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2007-10-24 (Queensbury ZBA Meeting 10/24/07) QUEENSBURY ZONING BOARD OF APPEALS SECOND REGULAR MEETING OCTOBER 24, 2007 INDEX Notice of Appeal No. 6-2007 Steve Seaboyer Tax Map No. 227.13-2-36 1. Area Variance No. 34-2007 David Wendth/Northeast Health, Inc. 8. Tax Map No. 296.8-1-3 Area Variance No. 60-2007 Matthew Emmens 13. Tax Map No. 239.15-1-19 Notice of Appeal NO.7-2007 GF Heating and Air Conditioning 14. Tax Map No. 308.19-1-65 and 66 Notice of Appeal No. 8-2007 Irish Bay Partners, LLC 17. Tax Map No. 227.10-1-1, 2,3 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. o (Queensbury ZBA Meeting 10/24/07) QUEENSBURY ZONING BOARD OF APPEALS SECOND REGULAR MEETING OCTOBER 24, 2007 7:00 P.M. MEMBERS PRESENT CHARLES MC NULTY, ACTING CHAIRMAN JAMES UNDERWOOD, SECRETARY JOYCE HUNT ROY URRICO ALLAN BRYANT RICHARD GARRAND BRIAN CLEMENTS, ALTERNATE ZONING ADMINISTRATOR-CRAIG BROWN STENOGRAPHER-MARIA GAGLIARDI MR. MC NULTY-Good evening. We'll commence the Zoning Board of Appeals hearing for October 24, 2007. I'm going to quickly go through the meeting procedure. We'll call the application by name and number. The Secretary will read pertinent parts of the application and Staff Notes and Warren County Planning Board decision if applicable into the record. The applicant then has an opportunity to present additional information if they wish. The Board has an opportunity to ask questions of the applicant. Then we'll open the public hearing. There's a five minute limit. So tell us everything you want us to know in five minutes. If you have something additional after you've heard the other speakers, we normally will grant you another two minutes to provide that new information. Also at that time we'll read correspondence pertaining to the application into the record. Following that, the applicant will have an opportunity react and respond to the public comment and Board members will discuss the variance request with the applicant. Then the Board members will explain their positions on the application. The public hearing will be closed, and we'll entertain a motion to either approve or disapprove and vote on the case. This evening is a bit unique, in that out of the five scheduled applications or appeals that we have, I believe at least four of them have requested tabling. So we're going to have to address that in a few minutes. It doesn't look like we've got a huge number of people lined up to speak on any of those at this point. So I guess the first thing's we'll start on, read the first one in, and see if there's anybody here to address that. MR. UNDERWOOD-Okay. We do have one Administrative Item, and that was the Eddy Property Services, and I think you people are here for that. So we will be dealing with that later on. These three letters were all received this afternoon from Bartlett, Pontiff, Stewart and Rhodes. They're addressed to Mr. Charles Abbate, Chairman, Chairman of the Zoning Board of Appeals. "Dear Chairman: As you are aware, our firm represents the Seaboyers with regard to their appeal which is referenced above. It is my understanding that this matter has been tabled until this evenings Zoning Board of Appeals agenda. Due to the fact that we have not yet had a chance to discuss this matter further with the Town Attorney, we would request that this again be tabled. We appreciate your cooperation in this matter. Sincerely, Bartlett, Pontiff, Stewart, & Rhodes, P.C. Stefanie DiLallo Bitter" The second one is the Emmens project, and they also made a request, and I'm not sure how that request came in, but they had wanted the Planning Board to hear their preliminary statements about the groundwater and discharge. MR. BROWN-Do you want to go through and just do the tabling motions one at a time? MR. UNDERWOOD-Yes, should we table that first one? MR. BROWN-Yes. I think, and you have the file, but my recollection is you tabled them to tonight's date to allow them to submit additional information. I think if you tabled them, picked a December date, whenever, one of the two December meeting dates, hopefully the first one, maybe we can take the second one off since it's close to Christmas, but if you table them to the first December meeting and allow them to submit by November 15th, that should give them time to do what they need to do. MR. UNDERWOOD-Okay. MR. BRY ANT-Mr. Chairman, a point of order. Actually I have two points of order. 1 (Queensbury ZBA Meeting 10/24/07) MR. MC NULTY-Okay. MR. BRYANT-I think, regardless of, you know, how you interpret the crowd, since these things have been advertised in the paper, that you should open the public hearing, but further on this issue, especially the two that Mr. Lapper was handling, the Glens Falls Heating and the Irish Bay, I don't know that that, you know, I can understand requesting to table a project if you need additional information or you need additional time, or if you have to wait for the Planning Board, but to table a project because the regular Chairman is not here, I don't think that that's an appropriate request. So I wonder how the other Board members feel. MR. MC NULTY-Well, we're taking things a little out of order, but that's a question that we definitely need to talk about. MR. BRYANT-I mean, Mr. Lapper went through this the last time you were Chairman, and he tabled a thing, the last minute, the eleventh hour, and we said that we don't accept information in the eleventh hour, okay, and this letter requesting a table at the eleventh hour for the purpose that Mr. Abbate is not here, I don't think that that's appropriate. MR. MC NULTY-Okay. Let's review what some of our options are then here. I'm inclined to agree with you, Mr. Bryant. I don't like the idea of anybody requesting a tabling because a particular member is or is not going to be on the Board. That's shopping for votes and it shouldn't happen. We've got some options. One is we can deny the request for tabling, and proceed to hear the case as best we can, with what resources we have. With the applicant's not being present, that leaves us limited. The problem with that, for these particular ones that I see at least is there's a potential for us deciding that we were going to deny those appeals, and should we deny them, even if we deny them without prejudice, I think there's an open legal question whether or not they have an opportunity to come back, because with an appeal of a Zoning Administrator's decision, there's a deadline. They have to file within a certain number of days of when that decision was made. So even if we say we would accept them back, the legality may prohibit them from coming back. So, while, I guess the other thing that bothers me about this is if somebody in the audience was here to comment on those, then the applicant's not here to hear the public comments. If we open the public hearing and people make public comments, then they're making it to a Board that is probably not composed exactly the way the Board that will make the decision will be composed. The Board that makes the decision will have access to the minutes, but they don't have access to the facial expressions, the tone of voice, and all the other little signs, body language and whatever, that helps convey how somebody feels. On the other hand, if we don't open the public hearing and just tell those people to come back, some of them aren't going to bother to come back. So the public loses, and we lose that information, whichever way we go. MR. URRICO-Yes, but can we open the public hearing for each case and then see who's here, and decide whether we want to table after the public hearing's open. MR. MC NULTY-We can do that. We can go through the procedure, and see if there's anybody here, and then make a choice. It strikes me that, you know, especially if we do a tabling, there ought to be a caveat in it saying this is the last time we're going to do it. I think it's time for the Board to discuss a policy that maybe needs to be framed loosely to give flexibility, but in general, I think a request for tabling should be at least five days prior to the meeting for which it's scheduled, or otherwise we'll hear it. MR. UNDERWOOD-I think you would have to leave them some kind of extenuating circumstances. MR. MC NULTY-Well, that's why I say it needs to be somewhat loosely framed, but there needs to be some kind of warning. I would have no compunctions about denying these applications tonight, if the applicant had been warned that we were likely to do that. MR. UNDERWOOD-Well, I think in general, if you're looking at the language, the one I just read in there doesn't imply that there was anything, because the Chairman wasn't there, but the other two clearly state that's the only reason that they're not going to meet with us. MR. MC NULTY-Right, and the one that you read in, it sounds like a legitimate excuse, except I wonder why they were unable. 2 (Queensbury ZBA Meeting 10/24/07) MR. BRYANT-Mr. Chairman, a couple of points. I can understand your concern about the legality of the situation, and the Statute of Limitations on the application and all that. I understand that. However, we didn't create that situation. The second thing is that this is not a surprise that Mr. Abbate was not going to be here. I mean, this is, we've known this for a long time. The Town Board had to vote on appropriations. I mean, this thing has been going on, and it was even stated in the last meeting that he would definitely not be here, okay. So, I mean, to wait until the 11th hour to request a tabling is totally inappropriate. They had plenty of time, and the same for Ms. Bitter's case. If she knew she wasn't going to talk to whoever she had to talk to, she probably knew that two days ago, okay. MR. MC NULTY-Exactly. MR. BRYANT-Not that it helps with the public hearing or any of that, but at least it gives us some advanced warning, instead of, you know, I got the e-mail. I got home, I turned on my e-mail, you know, less than an hour ago. It does me absolutely no good. If I had known that, I would have stayed home. I'm just saying that I think it's inappropriate. I think that they were forewarned the last time around, that we weren't going to accept this type of thing at the 11th hour. In my opinion, I think we ought to just throw everything back and let them start all over from scratch. MR. UNDERWOOD-Well, the other thing to consider is that we do have two alternates that are here to take the place of any Board member who recuses themselves or replaces an absent Board member, and both those people were here tonight. So it's not like we're short-handed. MR. BRYANT-Exactly. MR. UNDERWOOD-We have a seven person Board, and one person's vote is not necessarily going to sway the Board. MR. BRYANT-No, and the point that Mr. McNulty, I can understand what he's trying to say, but in reality, you can never be assured of the same mix of the Board, because people don't show. MR. MC NULTY-Exactly. MR. BRYANT-And, you know, I'm one that misses a few meetings. So, you know, and that happens. So the fact that, it bothers me because they specifically say that the Chairman is not there. Well, we have a Vice Chairman, and that's why we have a Vice Chairman, to take the Chairman's place and Mr. McNulty is capable of taking Mr. Abbate's place. So I don't think it's appropriate. Maybe Staff wants to say something. MR. BROWN-Yes. As I'm sitting here, I find myself in an awkward position. These are appeals of decisions that I've made, and I'm going to offer an argument for them to have you continue the tabling. If they were here and they asked for that request, I think you'd have a much stronger position and say, no, we're going to hear it. They're not here. They don't have the opportunity to present their side of the case. Two of the applications that you have that are requesting a tabling tonight, you've already started with them. You have the public hearing's open, and they've been left open. So you can continue to leave them open, if you choose to do a tabling. The other two, the Glens Falls Heating and the Irish Bay, they haven't had a chance to present their side, and an appeal of a decision is a unique situation. It's not like a straightforward Area Variance request, I need ten feet of setback, I want seven feet. What do you think? An appeal is, they've disagreed with the decision, a position that I've taken, and they have, in most times, a legal opinion or at least some case law that points to why they think they're correct. If you don't offer them the opportunity to present that to you, I think you get yourself at a disadvantage if they ever choose to challenge your denial. So I don't know if that helps or hurts, but I would, again, in the strange position of arguing for them, I would suggest that you consider their tabling request, and at the same time, you could request that we forward them a letter or some sort of nudge that says, you know, we don't like this. We're not going to do it next time. Be prepared at this date, this is a date certain. If you're not there, we're still going to hear it, however you want to word it. We can forward that information to them along with your tabling, if you choose to do that. MR. MC NULTY-I see two or three nods. 3 (Queensbury ZBA Meeting 10/24/07) MR. UNDERWOOD-Why don't we read the letters in in order, do tabling motions, and see what the vote is and whatever happens happens. MR. MC NULTY-Okay. Let's take one at a time, do it quickly, because we're holding up the one that was supposed to be first on the agenda. MR. UNDERWOOD-Okay. MOTION TO TABLE NOTICE OF APPEAL NO. 6-2007 STEVE SEABOYER, Introduced by James Underwood who moved for its adoption, seconded by Joyce Hunt: Rockhurst Road. As per the recommendations of the Zoning Administrator, I think we're going to table that until the first meeting in December, and all submittals will be done by the 15th of November for that one. Duly adopted this 24th day of October, 2007, by the following vote: MR. URRICO-I'm sorry, but are we going to find out if there's any public comment on this? MR. UNDERWOOD-Is there anybody from the public that would like to? Why don't you open the public hearing. MR. MC NULTY-Well, I wonder whether we should do that or whether we should hold it. MR. BROWN-I think it was left open the last time it was tabled. So it's still open, and if you don't change that, it's going to continue to be open. MR. MC NULTY-I would be inclined just to leave it open, but not to hear tonight. MR. UNDERWOOD-Not to hear anything tonight. MR. MC NULTY-Because the time to do it's when the applicant's here. MR. BRYANT-I understand that, but I disagree. It's been advertised as part of the agenda. MR. MC NULTY-True. That's one of the problems with them doing this. The other factor, though, is I think there's a lot of benefit, even for the Board to hear the public and hear the applicant at the same time, rather than. MR. BRYANT-I would let the public make that determination, though. Because as you stated earlier, there may be someone here on one of these applications that won't come back another time. MR. URRICO-Or can't come back. MR. UNDERWOOD-Okay. So let's hold off on the tabling motion and open the public hearing briefly and see if anybody wants to speak on this. MR. MC NULTY-Okay. Let's do that on this one. Then if we're going to do that on the rest of them, we'll leave the rest until we take care of the 1st item on the agenda. MR. UNDERWOOD-Sounds good. MR. URRICO-Sounds fine. MR. MC NULTY-Okay. Then the public hearing is open on this. Is there anybody that wishes to speak on the Seaboyer matter? Come on up, Mr. Salvador. PUBLIC HEARING OPEN JOHN SALVADOR MR. SALVADOR-Good evening. My name is John Salvador, and I thank you for the opportunity to be heard tonight. It's widely propagandized that our Town Board functions as just a big circus act, and I really think what's going on here tonight is more of a circus act than I've seen the Town Board ever put on, and basically I object because this is a waste of governmental resources, and that's not allowed, and these people should know 4 (Queensbury ZBA Meeting 10/24/07) better. The Seaboyer application. I heard it said tonight, in a letter or something, that they want time to speak with the Town Attorney. Town Attorney? Why don't they speak to the Staff? The Town Attorney doesn't have anything to do with this application. What's going on here? On the schedule, it says the applicant is appealing a June 25th Zoning Administrator determination regarding the completeness of the application. Let's address the completeness of that application. That's the subject, and what do we do. We keep allowing them to submit new information until eventually the application is complete and then there is no appeal? Is that what's going on here? It's a salami game, and I'm telling you it's a waste of governmental resources, your time, my time, everybody's time, and I think we should, the issue on Seaboyer is not so much the completeness of the application. I think it's the issue of whether or not they have to go back to either the Town Board or the Planning Board. Is that not the issue? MR. BROWN-That's correct. MR. SALVADOR-Well, what does that have to do with the completeness of the application? That's what's being appealed, isn't it? If you could help me here. MR. BROWN-Yes. I can respond if you want me to. This is your public hearing session, but. MR. MC NULTY-Well, here is the problem of having the public hearing now without the applicant present, is this is the kind of question t hat should be relayed to the applicant. MR. SALVADOR-No, no. I'm directing my question to Mr. Brown, who has made a determination, it says here that the application is incomplete. However, if I recall correctly, the debate was whether or not they were to, before they could come to this Board, they had to go, and the only reason they were at this Board was because Mr. Brown had told them they couldn't further their application unless they went back, was it the Town Board? Unless they went back to the Town Board, and that's the debate. Now what more information are they going to submit and what is this discussion with the Town Attorney? This is bizarre. I think you should tell them, I think they should withdraw their application, and start all over again. That's the way to do it. If they're not interested in coming here and being heard and defending their case, they should withdraw their application. That's the option they have, and they could resubmit at a later date. Thank you. MR. MC NULTY-Thank you. Anybody else? Okay. MR. BROWN-Again, I would leave it open, and I think you have a motion on the floor. MR. MC NULTY-I think we'd proceed with the motion that we had. I don't know if anybody else has got any other comments on the motion. My inclination's if this were an Area Variance, I'd be inclined to suggest a denial, but it's an appeal, and we haven't warned these people. Although they should know better, we haven't warned them that we might do a denial if they weren't here. So, in fairness, it strikes me that this one time we table, and I would include in the tabling motion wording to the effect that we are tabling this one time. It won't happen again. MR. URRICO-This has been tabled before? MR. MC NULTY-It's been tabled repeatedly. MR. URRICO-Okay. So they're playing the tabling game, is what they're doing. MR. MC NULTY-Yes. MR. URRICO-Okay. So it's not like they haven't had their chances already. MR. MC NULTY-They've had their chances. MR. URRICO-AII right. I don't think we owe them anything other than a vote. MR. MC NULTY-Exactly. So we'll hear them, as the tabling motion said, first meeting in December. Okay. Everybody happy with that motion? AYES: Mrs. Hunt, Mr. Underwood, Mr. McNulty NOES: Mr. Garrand, Mr. Urrico, Mr. Bryant, Mr. Clements 5 (Queensbury ZBA Meeting 10/24/07) MR. MC NULTY-That was four no, three yes, if I counted straight. So the tabling motion did not pass. Then I would ask for another motion from somebody that voted no and has thoughts on how they'd like to go. MR. URRICO-Do we need another vote? We just voted no on their tabling? MR. MC NULTY-Well, we've defeated the tabling. MR. URRICO-Why do we need another motion? MR. MC NULTY-Defeating the tabling doesn't accomplish anything. MR. URRICO-So we have to hear the case tonight? MR. BROWN-Yes. I think the option that's left is to make a decision, make a motion on the appeal, whether in support of my position or in support of their position. MR. URRICO-Okay. MR. GARRAND-Mr. Chairman, I'll make a motion that we support the Zoning Administrator's decision with regard to Appeal No. 6-2007. MR. BRYANT-I would say that the applicant has had sufficient time to produce the documentation and information relative to the appeal, and that the request for an extension coming at such a late time is not acceptable, and therefore on those grounds we side with the Zoning Administrator. MR. GARRAND-Yes. Mr. Chairman, due to the late submission of tabling and their request to basically have, in particular, one person on the Board, I make a motion that we support. MR. BRYANT-That wasn't the one for the one person. That was because they had to talk to the Town Attorney. MR. GARRAND-Okay. This is the. MR. BRYANT-Town Attorney one. MR. GARRAND-AII right. I make a motion we support the Zoning Administrator's decision on Appeal 6-2007, given the late notice of this request for tabling, and the fact that we've held the public hearing open. They've had multiple opportunities to come before us. MR. MC NULTY-Two things, I guess. We didn't poll the Board ahead of time, which doesn't bother me a great deal because we can do it after the motion is made, but before we vote. The other thought I have, in that motion, is the way we've got it worded right now, we're basically saying we're supporting the Zoning Administrator because the applicant or the appellant hasn't shown up, and I think we should have something in there. MR. GARRAND-No. We're supporting the Zoning Administrator in that the decision he made was that they should before the Town Board and the Planning Board in order to gain their variances, whatever they were looking for before the Town and Planning Board. MR. BRYANT-Mr. Chairman, look, this would be the third time that this application has been tabled. They've had two previous hearings, both times requesting a tabling, okay. They've had ample time to provide all the information, all the documentation, to make arrangements to go before the Town Board to conclude this, okay. Whatever they had to do. Mr. Salvador makes a valid point that the request to table based on the fact the one attorney wants to talk to the Town Attorney is not an appropriate request, because the Town Attorney has nothing to do with this application, whatsoever. So, that being said, that's the way I look at it. MR. UNDERWOOD-I still think you should poll each Board member individually and let them legitimize why they're voting a certain way. I think that's appropriate, because I think it leaves us, in other words, you're going to make your decision based upon, in other words, we've heard that this is the third time we would have heard this, and 6 (Queensbury ZBA Meeting 10/24/07) essentially nothing has changed in the previous meetings. I don't think they were going to present us anything new, other than that the New York State Board of Health had approved the proposed septic system design up there. It was our decision to make as a Board last time, whether or not we wanted them to go back to the Town Board of Health, i.e. the Town Board, for a decision on their part, and I think that everybody had pretty much made their decision, you know, had appropriately voiced where they were going on that anyway, and that's why they tabled the last time. So I don't know what they would have presented to us differently this time. MR. MC NULTY-Yes. I'm not sure either, but I think that's kind of what I was looking for justification, the fact that the essence, as I recall, on this was they had been told by us to go to the Town Board of Health and get a clearance from them, and they instead came back and said we went to the State Board of Health and the State says thus and so, so we don't need to go to the Town Board, and this is where the Zoning Administrator was saying, no, the request was for something from the Town Board of Health and therefore the application's incomplete, and that's the basis for our denying the Appeal at this point, is they have not shown up with the requested information from the Town Board of Health, but I think, like Jim says, probably we should run down the members here before we finish. So, Roy, have you got any other thoughts, comments? MR. URRICO-Well, my feeling is the same, that they've had ample opportunity to present their case. We clearly asked them what they needed, or we suggested what they needed to come before us to help their appeal against the Zoning Administrator. Now because it's an appeal of the Zoning Administrator, we really don't have to give it the same test that we normally would give it. MR. MC NULTY-Right. MR. URRICO-In terms of an application. So we're solely basing a decision on whether they have a legitimate case against the Zoning Administrator, and they have not been able to present that in two other opportunities, and apparently not tonight. Otherwise they would be here. So my feeling is this is where it stops. MR. MC NULTY-Okay. Thank you. Joyce? MRS. HUNT-Thank you. Though I voted to table it, I do agree they have been given ample opportunity, and had I voted last time, I would have voted to go along with the Zoning Administrator. I think they've had plenty of opportunity, and instead of doing that, they just keep doing something else, but not what we've asked. MR. MC NULTY-Okay. Jim, do you want to say anything else? MR. UNDERWOOD-Yes. I think, in general, I think that the Town Board of Health is the ultimate authority, locally, for deciding septic systems. They wouldn't have unanimously voted against their proposal, as a Board, and that's the Town Board of Health at that time, and I think that they were, you know, they were looking for solutions. They went to the State Board of Health, you know, in order to try and develop a system, but nonetheless that system, whether it's adequate or not, even though one person on the State Board of Health has stamped it as okay, that has not been reviewed by the Town Engineer. It has not been reviewed by the Town Board of Health, and I think for us not to support the Zoning Administrator would be, you know, undercutting the Town's review of the project, and I think that proper review of a project is appropriate at all times, especially in a Critical Environmental Area. So I would support the Zoning Administrator. MR. MC NULTY-Okay. Thank you. AI, any other comments? MR. BRYANT-I have nothing further to say. MR. MC NULTY-Okay. Rick? MR. GARRAND-I think the applicant is required to go before the Town Board, i.e. the Board of Health, for approval. Ultimately, I think that looking back on this, that the applicant may have even lacked standing to even be before this Board. MR. MC NULTY-Okay. Brian? MR. CLEMENTS-I have to agree with the Zoning Administrator and the majority of the Board to deny the appeal, and I also think that they've had ample time to present their case. 7 (Queensbury ZBA Meeting 10/24/07) MR. MC NULTY-Okay. All right. Now, are we set on the motion? Have we got enough for you, Maria? MS. GAGLIARDI-If you could just repeat the motion. MR. UNDERWOOD-Okay. I'll repeat it. I would move that we deny, I guess this time we're going to say that we're going to deny the appeal of Steven and Debbie Seaboyer for a tabling motion, and in essence we're going to finish this off tonight by tabling their request to overrule the Zoning Administrator's determination that they do have to go to the Town Board and that is the Town Board of Health specifically for approval of their proposed septic system, and that's at 83 Rockhurst Road, and that's Appeal No. 6-2007. MRS. HUNT-I'm not quite sure I got you. You mentioned tabling that. MR. UNDERWOOD-No. They asked for a tabling motion tonight, and we're going to deny that. MRS. HUNT-Okay. MR. URRICO-We already did. MR. MC NULTY-We did that. That's done. MR. UNDERWOOD-So, as a final resolution, we're going to support the Zoning Administrator's determination. MR. MC NULTY-Before we go further, I should close the public hearing. PUBLIC HEARING CLOSED MOTION TO SUPPORT THE ZONING ADMINISTRATOR'S DETERMINATION THAT THEY DO NEED TO GO TO THE TOWN BOARD REGARDING NOTICE OF APPEAL NO. 6-2007 STEVE SEABOYER, Introduced by James Underwood who moved for its adoption, seconded by Allan Bryant: Rockhurst Road. Duly adopted this 24th day of October, 2007, by the following vote: AYES: Mr. Bryant, Mr. Urrico, Mrs. Hunt, Mr. Garrand, Mr. Underwood, Mr. Clements, Mr. McNulty NOES: NONE MR. UNDERWOOD-What do you want to do next? MR. MC NULTY-Let's go to Number One on the agenda, Northeast Health. ADMINISTRATIVE ITEM: AREA VARIANCE NO. 34-2007 SEQRA TYPE: PREVIOUS PUD DAVID WENDTH/NORTHEAST HEALTH, INC. AGENT(S): DAVID WENDTH, SENIOR PROJECT MANAGER NORTHEAST HEALTH, INC. OWNER(S): EDDY PROPERTY SERVICES/GLENS FALLS HOME ZONE: PUD LOCATION: 39 LONGVIEW DRIVE APPLICANT PROPOSES CONSTRUCTION OF 12 INDEPENDENT LIVING APARTMENTS (12,280 SQ. FT.) AND RELATED SITE IMPROVEMENTS. RELIEF IS REQUESTED FROM MINIMUM SETBACK REQUIREMENTS AS WELL AS RELIEF FROM THE OFF-STREET PARKING AND LOADING REQUIREMENTS. CROSS REF.: MANY WARREN COUNTY PLANNING: MAY 9,2007 LOT SIZE: 45 ACRES TAX MAP NO. 296.8-1-3 SECTION: 179-4-030; 179-4-040 DAVID WENDTH, REPRESENTING APPLICANT, PRESENT MR. UNDERWOOD-Now, have we read this one in before? I think we have. MR. MC NULTY-Yes. The original was read in before, and we had discussed it to some length at one of the other meetings. 8 (Queensbury ZBA Meeting 10/24/07) MR. BROWN-Yes. This is an application that you heard in May, and tabled it pending a recommendation from the Planning Board, which I've forwarded to you tonight. I've provided with you. The Planning Board met last night, I think unanimously passed a recommendation to the Zoning Board with a suggestion that they were comfortable with the variances that were requested, and I think if you remember the last time you guys tabled this, or the only time you've tabled it so far, one of the concerns was that there's an outstanding stormwater, not stormwater, yes, I guess stormwater analysis pending of the whole Meadowbrook area and the Hiland Park PUD, and my understanding is, a couple of weeks away from the Town Engineer, you wanted to get that to the Town Board and then get a recommendation back from the Town Board, at least a position from the Town Board, on how that affects the previous SEQRA determination in the Hiland Park PUD. That was, I think, the one outstanding issue. You have the recommendation from the Planning Board. You don't yet have a position from the Town Board on the Hiland Park PUD, but I see they're here. I know they're here and ready to go, if you guys want to go or if you want to continue to table. MR. UNDERWOOD-Sure. I will read in what the Planning Board sent us, and this was from last evening, October 23,2007, "MOTION THAT THE QUEENSBURY PLANNING BOARD IS PROVIDING AN ADVISORY OPINION ON SITE PLAN NO. 50-2007 THE GLEN @ HILAND MEADOWS, INC TO THE QUEENSBURY ZONING BOARD OF APPEALS, Introduced by Gretchen Steffan who moved for its adoption, seconded by Tanya Bruno: The Planning Board would be in favor of setback relief and reduced parking from the number set forth in the original Planned Unit Development. Further, at the October 22, 2007 Town Board Workshop, it was stated that Dan Ryan, Town Engineer, will likely finalize the Meadowbrook Road study, which will likely require a Long Form SEQRA review. Duly adopted this 23rd day of October, 2007, by the following vote: AYES: Mr. Traver, Mr. Sipp, Mrs. Steffan, Mrs. Bruno, Mr. Seguljic NOES: Mr. Ford ABSENT: Mr. Hunsinger" MR. BRYANT-Mr. Chairman, the only question I have is do we proceed without the minutes from the Planning Board here? I mean, we just have a recommendation. If you notice, there were only six members there at the Planning Board, and one of them voted against it. I mean, I would like to read the content of the meeting, rather than just the motion. I know they're not ready from last night. MR. BROWN-Again, that's an option that you have. You can certainly continue to table this, pick a date in November. By then we'll have the minutes of last night's meeting ready for you. We can certainly, as we did, or I suggested we could do with the other applications that you may table, we can send a message to the, it's a little different now, it's the Town Board, and request this information by a certain date, given that there's this application that these guys have to continue waiting for, and it's not fair to them to have to do that. If you give a date certain to the Town Board and said, we need this information or we're going to hear it by this date, that could all be put in there, you know, in the tabling while you're waiting for the minutes, too. So if you want to review that first. MR. UNDERWOOD-Well, if we're looking at two weeks, that's going to put them in just about the 15th. I don't know if that's going to be enough time, the 15th of next month, for the Town to make the decision. MR. BROWN-Yes, well, there's really no information that the applicant has to submit. The plan hasn't changed. It's the same plan that you guys saw the first time around. So there's really no deadline that they have to meet, as far as getting additional information in. The findings from the Town Engineer and the recommendation from the Town Board could come as close to the meeting date as, you know, Monday before the meeting, and we can get you the minutes and you can review them as soon as possible, but, yes, it's going to be close to the 15th submittal deadline by the time we get that report, I would guess. MR. UNDERWOOD-Why don't we tentatively set them up for the 1st meeting in November, then. Do we want to do that? 9 (Queensbury ZBA Meeting 10/24/07) MR. MC NULTY-We can do that, although they're here. So on the basis, like we were saying with public hearings, I'd suggest that we ought to see if they want to say anything additional to us, since they are here, with the understanding that I think we are going to end up tabling. MR. UNDERWOOD-Is there anything you've changed since the last time? I don't believe there is. MR. WENDTH-No, but we would like to address it. MR. MC NULTY-Certainly. MR. WENDTH-Good evening. David Wendth, again, with Northeast Health and the Eddy. With me tonight is Davy Cesar. He's the Assistant Vice President of Project Management for Northeast Health. Just as an update to the Board, yes, we met with you on the 23rd, and as directed, the project was tabled for the Town Board review of SEQRA as well as the Planning Board review of the Area Variances. Since that time, we also have addressed, if you recall from our initial meeting, the Site Plan inspection deficiencies. They were wrapped up, I believe, July 2nd. So within the month that I had promised at the last meeting from the last meeting. We also had filed with the Planning Board and included with the Planning Board filing was an independent analysis done on the parking at Hiland Meadows from Creighton Manning Associates. I think clearly, again, it supports our position, and outlined standards for these type projects nationwide, municipalities what they tend to see in the area of one car per dwelling unit, as opposed to two, and I have copies of those letters if you folks would like that for your information. Last evening when we met, as mentioned, we did receive the positive advisory opinion from the Planning Board back to this Board, and at this point in time, we, you know, assume that the Zoning Board will formally be hearing from the Planning Board in the near future. So where we sit today, and this is really, as Craig had mentioned, of the units that we have in this project, 100% of them are sold. We have seniors, at this point, that are awaiting a construction schedule from us, so that they can begin to plan selling their homes, downsizing, what have you accordingly. So, that being said, you know, we're ready to go with construction. I guess we're sitting here just wondering what is the next step so that we can proceed back to the Planning Board, and proceed with Site Plan approval, or review and approval. MR. UNDERWOOD-Is our not dealing with this holding up that process, then, per se? MR. BROWN-Yes. Logistically, the variance comes before site plan approval. I think the Planning Board, my guess would be they have a pretty, I don't want to say easy time. You've been there. You've addressed the application. They sent a positive recommendation back to you. So that step should be the easier of the two remaining steps, but, yes, variance first, then site plan. MR. UNDERWOOD-Is the, how binding is the Town Engineer's opinion going to be on this? I mean, that's sort of a cross issue. It's nothing really to do with the construction that's being proposed on the site. MR. BROWN-Right, and what that finding is nobody knows yet because that hasn't been finalized, but again, the Town Board wanted to do an analysis of how has the development in the Hiland Park PUD affected stormwater, runoff, and this study by the Town Engineer is hopefully going to shed some light on that in whatever direction. So I don't know the answer to that question. MR. BRYANT-Really, Mr. Chairman, I don't think that even has any bearing on the variance. My only concern is I'd like to just read the Planning Board notes, minutes, and then we can proceed, and if you're willing to come back the first meeting in November, there's no reason why we can't make a determination then. MR. MC NULTY-Does anybody else have any comments or questions of the applicant? MRS. HUNT-I do. Mr. Chairman, I attended a workshop on the open meeting and that, and really all that's necessary is the motion and the vote, and a lot of municipalities do not have complete minutes. So I would be willing to vote tonight on the variance. MR. MC NULTY-Okay. Rick? 10 (Queensbury ZBA Meeting 10/24/07) MR. GARRAND-I'd feel a little more comfortable, given the problems they're having down on the Meadowbrook Road area, I'd feel a little more comfortable getting the engineer's report on this, and also reviewing the Planning Board minutes, before making any type of decision on this. MR. MC NULTY-Okay. Brian, any thoughts? MR. CLEMENTS-Actually, yes, I'd be in favor of voting on this tonight, except for the parking spaces, and I think I would like to see something from the Planning Board on that, the minutes and read them. MR. MC NULTY-All right. MR. UNDERWOOD-I think it was pretty clear that they were just looking for less parking, you know, and less parking to me basically says to me that that's going to have less of an effect on runoff. I think that they pretty clearly stated last time that their runoff studies and the Planning Board's recommendation that was sent to us from last evening suggests that less parking is okay with the Planning Board. If that's the case, I don't really see that it's going to trigger anything great in our mind. How many parking places was it again? MR. WENDTH-We were looking to add 19 as opposed to 34, and again, this is what I brought up to the Planning Board last evening. I took a look back at our original project that we have today, and we have 130 spaces on site. That is 19% below the Code. Prior we never had to come before this Board for a variance. Again, that was 1999. What we are proposing today maintains that 19% below the Code, and as I mentioned Creighton Manning again, I have copies of this letter if you folks would like it, certainly believes that, yes, based on industry standards, that's right where you are. What was not necessarily clearly discussed at our meeting in May is that there is, or I should say, residents are encouraged only to have one car, and in fact, of the 62 existing apartments, only three of the apartments have two cars. Everybody else has one or none, because again we have the campus bus, the campus vehicle, scheduled transportation, and so it really, you know, further assists, if you will, planning and providing spaces, proximity parking to the new apartments, so that residents don't have to walk great distances after going to the grocery store, what have you. With that being said, I know we had mentioned last time, should demand ever change down the road. That's why we looked at putting a land bank in there. Because you never know. Different populations come and go. New people will move in, and someone might be a car buff and want three cars. So we have to obviously plan that for accordingly, and certainly if we ever needed additional parking, we'll be right back to the Town to request Site Plan approval for additional parking, but today, with 40% vacancy rate on average, we don't see it. MR. UNDERWOOD-Okay. I'm going to basically say that I would go along with the Planning Board's recommendation. I think that they, in their normal review of parking on these projects, if their recommendation is to accept what's being proposed here, then I'm comfortable with that. I think that we can do that pending the Town Board's, you know, report from the Town Engineer on that project, but I think it would be difficult to prove that 12 more parking places were going to trip the stormwater flow down there. MR. CLEMENTS-Mr. Chairman, I'd change my opinion here, too. After listening to Mr. Underwood, I would be ready to vote on this tonight. MR. MC NULTY-Okay. Now, if I remember right, this is not just parking spaces. It's also a setback. MR. BRYANT-It's three feet something of relief out of thirty. MR. MC NULTY-Anybody else comments? Roy? MR. URRICO-I'm ready to vote. MR. GARRAND-Mr. Chairman, I've got a question. Who's SEQRA Lead Agency on this? MR. UNDERWOOD-The Planning Board. MR. BROWN-That's a good question. 11 (Queensbury ZBA Meeting 10/24/07) MR. MC NULTY-It was a previous PUD. Who's SEQRA? MR. BROWN-It was the Town Board. MR. MC NULTY-It was the Town Board. MR. BROWN-That's why the Town Board is looking to re-visit SEQRA on this, yes. MR. GARRAND-Okay. So they're going to be Lead Agency on this. So they're going to be the ones doing the Long Form on this? MR. BROWN-Yes, well, what's happened is within the PUD a SEQRA determination was made. Here's all the possible actions that could take place in the PUD, and it was found that, when this project was submitted, it was found to be consistent with the PUD agreement, and then the SEQRA determination. It was found to be consistent with that determination, with the caveat, what's going on with the stormwater. So, but the Town Board's Lead Agency, to answer your question. MR. GARRAND-AII right. Thank you. MR. URRICO-Can I just ask a question of Staff. The first time we heard these people, Bruce Frank had submitted a letter documenting some things that weren't done based on the original application way back, and although at the time I guess we said that it has nothing to do with this particular case, is that still the case? MR. BROWN-No, I believe they were taken care of in early July. MR. WENDTH-That's what the letter is right here. MR. URRICO-That's been taken care of, and it's all resolved? MR. BROWN-That's correct. MR. URRICO-Because that was my major reason for holding back the last time. needed that to be resolved. MR. BROWN-Yes, it was within a month or so after the last meeting everything squared up. MR. URRICO-Okay. MR. WENDTH-And as I mentioned at the last meeting, embarrassed, we apologize. It's taken care of. MR. BRY ANT-Mr. Chairman, I'd like to see the parking study, if you would distribute that. MR. WENDTH-Sure. MR. BRYANT-And on a tabling motion we requested that, Number One, they meet with the Planning Board. We got a recommendation from the Planning Board, and something from the Town Board, and apparently in this recommendation from the Planning Board, they mention that the Long Form and the Town Board and so forth and so on. Basically the applicant has met all the requests in the tabling motion. So I don't think we have any choice but to make a determination. MR. MC NULTY-Okay. MR. UNDERWOOD-So do you want me to make a motion, if everybody's comfortable with it? MR. MC NULTY-Everybody comfortable at this point? Well, we're this far. I think probably the public hearing is still open on this. So we probably ought to check and see if there's anybody in the audience that wants to comment about this application. I don't see any hands. PUBLIC HEARING OPEN NO COMMENT 12 (Queensbury ZBA Meeting 10/24/07) PUBLIC HEARING CLOSED MR. MC NULTY-So then I think we can move on to a motion, and if you want to make a motion, go for it. MR. UNDERWOOD-Sure. MOTION TO APPROVE AREA VARIANCE NO. 34-2007 DAVID WENDTH/NORTHEAST HEALTH, INC., Introduced by James Underwood who moved for its adoption, seconded by Roy Urrico: 39 Longview Drive. The applicant is proposing construction of 12 independent living apartment of 12,280 square feet and related site improvements. Relief is being requested from the minimum setback requirements as well as relief from the off street parking and loading requirements. As far as the Area Variance goes, the applicant is proposing construction of an addition that will have 12 independent living apartments, and that's 12,280 square feet of living space. The requested relief is from the minimum setback requirements, and those setbacks are as follows: The apartments are located in one wing of the building, that is to be 26.9 feet from the front property line where a 30 foot setback is required. So we will be granting them 3.1 feet of relief. In addition, the project will be constructing 149 new parking spaces, but I believe that's 19 additional parking spaces, and in the original PUD I believe it was 149 parking spaces where 183 spaces are required. So, in doing that, we're going to be granting them less than what was required on that, as far as the off street parking and loading requirements. Duly adopted this 24th day of October, 2007, by the following vote: AYES: Mr. Urrico, Mrs. Hunt, Mr. Garrand, Mr. Bryant, Mr. Clements, Mr. Underwood, Mr. McNulty NOES: NONE MR. MC NULTY-Okay. MR. WENDTH-Thank you very much. MR. MC NULTY-Okay. We're going to move on to the next one, which is going to be a tabling motion. AREA VARIANCE NO. 60-2007 SEQRA TYPE: II MATTHEW EM MENS AGENT(S): JARRETT-MARTIN OWNER(S): MATTHEW EMMENS ZONING: WR-3A LOCATION: 2 HIGHVIEW ROAD APPLICANT PROPOSES DEMOLITION AND RECONSTRUCTION OF APPROXIMATELY 2,500 SQ. FT. OF RESIDENCE INCLUDING A 632 SQ. FT. ADDITION. RELIEF REQUESTED FROM SHORELINE SETBACK REQUIREMENTS FOR THE STRUCTURE AS WELL AS FOR STORMWATER CONTROL DEVICES PER CHAPTER 147. CROSS REFERENCE: BP 93-693 2-CAR ATT. GARAGE; BP 95-179 SUN DECK OVER EXISTING DOCK; 87- 119 BOAT SHELTER & DOCK WARREN COUNTY PLANNING: SEPTEMBER 12, 2007 ADIRONDACK PARK AGENCY: YES LOT SIZE: 0.97 ACRES TAX MAP NO. 239.15-1-19 SECTION: 179-13-010B, D & E; 179-4-030; 147-14; 147-9 MR. UNDERWOOD-We did hear this on September 19th, and we left the public hearing open on this one. They have requested that this go before the Planning Board, I believe, before they come back to us. MR. BROWN-Yes. I think, and you're going to have it in the file there, the Zoning Board tabling motion requested a recommendation from the Planning Board, and they are on the November 20th Planning Board agenda, and I think you're going to find a letter in the file that they've requested a tabling to a November meeting. I think it came in a couple of weeks ago. So if you're considering tabling them, if you pick the second Zoning Board meeting, which is, I think, the 28th. MR. UNDERWOOD-So would that be in November? MR. BROWN-That would be in November. MR. UNDERWOOD-Okay. MR. BRYANT-Will we have the minutes by then? 13 (Queensbury ZBA Meeting 10/24/07) MR. BROWN-Of the Planning Board meeting on the 20th? Maybe. MR. BRYANT-Well, that's going to be critical. MR. BROWN-We will try. MR. UNDERWOOD-If you want, I'll just read back what we requested on that, so everybody's familiar with that, and we mentioned, by Staff, in the Staff Notes, that they look at the infiltrators and whether that situation could be approved or it is adequate as proposed here this evening, as far as the size of the building. The Planning Board will be getting feedback back to the applicant at that point in time, and then the Planning Board submit their recommendations to the Zoning Board in ample time to place an Area Variance No. 60-2007 on the agenda for this month, which they didn't get to. So I'm going to guess that we probably ought to make it go to the first one in December, just to be safe. MR. BRYANT-Yes, because I think you ought to stipulate in the motion that we require the minutes, along with the recommendation. MR. UNDERWOOD-Okay. So I think in the tabling motion then we will be requiring that the Planning Board minutes and their resolution to our Board at that time, and we'll put them on the schedule for the first Zoning Board meeting in the month of December. MR. MC NULTY-Okay. Everybodyagreed? No questions? MOTION TO TABLE AREA VARIANCE NO. 60-2007 MATTHEW EMMENS, Introduced by James Underwood who moved for its adoption, seconded by Joyce Hunt: 2 Highview Road. That the Planning Board minutes and their resolution should go to the Zoning Board of Appeals at that time, on the schedule for the 1st Zoning Board meeting in the month of December. Duly adopted this 24th day of October, 2007, by the following vote: AYES: Mrs. Hunt, Mr. Garrand, Mr. Underwood, Mr. Clements, Mr. Bryant, Mr. Urrico, Mr. McNulty NOES: NONE MR. MC NULTY-Okay. NOTICE OF APPEAL NO. 7-2007 SEQRA TYPE: N/A GF HEATING AND AIR CONDITIONING AGENT(S): JONATHAN C. LAPPER, ESQ. BPSR OWNER(S): BRIAN NELSON ZONING: SR-20 LOCATION: 475 CORINTH ROAD APPELLANT IS APPEALING A SEPTEMBER 7, 2007 DETERMINATION FROM THE ZONING ADMINISTRATOR RELATIVE TO THE PERMITABILlTY OF AN OFFICE USE IN A SR- 20 ZONE. CROSS REF.: BP 2007-521 BLUE FLAME GAS CO. C/O ONLY WARREN COUNTY PLANNING: N/A LOT SIZE: N/A TAX MAP NO. 308.19-1-65 AND 66 SECTION: 179-5-050; 179-13-010 MR. UNDERWOOD-Okay. Next on the agenda, we were supposed to have heard from Glens Falls Heating and Air Conditioning. We received this at the 11th hour, and that is just prior to this meeting, the following letter. "Dear Chairman Abbate: On behalf of the applicant, I hereby request that the appeal of the Zoning Administrator's determination, which is scheduled to be heard tonight be tabled until a November ZBA meeting due to your absence from the Board tonight. As this is a very significant matter for the applicant it is important to have the Zoning Board Chairman present. Very truly yours, Jonathan Lapper, Esq." MR. MC NULTY-Okay. I don't see anybody from the applicant here. So we're back to the pleasure of the Board. We've gone this far. No applicant. Shall we open the public hearing and go through the process, or do you want to consider tabling? Actually we probably should consider tabling. MR. URRICO-This is different than the previous case that we talked about, because they have not been tabled before. 14 (Queensbury ZBA Meeting 10/24/07) MR. MC NULTY-Right. They have not been tabled before. It's still the same kind of thing. It's a last minute request. MR. UNDERWOOD-But it implies that the only reason is because the normal. MR. BRYANT-I have a problem with the reason. The reason, because Mr. Abbate is not here, is not an appropriate reason, okay, because it has the, it smacks of inappropriateness, okay. Why does Abbate have to be here? MR. URRICO-And what's going to be next? Is he going to call everybody the day of the meeting and find out if they're going to be there that night, and if he doesn't have a favorable Board? MR. MC NULTY-Well, it certainly can't continue. MR. URRICO-I also think that if that language was not in there, would we consider it a legitimate tabling? So it's the language that we're bothered by, not necessarily the tabling action, but that they're requesting a tabling. MR. MC NULTY-That's true. MRS. HUNT-It's the reason that they're requesting it. MR. MC NULTY-The reason is not legitimate. MRS. HUNT-Exactly. MR. MC NULTY-The other side of it is that, as we mentioned before, that should we decide to not table it, but hear it, and go against them, we haven't warned them. They should know better, but we haven't warned them, and they may well not have a legal opportunity to come back to us with this request, because by the time they get ready to do it, they're going to end up being beyond the deadline for appealing a Zoning Administrator's decision. MR. UNDERWOOD-Well, you know, both these last two that we're going to be dealing with here are basically saying the same thing, because the Chairman is not here, which begs the question, why is the Chairman's vote so important? Which gets back to what we dealt with in our last item that we discussed at length last meeting in Executive Session there. How do we know, what do we know, you know, about pressure being brought to bear upon people on this Board, you know, and I think it's legitimate for us to acknowledge that on the public record as a result of that. I mean, I don't know where he's coming from. We've never had this instance come up before with anybody, and now it's come up on two in one evening. Before the meeting, I passed out to everybody a fax that was sent to our Town Attorney regarding that incident of last week, and I still think it would be legitimate to read it in to the record, because I think it's bearing on the problem, and we don't know what the answer is. So I'm going to read it into the record based upon my recommendation that I read it in. I don't care what everybody else says. MR. BROWN-Do we want to deal with the two cases and then do it at the end? MR. MC NULTY-Yes, because that doesn't pertain directly to this. MR. BROWN-Just decide what you want to do, and then. MR. URRICO-I think we may not like the reason for the tabling, but we have never stopped somebody from tabling before, even lateness. We allowed a 3:30 one. This is at least moving in the right direction. We're getting earlier in the day, but there should be something done by us, but not necessarily regarding these cases, but setting some legitimate deadlines for. MR. MC NULTY-Well, that's kind of where I'm at. If this were a regular variance, I'd say we should consider denying without prejudice and let them re-apply, but I think we're precluding them or possibly precluding them from doing that if we do a denial. I think the Zoning Administrator's, Staff's suggestion earlier may be appropriate here, though. If we go for a tabling, put a caveat on it that this is the one time we're going to do it for this reason, and next time it's our intention not to table something because some body's shopping for votes. 15 (Queensbury ZBA Meeting 10/24/07) MR. UNDERWOOD-The other argument in their favor is that we have not heard this one before. I mean, these people have not appeared to us, this Glens Falls Heating and Air Conditioning, whereas the last one they've been in numerous times before us, but I think it's appropriate to acknowledge the fact that this is a seven person Board at any time. We have two alternates that usually show up. Occasionally we're short handed, but, you know, and that's legitimate grounds to allow the applicant to withdraw their application if you're not going to have a full Board hearing your application, but I think that we should acknowledge the fact that it is inappropriate to ask our Board, you know, for a tabling motion just based upon the fact that one person is not present on the Board. MR. MC NULTY-Right. I'll agree, and the short notice, you know. I think a short notice like that needs some real justification, and even if you don't have a full Board, the only reason we've got seven members on this Board is because the Town had a Board of seven members before they revised the State law. If you were creating a Board today, you'd have three to five members on a Zoning Board. Five is the maximum. So even if you were down to five members on this Board, that's still what a good number of towns and villages in this State deal with. Okay. MR. BRYANT-Are you polling the Board? MR. MC NULTY-I think we'll go down through and poll the Board. I see nobody in the audience to worry about a public hearing, and I presume we have no correspondence that's come in that we need to note. MR. BRYANT-Are you going to ask anybody in the public who wants to speak. MR. MC NULTY-Okay. We've got no one in the public that wants to speak? PUBLIC HEARING OPENED MR. MC NULTY-Okay. Let's poll the Board and see where we're at. Let's start at the other end this time. Brian? MR. CLEMENTS-Yes. I would say that this is the first time for this appellant, and I would say that to give him all the leeway possible I would be willing to table this, but I don't like the way that we have to do it. As a matter of fact, I've gone out there and looked at the property, and as a matter of fact, if we didn't table it, I would be in favor of the appellant in this case. So that's kind of where I stand. MR. MC NULTY-Okay. Rick? MR. GARRAND-At this point, I'd just like to say we have to balance the need for due process, but also take into account the inappropriate nature of the appellant's attorney's comments. I'd be in favor of tabling. MR. MC NULTY-Okay. Mr. Bryant. MR. BRYANT-Thank you, Mr. Chairman. Had the request for tabling been for additional time to gather information or that type of thing, I really would have no problem with tabling it, as we have in the past, but the reasoning that they're offering, the fact that Chairman Abbate is not here, it speaks volumes that there's something rotten in Denmark, okay, and even if it's just the appearance, and there really is nothing inappropriate in that request, the appearance, in my view, is sufficient to be damaging. It could damage the future credibility of this Board, because other applicants could say, if Abbate is here, we're going to get a fair hearing, and Mr. Underwood makes the point eloquently. He says we've got seven members of the Board. We have a talented Vice Chairman who is more than up to the task of taking the Chairman's place. There's absolutely no reason why they should request a tabling because Mr. Abbate is not here. Okay. So in my view it's inappropriate. I think it's an embarrassment to the Board if we grant the table, because we're basically agreeing to this potential impropriety, okay, and I think it could damage the Board in other applications down the road. There's going to be a time when Mr. Abbate's not here anymore. Then what? Does that mean that that particular law firm is never going to come to the Board again because Abbate's not here? I have a real problem. There's something about it that doesn't look right. I just can't, I don't buy it. I'd be opposed to tabling it. MR. MC NULTY-Okay. 16 (Queensbury ZBA Meeting 10/24/07) MR. UNDERWOOD-I think I've stated my opinion. I think that I can grant them a tabling motion with a little bit of a rebuke on the part of the law firm representing them. MR. MC NULTY-Okay. Joyce? MRS. HUNT-Well, I'm kind of conflicted, but I would vote for tabling, but I would like to have a caveat that we're not pleased with the reason they gave. MR. MC NULTY-Okay, and Roy? MR. URRICO-Yes. I understand where Mr. Bryant's coming from, and I totally agree with what he's saying, but I also feel that in this instance, this particular case, that we should grant a tabling motion, but with the understanding that this won't happen again. MR. MC NULTY-Okay. I'm kind of in that same spot. To be fair to Mr. Lapper, he's probably doing his job. He's assessed the Board, and apparently feels that he had a little better chance of getting an affirmative vote if Mr. Abbate was here, but that doesn't mean that we should let him get away with what he's doing, and as I said before, if this were a regular variance application, I would be wholeheartedly saying let's deny it, but given that he hasn't had any warning that he's not going to get a tabling, and the fact that it probably would preclude him from coming back, as much as I hate to do it, I think I'd be in favor of tabling. Do you want to do a motion? MR. UNDERWOOD-Sure. MOTION TO TABLE NOTICE OF APPEAL NO. 7-2007 G.F. HEATING & AIR CONDITIONING, Introduced by James Underwood who moved for its adoption, seconded by Joyce Hunt: 475 Corinth Road. Tabled to the first meeting in November, and again, as a rebuke to Mr. Lapper, we would think it would be inappropriate to ask for a tabling motion in the future when the current Zoning Board Chairman is not present, that we feel that that is inexcusable. That we have a full Board available and that everybody is capable of making a decision on any given evening, and the fact that it was last minute. Duly adopted this 24th day of October, 2007, by the following vote: AYES: Mrs. Hunt, Mr. Garrand, Mr. Urrico, Mr. Clements, Mr. Underwood, Mr. McNulty NOES: Mr. Bryant NOTICE OF APPEAL NO. 8-2007 SEQRA TYPE: N/A IRISH BAY PARTNERS, LLC AGENT(S): JONATHAN C. LAPPER, ESQ. BPSR OWNER(S): H.W. FISCHER, INC. c/o HOWARD W. FISCHER, JR. & ROSE MARIE FISCHER REVOCABLE TRUST ZONING: WR-1A LOCATION: 44 BEAN ROAD APPELLANT IS APPEALING AN AUGUST 30, 2007 DETERMINATION FROM THE ZONING ADMINISTRATOR RELATIVE TO A LOT SIZE AND THE DOCK CONFIGURATION ASSOCIATED WITH THEIR PROJECT. CROSS REF.: AV 29-2007; SUB. NO. 8-2007 WARREN COUNTY PLANNING: N/A LOT SIZE: N/A TAX MAP NO. 227.10-1-1, 2,3 SECTION: 179-4- 030 TABLE 4; 179-2-010; 179-5-050; 179-13-010 MR. UNDERWOOD-This letter was also received just prior to the meeting here. It's dated October 24th. "Dear Chairman Abbate: On behalf of the applicant, I hereby request that the appeal of the Zoning Administrator's determination, which is scheduled to be heard tonight be tabled until a November ZBA meeting due to your absence from the Board tonight." This had been previously heard several times before this Board also, and again, it was the same reason as the last one, due to the Chairman's absence from the Board. That's the only reason they were asking for a tabling motion. MR. MC NULTY-Okay. Again we see no representation from the applicant. Again, I guess we should ask if there's anybody in the audience who would like to comment on this particular application? Mr. Salvador. I'll open the public hearing. PUBLIC HEARING OPENED JOHN SALVADOR MR. SALVADOR-Thank you. My name is John Salvador. In spite of the applicant continually trying to table the application here before this Board, they are working 17 (Queensbury ZBA Meeting 10/24/07) feverishly with other organizations and other Boards, trying to get, you know, agreements, concessions. I don't know if you've had a chance to read the minutes of the joint Planning Board. You talk about something designed to fail. The Joint meeting there was no control, no outline, no procedure. It just didn't ring. No conclusions were reached, and I just don't know how they're going to proceed. Many times the Boards got half answers or unclear answers. Things were still being studied. They're seeking to find a way to weave through this maze, and you're a victim of this by this repeated tabling. Now the issue being talked about here, the Zoning Administrator's determination, they should have had all their ducks in a row when they filed the Notice of Appeal. If you don't feel you have a basis for appeal, you don't proceed. So they must have thought they had a basis, and there's been plenty of time in that period to get ready for the meeting. I really feel that in these cases where it's a Zoning Administrator's determination, and they are no show, at a scheduled meeting, you should award the Zoning Administrator a default judgment as a quasi judicial Board, award him a default judgment. They're not here, and that would take care of that. That would move the project. Thank you. MR. MC NULTY-Thank you. Okay. MR. UNDERWOOD-Do you want to poll people. MR. MC NULTY-Nobody else out there to talk, so, yes, we might as well poll. Let's start with Rick, just to be different. MR. GARRAND-I'm kind of torn on this one. I think that the justification for him asking for a tabling is wrong, but at the same time, this is one of those applications that has to be heard. It's a huge project, as much information as we can get. I'm all for that, as much information as we can digest from the minutes from the Joint Planning Board meeting. Anything we can incorporate this to make it a more informed decision, I'm all for that. I honestly, for the reasons stated, I do not want to table this, but by the same token, I think, once again, Irish Bay Partners are entitled to their night in here. So I'd be in favor of tabling it. MR. MC NULTY-Okay. Mr. Bryant. MR. BRYANT-Thank you, Mr. Chairman. I'm going to reiterate what I said before. Okay. This request for tabling smacks of impropriety. It's going to cause the Board, if we table it under that guise that Mr. Abbate is not here, I think it would raise eyebrows. I'm assuming that that young lady that's writing feverishly is from one of the media. Is that correct? AUDIENCE MEMBER-No, I'm just someone from a law firm. I don't know anything about these things. MR. BRYANT-I mean, if this got out in the public that they didn't want to hear it because Abbate wasn't here then it could raise some eyebrows. So in my view, I think we ought to handle the case, take a vote on it tonight, either yes or no. As to the merit of the case, I kind of agree with the Zoning Administrator that, even though the docks were pre- zoning, that they're not grandfathered in. There's no such thing. It's no longer a marina. It's a housing development, you know, a subdivision, and so in reality I'd be willing to grant them one dock for every lot they have and end of story, but, that being said, I think it's totally inappropriate, and I think we ought to think long and hard before we vote for a tabling in this one. I, for one, am opposed, and I am going to remind you of what you said in the previous application, that if this was not a regular variance application, you know, I would go the other way. I just want to remind you of that before you make your statement. MR. MC NULTY-Brian? MR. CLEMENTS-I'm going to have to agree with Mr. Garrand, as a matter of fact. I think that Irish Bay Partners has been in here and they've tried to do their best to observe the requirements that we had asked them, and I think that, to their benefit ,we should table this, however, I do feel the same way I did before. I don't like the letter from the attorney, but I don't think that I can take that out on the applicant. So, I'd be in favor of tabling. MR. BRYANT-Could I just say one more thing that I forgot to say? I'm sorry. I wanted to respond to something that Mr. Garrand said about, I agree with Mr. Garrand that, you know, this is an important project, okay. That being said, I think that the counsel should have handled it a little bit differently because of its importance. Because we don't accept 18 (Queensbury ZBA Meeting 10/24/07) a tabling now doesn't mean that we're going to close it forever more. They can come and re-apply with a new application, okay, which will delay the process, which will be an unpleasant situation for them, and I understand that, but they'll still have their day in court. So they'll still get the due process that they need to get, but the reason for the tabling is really, that's alii have to say. MR. MC NULTY-Jim? MR. UNDERWOOD-Okay. We've been dealing with this on numerous occasions, and I think it goes all the way back to when Blanche Alter was the head of the Department down in the Planning Department down there, and I think that, in the initial notes that we received, all of the subjects that have come before us, whether it was lot size, you know, whatever those requirements were, the most difficult one that I had a problem with was the docks, and, you know, despite the fact that we pointed that out to them very early in the process, they tried to brush aside the dock problem and the dock problem up on Irish Bay is, essentially, the most key item to the project, because without the presence of docks, there's no legitimacy for creating all that new residential housing up there, which needs dock access to Lake George, which is the prize, and I think in this instance here, I think that all along I said that, you know, I fully, you know, if I were being asked tonight to make a determination as to how I was going to vote, I was fully prepared to do that this evening and I think all of us were, and I think that this last minute lame excuse that the Chairman's not here so we can make our determinations this evening is inappropriate on the part of the applicant's representation. I think also that, you know, I'm not going to say, one way or the other, how I feel on this, but they, you know, they're stonewalling us again. I don't know how long it's going to hold their process up. I'm not sure what we're going to do here, whether we're going to do this, but we're probably going to have to table this again. So it's just putting this project longer and longer into limbo. It looks like it's not going to get underway this year, if indeed it does come to fruition in the grand end result. Nonetheless, I think that we should probably table it, but in tabling this one, I even more so feel like they're trying to swing the vote, and I don't think that anyone person, again, makes the vote on this Board. The Chairman himself can summarize our feelings, but we're each allowed to make our feelings known on the Board, and as long as we have a full Board sitting here, every single one of us up here has been involved in some way, shape or form with all the decisions regarding this project from the get go, and I think we were fully prepared to finish it up here this evening. So I will, you know, I'll go along with the tabling motion, but I'm not happy about it and the way it was done. MR. MC NULTY-Okay. Joyce? MRS. HUNT-Thank you. I have to agree with Mr. Bryant. They've been before us many times. They know the process and they certainly had lots of time to get their material together, and I also take exception to the reason for their asking for tabling, and I would be against tabling. MR. MC NULTY-Okay. Roy? MR. URRICO-I find it interesting that, in requesting this tabling, they address it to Chairman Abbate, knowing that he's not going to be here tonight, and ask him to table it, knowing that he's not going to be here tonight. Are we allowed to read his mail? Really, I mean, did they call? They just faxed this? MR. BRYANT-It's a fax. MR. BROWN-It was faxed. MR. URRICO-So they just sent a general fax to the Planning Department fax machine? MR. BROWN-That's correct. MR. URRICO-What if you didn't see it? I'm serious. I mean, is this their way of doing business? It seems like an odd way for a law firm to request an official action that's really going to affect their project, and do so in such a late manner with a lame excuse. However, this is an important project. We all realize that. It's not something that we can make quick decisions on, based on what we perceive as being an incorrect procedure, unless it is an incorrect procedure. Because I don't know that it is or not, but I do feel that we need to hear this out, because we've spent a lot of time on this Irish Bay Partners case, and this is just continuing. I would be comfortable with a tabling motion with the same strong admonishment that we gave to the previous application, but I am concerned, like Mr. Bryant is, of somebody fishing for votes. Even if it's not in their favor, 19 (Queensbury ZBA Meeting 10/24/07) I mean, it could backfire on them for the same reasons, and that also presents a dilemma for the Board and for the counsel in the future, not our Town, our Town Counsel, because by trying to do what they have been, which is trying to maybe swing the vote or get a favorable vote, if they don't get a favorable vote, it could be considered because of what they tried to pull. So it really creates a dilemma for us, but I would be in favor of tabling, at least for now. MR. MC NULTY-Okay. MR. BRYANT-Can I make one more statement, Mr. Chairman? MR. MC NULTY-Sure. MR. BRYANT-Actually Mr. Urrico brings out a good point. Because you know in a lot of these e-mails and stuff, they always have a phrase. If you see an e-mail from Matt Fuller, it's always got a paragraph on the bottom, this is intended for the eyes of the recipient only. There are legal ramifications for reading a fax that is not addressed to you, okay. There are statutes relative to that. So, if it was faxed to and addressed to Mr. Abbate as Chairman of the Zoning Board, are we even actually authorized to have it in our packets? Okay, but that being said, I see where this is going tonight, and frankly when these two cases come up, I'm going to recuse myself from both of them. I think it's totally inappropriate, and I'm going to stick by my guns on it. So, for that reason, when they come up, I'm out of here. MR. BROWN-And if I could just add a little bit on this one specifically. Everybody's aware that Town Counsel's recused themselves from representing, at the request of whatever. The Town Board has retained a special counsel for the Planning Board and the Zoning Board at your request for Irish Bay. So we can certainly request that they be here the next time this appeal is heard, so that there's, you know, representation for the Town, whether it's for the Board or whether it's from my side or whatever, but we can certainly have counsel here for you next time. MR. MC NULTY-That would probably be good. MR. BROWN-If you'd like, yes. MR. MC NULTY-Okay. I'm about where I was last time. I'll give the law firm and Mr. Lapper the benefit of the doubt, you know. As I said before, I think he was trying to just do his job, and get the most favorable conditions he could for his client for a vote the way they wanted to go, but as we've said, it's inappropriate and there are repercussions because it does raise the question, okay, why is it so beneficial to have Mr. Abbate or whoever else here? It suggests that maybe he might vote in favor for some reason that's inappropriate. I don't think that was the case, but, nevertheless, it's just bad news all the way around. So I think we'll do another motion like we did for the last one and I think when Mr. Abbate gets back, at some point in one of our meetings, we ought to have a good discussion about how do we put out notice that we're not going to do this again, and if we can put out some kind of notice so that they're pre-warned, then the next time, too bad if it's an appeal and they can't come back. Do you want to try again? MR. UNDERWOOD-Okay. MOTION TO TABLE NOTICE OF APPEAL NO. 8-2007 IRISH BAY PARTNERS, LLC, Introduced by James Underwood who moved for its adoption, seconded by Roy Urrico: 44 Bean Road. Table this until the 2nd meeting in November. At this point in time, we would also like to go on record as saying that we feel that the lateness of this filing for a tabling motion was inappropriate, and the reason again, that the absence of the Zoning Board Chairman not being present was not a legitimate excuse for that to occur. Duly adopted this 24th day of October, 2007, by the following vote: MR. CLEMENTS-Could I add something to that motion? MR. UNDERWOOD-Sure. MR. CLEMENTS-Could I add that the minutes of this meeting be sent to Mr. Lapper, directly? MR. UNDERWOOD-He's going to get them anyway. 20 (Queensbury ZBA Meeting 10/24/07) AYES: Mr. Urrico, Mr. Garrand, Mr. Clements, Mr. Underwood, Mr. McNulty NOES: Mrs. Hunt, Mr. Bryant MR. UNDERWOOD-And the last item here tonight. Last week at our meeting we had a closed session meeting with the Board, in isolation, because we had a subject that came up regarding the Chairman of our Board. It was not a very pleasant discussion that we had regarding that, but the Chairman, and I will read this into the record here. This was a fax that was sent to the Queensbury Town Attorney, Matt Fuller, and it's dated Sunday, October 14, 2007, at 5:36 a.m. "Matt, I attended John Strough's Critical Environmental Area workshop at 7:00 p.m. on the 9th of October", and he's got '06 in there, it should have been '07, "At approximately 6:50 p.m., an incident occurred, and since then I have been in a quagmire as to what to do. It concerns myself as Chairman of the Zoning Board of Appeals. I was threatened that 'If you don't back down, I'll bury you, and I use this card to make my point'. He then displayed a green sized playing card showing a person with a shovel burying a live body with dirt. I smiled and carried on a cordial conversation. Can we get together as soon as possible to discuss this incident. Either way, I want this to be a matter of record. Chuck" There was no response whatsoever from Matt Fuller to the Chairman regarding that incident, and there has been none to date, but I just wanted to read that into the record. Make of it what you will. MR. MC NULTY-Okay. Anybody else got anything? MR. URRICO-I think Mr. Salvador's got something. MR. MC NULTY-That's right. JOHN SALVADOR MR. SALVADOR-Thank you, Mr. Chairman, Mr. Vice Chairman. Today I delivered to the Town Hall here a letter addressed to Mr. Chris Hunsinger, the Chairman of the Planning Board, and I think Maria passed your copies out to you this evening, and I don't think you've had a chance to digest it, but I'd like to go over it just briefly, and this deals with that project up on the end of Assembly Point, the West project. If you remember, they were doing some kind of a dock in-fill. I did not attend your hearing on that subject, but I did attend the Planning Board. The Planning Board hearing was much shorter. The people from the fire company and the emergency services did not appear. They were not there, and it went, supposed to go along very smoothly, but in any case, I did comment on that, and the thing that bothered me was the intervention of the fire department and the emergency services on behalf of this applicant, and for something that is so inconsequential, and I mentioned that at the hearing. I mentioned the fact that emergency services have the right to cross your property for whatever reason, in the performance of their duty. They don't need your permission, anything. This is poppycock, this thing they invented, this need for this in-fill they call, because it was going to be used for emergency services. Now at the Planning Board meeting, I asked a couple of questions, like do you have a sketch of what, plan of what this is going to look like, and there was nothing available, which of course means there was nothing available for your hearing. Now I since have copies of what they submitted for construction approval. It hasn't been done by anyone that can profess to know anything about design of a structure spanning 18 feet. It's going to be probably no more than six inches off the water, steel structure, bar joists. They're going to carry a hell of an ice load in the wintertime. The deck is going to be carrying an ice load. I don't know if it's going to be maintained for emergency access. The project was just so bad, and yet it went through. It went through. Who's going to keep the access way from the road all the way out to that dock free of ice so that these emergency people can get out there in the wintertime? Who's going to do that? In any case, it got approved. Now I mentioned that my concerns were that there were no available, no drawings available for a project variously described as in-fill decking, dock expansion, pier expansion, a nonconforming structure, a covered deck area, a new deck/dock area, a new deck area, and a platform, okay. Really what it is, it is a platform, and I pointed out to the Planning Board that platforms are regulated by the DEC, and we have, in the DEC 6NYCRR Part 608, addresses the issues of platforms, and that's where they should have gone to get a permit, but this Board and Staff and Planning, everybody, you know, gives them this permit to do this, and in any case, I brought up the issue of, the subject of jurisdiction, and at that meeting, at the Planning Board meeting, I emphasized the fact that I didn't think the Town had any jurisdiction over this project, for a number of reasons, and that the DEC did, and Mr. Hunsinger replied with words to the effect of, I have them in my letter here, very interesting arguments which may have validity in a court of law, and there not being any 21 (Queensbury ZBA Meeting 10/24/07) additional comments, you opened the hearing for Staff comment with, I guess I'll look to the attorneys, with the preface, I mean, I already said we reviewed hundreds of dock permits. Mr. Fuller, the Town Counsel, responded. As for legal comment, until a court says otherwise, this Town regulates docks along the shores of the Town of Queensbury, and that is the purpose of this communication. I attach as the final document here an order decision by City Court Justice Richard P. Tarantino, and this involves myself, and you read about it in the newspaper, but in any case, if I could digress a little, I'd like to tell you the circumstances surrounding it, be, because I don't think anybody in the Town knows what's going on, okay. I don't think you know what's going on. This has been in the court for, I'd say, two years, okay, been in the court system for two years. Finally winds up before Judge Tarantino, City Court, and we are scheduled to have a trial on the 14th of September, and by the way, both my wife and I are the defendants. Both my wife and I have been cited for violations of the Town Code, okay. The first thing we thought would be appropriate was there was no reason for my wife to testify. Her trial was scheduled for the 21st of September. Mine was the preceding week, the 14th. We thought there was no reason for her to testify, and we had affidavits from two physicians that stated that they thought it would be detrimental to her health if she had to testify. Okay. We submitted those to the court, prior to my trial. The other thing we did was we submitted to the court judicial subpoenas. We wanted to bring people to testify on our behalf. They were not signed. They were not honored. Okay. The third issue we raised was these violations, charges that were brought against us are in fact felonies. That's why the $950 fine. These are felonies. Now you know, felony is a criminal thing, and we should have been read our Miranda rights when we were served. That wasn't done. So how did the Judge handle all of this? He took the affidavits from the physicians and he set them aside and said, well, we don't have to handle that until the time for Mrs. Salvador's trial. The issue of the Miranda rights didn't seem to be very important to the Judge and thought, well, maybe you could take that up on appeal. Okay. Got the message? So we were forced to go ahead, and our attorneys made it quite clear to the court that we were serious about this thing, and we would take this as high as we had to go, because there are important issues here, so then it became a subject of, I don't know if you'd call it negotiations, settlement conditions, what have you, but we were encouraged to seek a settlement with the Town, okay, and the Town put forth this proposition that if we, if I would admit to the charge of having built a structure on our land that did not have a Town permit, I would plead guilty to that. I would pay a $950 and remove the structure within 60 days. For that, the charges, the criminal charges against my wife would be withdrawn, withdrawn, and the charges for us having built a structure on the navigable waterway would be dismissed by the court, dismissed. We decided to take it. We decided to do that. I paid the $950 fine. We removed the structure within 60 days, and the charges have been dropped against my wife. Okay, but for that, we got, the court has dismissed the Town's claim for jurisdiction on the navigable waterway, and that's the letter I attach here. Now going back to Mr. Fuller's comment, at that hearing, he said until a court says otherwise, this Town regulates docks along the shores of Lake George. I'm asking Mr. Hunsinger to take this, all of this under his advisement, and we know now that the Town is engaged in changing its Code, its Zoning Ordinance, and this is going to remain an issue. Now I can tell you also, if you've read the papers on Hoffman, the centerpiece of Hoffman's defense is the question of jurisdiction. The centerpiece of their defense is jurisdiction. Read their papers. Okay. Any questions? MR. BRYANT-So, I'm not quite understanding the outcome here? First off, did they book you and fingerprint you and all that stuff? MR. SALVADOR-No. I've had that done before. MR. BRYANT-But now in the deal, are you still left with the felony conviction over your head? MR. SALVADOR-No. The letter says, no, you are also sentenced to a one year conditional discharge with the following conditions. You are not to violate any laws or ordinances. That's pretty broad, okay, and you are to remove the structure in question to a legally accepted location within 30 calendar days. MR. BRYANT-I don't know that you should be here, Mr. Salvador. It's too much of a risk for you. MR. SALVADOR-But I'm telling you, we're going to get this settled. MR. BRYANT-Is this meeting adjourned? MR. MC NULTY-This meeting is adjourned. 22 (Queensbury ZBA Meeting 10/24/07) RESPECTFULLY SUBMITTED, Charles McNulty, Acting Chairman 23