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2007-08-22 (Queensbury ZBA Meeting 08/22/07) QUEENSBURY ZONING BOARD OF APPEALS SECOND REGULAR MEETING AUGUST 22, 2007 INDEX Notice of Appeal No. 4-2007 Thomas & Lisa Brennan 1. Tax Map No. 315.1-12.1, 12.2 Area Variance No. 8-2006 David R. & Sally N. Kelly 2. Tax Map No. 239.15-1-3 Area Variance No. 53-2007 Gail Morehouse 2. Tax Map No. 308.19-1-53 Area Variance No. 49-2007 Mandy L. Manney 8. Tax Map No. 308.6-1-48 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 08/22/07) QUEENSBURY ZONING BOARD OF APPEALS SECOND REGULAR MEETING AUGUST 22, 2007 7:00 P.M. MEMBERS PRESENT CHARLES ABBATE, CHAIRMAN JAMES UNDERWOOD, SECRETARY CHARLES MC NULTY JOYCE HUNT ROY URRICO ALLAN BRYANT BRIAN CLEMENTS, ALTERNATE ZONING ADMINISTRATOR-CRAIG BROWN TOWN COUNSEL-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 22 August 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. This 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. Mr. Secretary, would you be kind enough to monitor the time, and at this time, and if we have any correspondence to read into the record, would you be kind enough to do that for me now, please. NOTICE OF APPEAL NO. 4-2007 SEQRA TYPE: N/A THOMAS & LISA BRENNAN AGENT(S): STEFANIE BITTER, ESQ. OWNER(S): THOMAS & LISA BRENNAN ZONING: SR-1A LOCATION: 751 CORINTH ROAD APPELLANT IS APPEALING THE ZONING ADMINISTRATOR’S DETERMINATION OF MAY 2, 2007 REGARDING PROPER MEASUREMENT OF THE LENGTH OF A DEAD-END ROAD. CROSS REF.: SB 13-06 WARREN COUNTY PLANNING: N/A LOT SIZE: N/A TAX MAP NO. 315.- 1-12.1, 12.2 SECTION: MR. UNDERWOOD-On the agenda this evening, the third matter this evening is Thomas and Lisa Brennan. For anybody that’s here this evening, we received this letter this evening, from Jon Lapper. It says, “Last evening the Queensbury Planning Board granted a waiver of the cul de sac road length limitation which we requested. As a result, the above referenced appeal of the Zoning Administrator’s determination is no longer necessary. On behalf of the applicants I hereby withdraw the appeal which will enable the ZBA members to go home early tonight.” And that’s signed Jon Lapper. MR. ABBATE-Okay. Thank you very much. In view of the correspondence, I’m going to move a motion as follows. The appellant, Dr. and Mrs. David Kelly, Area Variance No. 8- 2006, in correspondence dated July 16, 2007, addressed to this Board, has requested a one year extension due to mitigating circumstances outlined in the correspondence. 1 (Queensbury ZBA Meeting 08/22/07) MOTION TO APPROVE A ONE YEAR EXTENSION FOR AREA VARIANCE NO. 8- 2006 DAVID R. & SALLY N. KELLY, Introduced by Charles Abbate who moved for its adoption, seconded by Joyce Hunt: Until 31 August 2008. nd Duly adopted this 22 day of August, 2007, by the following vote: AYES: Mrs. Hunt, Mr. Underwood, Mr. Clements, Mr. Abbate NOES: Mr. Urrico, Mr. Bryant, Mr. McNulty MR. ABBATE-The vote is four yes, three no. In a vote, four yes, three no, Area Variance No. 8-2006 has been extended to 31 August 2008. JON LAPPER MR. LAPPER-Thank you. MR. ABBATE-You’re welcome. NEW BUSINESS: AREA VARIANCE NO. 53-2007 SEQRA TYPE: II GAIL MOREHOUSE OWNER(S): ROGER & GAIL MOREHOUSE ZONING: SR-20 LOCATION: 52 PINELLO ROAD APPLICANT PROPOSES CONSTRUCTION OF A 2-CAR DETACHED GARAGE. RELIEF REQUESTED FROM SETBACK REQUIREMENTS. CROSS REF.: SP 20-88, BP 07-400 WARREN COUNTY PLANNING: N/A LOT SIZE: 0.46 ACRES TAX MAP NO. 308.19-1-53 SECTION: 179-4-030 GAIL MOREHOUSE, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 53-2007, Gail Morehouse, Meeting Date: August 22, 2007 “Project Location: 52 Pinello Road Description of Proposed Project: Applicant proposes construction of a freestanding two car garage. Relief Required: Applicant requests 5 feet of relief from the 10 foot minimum side setback requirement of the SR-20 zoning district. Criteria for considering an Area Variance according to Chapter 267 of Town Law: 1. Benefit to the applicant: Applicant would be permitted to construct the garage in the preferred location. 2. Feasible alternatives: Feasible alternatives appear to be limited due to the location of the existing improvements on the property. However, consideration may be given to a smaller two car garage or a one car garage. 3. Is this relief substantial relative to the ordinance?: The request for 5 feet of setback relief from the 10 foot requirement may be interpreted as moderate to substantial (50%). 4. Effects on the neighborhood or community: No letters of support were submitted with the application materials. 5. Is this difficulty self-created? As there appears to be at least a more compliant alternative available, the difficulty may be interpreted as self created. 2 (Queensbury ZBA Meeting 08/22/07) Parcel History (construction/site plan/variance, etc.): None applicable Staff comments: Consideration may be given to either a smaller two car garage or a one car garage. For example, a 20 x 30 garage would only require 1 foot of relief. SEQR Status: Type II” MR. ABBATE-Okay. Would the petitioner of Area Variance No. 53-2007 be kind enough to come up to the table, please, speak into the microphone and tell us who you are and where you reside, please. MRS. MOREHOUSE-I’m Gail Morehouse. I live at 52 Pinello Road. MR. ABBATE-Okay. Have you been before the ZBA before? MRS. MOREHOUSE-No. MR. ABBATE-Okay. Well, let me take a couple of seconds and explain to you what we do, okay. Since you’re not accompanied by an attorney, it’s very simple. All we’re going to ask you to do is just explain to us in your own words why you feel that your project is worthwhile and why we should approve it, and if you, during the course of the hearing, if there’s anything you don’t understand, stop us, okay, raise your hand and we’ll make every attempt to answer your questions, and during the course of the hearing, if there’s anything else you may have forgotten to tell us that you think may support your appeal, stop us again, and say, gee, I forgot to say this, and I’d like to say that. So it’s very simple. So in your own words, just explain to us why you feel this is warranted, please. MRS. MOREHOUSE-Okay. Well, the reason we’re looking for the relief is because, to put the garage where we want it, if we were to move it over the 10 feet, we would have to like blacktop our entire yard. So, that’s pretty much it. MR. ABBATE-Well, okay. All right. For temporarily, then, we’ll say that right now you’ve stated your case, but we’ll leave it open in case you have anything else to say. Fair enough? MRS. MOREHOUSE-Yes. MR. ABBATE-Okay. I’m going to move on to the Board members now and ask if any of the Board members have any questions for Area Variance No. 53-2007? MR. BRYANT-Mr. Chairman. MR. ABBATE-Yes, please. MR. BRYANT-A couple of questions. In Staff Notes they recommend that a feasible alternative is to go with a smaller garage. Your response? MRS. MOREHOUSE-We have two vehicles. So a one car garage wouldn’t. MR. BRYANT-Yes, but you still could have a smaller two car garage, and the second point is, relative to the drawing and the survey and all that, I mean, it appears that you have, when you say you would have to blacktop your whole driveway to move the garage over, if you move the garage over another five feet, you’re only adding maybe a couple of feet of blacktop, very little to accomplish that, and then you don’t need a variance, and you go home and you build your garage, just like you want. You’ve got plenty of room between your water system and your proposed garage so you could. MRS. MOREHOUSE-Right, but it would make such an angle to go out and around behind the house. MR. BRYANT-I don’t see that it’s going to make that much of a difference, really. 3 (Queensbury ZBA Meeting 08/22/07) MRS. MOREHOUSE-It would leave less room, too, to be able to get access to the backyard. MR. BRYANT-Access by what? Actually you’d have better access because you could then go around the north side of the garage by the property line if you had to go in the back with a vehicle. You’d have better access. You see here, this is the reason that they have these zoning codes, okay. Supposing your neighbor next door decides to build a giant garage or structure in a compliant location 10 feet away from the property line, whatever, you know, and you’re five feet away from the property line. You’re giving 15 feet, basically, for a giant fire truck to get in the back or some kind of demolition truck or something, and it creates a problem. So my question is, the five feet, is it really going to kill you? I mean, if you move the garage down five feet, you say it’s a little bit of an angle. Yes, it increases the angle slightly, but, you know, it’s far enough away from the home that you’ve got plenty of room, and my question is, why are we here? MRS. MOREHOUSE-Well, it probably wouldn’t kill us, but it’s just, it doesn’t go with, you know what I mean? It would be behind the house. MR. BRYANT-I know, but it goes with the zoning. MRS. MOREHOUSE-Right. MR. BRYANT-Okay. MRS. MOREHOUSE-Exactly. MR. BRYANT-That answers my question. Thank you. MR. ABBATE-Sure. You’re welcome. Do any other members of the Board have any questions you’d like to ask? MR. BRYANT-Yes, Mr. Clements, please. MR. CLEMENTS-The people that are to the north of you, Vrooman? MRS. MOREHOUSE-Yes. MR. CLEMENTS-Do we have any letters from them? MRS. MOREHOUSE-No, but he did say that he would write me one if I needed it, but I didn’t figure I would need it. MR. CLEMENTS-Okay. MR. ABBATE-Any other members have any questions? If not, then I’m going to open a public hearing for Area Variance No. 53-2007, and do we have any members of the public who’d like to address this? Would you be kind enough to raise your hands, please? PUBLIC HEARING OPENED MR. ABBATE-I see no members of the public. Okay. Then I’m going to move on, and before I ask members, again, 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 open to debate, and, members, again, I would respectfully remind you about precedence mandating our concern, how we concern ourselves with evidence which appears on the record to support our conclusions. Having said that, do we have any members who’d like to volunteer? MR. BRYANT-I’ll volunteer. MR. ABBATE-Would you please, Mr. Bryant. MR. BRYANT-Thank you, Mr. Chairman. MR. ABBATE-You’re welcome. MR. BRYANT-I think, you know, there are basically five criteria that we have to review, and one of the most important to me is the feasible alternative, okay. I think you have 4 (Queensbury ZBA Meeting 08/22/07) not only one feasible alternative but you have multiple feasible alternatives. The request or the suggestion by Staff that you could build a smaller garage or maybe a one car garage, and I understand you want a two car garage, but that is still a feasible alternative. The other alternative is to reposition the garage to bring it in a more compliant location. Yes, it’s not going to be totally behind the house. It’ll be behind the house maybe another four or five feet, but it’s still going to show from the road, but the angle is not that great. You have plenty of room in the yard. It actually, in my view, would be beneficial to you to do that, because it would then give you the opportunity to go around the garage, should you need to go in the back yard with a vehicle, without going on your neighbor’s property. So I think that, you know, I understand that this is the way you really like it, and it looks good and it feels good, but in reality it’s way, way too close to the line. The request is substantial, and I think that you can achieve the same result without a variance, and so I’m going to be opposed to it. MR. ABBATE-Okay. Thank you very much. Do we have anyone else who’d like to volunteer for this? MRS. HUNT-I’ll go. MR. ABBATE-Would you please, Mrs. Hunt. MRS. HUNT-Yes. I have to agree with Mr. Bryant. I think that there are feasible alternatives and the five feet of setback, 50% is, it’s moderate to substantial, and I think these feasible alternatives should be addressed before asking for a variance. MR. ABBATE-Okay. All right. Brian, would you please comment. MR. CLEMENTS-Yes. I also believe I have to agree with Mr. Bryant. As I was out there looking at it, I was wondering, as a matter, why they didn’t put the garage in further and turn it around and come in from the other side. So I even think that, even beyond the three alternatives that we’ve discussed, there may even be a fourth one. So I would be opposed to this also. MR. ABBATE-Mr. McNulty, please. MR. MC NULTY-I hate to be a tagalong, but I’m going to be. I’ll agree. On the one hand, five feet is substantial because it’s five feet out of ten feet. On the other hand, five feet isn’t a great distance, but if it’s not a great distance, then it ought to be possible to either move the garage over five feet to angle it, do something different to put it into a compliant location. A 10 foot setback isn’t that much, and while the neighbor at the moment has got a huge side yard there, a variance is forever, as well as a well built garage, and who knows what somebody will want to do on the adjoining property in the future, whether it’s the current owner or a subsequent one. So I’m going to have to go along with the crowd on this and be opposed. MR. ABBATE-Okay. Thank you, Mr. McNulty. Mr. Underwood, please. MR. UNDERWOOD-I’m going to disagree with what everybody’s said so far, and I think there are valid points that have been made by the Board members, but I think that when we look at the 20,000 lots, this is an oversized lot. In most cases, everything is pretty much pinched in by the narrowness of those lots, and this is a bigger lot than what you usually see up there along in that area. I don’t think, you know, asking somebody, if you think about it in the context of most people when they drive home and they park their car in the garage, they drive straight down the driveway and into the garage and the car goes to sleep for the night, and I think in this instance here, I don’t think we need to make some weird jog in there and put the thing partially in the back yard of the house. I mean, I don’t know too many people that have been forced to put their garage in the back yard. This one’s already in the back yard, but I, frankly, if I were living there, would rather have mine off to the side, like where it is. I don’t think that the difference between 10 feet and 5 feet, even though it’s 50%, is that great, and I think that, you know, if you look on the other side of the house, the pool’s over there. That’s even closer to the property line, on the other side of the house. I think if you go up and down the streets over there, you can see numerous examples. Everybody’s used to being packed in. That’s the nature of these smaller lots, and I think if you changed the garage and you made it 24 by 28, you’d gain two feet. It would be seven feet. You’d only need three feet of relief at that point. That might be a feasible alternative to do that with a house, shrink the size of the garage slightly a little bit down. So I’m going to offer that as an example of something you might do. It doesn’t look like you’re going to get enough votes here to go for this tonight here, but I would say if you went to 24 by 28, I don’t know if people could live with that, then 5 (Queensbury ZBA Meeting 08/22/07) you’d only need three feet of relief. We could probably deal with this tonight, you know, because it would be asking for less relief than what was advertised, but I don’t know if that’s something that they want to discuss with the group. MR. BRYANT-I think you have to cut off the 24. It’s the 24 in width. MRS. HUNT-Yes, it’s the 24 that counts. MR. BRYANT-So you’d have to make it like 20. MR. UNDERWOOD-Yes, but I don’t see, I mean, 24, to me, is just about, I mean, that’s wide enough, that’s driving in a car, 24 is about what you need to park your car in the garage as far as width. Length wise I don’t think you would want the 30 feet going the other way, jogging, twisting the building around the opposite direction. I still think, when you come in a driveway, it’s nice to be able to drive straight down, you know, and I think the extension of the garage towards the house, behind the mobile home, that has no effect at all. So what you’re really looking at is where the side of the garage is going to be in relationship to the side property line. It’s the five feet that you’re talking about, and, you know, look at the shed in the back further back in the picture. That’s at seven feet. Are you really gaining that much by giving up two feet on the width of that garage? I mean, you’re going to have an overhang on the roof, too. So it’s going to stick out a little bit. MR. ABBATE-Okay. Thank you, Jim. Roy, please? MR. URRICO-Yes. This is going to be a cop out, because I sort of agree with everybody, but I think what we’re looking for is some sort of compromise at this point, because what we have to do is grant minimum relief. So we’re not convinced this is minimum yet. Have you considered a smaller garage, a narrower garage? Have you considered that at all? MRS. MOREHOUSE-We have a boat that we want to put in it as well. MR. URRICO-In addition to the two cars? MRS. MOREHOUSE-No, not in addition to the two cars, but he wants to be able to put the boat in for the winter to work on it, and the boat is like eight feet wide, 10 feet wide with the trailer. So that was the object of it being an over, you know, being oversized, because it’s also 25 feet long. MR. URRICO-So it’s possible it could be, we can negotiate a little bit on the width. MRS. MOREHOUSE-I think so, but I wouldn’t be able to answer that. My husband would have to answer that. MR. URRICO-All right. That’s where I am right now. MR. ABBATE-All right. Thank you. Mrs. Morehouse, generally I would say that when it’s reached this point, that your argument’s without merit, but let me state it a different way. Okay. If you listen to what the Board members had to say this evening, I think what they’re looking for is a little bit of negotiation. Okay. Now, you have a couple of alternatives I’m willing to entertain, and I certainly will honor those. You can, what’s called, table your request this evening, and if you say to me, I’d like to table my request, my variance, then what I will do then is move it to another month and request that you have certain information in by a certain date to the Zoning Administrator. Now what that does, that offers you and your husband an opportunity to listen to what was said, read what was said tonight, request a copy of the Staff, of the notes this evening, and read and come to some sort of negotiations, and then when you come back to us at another time, saying, okay, I thought about this and how about this, or whatever the case might be. Okay. Your other alternative is to say, I’d like to withdraw the appeal. I can’t give you advice. You’re the one that has to make the decision. MR. BRYANT-Could I ask a question? MR. ABBATE-By all means. MR. BRYANT-Listening to the other Board comments, is it possible to move the garage over three feet and request a 20% variance, as opposed to 50%? 6 (Queensbury ZBA Meeting 08/22/07) MRS. MOREHOUSE-I would say yes. MR. BRYANT-Why don’t we give her an opportunity to talk with her husband. Unless you feel you want to make decisions this evening. It’s entirely up to you. MRS. MOREHOUSE-Move it over so it’s? MR. UNDERWOOD-Move it three feet over. MR. BRYANT-Three feet over. I would vote in favor of a two foot variance. MRS. MOREHOUSE-Okay. So instead of the five foot it would be two foot? MR. BRYANT-So that means you would now be eight feet away from the property line. MR. ABBATE-Right. MR. URRICO-How would that work though with the driveway? MR. UNDERWOOD-No. I think it would just be a little bit more of a hook going over to the second bay, you know. If you’re going to work on the boat, you could back it straight down, almost straight down, and still get it in there. MRS. MOREHOUSE-Right, into the one. Right. Yes, I could move it back. MR. ABBATE-Would you like time to think about this? MRS. MOREHOUSE-No. MR. ABBATE-No. Okay. MRS. MOREHOUSE-No, I can live with that. MR. ABBATE-So you’re willing to negotiate that portion? MRS. MOREHOUSE-Yes. MR. ABBATE-Okay. I don’t have any problems with that at all. Okay. Well, that helps out considerably, then. Then we can take care of it this evening. I’m going to. MR. BRYANT-I don’t know about the other Board members. MR. ABBATE-Well, we’ll see, we’ll see what happens. The public hearing is now going to be closed for Area Variance No. 53-2007. PUBLIC HEARING CLOSED MR. ABBATE-And again, I respectfully remind the Board members of the task of balancing the benefit of the variance against the impact on the area, and about the five factors to take into consideration, and I remind you, again, that the appellant does not have to, you do not have to find in favor of all five factors. Now, having said that, it’s obvious that the appellant has agreed to some sort of negotiation. Is there any kind of a motion on Area Variance No. 53-2007? MR. UNDERWOOD-Do you want to re-poll first? MR. ABBATE-I can, if everybody’s comfortable with that. All right. Ladies and Gentlemen of the Board, before we do that, let me re-poll. The appellant has agreed to make certain stipulations, certain conditions. Let me go right down the line. Mr. McNulty? MR. MC NULTY-I’m going to stay where I was. I think there’s a compliant location for this garage, and I’m going to stand my ground. MR. ABBATE-Okay. Brian, please? MR. CLEMENTS-I would agree with eight foot. I would go along with it. MR. ABBATE-Okay. Let’s see now. Allan? 7 (Queensbury ZBA Meeting 08/22/07) MR. BRYANT-I would allow a two foot variance. MR. ABBATE-Okay, and, Jim? MR. UNDERWOOD-Yes, I’m fine with it. MR. ABBATE-Okay, and, Roy? MR. URRICO-Yes. I’m okay with it. MR. ABBATE-Okay. We need Mrs. Hunt. MRS. HUNT-Yes, I would go along with it. MR. ABBATE-Okay. Did I miss anybody? I, too, would go along with that as well, with an eight foot. Now, having said that, is there a motion, based on the negotiations, for Area Variance No. 53-2007? Would someone be kind enough to do a motion for me, please. MRS. HUNT-I’d just like to clarify what the relief would be now. MR. UNDERWOOD-Two feet. MR. BRYANT-Two feet. MR. ABBATE-Right, two feet of relief is now what the bottom line is. Okay. MRS. HUNT-Okay. I’ll make a motion. MR. ABBATE-Would you, please. MOTION TO APPROVE AREA VARIANCE NO. 53-2007 GAIL MOREHOUSE, Introduced by Joyce Hunt who moved for its adoption, seconded by Allan Bryant: 52 Pinello Road. The applicant proposes construction of a freestanding two car garage. The applicant requests two feet of relief from the 10 foot minimum side setback requirement of the SR-20 zoning district. The benefit to the applicant, she would be permitted to construct the garage in the preferred location. The feasible alternatives, we discussed the alternatives, and the applicant was amenable to moving it further from the property line, therefore requiring less relief. The request is two feet of relief from the 10 foot requirement and that would be 20% which would be minimal. I don’t think there would be any effects on the neighborhood or community, and it’s self-created only in the sense that the applicant wants to put in a two car garage, and as I said, she’d already been amenable to moving and making it more compliant. So I would request that we pass Area Variance No. 53-2007. nd Duly adopted this 22 day of August, 2007, by the following vote: AYES: Mr. Bryant, Mr. Urrico, Mrs. Hunt, Mr. Clements, Mr. Underwood, Mr. Abbate NOES: Mr. McNulty MR. ABBATE-The vote for Area Variance No. 53-2007 is six yes, one no. Area Variance No. 53-2007 is approved. Now, you understand what we’ve said this evening, you do? MRS. MOREHOUSE-Yes. MR. ABBATE-Okay. Thank you very much, madam. MRS. MOREHOUSE-Thank you. MR. ABBATE-You’re very welcome. AREA VARIANCE NO. 49-2007 SEQRA TYPE: II MANDY L. MANNEY OWNER(S): MANDY L. MANNEY ZONING: SR-1A LOCATION: 58 BURCH ROAD APPLICANT PROPOSES TO MAINTAIN EXISTING ABOVE GROUND SWIMMING POOL IN THE SIDE YARD. RELIEF REQUESTED FROM REQUIREMENT FOR PLACEMENT OF POOL IN THE REAR YARD. CROSS REF.: BP 07-264 WARREN COUNTY 8 (Queensbury ZBA Meeting 08/22/07) PLANNING: N/A LOT SIZE: 0.90 ACRES TAX MAP NO. 308.6-1-48 SECTION: 179- 5-020 MANDY MANNEY, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 49-2007, Mandy L. Manney, Meeting Date: August 22, 2007 “Project Location: 58 Burch Road Description of Proposed Project: Applicant proposes maintenance of an existing above ground pool. Relief Required: Applicant requests 78 feet of relief from the 113 foot minimum front setback requirement for a pool on this corner lot. Criteria for considering an Area Variance according to Chapter 267 of Town Law: 1. Benefit to the applicant: Applicant would be permitted to maintain the pool in the existing location. 2. Feasible alternatives: There appears to be significant areas available for a more compliant pool location. 3. Is this relief substantial relative to the ordinance?: The request for 78 feet of setback relief from the 113 foot requirement may be interpreted as substantial (69%). 4. Effects on the neighborhood or community: A petition of neighborhood support was submitted with the application materials. 5. Is this difficulty self-created? A review of the 2001 Aerial photo coverage shows that the pool had not yet been installed as of the Spring of 2001. The deed submitted with this application reveals that the applicant was an owner of this property in 1999. As such, the difficulty may be interpreted as self created. Parcel History (construction/site plan/variance, etc.): BP 2007-264 2520 sf residential addition issued: 5/30/07 BP 2007-364 Above Ground Pool pending Staff comments: The yard is in enclosed by a pre-existing stockade fence that appears to screen the pool from view from the streets. SEQR Status: Type II” MR. ABBATE-Would the petitioner of Area Variance No. 49-2007 please approach the table, speak into the microphone, and for the record identify yourself and your place of residence, please. MS. MANNEY-Mandy Manney, 58 Burch Road. MR. ABBATE-Okay. Now did you hear what I said to the young lady? MS. MANNEY-I did. MR. ABBATE-Okay, and so you understand our procedures then? 9 (Queensbury ZBA Meeting 08/22/07) MS. MANNEY-Yes. MR. ABBATE-So are you prepared to tell us why you feel you should support your appeal? MS. MANNEY-Well, we really do enjoy the pool. Other people in the neighborhood do enjoy the pool. It would be a lot of work to move the pool. MR. ABBATE-Okay. MS. MANNEY-And in the back yard where, the one spot that the pool would be, there is a lot of pine trees and that is where our leach field is. MR. ABBATE-Okay, and you heard what I said. Any time during the hearing, if there’s something you don’t understand or you want to add additional information, all you have to do is ask us. Okay. All right. Good. So right now you’ve concluded this portion of the hearing, you’re finished? Okay. Great. All right. Then I’m going to move on to the Board members and ask Board members if they have any questions concerning Area Variance No. 49-2007? MRS. HUNT-I have a question. MR. ABBATE-Okay. Let’s start with Mrs. Hunt, please. MRS. HUNT-Could you address the Staff’s comment that in the 2001 aerial photograph there was no pool? MS. MANNEY-I did hear that, and I don’t understand that either. The pool was there when we bought the home. I don’t know. MR. ABBATE-Excuse me, would you do me a favor, could you repeat that, your statement again please? I didn’t catch it all. MRS. HUNT-Well, in the Staff comments, they said a review of the 2001 aerial photo coverage shows that the pool had not yet been installed as of Spring of 2001, and the deed submitted with the application reveals that the applicant was the owner of this property in 1999. I was just wondering if she could clarify that. MS. MANNEY-I do. I don’t know. I’m not sure what to tell you. The pool was there when we bought the home. I don’t understand that either, and I don’t know what to say. MR. ABBATE-Okay. Let’s stop right here and attempt to clear that up. First of all, let me make sure I understand your position. You purchased the home, correct? And when you purchased the home the pool was there? MS. MANNEY-Yes. MR. ABBATE-So you’re a little confused with this statement, correct? MS. MANNEY-I am a little confused with that. MR. ABBATE-Okay. Totally confused. Now I’m going to turn the Zoning Administrator and ask the Zoning Administrator to clear this up for us if you would, please. MR. BROWN-I knew you were going to do that, and I’m trying to get the aerial photo viewer up here and as fate would have it, it doesn’t want to come up here. I had the 2004 up on the screen. MR. ABBATE-Well, you can do a verbal, Craig. MR. BROWN-Yes. I wrote the notes, and I compared, as we do with many, most Staff Notes, historical information, did some comparisons, and it doesn’t show up on the aerial photos that we have dated 2001. I’ll keep working and try and get it up here to show you. MR. ABBATE-Okay, and we’ll continue on and then when you’re ready just yell out, okay. MR. BROWN-I will do that. 10 (Queensbury ZBA Meeting 08/22/07) MR. URRICO-As long as we have Craig answering questions, I’m just curious as to how we came about to identify this as needing an Area Variance, since it’s been installed for a number of years. MR. BROWN-Yes. I believe, during the course of one of the inspections for an addition that they’re putting on the house. MS. MANNEY-Foundation. MR. BROWN-Yes, one of the Building Inspectors was there and said, hey, and that started the process. MR. BRYANT-Mr. Chairman? MR. ABBATE-Yes. MR. BRYANT-I just want to clear up, because the deed is a little bit complicated, all these Manney people. You purchased the property, I guess it’s you and your husband. MS. MANNEY-My dad. MR. BRYANT-Okay, purchased the property from Dorothy in 1999. Dorothy is your mother? MS. MANNEY-No. I didn’t know her. MR. BRYANT-It was a stranger. Okay. So you’re saying when you bought the property in 1999 there was a pool there? MS. MANNEY-Yes, there was. MR. BRYANT-The same pool. MS. MANNEY-Yes. MR. BRYANT-Okay. Mr. Chairman, did you grant a, because I see that there is a survey in here, but from 1979, 20 years before this individual even bought the property, and my question is did you grant some kind of a waiver for this survey? MR. ABBATE-I don’t recall granting a waiver. MR. BROWN-No. I think the survey was accepted. It’s a signed, stamped survey. MR. BRYANT-Yes, but it’s accepted in 1979. So you didn’t grant a waiver. So this is an acceptable survey? Because in reality, you know, if a survey was done at the time of the purchase, which normally. MR. ABBATE-Well, let me ask, do you have a current survey? MS. MANNEY-I don’t. No, I do not. MR. ABBATE-You don’t. Was a survey conducted at the time of purchase do you recall? MS. MANNEY-I’m not sure. MR. BRYANT-So if we had that survey, it would probably show the pool, if the pool existed, and we’d know. So my question, again, is I don’t see a letter requesting a waiver, that’s part of the application process. This survey was filed on February 8, 1979, 20 years before you bought the property. So we have no way of knowing whether you’re correct or the GIS thing is correct or whatever is correct. MRS. HUNT-I have a comment, too, about that. I find this very confusing, this survey. MR. BRYANT-Yes, because there are notations in 1980 about some other, whatever. It is confusing. MR. ABBATE-Okay. You have an excellent point, ladies and gentlemen. I’ve been struggling with this for a while. So what I’m going to ask the Board to do is this. Give me some guidelines, how late do you want me to accept a survey? What’s the latest? 11 (Queensbury ZBA Meeting 08/22/07) Because I’ve been, as a matter of fact, I think Craig and I talked about that, about how long is a late survey, 1901, do you want it in 1976? Give me a timeframe in which you feel we should accept a survey. MR. BRYANT-No, I think, you know, frankly, you know, it should be on a case by case basis, and that’s, and the reason is if this individual had a survey done at the time of her purchase, it would have probably shown all the accessory structures, and this would answer the question. MR. ABBATE-Yes, but you have to understand that during that time, Staff Notes were not written at that time. MR. BRYANT-It doesn’t matter. It doesn’t matter because the Staff Notes wouldn’t change because according to the GIS photo, whatever, it shows that there wasn’t a pool, but my point is that a survey done at the time of purchase would prove that this pool was indeed there in 1999. MR. ABBATE-I understand. You have a point. MR. BRYANT-So I think it’s a case by case basis. There are some things that they’re going to do a little odd and end, and, you know, a survey is not necessarily. MR. ABBATE-The only alternative that we have is to request these folks to do a survey, and table it until a survey comes in. MR. BROWN-Maybe if I can shed a little light on this. I think what you want to make sure the survey has is current conditions. It could be ten years old. If nothing’s changed on the site, the survey’s fine. MR. BRYANT-Exactly. That’s the point I was trying to make. You’re right. MR. BROWN-And what’s a survey going to do for you today? It’s going to show you the pool’s there. It’s not going to tell you what was there 12 years ago or whenever it was. MR. URRICO-At this point the survey doesn’t do us any good. If there was a survey at the time of purchase, or before 2001, you know, that it would show that. MR. BRYANT-Yes, that the pool pre-existed. MR. ABBATE-This is the only survey that you have. Is that correct? MS. MANNEY-Yes, that is. MR. ABBATE-Yes. MR. BROWN-For the record, this is the photo that I looked at. This is the 2001 aerial photo. MR. BRYANT-Can you get up and show us? MR. ABBATE-Show us. MR. BROWN-Where the cursor is right there, that’s where the pool location is right now. MR. BRYANT-Where? MR. URRICO-How do we know it’s 2001? MR. BROWN-Because that’s what it says on the information that we got from the photos. That’s when they came in, in 2001. MR. URRICO-But we don’t know if they were actually taken in 2001 or it was supplied to us in 2001. MR. BRYANT-Is the date on the bottom in the corner? I can’t read it. MR. BROWN-No. MR. BRYANT-Where is the date that says it’s 2001? 12 (Queensbury ZBA Meeting 08/22/07) MR. BROWN-Probably in the meta data someplace. I don’t know if I can get to it here, but I can look while we’re here tonight. MR. ABBATE-Yes, would you, please. MR. BROWN-Yes. MR. ABBATE-That way there at least that will resolve that, instead of raising another question. MR. BROWN-The photos that we have are taken in the year, and if you need that level of proof, we can certainly supply it. MR. ABBATE-So what we’re looking for is an aerial photograph, if you will, in 2001. MR. BROWN-Right. MR. ABBATE-And in 2001, it indicates that there is no pool. Correct? MR. BROWN-That’s what this photograph indicates, correct. MR. ABBATE-Okay. Now, here we have, so we have a Zoning Administrator with official documents indicating to us, and he’s going to verify it, that in 2001 there was an aerial photograph taken, which indicated that the property that you currently reside in did not have a pool. On the other side of the argument, what you’re basically saying is this. When you purchased that home, there was, in fact, a pool there. Now, I have a question for you. Do you have any kind of documentation? MS. MANNEY-Right now I’m rebuilding the home. So everything that, there’s nothing in my house right now. Everything is in storage. I imagine that if I look through all my paperwork, there should be something. I mean, when the, I can’t remember the lady’s name, but we went through a realtor, and it definitely said that there was a pool there. I’m not going to say for sure that I have that, but I would say I did keep the big folder with all my paperwork and everything in it. I could look for that, hopefully soon, when my house is done. It’s just everything. Everything right now is in storage. MR. ABBATE-When did you purchase the home? MS. MANNEY-In ’99. MR. ABBATE-What year, 1999? MS. MANNEY-Yes. MR. ABBATE-You and your dad, is that correct? MS. MANNEY-Yes. MR. ABBATE-And in 1999, you indicate that there was a pool there? MS. MANNEY-Yes. MR. ABBATE-That’s the identical pool that you’re referring to? MS. MANNEY-Yes. MR. ABBATE-And you believe that you may have documentation that may support that? MS. MANNEY-Possibly. MR. ABBATE-Possibly. MS. MANNEY-There is a possibility. MR. URRICO-Mr. Chairman? MR. ABBATE-Yes, please. 13 (Queensbury ZBA Meeting 08/22/07) MR. URRICO-Could I just put a different spin on this? MR. ABBATE-Sure. MR. URRICO-Let’s say, for the sake of argument, the pool has been there since 2001. That still brings us to the same position we’re at right now. MS. MANNEY-That is true. MR. URRICO-We have a pool in basically the second front yard. We’ve had this situation before. Whether it’s self-created or not, it would be self-created if she decided that she wanted a pool there. So, if this represents one of the criteria, you instruct us many times not to consider just one of the criteria as the overriding factor. MR. ABBATE-You’re absolutely correct, Mr. Urrico. MR. URRICO-So we’re still dealing with a pool in a side yard because it’s on a corner lot. MR. ABBATE-Yes. MR. BRYANT-Yes, but I just want to add something to that. Is that okay, Mr. Urrico? MR. URRICO-Yes. MR. BRYANT-Okay. The way I look at it is very simple. If the applicant came to us and asked for 70% of relief, I would naturally not be in favor of it, if it were new construction. However, if the applicant came to us and she bought the property in 1999 and that pool had been sitting there since 1999, I would have to view it a little bit different, okay, because the pool was existing when she bought the property, you know, kind of like out of her control. We couldn’t very well ask her to move the pool now, if it’s been there prior to the time that she purchased the property. Do you understand what I’m saying? MR. URRICO-Yes. I understand. MR. BRYANT-So I’d look at it a little bit differently, and I would just like some kind of verification that that photograph was taken in 2001. MR. BROWN-I can get it for you. I don’t know if I can get it for you tonight. MR. ABBATE-That’s okay. Here’s my recommendation ladies and gentlemen. We have two things going. The Zoning Administrator indicates that he can get a date for us, and yet we have the appellant indicating that she may have documentation which will substantiate the fact that the pool has been there when you purchased the home. So here’s what I would like to do. I would like to table this, folks. MR. UNDERWOOD-Can we have a little more discussion? MR. ABBATE-Absolutely. MR. BRYANT-I want to add something. MR. URRICO-Can I ask one more question? MR. ABBATE-Absolutely, Roy. MR. URRICO-Did you purchase the property in 1999 but not move in until later? MS. MANNEY-No. MR. URRICO-You moved in right away? MS. MANNEY-We moved in pretty soon after. MR. URRICO-Okay. MR. BRYANT-I want to add something to this, Mr. Urrico, because this is kind of important. You see, if, in fact, that photograph is 2001 and the pool was not there, that means that the owner, the applicant, was the one who installed the pool, okay. So that’s in a scenario that sheds a completely different light on it, too. Okay, because the 14 (Queensbury ZBA Meeting 08/22/07) applicant is directly responsible for the current condition, and it’s not a situation that she bought the house and the pool was there and she had no control over it and she thought everything was legal and copasetic. You understand what I’m saying? MR. URRICO-I understand that. We also deal with situations where people put in pools and come to us after the fact. MR. BRYANT-Absolutely. You see, that’s the way, there’s really three different shades to look at this. So my personal opinion is that the thing should be tabled until we can verify the actual. MR. ABBATE-Well, I would feel better, ladies and gentlemen, because certainly that would provide the appellant with due process. MR. UNDERWOOD-Can I add something? MR. ABBATE-By all means, go right ahead, Jim. MR. UNDERWOOD-We’re dealing, here, with a typical corner lot situation, which we do on a regular basis, and I think if you look at where the pool is, regardless of when the pool was put there. If somebody were coming in tonight and asking us for a pool, there was nothing on this lot, you’ve got to look at the setbacks. From Burch Road, the setback from the property line is 55 feet. From the Warren Lane one it’s 35 feet, and you’ll recall that one we just had just a few, like maybe two months ago. We had that one that was over, located off of Garrison Road, you know, that fancy part of Town over there. Those people were upset because it was going to be 20 or 25 feet from the property line. I think that you’ve got to look at it in the context of is it improper. I mean, the six foot privacy fence is there. Warren Lane is not a major thoroughfare. It’s a back street. Burch Road’s a back street, too. I mean, it’s not like they’re major traffic passing back and forth, the pool’s going to be any problem there. I really think we should look at it. I mean, it’s an important point of view when the pool was put in, probably, but, nonetheless, if the pool’s been there since 2001, 2004, it’s been years since anybody even noted that the pool was there, you know. I don’t know whether there’s a Statute of Limitations on you can go back and bang anybody who puts something in illegally at any point in time. I’m not sure how that applies in this instance here. MR. ABBATE-Let me go on the record, and I think if my recall is correct, I think it’s three years. Help me out, Counselor. MR. FULLER-It depends. It’s not always three years. It’s usually six. MR. ABBATE-Yes, that’s what I’m afraid. MR. FULLER-But it’s moot anyway. MR. ABBATE-You’re right. Okay. MS. MANNEY-I would also like to say that it would be really great to get this taken care of tonight, because I’ve really got a lot of stuff going on, too, and I don’t know for sure that I can find the paperwork, especially with everything right now, because as I said, my house is completely under construction. MR. ABBATE-Well, let me ask you this question. Do you have neighbors that still reside there, prior to you moving in, purchasing the property? MS. MANNEY-The Connellys. MR. ABBATE-Say again? MS. MANNEY-The Connellys, right next door. MR. ABBATE-Maybe you should ask them, or maybe request them to submit something in writing to you which you could present to us. MS. MANNEY-I could do that. MR. ABBATE-That would certainly help your position, but you have to understand now, you have an opposition, because the Zoning Administrator may very well be able to show beyond a reasonable doubt that this photograph was taken in 2001, and if that’s 15 (Queensbury ZBA Meeting 08/22/07) the case, then we’re going to have to make a decision. If you can show us, and you can show us some documents that substantiate this, as Mr. Bryant says, that throws an entirely different picture on this whole thing. MS. MANNEY-I understand that. MR. UNDERWOOD-I would make a suggestion, too. You must have neighbors that have recently moved in to the neighborhood, all right. I don’t know if any of those are adjacent to your property, because most times when you purchase a new property, you have to have a survey done for the bank. MS. MANNEY-The guy who recently moved in, that is actually his tax map that they gave him when he bought the property after me, not too long ago. So, that’s where I got that from. MR. FULLER-One quick thought to toss out there for you. Did you say you worked with a broker? Was this listed on the market when you bought it? MS. MANNEY-Yes, yes it was. MR. FULLER-If you remember who the broker was, to give you guys some background, you may be able to pull that, still, off the MLS system, believe it or not, it may still be there. MS. MANNEY-I can look. MR. ABBATE-Counselor is correct. However, we don’t have an investigatory jurisdiction. That would have to be your responsibility. The burden of proof falls on you, not this Board to provide that. MS. MANNEY-Okay. MR. ABBATE-So that’s an outstanding recommendation, okay. MS. MANNEY-Okay. MR. ABBATE-While we’re here, do any Board members have any other questions they’d like to ask Ms. Manney? MR. UNDERWOOD-No, I think we should go ahead and table it. MR. ABBATE-All right. Well, I don’t want table it yet. I’m going to open up the public hearing. Okay. Let’s do it by the numbers. That way there, in case something goes wrong, Counsel can. MR. FULLER-Craig brings up a good point. MR. ABBATE-What’s the point, Craig? MR. BROWN-I don’t want to belabor this, and you said that I’m presenting an opposition. I’m not opposed to this. I’m just trying to present the facts to you guys to decide. MR. ABBATE-No, no. MS. MANNEY-Craig thinks I should be able to keep it. MR. BROWN-And my point is, she brings in documents to show the pool is there. There’s a document to show that the pool wasn’t there. What you’re dealing with today and what’s there today is a different pool than was there in ’99, or a pool that was in the garage and got put back up. There’s clear indication that there was some period of time when the pool wasn’t there. So there may have been a pool there when she bought it. There was a period of time when there was not a pool, in this photo, and now there’s a pool there. So something happened in there. Regardless of what happened, the issue on the table is does the pool that’s there right now in violation present any problems, is it okay to give a variance. I mean, regardless of how it happened, that’s what’s on the table right now. I don’t know, maybe they replaced it. MR. ABBATE-Brian, please. 16 (Queensbury ZBA Meeting 08/22/07) MR. CLEMENTS-I’d like to just, you said that that aerial photo was done during that year. Now that’s a 12 month period. MR. BROWN-It’s usually April when there’s no leaves on the trees, Springtime, no snow, no leaves, April. MR. CLEMENTS-Okay. MR. ABBATE-I think, anybody else have any comments before I open this up? Mr. Bryant. You had a comment? MR. BRYANT-Well, I understand what Mr. Brown is saying. MR. ABBATE-I do, too. MR. BRYANT-However, with all due respect, the applicant claims that the pool was there in 1999 when she bought it. I would feel completely different, if an individual bought a piece of property, with a pool that was there, regardless of what the condition was, because, in reality, was it self-created? No, it wasn’t self-created. The pool was pre- existing, okay. So I would look at it a little bit differently than an applicant that came, after the fact, put an illegal pool up, without a permit, in an illegal location, requesting 70% of variance. I would look at it a little bit different. MR. UNDERWOOD-Let me just ask the applicant. Do you guys have picture albums at home? MS. MANNEY-Yes. MR. UNDERWOOD-Okay. Go back in your picture albums when you were a little girl, a picture from 1999. They’ve all got dates. MS. MANNEY-Well, I wasn’t a little girl. MR. UNDERWOOD-Well, I’m just saying, 1999, you were younger than you are now. MS. MANNEY-I could look. I could definitely look for that. They do have them on the back. MR. UNDERWOOD-Okay. Most pictures have dates stamped on the back of them. MS. MANNEY-I do take a lot of pictures. MR. UNDERWOOD-You’re going to have pictures of pool parties, birthday parties at the pool. Dig some out. MR. ABBATE-Okay. Now let me take another stance here. Why is this so important to me? It’s important to me because we have to base a decision on the evidence contained in the record. If you can come up with evidence which can substantiate your position, okay, that would change things a heck of a lot. MS. MANNEY-Okay. MR. ABBATE-Now, the Town Attorney has made an outstanding recommendation, suggested that you check with the service that you purchased this home from, because it will list, if there’s a pool there, it will list that pool, and if you can photocopy that thing and present it, I’ll give you a date to present it. MR. MC NULTY-Mr. Chairman, if it was listed, it doesn’t necessarily mean that they listed the pool, even a pool existed. Now, as a matter of fact, the property was listed on October 21, 1998. It was sold, or closed, on June 28, 1999. Your agent was Jane Potter. MS. MANNEY-Probably. Jane Potter, that was her name. MR. MC NULTY-From Realty USA. MR. BRYANT-Does it say anything about the house? 17 (Queensbury ZBA Meeting 08/22/07) MR. MC NULTY-It says some things about the house. I don’t see any reference, on this sheet, at least, for a pool. What I’ve got up is the listing sheet from the MLS. MS. MANNEY-I was hoping for that. MR. MC NULTY-It says fenced yard, breakers, dead end street, great starter home, may be able to subdivide with a variance, and that’s essentially what’s on this sheet. That doesn’t mean that there might not have been some other sheets provided. MR. ABBATE-Okay. MS. MANNEY-I could still look. MR. MC NULTY-But it’s there, and, again, you might catch up with Jane Potter. You might be able to do something. She might have some other sheets or fliers that she’d done on the property, just not, you know, in the computer program in the MLS. MS. MANNEY-Okay. MR. ABBATE-Thank you very much, Mr. McNulty. That’s been a tremendous help. Okay, folks. Let me do this, then. Let me open up the public hearing, because we have a procedure we want to go through here. Let me open up the public hearing for Area Variance No. 49-2007. Do we have any members of the public who would like to address this? If so, would you raise your hand please? PUBLIC HEARING OPENED MR. ABBATE-I see no members of the public here. Well, we’ve had our discussion, ladies and gentlemen of the Board, and if you’ll give me a position, I’ll be more than happy to note it and then we can go from there. MR. UNDERWOOD-The other thing on the picture that’s included in our packets, it says map created, copyright 1992 to 2002. I’m assuming it could be any of those years. MR. BROWN-What’s that? MR. UNDERWOOD-The picture of the map. It says copyright 1992 through 2002. So I’m just guessing, you know, say that picture was 199, you know pre-dated their getting. MR. BROWN-It’s probably a reference to a version of the software that created the photo, not in relation to the photo at all. MR. UNDERWOOD-Right. Sure. MR. BROWN-Yes, ARC IMS, that’s the copyright date for the software. MR. UNDERWOOD-I didn’t know. MR. ABBATE-Okay, folks, let me go down the line, and go through this procedure and then we’ll move on. Let me start with Mr. Bryant, please, if I may. MR. BRYANT-Well, I think I’ve already stated my position. My position, primarily, is I’d like to know when the pool was actually installed. If this applicant was responsible for installing the pool, or whether it was pre-existing, and then I can make a decision. MR. ABBATE-Would you favor tabling? MR. BRYANT-I would absolutely table it. MR. ABBATE-Okay. Thank you. Mrs. Hunt, please. MRS. HUNT-I have to agree with Mr. Bryant. MR. ABBATE-Okay. You favor tabling as well? MRS. HUNT-Yes, I do. MR. ABBATE-Okay. Mr. McNulty, please. 18 (Queensbury ZBA Meeting 08/22/07) MR. MC NULTY-I think I also favor tabling. I think Staff has got a point, that whatever pool might have existed in 1999, especially if it was an above ground pool, probably doesn’t exist today. I think probably what’s there is some kind of a replacement, but nevertheless, you know, right now, I would be leaning towards being opposed, and if I could be convinced, yes, there was a pool there and there was reasonable presumption on the part of the applicant that it was okay to have it there for that period of time, that that could sway. MR. ABBATE-Okay. Thank you. Let’s see, Mr. Clements, would you be kind enough, please. MR. CLEMENTS-I would vote to table it also. MR. ABBATE-Okay. Mr. Underwood, please. MR. UNDERWOOD-I would vote to table it, but I think we should ask for specific proof that the pool has been there, in other words, i.e. there’s got to be some pictures you’ve got in a picture album dating back to near 1999 or 1999. MS. MANNEY-What happens if I can’t find anything? MR. UNDERWOOD-Well, you’ve got to have something. I mean, nobody buys a piece of property doesn’t have a picture ever of their backyard. MS. MANNEY-I definitely will look. MR. UNDERWOOD-Check with relatives. MS. MANNEY-We did, yes, I will. MR. ABBATE-More specifically, we need documentation to substantiate your position that when you purchased that home there was, in fact, this pool there. That’s what Mr. Underwood is saying. You understand what I’m saying? MS. MANNEY-I definitely understand. MR. ABBATE-Okay. Mr. Urrico, would you favor tabling? MR. URRICO-I guess I would, but I think we’re going to end up in the same position we’re in tonight, which is not being able to determine whether it’s that pool or a pool, whatever. So they’re going to end up what we have right now. So ultimately we’re going to have to make a decision based on what is there right now. MR. UNDERWOOD-And I would agree with that. MR. BRYANT-But I think in the wording of the tabling motion, Mr. Chairman, that we should be specific, that we’re looking to show that this pool pre-dated this pool, not another pool. This is not replacement pool. This is the pool that existed prior to the applicant purchasing the property. MR. ABBATE-That’s an outstanding position, Mr. Bryant, and I’m going to request that you do the motion. MR. URRICO-So we need two pictures then. We need a current picture and we need a picture of what it will look like back. MR. BRYANT-No, we have a current picture already. MR. URRICO-Yes, but getting something listed in the MLS is not going to tell us that that pool. MR. BRYANT-That particular pool, you’re correct. You’re right, and Mr. Underwood makes a very good point, you know, a picture album is a perfect place to look. So if you’ve got a picture album. You had a pool party at one time. You bring that picture in. They make copies of it, and then we have proof that this is the same pool that you’re showing in the application, and we know that you had nothing to do with the placement of the pool. 19 (Queensbury ZBA Meeting 08/22/07) MR. ABBATE-And of course we’re going to request the Zoning Administrator to provide some sort of documentation that it was taken in 2001. All right. Now, would you like, since you were very, very good at bringing this up, would you be kind enough to do the motion? MR. BRYANT-I think, basically I’d be happy to do the motion, simply because I just want to emphasize that if the applicant had brought in a survey that was conducted at the time of purchase, a recent, a relatively recent survey, even if it was a year after the purchase, we would know that that pool was there, because it would be plotted on the survey, because it’s an accessory structure. So I think, somewhere along the line, we missed the survey aspect of the application, and that would have solved this problem. Yes, I’m ready. MS. MANNEY-Maybe we need to do that, make sure everyone is surveying their land. Is there a requirement to have your land surveyed when do that, when you buy a house? MR. ABBATE-Yes, a survey is definitely required. Absolutely, that’s part of the procedures. MR. BROWN-No, no, a survey’s required for a variance. Is a survey required when you buy, that’s up to. MR. ABBATE-No, no, not when you purchase. No, for this appeal, for this Board, a survey is definitely required. MS. MANNEY-That’s what I meant. No, I was asking when you buy. Well, would you do a motion to table, would you mind? MR. BRYANT-Sure. MOTION TO TABLE AREA VARIANCE NO. 49-2007 MANDY L. MANNEY, Introduced by Allan Bryant who moved for its adoption, seconded by Joyce Hunt: th 58 Burch Road. We want the information by no later than the 15 of September to the Zoning Administrator, and on the agenda for the first meeting in October. What we’re looking for, specifically, is documentation, either in the form of a document or a photograph, or survey, that dates around the time of your purchase of the property to indicate that the photograph that we have in the current application is the identical pool to what existed at the time or around the time that you purchased, prior to the 2001 aerial photograph. So either documentation, some sort of documentation, some sort of photograph, something of that nature, a pool party or something at your birthday, whatever. Something to show the date. nd Duly adopted this 22 day of August, 2007, by the following vote: MS. MANNEY-I have one more question. What if I have a picture in the Year 2000? MR. UNDERWOOD-That’s fine. MR. BRYANT-That’s close. MR. ABBATE-Bring it in. MS. MANNEY-That’s fine. Okay. AYES: Mrs. Hunt, Mr. Clements, Mr. McNulty, Mr. Urrico, Mr. Underwood, Mr. Bryant, Mr. Abbate NOES: NONE MR. ABBATE-The vote to table Area Variance No. 49-2007 is seven yes, zero no. You understand, of course, the information in the motion is to be submitted to the Zoning th Administrator no later than the 15 of September 2007, and you will be scheduled for an October hearing. MS. MANNEY-Yes. 20 (Queensbury ZBA Meeting 08/22/07) MR. BRYANT-One other question. I want to make sure that the Zoning Administrator is clear, we’re looking for some kind of documentation, something to show that that particular file is what you say it is. MR. BROWN-Absolutely. MR. ABBATE-Fair enough. MR. BRYANT-That should be easy enough. MR. ABBATE-Fair enough. Thank you very much. MS. MANNEY-Thank you. MR. ABBATE-I have one other administrative item here, folks, and then we’re going to go into a short Executive Session. APPROVAL OF MINUTES July 18, 2007 MOTION TO APPROVE THE QUEENSBURY ZONING BOARD OF APPEALS MEETING MINUTES OF JULY 18, 2007, Introduced by Charles Abbate who moved for its adoption, seconded by Allan Bryant: nd Duly adopted this 22 day of August, 2007, by the following vote: AYES: Mr. McNulty, Mr. Urrico, Mrs. Hunt, Mr. Bryant, Mr. Abbate NOES: NONE MR. ABBATE-The vote to approve July 18, 2007 Zoning Board of Appeals minutes is five yes, zero no. They are approved. July 25, 2007 MOTION TO APPROVE THE QUEENSBURY ZONING BOARD OF APPEALS MEETING MINUTES OF JULY 25, 2007, Introduced by Charles Abbate who moved for its adoption, seconded by Allan Bryant: nd Duly adopted this 22 day of August, 2007, by the following vote: AYES: Mr. McNulty, Mr. Urrico, Mr. Underwood, Mr. Bryant, Mrs. Hunt, Mr. Clements, Mr. Abbate NOES: NONE MR. ABBATE-The vote is seven yes, zero no. The minutes of the meeting of July 25, 2007 Zoning Board of Appeals is approved. Now, ladies and gentlemen, I’m going to move another motion. MOTION TO GO INTO EXECUTIVE SESSION, Introduced by Charles Abbate who moved for its adoption, seconded by Brian Clements: nd Duly adopted this 22 day of August, 2007, by the following vote: AYES: Mr. Clements, Mr. Urrico, Mrs. Hunt, Mr. Garrand, Mr. McNulty, Mr. Underwood, Mr. Abbate NOES: NONE MOTION TO COME OUT OF EXECUTIVE SESSION, Introduced by Charles Abbate who moved for its adoption, seconded by Brian Clements: nd Duly adopted this 22 day of August, 2007, by the following vote: AYES: Mr. Clements, Mr. Urrico, Mrs. Hunt, Mr. Garrand, Mr. McNulty, Mr. Underwood, Mr. Abbate 21 (Queensbury ZBA Meeting 08/22/07) NOES: NONE A MOTION WAS MADE, AFTER EXECUTIVE SESSION WAS ADJOURNED, AS FOLLOWS: MOTION TO DIRECT THE QUEENSBURY TOWN COUNSEL TO WITHDRAW THE NOTICE OF APPEAL REGARDING NOTICE OF APPEAL NO. 1-2004 EAST SLOPE HOLDINGS, L.P. ROCK IT PAINT BALL, Introduced by Charles Abbate who moved for its adoption, seconded by James Underwood: nd Duly adopted this 22 day of August, 2007, by the following vote: AYES: Mrs. Hunt, Mr. Underwood, Mr. Clements, Mr. Urrico, Mr. Garrand, Mr. McNulty, Mr. Abbate NOES: NONE On motion meeting was adjourned. RESPECTFULLY SUBMITTED, Charles Abbate, Chairman 22