2007-08-29
(Queensbury ZBA Meeting 08/29/07)
QUEENSBURY ZONING BOARD OF APPEALS
SPECIAL MEETING
AUGUST 29, 2007
INDEX
Area Variance No. 29-2007 Irish Bay Partners, LLC c/o John Lefner 1.
Tax Map No. 227.10-1-1, 2, 3
Notice of Appeal No. 6-2007 Steven Seaboyer 20.
Tax Map No. 227.13-2-36
Use Variance No. 54-2007 Pet Lodge/130 Big Boom Road, LLC 37.
Tax Map No. 296.20-1-43
Notice of Appeal No. 5-2007 Community Work & Independence, Inc. 51.
Tax Map No. 297.12-1-3
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.
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(Queensbury ZBA Meeting 08/29/07)
QUEENSBURY ZONING BOARD OF APPEALS
SECOND REGULAR MEETING
AUGUST 29, 2007
7:00 P.M.
MEMBERS PRESENT
CHARLES ABBATE, CHAIRMAN
JAMES UNDERWOOD, SECRETARY
ROY URRICO
JOYCE HUNT
ALLAN BRYANT
RICHARD GARRAND
CHARLES MC NULTY
ZONING ADMINISTRATOR-CRAIG BROWN
STENOGRAPHER-MARIA GAGLIARDI
MR. ABBATE-Good evening, ladies and gentlemen and welcome to the Town of
Queensbury Zoning Board of Appeals hearing dated 29 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 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, I’m going to ask you if you would
please monitor the time, and do we have any correspondence, Mr. Secretary, that should
be read into the record? If so would you be kind enough to do so, please.
MR. UNDERWOOD-None right now.
MR. ABBATE-None right now. All right.
AREA VARIANCE NO. 29-2007 SEQRA TYPE: II IRISH BAY PARTNER LLC c/o
JOHN LEFNER AGENT(S): JONATHAN C. LAPPER, ESQ./LA GROUP OWNER(S):
H.W. FISCHER INC. c/o HOWARD W. FISCHER, JR. ZONING: WR-1A LOCATION:
BEAN ROAD APPLICANT PROPOSES DEVELOPMENT OF A 17-LOT RESIDENTIAL
SUBDIVISION STRADDLING THE TOWN OF QUEENSBURY/TOWN OF FORT ANN
LINE WITH 6 PARCELS WITHIN THE TOWN OF QUEENSBURY. RELIEF
REQUESTED FROM THE MINIMUM LOT SIZE, LOT WIDTH, AND MINIMUM ROAD
FRONTAGE REQUIREMENTS. ADDITIONALLY, RELIEF WILL BE NEEDED FROM
THE DOCK REQUIREMENTS OF THE TOWN CODE. CROSS REF.: IRISH BAY
PARTNERS, LLC SUBDIVISION BP 95-053; BP 93-034; BP 92-022 WARREN
COUNTY PLANNING: APRIL 11, 2007 ADIRONDACK PARK AGENCY: YES LOT
SIZE: 9 ACRES +/- TAX MAP NO. 27.10-1-1, 2, 3 SECTION: 179-5-050; 179-4-090;
179-4-030
JON LAPPER & KEVIN FRANK, REPRESENTING APPLICANT, PRESENT
MR. UNDERWOOD-We did have some submittals that were sent in to us and regarding
that, there was also a letter that was sent in at that time, and I think what I’ll do is read
this letter in because it explains what we received.
MR. ABBATE-Fine.
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(Queensbury ZBA Meeting 08/29/07)
MR. UNDERWOOD-RE: The Irish Bay Community On behalf of the applicant and
pursuant to the request to the ZBA at the meeting in July, we have met with the Town
Zoning Administrator, Craig Brown, to review his comments in the July staff notes and
we are hereby submitting a revised plan which addresses both the issues raised by the
Board concerning the overall number of boat slips, as well as the Code issues raised by
Mr. Brown. The total number of boat slips is being reduced from the current 45 to 40.
These 40 slips include two slips for each of the 17 homes, two slips for Larry Fischer,
which is a requirement of the Real Estate Purchase Contract, and four slips for guests of
the homeowners. We have revised the property lines along the shoreline so that the
docks for Lot QB2 and QB3 comply with the 20 foot property line setback and we have
provided more than the required shoreline for contractual access for the 16 parties (15
homeowners plus Mr. Fischer) who will have the right to use the docks. While we
believe, as a matter of law, that the existing 45 slip marina is grandfathered and may
remain in perpetuity, the applicant is willing to reduce the number of slips to 40 in order
to satisfy the members of the Zoning Board. For the record, please note that our legal
position is based upon the fact that the existing marina and the marina for proposed
project would both be considered a “commercial dock” under the definitions in the Town
Zoning Code. Under the redevelopment plan, the commercial dock will be owned by the
Homeowners Association. We therefore believe that the only variance required from the
Zoning Board of Appeals is for lack of frontage on a Town road for the Queensbury lots.
The members of the Zoning Board have indicated their willingness to grant this variance
at the July meeting. I trust that the members of the Board will recognize that this
submission is intended to reduce the use of the dock facility as a constructive
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compromise. We look forward to presenting the project at your August 29 meeting.
Very truly yours, Jonathan C. Lapper, Esq.”
STAFF INPUT
Notes from Staff, Area Variance No. 29-2007, Irish Bay Partner LLC c/o John Lefner,
Meeting Date: August 29, 2007 Project Location: Bean Road Description of Proposed
Project: The Applicant proposes a residential subdivision consisting of 17 home sites all
of which will contain docks. The project has a total acreage of 97.7 acres (in both Towns
- Queensbury and Fort Ann). [The site was previously used by Fischer’s Marina.} The
property in the Town of Queensbury is subject to the zoning requirements of WR-1A
District.
The Applicant is requesting a subdivision of 4 lots in the Town of Queensbury—3 single
Family building lots and 1 non-building lot. The property straddles the Town of
Queensbury / Fort Ann boundary line (Warren and Washington Counties). Approval is
also required by the APA.
Relief Required: -
Lot numbers QB-1 QB-2 QB-3 QB-4
Proposed Shoreline n/a 157 151 412
(min required 150 ft)
Proposed Road frontage 0 0* 0 0
(min required 40 ft)
?
While it appears as though QB-2 may have frontage on Bean Road it is unclear
as to whether that portion of Bean Road has been improved to Town standards.
In any event, the applicant is not proposing access from Bean Road and seeks
relief to access from Pilot Knob Road.
?
With the submission of this revised proposal and the desire to consider the dock
facilities along with the subdivision review several concerns have yet to be
addressed.
Per §179-6-060, C; minimum shoreline for contractual access needs to be
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addressed by the applicant. The reduction in homesites from 20 to 17 has
allowed the plan to offer an adequate amount of shoreline (412 ft
required, 412 provided). Is all 412 ft of shoreline usable? accessible?
navigable? ( not requirements, just questions )
?
With the creation of new parcel lines, setback violations are being created with
respect to property line setbacks for docks as well as violations relative to
allowable number docks per parcel and with regards to allowable dock
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(Queensbury ZBA Meeting 08/29/07)
configurations. See lots QB-3 and QB-4. Errors and omissions in the extension
of property line setbacks are apparent.
?
The revised information purports to reduce the number of boat slips from 45
down to 40. There appears to be a few potential boat slips that may not have
been accounted for. ( south of #2 = 1 slip, east of #15 = 2 slips, east of #16 = 1
slip, east of #28 = 1 slip, east of #40 = 1 slip ) ?
?
Staff still questions the lot width measurement method for the QB lots. The filed
plan is not a stamped signed survey map.
Criteria for considering an Area Variance according to Chapter 267 of Town Law:
1. Benefit to the applicant:
The proposal would allow the applicant to redevelop the existing commercial marina in to
a residential subdivision and create parcels for sale.
2. Feasible alternatives:
With respect to the minimum road frontage requirements, the options appear to be
somewhat limited. Has the applicant explored the possibility of extending Bean Road to
Pilot Knob Road, thus making Bean Road a loop road? The existing Bean Road should
be mapped on SK-2 as well as all sheets for Board reference. With respect to the dock
setbacks it would appear as though further consideration to alternative plans should be
explored.
3. Is this relief substantial relative to the ordinance:
The cumulative requests for relief, when coupled with the quantities of relief requested
from each regulation, the overall request may be interpreted as substantial when viewed
against the Town Zoning requirements.
4. Effects on the neighborhood or community:
Impacts related to the change from a commercial marina to a 17 homesite residential
subdivision with a formal lake lot/beach house and a substantial docking complex for the
homeowners are expected.
5. Is this difficulty self-created?
A portion of the difficulty can be interpreted as self created, however, given the location
of the Queensbury lands and the public highway, the necessity for road frontage relief
has not been created by the applicant.
Parcel History (construction/site plan/variance, etc.):
Building Permits 95-053, 93-04 and 92-022 – Fischer’s Marina
Staff comments:
Consideration should be given to withholding a decision until the Town of Queensbury
Planning Board has acknowledged their satisfaction with an acceptable proposal. A joint
meeting of our Planning Board and the Fort Ann Planning Board has been tentatively
scheduled for a September date. Pending confirmation of attendance, the applicant will
be informed of the date so that a complete, current proposal can be submitted to both
boards.
Upon receipt of comments from the Planning Board, the Zoning Board of Appeals might
be in a more informed position prior to rendering a decision on the variance requests.
Such review by the Planning Board may result in yet further revisions thereby eliminating
the need for some of the relief requests currently sought by the applicant. The
construction of a public road (Bean Road extension) would eliminate all but one of the
road frontage relief requests and would provide an alternative emergency access route
as well allow for easier maintenance of Bean Road. The current proposal calls for the
construction of nearly 2000 lf feet of public roads in Fort Ann. Additional information on
the usage of QB-4 would be beneficial. Will the lot be used in conjunction with the “boat
storage” planned for lot FA-16? Will the ramp be maintained for boat launching? How
will this be monitored?
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SEQR Status:
As the Adirondack Park Agency has rendered a jurisdictional determination and
classified this project as a Class A Regional project, it becomes a SEQR Type II action
with the Town of Queensbury. As such, no SEQR finding is necessary. However, a
comprehensive environmental review is likely to be conducted by the Town of
Queensbury Planning Board in conjunction with or at least with input from the Town of
Fort Ann Planning Board.”
MR. ABBATE-I see that we have gentlemen at the table. Would you be kind enough to
identify yourself.
MR. LAPPER-Of course. For the record, I’m the project attorney, Jon Lapper. With me,
to my left, John Lefner. To my right, Steve Roddick, the two principals of the applicant,
and Kevin Frank from the LA Group.
MR. ABBATE-Okay. Counselor, before we begin, please, for the record, I’d like the
members of the public and this Board to know that Counselor and I had a conversation
this evening before the hearing, and the conversation did not deal with the merits of the
case, but rather dealt with procedures. Specifically, members of the Board, myself, I
received a mail at five something this afternoon dealing with Irish Bay new information,
and that’s what counselor and I discussed, just for the record. Thank you very much.
Several other things before we begin, please, and then you can have all the time you
want. I also would like to share with Counsel and members of the Board the results of a
meeting that I had between Town Counsel of Fort Ann, the Chairman of the Fort Ann
Planning Board, and the Chairman of the Queensbury Planning Board, at this particular
meeting, and I would like to state some of the concerns that were raised at that meeting,
for the benefit of Counsel and for the benefit of this Board, and I would like to mention to
this Board that some of the concerns that I may be mentioning may not fall under the
jurisdiction of this Board, but nonetheless these were the subjects that were raised.
Okay, Counselor, here we go. One of the areas of concern was density, and density was
referred to in accordance with Paragraph Section 179-6-060C(2). Another area of
concern was stormwater runoff. Another area of concern we discussed was visual
impact. Another area was the protection of the lakes, and specific natural barriers.
Access to docks was another consideration that was discussed. The size of the lots was
also another topic, and the number of docks per lot was also a subject of the
conversation. So I do this, ladies and gentlemen and Counsel, and the appellant, just for
your information.
MR. LAPPER-Thank you.
MR. BRYANT-You listed a number of concerns, but what was the consensus, you know,
the nature of the discussion on each one of those concerns? For example, I know that I
raised a concern at the last meeting relative to the security of the common area, so that
we could limit maybe the access by the public to that area. Now, you mentioned access
to the docks. Did they talk about the security? What were the recommendations? I
mean.
MR. ABBATE-No, no there were no recommendations. As a matter of fact, I’m glad you
raised that issue. As a matter of fact, the reason I’m so short on this this evening is
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because, as I understand, and I may be wrong on this, I believe that on September 20,
this month, there will be a joint meeting between the Chairman of the Fort Ann Planning
Board and the Chairman of the Queensbury Planning Board, and at that time, I suspect
they will be more definite in their considerations and comments and so on and so forth.
This was just an overview, for your benefit and the benefit of the Board. Okay.
MR. BROWN-Mr. Chairman?
MR. ABBATE-Yes.
MR. BROWN-That meeting date hasn’t been confirmed yet. It would be a joint meeting
of both Boards, not just the Chairman.
MR. ABBATE-Okay . Both Boards.
MR. BROWN-We’re still waiting to get an attendance response from the Fort Ann Board.
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MR. ABBATE-Thank you, Craig. Let me correct myself, then. Apparently there’s going
to be a meeting of the Queensbury Planning Board and the Queensbury Fort Ann.
MR. LAPPER-Okay.
MR. ABBATE-Okay. Now if you’d like to proceed, Counselor, please do.
MR. LAPPER-I guess just to start on that issue, the only variance that we are seeking
tonight is the variance for the lack of road frontage for the three lots that are not on a
public road because Fort Ann property is in between these lots and Pilot Knob Road, and
as I’m sure you’re aware, when we were here last time, a couple of issues were raised
for the first time by the Zoning Administrator and you instructed us to go back and meet
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with the Zoning Administrator and make a resubmission by the 15. We met with him on
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the 4, and we believe that we modified the plan in a way, as I indicated in the cover
letter, in a way to address the issues that Jim Underwood was talking about, the number
of slips. So we gave up slips even though it wasn’t, slips are very valuable on Lake
George. It wasn’t something we were planning to do, but we tried to do that to, as a
gesture, to address that issue, and in terms of what Craig Brown had raised, at that time
it was the issue of contractual access, so we moved the lot lines around to make sure
that we were also complying with the contractual access for each of the lots, plus one of
the sellers who has a right under contract. So that’s that 412 feet. So our goal all along,
and we’ve been here for half a year, and our goal has been any time an issue was
raised, to, as you recall, we had three lake lots to begin with and we changed it to two
lake lots because of that lot width issue, and the side setback issue that when we went to
the Planning Board, they asked us to eliminate those. So every step of the way we’ve
changed the plan to make it less intensive development, and get back to only needing
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one variance, and that was our intention when we made the submission for August 15,
and what upsets us mostly is that there are some language now in the Staff Notes from
the Zoning Administrator that is vague and impossible to understand, but, where he says
with the creation of new parcel lines, setback violations are being created with respect to
the property lines for docks, as well as allowable number of docks per parcel, and the
dock configuration. Now this dock has been here since the beginning of time. There’s
no issue that this dock is a grandfathered structure and a grandfathered use. I mean, a
commercial marina is not a permitted use in this zone. It is a grandfathered use, and it is
our intention to continue that as a grandfathered use. However, as we’ve stated on the
record many times, we’re giving up all these other rights that are also grandfathered,
uses that could stay there, selling gasoline, repairing boats, selling boats, storing boats,
quick launching, public boats, that are all intensive uses that generate a lot of traffic and
probably some pollution since there’s no stormwater requirements because this is
grandfathered. So there’s no stormwater treatment. So, obviously the record has shown
that every time an issue has come up, we’ve modified the project to eliminate the need
for variances, and we met with Mr. Brown and we went through it and we went back to
the office, made the changes, changed the lot lines to eliminate the need for variance, so
I don’t know what he’s referring to here. I do want to read into the record the Section of
the Zoning Code that addresses it, just so it’s in the record. Under 179-13-010,
Nonconforming uses, structures and lots, continuation. “Subject to the provisions of this
article, a nonconforming structure or use, or a structure containing a nonconforming use
may be continued and maintained in reasonable repair but may not be enlarged or
extended as of the date this chapter becomes law, except as follows:” And we’re not
trying to enlarge or extend it. We’re actually proposing to make it smaller by eliminating
five slips on the dock configuration, as well as eliminating all those other uses. The
exceptions talk about when you’d still need a variance if you’re expanding, and we’re not
expanding. So I just want to put that into the record. If I then go back to the Staff Notes,
it just doesn’t make sense to us. When we were here last time, the neighbors, and I
believe some of the neighbors are here again tonight. The neighbors got up. We talked
about Bean Road, and it’s not built to Town standards. It’s got this very dangerous left
hand curve in it, and if we were to connect to it, we’d be something like five feet from a
woman’s house. So it’s not feasible to build it as a Town road and it doesn’t make sense
to build it as a private because the neighbors felt it would be impacting them, and that my
recollection is that this Board dismissed that as a viable option. So I don’t understand
why it shows up in the Staff Notes again, because it’s this Board makes the call, not the
Staff. So we were not expecting to see any mention of Bean Road again. There’s an
acknowledgement, next, that we did provide the 412 feet for the shoreline access. So
that should be gone as an issue. Then there’s the paragraph I read that says the dock’s
nonconforming, which doesn’t make sense to us, and if there’s some issue there, and at
the very least, if the Zoning Administrator has made some determination that’s secret
that somehow we need another variance, then why the heck are we here tonight
because he would have had to have not accepted the application and told us that we
need another variance. So I just don’t understand, procedurally, what this paragraph
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means. I mean, we’ve been here for six months. All we’re trying to do is have a project
that this Board can approve.
MR. ABBATE-Okay. Let me stop you for a second, Counselor. Because now I’m
getting confused.
MR. LAPPER-Okay.
MR. ABBATE-Please. So I’m going to turn to Mr. Brown, who is the Zoning
Administrator, and I’m going to ask him to address several of your comments. Counsel
indicates that several of your comments simply don’t make sense. Would you address
those, please.
MR. BROWN-Sure. Would you like me to just kind of follow through here and explain
them all?
MR. LAPPER-Bean Road, why are we still talking about Bean Road?
MR. BROWN-Why not?
MR. LAPPER-Because the Board said last time that they didn’t want us to use Bean
Road.
MR. BROWN-I still think it’s an option out there. It’s going to stay in the Planning Board,
it’s going to stay in the Staff Notes until the Planning Board reviews it, too.
MR. LAPPER-Well, actually, it’s not. If the Zoning Board grants a variance for lack of
access to a Town road, then we don’t have to connect to Bean Road.
MR. BROWN-Okay.
MR. LAPPER-The other issue is this paragraph, ambiguous paragraph about with the
creation of new parcel lines that somehow the dock is in violation.
MR. BROWN-All right. If you look at Queensbury Three, I don’t know if you guys have a
map in front of you there, but the way that the property line’s extended into the lake on
the westerly property line is not the correct way to measure the property line setback for
that lot. There’s a smaller little 90 degree turn in the property line. That’s where you’re
supposed to extend the property line from, when you measured the side line setback for
that, I’ll call it the large dock complex. So it’s just, it’s mapped incorrectly, and it’s
depicted in error. So I’m just saying, you need setback relief from the.
MR. LAPPER-The way it reads in the Code is that you extend the property line out into
the lake.
MR. BROWN-Right, and what I’m saying is that you use the property line halfway up the,
no, here, I’ll come over. You measure the property line setback for the docks on this lot.
You don’t extend this property line. You extend this property line. This is the property
line that (lost words), so this is the line you measure from, for this lot, and this is also the
line you measure from for this lot. This one is for this lot on this side (lost words). This is
the property line, correct?
MR. LAPPER-Yes. So where are you saying that we don’t have 20 feet?
MR. BROWN-Well, if you extend this property line the way the Code requires, you don’t
meet the setback on either lot.
MR. LAPPER-Well, you hit the land.
MR. BROWN-That’s why you need a variance.
MR. LAPPER-I disagree.
MR. BROWN-Okay. Well, that’s your position. That’s fine.
MR. LAPPER-Well, you can’t draw the line through the next lot as if it wasn’t there, I
mean, it hits the land.
MR. BROWN-That’s the requirement. I think that’s a good basis to request a variance.
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(Queensbury ZBA Meeting 08/29/07)
MR. ABBATE-Where is the requirement located? Give me a specific citation on it, that is
judge, in any specific manner, let me have a citation.
MR. LAPPER-It’s in the section that deals with docks.
MR. BROWN-179-5-050A(6).
MR. ABBATE-Okay, and would somebody be kind enough to please read that into the
record.
MR. BROWN-Sure. “Every dock or wharf constructed shall have a minimum setback of
20 feet from the adjacent property line extended into the lake on the same axis as the
property line runs onshore where it meets the lake or at a right angle to the mean high-
water mark, whichever results in the greater setback.”
MR. ABBATE-Okay.
MR. LAPPER-Okay. So let’s talk about that. “Every dock or wharf constructed shall
have a minimum setback of 20 feet from the adjacent property line extended into the
lake”. Well, can you show that, Kevin? We’re talking about it, that stream channel. So if
you extend that into the lake, you’re going to hit land. It’s not into the lake. I mean, it has
to end at the land. If you have a peninsula, if you have a parcel, there’s no dock within
20 feet.
MR. BROWN-Well, if I could, Mr. Chairman, I can certainly issue a formal determination
and the applicant can appeal that. I don’t want to get into am I right or am I not right
before this Board. That’s not a matter before the Board right now. They’re not appealing
the decision. They haven’t formally done that.
MR. LAPPER-Well, the issue that every time we make a change to avoid need for a
variance, we’re just splitting hairs. I mean, if that’s the case, we can turn that lot line in a
different direction, but that’s not the point. I mean, it doesn’t make any sense to me that
that lot line still exists after it crosses land, you know, that there’d be an extension across
the water and then into land and then across the water. I don’t think that’s how you read
that.
MR. ABBATE-Okay. Let’s stop for a second and let me turn to the Board members.
Board members, do you have any questions concerning this, this issue? None? Okay.
Do you want to continue, Counselor?
MR. LAPPER-Yes. I mean, what John is saying is that, you know, if where Craig’s going
with this is that every time we try to make the project better he’s coming up with some
reason why it doesn’t conform, then the result is to leave it as a commercial marina and
have it leased out to the public. So I mean, in terms of, you know, what’s the goal here?
MR. ABBATE-Well, there is a point that has to be taken, Counselor, and it’s this. You do
have recourse, okay, and we’re not going to discuss that at this Board. All right. Does
anyone have any questions for Counsel concerning Irish Bay? Have you concluded your
position?
MR. LAPPER-No. I’m only still on a few of the issues.
MR. ABBATE-Please do. I’m sorry. Go right ahead, Mr. Lapper, please.
MR. LAPPER-I mean, I guess the procedural issue there is if there was any
communication or any calls returned, I mean, everything doesn’t have to take a month
and then you get the Staff Notes the day before the meeting to find out that there’s some,
you know, guerilla warfare secret thing that happens. If this stuff was openly
communicated, we’re happy to make any change possible to make this project work, but
we keep losing a month because we find out some new technical read, which I certainly
don’t agree with, and, yes, we can appeal and spend another two months, because that’s
what it takes. I mean, it just, just in terms of due process, it’s not right, but whatever. All
right. So we’ve gotten to the top of the second page. Then there’s an issue about that
there are a few potential boat slips that may not have been accounted for. If there’s a,
we can’t change the configuration of the docks. We can eliminate slips, but we can’t
change the docks because then we’d lose the grandfather. So if he’s saying you could
sneak another boat in somewhere, I mean, if there’s a, if we ultimately have an
agreement that it’s 40 slips, it’s 40 slips, and you’re only allowed 40 boats. So, you
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(Queensbury ZBA Meeting 08/29/07)
know, if somebody could say you could have 200 canoes on it, but if the agreement in
the permit is that you can only have 40, there’s only 40. So if we’re giving up, we’re
taking off fingers, and if he’s saying, you know, we don’t trust you, well, that’s like
anything else. If you have a marina permit for 40 slips, you’re allowed 40 boats, and
that’s all there is to it. The next point is Staff still questions lot width measurement, for
the method for the QB lots. Do you want to just explain that, Kevin?
MR. FRANK-Submitted to Staff, yesterday, by e-mail, and then again via fax this
morning, the methodology used for calculating average lot width, it demonstrates we do
meet with Town Code. It was a one page, SK-2A that’s labeled, and essentially what we
did is, since there is no standard methodology within the Town’s Code for measuring lot
width, and issues discussed with Mr. Brown during a meeting back in March of this year,
and Mr. Brown that said you should just implement a methodology which makes sense.
So what we did is we measured lot width at a 50 foot interval, moving through the long
access of each lot, took those numbers, averaged them, and came up with average lot
width. The diagram that you have in front of you shows an illustration as well as the
calculations of how we meet the minimum lot width requirements, and from our
standpoint it’s certainly a methodology that makes sense.
MR. LAPPER-And of course we just received these notes yesterday. So we responded
today. Feasible alternatives under the Staff Note still talks about Bean Road. I think you
know our position on that. Is this relief substantial relative to the Ordinance? Well, these
notes are still the notes that were here four months ago. So it says the cumulative
requests for relief, and that’s when we were looking for minimum lot width and side
setback, all these other variances which have since been taken off the table. So I don’t
even understand the reference to cumulative requests, because their only request is for
lack of frontage on a Town road, and so it may be interpreted as substantial, viewed
against the Town’s zoning requirements. It’s hard to understand. We’ve only asked for
one variance. The effects on the neighborhood or the community related to a change
from a commercial marina to a 17 home site residential subdivision, with a formal lake
beach house and substantial docking complex are expected. So they’re saying
substantial, impacts related to the change from a commercial marina to a 17 home site
residential subdivision with a formal lake beach house and substantial docking complex
for the homeowners are expected. Impacts are expected, the effects on the
neighborhood or the community, and it’s certainly our position that when you take away
all of the car traffic and boat traffic, that these 17 lots, compared to the commercial
marina that’s there now, are far less. Now there’s no stormwater treatment whatsoever,
and we’re proposing stormwater to be treated in compliance with the regulations, and
we’re proposing to pump the septic away from the lake. So we certainly don’t agree with
that comment, and then where I started the Staff suggestion, that a decision be withheld
until the Planning Board and Zoning Board, the two Planning Boards meets, I’m looking
at the list that the Chairman read. I don’t think any of these affect the variance for the
three lots and whether they have road frontage or don’t have road frontage. These are
all legitimate planning issues for the Planning Board, but I don’t think it effects your view
of the variance, which we think is pretty minimal. Density, I mean, in Queensbury we’re
only looking for three lots, and in terms of the whole project, 17 lots is not a large
development. Visual impacts, we think taking down those metal buildings is a big plus.
Other visual impacts. We know there’s going to have to be cutting restrictions so that
you can’t clear cut the hill so that people could have lake views. It’s going to be filtered
views. Of course APA would require that anyway. So that’s certainly a legitimate issue
and of course that’ll be part of the review. Stormwater, this whole project is a major
improvement in stormwater. Protection of the lakes, we’ve talked about that. We expect
that there’ll be methods implemented that’ll be required for planting along the edge of the
lots that are on the lake to filter anything, so that there’s not going to be, you know, the
LGA plan for plantings along the lake, that those are legitimate issues which will certainly
be addressed by the Planning Boards and the APA. Access to the docks, I don’t know
what that refers to. The size of the lots, we went back and looked at that, and with the
exception of I think one lot in Fort Ann, all of the lots are approximately an acre, and
certainly the lots in Queensbury are an acre or more, and the number of docks per lot,
we know that was an issue with this Board, and that’s why we came back and eliminated
five slips. So these are legitimate issues, but I don’t think it affects the variance that
we’ve requested for the minimum, or for the lack of frontage on a Town road, and it’s just
that, as you can tell from my frustration, it’s just difficult when the ball keeps moving and
we keep trying to satisfy everybody and new issues keep getting raised.
MR. ABBATE-Have you temporarily concluded, Counselor?
MR. LAPPER-Yes, thank you.
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(Queensbury ZBA Meeting 08/29/07)
MR. ABBATE-Okay. Then are you prepared to answer some questions, perhaps, from
our Board members?
MR. LAPPER-Certainly.
MR. ABBATE-Thank you. Ladies and gentlemen of the Board, do you have any
questions concerning Irish Bay? Yes, please, Mr. Bryant.
MR. BRYANT-I just want to say briefly that Staff Notes, you know, are not carved in
stone, that we can accept them in part or in whole, or reject them entirely. It’s only an
opinion, and it has no bearing, really, on what our decision is going to be, and the
outcome.
MR. LAPPER-Thank you.
MR. BRYANT-Not to diminish the writer’s authority. I do have a couple of questions.
You mentioned a couple of times that you’re basically looking for the road frontage on
three of the lots, but actually it’s four. Right? I mean, all four lots require that. Which
one doesn’t?
JOHN LEFNER
MR. LEFNER-The QB-4 would not. If you were referring to extending Bean Road as a
loop road, that QB-4 wouldn’t be part of that loop road at all, which you’re going to find
people behind me are going to be not only supportive.
MR. LAPPER-Well, I think what Allan is saying is that the Homeowners Association lot
also doesn’t have frontage, and I think you’re correct about that. It would be attached to
a lot in Fort Ann, but because the County, I mean, we’re looking at that as one lot.
MR. BRYANT-Yes, but we still have to grant the, I’m just.
MR. LAPPER-I think you’re probably right.
MR. BRYANT-Okay, and the other thing is there is something in the Staff Notes that
caught my eye, relative to the fact that the subdivision Sketch has no seal on it. Is there
a reason for that?
MR. LEFNER-It changed so many times to accommodate. I’d be happy to get one.
MR. BRYANT-I know, but this is LA Group. I mean, you’ve got registered Landscape
Architects and all that that. They can do that in two seconds, and that’s a requirement of
this Board.
MR. FRANK-Understood, Mr. Bryant. Again, as Mr. Lefner said, that this has changed a
number of times. We would certainly be more than willing to supply the Board with a
stamped and sealed copy upon the condition of the Board’s approval.
MR. LAPPER-You started with a certified survey.
MR. FRANK-Yes, certainly. The application package that was submitted to the Board
contained a stamped and sealed survey by Dennis Dickinson.
MR. ABBATE-That’s correct.
MR. BRYANT-All right. Then the plot has changed as far as the configuration of the lots
and the number of lots. So, theoretically, it should have been re-stamped, in my view.
That may not be the other Board member’s view.
MR. LAPPER-I think that you’re right, and what’s happened is that the metes and bounds
of the, the boundary is the same, obviously, the boundary of the lot, but we kept coming
back, and so they didn’t go back to the surveyor every time we made a proposal, but,
you know, certainly, you’re correct, and that has to be done.
MR. ABBATE-Okay. Thank you. Gentlemen, ladies and Board, do we have any other
questions? Yes, please, Joyce.
MRS. HUNT-I just want to clarify. All you’re really asking for now is relief from the road
frontage requirement on the four lots in Queensbury?
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MR. LAPPER-Yes.
MRS. HUNT-I want to congratulate you on your good faith, you know, meeting our other
requests.
MR. LAPPER-Thank you.
MR. ABBATE-Okay. All right, folks. Do we have any other questions concerning? If not,
I’m going to proceed. I’m going to move to an open hearing again, the public hearing
again. I did keep it open. Ladies and gentlemen of the Board, the public hearing is
open, and those of you who wish to comment on Area Variance No. 29-2007, if you
would raise your hands, I’d be more than happy to recognize you and you can have your
five minutes. Is there anyone in the audience who’d like to address Irish Bay Area
Variance No. 29-2007, would you be kind enough to raise your hand? I see one hand
raised. Would you be kind enough to come to the table, speak into the microphone, and
tell us who you are, please.
PUBLIC HEARING OPEN
JOHN SALVADOR
MR. SALVADOR-Good evening. My name is John Salvador. I’m a resident in North
Queensbury. The issue of Bean Road, as I understand it from previous hearings, the
neighbors are not desirous of having this project exit onto Bean Road. The applicant
doesn’t sound like they are desirous of using Bean Road as an access road. Why can’t
they condition their application around not using Bean Road? Now this has been done
previously. I can show you here a map where, this is a tax map of a project in another
Town, but right here, this project fronted onto this Town road, and they were not allowed
to access this Town road at this point, and what the developer was required to do was to
put a turnaround there. That’s on the plan. You see that turnaround? That’s what they
were required to do, so they couldn’t exit there, and I think that’s all you have to do. If
they don’t want to use it, make it a condition that they’re not going to, and I think that
would take care of the Bean Road issue. I brought this map along for another reason
also, and it deals with the density issue and the lake frontage and it’s not clear here, but
the Zoning Administrator is using the term usable shoreline for purposes of density. I
think what he’s driving at is that it would be grossly unfair to allocate 157 feet to
Queensbury Lot 2, 151 feet to Queensbury Lot 3, and then use them again for
Queensbury Lot 4. I think you have to deduct the total of 2 and 3 from 4 to get the net,
because it’s not conceivable that the people who will access over QB-4 would be allowed
to go over QB-3 and QB-2. That would be private property. So I think maybe that’s what
they’re driving at there. In any case, I think that they’re compounding their, now, that’s
shown again on this map. This is a subdivision here. This is lake in this area, and you
see the lots that border the lake here. The red is common area, and the lots do not front
on the lake, so that the lakefront, the number of feet of lakefront here, was available to all
of the homeowners equally. These lots had no greater access to the lake than anyone
else, and they had to use this road, this access road here, to get to their common area to
use their waterfront. So something like that should probably be done, but compounding
it the way they’ve done it doesn’t seem to be right.
MR. BRYANT-Can I ask you a question, Mr. Salvador?
MR. ABBATE-By all means.
MR. BRYANT-What you’re basically saying is to calculate the density of the shoreline
area, deduct those two lots from the mix, use only 4 for the balance of the subdivision to
come up with the density, is that what you’re saying?
MR. SALVADOR-Yes. It seems to me you’re using up lake frontage in QB-2 and QB-3.
That’s gone.
MR. BRYANT-Yes, it belongs to those lots.
MR. SALVADOR-It belongs to those lots, and those lots exclusively.
MR. BRYANT-It’s not common area.
MR. SALVADOR-That’s right.
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(Queensbury ZBA Meeting 08/29/07)
MR. BRYANT-And it shouldn’t be calculated in the overall density. I understand.
MR. SALVADOR-That’s right. So only the net, there’d only be another 104 feet left over
for everyone else.
MR. BRYANT-Okay, but let me just take it one step further, because there is a chart on
the map that we’ve got tonight. Four has 412 feet alone by itself, shoreline frontage.
Okay, and they’re only required to have 412 feet for the whole subdivision. Is that
correct?
MR. SALVADOR-No.
MR. BROWN-Well, no, not really. Lots Two and Three have their own required amount
of shore frontage.
MR. BRYANT-That’s right.
MR. BROWN-The remaining 15 lots are required to have the amount of the 412 number,
and that’s what 412 is on Lot 4 alone.
MR. SALVADOR-So the total frontage is.
MR. BRYANT-Seven twenty.
MR. SALVADOR-Seven twenty?
MR. BROWN-Yes, if that’s what the math comes out to be. Yes.
MR. BRYANT-So if you deduct the two lots, in Lot Four, and the way I’m reading it, you
can correct me if I’m wrong, is that there is sufficient frontage in Lot Four for the balance
of the 15 lots.
MR. SALVADOR-Okay. All right. Okay, then I would ask if that’s affirmed?
MR. BROWN-Yes. In order to meet the contractual access requirement of the Code,
that’s what that is. That’s correct.
MR. SALVADOR-That’s affirmed. Okay. Then I would ask the Zoning Administrator, the
answer to his question, what would he consider the answer to his question, which reads,
Is all 412 feet of shoreline useable? Is the applicant expected to answer that? How do
you answer that question? Then he goes on to say accessible, navigable, does it have
to be navigable? I don’t know. What does he mean by accessible? That’s crucial to this
project.
MR. ABBATE-Okay. Your five minutes are up, Mr. Salvador, please, and, Mr. Salvador,
I’m going to request a favor from you, please. The rules of evidence dictate that the
appellant has an opportunity to review your map and either address it or rebut it, and
then he’ll give it back to you, please.
MR. SALVADOR-Mr. Lapper has worked on this project. He’s very familiar with this
map. That’s why brought it. There should be no question.
MR. ABBATE-Okay. Fine. Just let him take a glance at it, would you, please.
MR. BRYANT-I just want to reiterate the question. I just want it to be clear in my mind.
Then 412 feet is what the entire project, except for Two and Three because they have
their own frontage, 412 feet is what the balance of the project needs in frontage to be?
MR. BROWN-To meet the requirement. That’s correct.
MR. BRYANT-Okay. So that, basically what you’re saying, your argument is correct in
that apparently that’s what they did in the first place, they took out, you know, they
separated Two and Three and Four, and then they did a total total, so we know that Two
and Three have the correct amount, and now Four is sufficient, and I think it’s that little
jog there that creates the additional frontage that compensates for whatever they
needed, uphill.
MR. SALVADOR-Then again I would ask, what is the answer to the question, is all 412
feet of shoreline useable? What is meant by usable? That’s all.
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(Queensbury ZBA Meeting 08/29/07)
MR. ABBATE-Okay. Thank you, Mr. Salvador. Appreciate the information. Is there
anyone else in the audience who would like to address Irish Bay, 29-2007? Would you
raise your hands please. I see no other hands raised. Yes, sir, please. Would you
come to the table. Speak into the microphone and please tell us who you are and where
you reside, please.
SCOTT SEVERANCE
MR. SEVERANCE-Scott Severance, 20 Bean Road. It’s the first time I’ve been to your
meeting, and I’m confused on the Bean Road issue. Bean Road is a misnomer. It’s not
a road. At best it’s a lane, of which only one car has clear passage. If you were to meet
a car coming the other way you’d have to pull off into someone’s lawn. The road, as it’s
called, is very restrictive. The Town only ones from one edge of the macadam to the
other edge of the macadam that’s not the normal shoulder, and what are you folks going
to say about the Bean Road issue? Are you going to scrub it out of this conversation?
Are you going to say that Bean Road will not be another cause of another way of egress
from this development? What are you going to say, Charles?
MR. ABBATE-Okay. Thank you. That’s an excellent point, and when all the evidence in
the record has been reviewed, we will then make a decision, and in all probability
address that, but at the present time we cannot. We simply don’t have all the
information that’s required.
MR. SEVERANCE-I have one other question.
MR. ABBATE-Sure.
MR. SEVERANCE-Mr. Salvador, what was his goal? What’s his purpose? What’s his
goal in this whole thing?
MR. ABBATE-I would strongly recommend that when you get done with your
conversation you sit with him and ask.
MR. SEVERANCE-Can he not express it right now? I’ve got five minutes.
MR. ABBATE-I don’t know. That’s not for me to speak for him. I would suggest you
direct the question to him. If you have a question concerning what an individual stated
before this Board, I suggest you sit down with him. We have a nice comfortable room
out there, and discuss it. No problem.
MR. SEVERANCE-Well, I’m willing to give him the rest of my time if the Board will allow
it.
MR. ABBATE-Thank you, sir. Thank you very much. Do we have anyone else in the
audience who would like to address Irish Bay Area Variance No. 29-2007? You had your
hand up first, sir, and then you’ll be second, please. Would you be kind enough to speak
into the microphone and tell us who you are and where you reside.
JEFF CHRISTOPHER
MR. CHRISTOPHER-My name is Jeff Christopher. I live at 11 Bean Road. I just want to
say I’m in favor of this project. There’s some concerns that I’ve had, but I feel that this
project is going to move forward. I’ve been a resident of Bean Road for 35 years, and I
really believe this is the best interest. Stormwater issues, I’m sure it’ll be done properly,
and I really think this is something that should move forward. That’s it.
MR. ABBATE-Thank you very much, sir, for your input. Yes, sir. That gentlemen,
please. Would you speak into the microphone and please tell us who you are and where
you reside.
LARRY FISCHER
MR. FISCHER-Good evening. Once again, Larry Fischer, Fischer’s Marina. I just, I
guess I’m looking for some explanation. I believe you people try and do the best job.
How can we come back every month, we’re back on Bean Road. We were at Bean
Road 60 days ago. Sixty days ago we were talking about meeting with Fort Ann. How
do you people do business? And this gentleman over here. I don’t understand. You go
to him and we start new game rules every 30 days. It’s like playing a baseball game in
12
(Queensbury ZBA Meeting 08/29/07)
the seventh inning, wait a minute, one team’s going to get 12 players, the other team’s
going to get 7 players. I don’t think I’m asking an unfair question. I mean, this has been
six months. Charles, am I right? I wore a winter coat in here on the first night, and we’re
right back talking about the same things, Bean Road, the lines. If I ran my business this
way, I’d be out of business. I just, I’m asking you, call my house, call my business. Walk
in, see me. Just, you know, please make some sense. You can’t keep changing the
game every 30 days. If any of you would like to ask me a question. Roy?
MR. URRICO-Have you heard anybody here on this Board mention Bean Road?
MR. FISCHER-No, but a considerable amount of time this evening’s been spent on Bean
Road, which was where we were 60 days ago.
MR. URRICO-But you haven’t heard us mention it.
MR. FISCHER-I know. Thank you.
MR. ABBATE-I think you heard earlier, and there are court decisions which strongly, and
case law, which strongly suggests to the Zoning Board of Appeals that it might be in the
best interest of the Zoning Board of Appeals to totally ignore Staff Notes, because
they’re nothing but being prejudice anyway.
MR. FISCHER-Thank you for telling me that.
MR. ABBATE-And you heard Mr. Allan Bryant indicate we are not bound by Staff Notes.
We are not bound by anybody in the Town of Queensbury, but the law.
MR. FISCHER-And once again, I’d like to thank you, but, you know, I think you
understand what I’m saying.
MR. BRYANT-I just want to comment. We haven’t said anything about Bean Road.
MR. FISCHER-You’ve been very good, but if you have any questions about the project
or anything, my brother and I are just trying to do the best thing for the community.
th
These gentleman’s contracts are over on October 27. It’s, you know, we’re trying to do
the right thing, but, you know, they might say, the bumper stickers might say the right
thing didn’t happen. One other note. Trying to do the right thing. If any of you
gentlemen and ladies would have been on our piece of property last Saturday at about
5:30, you would have noticed that we don’t have any stormwater runoff. As our parking
lot was washing into the lake. Okay.
MR. ABBATE-Great. Thank you very much. We appreciate that. Okay. Do we have
any other folks in the audience who would like to address Irish Bay, 29-2007? Yes, sir,
please. Be kind enough, please, to speak into the microphone, tell us who you are and
where you reside.
JASON HALLIDAY
MR. HALLIDAY-Hi. I’m Jason Halliday.
MR. ABBATE-Okay.
MR. HALLIDAY-I’m a homeowner on the north end of the field there. I am in Washington
County, but I just wanted to address, to let you know that I think probably 95% of the
people behind me are for this project. Maybe all of them don’t want to get up and speak,
but, you know, I know that, you know, John has been involved in several different
projects for the lake.
MR. ABBATE-Who is John?
MR. HALLIDAY-Mr. Lefner.
MR. ABBATE-Thank you.
MR. HALLIDAY-And, you know, to keep the integrity of the lake looking nice, rebuilding
islands on Lake George. If anybody’s going to do this project, this is the guy. It seems
to me like he’s gone through a number of steps to satisfy the Board. This is my first
meeting. I’ve heard things, and, you know, I’m surprised that some of these issues do
13
(Queensbury ZBA Meeting 08/29/07)
keep coming back. The view of the project is going to be beautiful, and I am for the
project. That’s all I wanted to say.
MR. ABBATE-Thank you, sir. I appreciate that. Do we have anyone else in the
audience who would like to speak on Irish Bay, 29-2007? Yes, sir, please, be kind
enough to speak into the microphone, tell us who you are and where you reside, please.
NICKY CUTRO
MR. CUTRO-My name is Nicky Cutro. I’m from Washington County. Our family used to
own the Boardwalk in Lake George and I’ve been a businessman in Lake George for
many years, and I’ll tell you, after coming tonight, I really believe everybody’s trying to
work hard to make this whole thing come together. I’m letting everybody know that if you
don’t let them do this group right here, I’m buying the place, and it’s going to stay a
marina, and honestly, the way everybody sounds tonight, everybody wants it to be
homes and look out for stormwater. I’m not that type of guy. I’m a businessman. So I
think you really better think hard about everything that’s happening tonight and try to
move forward to make it work, because the Fischer’s have really had it up to here. This
is their exit plan to move forward in their lives as they get old. I’m still a young guy. So
you’ll see me a lot. So you might want to think about everything that’s going on and try
to work together. Okay.
MR. ABBATE-Thank you very much for your input.
MR. CUTRO-You’re welcome.
MR. ABBATE-We appreciate it. Is there anyone else in the audience who would like to.
Everyone seems to be hesitant. I’ve said this about ten times. Anyone else in the
audience who would like to address this issue? This is going to be the last call. Okay.
Counselor, would you come back to the table, please, and your client. Now, is there
anything you’d like to address?
MR. LAPPER-Apparently there were some letters submitted by neighbors?
MR. ABBATE-Jim, do we have those? We do or we don’t? Counselor, I’m sorry to state
that if the letters were written, they’re not in the record.
MR. LAPPER-We have some.
MR. ABBATE-But we will be happy to accept them. If you’ll give them to the Secretary,
we will be happy to, and if you would like him to read it into the record, please.
th
MR. UNDERWOOD-This one’s dated August 29. “To Whom It May Concern: My
husband and I were more than surprised to receive yet another hearing notice
concerning Irish Bay. This proposal has been so well planned with professional
guidance, in a effort to leave no stone unturned. The project is of the highest quality with
the least impact on the environment. It is time for the board to set aside personal opinion
and approve the recommendations of a professional group who has put forth a great deal
of time and effort, to create a top notch development. Also, it would be ludicrous to even
think of extending Bean Road to access Irish Bay, when commonsense would have it be
Pilot Knob Road. I hope I don’t have to write anymore letters in support of this fine
project. Sincerely, Rita Whiteman” “Dear Sirs and Madame: We regret that we will not
be in Town to attend the hearing on August 29, 2007. We are therefore writing to inform
you that we are heartily in support of the Irish Bay project that is before you for
consideration. We are frankly puzzled at the reluctance the zoning board has
demonstrated in prolonging the approval process. This project would be a far more
desirable option for our neighborhood than the existing marina. We do not see it as a
detriment to our community but rather as an asset. To have a low-density, high-quality
residential community established adjacent to our road rather than a busy marina with
high car and boat traffic close-by is an obvious good choice. At present, on an average
weekend, 155 boats are launched and pass by our dock. Should you reject this
proposed project and the Fischers sell to another marina, we would be certain to see an
increase in those numbers. Because many people have heard of a proposed sale, they
have taken their business elsewhere. A new owner would likely be much more
aggressive in promoting sales and service to the boating community, as well as renting
out more boats to weekend users. It would not be out of the realm of reality to see a
40% increase in boat activity. We do not see that as an alternative that would be
welcomed by our community. If, as you claim, you are interested in preserving the
quality of the water and life on Lake George, it would appear to us that approving this
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(Queensbury ZBA Meeting 08/29/07)
project and allowing the transformation of the marina into residential use would
accomplish your stated aims. We are asking you to approve this project so that the work
can commence prior to the cold weather to begin the transformation of this property from
marina to residences. One last note that we would like to interject. The issue of allowing
Bean Road to provide access to the Queensbury lots is most egregious to us. Not only
would the road have to be significantly widened to comply with current specifications and
thus take from private property, but the increase in road traffic would endanger those
who are accustomed to a quiet road with little traffic. Thank you for your consideration of
this letter. Very sincerely yours, Lois and Larry Stone” “Dear Board Members: Since I
am unable to attend in person this fifth Board hearing concerning the Irish Bay Partners
application, I respectfully submit these comments for your consideration. I am an
immediate neighbor of the Irish Bay/Fischer’s Marina project (‘the Project”). I have
attended and addressed the Board at prior hearings. My comments reflect my strongly
held and informed concern for the natural resources, property values, and aesthetics of
this neighborhood where my family has resided for three generations, since 1937. My
professional training is in law and the environment. I have no other interest, personal or
financial, in the Project. A properly designed and situated, environmentally sensitive
residential development on the 90+ acre Fischer’s Marina property would be the most
environmentally compatible possible outcome for this large property. It will increase your
Queensbury tax revenues. It will raise our property values. It will be residential, not
commercial. It will reduce the noisy boat traffic in our small bay. Properly done, it will
only benefit the Town. The alternative, though not before you yet, is a greatly enlarged
and expanded commercial launch facility, which will funnel even more 35 ft.
“performance” ocean racing boats thundering through our neighborhood onto Lake
George. Come sit on my porch a summer Saturday morning, and then imagine three
times the traffic and racket. Make no mistake: Fischer’s will sell to the next highest
bidder, which will not be another Irish Bay Partners. It will be a Tearneck Tony with a
marina we will all regret. More boat noise, boat traffic and congestion in this little bay,
more boat trailer traffic on narrow, twisty Pilot Knob Road; less peace and quiet,
declining property values, and decreasing quality of life in our neighborhood and on the
lake. The 9 acre Queensbury portion of the 90 acre Project has been before this body
since April. It has been the subject of four prior public hearings and may meetings
between staff and the applicant. Your neighbors and constituents have had their
summers consumed with worry over the ultimate outcome of the Project. Each time the
Board considers the application, staff or a Board member raises yet another issue; yet
another delay occurs. Fears rise that the developers will walk away. In the meantime,
rumors fly about interference with your decision-making by other Town officials, who may
be unhappy with “North Queensbury” for either the secession issue or the fire district
squabble. Your independence and reputation for fairness are compromised. I implore
this Board to act favorably now on this application so that the Project can move on to a
comprehensive review which would examine and resolve all the issues this Project
raises. To continue to nip and tuck in this fashion is abusive to the residents and to the
applicant, and is contrary to good government and the spirit of the State Environmental
Quality Review Act (SEQRA) process. Very truly yours, Susan F. Weber” That’s it.
MR. ABBATE-That’s it? Okay. Thank you very much. Before we continue, ladies and
gentlemen of the Board, I wrote myself some real fast notes here, quite frankly, and I
wrote, hoping I can read them. I wrote this note here. There seems to have been some
very profound statements made this evening, but perhaps the most profound statement
was made by a ZBA member, Mrs. Hunt, when she asked Counsel, why are you here
this evening, and perhaps the answer that she received, perhaps, ladies and gentlemen
of the Board, maybe it’s time to address the issue sought by Counsel. Now, do we have
any members on the Board who would like to raise any issues concerning Area Variance
No. 29-2007?
MRS. HUNT-I’d like to make a comment.
MR. ABBATE-Mrs. Hunt, please.
MRS. HUNT-I feel that it’s a shame that we’ve made Irish Bay Partners come back again
and again, and every time we’ve made a suggestion they’ve eliminated five boat slips .
They’ve reduced from 20 to 17 the number of sites. We eliminated the Bean Road long
ago, and I think all they’re asking now is for proposed road frontage relief, and I think I
would be in favor of that.
MR. ABBATE-Okay. Thank you. Gentlemen, ladies, Mr. Bryant, please.
MR. BRYANT-Thank you, Mr. Chairman. First off, I just want to comment. I’m dismayed
that the applicant had gone through great pains to provide the documentation that this
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Board requested by August the 15. That’s a new revised map and other details, and
that we received the documentation two minutes before the meeting started. Okay. That
being said, I agree totally with Mrs. Hunt. The only thing that you’re requesting at this
point is the road frontage. It’s a common issue. I think you answered the questions
relative to the shoreline question that we had at the last meeting, and you did it very well.
There are some things that I’m hoping that the Planning Board address, and one is, of
course, the issue on the Bean Road thing, not to be a wise guy, but, you know, some
kind of conclusion as to whether or not that is going to be used at it all. Should it be just
shut down or whatever. The second issue is something that I brought up at the last
meeting, is relative to security on the Lot Number Four, so that the area is not used by
the general public and specifically, I mean, it’s one thing to say we have a fence, but it’s
another thing for, it’s a very simple process of some kind of security system, some kind
of card, some kind of whatever, so that only homeowners can use that common area,
you know, that’s up to the Planning Board.
MR. LAPPER-You’re right.
MR. BRYANT-But as to the road frontage issue, I have no problems with, I’m totally in
favor of it.
MR. ABBATE-Okay. Mr. Urrico, please.
MR. URRICO-Yes. I’m not going to belabor what my fellow Board members have said,
but I’m in total agreement with what they’ve added, and in defense of the Board, I think
it’s important to remember that what we’re here to do is approve a variance, not deny a
variance. What is stated in the Town Code is the Town Code, and the reason you’re
here, as you know, Mr. Lapper, is permission to do something that is not permitted under
normal circumstances.
MR. LAPPER-Right.
MR. URRICO-And when we review this process, we’re required to, by law, grant
minimum variance necessary, and may impose conditions, and that’s what we try to do is
make sure, and you guys have responded. When we’ve asked you to make changes,
you’ve responded.
MR. LAPPER-The only reason we kept coming back is because we got new Staff Notes
at the last minute, that, you know, you couldn’t ignore, and we had to respond. So we’re
not criticizing the Board.
MR. BROWN-Mr. Chairman, I just can’t be quiet any longer. There’s been a lot of talk
about the ball keeps moving, it’s a moving target, with the Staff Notes. Every time the
applicant comes back with a revised proposal, it’s Staff’s obligation to give you notes on
that revised proposal. If that revised proposal has raised new issues, new sections of
the Code that need to be addressed, they need to be in the Staff Notes. It’s not
something we’re making up. It’s in reaction to the plan that’s been submitted.
MR. ABBATE-Okay. Thank you for your input, Mr. Zoning Administrator.
MR. URRICO-Relative to what’s on the table right now, and that’s the road frontage
issue, I would be in favor of it, and I hope we can vote on it tonight.
MR. ABBATE-Okay. Jim, would you like to go next?
MR. UNDERWOOD-Yes. I think that we’ve made remarkable progress here. I don’t
think there’s any doubt there’s been some give and take since the beginning, this whole
thing started, and I understand your frustrations in dealing with the notes from Staff and,
you know, it’s understandable that they keep coming up with these little things when
there’s little tweakings of the plan as submitted each time, but nonetheless, I think that,
you know, you’ve alleviated most all the concerns that we’ve had with the project. I don’t
think the Bean Road thing is an issue. I think that we all were pretty much on the same
page with that, that that wasn’t necessary. As far as the road frontage, it makes more
sense to me to have those five places go out onto Pilot Knob Road off that new access
driveway there. That makes sense, too. The only issues I think that would be
outstanding would be still the number of dock issues. I mean, we can argue that ad
infinitum, but I think that that’s something that the Planning Board is going to get into
probably and make a determination as far as that goes. I don’t think the docks are really
on the table here. I mean, they probably are going to have to come in at some point with
whatever the final form of the docks is. If you have to come back to us, we can deal with
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that issue there, but I really think that’s the only outstanding issue that I would have with
the whole project. I think the QB-4/Fort Ann Four lot combination thing there is probably
going to work. They may tweak the numbers of cars you can put down there or
something like that, or the number of docks, or the size of the building that you’re going
to use for community purposes, but I think that that joint meeting with the Planning
Boards of both Towns is probably going to clear up most of the major issues, and I don’t
think they’re unresolvable issues. I think they’re all things, there can be some movement
on both sides to accommodate what you’re trying to do here, and as far as the final
number of, you know, we’re down to 17, you know, originally we were at 20. If it drops
another couple of lots or something, who knows. I’m not going to second guess the
Planning Boards what they say, but I’m just saying, you know, that may have an effect on
the number of docks down there also. So I would be willing to vote yes on all your
proposals, but I think that the dock issue is something that we may have to revisit at
some time in the future, based upon what we end up with as a final number.
MR. ABBATE-Okay. Thank you, Mr. Underwood.
MR. BROWN-Mr. Chairman, could I just interject something that may be in response to
that, to clarify? In the beginning when this project came in, the docking issues and the
marina issue wasn’t on the table. At this Board’s direction, the applicant added that
information to the plan to alleviate the need to come back over and over to get infinite
bits of relief. So, in order to be flexible and work with the applicant, I haven’t issued
formal determinations each time the plan changes. The needs and the relief necessary
has been identified in the Staff Notes, and this is just to clarify the record, you know, if
the, the docking issue isn’t something that’s new in these Staff Notes. It was in the last
Staff Notes. It was in the Staff Notes before that. The new issue is the new property
line, and the reference to the docking and the way you measure the setbacks is in
response to the location of the new property line. So, if the dock’s not addressed this
evening, as you guys requested them to do, and they did, they put in part of their
package, if the relief for that’s not addressed, it’s not a Planning Board issue. It’s only a
Zoning Board issue, and there’ll be a formal determination issued tomorrow that says
they need a variance for it. So, what I’ve tried to do, in working with the applicant, is
identify everything possible, whenever the plans come back in, and does it change?
Sure it does, because the plans change, and that’s inevitable, but the flexibility is to try
and keep them going forward, but it’s tough to do when the target moves, too.
MR. URRICO-Well, why haven’t they been asked to apply for a variance at this point, if
that’s the case? How come, since it’s already been in the notes for three go arounds
now.
MR. BROWN-Like I said, I’ve been trying to be flexible and identify it as part of the Staff
Notes when it comes to the Board. I can certainly issue a formal letter that says you
need a variance for A, B, C, and D. It’s going to be spelled out exactly the way it is in the
Staff Notes.
MR. ABBATE-Okay. Well, if that’s going to be a determination for the docks, and they
can come back to us.
MR. UNDERWOOD-My only question would be, you meet the contractual access
requirements with the 417 number there, but I’m unsure how that plays out with the
number of docks that are still being requested. I mean, it’s come down somewhat, but
I’m wondering if there’s still going to be some give and take on that. I don’t know if the
Planning Board has any jurisdictional.
MR. BROWN-The Planning Board has some input on basically the subdivision layout,
which may drive the number of docks, it may not, but, you know, the length of time it’s
going to take to go between our Planning Board, the Fort Ann Planning Board, the APA
and get an ultimate decision, there’s really no rush for the Zoning Board to issue an
approval. A Planning Board meeting can be scheduled in one month. The week before
that they could be on before this Board, once the Planning Board settles on a plan that
they’re happy with, and that’s all that Staff Notes are trying to recommend, is to try and
give this Board as much information as possible before you make a decision and not
paint each Queensbury Board or Fort Ann Board with a variance that you issue.
MR. BRYANT-I would say that, Mr. Chairman, if this were more complicated, then
probably the Zoning Administrator is correct, but this is a really cut and dried issue. I
disagree. Looking at the site plan, I disagree with you as far as the measurement of the
docks, because if you extrapolate the line, as I see it, I don’t think that they need a
variance for the docks. So, I mean, you know, if that’s going to be your determination
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and they want to come back for an application, that’s another issue, but to answer the
question, the question specifically is we shouldn’t be in a rush, but in reality, the Planning
Board is not going to do anything to change the need for the variance when it comes to
the road frontage. They’re not going to do anything to it, unless you’re going to make
fewer lots, and I doubt it very seriously. The reality is, let’s just get one thing out of the
way. If they have to come back for another variance for the docks, and I disagree, but so
be it, but as far as the Planning Board goes, I don’t think that they’re going to provide
anything that is going to affect our decision tonight.
MR. ABBATE-Rick, please.
MR. GARRAND-Mr. Chairman, thank you. The applicant came here tonight and said
themselves, what they’re seeking is, you know, a variance for lack of road frontage on a
Town road. While I’m ready, willing, and able to grant relief on that, I think what they’ve
come forward, brought before us here is, you know, a great plan. They’ve gone to us
and asked us to make, you know, our recommendations, but subsequently Staff has also
had to modify what their requirements are for this project. That’s why we’re coming back
here over and over and over again. It’s nobody’s really changing anything. The plan is
changing, you know, marginally, but it’s also having an impact on Staff where they’ve got
to sit down and look, okay, now we need a variance here, we need a variance there. If
we can decide on, you know, tonight, just getting the road frontage issue out of the way, I
think that would be a step in the right direction. As far as the docks go, you know, I see
them as all part of a Homeowners Association, and in such being, I don’t see any
expansion or anything like that happening with them, no boathouses or anything like that.
So if tonight the only question we’re being asked is to approve frontage on a Town road,
I’m all for it.
MR. ABBATE-Okay. Mr. McNulty, please.
MR. MC NULTY-Okay. A lot of what I was going to say has kind of been said, but I can
understand the applicant’s frustration in coming back and there being yet one more thing
to satisfy, but I think you’ve got to understand. This is a big project. It may seem simple,
but it’s a big project. There’s a lot of home sites in another town that are going to utilize
one lot in the Town of Queensbury, and the potential for misuse, overuse, whatever, is
there, and it’s part of our job, and part of Staff’s job, to identify all those, and that’s what
Staff has been doing, and as he said, every time something has changed, then new
questions come up, and he’s doing his job of raising the other potential questions. Even
Bean Road. We’re charged with considering whether there’s a practical alternative for
the applicant to follow that would negate the need for a variance, and Bean Road is
something that was necessary to be brought up. I’ll agree with the residents of Bean
Road. It seems kind of ridiculous to propose making that a Town road and widening it,
but it’s an alternative that needed to be considered, and I think the other thing that would
have bothered me is if I didn’t have the clue that there might be another variance request
coming before us, because one thing we’ve hollered at before is we don’t like projects
that come in and say, give me this little thing, and then they come back three months
later and say, well, we need this, too, and you get three or four of these, and then you
look back and say, well, look at the cumulative impact. If we’d have had all these to
begin with, we would have said hell no. So, it’s good to know what else is coming. On
the dock issue, looking at it quick, it strikes me that the Zoning Administrator is correct,
that all those docks are on Lot Three’s property if you extend the property lines out. That
doesn’t mean that we wouldn’t give a variance for it because this may be a perfect
example of why variances are there, but the east and the west property lines extended
include all the docks. So, you know, I think he’s making a valid point, and we may have
to address that later. Knowing that, and being fairly confident with all of the issues that
have been brought up, that there probably isn’t some other sleeper coming back to us
makes me more comfortable in saying, okay, if we want to move forward with the road
frontage issue tonight, I wouldn’t have a problem with it.
MR. ABBATE-Okay. Thank you very much.
MR. LAPPER-Okay. A couple of quick points. It’s always our goal, and you’ve known
me for 20 years, I mean, in terms of working with the Board and making compromises to
make the project certainly acceptable to the Board and eliminate variances, that’s always
the goal, and it’s the same when you work with Staff, and what’s frustrating about
Queensbury, just in terms of the procedure, when you submit, and this time we had a
better, we had a shorter timeframe because we were down to one issue, but when you
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submit five weeks before a meeting on the 15 of the month before and you get the Staff
comments, and in terms of, you know, in Planning Board the engineering comments, the
morning of the meeting, it’s frustrating in terms of the process because it’s the first time
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(Queensbury ZBA Meeting 08/29/07)
you’ve seen it, and in other municipalities, I mean, in Saratoga Springs, the City Planner
would call you up the day that you got it and say, look, you addressed this stuff, but it just
seems to me that you’re also raising an issue here, you know, so it’s just an iterative
process, and in Queensbury it’s so formalistic that you don’t hear until the morning of the
meeting. So you think you’ve addressed everything. It makes difficult procedure. The
goal is always to satisfy everybody, and that said, I mean, you know, I have a different in
opinion with Craig in terms of where it goes across the channel. At the same time, if he
feels that that would require a variance the way it is here, I would just ask leave of, you
know, it appears that you’re ready to approve the variance that we’re asking for tonight,
but we also don’t want to have to come back for another variance. So we would just
change the angle. We’d still keep it at 412, so that the measurement would be the same,
but we would change the angle of that lot line coming out into that channel, so that it
would head farther east, and there would be no question that it’s 20 feet, you know,
because we don’t want to have a variance. We want to eliminate the need for variances.
So if that’s okay with the Board, we’d ask that this be approved this way with the
understanding that we’re just going to make that change before we submit for
subdivision. So that we eliminate the need for that, and for Craig to have to make that
determination. That’s on the eastern property line of the boundary between Lot 3 and
Lot 4.
MR. ABBATE-Okay. Now I have to finish my procedures. Now everybody’s under a lot
of stress this evening. Okay. My turn. I concur with the majority of the Board. I do
believe that the Irish Bay acted in good faith. It’s been a long time, and I understand the
frustrations. However, there are procedures. We have to take that into consideration as
well. Everybody feels that they have input, and rightfully so. There’s no question about
it. However, I strongly feel that as Mrs. Hunt pointed out, we should address that
particular issue this evening and make a decision. Having said that, I’m going to ask a
member of the Zoning Board of Appeals, please, do me a favor and perhaps come up
with a motion, but before you do, I’m going to respectfully remind the members that we
have the task of balancing the benefit of the variance against the impact on the area.
Now, this is different than a Use Variance. While State law sets forth five factors to take
into consideration, we need not necessarily approve all five factors to approve this
request. Now, having said that, do I have a member of the Board, please, do a motion
for me.
MRS. HUNT-I’ll do a motion.
MR. ABBATE-Thank you, Mrs. Hunt.
PUBLIC HEARING CLOSED
MOTION TO APPROVE AREA VARIANCE NO. 29-2007 IRISH BAY PARTNERS c/o
JOHN LEFNER, Introduced by Joyce Hunt who moved for its adoption, seconded by Roy
Urrico:
Bean Road. The applicant proposes a residential subdivision consisting of 17 home
sites, all of which will contain docks. The project has a total acreage of 97.7 acres in
both Towns, Queensbury and Fort Ann. The site was previously used by Fischer’s
Marina. The property in the Town of Queensbury is subject to the zoning requirements
of a Waterfront Residential 1 Acre district. The applicant is requesting a subdivision of
four lots in the Town of Queensbury, three single family building lots and one non
building lot. The property straddles the Town of Queensbury and Fort Ann boundaries.
Approval is also required by the APA. The relief required. Relief is required from the
proposed road frontage of 0 feet where a minimum of 40 feet is required, Section 179-4-
090. Whether the benefits could be achieved by other means feasible to the applicant, I
think we’ve talked about that, and not only the applicant but the residents are against
using Bean Road. Would there be an undesirable change in the neighborhood character
or to nearby properties? I don’t think so, and again, the homeowners seem to be in the
majority favoring that. The request might be considered substantial, but it’s only
because of the configuration of the property. Will it have adverse physical or
environmental effects? I don’t think so. In fact, I think it would be an improvement, and
the alleged difficulty is self-created only in the sense that they wish to develop this
property.
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Duly adopted this 29 day of August, 2007, by the following vote:
AYES: Mr. Urrico, Mr. Bryant, Mr. Underwood, Mr. McNulty, Mr. Garrand, Mrs. Hunt,
Mr. Abbate
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(Queensbury ZBA Meeting 08/29/07)
NOES: NONE
MR. ABBATE-The vote to approve Area Variance No. 29-2007 is seven yes, zero no.
Area Variance No. 29-2007 is approved.
MR. LAPPER-Thank you.
NEW BUSINESS:
NOTICE OF APPEAL NO. 6-2007 SEQRA TYPE: N/A STEVEN SEABOYER
AGENT(S): JONATHAN LAPPER, ESQ./STEFANIE BITTER, ESQ. OWNER(S):
STEVEN & DEBORAH SEABOYER ZONING: WR-1A LOCATION: 83 ROCKHURST
ROAD APPELLANT IS APPEALING A JUNE 25, 2007 ZONING ADMINISTRATOR
DETERMINATION REGARDING THE COMPLETENESS OF THEIR APPLICATION.
CROSS REF.: SP 33-06 WARREN COUNTY PLANNING: N/A LOT SIZE: 0.20
ACRES TAX MAP NO. 227.13-2-36 SECTION: 179-16-010
JON LAPPER & TOM CENTER, REPRESENTING APPLICANT, PRESENT
STAFF INPUT
Notes from Staff, Notice of Appeal No. 6-2007, Steven Seaboyer, Meeting Date: August
29, 2007 “Project Location: 83 Rockhurst Road Description of Proposed Project:
Appellant is appealing to the Zoning Board of Appeals relative to a June 25, 2007 letter
from the Zoning Administrator regarding the processing of their Site Plan Review
application.
Staff comments:
The issue at debate is whether or not the applicant needs to gain Town Board of Health
approval prior to reappearing before the Planning Board as stated in the Planning Board
resolution dated September 26, 2006.
It appears as thought the appellant is in the wrong venue and that they lack standing
before the Zoning Board of Appeals. The Planning Board required that the applicant
gain a septic approval from the Town Board of Health prior to continuing before them. It
is the appellant’s contention that they do not need to reappear before the Town Board of
Health as they have a septic approval from the New York State Department of Health.
However, this is a separate argument for which they do not appear to have any standing
before this board as the necessity of the review by the Town Board of Health is not a
matter for the Zoning Board of Appeals nor is the applicability of a condition of a
resolution made by the Planning Board. The decision to require the appellant to gain
Town Board of Health approval was initiated by the Planning Board and not the Zoning
Administrator; therefore, that decision can not be challenged at the Zoning Board of
Appeals.
There has been no “interpretation” made by the Zoning Administrator. The Planning
Board resolution speaks for itself. The appellant may inquire with the Planning Board as
to whether or not they wish to hear the matter without all requested information,
however, that decision is not for the Zoning Administrator, Zoning Board of Appeals or
Town Board to make.
The decision made by the Zoning Administrator in this case was to uphold the written
condition imposed on the appellant by the Planning Board.”
MR. UNDERWOOD-I don’t know if you want me to read that in, what it was, so the public
understands it.
MR. ABBATE-Yes, please. So we get it into the record.
MR. UNDERWOOD-It’s the last little bit of it. The Motion was to Table Site Plan No. 33-
2006 Steven & Debbie Seaboyer, Introduced by Robert Vollaro who moved for its
adoption, seconded by Donald Sipp. It will be tabled until such time as the septic
approval is received from the Town Board of Health. This would be tabled to an
unspecified date, until such time as the Town Board of Health takes its action. And this
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was Duly adopted the 26 day of September 2006 by the following vote: Mr. O’Connor,
at the time, said the applicant does not consent to that motion. AYES: Mr. Sipp, Mr.
Seguljic, Mr. Ford, Mr. Vollaro NOES: Mrs. Steffan, Mr. Hunsinger ABSENT: Mrs.
Bruno
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(Queensbury ZBA Meeting 08/29/07)
MR. ABBATE-Thank you very much. I see the applicant and Counsel are at the table.
Would you be kind enough please to speak into the microphone and identify yourself and
your relationship with this appeal.
MR. LAPPER-For the record, Jon Lapper, project attorney. To my right is Tom Center,
the project engineer, and Steve and Debbie Seaboyer, the applicants are here.
MR. ABBATE-Okay. Before we start, Counselor, I have two comments I have to make.
Number One, my package failed to include your request for an appeal. It was not in my
package. Is anyone else missing any documents?
MR. BRYANT-I’m missing a slew of documents, Mr. Chairman. A document dated 8/29
from the ZBA, 7/31, the information and maps, 6/26 the Planning Board information, I
mean 9/26. 9/11, the Town Board, 8/22, the Planning Board, 1/24 the Town Board, and I
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don’t have the June the 25 letter that’s referred to in the first paragraph.
MR. ABBATE-Okay, and before we continue, I’d like to make another statement to Board
members. Board members, I’d like to remind you of New York State Town Law 267, and
it reads as follows, quote “The Zoning Board of Appeals is authorized to hear and decide
appeals from and review any order, requirement, decision or determination made by an
administrative official charged with the enforcement of any ordinance adopted pursuant
to the zoning enabling statutes”. And it’s my opinion, based upon this law, and as
Chairman of this Board, that they do, in fact, have standing before this Board. Now this
does not address the merit of the case, but just standing. Now, if you’d like to proceed,
Counselor, go ahead.
MR. LAPPER-Thank you. On the standing, I was also, you’re looking at Town Law, and
I’m looking at Section 179-16-050, under Appeals, because in the Staff Note it said that
the Zoning Administrator did not make a quote unquote determination, and this Section
that I just cited says “An appeal from an action, decision or rule by the Zoning
Administrator regarding a requirement of this chapter may be made only to the Zoning
Board of Appeals within 60 days of such decision or action.” So, first of all, we’re always
under that 60 day gun. So you have to appeal or the Statute of Limitations will run, but I
also, you know, it was a decision, and so the decision is this, that in the Staff comments
tonight what I highlighted is the second to last sentence it says the appellant may inquiry
with the Planning Board as to whether or not they wish to hear the matter without all
requested information, however, that decision is not for the Zoning Administrator, Zoning
Board of Appeals or Town Board to make, and I just want to point out, I think what at
least two members of the Board did not have in their packet was the letter that I sent to
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the Planning Board Chairman on May 24, which I’d like to read, because what I just
quoted was the Staff Notes saying, why don’t you ask the Planning Board if you can get
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on the agenda, and here’s my proof that I did that. May 24 letter, Dear Chairman
Hunsinger: On April 16, 2007, we faxed and mailed the enclosed letter, and the
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enclosed letter was an April 16 letter that describes the merits of why we have an actual
permit from the Department of Health so we feel we don’t need one from, a variance
from the Town. A few weeks ago all the materials that were delivered with regard to the
Seaboyer’s submission were returned without a written explanation. It is our position
that there is no need for the Seaboyer’s application to return to the Town Board, acting
as the Local Board of Health, due to the fact that the New York State Department of
Health has already issued a permit for the alternate system that is proposed for this
project. We base our position on Section 136-7B of Chapter 136 of the Town of
Queensbury Sewage and Sewers Disposal Regulations. As a result, we request that the
application be placed on the next available Planning Board agenda as we had requested
in our April 16, 2007 letter. So we did, as the Staff had suggested tonight, and I don’t
know if that was Craig or somebody else, we made a request to be before the Planning
Board on the basis that what we had satisfied the condition of the Planning Board
because we got the permit. It’s just, in this case, the jurisdiction was with the State
Department of Health rather than the Town Board acting as Local Board of Health, but
then we got a determination back, which is what we appealed, which did come from
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Craig, and it said, it was addressed to the Seaboyers on June 25 in response to my
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letter of May 24. “I’m writing with regards to the above referenced application that has
been submitted on your behalf for review by the Town of Queensbury Planning Board.
Upon review of the application, materials submitted by Nace Engineering, your
application has been found to be incomplete. As such, your application cannot be further
processed or reviewed until the missing information has been submitted. Specifically,
your submittal was not responsive to the September 26, 2006 Planning Board tabling of
your application [see attachments dated 11/20/06 & 9/26/06]”, and he just goes on,
please contact Staff. So we feel that Craig did make the determination, and the page
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before, what I quoted out of the Code, 179-16-010, Zoning Administrator, “The Zoning
Administrator shall have the power and duty to administer and enforce the provisions of
this chapter. Specifically, the Zoning Administrator shall have the following powers and
duties: (1) Interpret the ordinance, unless such interpretation is overturned by the
Zoning Board of Appeals. (2) Determine the completeness of all applications submitted
under this chapter.” So I guess his letter was determining that it’s incomplete and
therefore we never got to the Planning Board, and we’re seeking to get to the Planning
Board.
MR. ABBATE-Okay. I’m going to give you an opportunity to present your case, but not
quite yet, okay.
MR. LAPPER-Okay.
MR. ABBATE-All right. This is for the Board members. The jurisdiction of the Zoning
Board of Appeals is to construe the ordinance, and includes the power to determine the
application of the ordinance to specific property, and, two, the ZBA has jurisdiction to
interpret the zoning regulations upon an appeal from an issuance of a permit by an
enforcement official and such interpretation by the ZBA will not disturbed, absent of
showing that it is irrational or unreasonable. Three, the Zoning Board of Appeals
jurisdiction to review the zoning decisions of enforcement officers is exclusive. It cannot
be exercised by any other administrative officers or by the legislative authority of the
municipality. Four, the Zoning Board of Appeals may, after appropriate notice and
hearing, reverse or affirm, wholly or partly, or may modify the order, requirement,
decision or determination appeal from, as in the Zoning Board of Appeal’s opinion ought
to have been made. Now, Counselor, you may continue your argument at this point, and
the Zoning Administrator will have an opportunity as well.
MR. LAPPER-And I guess it’s somewhat of a procedural argument at this point, that the
Zoning Administrator accepted the letter that we submitted to the Planning Board asking
the Planning Board to put us on the agenda, and he wrote us back saying that he will not
put us on the agenda because he determined it’s an incomplete application, even though
we submitted this permit from the State Department of Health for the septic system. So
we have no recourse to get to the Planning Board for a substantive determination
because we were denied access, which was his determination.
MR. UNDERWOOD-So ultimately it’s strictly because you have not gone to the Town
Board of Health and got their signoff on it?
MR. LAPPER-Yes, well, that’s what Craig said, we have to go to the Town Board of
Health because the Planning Board resolution said go get a permit from the Board of
Health, but that was actually incorrect because this type of a permit has to come from the
State. The State has jurisdiction over this type of a system, but we have not had the
opportunity, even though I wrote that in the letter, we haven’t had the opportunity to get
to the Planning Board because we’ve been deemed to have an incomplete application,
so we can’t explain that to the Planning Board.
MR. UNDERWOOD-For the Board’s interest, I recall your project when you were in
before us a long time ago there. It was approved by the Town Board of Health and then
they, you know, reneged on that? Is that essentially what happened, and then they
made you upgrade to something different?
MR. LAPPER-It was approved by the Board of Health. The system was upgraded, and
that system required approval by the State. They have jurisdiction. So, yes, but they
also had some Area Variances from the Zoning Board. I mean, this is a case of having a
seepage pit near the lake, and putting a system that can’t conform because the whole lot
isn’t 100 feet deep but it’s still a very sophisticated system.
MR. UNDERWOOD-So I assume it’s an aerobic system you’re on now? That’s my
understanding.
MR. LAPPER-Yes, and because of that.
STEVE SEABOYER
MR. SEABOYER-The system that we’re proposing is an aerobic treatment system.
MR. UNDERWOOD-Yes.
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(Queensbury ZBA Meeting 08/29/07)
MR. SEABOYER-Okay. I thought you said that we were on.
MR. UNDERWOOD-But I don’t understand how in the two year interim, if nothing moved
forward, I mean.
MR. LAPPER-It took a while to get the State, to submit to the State and get the State
Department of Health to review the system because an aerobic system requires their
approval, and when we finally got the permit, we submitted it to the Planning Board to get
on the agenda, and didn’t get on the agenda.
MR. UNDERWOOD-My only question would be, I mean, I’ll ask Craig the question, but I
know that they’re proposing like a sewer district out there or something at this point in
time for Rockhurst, eventually there’s some talk about that.
MR. LAPPER-I don’t think that has anything to do with this.
MR. UNDERWOOD-I don’t think it does either, but other then they would probably be
required to hook up if indeed it ever comes to fruition.
MR. LAPPER-Yes. That would be a great result for everybody if that ever happens.
MR. ABBATE-Okay, Allen, I think you had a question.
MR. BRYANT-Yes. I’m really at a disadvantage because I’m missing the Town Board
documents. I do see in the Planning Board documents they ask for specifically the
permit from the Town Board of Health. Okay. Now I’ve got some dates, if, looking at
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somebody else’s package, September 11 is when the Town Board originally approved
the, is that the correct date?
MR. UNDERWOOD-2005.
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MR. BRYANT-And then was it on January 24 that they reversed that? Because I don’t
have the documents so I don’t know.
MR. ABBATE-Here, take a look at mine.
MR. CENTER-The Town Board revoked the sewer variance at the September 11, 2006
meeting. That was when the sewer variance, that was when they revoked the approvals
for the variance.
MR. BRYANT-What did they do on 1/24? That’s ’05. Okay.
MR. CENTER-Yes, ’05, I believe, is when they approved it.
MR. BRYANT-That’s when they approved it.
MR. CENTER-Yes.
MR. UNDERWOOD-Did they revoke it for some specific reasons?
MR. CENTER-Their reasons within the revocation was in regards to calling it new
construction, a new septic system, that the Town Board could not issue a variance for
new construction, and that’s what brought us in to applying to New York State
Department of Health, because New York State Department of Health controls the
review for new construction, unless a local waiver, and that’s right in 75-A, under New
York State Law, I’ll just read it real quick. A local health department may not adopt less
stringent standards than the State, unless a general waiver has been issued. So, we
had to apply to the State because the Town doesn’t have standing to allow us, for new
construction, Department of Health regulations.
MR. UNDERWOOD-Yes, but I would assume that the system that you have now is going
to be 10 times better than what you had proposed.
MR. CENTER-It’s the same system.
MR. UNDERWOOD-Okay.
MR. CENTER-It’s the same system. It’s a question of who approves it, and the
determination of the construction. The Town Board of Health deemed the project to be
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(Queensbury ZBA Meeting 08/29/07)
new construction, therefore putting us into State requirement jurisdiction, and, you know,
we applied to the State. They have given us the approvals for the variance we were
seeking, made a determination on another one, and approved the system. That was
also, you know, we took comments from the Lake George Water Keeper and answered
those, and actually that’s where the aerobic treatment came from and worked with him
on the stormwater, also. So, that’s kind of where we are today, in trying to get back to
the Planning Board.
MR. ABBATE-I believe Rick has a question.
MR. GARRAND-So the Planning Board is still requiring you to get Town Board approval?
MR. LAPPER-No. I mean, the Planning Board, we’ve never been before them. So their
resolution from way back when said, come back to us after you have the system
approved by the Town Board, and it’s just that because of this type of system, it’s a
system that the Town Board can’t approve. It has to be the Board of Health, the
Department of Health, the State Department of Health, but we’ve never had our
opportunity to explain that to the Planning Board because when we submitted all of it, it
got rejected by the Zoning Administrator because he said it’s like a Catch-22, you didn’t
submit the thing that they told you to submit. We submitted something which we think is
better and certainly applies here, and we never got to the Planning Board to present it to
them.
MR. GARRAND-So eventually we could still have to go through the Town Board, though,
right?
MR. LAPPER-Well, we don’t think so. We think we’d convince the Planning Board that
the Department of Health approval is the correct jurisdiction.
MR. UNDERWOOD-Was that the venue that the Town Board wanted you to pursue with
the State? That was your only alternative at that point?
MR. LAPPER-I don’t know that anybody figured out the law, but we knew that we had the
engineers determined that we had to go to the State, and we went through a whole
process with the State, and the State said that they had jurisdiction and they granted the
permit.
MR. URRICO-So the Town Board has never addressed the issue at all?
MR. LAPPER-No. I mean, they withdrew the permit because they said that.
MR. URRICO-So they just withdrew it?
MR. LAPPER-Yes. Because it was for new construction, and new construction with an
aerobic system has to go to the State.
MR. URRICO-Okay. So they’ve never agreed that they didn’t have standing, or you
never asked them that question?
MR. LAPPER-We never asked them that question, because we didn’t need anything
from them.
MR. LAPPER-Can we ask Craig?
MR. ABBATE-We’ll give Craig an opportunity in just a second. Not yet. Yes, Mr. Bryant,
please.
MR. BRYANT-In the resolution to revoke your permit, in one of the last paragraphs, it
says, it’s revoked until such time as all necessary variances are granted for placing a
new septic system within a CEA for the purpose of serving new construction. So that
would imply, in my view, that they’re going to revisit that once you get all the variances
you need and so forth and so on. Is that correct?
MR. LAPPER-Well, I think they might have assumed in that sentence that they were the
ones that would have to revisit it, but it’s our position, legally and the Department of
Health, that they have jurisdiction and the Department of Health granted the permit. So
we must be right.
24
(Queensbury ZBA Meeting 08/29/07)
MR. GARRAND-We can’t grant any variances relative to the septic system. Only the
Town Board of Health can do that.
MR. LAPPER-Except, I mean, that’s true as between you and the Town Board of Health,
but in terms of septic systems in general, septic systems would be otherwise, permits
would be issued and reviewed by the State Department of Health, except that the State
Department of Health grants jurisdiction of some systems to Town Boards or to Local
Boards of Health, which in our case is the Town Board acting as the Local Board of
Health. However, this type of system is not the type of system that the Town Board has
jurisdiction over. The Department of Health, State, keeps that jurisdiction. So we had to
go to the higher authority.
MR. GARRAND-Thank you.
MR. ABBATE-Anyone else on the Board have any questions?
MRS. HUNT-It’s kind of confusing.
MR. LAPPER-It is kind of confusing.
MRS. HUNT-You have approval from the State Department of Health?
MR. LAPPER-Correct.
MR. CENTER-Yes.
MRS. HUNT-What would be the problem going to the Town Board of Health and getting
redundant or?
MR. LAPPER-They don’t have jurisdiction. We already have the permit.
MRS. HUNT-So they can’t issue any approvals.
MR. LAPPER-We already got the approval. They don’t have jurisdiction. So we don’t
need it from them.
MR. UNDERWOOD-I don’t understand, though, because if the Board of Health denied
what would have been approved, essentially initially they approved it, then they denied it.
MR. LAPPER-Yes.
MR. UNDERWOOD-They didn’t give you any recourse, they just threw up a roadblock
and said you can’t do anything now? I mean, that’s my understanding of what
happened, you know.
MR. LAPPER-I don’t think that the applicant was at the meeting, was given notice of the
meeting. It just, it got withdrawn, but then when we investigated it, we realized that it
was State jurisdiction rather than Town. We went to the State. We got the permit. We’d
just like the opportunity to explain this to the Planning Board. All we’re looking for is Site
Plan approval from the Planning Board, and this is a jurisdictional prerequisite which we
think we’ve satisfied.
MR. UNDERWOOD-If you go to the Planning Board and the Planning Board says you’ve
got to have Town Board of Health approval, are you likely to get it now with this? I mean,
I don’t know. I mean, what does the Town Board defer to the State?
MR. LAPPER-We believe that the Town Board has to defer to the State because the
State has jurisdiction. We presume that we could convince the Planning Board of that,
and if we couldn’t, I guess that would be appealable either in an Article 78. I guess that
would be the answer.
MR. ABBATE-Let me ask a question. What’s the name of your system again?
MR. CENTER-It’s an aerobic treatment system. Instead of a septic tank, it’s an aerobic
treatment system.
MR. ABBATE-Okay. Here’s my question. Does the Town Board of Health in
Queensbury have the jurisdiction to approve such a system?
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(Queensbury ZBA Meeting 08/29/07)
MR. UNDERWOOD-Yes. It’s a State approved system.
MR. CENTER-It’s a State approved system. For existing, if it was, this is for new
construction, and if it met new construction standards, I guess we wouldn’t even be here.
It would go through the normal process, meaning, if we didn’t need a variance, the Town
Board, we wouldn’t have to go before the Town Board, we wouldn’t go before anybody,
but because of the fact that we need the variances that we were requesting from the
lake, from the property line, I believe from the foundation, and the other one was in
regards to the 50% replacement area. Those are all State required, State mandated
separation distances. The only entity that can give you, and that’s what this less
stringent means, that I read from 75-A. The only entity that can grant a waiver from
those is New York State. Now, if the Town had its own code that said something needs
to be 200 feet, and the State says 100, then you would have to go to the Town Board.
MR. ABBATE-So it’s your position that the Town Board does not have such a provision?
MR. CENTER-Correct.
MR. ABBATE-Okay.
MR. CENTER-And the ones that we’re looking for, the in particular for the four things that
we got our State waivers for, those things are State jurisdiction that the Town’s
requirement is the same as the State’s, and the Town cannot give us the variance
because they’ve said it’s new construction. So we went to the State with it.
MR. BRYANT-One more question.
MR. ABBATE-Sure.
MR. BRYANT-I just want to clarify what we’re here about. Okay. You requested to go
on to the Planning Board agenda.
MR. LAPPER-Correct.
MR. BRYANT-The Zoning Administrator made a determination that said that your
application was incomplete because you hadn’t met the criteria set forth in the motion of
the Planning Board requesting you to go to the Town Board of Health.
MR. LAPPER-Correct.
MR. BRYANT-That’s primarily what we’re talking about. Whether or not the permit is
acceptable from the State or, I’d like to see a little bit more on that, in this 136.
MR. LAPPER-Well, we actually submitted a copy of the permit from the State. All that
information.
MR. BRYANT-I don’t have that.
MR. ABBATE-I don’t have it.
MR. BROWN-If it’s in the stapled package, everybody got the same.
MR. BRYANT-I didn’t get the stapled package. That’s the problem. That’s how I.
MR. ABBATE-And I did not even receive the appeal request from Counsel.
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MR. LAPPER-It’s in the stapled package, to Chairman Abbate, dated July 16.
MR. ABBATE-I never received it.
MR. BRYANT-Okay. We don’t have that. I have a stapled package that belongs to
Chuck that says.
MR. ABBATE-Yes, that’s mine, right.
MR. LAPPER-So let me just read the documents that are in this package, just so you’ll
understand what we submitted. We have a letter to the Chairman of the Zoning Board,
an application for Appeal of the Zoning Administrator’s decision. Then we have a copy
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of the Zoning Administrator’s decision, which is the June 25 letter to the Seaboyer’s.
26
(Queensbury ZBA Meeting 08/29/07)
Then we have the Planning Board resolution, the tabling resolution from September of
’06. Then we have my letter to the Chairman of the Planning Board from May of ’07.
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Then we have the April letter, my April 16 letter, to the Chairman of the Planning Board
that went through all of the law about the septic systems. Then we have a copy of the
State permit dated October 20, 2006, and then we have the waivers granted by the
Department of Health that are attached to the permit.
MR. UNDERWOOD-So, just refresh my memory. Initially this all got approved. You
were good to go with everything, and then somebody threw a wrench in the works and
left you in limbo with nowhere to go?
MR. LAPPER-That’s almost correct, except we were at the Planning Board, the applicant
was at the Planning Board for Site Plan approval. So the last hurdle was still yet to be
reviewed, and that’s when a wrench was thrown in.
MR. UNDERWOOD-But I mean, they didn’t give you any kind of a place, anywhere to
go? They just said sorry, that’s it?
MR. LAPPER-Right.
MR. UNDERWOOD-Okay.
MR. URRICO-What is this other document I have that says specific waiver? It looks like
a date of 9/15/83 on it.
MR. LAPPER-These are the State forms that accompany the permit.
MR. URRICO-Okay. Got it.
MR. BROWN-Yes, the date’s at the bottom.
MR. URRICO-Yes, I see, 10/20/06. Okay.
MR. LAPPER-That’s a form date.
MR. ABBATE-Let me take, before we get to Mr. Brown, ladies and gentlemen of the
Board, let me bring something to your attention, please. New York State Town Law 267
is very specific. It states, quote, Upon filing of notice, the officer is required, forthwith to
forward to the Zoning Board of Appeals, all of the papers which constitute the record
which the action, appeal from was taken. The Notice of Appeal, by Statute, is the initial
pleading in an Appeal to the Zoning Board of Appeals. The Zoning Board of Appeals
resolution dated 21 February ’07 basically says the same thing. You will submit to us
every document in the record. That hasn’t been complied with. Now, are there any other
questions before I get to the Zoning Administrator?
MR. UNDERWOOD-No, one last thing here, though. I think the issue at hand, and that’s
the Town Board, of why they revoked this thing, you know. The issue comes up, and it
says the individual sewage disposal system shall comply with the standards of this article
and with the most recent additions to the Wastewater Treatment Handbook, Individual
Household Systems, New York State Department of Health and Institutional Commercial
Sewage facilities, New York State Department of Environmental Conservation. In the
case of conflicts among the standards, the most restrictive shall apply, and the problem
that they had was, it looks to me is that it said, in view of such a statement, coupled to
the intent to tear down and rebuild, the building permit issued on January 11, 2006 was
in error in that it did not include the 50% set aside for the replacement of the infiltrated
area as required by the Waste Treatment Handbook. The Individual Household
Systems, New York State Department of Health, better known as the red book, as
described on Page Five. As other tests and measures are required for such new
construction project within a designated Critical Environmental Area were also absent,
therefore be it resolved that the septic variance as granted by the Town of Queensbury
Local Board of Health, and that was the Board of Health resolution on 1, 2005, were
never envisioned or intended to be used for new construction and resolved that the
proposed new construction on the Seaboyer property cannot benefit from such septic
variances, resolved that the septic variances granted by the Town of Queensbury Local
Board of Health in accordance with resolution Board of Health on 1, 2005 are hereby
revoked. So they revoked it, and, you know, it was a unanimous vote by the Town Board
to revoke it. So I would think it would have to come back. Has that issue been
addressed by the State as far as the reserve?
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(Queensbury ZBA Meeting 08/29/07)
MR. LAPPER-Because it’s new construction, we had to go to the State.
MR. UNDERWOOD-Okay.
MR. LAPPER-So what the Town Board maybe didn’t understand, that it wasn’t a come
back to the Town Board. It’s a go to the State Department of Health, the higher
authority, for this type of an aerobic system, which is a specialized system.
MR. UNDERWOOD-Well, I still don’t understand why they revoked it. I mean, it seems
like in their review that they would have known what was being proposed on site and
then to suddenly throw a wrench in it and say no, I don’t get it.
MR. ABBATE-As far as I can determine, there is no real specific justification for a
revocation, nor is there any guidance which the appellant should have followed.
MR. UNDERWOOD-No, I mean, they gave a legitimate reason why it should be revoked,
because of not having that reserve area or something.
MR. CENTER-Can I read from, we’ll just add a little light. This from the October 20,
2006 letter from the New York State Department of Health, and in the middle paragraph
it says, our review of the engineered system required, it’s from New York State
Department of Health, it’s signed by Mike Shaw, Senior Sanitary Engineer for New York
State Department of Health, to myself, Tom Center, at Nace Engineering, and it says our
review of the engineered system required the issuance of three specific waivers. A
specific waiver is required for new construction when a proposed on site wastewater
treatment system cannot meet the standards described in Appendix 75-A of the New
York State Sanitary Code. In your letter you requested a specific waiver for the following
four items: Number One, the absorption system cannot maintain 10 feet from the
property line. Number Two, the absorption system cannot maintain 100 feet to the
surface water. Number Three, the proposed aerobic treatment unit cannot maintain 10
feet separation from the foundation, and Number Four, insufficient area on the property
exists to provide a 50% reserved area. We have reviewed the proposal and agree that a
specific waiver may be allowed for Items One, Two, and Three. A specific waiver is not
required for Item Four. As stated in Appendix 75-A, Section 75-A.4.A.5, quote, an
additional usable area of 50% shall be set aside for future expansion or replacement
whenever possible, in italics, end quote. Emphasis added to point out that the 50%
reserve area is not a requirement, the plans describe system replacement and are
acceptable. So that’s how New York State addressed the in particular part of the
revocation, you know, that the Town was telling us was required.
MR. UNDERWOOD-So as far as, I mean, you’ve been through the whole process with
the Planning Board already and it was approved.
MR. LAPPER-No, we’ve been through the process with the Zoning Board and it was
approved, and we never got the opportunity to go to the Planning Board. We got the
permit and we never finished yet. It was at the Planning Board, but was never finished.
MR. UNDERWOOD-So they just tabled you. You had an initial meeting.
MR. UNDERWOOD-Until we got the permit from the Town, and instead we need to get
the permit from the State.
MR. CENTER-Just prior to the last meeting with the Planning Board, I believe that was
the, I don’t know when the motion, the tabling motion happened days after this
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September 11 meeting when the they revoked the.
MR. URRICO-Have you distributed a copy of the plan to the Town of Queensbury?
MR. CENTER-Yes, sir. Shortly after the Planning Board motion to table. We received it
thrd
the day, I think this is dated October 20, and that meeting was October 23. So as
soon as we got this, we brought it in to the Town Clerk. There was a scheduled meeting
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for October 23 to discuss the Seaboyer’s septic system, and we gave it to the Town
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Clerk to add to the package. We received it on the 20. We brought it in. Most of them
did not pick it up until the day of the meeting, and they kind of left us in limbo at the end
of that meeting, that they wouldn’t entertain the variance because they felt that a stricter
code, they never did give us an exact reason. There was some research that was
supposed to be done, but they would not entertain another variance, was the gist of that
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meeting on October 23.
28
(Queensbury ZBA Meeting 08/29/07)
MR. UNDERWOOD-What is your opinion, what would happen if you went to the Town
Board of Health? Would they turn you down again?
MR. CENTER-I don’t know where the variance.
MR. LAPPER-The answer is that we can’t apply to them for a variance that can only be
issued by the State. So they don’t have jurisdiction because the DOH did not grant them
jurisdiction of this type of system.
MR. UNDERWOOD-And that’s just because it’s in a CEA?
MR. LAPPER-No, it’s because it’s an aerobic, it’s a non standard system for new
construction.
MRS. HUNT-You also said that their requirements, the State requirements, are not less
than the Town requirements.
MR. LAPPER-The Town. They’re the same.
MR. ABBATE-That’s it, folks? Okay. Now, having said that, now we certainly owe the
Zoning Administrator an opportunity to present his statement and/or any rebuttal.
Please.
MR. BROWN-Sure, and just, first of all, a question for the record. As you can tell by
reading these Staff Notes, I have a fairly strong opinion about the applicability of the
appellant being here before this Board. So I’d just like to know for the record, is it the
consensus of the Board that they have standing to be before this Board on this
determination, or this decision?
MR. UNDERWOOD-It’s a little nebulous.
MR. BROWN-That’s the first thing you need to determine, if they have standing, before
you make any decision.
MR. UNDERWOOD-They are here, and we may as well discuss it. I mean, I think we
can, we’re not like prejudice against one side or the other.
MR. BROWN-No. I realize that, but you have to determine whether they’re in the right
forum or not.
MR. ABBATE-You made a decision, and my decision is yes, they are.
MR. BROWN-Well, that’s one vote.
MR. ABBATE-Because you made a decision. You said in your Staff Notes, the decision
made by the Zoning Administrator in this case was to uphold the written condition
imposed on the appellant by the Planning Board. New York State Town Law makes it
quite clear. If you sneeze, we can hear it, and they have standing.
MR. BROWN-That’s one vote.
MR. URRICO-Are we voting right now?
MR. ABBATE-Wait a second. You’re not going to challenge this Board. Okay. Now,
let’s continue on.
MR. BRYANT-Well, I do have a couple of questions. I just want, I thought I made that
clear when I asked the Counsel about exactly what we were hearing here today. We’re
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hearing your letter dated the 25 where you say their application is not complete. So
that gives them standing, this is my understanding.
MR. ABBATE-Absolutely.
MR. BRYANT-Okay. That gives them standing to be here because they’re challenging
your interpretation of complete because they have a permit, etc. So, that being said, I
want your input as to Counsel’s explanation, visa vi this State permit versus the Town.
MR. BROWN-Right. Yes. It’s very similar to an applicant requiring a permit from the
DEC for the wetlands and also requiring a Town permit for wetlands. You may have to
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(Queensbury ZBA Meeting 08/29/07)
get one. It doesn’t alleviate you need from going to the other body and getting approval
from them if it’s required. The decision that, you know, is the Code applicable. It’s not
up to the applicant. It’s not up to me. It’s not up to the Zoning Board. It’s up to the Town
Board on whether the septic code is applicable to what they want to do.
MR. BRYANT-Is what they’re saying, is that correct? Because they’ve stated that the
Town doesn’t have jurisdiction over that type of system.
MR. BROWN-That’s a decision for the Town Board to make, on the applicability of the
septic code, on whether they need to grant, whether they need to review a variance
request or not. It lies with the Board of Health and the Director of Building and Codes.
They’re the ones who make those initial decisions and the ultimate decision.
MR. UNDERWOOD-Let me just ask you, the ultimate question comes back to, what
originally happened here. In other words, when this was originally approved, we didn’t
approve it as new construction, I believe, when we gave our variances for them, it was
an upgrade of the thing. They were going to tear part of it down and rebuild it, and then
my understanding was that somebody got a bug planted in their ear that it was complete
new construction, and that’s why they yanked the plug on this project to begin with. Do
you just leave these people hanging in the air with no recourse? Sorry, you can’t do
anything to your house, or, I don’t understand.
MR. BROWN-No. I don’t know the rationale for how those decisions were made, and I
don’t think they’re left hanging in the air. I think the recourse here is to approach the
Town Board and say, do we still need an approval from you, and if the Town Board says
no, then they can go to the Planning Board. It’s not my decision that they’re required to
have approval from the Town Board. It’s the Planning Board’s decision. We have
presented this information to the Planning Board in the past. It’s been submitted by the
applicant. Got no favorable response from the Planning Board that says, sure, send
them back to us, we’ll consider it. I’d be curious to know if Mr. Lapper received the
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response from the Planning Board to his May 24 letter from the Planning Board
Chairman? Did the Planning Board Chairman say, sure, come on back, we’ll put you on
an agenda. I know that I didn’t receive any instruction from the Planning Board to put
them on a Planning Board agenda. So there’s no discretion here. You either meet the
condition or you don’t meet the condition, and that’s all I did, and they haven’t met the
condition.
MR. LAPPER-We can’t ask the Town Board for something they don’t have jurisdiction
for. We can’t ask them for a variance.
MR. BROWN-Well, I think you can ask them if they have jurisdiction.
MR. LAPPER-We can’t ask them. That’s not their decision whether they have
jurisdiction.
MR. BROWN-Well, it’s certainly not your decision.
MR. ABBATE-Well, we’re not going to argue this.
MR. BROWN-No, I’m not trying to argue.
MR. ABBATE-Let’s continue on here. Have you concluded your position?
MR. BROWN-Unless there’s any other questions.
MR. ABBATE-Okay. Then I’m going to continue on here.
MR. BROWN-No other questions? Okay.
MR. ABBATE-All right. To meet the obligation to open the public hearing.
MR. UNDERWOOD-Does the public comment on this?
MR. ABBATE-Yes. Absolutely. We have to open up the public hearing. To meet the
obligation of the Public Officers Law Sec: 3 for a fair and open process, the public
hearing is open for Appeal No. 6-2007. Do we have any folks in the audience who
would like to address this Appeal? Would you be kind enough to come to the table,
speak into the microphone, tell us who you are and where you reside, please.
30
(Queensbury ZBA Meeting 08/29/07)
PUBLIC HEARING OPENED
JOHN SALVADOR
MR. SALVADOR-Good evening. My name is John Salvador. I reside in North
Queensbury. Was it determined that you did receive this letter?
MR. ABBATE-I don’t have a copy of it.
MR. SALVADOR-The State Department of Health letter you have not received?
MRS. HUNT-I’ve got it.
MR. URRICO-Some of us have.
MR. ABBATE-Some have, some don’t.
MR. SALVADOR-All right. Fundamentally I think you should uphold the Zoning
Administrator’s determination in this regard. I think he’s absolutely right, for the following
reasons. There’s no question that this Town is in serious need of such an engineered
type system in certain locations, but it is incumbent upon the Town to make application
to the Department of Health to get a waiver to their requirements, so that we can use this
for everyone. We shouldn’t be doing this piece by piece. When I learned of this letter
from the Department of Health, addressed to Mr. Center, I FOIL’d it, and I responded to
it. I think you should take a serious look at all the conditions that are here on this
approval, this engineered system, the conditions, okay. Because it goes to what Mr.
Brown is talking about. It’s quite clear that the Town can have more restrictive code
requirements than a State agency, because we have particular site specific problems,
and that’s not addressed in this Town, in this DEC, or excuse me, Health Department
letter. For instance, they granted a waiver to Item One. They granted a waiver to Item
One. Item One says the absorption system cannot maintain 10 feet to the property line.
They didn’t say the property line was the road. They didn’t say that by encroaching on
that 10 feet they were in violation of subdivision plat that was approved by the same
Department of Health. They didn’t say that. They didn’t say that as a result of
encroaching on that 10 feet that you were going to cause all the snowplow debris to be
deposited on top of the Eljen system. They didn’t say that. They didn’t address that, and
those are things that the Town is addressing, because they are they are more stringent.
They’re more careful in this regard. So I think procedurally we should follow the Zoning
Administrator’s recommendation, and I did copy you folks, the Zoning Board of Appeals,
st
on my letter of November 21 on this subject.
MR. BRYANT-Where is that letter?
MR. ABBATE-I don’t have a copy of it.
MR. BRYANT-I don’t have a copy of that letter either.
MR. SALVADOR-Well, I distribute these myself, you know that. Okay. November 21,
2006. This is a copy of the Zoning Board of Appeals, among others. If you’d like another
copy, I’ll get it for you.
MR. ABBATE-Okay. Thank you, Mr. Salvador. I appreciate that. Do we have anyone
else in the public who’d like to address this Appeal? If not, Counselor, would you and
your clients please come back to table, and would you like to address any of the
comments that were made?
MR. LAPPER-Yes. I have two comments in response to Mr. Salvador.
MR. ABBATE-Okay.
MR. LAPPER-One was that he acknowledge that this is the type of system that should
be designed for the lake, which is why the Department of Health approved it, and what
we’re saying is that if the standard is the same, it’s no more restrictive in the Town for
this type of alternate system for a new construction. It is Department of Health’s
jurisdiction, and what he said is the standard is the same 10 feet. What he said is the
Town might care more because it’s a road. I mean, I don’t understand that logic, but
that’s not a legal argument in terms of, that doesn’t give the Town jurisdiction. What he’s
saying is, gee, it would be nice for the Town Board to take a look at this because they
might care more, but, I mean, all we’re saying, and you don’t have to answer the legal
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(Queensbury ZBA Meeting 08/29/07)
question. All we’re saying is send us back to the Planning Board and let us have our day
in court with the Planning Board to explain the regulations to them in terms of whether or
not we have the approvals that we need so that they can go forward with Site Plan
approval, and if, ultimately, this is something that has to be decided by a judge, it has to
be decided by a judge.
MR. URRICO-Why can’t we send you back to the Town Board?
MR. LAPPER-Because the Town Board doesn’t have jurisdiction.
MR. URRICO-But let them tell you that.
MR. LAPPER-It’s not for them to say whether they have jurisdiction. It’s for a higher
authority to say whether they have jurisdiction.
MR. URRICO-But let them say that.
MR. LAPPER-But the only permit that we believe that we need is Planning Board Site
Plan approval. So to go to the Town Board and get into a public argument on television
about what the standards are for septic systems on the lake, for aerobic systems, it’s not,
we have the permit from the higher authority, and we submitted the permit, and it was
issued by the DOH. So we don’t need the Town, and for the Town Board, they might not
like that the State has jurisdiction, you know, I don’t know, but we have the permits, and
what we’re saying, we’ve satisfied the requirement. We went out, we got the permit. We
got the variance from the higher authority. We don’t need to go to the Town. We just
need to go to the Planning Board.
MR. URRICO-You said you distributed a copy to the Town of Queensbury. Was that the
cc at the bottom?
MR. CENTER-Prior to the, I just want to make sure I get the date right, prior to the
October 23, 2006 meeting that we had with the Seaboyers, it was a Special Meeting of
the Town Board of Health. We did submit a copy of the Department of Health waiver
approvals.
MR. ABBATE-You submitted those to who?
MR. CENTER-To the Town Board.
MR. ABBATE-And what was the date of that, please?
MR. CENTER-The day that we submitted them?
MR. ABBATE-What’s the date of your correspondence there?
MR. CENTER-The date that we received the, I don’t have a copy of the exact
correspondence. I handed them to the Town Clerk. They were marked in. They were
put in the Town Board’s boxes for this meeting. I delivered them. In the meeting
rd
minutes of that October 23, some members stated that they had just received them that
day when they came to the meeting. Others hadn’t checked their boxes, so they didn’t
have it the night of that meeting.
MR. ABBATE-Okay, and let me ask you a question. At that time did they address this
issue? Did they address those documents you sent to them?
MR. CENTER-Yes.
MR. ABBATE-And what was the result?
MR. CENTER-And they said that they had to review them more, they were going to get
back to us, that they felt that they could be more restrictive than the State.
MR. ABBATE-That’s true.
MR. CENTER-Our argument was that the code that we were actually asking for a
variance for they couldn’t grant us. Only the State could, and it was really left.
MR. ABBATE-This was in October?
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(Queensbury ZBA Meeting 08/29/07)
MR. CENTER-This was in October.
MR. ABBATE-Did they get back to you, as they promised?
MR. CENTER-No, sir.
MR. BROWN-Yes, I believe the substance of that Town Board meeting was that the
Town Board, and I don’t know which particular member, was supposed to initiate some
research into, with Town Counsel at that time, which was Miller Mannix, can the Town
Board, does the Town Board have jurisdiction. Does the applicant need to come back to
us for another approval, or for our approval on top of the State’s approval.
MR. ABBATE-Right.
MR. BROWN-I don’t think that that was ever initiated by the Town Board. I picked this
up in probably November, contacted Town Counsel, got a response, and the response
was they still need Town Board approval.
MR. ABBATE-Okay. This was a decision made by Town Counsel at that time?
MR. BROWN-That’s correct.
MR. ABBATE-That the appellant requires Town Board approval.
MR. BROWN-In addition to the State approval.
MR. ABBATE-Yes, right. Okay. All right.
MR. BROWN-Yes.
MR. URRICO-Do we have a copy of that also?
MR. ABBATE-I don’t have a copy, guys. I don’t have half those documents, we’re
supposed to have.
MR. LAPPER-We don’t have that either. We’ve never seen that.
MR. ABBATE-And quite frankly, to be honest with you, Counselor, if it were up to me, I
would table this thing, because as far as I’m concerned, there’s insufficient information in
here, it’s defective. It hasn’t been perfected, and the whole bit, but that’s only my
perception, and that’s based on the fact that I don’t have all the documents in which to
make a decision based on the evidence in the record.
MR. LAPPER-Not because we didn’t submit it, but because.
MR. ABBATE-No, I’m not saying that. I’m not saying that you did or you didn’t. I’m just
saying I don’t have those documents, and I’m not happy about it.
MR. LAPPER-Some of the members of the Board have those documents.
MR. ABBATE-Some of them do, some of them don’t.
MR. LAPPER-And for the record, we submitted them.
MR. BROWN-So that I can make sure you get these documents, either again or for the
first time, can I just know who doesn’t have the information?
MR. ABBATE-I don’t have it.
MR. BRYANT-I’m missing, I’ve got a list of the stuff that I’m missing, comparing it to him,
and now I’ve made some additional notes of stuff that I’m missing.
MR. ABBATE-So have I.
MR. BRYANT-So, in reality, you know, I have a partial package here.
MR. BROWN-Sure.
MR. BRYANT-This is all I have on this.
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(Queensbury ZBA Meeting 08/29/07)
MR. BROWN-Right. Okay. We’ll get you a complete package of whatever was
submitted, this stapled together package that I referred to that came from the appellant. I
would ask, though, and this is an administrative thing for another time, but when these
packets are delivered, in the beginning of the month, if you compare it to the agenda and
you’re missing something, let us know as soon as possible and we’ll try and get it to you
as soon as possible.
MR. BRYANT-Well, I’ve got to be realistic about this. The only reason I know that I’m
missing is because I went to the Chairman’s house. I had some questions, and we
looked at the documents together.
MR. ABBATE-Page by page.
MR. BRYANT-Come to find out that he’s missing documents that I have, and I’m missing
documents that he has, and now we’re both missing documents that are being stated
here. So how would we know, the problem is that we should have a list, administratively,
of every document that should be in the file. See, legally, we should have everything
that’s in this applicant’s file to make a judgment, and frankly I can’t make a judgment
based on the information lacking two Town Board resolutions and all the documentation
with that. It’s fine to read something two minutes, you know, during the meeting, but I
need time to absorb. I’m old, you know, I’ve got to study these things.
MR. UNDERWOOD-So, do you want to poll us?
MR. ABBATE-Well, if it were up to me, quite frankly, based on the law, we can only make
a decision based on the evidence that’s contained in the record, and based on the
package that we received, at least two of us, the package is defective. It’s as simple as
that. What do you want to do, Jim?
MR. UNDERWOOD-Why don’t you just let everybody give their spiel here and then we
can decide whether we’re going to table it or not.
MR. ABBATE-Okay. All right. Let’s see. Where are we right now? We have no other
individuals who would like to be heard? Then I’m going to close the public hearing.
PUBLIC HEARING CLOSED
MR. ABBATE-And I would now request that Board members to offer their commentary. I
respectfully remind the members that precedence mandates that we concern ourselves
with the evidence which appears on the record to support our conclusions, and the
evidence relied upon should be specifically stated. This is necessary for a judicial
review. Having said that, comments. Who would like to go first?
MR. UNDERWOOD-I’ll go first.
MR. ABBATE-Please.
MR. UNDERWOOD-It’s my understanding, from reading back through the record, that
the current dwelling out there, you’re on a holding tank. Is that correct?
MR. SEABOYER-That’s not correct.
MR. UNDERWOOD-What is there at the present time?
MR. SEABOYER-There’s a seepage pit.
MR. UNDERWOOD-Okay. There is a seepage pit.
MR. SEABOYER-That’s correct.
MR. UNDERWOOD-Okay.
MR. SEABOYER-It’s a functioning system as it stands.
MR. UNDERWOOD-All right.
MR. SEABOYER-We just tried to upgrade that system.
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(Queensbury ZBA Meeting 08/29/07)
MR. UNDERWOOD-My understanding is that when you initially came in before us, years
back now, that this was presented to us as an upgrade of the property. It was going to
be a rebuild of part of the building or something. Somewhere along the way, I don’t know
whether it was misconstrued by the Town Board or whatever, but it appears to me that
they somehow revised this so it appeared to be a complete new construction, and I think
that was where this whole process kicked in where things were basically, the plug was
pulled on the project. I think that what you’ve done here, by going to the State, probably
was your only recourse at the time to do that, and by requesting an aerobic system,
which is State of the Art, which works, functions as all septic systems should probably be
upgraded to if they’re really going to work functionally, especially in a Critical
Environmental Area, it’s probably the best idea for what you’re trying to propose up
there, in doing this re-do, or whatever you want to call it. I mean, that’s not on the table
tonight. The Town Board, for whatever reason, pulled the plug on this project, in a
unanimous vote. There was a resolution by the Planning Board at the time that you were
going to have to go back and get some kind of a resolution from the Town Board of
Health at the time, and I think that regardless, I do buy the fact that you went to the State.
You took the time and made the effort to go there and get approval for your project, but
nonetheless, the Town does not ever give up its jurisdiction over review of any project in
the community, and I think it’s important that you do go back to the Town Board of Health
and get permission for this project. I don’t know. I’m not going to get into the why,
when’s and where’s of why they pulled the plug on you the first time here, but I would
think at this point in time, if you’ve gone to the trouble to get an approved system
approved by the State of New York, it would be very difficult for them to put up a
roadblock and say, no, you can’t rebuild your house or re-fix your house. I mean, if they
do, there’s got to be some substantial reason for that then that I don’t know about at this
point in time. I’m comfortable with the State’s interpretation as to whether this system is
going to be adequate for what you’re proposing to do on that site there. Knowing
Rockhurst is a troublesome area, it probably makes sense for it to go back to the Town
Board for approval before you go to the Planning Board. So I’m going to back up the
Zoning Administrator on this one.
MR. ABBATE-Okay. Let’s see. Rick, would you mind going next, please?
MR. GARRAND-Certainly, Mr. Chairman.
MR. ABBATE-Thank you.
MR. GARRAND-It’s not for this Board to circumvent the Town Board of Health in any
matter. By going to the New York State Department of Health, that should also not be
used for circumventing the Town Board of Health. This matter was before the Planning
Board in September of 2006, and they tabled this application requiring that they go
before the Town Board of Health. So I would be in support of the Zoning Administrator at
this point.
MR. ABBATE-Okay. Fine. Mr. McNulty, please.
MR. MC NULTY-I guess I basically agree with the members that have spoken before. I
understand the points that the appellant is making, but I think I agree with the Zoning
Administrator that it’s not up to this Board to determine what the jurisdiction of the Town
Board of Health is or is not, and in this case, I think the Zoning Administrator has made
the right call, that there’s a requirement for them to return to the Town Board of Health.
MR. ABBATE-Okay. Thank you. Mr. Urrico, please?
MR. URRICO-For the record, I’d like to say that I had everything that I was supposed to
have in my packet. So I must be one of the few that did get it. During the course of the
conversation we had tonight, I would like to have had the conversation, or the, that was
presented at the Town Board meetings, especially the one where you presented the
findings from the State, and they responded at that point. I would like to have had some
sort of documentation that they received it, they were considering it, what they were
doing with it. That being the case, I am uncomfortable, what appears to me an end
around three different Boards, the Town Board, the Board of Health, which is the Town
Board, but it’s a different Board, and the Planning Board, but not having everything in
front of me, I would be inclined to want to table this and make sure, to have more
information in front of me.
MR. ABBATE-I agree. Let’s see, Mrs. Hunt, may we go with you, please.
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(Queensbury ZBA Meeting 08/29/07)
MRS. HUNT-I find this, you know, rather distressing that this has been going on so long,
and I would like to know what the Town Board’s response was to the, so I would suggest
tabling it.
MR. ABBATE-Okay. Could we have also, let’s see, Mr. Bryant, please.
MR. BRYANT-Thank you, Mr. Chairman.
MR. ABBATE-You’re welcome.
MR. BRYANT-I have difficulty, in so much as I think I’m void of some critical documents,
specifically the two Town Board meetings, the minutes, and the resolutions, although I
did read your resolution. I’m also missing the permit from New York State. I’m missing
the information package dated 7/31. I’m missing the information package dated 8/29. I
mean, I’m missing so many documents. If you’re going to go to a vote, Mr. Chairman, I
recommend that you get one of the alternates to replace me. I’m not prepared to vote.
MR. ABBATE-All right. Thank you very much. I cannot in good conscience vote this
evening, because I have been deprived, quite frankly, of the necessary documents that
would enable me to make an intelligent decision. Not only am I missing documents
before I came this evening, but there were documents that were introduced or read this
evening that I don’t have a copy of either. However, we have as an obligation due
process, and I certainly understand that, and I would feel that due process, in my opinion
only, would be to table this until the next meeting, the first meeting in September, which
will give Staff an opportunity to, and you, present a package which would be, in our
opinion, and the opinion of the law, complete. It’s not Chuck Abbate saying this. It’s
New York State Town Law 267 that says every document that’s submitted that applies to
must be included in the package to the Zoning Board of Appeals. It’s not me saying it.
It’s State law. I would look for a motion to, quite frankly, to do justice, due process, to
table this until the first meeting in September. Counselor, if you’d like to respond, please
do.
MR. LAPPER-Just very briefly. Part of what’s missing in some of your packets is my
th
letter to the Planning Board Chairman dated April 16 where I cited the law, and one of
the most significant legal arguments is quoting Section 136-7B of Chapter 136, which is
the Town’s Sewer and Sewage Disposal regs, which says, alternative systems, as
defined in the Waste Treatment Handbook Individual Household Systems, except fill
systems, which this is not, may be permitted by application to the New York State
Department of Health. So, that’s the Section in the Town regs that says that this type of
system may be approved by the State.
MR. ABBATE-I don’t have that document.
MR. LAPPER-Right. I understand that, and that’s probably a good reason to table it
because you really don’t have all the information in front of you, but that is the Section of
the Town Code that we relied on to go to the State.
MR. BROWN-Mr. Chairman, if I could just make a comment.
MR. ABBATE-Please.
MR. BROWN-Keep in mind, the only issue at hand here is, was the determination that I
made that they couldn’t go before the Planning Board without Town Board approval first,
that’s the only issue on the table. Not was the Town Board, do they have discretion, do
they not, can they issue approvals, can they not, why did they make a decision. None of
that’s on the table. The only decision is my determination to not put them back before
the Planning Board because they had not met a condition that the Planning Board had
imposed. That’s the only decision on the table.
MR. UNDERWOOD-And that specifically was what the Planning Board asked in their
resolution. They said we will not hear this until it goes back to the Town Board.
MR. BROWN-We can get you whatever information you want.
MR. ABBATE-I think maybe somebody’s missing some points here. Let me do it again.
This is the third time.
MR. LAPPER-I agree with what Craig just said, and our argument is that Planning Board
resolution said go get the approval. We got the approval. It’s just that the Planning
36
(Queensbury ZBA Meeting 08/29/07)
Board doesn’t know the law that in this case the approval for this type of system comes
from somebody else, and all we wanted was our day in court to get before the Planning
Board and either we’ll convince them or we won’t, but Craig was just being, reading that
to the exact letter of what the Planning Board said.
MR. URRICO-Mr. Chairman, are we going to go through this over and over again? I just,
for the record, I want some more information.
MR. LAPPER-I’m all set.
MR. ABBATE-Well, Counselor, I’m going to say, for Counselor and the Zoning
Administrator, I’m going to say this for the last time. New York State Town Law is clear.
The Zoning Board of Appeals, okay, all of the papers, upon filing of a notice, the officer is
required forthwith to forward to the Zoning Board of Appeals all the papers which
constitute the record which the action, appeal from was taken. The Notice of Appeal, by
Statute, is the initial pleading in an appeal to the Zoning Board of Appeals. I can’t
interpret that any other way. When several of us say we don’t have documents with
which to consider and are not in the evidence, how can we make, how does Staff and
you, how do you comply with this? Neither one of you did. So as far as I’m concerned, it
should be tabled, but I will, go ahead.
MR. BRYANT-I just wanted to say, to clarify, for example, on the Town Board, the 9/11
meeting, if I had had the minutes, you know, I read the resolution tonight, but if I had had
the minutes, I could have absorbed what the discussion was and understand what their
thinking and logic behind their resolution was, but without that, I can’t make that
determination, and, you know, it’s just, I understand what you’re saying, and I
understand that we’re only looking at a narrow one sentence determination that your
application is not complete. I understand that, but I have no idea what the will of the
Town Board was when they rejected your, reversed your application, and at that time
they may have said something, that they wanted to make it complete. I mean, I don’t
know. That’s my only problem, Mr. Chairman. I’d be glad to relinquish my seat to one of
the alternates.
MR. ABBATE-No, I don’t think you should do that. Quite frankly, you are a permanent
member, and you are, each of us are entitled, I don’t want to go through this again.
We’re entitled to have all of the documents in the record, and we don’t have it. All of the
Board members do not have it. I’m going to move a motion and go for a vote.
MOTION TO TABLE NOTICE OF APPEAL NO. 6-2007 STEVEN SEABOYER,
Introduced by Charles Abbate who moved for its adoption, seconded by Joyce Hunt:
83 Rockhurst Road. To the first meeting in September, which will give both the appellant
and Staff an opportunity to put together a complete package.
th
Duly adopted this 29 day of August, 2007, by the following vote:
AYES: Mrs. Hunt, Mr. Garrand, Mr. McNulty, Mr. Bryant, Mr. Urrico, Mr. Abbate
NOES: Mr. Underwood
MS. GAGLIARDI-Mr. Chairman, if you’re going to table this, do you want to leave the
public hearing open?
MR. ABBATE-Yes, the public hearing is open, absolutely, thank you. The vote to table
Appeal No. 6-2007 to the first meeting in September, which will give both the appellant
and the Zoning Board of Appeals, or Staff, an opportunity to put together a complete
package, is six yes, one no. The motion is passed. Thank you very much.
USE VARIANCE NO. 54-2007 SEQRA TYPE: UNLISTED PET LODGE/130 BIG
BOOM ROAD, LLC AGENT(S): JONATHAN LAPPER, ESQ./ETHAN HALL
OWNER(S): 130 BIG BOOM ROAD, LLC ZONING: HC-INT. LOCATION: 384 BAY
ROAD APPLICANT PROPOSES OPERATION OF A PET LODGE/KENNEL AT
EXISTING FACILITY. RELIEF REQUESTED FROM PERMITTED USES IN THE HC-
INT. ZONE. CROSS REF.: SP 4-99, SP 47-98, SP 55-95, SV 25-94 WARREN
COUNTY PLANNING 7/11/07 LOT SIZE: 0.79 ACRES TAX MAP NO. 296.20-1-43
SECTION: 179-4-020
ETHAN HALL & JON LAPPER, REPRESENTING APPLICANT, PRESENT
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(Queensbury ZBA Meeting 08/29/07)
MR. UNDERWOOD-Just to go through what’s going on here, the applicant applied to the
Town and then they were notified by the Zoning Administrator at the time as to that their
request was not going to be approved. “Dear Mr. Sames: I am writing to you in
response to your May 9, 2007 letter regarding the above referenced matter and property.
The property in question is located in a Highway Commercial, Intensive (HC-Int) zoning
district within the Town of Queensbury. Your proposed use, as outlined in your letter, is
best described as a KENNEL per the Town of Queensbury Zoning Code definitions. A
kennel is not listed as an allowable use within the HC-Int zone. Therefore, a Use
Variance will be necessary should you wish to establish the same at the Bay Road
property.” At that point in time, they made some submittals, and I’ll let the applicant go
into that, but I think I’ll just read Staff Notes regarding the project.
MR. ABBATE-Okay.
STAFF INPUT
Notes from Staff, Use Variance No. 54-2007, Pet Lodge/130 Big Boom Road, LLC,
Meeting Date: August 29, 2007 “Project Location: 384 Bay Road Description of
Proposed Project: Applicant seeks to establish a Pet Lodge / Kennel on the property.
Relief Required:
Applicant requests relief from the allowable uses of the Highway
Commercial Intensive, (HC-Int) zone, per §179-4-020.
Criteria for considering a Use Variance according to Chapter 267 of Town Law:
1. Can the applicant realize a reasonable return, provided that lack of return is
substantial as demonstrated by competent financial evidence?
While the applicants claim that it would be “impractical” to develop the property with
several of the allowable uses listed for the zone, no “…competent financial evidence…”
“…for each and every permitted use…” has been submitted and several of the allowable
uses have not even been addressed by the applicant….namely auto uses ( repair, sales
and service ). Note: the applicants submittal describes the building as being “…designed
for an automotive use.”
Review of the applicant’s affidavit appears to reveal that they purchased the property in
2005 for $290,000, therefore the “assumed entitlement” of a 12% return beginning in
2001 appears to be excessive. It would seem as though the $363,776 would be the
more appropriate value after only 2 years of ownership, if the 12% appreciation rate is
acceptable. Was the purchase price in 2005 still the $290,000 as offered in 2000? Has
the property been marketed at the $363,776 price?
What is the monthly / annual figures for; Mortgage, utilities, taxes, maintenance,
insurances, etc versus potential income if converted to each and every allowable use?
None of this information has been offered with this submittal. What is the outstanding
mortgage value?
No actual “dollars and cents” amounts have been submitted.
This standard is not “highest and best use.” The standard is “reasonable return.” It does
not appear that the lack of return is substantial.
2. Is the alleged hardship relating to the property in question unique, and does this
hardship apply to a substantial portion of the district or neighborhood?
The property in question is similar in size and shape to several neighborhood properties.
The property has road frontage on a public highway and municipal utility connections
available. The building may be viewed a somewhat unique as it appears to be “designed
for an automotive use.” however Auto uses are allowed in this district.
3. Will the requested use variance, if granted, alter the essential character of the
neighborhood?
If granted, the subject property would be the only property in the immediate area with a
dog kennel. The commercial nature of the use would likely be similar to the current
neighborhood conditions.
4. Is the alleged hardship self-created:
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(Queensbury ZBA Meeting 08/29/07)
The alleged hardship can be interpreted as self created. The property transfer deed
dated; July 15, 2005 occurred more than 3 years after the most recent, April 2002
revisions to the Town of Queensbury Zoning Ordinance. Further, the previous 1988
Zoning Ordinance identified this property to have similar a Highway Commercial zoning
designation.
This information was public record which was available to the previous owners as well as
the current owners prior to the transfer. The property zoning designation has not
changed since the purchase date.
Parcel History (construction/site plan/variance, etc.):
P466 Retail Sales 6-10-69
BP 99-470 Body’s by Jay Auto Body Repair 8-2-99
BP 99-536 ACR Motors 9-15-99
BP 2001-218 Diamond Towing 5-18-01
Staff comments:
It appears as though the property can be utilized for an allowable use in the SFR-20
zoning district, specifically, an auto use.
There appears to be a lack of competent financial evidence for each and every permitted
use in the district.
It appears as though the property is similar to properties in the neighborhood.
The proposed use appears as though it would be in character with the neighborhood.
It appears as though both buyer and seller were aware or could have been aware of the
zoning requirements for the property prior to the transfer.
SEQR Status:
Type: Unlisted”
MR. UNDERWOOD-“Warren County Planning Board Project Review and Referral Form
July 11, 2007 Project Name: Pet Lodge/130 Big Boom Road, LLC Owner: 130 Big
Boom Road, LLC ID Number: QBY-07-UV-54 County Project#: Aug07-25 Current
Zoning: HC-Int. Community: Queensbury Project Description: Applicant proposes
operation of a Pet Lodge/Kennel at existing facility. Relief requested from permitted
uses in the HC_Int. zone. Site Location: 384 Bay Road Tax Map Number(s): 296.20-1-
43 Staff Notes: Use Variance: The applicant proposes operation of a Pet Lodge/Kennel
at existing facility. Relief requested from permitted uses in the HC-Int. zone. The
information submitted includes financial data indicating the property can not be used for
the allowed uses within the zone. The applicant has had one offer for purchase of the
property from a pet lodge kennel facility. The applicant has indicated the existing
building would accommodate the use, be compatible with the neighborhood and
currently has neighbor support. The applicant also indicated if grant a use variance the
proposed use would be reviewed under site plan. Staff does not identify an impact on
county resources based on the information submitted. Staff recommends no county
impact. County Planning Board Recommendation: No County Impact” Signed by
Richard C. Merrill, Warren County Planning Board 8/13/07.
MR. ABBATE-Okay. Thank you. I see we have gentlemen at the table. Gentlemen,
would you please tell us who you are and your relationship to the appeal, please.
MR. LAPPER-Jon Lapper the project attorney. To my left, Ethan Hall, project architect,
and the two principals, Matt Sames and Tom Brown, who’s a veterinarian. They are the
owners of Pet Lodge. They have four other Pet Lodge facilities and they’re hoping that
this one in Queensbury could be their fifth.
MR. ABBATE-Okay. Let me stop you for a second, please. Counselor, I don’t have all
the documents. Number One, in my package, which I have here from the Town, does
not include a financial statement, which is required, I think, by Otto vs. Steinbrenner. I
don’t recall if that’s correct or not, which demands that certain financial data be
submitted. I don’t have that in my package. I also don’t have in my package a letter that
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(Queensbury ZBA Meeting 08/29/07)
is referred to, May 9, 2007, a letter from Pet Lodge. I do not have access to that as well.
So, having said that, if you’d like to proceed, go right ahead.
MR. LAPPER-Gee, this sounds familiar. Does everybody else have missing
documents?
MR. ABBATE-I don’t know. Do you have it? No, another one doesn’t have it. No.
That’s three so far that doesn’t have it. We’re having a problem again. Maybe we
should do a resolution explaining what 267 means.
MR. UNDERWOOD-Well, I think we can look at this realistically, based upon, we’ve
done these before where we did have to be provided the uses and things like that that
were requested, you know, for a change in use. So I think that the Board, most of the
Board members are familiar with the procedures, and I think that we can let them go
ahead and present us what they want here, and at least listen to what they have to say.
MR. ABBATE-No, I don’t have a problem with that at all.
MR. BRYANT-One of the requirements of a Use Variance is that we get specific, very
specific detailed financial analysis of what it’s going to cost to turn the lights on, if it were
this kind of business versus this kind, and so forth and so on. In my package there is a
projected 12% return or whatever, and then they also talk about the square footage to
renovate the building to get to this point, but they clearly don’t, and this is a requirement.
MR. ABBATE-They don’t address the requirements under Otto vs. Steinbrenner, and
Steinbrenner. Am I correct on that?
MR. LAPPER-Yes.
MR. ABBATE-They do not address those issues, yes, that you need dollars and cents
proof. I’m doing this from memory.
MR. BRYANT-Yes. That’s a requirement. It’s not a recommendation. It’s a requirement.
I don’t know if it was included, but.
MR. LAPPER-Let me explain. It’s Steinhillber. That’s the famous case. It’s Otto vs.
Steinhillber.
MR. ABBATE-Okay.
MR. LAPPER-In this case, the specifics of this Use Variance, of course we have to show
financial hardship. We’re relying on a case, Shiely vs. ZBA of the City of Saratoga
rd
Springs, which is 1989 3 Department, which means our Department, Appellate Division
case. This is the type of a Use Variance where you have property that’s been sitting
vacant for a while and you vigorously market it with a broker and MLS and signs, and the
reason that there’s no reasonable return here is because it’s sitting there without any
income. Part of what the Staff said is that the applicant is required to, should be allowed
to get a reasonable return, and what’s wrong with this property, and Ethan is here to talk
about it as an architect, and the reason why we submitted the information for what it
would take to renovate, what you have here is a somewhat substandard building,
because a metal building on a slab is not a suitable building for many uses, in terms of,
can’t be easily converted to many of the Highway Commercial uses. A lot of the uses in
that zone would require more land, and we’ll go into that in more detail, but just I’m sort
of giving you a general overview of the case. So the owner is sitting there with a building
that is vacant. It certainly would be suitable for an automotive use if somebody came
along and said they wanted to run an automotive use.
MR. BRYANT-But that’s not the issue, Counselor. Whether the market is good for
automotive use or pet farms or banana sales is of no consequence. What is of
consequence is if there was an automotive use, what would be the return versus this
proposed pet lodge?
MR. LAPPER-I don’t agree with that. I mean, because in a case where the applicant is
going to run a business, that’s one thing, but when a property is for sale, there has to be
someone interested to buy it, and the reason why it’s a hardship is because it’s sitting
there vacant, advertised and multiple listed, and nobody’s come along and made an
offer, at any price, other than these fellows.
MR. UNDERWOOD-Can I ask a question.
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(Queensbury ZBA Meeting 08/29/07)
MR. ABBATE-Go ahead.
MR. UNDERWOOD-You purchased the property in 2005. Was it in use at that time, or
was it empty?
MR. LAPPER-It was in use as an automotive use in 2005.
MR. UNDERWOOD-It was just a body shop at that point, right?
MR. LAPPER-Right.
MR. UNDERWOOD-When did they leave?
MR. LAPPER-When did the business close down?
MR. UNDERWOOD-Yes.
MR. LAPPER-About a year ago. So it’s been sitting there vacant, and they’ve been
trying to sell it.
MR. ABBATE-Let me go through, just for a second, so the Board knows of the Otto rules
here. It says no such Use Variance shall be granted by a Board of Appeals without a
showing by the appellant that applicable zoning regulations and restrictions have caused
unnecessary hardship. In order to prove such unnecessary hardship, the applicant shall
demonstrate to the Board of Appeals that for each and every permitted use under the
zoning regulations for the particular district where the property is located, One, the
appellant cannot realize a reasonable return provided that lack of return is substantial as
demonstrated by competent financial evidence. Two, that the alleged hardship relating
to the property in question is unique and does not apply to a substantial portion of the
district or neighborhood. Three, that the requested Use Variance, if granted, will not alter
the essential character of the neighborhood, and Four, that the alleged hardship has not
been self-created. Those are the Otto rules.
MR. UNDERWOOD-What did you guys pay for the property in 2005?
MR. LAPPER-The price was $290,000.
MR. UNDERWOOD-And now it’s on the market for $579,000?
MR. LAPPER-Yes, and we explained that in the letter, in Ethan’s letter, because it was
under contract in 2001 and they had a contract to close on it, but they couldn’t get it
closed with the seller. So they have been, so that was the value in 2001. So it still
should have gone up every year even though they were leasing it and trying to force the
closing and they finally purchased it. So that’s our explanation, that there still should
have been appreciation from when the contract was entered into. That was the fair
market value in 2001.
MR. ABBATE-Any other questions from Board member, please? Yes, please.
MR. BRYANT-The original owner in 2005, did he also run the automotive business?
MR. LAPPER-Yes.
MR. BRYANT-Okay. Now is this a new owner?
MR. LAPPER-The applicants are agents of the owner, because they are the people that
are seeking to buy it. So we have information from the existing owner and to their
marketing, trying to sell the property. So the hardship is always the present owner who
has an inability to sell it, but the applicant, that’s the applicant, the present owner. Their
agents are the purchasers, because it’s the purchasers that are here to explain why their
use would not be a burden on the neighborhood, to get into the detail of what is
proposed here, to explain that prong of it.
MR. BRYANT-Yes, but the original owner actual operated the automobile business?
MR. LAPPER-Yes.
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MR. BRYANT-My question is, did they pursue other possible purchasers in that business
line? I mean, you’re familiar with the business line. You have contacts and so on.
MR. LAPPER-I know that they hired a broker, and I know that it was multiple listed and I
know that there’s been a sign on the building since last November. So, in terms of
whether they personally made any contacts within the industry, I don’t know, but it’s
certainly a very prominent spot. We all drive by it every day on Bay Road. It’s been
sitting there vacant. It still has the signage. It appears as an automotive business. It’s
not a secret, and nobody made an offer. There was not one offer for an automotive
business or anybody else.
MR. BRYANT-This is the first offer?
MR. LAPPER-This is the first offer.
MR. BRYANT-In a year.
MR. LAPPER-Yes, well, since November and when the contract was.
MR. ABBATE-Counselor, let me ask a question. I may have missed it. When did your
clients purchase this property?
MR. LAPPER-The actual purchase didn’t take place until 2005.
MR. ABBATE-2005, and when they purchased this property, there was an Ordinance in
place which basically does not allow this type of activity. Correct?
MR. LAPPER-Well, can I explain that for a second?
MR. ABBATE-Well, wait a second. Just answer my question, yes or no?
MR. LAPPER-The Ordinance permits a veterinary clinic with a kennel, and we’re trying
to do a kennel without a veterinary clinic. So in terms of that prong of it, that’s a very
important point, that you can have a kennel. Queensbury Animal hospital is right down
the street, you know, 10 buildings away. You can have this use as long as you have a
veterinarian. We have a veterinarian as part of the team, but this is not a veterinary
practice. It is a fancy dog kennel business.
MR. ABBATE-So I don’t have to pursue the due diligence route then, do I?
MR. LAPPER-Well, on that issue, I mean, what you’re getting at, in terms of whether
somebody knew about this, the issue is that there’s a perfectly fine automotive building
there, but for whatever reason, nobody in the automotive business wants to be on
Quaker Road or the building isn’t big enough or the site isn’t big enough. I don’t know
what the reason is that people didn’t make offers. All we know is that it’s been sitting
there vacant.
MR. ABBATE-Okay.
MR. LAPPER-And part of our reason is that it’s not suitable for conversion. We’ve gone
through the list of all of the other permitted uses, and Ethan has submitted a letter and is
here to testify. Some of the uses, you know, it’s ridiculous. The site’s not big enough for
a movie theater, and amusement center, a drive-in theater, a golf course, a shopping
mall, commercial boat storage, convention center, and those are, you know, require
much more land than what’s here, and the other ones, you know, aren’t going to be
suitable for a metal building like this on a slab, and they would take substantial
investment to bring them up to those type of uses and so Ethan went through, so we did
go through the whole list of all of the uses of what it would take. So we think we have a
small sized lot, and we have a metal building that is substandard for most uses, and that
has something to do with why there’s a hardship here, and why the owner is sitting there
with a vacant building, paying taxes and trying to sell it. On the other side of the coin, to
make sure that what is proposed is a reasonable use for the neighborhood, is partly the
argument that you can have a kennel. So this is not a huge variance, because you could
have a kennel as long as it’s with a veterinary practice, and then on top of that, and I
want to ask if you all have the packet with the photographs in our first submission, as to
what their business looks like. Because this isn’t, you know, you’re average kennel.
This is something that’s expensive because you’re getting a high level of service, if you
want to see your pet on the Internet for one thing, but just in terms of them having their
own room. It’s not unique. This is the direction that kennels are going these days, but
42
(Queensbury ZBA Meeting 08/29/07)
it’s just, it’s a nice service to have in the Town of Queensbury, and I want to put them on
to give you some description, and let you ask them some questions about that. So, we
cited a case, which I can give you a copy of or quote from, Sheily vs. ZBA of Saratoga
Springs, which talked about when you’re trying to establish a hardship in the case of
when you’re trying to market it, and you’ve made vigorous efforts to market it, and
nobody wants to buy it. So you’ve got a vacant piece of property, and that’s another
way, it’s an offshoot of Otto vs. Steinhillber, but it talks about how you establish it when
you have vacant property that you can’t sell, and that’s that line of cases that we’ve used
here because I mean everyone knows this is a prominent piece of property on one of the
main drags in Queensbury that everybody drives by every day. So the fact that nobody
wanted to buy it must have something to do with the fact that something is wrong with
the property.
MR. ABBATE-That’s good. Very good. Anybody else have any questions concerning
this before I move on? All right.
MR. MC NULTY-Yes, one. Do you have any information about how long, average, a
property like this might be on the market before it sells?
MR. LAPPER-I think the realtors are here, and we could ask them those kind of
questions.
MR. MC NULTY-Because, you know, I really hasn’t been listed that long. It’s been listed
for less than a year.
MR. LAPPER-Nine months. Can you guys talk about that? I’m just asking whether they
can testify.
MR. ABBATE-If they’re willing, by all means, they can testify.
MR. LAPPER-I will submit the letter from Steve Borgos, who’s the listing agent. Let me
just see if I can get the information that you’re asking for. Let me just read it. It’s written
to Joanna Brierton, who is the buyer’s agent. Dear Joanna: Thank you for your detailed
and constant efforts to help finalize the contract for the purchase by Pet Lodges for the
property at 384 Bay Road. It has taken a long time to reach this point, and we hope that
we are nearing a successful conclusion. As you know, the property is zoned for many
uses and it’s a very good location. However, we all recognize that the recent use as an
autobody shop and previously as an outdoor recreation product sales and repair
business probably is not the highest and best use of that property. Many years ago, Bay
Road was a hilly, winding road as it ran past the Lowe’s location all the way to Lake
George. Soon after the opening of the Adirondack Community College on Bay Road
campus in the Fall of ’67, Warren County began its project to level and straighten the
road. Traffic increased quickly and in a few years snowmobile sales and repair shop
was gone. Then came the autobody shop and now that is gone. The trend recently has
been for fewer an fewer autobody shops, the shops that are under such pressure from
the insurance industry that they have difficulty making a profit. Several other body shops
in this area are for sale. A number of people have actually visited and studied the Bay
Road property during the past year, although the showings have been limited in number
in spite of local and international advertising through many sources. The cost to rehab
the building for allowable retail uses has been a major concern. One person was
interested as a small office, but remodeling was too much. Another wanted the property
for auto repair, small remodeling costs, but refused to sign an agreement. Several
people were interested for various retail uses, but costs of remodeling were too high.
One person was interested as an investment, but potential buyers said it would be too
costly to prepare the building for the rental market. The best summary of my experience
with the property is that the location is great for something. That something doesn’t
include an auto body shop and there probably aren’t may popular businesses which
would agree to rehabilitate the building to comply with modern codes. The building and
property are suffering from obsolesce. The Pet Lodge’s proposal makes sense. It’s a
modern concept designed for the current population of this community. Because it can
use an easy modification of the existing building, it can afford a reasonable price and it
can transform the property into a productive facility. The services planned are needed
and will be popular and convenient additions to the community. The societal changes
which have lead to the decline of autobody shops are beyond the control of individuals.
They have inflicted personal and financial hardships on entrepreneurs who have been
driven out of business. Organizations such as pet lodges are fortunately sometimes
available to resolve the hardship issue. I hope that you are soon able to clear the
hurdles of the zoning process and move forward.
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(Queensbury ZBA Meeting 08/29/07)
MR. ABBATE-Now you’re going to enter that into the record, I assume?
MR. LAPPER-Yes.
MR. ABBATE-Would you kindly give it to the Secretary, please.
MR. BRYANT-The owner bought the property in 2005 for $290,000?
MR. LAPPER-The owner signed a contract and was supposed to buy it in 2000, but
didn’t get it closed at that price, and that price was a 2000 price, but didn’t actually close
until 2005, that’s correct.
MR. BRYANT-Okay, and the pet people, the applicant, they’re paying how much for the
property?
MR. LAPPER-$500,000.
MR. BRYANT-Okay. Maybe the fact that the building, or the hardship that was created
was because they’re asking twice what the building is worth. If it sat empty for nine
month, and you’re getting $500,000 in a declining market, versus the $290,000 from two
years ago, you know, something just doesn’t add up.
MR. LAPPER-Well, let me give you a comparable, because we just.
MR. BRYANT-Comparable, I’ve gone through that with commercial property.
Comparable is not always valid. This is why it’s kind of essential, because if you had
given us the correct data that we require by law, okay, as in the rent and so forth and so
on, you see.
MR. LAPPER-There is no rent. It’s vacant. There’s no tenant. It’s sitting there vacant.
MR. BRYANT-I understand that, but doesn’t mean there couldn’t be tenants.
MR. LAPPER-No, but.
MR. BRYANT-If the property was $325,000, there might be a repair guy who’d come out
of the woodwork to buy it. Okay. That’s the point.
MR. LAPPER-But if the property was worth $290,000 seven years ago, that’s not a
reasonable appreciation.
MR. BRYANT-2005 they bought it.
MR. LAPPER-Yes, but they signed the contract to buy it in 2000. That was a 2000 price.
MR. BRYANT-They bought it in 2005 for $290,000. That’s semantics.
MR. LAPPER-Okay. I guess we could argue that point.
MR. BRYANT-The reality is that maybe we’re asking a little bit too much for the types of
uses that are approved for that building.
MR. LAPPER-Well, let me just give you an example, because I’m familiar with the lot
next to Stewarts that just sold, that we just got approved for a bakery/deli, and that is
comparable size, and that sold for $240,000 vacant, as a vacant piece of property with
nothing on it, and this has a building.
MR. BRYANT-And this is $500,000 with a, I don’t want to get into it.
MR. ABBATE-The issue that could be raised, and I’m going to raise, is based this. Otto
rules are quite clear, if it’s self-created, we cannot grant the variance.
MR. LAPPER-And the reason why it’s not self-created is because when somebody
wants to sell their property and nobody comes along, that doesn’t make it self-created.
MR. ABBATE-Then an appraisal, an accurate appraisal which is not in the record, would
be appropriate, then.
MR. LAPPER-Okay.
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(Queensbury ZBA Meeting 08/29/07)
MR. ABBATE-Which we don’t have.
MR. LAPPER-Okay. We could supply you an appraisal.
MR. ABBATE-All right. Do we have any other comments? No? Okay. I’m going to
open up the public hearing, and we have an individual in the public who would like to
address Use Variance No. 54-2007.
PUBLIC HEARING OPENED
MICHAEL O’CONNOR
MR. O'CONNOR-I was trying to get just a point of order, if I can.
MR. ABBATE-Okay. First of all, tell us who you are.
MR. O'CONNOR-Okay. I’m Mike O’Connor.
MR. ABBATE-Thank you.
MR. O'CONNOR-I’m an attorney with the firm of Little & O’Connor. I represent the
adjoining owner of property that’s on two sides of this parcel that you have under
consideration, and I’ve listened to the Board comments, and mainly some Board
members have said their packet’s not complete. They don’t have what the other Board
members have, that they think that even if they had what the other Board members had,
their application would still be incomplete. I intend to support all the Staff comments as
to the inaccuracy of the application and the reasons for denial of it, but I don’t want to sit,
and maybe it’s not for me to say, but I would ask for a point of order. If you’re going to
table this thing, why don’t we do it now, before we discuss it for two hours, and let them
come back with a complete package, and then we’ll go through the process. That’s the
only point I raise for right now. I would certainly have comments as to the substance of
their application once they make their application. We don’t think it fits the character of
the neighborhood. We think it’s going to be detrimental to our property. We don’t think
the property has been adequately marketed, and all those things which you’ve kind of
gotten into, without me actually knowing what they’ve done or not done. How you jump
back from, you paid to $290,000, how you jump back to having an ability to impute
earnings for the three years before you made the investment, or four years before you
made the investment, I have no idea how you do that. Typically when you do these, you
bring in a CPA and he gives you an opinion as to rate of return and how it was
calculated, based upon appropriate accounting standards, as well as perhaps a realtor’s
opinion. You try to avoid Use Variances. They’re very difficult.
MR. ABBATE-Absolutely.
MR. O'CONNOR-And there’s a burden of proof on the applicant, but I raise right now just
to say I think I’ve heard at least three Board members express some dissatisfaction as to
the information you have. It looks like you’re going to table it. I would urge you to do that
now, rather than two hours from now.
MR. ABBATE-Thank you for your input.
MR. BRYANT-Can I just respond, while he’s still sitting at the table?
MR. ABBATE-By all means, go ahead.
MR. BRYANT-Primarily, what I’m missing from my package is the assessment by the
Town of Queensbury, which would be kind of germane to this discussion because we
have a piece of property that over the years has appreciated 40%, which in this declining
market is kind of amazing, but the other thing is the tax map, which I don’t know that is
even critical, but I think I made the point relative to the financial data which I don’t think
has been properly transmitted, that we should have the opportunity to look at what the
return would be on the types of uses that are approved for that property. The fact that it
sits vacant for nine months is one issue, but here we’re getting, in two years, we’re going
from $290,000 to $500,000, and maybe the property wasn’t marketed correctly. It’s nice
to make that much money on a piece of property in two years, but the reality is that it was
probably sellable to the other types of users as a lower rate.
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(Queensbury ZBA Meeting 08/29/07)
MR. O'CONNOR-And the goal or the guide that you have here is that you’re not looking
at the highest and best use. You’re looking at a reasonable rate of return.
MR. BRYANT-Exactly.
MR. ABBATE-That’s the Otto rule.
MR. O'CONNOR-And that’s a distinction that really has a lot of substance in what little bit
I’ve heard tonight. This may be the highest and best use that this present owner has, but
I would argue strongly that it’s not what would be the only reasonable return, but I don’t
want to get into the substance, and maybe I’m out of turn in suggesting that you table
this or ask that it be tabled so that they can submit stuff, but this is going to be a long
process, and by necessity we have to establish a record, Mr. Lapper for, Mr. O’Connor
against, so that we have recourse if somebody’s not satisfied, but from what I can hear
right now, the things being handed up right now are not part of the record. They’re not
part of your procedure. My understanding is the guideline that I’ve had is if it’s not in the
package, it’s new materials. That’s the procedural rules we operate under.
MR. ABBATE-Correct.
MR. O'CONNOR-Anybody else have a question?
MR. ABBATE-Thank you very much. Counselor, would you and your clients come back
and would you like to address the issues raised by Mr. O’Connor?
MR. LAPPER-I think it’s clear to everyone on the Board, regardless of what Mike said,
that we have a distressed property that’s been sitting vacant that’s an older, underutilized
building that’s not suitable for many uses. I’ve explained that we approach the financial
hardship perhaps differently than when you have a building that you’re renting and
you’ve got all the costs of what you’re earning, because you’re not earning anything
when you have a vacant building. We’re happy to provide an appraisal, and we’re happy
to back up the financial data. I dispute what he said, I mean, in terms of when we make
our presentation, we certainly present testimony and we have experts, which is totally
appropriate. So the fact that we submitted a letter, I think that, I know that I’ve done that
before with this Board to present evidence, but what troubles me, you know, obviously
tonight, people having things missing from packets and, you know, this is just not a good
situation. So, you know, I think that, getting through this, you’d feel that this is a good
use, but whether or not you feel that the record is complete or you want more information
from the existing seller and, you know, additional financial information, we’re happy to
provide anything that you want.
MR. ABBATE-Okay. Before we go on, do we have anyone else in the audience, in the
public, who would like to address, did I open a public hearing?
MR. UNDERWOOD-You never did.
MR. ABBATE-I never did, well I’m going to open up the public hearing right now. Is there
anyone in the public who would like to address Use Variance No. 54-2007? Raise your
hands and I’ll acknowledge you. Yes, sir.
MR. O'CONNOR-As far as the substance of the application.
MR. ABBATE-The substance of the application. Your claim is that you haven’t heard the
substance of the application.
MR. LAPPER-We have not, I have witnesses. We have not presented our whole case,
but I guess I agree with Mike, that if the Board, that if there’s additional information such
as an appraisal, obviously the case where they signed a contract and locked in a price
but then couldn’t get it closed, I mean, this is an unusual situation and we can debate
that in terms of what the value is, and if an appraisal is something that would be helpful,
then we’ll provide an appraisal, to try and justify the price.
MR. BRYANT-The assessment, which I don’t have in my package, which I just saw, is
$330,000. So you have a contract for $500,000. The question is, is the fact that the
property is vacant self-created. Because in realty if the property was offered at
$350,000, you may have had an automobile business. That’s not for us to really discuss.
MR. LAPPER-No, but I guess we should show you that, as to how much money they lost
by having a vacant property and having to pay taxes.
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(Queensbury ZBA Meeting 08/29/07)
MR. BRYANT-What you need to show us is the various uses, usage that are, uses that
are acceptable.
MR. ABBATE-Let me make it simple. You have to address the Otto rules. There are
four or five of them. You address those Otto rules, and then you have furnished all the
information we could possibly want. You haven’t addressed them. At least we don’t
have it in the package.
MR. LAPPER-And I think I’ve explained why we’ve approached this differently because
it’s a vacant property.
MR. ABBATE-I understand.
MR. LAPPER-But at the same time, we certainly want to have the record complete.
MR. BRYANT-But this is a requirement by law.
MR. ABBATE-Absolutely.
MR. LAPPER-Otto was the first main cases, and there’ve been a lot of cases since then
that interpreted different situations differently. I mean, you have to have competent
financial information, dollars and cents proof, but that proof is different in the case where
you have a vacant building.
MR. ABBATE-Okay. What other case did you refer to?
MR. LAPPER-What I cited was, this is a case under 267. It was a 1989 case.
MR. ABBATE-Okay. Now here’s what I suggest, Counselor. You take copies of that
1989 case and also include that in your package for review by members of this Board as
well, and then they can take the Otto rules and take your particular case and then come
to an intelligent decision, hopefully. So include that in your package as well. All right.
Now, one member of the public indicated, and he had a good point. Why continue on if
we may just very well table this, and I think I heard a suggestion by Counsel that perhaps
you would not have a problem with tabling.
MR. LAPPER-No.
MR. ABBATE-Okay.
MR. UNDERWOOD-Why don’t we, though, specifically go through what the Zoning
Administrator had asked them for that appeared to be missing.
MR. ABBATE-Okay. We can do that.
MR. UNDERWOOD-So that way when they come back to us those things will have been
submitted to us at the time.
MR. ABBATE-Okay. I don’t have a problem with that.
MR. LAPPER-We did respond to the first letter from the Zoning Administrator. So now
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we’re looking at, it somehow says November 15.
MR. BROWN-Yes. There’s the wrong dates on the Staff Notes.
MR. LAPPER-Okay. That’s the one.
MR. ABBATE-Wrong dates?
MR. BROWN-Yes.
MR. ABBATE-Okay. Well, while Counselor is mulling that over there, please, Mr. Zoning
Administrator, put all the packages together for us.
MR. BROWN-Yes. I think we definitely want to get to the bottom of what you guys have
in your packages, versus, what’s in the record versus what you want are two different
things. What’s in the record is what’s been submitted by the applicant and what’s been
47
(Queensbury ZBA Meeting 08/29/07)
prepared by Staff. If you want Staff Notes, or if you want Zoning Board minutes or Town
Board minutes or copies of case law, that’s not required.
MR. ABBATE-Okay. This is what I want. Are you ready?
MR. BROWN-If you have a specific request of us, we can try and fill it, but it’s not it’s not
required.
MR. BRYANT-It is required.
MR. BROWN-Only what’s been submitted is the record.
MR. ABBATE-Wait a minute. This is what I require, and this is what New York State
Town Law requires. Are you ready? For the record, upon filing of notice, the officer,
which is you, is required forthwith to forward to the Zoning Board of Appeals all the
papers which constitute the record which the action, appeal from was taken. The notice
of appeal, by Statute, is the initial pleading in an appeal to the Zoning Board of Appeals.
I’ll go one step further. If you take a look at the Zoning Board of Appeals resolution of 21
February 2007, not only does it amplify this, but it becomes even more specific. In other
words, if a piece of paper, okay, it doesn’t matter whether it was through the post office
or not, relates or is addressing this, and it doesn’t matter whether it comes from the
public. It doesn’t matter whether it comes from the appellant. Any document, any
document at all, which constitutes the record, which means all the papers, and that’s
what we want, all the papers.
MR. BROWN-I agree, but I think what Mr. Bryant’s going to say is he’s got another
specific request list.
MR. BRYANT-No. I think the minutes are part of the record.
MR. BROWN-Well, the only thing that’s part of the record is what’s been submitted by
the appellant, and what’s been submitted by Staff and public comment. Previous
decisions, previous meeting minutes aren’t part of the record, unless they have been
submitted by one side or the other.
MR. ABBATE-Is that a legal opinion you’re making?
MR. BROWN-No. I’m not an attorney. I don’t have any legal opinions.
MR. ABBATE-Okay. Well, I’m telling you that I want all of the papers which constitute
the record which the action appeal from was taken.
MR. BROWN-We’ll supply you the information that’s required by that code right there.
MR. BRYANT-Let me be specific. In the previous case, where there was a Town Board
action relative to negating a previous thing, I mean, all that is part of the record. Those
minutes, that resolution should be part of the package. Okay. You disagree that that
type of document is not part of the record?
MR. BROWN-Well, I mean, we can go on. I can’t speculate what you think you might
need to make a decision. Again, what constitutes the record is what’s been submitted by
the appellant and what’s, if there’s any Staff comments and then public comment. That’s
the record, and that’s what you’re entitled to receive. The meeting minutes from 20
years ago aren’t part of the record.
MR. ABBATE-That’s not what we’re talking about.
MR. BROWN-Well, that’s what Al’s talking about.
MR. ABBATE-As well as any correspondence which comes in, either supporting and/or
opposing is part of the record as well.
MR. BROWN-Absolutely, but again, that’s not what Al’s looking for.
MR. ABBATE-Well, okay.
MR. LAPPER-But let me make a suggestion. In the interest of time, if you would table it
for us to provide additional information pursuant to the Staff Notes, that would be suitable
to us.
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(Queensbury ZBA Meeting 08/29/07)
MR. ABBATE-Okay. I’ll honor that. Why not. It makes sense. Well, we all know,
basically what’s going to be required. Correct? I don’t have to go through that again and
list them?
MR. LAPPER-Yes.
MR. ABBATE-All right.
MOTION TO TABLE USE VARIANCE NO. 54-2007 PET LODGE/130 BIG BOOM
ROAD, LLC, Introduced by Charles Abbate who moved for its adoption, seconded by
Allan Bryant:
384 Bay Road. To be tabled to a hearing on October 24, 2007, provided the information
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requested this evening is submitted no later than the 15 of September to Staff.
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Duly adopted this 29 day of August, 2007, by the following vote:
MR. ABBATE-When can you folks put that together? I want to be fair about it.
MR. LAPPER-Well, we’ll probably need until.
MR. ABBATE-I want to be fair with the Zoning Administrator as well.
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MR. LAPPER-September 15 to make a submission.
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MR. ABBATE-The 15. Okay. Be rescheduled for a hearing in October 2007, providing
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the information requested this evening is submitted no later than the 15 of September to
Staff. Okay. The public hearing will remain open. Yes? Come up to the table, Mike,
would you please.
MR. O'CONNOR-Do you have a meeting the second week in October?
MR. ABBATE-Help me out, guys. What are our meetings in October?
MR. BROWN-In October? It depends on how many applications come in.
MR. ABBATE-All right. I’m setting the agenda tomorrow, and I won’t know until
tomorrow.
MR. LAPPER-I want it whenever Mike’s out of town.
MR. ABBATE-All right. Do you want the second meeting in October?
MR. LAPPER-That’s fine.
MR. ABBATE-Do you have a problem with it? Okay. It’s the second or later?
MR. O'CONNOR-Yes.
MR. ABBATE-Okay. I’ll tell you what. It gives me flexibility because tomorrow when I set
the agenda, if we have a lot of appeals to be heard, then I’ll move it even further for you.
How’s that, is that okay with you, Counselor? Okay?
MR. O'CONNOR-Yes. Can I ask a question? Is this the same group that runs the Pet
Lodge at Albany Airport?
MR. LAPPER-Yes.
MR. O'CONNOR-Is this going to be the same type of operation?
APPLICANT-Yes.
MR. O'CONNOR-I’ve got a submittal that I’ll give you to, and I’ll give you a copy. I just
have a submittal that I took from the Internet, and I don’t want to operate by.
MR. ABBATE-All right. What are you doing, Counselor, are you offering something into
evidence that we don’t have?
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(Queensbury ZBA Meeting 08/29/07)
MR. O'CONNOR-I’m just going to give it to Mr. Lapper and I’ll give you each a copy for
your records.
MR. ABBATE-Okay.
MR. LAPPER-I think we’ve seen this.
MR. URRICO-Can I ask a question? If that turns out not to be a meeting date, is the
resolution valid? Can’t we just vote on?
MR. ABBATE-I don’t know what the meeting date. Does anybody have a calendar for
October?
MR. URRICO-Does it have to be tabled to a specific date?
MR. ABBATE-No, it doesn’t.
MR. URRICO-Can we just table it for a period of 60 days.
MR. ABBATE-Well, actually Jim and I are going to work on the agenda tomorrow for
October.
MR. URRICO-Table it for like 60 days or.
MR. ABBATE-We could table it up to 62 days.
MR. URRICO-Okay. Instead of being specific about a date, in case something comes
up.
MR. ABBATE-Anybody have a calendar for October? I apologize. I don’t.
thth
MS. GAGLIARDI-It’s October 17 and 24.
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MR. ABBATE-Okay. We’ll tentatively schedule it for the 24 of October 2007. How’s
that, Roy? Feel better? Okay.
MR. URRICO-My point was that if for some reason they couldn’t do it on that date, then
is the resolution invalid? If you just left it open 62 days.
MR. ABBATE-No, not really.
MR. URRICO-Okay.
AYES: Mr. Bryant, Mr. Urrico, Mrs. Hunt, Mr. Garrand, Mr. McNulty, Mr. Underwood,
Mr. Abbate
NOES: NONE
MR. ABBATE-All right. The vote to table Use Variance No. 54-2007 is seven yes, zero
no. The motion is carried. Use Variance No. 54-2007 is tabled for the October 24, 2007
hearing. The public hearing is still open. Now, Mr. O’Connor, you had something you
wanted to say.
MR. O'CONNOR-I just wanted to complete my statement. What I submitted was a copy
of one of the pages off the web page, along with a copy of the McKinney law on Use
Variances, which I had to look at. We’re not very familiar with them. We don’t do them
that often, but I think if you take the time and go through that and read it, you’re going to
find that it’s pretty well laid out as to what an applicant has to do, what an opponent also
has to do. It’s not a bad guide for you.
MR. ABBATE-That’s New York State Town Law 267?
MR. O'CONNOR-Yes.
MR. ABBATE-Okay. Got it covered. Thank you. I can assure you I will go through it.
Okay.
MR. O'CONNOR-Thank you.
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MR. ABBATE-So, Counselor, we’re okay on that, then? All right.
NOTICE OF APPEAL NO. 5-2007 SEQRA TYPE: N/A COMMUNITY WORK &
INDEPENDENCE, INC. AGENT(S): STEFANIE BITTER, ESQ. OWNER(S):
QUEENSBURY 400 PROPERTIES, INC. ZONING: LI LOCATION: 519
QUEENSBURY AVENUE APPELLANT IS APPEALING A MAY 22, 2007
ADMINISTRATOR’S DETERMINATION REGARDING SECTION 179-4-020 TABLE 3
SUMMARY OF ALLOWED USES 179-2-010 DEFINITIONS AND WORD USAGE, AS
WELL AS AN APPEAL FROM THE LETTERS OF DETERMINATION OF CRAIG
BROWN DATED MAY 22, 2007 AND JUNE 1, 2007. CROSS REF.: N/A WARREN
COUNTY PLANNING: N/A LOT SIZE: 1.84 ACRES TAX MAP NO. 297.12-1-3
SECTION: 179-4-020, 179-2-010
JON LAPPER & MARK DONOHUE, REPRESENTING APPLICANT, PRESENT
STAFF INPUT
Notes from Staff, Notice of Appeal No. 5-2007, Community Work & Independence, Inc.,
Meeting Date: August 29, 2007 “Project Location: 519 Queensbury Avenue
Description of Proposed Project: Appellant is appealing to the Zoning Board of Appeals
relative to a May 22, 2007 letter from the Zoning Administrator regarding allowable uses
in the Light Industrial Zone.
Staff comments:
The issue at debate is does the Community, Work & Independence (CWI) use, as
described in a May 16, 2007 letter from Mark Donahue, meet the Town of Queensbury
Zoning Code definition of a Health Related Facility.
The above referenced Donahue letter states: “As a NYS certified program…” the
“consumers will receive both life skills and support services at the site.” As such, the use
clearly and unambiguously, appears to fit the Town definition of a Health Related Facility,
specifically: “…operated by individuals in the health industry licensed by the State of New
York…” including “…offices, laboratories, outpatient facilities or training facilities.”
The proposed use appears to be a NYS recognized program offering outpatient and
training facilities.
HEALTH-RELATED FACILITY -- A building or site used for the treatment of illness,
disease, injury, deformity and other abnormal physical or mental conditions, including
rehabilitation activities, and which is operated by individuals in the health industry
licensed by the State of New York. All hospitals and institutions specializing in medical
treatment, physical and mental therapy (including alcohol and drug treatment), and
assisted living for all ages are considered to be health-related facilities. A health-related
facility may include related facilities, such as offices, laboratories, outpatient facilities or
training facilities. The definition includes the terms "nursing home" and "convalescent
homes."”
MR. ABBATE-The appellant, apparently, and his client are at the table. Would you be
kind enough to speak into the microphone and tell us your name and your relationship to
the appeal, please.
MR. LAPPER-Jon Lapper with Mark Donohue, CFO of Community Work and
Independence.
MR. ABBATE-Okay. Now, Counselor, before you start, I do not have in my package
which I have here, the original staple is included in there. I don’t have the application for
appeal. I do not have the letter of 16 May ’07 to Craig Brown. I don’t have the Zoning
Administrator letter May 23, 2007, and I don’t have a 1 June ’07 to Craig Brown with the
background information. Is there anyone else who’s missing any documents?
MR. BRYANT-Apparently there’s a stapled package dated 7/31 that has RPS something.
MR. UNDERWOOD-Data.
MR. BRYANT-Yes, data, and parcel history. I don’t have that.
MR. ABBATE-Okay.
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MR. LAPPER-Do you have our July 16 package to the Chairman?
MR. ABBATE-What date did you say?
MR. LAPPER-July 16.
MR. ABBATE-I do not. 16 May?
MR. LAPPER-No, July. It has the application.
MR. ABBATE-16, no, I do not. Here’s the package right here with the original staple.
Nothing’s been removed.
MR. BRYANT-I have that.
MR. ABBATE-Okay. All right. We’ll address that later.
MR. LAPPER-Well, that’s where we laid out all the uses and the definitions. Is anybody
else missing that?
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MR. UNDERWOOD-Is that July 30?
MR. LAPPER-No, July 16, to the Chairman.
MR. ABBATE-Everyone have that?
MR. UNDERWOOD-Yes, we’ve got it.
MR. ABBATE-Okay. Good. All right. Go ahead.
MR. LAPPER-Okay. I swear I don’t make it a habit of challenging the Zoning
Administrator and I wish he’d just agree with me all the time and then we wouldn’t have
these discussions. The mistake here that this facility, or the use that’s proposed, is for
disabled individuals, but there’s not any kind of medical treatment. This is what they do
during the day. Part of it, it’s an office use. There are social workers that are with them,
but this is not any kind of a medical facility. It’s not licensed as a medical facility. It’s not
health related. It is community service so that they, and Mark will give you some more
detail, but the information that we submitted to you, meals on wheels program, there’s
administrators. They go and do volunteer work because it’s getting disabled people to
become part of the community, to go to sites in a van, pick up the meals, go to deliver
meals on wheels to the elderly. So this is a way for disabled people to be busy during
the day doing stuff that’s positive, but they’re not getting any kind of treatment. So the
definition that Craig cited, which is in the Staff Notes, a building or site used for the
treatment. So they’re not getting any kind of treatment. I mean, and when Mark.
MR. ABBATE-What paragraph are you referring to in the Staff Notes?
MR. LAPPER-Health Related Facility, the definition. He’s determined it’s a health
related facility.
MR. ABBATE-All right. Got it.
MR. LAPPER-A building or site used for the treatment, and my point is that they don’t do
any treatment, illness, disease, injury, deformity and other abnormal physical or mental
conditions, including rehabilitation activities. So they’re not getting, I mean, these are
people who are disabled, but they’re not getting any kind of therapy. Mark did say that
they get life skills and support services, and that’s essentially aiding them in eating and,
you know, bodily functions, but that’s not therapy. That’s just helping them eat. I mean,
so it’s not a health related facility. It’s just normal activities that take place. This is an
office use. Most interestingly here, the site has been used for about three years for the
identical use up to 2005. That was the ARC, which is a very similar service provider for
disabled individuals. So really the identical use, it’s for administering the programs that
are proposed to be done in this facility, the office uses, marshalling people to send them
out to do community service projects, and working with them, but not in terms of therapy,
doing stuff like arts and crafts and projects. So we’ve got a history where this was never
an issue with the identical building for the same use by ARC, and then our contention
that even though Mark did use the words life skills and support services, he wasn’t
talking about therapy. He was just talking about people helping them eat and do normal
things that everybody else does. I can understand where Craig would be coming from
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because this would seem, you know, that it might fall under this definition because it
seems like you’re helping people but you’re not helping them in a medical way. It’s not
health related. It’s also, one of the uses in the Light Industrial zone is a distribution
center and they do, part of what they do is sometimes put together mailings for the
County, for other not for profits. So it’s used as typical Light Industrial in that respect, as
one of the uses that happens here. They would like to get in the building immediately.
It’s a good location and a good facility, and so we have a determination that it’s a health
related facility and if you have the full packet, we also submitted information. They’re
licensed by OMRDD, but not licensed as a health related facility. That’s just for Office of
Mental Health, and in that packet we included their determination that this is a business
use, OMRDD, that it’s a not for profit, but that it’s a business use, and it’s not a medical
use, and that seems to be the big issue.
MR. UNDERWOOD-Why did ARC stop using it?
MR. DONOHUE-ARC relocated to Bay Road.
MR. UNDERWOOD-Okay.
MR. DONOHUE-That new office building across from Lowe’s.
MR. UNDERWOOD-Yes, I know where it is.
MR. DONOHUE-They relocated from Queensbury Avenue to there.
MR. UNDERWOOD-Okay.
MR. DONOHUE-This is, for us, a program that the State approached us to start. We
already have State approval. The State has viewed the site. We follow, basically, New
York State Mental Hygiene Law. The Mental Hygiene Law states that the New York
State Office of Mental Retardation determines the classification of space, and the local
municipality is supposed to support and adhere to that, is part of our issues. There’s
also some confusion as to who we are and what we do. We do do healthcare services at
our Foothills clinic. Our Everts Avenue location is an actual clinic, providing
psychological, psychiatric, physical therapy, occupational therapy, dental services, so
forth and so on. So as an organization, we do do those services. This is a day
habilitation site. This is an activity hub site for disabled folks who will go there, who will,
there’ll be an area, a fitness area. There’ll be an arts and crafts area, as Jon mentioned.
There’ll be a functioning kitchen where people will learn life skills of cooking, so forth and
so on. Beyond that they will be in the community. We do meals on wheels for both
counties, Warren and Washington Counties. They volunteer at SPCA. The whole goal
of a habilitation program for the disabled is community integration, is to be active and get
them involved in the community like you and I want to be, teaching them budgeting skills
of going to the mall, how are they going to spend their money, what do they use their
money on? Cooking a meal, taking them to Hannaford, buying what they need to cook a
meal, so forth and so on. So in no way a day habilitation facility based on a medical
model.
MR. URRICO-The types of services you mention in the packet here, you say there’s
cleaning services?
MR. DONOHUE-Yes. We do clean some of the local firehouses.
MR. URRICO-You perform, you go out, you take stuff back with you to the facility to
clean?
MR. DONOHUE-For the most part, no. Whoever we would clean for would be required
to provide the cleaning products there. We don’t have the funding to pay for that.
MR. URRICO-So people would be transported.
MR. DONOHUE-Right, we do the transportation.
MR. URRICO-You have mailings?
MR. DONOHUE-Absolutely. We do brochure mailings.
MR. URRICO-And the meals on wheels, what takes place out of that site?
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MR. DONOHUE-Meals on wheels, what we do is both counties prepare the meals. We
do all the distribution.
MR. URRICO-Okay.
MR. DONOHUE-We pick up the meals and do all the distribution through the two
counties.
MR. URRICO-Okay. So it comes to the facility there and then it gets distributed?
MR. DONOHUE-Right, and what it does it it’s achieving part of the goals that we are to
do is social integration for the disabled folks is they then interact with the elderly in
delivering those meals.
MR. ABBATE-Okay. Mr. Bryant, please.
MR. BRYANT-I have a number of questions. Basically they’re yes or no, just for
clarification. You don’t have any kind of physical therapy facilities at that building, sits
baths or machines or any of that?
MR. DONOHUE-No. There’ll be a changing table. If somebody’s in a wheelchair,
there’ll be a changing table for those who are incontinent.
MR. BRYANT-Okay, but it’s not physical therapy.
MR. DONOHUE-Not physical therapy related.
MR. BRYANT-You don’t have a doctor there that’s going to administer drugs?
MR. DONOHUE-No, at our clinic.
MR. BRYANT-You don’t have, we’re talking about this location that’s in question.
MR. DONOHUE-Correct.
MR. BRYANT-We don’t a psychiatrist there to deal with the individual?
MR. DONOHUE-No.
MR. BRYANT-We don’t have any kind of other type of therapy, whether it’s physical or
mental or any of that?
MR. DONOHUE-No. Well, mental therapy, once again.
MR. BRYANT-It’s part of the work process.
MR. DONOHUE-Correct.
MR. BRYANT-Okay. So primarily this is nothing more than a sophisticated employment
agency for handicap individuals.
MR. DONOHUE-Employment/volunteer.
MR. BRYANT-Okay.
MR. DONOHUE-These folks cannot earn money, for the most part.
MR. BRYANT-Okay. That’s what I thought. I just wanted a clarification.
MR. ABBATE-Okay. Folks, do we have any other questions from the Board members at
this time? If not, I’m going to open up the public hearing. To meet the obligations of the
Public Officers Law Sec: 3 for a fair and open process, the public hearing is open for
Appeal No. 5-2007. Do we have anyone in the public who would like to address this
particular appeal, if so, if you’d be kind enough to raise your hands, I’ll recognize you.
PUBLIC HEARING OPENED
MR. ABBATE-I see no hands. I will continue on. I will now ask Board members to offer
their commentary. I respectfully remind Board members that precedence mandates that
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(Queensbury ZBA Meeting 08/29/07)
we concern ourselves with the evidence which appears on the record to support our
conclusions.
MR. BRYANT-I have a question.
MR. ABBATE-By all means. Go ahead.
MR. BRYANT-You don’t have any future plans to move part of your clinic to this facility or
anything, or maybe to alter and add some kind of rehab? See, I think where the
confusion comes in is because you use the rehabilitation word.
MR. DONOHUE-But it’s key. It’s habilitation, which is different than rehabilitation. With
our folks, the concept of you and I getting rehab, we’re going to get better. Okay, an
individual with a developmental disability is not going to get better.
MR. ABBATE-Okay, but you didn’t answer his question.
MR. DONOHUE-No rehabilitation.
MR. ABBATE-Okay, nor do you expand.
MR. BRYANT-But the average person, though, you understand that nuance, okay?
MR. DONOHUE-Yes.
MR. BRYANT-From reading it, I didn’t understand what it was, and I appreciate that. I’m
ready to respond.
MR. ABBATE-Okay. Thank you. Let’s see, let’s start with.
MR. URRICO-You opened the public hearing.
MR. BRYANT-I said I’d go. You’re looking for polling, I’m ready to go.
MR. ABBATE-Yes, but the other members of the Board haven’t had an opportunity to
say anything yet.
MR. BRYANT-Mr. Chairman, now that I understand the nuance between rehabilitation
and habilitation, I can understand where the Zoning Administrator would get the idea that
there’s some kind of medical implication. Just the Office of Mental Retardation gives that
implication that there’s some kind of medical thing going on there, and I understand that,
but now that you’ve explained it, I would have to agree with your appeal that it is not, it’s
an office building, and it’s a type of volunteer.
MR. DONOHUE-It’s unique.
MR. BRYANT-I already said it once before, but you know what I’m talking about.
MR. ABBATE-All right. Let’s go to Mr. Garrand. Let’s try that.
MR. BROWN-Mr. Chairman, I don’t mean to appear out of order, here. I was just curious
if I’m going to get a chance to respond before we go too far through.
MR. ABBATE-As a matter of fact, why don’t you respond right now. Absolutely.
MR. BROWN-That would be great, and something comes up from Mr. Bryant’s
comments. Nowhere in the Staff Notes have I made any comment that I believe this is a
medical facility. I don’t believe that for one second. I do believe that the uses that were
proposed in the letters that were submitted to me clearly fit in the definition, it’s a pretty
broad definition. I’ll give you that, it’s a pretty broad definition of what’s a health related
facility. I’d be surprised to learn that if this is a mental and physical habilitation center,
it’s not considered a health related facility. Certainly mental health and physical health
are things that they’re dealing with there at that site, and to answer another question that
you brought up, I think there is a plan, based on a letter that looks like it’s a public
comment letter from Bob Sears, and obviously he doesn’t speak for the applicant, but
there is mention of a potential expansion at this site. So I know you asked that question
before, and I think they said they weren’t planning on expanding. So I’m just trying to
figure out, get to the bottom of it for you.
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MR. ABBATE-Absolutely.
MR. DONOHUE-If I can clarify that, though. The question is, is there an intent to add
rehabilitation to it. The potential intent is to add more consumers of the same type of
services. So there is no intent to add different kinds of services at the site.
MR. BRYANT-Yes, that was the question.
MR. ABBATE-That was the question. Okay.
MR. BRYANT-Based on the explanation that the applicant has made tonight, do you feel
that use fits the use for that particular zone? It’s Light Industrial. It can be an office
complex. It is, that’s what it is, an office complex. It could be the same as Kelly for
example. I mean, just giving out jobs or the employment agency. Okay. So, based on
that, where are you now?
MR. BROWN-The same place. I mean, the information was submitted. I made a
determination based on what was submitted, and that’s what’s there.
MR. ABBATE-Yes. The Zoning Administrator made a good point earlier. He indicated
that the way it’s worded is broad. All right. I’ll use another word. It’s rather ambiguous,
and remember now what case law says. When a Zoning Board of Appeals starts to
interpret a zoning law and it appears to be ambiguous, we have no choice but to go with
the appellant. Okay. Now, Mr. McNulty, please, would you like to respond?
MR. MC NULTY-I really don’t know where I’m going to come down.
MR. ABBATE-Okay.
MR. MC NULTY-I understand the appellant’s arguments, but whether I can really
separate this from a health related facility as opposed to a medical facility, I’m not sure.
MR. ABBATE-Would you like me to come back to you?
MR. MC NULTY-Come back to me, yes.
MR. ABBATE-Okay. Fine. Roy, would you please be kind enough.
MR. URRICO-I can see the confusion. I don’t know if we have a really clear definition of
Light Industry either. We have an assumption of what Light Industry should be.
MR. ABBATE-I agree with you.
MR. URRICO-And there are certainly many businesses in this Town that represent Light
Industry. We also have very few areas that are designated Light Industrial use. So
they’re precious, and we want to make sure that what goes in there represents Light
Industry, but I think in this case I would be leaning on the appellant’s application,
basically because they’ve proven to me that there are operations going out of there that
might be closer to Light Industry that anything else. So I would be in favor of it.
MR. ABBATE-Okay. All right. Thank you. Rick, can I go to you, please.
MR. GARRAND-Certainly, Mr. Chairman. This is a stretch. I just think that this is quite a
stretch on the application here. These consumers will receive both life skills and support
services. Under the Town’s definition of a health related facility, health related facility
may include training facilities. That, to me, is one in the same, and in this case, I will
have to come down on the side of the Zoning Administrator on this one.
MR. ABBATE-Okay. No problem. Mrs. Hunt, please.
MRS. HUNT-Thank you. I have to agree with Mr. Garrand. The training facility part of it
makes me consider that it’s not, it is a health related facility, and the support services, I
don’t know exactly what that would be. So I would support the Zoning Administrator.
MR. ABBATE-Okay. Jim, would you please?
MR. UNDERWOOD-I think if we look at the highest use as to what this area, it’s Light
Industrial, all right, and I don’t think that we could misconstrue this proposed use as Light
Industrial. I mean, they’re opposite polarities as far as I’m concerned. I think that the
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organization serves a useful function. I’m unclear, though, I mean, I support the Zoning
Administrator’s position in regards to this, but I’m unsure as to why a facility like this
would not be permitted. I mean, it would seem to me in that area out there, there’s not
like some, you know, these aren’t like rare sites. I mean, there’s plenty of sites out there
for sale at the present time. These buildings really have no use. There’s some that have
been vacant for many, many years out there further down the road, and in this instance
here, I think even though it could be construed as a health facility, it serves a useful
purpose. I mean, not everyone can be trained to be, you know, an engineer, or to
produce a product and do something over and over and over again, but everybody in the
community should have a purpose, and I think even the people who are less mentally
capable in the community, you know, like to have a sense that, you know, there’s some
worth to their life and their existence, and I think in this instance here that it is important
for us to recognize that those individuals are part of our community, and I think that
there’s an attempt here on their part to provide them with a useful daily function, and I
don’t see anything wrong with that. I think that, you know, whatever you produce, you
produce. You don’t have to put a monetary value on it or some exclusive valuation that
these people aren’t worth their, you know, what they’re putting into their day, but in this
instance I think we can go along with what they’re proposing here. I think it’s a
reasonable use of that.
MR. ABBATE-Thank you very much. Mr. McNulty, may I get back to you, please.
MR. MC NULTY-Yes. I think I’m going to come down on the side of the Zoning
Administrator. I’m inclined to agree that, you know, I think what is described is going to
be a facility that provides some support to these people, so they can do what is intended,
and there certainly is going to be some training involved and what not, and I don’t know,
it’s hard reading into the intent of the zoning and what not, too, but I think one of the
reasons, perhaps, that health related facilities were not included in Light Industrial is
Light Industrial’s got the potential of producing fumes, smoke, other noxious odors, and
that can be a problem for people that are a little more vulnerable. I’ve dealt, on the
phone, with people from Long Island that live next, or had a nursing home next to a yard
waste composting site that gave them nothing but real grief. So I can understand the
problem of putting anything with anybody that might be vulnerable next to what you could
call Light Industrial. At the same time, I understand what these people are trying to do.
They’re trying to employ individuals in a productive way and if this did not involve
handicap people or disabled people, I might be inclined to go the other way, but that’s.
MR. LAPPER-That’s a huge issue.
MR. MC NULTY-I think it trips over into health related for me. So I’m going to support
the Zoning Administrator.
MR. LAPPER-Can I respond?
MR. BRYANT-Yes, you certainly may. Go ahead.
MR. LAPPER-This is really important, because I don’t want the Board to make the wrong
decision on this one. If Kelly Services across the street is an employment service in an
office, because an office is a permitted use, and we’re saying this is an office use, and
this is in the Light Industrial zone, you know, if you could have Kelly Services, for
example, as an office use, the fact that the clients, the customer are handicapped, they
do get medical treatment in other places. These are people who do need medical
services, but what’s being delivered here is not medical service. It’s employment. So
when we talk about training, there’s lots of training that goes on. Employment training
doesn’t make it a medical facility if you’re teaching somebody to deliver meals on
wheels, and that could happen in any office, and it doesn’t make it a health related
facility. So the main word here in the health related facility definition is the treatment. So
these people are being, it’s not employed because it’s volunteer, that programs are being
administered and they’re being sent out to do cleaning services, to deliver meals, but
that’s not treatment, and I think what Chuck McNulty said was that if it wasn’t that they
were handicap individuals he might view it differently, and I’m saying the fact that they’re
handicap doesn’t mean anything here, because they’re not, it’s just like they’re being
employed, whether you employ a handicapped or someone who’s not handicapped, it
doesn’t change the use. These people do need medical services, but they don’t get the
medical services.
MR. BRYANT-But see technically, to add to that. May I, Mr. Chairman?
MR. ABBATE-Please do.
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MR. BRYANT-Kelly falls under the category of medical facility because they do training,
they do testing there. They do training, so I mean, you know, testing and training is
included in all of these.
MR. LAPPER-But not all testing and training, only medical related testing and training.
MR. BRYANT-I agree with that, and that’s why I’m making a ludicrous point here.
MR. LAPPER-Yes. If somebody learns how to change a tire, that’s training, but it doesn’t
make it a health related facility.
MR. ABBATE-Well, there’s another key word, too, and that’s called treatment. When you
use the word treatment to me, I think in terms of medical treatment. I think of
psychological treatment, psychiatric treatment. I don’t see that going on here at the
present time. Do you wish to say something for the record? Tell us who you are, please.
BOB SEARS
MR. SEARS-My name is Bob Sears. I’m the realtor involved in marketing the property.
MR. ABBATE-Okay.
MR. SEARS-And I think hopefully you have a letter that I sent. I know Craig Brown has
it.
MR. UNDERWOOD-Yes, we do.
MR. SEARS-That should be read publicly, I think.
MR. UNDERWOOD-Yes, I’ll read them at the end.
MR. ABBATE-We’d be more than happy to do that, by all means.
MR. SEARS-Okay.
MR. ABBATE-That’s not a problem.
MR. SEARS-Okay. I’m sorry.
MR. ABBATE-No, that’s quite all right. We give everyone an opportunity at due process,
believe me. As a matter of fact, right now, to satisfy this, Jim, would you read it into the
record.
MR. UNDERWOOD-Yes. I’ve got to find it.
MR. URRICO-Mr. Chairman, could I ask one more question?
MR. ABBATE-By all means.
MR. URRICO-Are people paid for what they do?
MR. DONOHUE-Not at this type of program. At our workshop type facility on Everts
Avenue, they get paid. In a day habilitation, it’s volunteer.
MR. URRICO-Okay.
MR. LAPPER-Like community service.
MR. ABBATE-Are you ready, Mr. Secretary?
MR. UNDERWOOD-Yes. This is addressed to Mr. Charles Abbate and fellow Zoning
Board of Appeals Members, RE: The Queensbury Avenue and Community Workshop
Independence Incorporated application “I have been marketing the property For Sale or
Lease since January 5, 2007. The property is for sale for $375,000 and it is for lease for
$8.00 SF NNN [see flyer]. I have been a Commercial Broker in the Glens Falls Region
for over 30 years. 519 Queensbury Avenue is listed for Sale or Lease in the Warren
County MLS [714 members] and the Capital Region Commercial MLS [500+ members].
The property is also listed on www.loopnet.com [Largest Commercial Real Estate
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Website in the United States]. There has been very little activity for either a sale or a
lease. Unfortunately, as you can see by the floor plan, the space in the building at 519
Queensbury Avenue is dedicated for office. [see floor plan] It has been my experience
that people or companies that are looking for office space prefer to be in a location which
has better visibility and accessibility to their clients. The Floyd Bennett Airport
[Warren/Washington County Industrial Park] is not a convenient area for people who
have a need for office space. In the Glens Falls Region, there are many options
available for office space, which are close to the Northway, I-87 exits or in areas where
similar offices or commercial activities exist. The existing floor plan within the building at
519 Queensbury Avenue, accommodates CWI’s needs quite easily. There are only a
few modifications needed by CWI in order to move into this space [movement of a few
interior walls and minimum issues regarding handicap accessibility]. The space is ideal
for CWI. In a letter to Craig Brown dated June 1, 2007; Mr. Donahue [CFO of CWI]
stated that initially there would be 8 to 10 employees at 519 Queensbury Avenue. If CWI
purchases the building, approximately 25 to 30 employees would eventually work at that
location. The building would be expanded another 2,000 to 2,500 SF. The
Warren/Washington County Industrial Park was created in 1978 to promote jobs within
the Warren and Washington County area. The potential use by CWI of the facility at 519
Queensbury Avenue is a good example of job creation. Thank you for your
consideration. Sincerely, Robert L. Sears Vice President and Associate Broker
Prudential Blake – Atlantic, REALTORS 699 Upper Glen Street, Queensbury, NY
12804.” So I think what he was alluding to was it’s not just the people that are going to
be serviced there, it’s the employees that work there, too.
MR. ABBATE-I understand. Who wrote this letter?
MR. LAPPER-Bob Sears.
MR. ABBATE-Did you send this through the U.S. mail?
MRS. HUNT-Bob Sears.
MR. UNDERWOOD-There’s a whole bunch.
MR. ABBATE-Was this sent through the U.S. mail?
MR. SEARS-No, I hand delivered it to you.
MR. ABBATE-Okay. Well, you see, I never received this.
th
MR. UNDERWOOD-Received August 28.
MR. ABBATE-This is the first I’ve seen this letter.
th
MR. UNDERWOOD-It was received on August 28. So that’s why.
MR. ABBATE-Okay.
MR. SEARS-I hand delivered it to Pam Whiting downstairs.
MR. ABBATE-Okay. Well, that’s one of the problems. In the future when these
correspondence are addressed to the Zoning Board, the Chairman in particular, send it
through the U.S. Mail. No one’s allowed to open that mail, and I get it direct. Okay. All
right. Here we are right now. We have two choices, ladies and gentlemen. I’m going to
ask for a motion, but here’s how it has to go. A motion can only go this way. One, to
support the appellant’s challenge to the Zoning Administrator decision, or, Two, to
uphold the Zoning Administrator decision. Do I have a motion?
MOTION TO SUPPORT THE APPELLANT IN NOTICE OF APPEAL NO. 5-2007
COMMUNITY WORK & INDEPENDENCE, INC., Introduced by Allan Bryant who moved
for its adoption, seconded by Roy Urrico:
519 Queensbury Avenue. Number One, that the applicant has demonstrated that their
facility, or their use of the property, is not going to be medical in any shape or form.
There’s not going to be any kind of rehabilitation facility. There are not going to be any
doctors there administering any kind of drugs. The only type of training is going to be
how to deliver the meals, and primarily that falls under general training and not medical
training. There’s no laboratory there, and that the appellant has demonstrated fully that
the services that they’re rendered do not fall under the category of health facility. In the
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Staff Notes, when the Zoning Administrator talks about training and offices and
laboratories. If that’s the case, then every office would be a medical facility, would fall
under that category, but he also goes on to say the definition includes nursing homes
and convalescent homes, and this is nowhere near that type of facility. This is no more
than a typical employment agency volunteer service in the community, nothing more,
nothing less.
th
Duly adopted this 29 day of August, 2007, by the following vote:
AYES: Mr. Urrico, Mr. Underwood, Mr. Bryant, Mr. Abbate
NOES: Mrs. Hunt, Mr. Garrand, Mr. McNulty
MR. ABBATE-The vote is four yes to three no to support the appellant’s challenge to the
Zoning Administrator’s decision. Thank you, ladies and gentlemen of the Board. Thank
you, alternate members, thank you, Brian and Joan, I appreciate it.
On motion meeting was adjourned.
RESPECTFULLY SUBMITTED,
Charles Abbate, Chairman
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