizabeth V. Meath, Margaret A. Meath” The next one says, “I am very concerned that Mr. Mitelman at 27 North Road, Queensbury intends to place a swimming pool in his side yard. I am across North Road from Mr. Mitelman’s property and would find such a location very disturbing – both visually and acoustically. Please do not grant this variance. Sincerely, Mrs. Charles R. Wood, Becko-Wood”, who I believe has a side yard pool, does she not? The next one, “Dear Members of the Zoning Board of Appeals: Pursuant to the BBS Mitelman Family Trust seeking relief from the accessory structure requirements for a pool in a side yard, we strongly object to the placement of a 20 ft. by 40 ft. swimming pool in the yard on the south side of the BBS Mitelman Family Trust property adjacent to our home. This very large pool will be sandwiched between our house and their house and the ensuing noise from the motors of water circulation pumps, pool heaters, cleaning devices and other pool maintenance equipment will adversely affect our quality of life and devalue our property. With their many other empty acres, they do not have a hardship locating a pool on another part of their property in the backyard of their home. Another equally distressing issue is that removing that much earth from an area where their sump pump empties, will cause said water to drain onto our property. ALL of us in the North Road and Garrison Road area have problems with wet basements. This proposed pool location would only add to our woes. Because all of our properties on the east side of North Road are so low, we had to install grinder pumps to pump our sewage up to the sewer system in the streets. How will the proposed pool affect those pumps? It will be adjacent to those lines leading to the streets. Thank you for your consideration in this most important matter. John and Mary Gijanto, 25 North Road, Queensbury, N.Y. 12801” This is a fax that was received. “It is my understanding that an application for side yard variance on the above property has been made and will be addressed by the Board. At this time, I want to state my objections to approval of this proposal based on the following: 1. In my opinion, it will adversely affect the value of the immediately adjacent property to the south. This will burden the neighboring property owner financially as well as intruding on their privacy. 2. Approval of this variance sets a negative precedent in the immediate neighborhood and throughout the Town for future variance applications and is inconsistent with the purpose and intent of the Plan. 3. There is an abundance of lot size in the subject property, over 9 acres, so the proposed 42 (Queensbury ZBA Meeting 04/18/07) variance cannot be considered as an accommodation to the lot size or configuration. Indeed, the size of the property itself presents an excellent opportunity for a creative and environmentally conscious pool placement and would not place a hardship on the owner. 4. The application appears to be based more on convenience to the applicant than in consideration to the integrity of the neighborhood. Aesthetically, it makes little sense and cannot be seen reasonably as an improvement. There does not seem to be any plea of hardship that the owners could make in this case that would offset the adverse impact transferred to residents of the neighborhood. At this time I would urge the Board to reject the application as unfavorable to the residents of the neighborhood and of the Town of Queensbury. Respectfully submitted, Alexander Bellos, Executor Estate of Anne F. Bellos” This is the one from Mr. Mills. Do you want me to read that again? MR. MILLS-It might clarify some of the issues. MR. UNDERWOOD-“I just received the variance request for Peter Mitelman at 27 North Road, Queensbury, NY to build a 20 by 40 foot pool in his side yard. I WOULD BE AGAINST any kind of a variance being given to Mr. Mitleman for any kind of building on his property. I feel this way about any building on any of the properties on North Road, Garrison Road or Bay Road due to the unresolved water problems that the area has suffered over the last few years. I work in Philadelphia during the week. It seems like my receiving the notice of this hearing last Friday sure doesn’t give anyone very much time to plan to be at the hearing. I will try to attend the meeting if can move my schedule around. However, in the event I cannot be there, please let this e-mail serve as a resounding NO to Mr. Mitelman’s request for a variance on his property. Thank you for your kind consideration in this matter. Sincerely, Michael L. Mills 29 North Rd. Queensbury, NY 12804” RE: Construction of an in-ground pool at 27 North Road, relief from accessory structure requirements for placement, “We do not approve of granting a variance for the proposed project as we feel it would set a precedent for further construction on other properties. The accessory structure requirements were set up to protect neighboring properties, and we feel the present guidelines should be enforced. Sincerely, William S Bronk, M.D. and Genevieve T. Bronk” “As a resident of 23 North Road for the past 40 years, I do not support the request for a variance for an inground pool to be sited in the side yard of the BBS Mitelman Family Trust property at 27 North Road, Queensbury. This site would have an adverse effect on the adjoining property on the south side of the Mitelman Family Trust property and set precedence in permitting side lot pools in the Town of Queensbury and in the North Road, Garrison Road, Ft. Amherst Road area of Queensbury. Thank you for your consideration in this matter. Freda Solomon” “Relative to the applicant’s request for relief from the accessory structure requirements for the placement of a pool in the side yard, please be advised that both my husband, Donald Sawyer, and myself are opposed to such relief. We feel that property values in the immediate North Road vicinity would be adversely affected, especially the Gijanto property (25 North Road) which is located adjacent to the Mitelman property. We feel that the Mitelman property, containing more than 7.5 acres, primarily located to the rear of the residence, provides sufficient space for placement of a pool in the traditional rear location. Very truly yours, Carleen Sawyer” That’s it. MR. ABBATE-Okay. Thank you very much. MR. BORGOS-Mr. Chairman, I don’t want to belabor the point, but there were several letters that were read that I did not receive when I got. MR. UNDERWOOD-You can comment on any of them you want. MR. ABBATE-We will ensure that you have copies. MR. BORGOS-I just wanted to offer a brief comment. MR. UNDERWOOD-Sure. MR. BORGOS-I’ll keep it very brief. As I was listening to these letters, the same theme was over and over, and I don’t know why it didn’t occur to me sooner, but I realize that if you put a 20 by 40 foot pool, or a larger or a smaller pool, if you put a pool in a compliant location, the same compliance would be there, but there would be no grounds for anybody to voice them. There would be no opportunity, and those issues would be there. So if he is denied this variance tonight, those issues are going to happen, if they are truthful. So I don’t know how they are relevant to consideration of the application here, and I think that’s really what it comes down to. 43 (Queensbury ZBA Meeting 04/18/07) MR. MITELMAN-To very important points, if I may add. We did have pool, an above ground pool there last summer, all summer. It was one of those 12 foot round 2 feet deep, and the same level of noise was evident there. There was never a word of complaint. There was never any type of, you know, negative input at all. One other thing that was mentioned by the Gijantos, was that we are affecting the, something to do with the water, we’re pumping the water or our sump pumps are in that area. Our sump pumps are being pumped into the pond. There is nothing on that side that is affected. MR. ABBATE-Counselor, does that just about conclude your argument? MR. BORGOS-It does. MR. ABBATE-Okay. I’m going to continue now. I’m going to offer their comments. I’d like to inform the public that the comments offered by the members are directed to the Chairman and there will be no debate. I’m going to respectfully remind the members that precedence mandates we know what our responsibilities are. I don’t believe I have to go over it again. I’m going to ask members to offer their comments on Area Variance No. 30-2007. Do I have a volunteer? MR. UNDERWOOD-I’ll go first. MR. ABBATE-Would you please. MR. UNDERWOOD-Much of the drainage problem that the neighbors deal with down on the Garrison Road area is the result of, and I’ll speak because I have a degree in Geology and Land Use Planning. The water table there is very high. It’s essentially a silver maple swamp down there. If you go into the back environs of the property that haven’t been developed, you’ll see the same type of vegetation. It’s very similar to what you see behind the golf course down off of Haviland Road and down in the lower environs there. The whole area drains essentially from Notre Dame Street in Glens Falls west down through the Bay Road corridor there, and I think through the years what you’ve seen is a gradual increase, and due to the global warming thing that we’ve had the last few years, with much more precipitation in the summer months, I think that’s probably the main reason that you’re seeing so much more water in those neighborhoods. A single swimming pool, if you built it anywhere in that area, would have no effect on that water runoff that’s occurring there, and I think that point that people are trying to make has nothing to do with this. The study that’s being done is probably a good idea to try and deal with it, but essentially what you’re going to have to deal with is creating some kind of a Town built drainage control problem that’s going to siphon off that water from your neighborhoods down there. It’s nothing that you people did. It’s just something that has been waiting to happen, with more precipitation that’s occurring locally. As far as the request here, I think that there could be some movement on your part as far as where the pool is. I don’t really see, I mean, essentially on your map there, if you take your pool and you move it up a little bit higher up behind the terrace, you’re still on the south side of your house there. I think essentially you can make the point that you’re much more behind the house at that point, instead of being way over here on the side. I think you could move it back in this direction. You’re not going to have any effect, you may to move part of your stone wall. It’s not going to affect your oak tree back there or anything like that, too, but I think that that could be a compromise that you might consider, if the vote does not go your way here this evening. As far as I’m concerned, I think that it is a grand request to put a pool in a side yard, but in this instance here, I’m not that concerned about it. I think that if you compromised and moved that pool over a little bit, so it’s semi-jockeyed behind your patio back there, that’s going to make me happy enough to give you the variance that you need to do that, and I think that what you made in your submittal here with the Town plan shows that you can have a pool partially in the side yard or in the side yard. There are instances where we’ve done it in the past. I don’t think it’s going to be a precedent setting thing if we grant a variance for you to do this here, and I think that most of the neighbors’ points, we give variances for pools all the time and people live in much more close proximity to each other. I’m sure that if we went out and checked here, all the people that wrote letters against your pool, to see if they wrote letters against Charlie Wood’s pool when he put it in his side yard down there, which is where it’s located right on the corner of North Road, just adjacent to there. That side yard pool, that very tall fence that’s around the property, these are issues that pop up in my mind when I see the neighborhood come out in droves against somebody’s ideas that they have. It may be a different idea, what you’re trying to do here, but I’m going to wait and see what everybody else says here before I make my decision, but I think that if there’s some movement on your part, as far as sliding that pool slightly around the bend there, then that would justify my granting you the relief you want. 44 (Queensbury ZBA Meeting 04/18/07) MR. ABBATE-Mr. McNulty, please. MR. MC NULTY-Okay. As far as the precedent issue goes, I think the Counsel has made the point that we make several times. There’s no precedence in an Area Variance. Each case is individual. So that argument doesn’t hold any water with me on that. I think, as basically has already been mentioned, the idea of the water problem in the area, this pool isn’t going to make any difference, as far as I can tell, putting a pool in. Now that water level may affect the pool, depending on what they find when they start digging the hole for the pool, but I don’t think the pool is going to affect the water level in any which way. Side yard, yes, normally I’d have a problem with a side yard pool, but in this case, this house is set back so far from the main road that where they’re proposing the pool for any normal house would be it would be the back yard already, and I think it is an exception to the rule, as far as location and arrangement. As far as I can see, the pool is not going to be anywhere near as close to a neighbor as normal pools are in Town. It may be that some of the pools in Florida have got noisy equipment, but my experience, I’ve got a neighbor that’s got a pool right next to me, and his pump house is I think just about on the lot line, to tell you the truth, and I’ve got problems with noise around my house, but not because of the pool equipment. I don’t hear it. So, you know, I think in this case, the applicant has, for me, adequately explained why it’s not really practical or useful for him to put his pool in his actual back yard. I can’t see any detriment to the neighborhood for the location that he has proposed, and I can’t even see any benefit in asking him to move it from where he’s proposing it back even a little bit. I don’t think that’s going to make any difference. So, as far as I can see, the benefit to the applicant, in this case, any minimal detriment that there might be to the neighborhood. I think the balancing test, in this case, falls to the applicant. I’m going to be in favor. MR. ABBATE-Okay. Thank you. Mr. Clements, please. MR. CLEMENTS-Yes. This is a unique neighborhood. We’ve had compelling arguments, and as a matter of fact I’ve gone back and forth a couple of times while I’ve been listening here. Actually I played in this house when I was a child. I had a friend, the Days, that lived there. So I know the area pretty well. You do have a good argument about the front door and the back yard. I remember being in that house, and that’s exactly how it was used. On the other hand, we have a lot of acreage there. I think I agree 100% with Mr. Underwood about the drainage problem. I don’t think that that should have any influence on it at all. However, I think that maybe if you did make some concessions and seeing that there’s enough acreage there to comply with zoning, I think I’m going to hold my vote until later, too. MR. ABBATE-All right. That’s fine. I don’t have a problem with that. Mrs. Jenkin, please. MRS. JENKIN-Yes. Following the criteria that we’re supposed to follow, I feel that there is a definite, it’s definitely that the benefit can be achieved by other means. You can move the pool. You have space to move the pool, and you could move it away from the neighbors, and I feel that we really do need to take into consideration that fact that the neighbors, it does place the pool very close to the neighbors. The neighbors are going to be able to see, if not, they’ll see the fence. It’s very, very obvious if you stand in that area. So I think there will be an undesirable effect to the nearby properties. It’s not clear, and it’s very unsure whether there will be an environmental effect on this. So that can be, and I think your difficulty is self-created, and I would not vote in favor of this. MR. ABBATE-All right. Thank you very much. Mrs. Hunt, please. MRS. HUNT-Thank you. Yes, I feel that you really haven’t convinced me that this is the only place for the pool, with all of the acreage you’ve got, and Mr. Underwood and I were looking at it. If you put the pool behind the patio there, you really wouldn’t need, this is the pool. If you put it here, you really wouldn’t need, it would be behind the house in the back yard, and I think the other issues are peripheral. They really make no effect, but I would not vote on the variance at this point. MR. ABBATE-All right. Thank you. Mr. Urrico, please. MR. URRICO-Yes. I think, I just want to say something, that there were some comments earlier made about the wall, the stone fence that was going to be put up and I don’t want to be thrust into the middle of what I see as a community issue here. I want to focus strictly on this pool, but I want to make it clear to the applicant that when we consider these variances, we’re considering basically a breakage of the law. The law, this Code is set up in a certain way, and you’re coming in and asking for a change in that. We’re 45 (Queensbury ZBA Meeting 04/18/07) considering that. So you’re here not based on what we’ve asked you to do, but something that you’ve requested to do. Even in our guidance, for zoning changes, we’re given some direction, and it says that the property of the citizens cannot and ought not to be placed within a straight jacket. At the same time, it says to us that we’re not to be given a blank check to relieve every hardship caused by Zoning Ordinances or local laws. That being said, we have some criteria to go by, and I want to go through what I’ve come up with. The one that I want to start off with is the benefit, can it be achieved by other means feasible to the applicant. Well, yes, you have nine and a half acres. So there are other feasible means. Whether there is an undesirable change in the neighborhood character or nearby properties. I don’t buy that. I don’t buy that having a pool on your property, even in the side yard, would change the neighborhood character. However, whether the request is substantial, you had made the comment earlier, Mr. Borgos, that you consider this to be the back yard, but the Town considers this to be the side yard, and that’s the issue, what the Town considers. So the request is substantial based on that. I don’t think there’s going to be adverse physical or environmental effects, at least I don’t think one pool is going to make a difference in the water table or have any other impact, but the last item is if the alleged difficulty is self-created, and that’s a definite yes. You’ve created a situation, because you’ve determined this is where you want the pool. You want to preserve the oak tree. You want to preserve the stone fence, but I think there needs to be some compromise here. If you want to get what you want, you’re going to have to compromise, and the other point I want to make is that we’re to grant minimum variance necessary, minimum. So I would be against it, but there is room there to compromise, and if you’re willing to compromise, I’m willing to change my direction. MR. UNDERWOOD-Do you want to have them see if they want to compromise before you make the final tally? MR. ABBATE-Well, no, I would prefer to hear the rest of the Board. Let me see who’s left. Mr. Clements. I would prefer to hear what Mr. Clements has to say. MR. UNDERWOOD-He already went. MR. CLEMENTS-I did. I went. MR. ABBATE-Well, you indicated that you weren’t sure, that you wanted to hear what the rest of us had to say. MR. CLEMENTS-That’s true, and I would say probably now that I would be against it, but I would like to hear what a compromise would be. MR. ABBATE-Sure, I don’t have a problem with that. Okay. MR. UNDERWOOD-You put the pool between the gazebo and the side of the house there. MR. ABBATE-Do you think I could have a say so in this, guys? My position basically is that we have a responsibility to protect the safety, security and health of the community, and while I did not request or do you know who Mr. Ryan is, I do believe that it would make good sense to perhaps table this until we have the results of an engineering study. I’m not an engineer and I don’t propose to be one, so I’m not sure I can grasp what’s meant by storm drainage problems, etc., etc., and to be very cautious, because Mr. Urrico pointed this out earlier, we have a duty and responsibility to protect the community, and at this point here, I don’t have sufficient information to make, I feel, an intelligent decision. Since the issue has been raised by the Town Engineer, I would be more comfortable with having the results of that and then if then results proved negative, then certainly I would have no problems perhaps supporting your application, but as of right now I don’t believe I have sufficient information, particularly due to the fact that there is concern about an engineering study, to make an intelligent decision. MR. UNDERWOOD-Are you going to make everybody who puts a pool in do an engineering study? MR. ABBATE-Jim, that’s my position. Okay, and so at this particular point, I would not support the application. Now, let me say this to you, Counselor, it appears, based on a tentative vote, that the Board has considered your arguments and finds them without merit, the majority of the Board. However, to provide you with every opportunity for a fair and impartial hearing, may I suggest you consider one of three options. Perhaps you may wish to table your appeal for the next available date. Perhaps you may wish to 46 (Queensbury ZBA Meeting 04/18/07) withdraw your appeal, or we continue to vote on this appeal. The choice is yours, and all I can say to you is this. You can reject any of the suggestions that I have made without prejudice. No question about that at all. So, I would like to ask you now what option you wish to take, in view of the fact that the majority of this Board finds your arguments without merit. MR. BORGOS-Mr. Chairman, the issue that you’ve just raised is a novel one for me in this situation, and we certainly didn’t have any notice of it before the meeting. I would like to talk to my client about it. MR. ABBATE-By all means. MR. BORGOS-Before we do anything, but I don’t know that he is desirous of tabling this to another agenda. Would it be possible to have a short recess so that we can discuss that? MR. ABBATE-Absolutely. Believe me, I’m one who believes in due process. MR. BORGOS-Okay. MR. ABBATE-You can take as long as you wish. MR. UNDERWOOD-I would urge you to think about the options that we asked you to consider and consider those, because I think three of the votes were affected by that, I believe. MR. ABBATE-All right. We will recess for five minutes. MR. BORGOS-Thank you very much. MR. ABBATE-Yes, you’re welcome. MR. MITELMAN-Ladies and gentlemen, I appreciate the fact that we have an opportunity to do a compromise. One thing to consider is, again, yes, there are nine and a half acres of land. Seven and a half acres are unused and completely wooded in the back. The other acres are just too far from the house. It’s easy to say there’s nine acres of land, but the reality is the reality, and the pool has to be in proximity to the services, whether it be food, bathrooms and so forth. Please consider moving the pool 20 feet this way. We would move it 20 feet this way. I will demolish the wall that is there and allow me to maintain the pool in this side of the property. MR. ABBATE-Okay. Thank you very much. I’m going to close the public hearing for Area Variance No. 30-2007. PUBLIC HEARING CLOSED MR. ABBATE-And again, ladies and gentlemen of the Board, we know what our tasks are. We know what our duties are. We know what the balancing variance is all about, concerning the impact on the area and all the State laws. I don’t feel I have to go through that again. I’m going to seek a motion, and I’d request that your motion be made with clarity. So I’m going to seek a motion for Area Variance No. 30-2007. Is there one? MRS. JENKIN-I can do it, but it will be to deny this motion. MR. ABBATE-Well, that’s up to you. MR. UNDERWOOD-I’ll make one if you want. MOTION TO APPROVE AREA VARIANCE NO. 30-2007 BBS MITELMAN FAMILY TRUST PETER MITELMAN, Introduced by James Underwood who moved for its adoption, seconded by Charles McNulty: 27 North Road. The applicant is proposing the installation of a 20 by 40 foot in the ground pool in the side yard and relief is requested from the accessory structure requirement that pools may be erected only in the rear yard. The applicant has offered to move the pool 20 feet further back, so I think that will be now I believe 70 feet from the neighbors’ home, in linear distance. I’m guessing that’s what it would be. The applicant would be able to locate the pool in the desired location on the south side of the house, which seems the logical side of the house to put a pool on so it takes advantage of the 47 (Queensbury ZBA Meeting 04/18/07) sun. Although there are feasible alternatives, such as siting the pool way back behind the house in the vicinity of that garage, way back further, the applicant does not appear to want to put the pool there because it would be a considerable distance from his patio and other outside activities that are already taking place on the property. The relief is considered substantial relative to the Ordinance, but again, in the pool diagram provided by the applicants, we do see instances where pools are allowed in the side yards. In so far as effects on the neighborhood or community, I feel that there will be minimal, if any, impacts on the neighborhood. Even the nearest neighbor, his home, it would be located over 70 feet away. The arguments were made that the pool would create lots of noise due to the machinery that operates the pool, and with people taking advantage of the pool, but the applicant will put up a privacy fence around it and certainly many people live next to pools that are much closer in proximity to their homes in the community. The difficulty would be completely self-created, but in this instance here, I don’t think, because it’s located so far back from the road, we can also look at it as the back yard of the property because it would be the back yard on anybody else’s property. th Duly adopted this 18 day of April, 2007, by the following vote: MR. URRICO-Just a point of clarification, if this motion does not get approved, it’s a motion to deny. Is it not? MR. ABBATE-Here’s what we do, procedurally, okay, a motion has been made to approve this Area Variance. If it is denied, then I’m going to request a motion to disapprove. Okay. MRS. HUNT-I do have a question on exactly where it’s going to be. MR. UNDERWOOD-It’s going to be slid 20 feet further back. MRS. HUNT-That’s all, not close to the house. AYES: Mr. McNulty, Mr. Clements, Mrs. Hunt, Mr. Underwood NOES: Mr. Urrico, Mrs. Jenkin, Mr. Abbate MR. ABBATE-Area Variance No. 30-2007 is approved by with a four yes, three no. MR. MITELMAN-Thank you. MR. ABBATE-All right, ladies and gentlemen, I’m going to move a motion to close this hearing. This hearing is closed effective now. On motion meeting was adjourned. RESPECTFULLY SUBMITTED, Charles Abbate, Chairman 48