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2007-11-28(Queensbury ZBA Meeting 11/28/07) QUEENSBURY ZONING BOARD OF APPEALS SECOND REGULAR MEETING NOVEMBER 28, 2007 INDEX Area Variance No. 70-2007 Matt Eberlein 1. Tax Map No. 277.17-1-25 Notice of Appeal No. 8-2007 Irish Bay Partners, LLC 9. Tax Map No. 227.10-1-1, 2, 3 Area Variance No. 68-2007 Ted and Jennifer Islas 21. Tax Map No. 308.7-1-34 Area Variance No. 69-2007 Michael & Veronica Chase 27. Tax Map No. 309.15-1-58.2 THESE ARE NOT OFFICIALLY ADOPTED MINUTES AND ARE SUBJECT TO BOARD AND STAFF REVISIONS. REVISIONS WILL APPEAR ON THE FOLLOWING MONTHS MINUTES (IF ANY) AND WILL STATE SUCH APPROVAL OF SAID MINUTES. 0 (Queensbury ZBA Meeting 11/28/07) QUEENSBURY ZONING BOARD OF APPEALS SECOND REGULAR MEETING NOVEMBER 28, 2007 7:00 P.M. MEMBERS PRESENT CHARLES ABBATE, CHAIRMAN JAMES UNDERWOOD, SECRETARY ALLAN BRYANT CHARLES MC NULTY ROY URRICO RICHARD GARRAND JOYCE HUNT ZONING ADMINISTRATOR-CRAIG BROWN TOWN COUNSEL (FOR IRISH BAY) – MICHAEL MOORE STENOGRAPHER-MARIA GAGLIARDI MR. ABBATE- Good evening, ladies and gentlemen and welcome to the Town of Queensbury Zoning Board of Appeals hearing dated 28 November 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 evening. 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 appeal. 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 I ask that you please be crisp, organized and limit your comments to only the facts and information given this evening. On opening the public hearing the public will be allowed a maximum of 5 minutes to comment on a specific appeal. The purpose of this time limitation is to provide each member of the public an opportunity to be heard, and also to limit the length of the hearing to a reasonable time frame. All questions from the appellant or the public will be addressed to this Board. All dialogues during the hearing will be between the appellant and this Board. Mr. Secretary, I’m going to ask if you would please monitor the time, and do we have, at this time, any correspondence, sir, that we should read into the record? If so, would you be kind enough to do so. MR. UNDERWOOD-I don’t have any. MR. ABBATE-You do not. Okay. AREA VARIANCE NO. 70-2007 SEQRA TYPE: II MATT EBERLEIN OWNER(S): MATT EBERLEIN ZONING: WR-1A LOCATION: 12 SEELYE ROAD NORTH APPLICANT PROPOSES CONSTRUCTION OF A 656 SQ. FT. U-DOCK. RELIEF REQUESTED FROM MINIMUM SIDE SETBACK REQUIREMENTS. CROSS REF.: BP 2007-608 DOCK WARREN COUNTY PLANNING: NOVEMBER 14, 2007 ADIRONDACK PARK AGENCY: YES LOT SIZE: 0.30 ACRES TAX MAP NO. 277.17- 1-25 SECTION: 179-5-050 MATT EBERLEIN, PRESENT MR. UNDERWOOD-Something you wanted to add on that? MR. ABBATE-Yes, I do. Mr. Eberlein are you? MR. EBERLEIN-Yes. MR. ABBATE-Okay. Mr. Eberlein, I’m afraid I have some bad news for you this evening. Unfortunately, sir, I find that your appeal is defective, in that it fails to show a pre- conference meeting with Staff, which is a requirement of our Zoning Board of Appeals resolution of 20 February 2007 which is a matter of public record, and it mandates that 1 (Queensbury ZBA Meeting 11/28/07) each appeal coming before us maintain certain documents, and there is no completed pre-submission conference report signed and dated by the Staff person conducting the review, unfortunately. I apologize for any inconvenience, and I suggest you coordinate this with Staff and I have no option but to move a motion to table your appeal until that is taken care of, until you coordinate that with Staff, to the January 16, 2008 hearing. MR. BROWN-Mr. Chairman, there’s a form in the. MR. ABBATE-I don’t have it in our files. MR. BROWN-It’s in the copy of the application that I have. MR. ABBATE-Do you have it in your files? MR. UNDERWOOD-No. MR. ABBATE-No, we do not. MR. BROWN-It’s in the last page of the application. th MR. ABBATE-We do not have it in our files, and our resolution of the 20 of February 2007 makes it quite clear that each document that is presented to, in the package to every member of the Zoning Board of Appeals will contain every document relative to that case, and it has not, we do not have it, and, sir, I’m going to move a motion to table Area Variance No. 70-2007 to January 16, 2008. Now this is not the first time that this Board has not received completed applications. MR. EBERLEIN-I submitted 19 copies. MR. ABBATE-Sir, none of us on the Board have it and the laws are quite clear. We may only make our decision on the evidence that’s contained in the record. In our resolution of 20 February 2007, which is a matter of public record, maintains what is required in each appeal coming before this Board, and the first requirement is a pre-conference that is signed and dated, and it must be contained in every package delivered to the Zoning Board of Appeals members. Now, do any of you have that pre-conference? MR. UNDERWOOD-I think that it’s on the last page. MR. ABBATE-I don’t have it. MRS. HUNT-It’s not signed. MR. ABBATE-And it’s not signed. MR. BROWN-Well, I’m not sure the requirement says signed and dated. It says a pre- submission form. MR. ABBATE-It says signed and dated. I am quite sure our resolution says that. MR. BROWN-Okay. Do we have that resolution we could just double check? MR. ABBATE-I am quite sure. I don’t have to double check. The resolution says signed and dated by Staff. MR. BROWN-Well, if the Board pleases, I can certainly testify to the fact that I did the application with the appellant. These are my notes in the packages that you have. Maybe I didn’t sign it, but we certainly had a meeting, and those are my notes, and it is dated. MR. ABBATE-As far as I’m concerned, the application is defective. Now, I’m going to move a motion to table Area Variance No. 70-2007 to January 16, 2007. MOTION TO TABLE AREA VARIANCE NO. 70-2007 MATT EBERLEIN, Introduced by Charles Abbate who moved for its adoption, seconded by Allan Bryant: 12 Seelye Road North. To January 16, 2008, providing the pre-conference hearing is th completed no later than the 15 of 2007, and that the Staff who has conducted the pre- conference sign and date it. The motion is based upon the fact the appellant’s case file 2 (Queensbury ZBA Meeting 11/28/07) fails to show a signed and dated pre-submission conference in accordance with the resolution of 21 February 2007. th Duly adopted 28 day of November, 2007, by the following vote: MR. UNDERWOOD-Are we going to have any discussion first? MR. ABBATE-If you wish. Do you want a discussion on this, Jim? MR. UNDERWOOD-You need a second from somebody first. MR. ABBATE-Yes. That’s what I asked for, is there a second? MR. BRYANT-I’ll second it. MR. ABBATE-It’s been seconded by Mr. Bryant. MR. UNDERWOOD-Do you want to do the discussion before we vote on it? MR. ABBATE-All right. I’ll honor that, sure. Why not. Mr. Underwood would like a discussion before voting on it. MR. UNDERWOOD-I don’t know how many of us were aware of this problem before we came in, you know. I don’t know if the Board, the other members have been informed that this was a problem, just not having a signature on the form there, but it appears everything in the file is there that’s necessary for us to render a decision tonight. MR. ABBATE-Well, we have a resolution, Jim, that was passed seven to zero, and it makes quite clear that there must be a pre-conference hearing with Staff, and it makes quite clear that the Staff person conducting the pre-conference must sign and date it. It’s not in our files, and as such it’s not a matter of record. Now if the Board wants to totally throw away the resolution that we voted, let me know. MR. UNDERWOOD-No, I’m not disagreeing with your take on the situation, but what I’m saying is I think in the future when we run into these, you know, if a call is necessary over to the Zoning Administrator just to see, you know, did you forget to put your name on here or something like that, which it appears in this instance. MR. ABBATE-Well, let me ask the question, did you review the package that you received? MR. UNDERWOOD-Yes, but I didn’t know, you know, I just thought that that was the page and everything was there. I forgot about the signature. MR. ABBATE-Well, when we received, there is a list of what’s required, a pre-conference hearing, a date and signed survey, a denial letter establishing standing, and several other provisions in order for the appeal to be complete, and again, if it’s not in our files, it’s not a matter of evidence in the record, and we only can base our decision on the evidence contained in the record. MR. BROWN-I’d be happy to sign all your copies for you if that’s what you need is a signature. MR. ABBATE-No. This is the second time in two weeks that Staff has failed to provide us some information. Last time it was a fax, and you made a big deal out of that, Mr. Bryant. MR. BROWN-You want to table this application over a signature? MR. ABBATE-I’ll move the motion that we table Area Variance No. 70-2007. Mr. Bryant has seconded the motion. AYES: Mr. Bryant, Mr. Garrand, Mr. Abbate NOES: Mr. Urrico, Mrs. Hunt, Mr. McNulty, Mr. Underwood MR. ABBATE-The vote to table has failed on a vote of three yes and four no. Based upon that, then we will hear the case this evening. I’m going to recuse myself from this. Mr. McNulty, would you mind please taking over for this particular application. 3 (Queensbury ZBA Meeting 11/28/07) MR. MC NULTY-Okay. MR. ABBATE-Joan, would you mind sitting in for me, please. Thank you very much. STAFF INPUT Notes from Staff, Area Variance No. 70-2007, Matt Eberlein, Meeting Date: November 28, 2007 “Project Location: 12 Seelye Road North Description of Proposed Project: Applicant proposes construction of a 656 sf stake dock. Relief Required: Applicant requests 10 feet of relief from the 20 foot minimum side setback requirement for docks per §179-5-060, (6). Criteria for considering an Area Variance according to Chapter 267 of Town Law: 1. Benefit to the applicant: Applicant would be permitted to construct the structure in the preferred location. 2. Feasible alternatives: Feasible alternatives may include compliant construction as there appears to be ample room for a conforming structure. 3. Is this relief substantial relative to the ordinance?: The request for 10 feet of setback relief from the 20 foot requirement may be interpreted as substantial (50%). 4. Effects on the neighborhood or community: No letters of support were submitted with the application materials. It is the applicant’s position that a compliant location would be too close to the adjoining dock to the west. No information has been presented to show the location of the neighboring dock in relation to a compliant dock location on the subject property. 5. Is this difficulty self-created? The difficulty may be interpreted as self created. Parcel History (construction/site plan/variance, etc.): None applicable Staff comments: While the proposed easterly “finger” of the new dock is planned to be in the same location as the existing dock, it is still planned to be a new structure. Will there be a boathouse/sundeck proposed for the dock? Additional relief would likely be needed in the future for construction on the proposed dock. What about the dock to the east? Would a “centering” of the proposed dock on the subject property have a positive effect on the dock to the east? SEQR Status: Type II” MR. UNDERWOOD-“Warren County Planning Board Project Review and Referral Form November 14, 2007 Project Name: Eberlein, Matt Owner: Matt Eberlein ID Number: QBY-07-AV-70 County Project#: Nov07-23 Current Zoning: WR-1A Community: Queensbury Project Description: Applicant proposes construction of a 656 sq. ft. U- dock. Relief requested from minimum side setback requirements. Site Location: 12 Seelye Road North Tax Map Number(s): 277.17-1-25 Staff Notes: Area Variance: The applicant proposes to remove an existing 6 ft. by 42 ft. crib dock with a pilings u shaped 4 (Queensbury ZBA Meeting 11/28/07) dock with a 6 ft by 42 ft and a 6 ft by 38 ft 6 in dock configuration. The plans show the u shaped dock with 10 ft setbacks on each side where a 20 ft setback is required to each side. The information submitted indicates the applicant has received a LGPC permit for the proposed dock configuration. 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 11/16/07. MR. MC NULTY-Okay. Would the applicant like to tell us anything more you’d like us to know about? MR. EBERLEIN-Yes. I took a couple of quick photos which I can give you which will really make you understand why moving it is really not an option. The water level goes virtually to a beach walking out to, looking at the lake to the left, and the water level now drafts a boat somewhere around four feet, and by moving that dock any further it’s going to really make it somewhat useless. My biggest concern, you’d really have to see the pictures to see understand it, unless some of you know about the marina in front of me that actually crosses in front of my property. It’s relatively close to my shoreline, and by moving, it’s a diagonal dock that sticks out 100 or so feet, or a couple of hundred feet, and by moving my dock closer towards that dock would make navigation from the boats going to that dock and myself somewhat of an issue. The pictures that I’ve got, that I can just hand to you, will show you, as far as my neighboring property owner, I’m actually cutting off eight feet of a finger off of the end of the end of the current existing dock, which now leaves navigation into my neighbor’s dock virtually unobstructed, and there’s nothing blocking that at all. I don’t have any letters in support from either Kirkpatrick or the Russos. However, both of them, yesterday one and one today, called me specifically to tell me that if I needed to have their assistance here for any reason, I could call them and they’d be happy to come over. They both support the project, because where Kirkpatrick knows navigation is an issue on the one side, Russo also knows that navigation is an issue, plus, by chopping off the tip of the end of the existing dock, he knows by my boat coming directly straight in is no longer going to be an issue, because in the past because the end of my dock has a finger on it, you had to go around it, kind of in front of his dock, to get into mine, and if you don’t mind, I’d like to just show you the pictures to give you an idea. MR. UNDERWOOD-Sure. MR. EBERLEIN-And because of the concerns of moving the dock over, the new finger of the dock that I’ve proposed to construct, I actually shortened it to be less than the finger that we’re replacing, to keep it that much easier as far as navigation for boats. You’ll see one is 42 feet and the other one is, I’ve got down to, I believe it was 38 and change on the new one. Actually it’s going to be less than 38 because one foot of the crosswalk is going to be cantilevered onto the property itself. So where one finger is going to be 42, which exists there now, the other one is only going to be 38.6, but a foot of that is on the crosswalk, which actually is on the shoreline itself. MR. MC NULTY-Okay. That’s it? MR. EBERLEIN-That’s pretty much it. MR. UNDERWOOD-Do you anticipate in the future changing that over to a boathouse? MR. EBERLEIN-No, I have no, if you know the property itself, the beach itself, or the grass itself is completely flat, and to put up a boathouse would be, well, I’m going to be staring at my boathouse instead of the lake. MR. UNDERWOOD-It would stick up in the air, right. MR. EBERLEIN-So that marina’s enough. There’s really no other additional plans in the future. MR. BRYANT-But would you accept a provision in any resolution to prohibit the building of a future boathouse or sundeck? MR. EBERLEIN-Yes. I don’t really have a problem with that. I mean, it would limit, someday if I sell the property, to whoever buys it, but I guess that really doesn’t affect me, what my plans are. MR. MC NULTY-Any other Board member got a question? 5 (Queensbury ZBA Meeting 11/28/07) MR. GARRAND-Yes, I’ve got a couple of quick questions. How many boats do you plan on storing here? MR. EBERLEIN-I have one pleasure boat, and I’ve got a teenager coming up, and he would like a fishing boat, and then, you know, if a visitor wants to stop over, that’s really about three. The other thing is, I’ve got three children, so the possibility of watercraft, which I could use on the far left side, because that’s the shallowest. MR. GARRAND-So at any given time you could have three or four watercraft in this area? MR. EBERLEIN-No, not three or four watercraft, but potentially two probably. Not immediately, we have one now. MR. GARRAND-Okay. My concern here is, as you know, the property lines extend out into the lake, and I’m just wondering about, you know, the impacts on the neighbors on either side of you. If there’s significant boat traffic going in and out of there, or if it’s going to increase the amount of boat traffic in that area? MR. EBERLEIN-Well, currently you could put two boats on the existing dock that’s there, actually you could put three on it because it’s 14 feet on the end, and I’m removing eight feet of that, so now we’ve got two coming in, adding a finger on, which would give you a possibility for one additional. I like to fish. So I’d like to have a fishing boat, you know, if my son someday wants a ski boat or something, I’d like to have the opportunity to be able to dock it on the property. MR. GARRAND-Okay. So you only could foresee having two boats there at any given time? MR. EBERLEIN-Realistically two, possibly three at any given time. MR. GARRAND-Okay, but it’s not going to be used for a rental at all, anything like that? MR. EBERLEIN-No. It’s all for personal. I’ve got three young kids and they like to get out. MR. GARRAND-Okay. Thank you. MR. EBERLEIN-You’re welcome. MRS. JENKIN-I have a question. What made you want the width of the inside part to be 23 feet? Is that because of your boat? Your boat isn’t 23 feet wide. MR. EBERLEIN-No, but my boat is pushing on almost 11 feet, beam wise, and by having that large inner, I can put two boats side by side and limit the amount of potential damage by storms and that. MRS. JENKIN-Because I was thinking you, essentially, it is new construction, and there’s no crib. There’s no, nothing like that, it’s just a dock with legs down. MR. EBERLEIN-Well, no, there’s an existing crib there now. MRS. JENKIN-There is a crib? MR. EBERLEIN-Yes, in the pictures of it, I gave you the pictures. The existing dock is a crib dock. MRS. JENKIN-It is a crib dock, so that’s why you want to keep it there. Because I thought that if you moved that over even five feet, made it a little bit narrower, then you would be, the zoning would be closer to what the zoning should be. MR. EBERLEIN-But it would eliminate the opportunity for me to put two boats on the inside of the docks. MRS. JENKIN-But as you said, the length of it allows you to put two boats in anyway, the length of this dock, the 43 feet, you can put two boats along there. 6 (Queensbury ZBA Meeting 11/28/07) MR. EBERLEIN-No, that’s not true. You can put one boat currently on each side of the existing dock. MRS. JENKIN-At 43 feet? MR. EBERLEIN-Well, it’s 43 feet, but you’ve got, you can’t put a 43 foot boat on a 43 foot dock, because you’ve got crosswalk, and then of course you’ve got where the shoreline goes from zero depth to where the boat can actually draft. MRS. JENKIN-True, but no boat is 43 feet long? MR. EBERLEIN-The current dock is 42 foot long. My boat is 31.10, and six inches, I mean, it’s right at the end of that 42. So that’s how I came up with that length. MRS. JENKIN-Okay. Because when I was, I couldn’t believe the other dock that comes, it cuts right in front of your property, practically. It’s very obtrusive. MR. EBERLEIN-Yes it does. MRS. JENKIN-But even putting this other one 23 feet away from that, it’s going to cut into, there’s not going to be much space left. MR. EBERLEIN-Well, there certainly wouldn’t be if I moved the dock over, and that’s why I’m here. MRS. JENKIN-Right. I was just thinking if you move the dock over and made the space, the inner space, a little bit smaller, you’d be closer to the zoning regulations, made it a little narrower. MR. EBERLEIN-But it would eliminate the opportunity to put a 26 or 27 foot fishing boat alongside of my current boat inside that slip with an eight foot beam. Because it would put the two boats too close together. MRS. JENKIN-Right. MR. EBERLEIN-It would certainly make it harder to park two boats. MRS. JENKIN-Our purpose here is to try to get as close to the, and get people, especially when they’re doing new build, new construction, to try to be more in line with what the zoning really asks us to do, and if you do, then you’re going to be closer, it’ll be better for your neighbor if you’re not just 10 feet away, but the 20, or even 15. It helps your neighbor. MR. EBERLEIN-Well, but the neighbor’s dock is probably 10 feet away from that. MRS. JENKIN-So he’s grandfathered in, too? He’s only 10 feet away from this? MR. EBERLEIN-Everybody on that whole corner is. It’s almost, if Kirkpatrick’s marina wasn’t in front of me, in a perfect world, it would be wonderful, because I wouldn’t have to look at the big boats, but I could move it over, maybe go a little longer with it. So I’m forced to live with the same problems that everybody on that whole peninsula is kind of living along the same lines. MRS. JENKIN-I understand that. I was really surprised when I saw it. MR. EBERLEIN-The only reason, now the neighbor that would be the most affected is George Russo, and he’s been very supportive. Even like this summer he allowed me to, he pulled his boat up even closer so I could go around that little finger of mine and get in there to put a boat. Now he’s delighted I’m taking that eight feet off, so it’s just a straight shot in, and there’s no, you know, nobody’s really affected by it. MRS. JENKIN-And that’s good. MR. EBERLEIN-I would leave the existing crib dock in there if it were not a cost factor. I would add on what I want to with another existing crib, but there’s such a significant price difference between the pile docks and crib docks, with virtually no difference in strength, longevity and applications. MRS. JENKIN-I know, especially on Lake George. Okay. Thank you. 7 (Queensbury ZBA Meeting 11/28/07) MR. EBERLEIN-You’re welcome. Anyone else have questions? Okay. I guess not. At this point we’ll open the public hearing. Is there anybody here that would like to comment on this application? PUBLIC HEARING OPENED MR. UNDERWOOD-I do have one letter that was sent in. MR. MC NULTY-Okay. I don’t see any hands, so we’ll go to the letter that you have. MR. UNDERWOOD-This is a letter addressed to us. It says, “Dear Mr. Underwood: I am notifying you that I approve of Matt Eberlein’s variance and/or appeal application. George Russo M.D.” That’s the next door neighbor, that’s the one to the south. MR. MC NULTY-Okay. All right. Does the applicant have any other comments? MR. EBERLEIN-No, no, sir. MR. MC NULTY-Does the Board have anymore questions? In that case I guess we can close the public hearing. PUBLIC HEARING CLOSED MR. MC NULTY-And move to getting comments from the Board. I guess let’s start right down at the end. Mr. Urrico. MR. URRICO-Well, I guess in the perfect world we’d be able to put this dock smack dab in the middle of his property, and not need the variance, but obviously the situation calls for some action on his part, given the intrusive nature of the docks next door. So I feel I can support this application, with the provision that a future boathouse be out of the question. MR. MC NULTY-Okay. Thanks. Mrs. Hunt? MRS. HUNT-Thank you. I have to agree. I would go along with this new dock, again, because of the commercial dock on the next property, but I, again, would want to see a stipulation that there would be no boathouses or sundecks built this dock. MR. MC NULTY-All right. Mr. Underwood. MR. UNDERWOOD-Yes. I would be in agreement also. I think the oddball shape of the shoreline there and the fact that that dock on the other side there, the marina there, extends so far over the property line, if you moved it out to the center of the property line, as has been suggested, it would be impossible to get into the dock without jockeying around the boat to fit it into the slot. So, I think in this instance here, the Park Commission also thinks this is the least intrusive means of dealing with it. So I’d be in agreement with it. MR. MC NULTY-Okay. Mrs. Jenkin? MRS. JENKIN-Yes. I voiced my concerns, and I think you gave good answers, and gave justification to it. It’s good to see you’re taking that little end piece off, because that will make a difference to your neighbor, and I would be in favor of the variance, too. MR. MC NULTY-Okay. Thank you. Mr. Bryant? MR. BRYANT-Thank you, Mr. Chairman. I would be in favor of it with the following stipulations. Number One, that the dock would never be expanded on. Number Two, that there would be no plan for a boathouse or sundeck on the dock, and with those stipulations, I would be in favor of it. MR. MC NULTY-Okay. Mr. Garrand? MR. GARRAND-I agree with Mr. Bryant. I think those stipulations are definitely in order here, and also I would support this application, seeing that it won’t necessarily change the character of the neighborhood in any significant way. 8 (Queensbury ZBA Meeting 11/28/07) MR. MC NULTY-Okay. Thank you, and I’m basically in agreement, I think. Under other circumstances I’d say no, move it over, it’s new construction, an opportunity to fix things, but given the circumstances, I can understand the request the way it is. Okay. Having done that, we need a motion. Does anybody want to volunteer? MRS. HUNT-I’ll make a motion. MR. MC NULTY-Okay. Thank you. MOTION TO APPROVE AREA VARIANCE NO. 70-2007 MATT EBERLEIN, Introduced by Joyce Hunt who moved for its adoption, seconded by Allan Bryant: 12 Seelye Road North. The applicant proposes construction of a 656 square foot stake dock. The applicant requests 10 feet of relief from the 20 foot minimum side setback requirement for docks per Section 179-5-060, 6. Whether this benefit could be achieved by other means feasible to the applicant, I think he’s explained that, with the commercial dock next to his property, and the water level, that there are no other means feasible. There will not be an undesirable change in the neighborhood character or to nearby properties. In fact it will be a benefit to his neighbor, Mr. Russo. The request might be considered substantial at 50%. The request will not have any adverse physical or environmental effects, and the alleged difficulty is self-created only in the sense that Mr. Eberlein wants a new dock. I would say we want stipulations made that the new dock would not be expanded and that in the future no boathouse or sundeck would be added to the dock. th Duly adopted this 28 day of November, 2007, by the following vote: AYES: Mr. Bryant, Mr. Urrico, Mrs. Hunt, Mr. Garrand, Mr. Underwood, Mrs. Jenkin, Mr. McNulty RECUSED: Mr. Abbate NOES: NONE MR. MC NULTY-You’re all set. MR. EBERLEIN-Thank you. MR. MC NULTY-Thank you. OLD BUSINESS: 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 JON LAPPER, REPRESENTING APPLICANT, PRESENT MR. UNDERWOOD-We previously have heard this on numerous occasions. STAFF INPUT Notes from Staff, Notice of Appeal No. 8-2007, Irish Bay Partners, LLC, Meeting Date: November 28, 2007 “Project Location: 44 Bean Road Description of Proposed Project: Appellant is appealing to the Zoning Board of Appeals relative to an August 30, 2007 decision made by the Zoning Administrator regarding the necessity of Area Variances for the proposed facility. Staff comments: The issue at debate here is whether or not the proposed subdivision requires certain Area Variances. 9 (Queensbury ZBA Meeting 11/28/07) It is the position of the Zoning Administrator that lot QB-4 at 0.62 acres does not meet the minimum 1 acre lot size requirement of the WR-1A zoning district as outlined in section 179-4-030 of the Zoning Ordinance and therefore requires an Area Variance. Additionally, it is the position of the Zoning Administrator that the proposed lot configuration creates a non-conforming situation with regards to the setback requirements for docks as outlined in section 179-5-050, A. (1) through (8) of the Zoning Ordinance and therefore requires Area Variances. Please see the minutes from the August 29, 2007 ZBA meeting at which both the Board and applicant acknowledged additional variances were applicable, yet only the road frontage variance was requested and decided. (provided to the Board with the Oct 24 notes ) Additionally, on June 20, 2007 Zoning Board of Appeals meeting both the lot size requirements and dock issues were discussed. In the end, the ZBA requested that the applicant provide; “…information concerning the docks…” MR. ABBATE-Okay. I see that the appellant is at the table. Would you folks be kind enough, please, to speak into the microphone and identify yourselves. MR. LAPPER-Good evening. For the record, attorney Jon Lapper, with Kevin Frank, to my right, with the LA Group, and John Lefner, on behalf of the applicant. MR. ABBATE-Before we start, I want to instruct the Board first, please, Mr. Lapper. MR. LAPPER-Certainly. MR. ABBATE-The appeal, of course, of a Zoning Administrator’s decision is different than the procedure for an Area Variance. So Board members, again, I’d like to bring to your attention the fact that the jurisdiction of the Zoning Board of Appeals to construe the Ordinance includes the power to determine the application of the Ordinance to a specific property, and the Zoning Board of Appeals has jurisdiction to interpret the Zoning Regulations upon an appeal from the issuance of a permit by an enforcement official and as such interpretation by the ZBA will not be disturbed, absent of showing that it is irrational or unreasonable. The ZBA’s jurisdiction to review the zoning decisions of the enforcement officer is exclusive. It cannot be exercised by any other administrative officers or by the legislative authority of the municipality. The ZBA may, after appropriate notice and hearing, reverse or affirm, wholly or partly, or may modify the order, requirement, decision of determination appeal from, as in the ZBA’s opinion ought to have been made, and, Counselor, would you like to make an opening statement? MR. LAPPER-We were here for probably six months going through this, and it’s been two months, because I had to file this appeal, but I know the Board is very familiar with this project, and one thing that I just want to respond to in the Staff Notes, that issue about what happened in June about the docks, and at that point we had proposed a new dock configuration that we thought would be a little bit better for the property, but we met with Craig, and to avoid getting into issues of whether or not we need permits because this was a grandfathered, pre-existing dock, we went back at that time, and we just put the existing dock on the plans, and then ultimately, in order to gain your support, we reduced five slips, so that actually this is a smaller dock or smaller intensity than what’s there now, but that’s on the grandfather issue that I’ll get to in a minute. I’d like to first start off with the QB-4, whether that’s a lot or not a lot, and the whole issue of, I’ll ask Kevin, first, to just show you where that is. This is the Homeowners Association lot. KEVIN FRANK MR. FRANK-The four lots proposed in Queensbury, three of them being lots QB-1, QB-2, and 3, which are lakefront lots, and QB-4 which will be part of the larger lot that also includes lands in Fort Ann. MR. LAPPER-Okay. So then with respect to that, and I know that the Board was completely comfortable, the night that we got the variance for the lack of road frontage for the building lots, with that QB-4, that that was going to be incorporated with the Fort Ann lot, Fort Ann Four, to encompass the Homeowners Association lot. So I argued this both ways, and I’ll just go through it from my cover letter with the appeal. In its determination letter, the Zoning Administrator states that an Area Variance is necessary for the creation of QB-4, due to the substandard size of the .62 acres, based upon the minimum lot size requirement in Table Four, references Section 179-4-030 of the Zoning Ordinance. The applicant appeals its determination based upon the definitions of “Lot” and “Building Lot” in the Town Ordinance. So we’re saying that this is not technically a lot or a building lot. The definition of Lot is “a parcel or a portion of land separated from 10 (Queensbury ZBA Meeting 11/28/07) other parcels or portions by description, as on a subdivision map, survey map or by metes and bounds”, and then I emphasized, “for the purpose of sale, lease or separate use” . Under this definition, QB-4 is not a separate “Lot” because it is attached to and combined with FA-4. QB-4 and FA-4 together, along with the docks, constitutes a Homeowners association common parcel. There cannot be a separate sale, lease or use of QB-4 without FA-4, because that’s the only way to access it from the road, and, when considered together, QB-4 and FA-4 exceed one acre in size. Then we go on. The definition of “Building Lot” is “The land occupied or capable of being occupied by a building and its accessory buildings or by a dwelling group and its accessory buildings, together with such open spaces as are required under the provisions of this chapter, not having less than the minimum area and width required by this chapter for a lot in the district in which such land is situated and having its principal frontage on a street or such other means of access as may be adequate as a condition of the issuance of a building permit for a building on such land”. QB-4 is not a “Building Lot” because there is no proposal for the construction of a building. QB-4 is a lake access lot with FA-4 for use by the Homeowners Association. As shown in the subdivision plan, the Community Center and pool are located on FA-4, not on QB-4. So no building will be placed on QB-4. It doesn’t fall under the definition of “Lot” and it doesn’t fall under the definition of “Building Lot”. So I don’t think this is a separate lot. It’s never intended to be. It’s going to be combined with Fort Ann-4, but if you don’t want to decide it on that basis, since, as I pointed out, we submitted this originally before we got into the discussion that we had asked for this to be included in the Area Variance. We went to the County Planning Board for this. We’ve had a series of public hearings on this, and so, procedurally, I would ask you to simply modify, make a motion to modify your approval and include this relief, that if you want to treat this as it is a separate lot, then it needs the relief that it’s less than an acre. So I would just ask you to modify your resolution and provide for that, because certainly nobody had a problem with this lot. I don’t think it’s necessary because it’s not a lot, technically, or a building lot, but you can handle that either way. We’re just trying to get the project approved, and that’s all, what we’ve been doing, and we’ve certainly discussed this at great length. Would you like us to discuss that issue separate from the issue about the grandfathered docks? MR. ABBATE-No. I’d like to make it a separate issue, because I want an opportunity for the Zoning Administrator to provide him an opening statement, and then we’ll get into that later on. Right now, have you temporarily concluded? MR. LAPPER-Okay. MR. ABBATE-Mr. Zoning Administrator, would you like to have an opening statement? MR. BROWN-Yes. Actually I just have, I guess, a procedural question for Counsel, and we talked about this briefly earlier today, is just to dispel any rumors that go around like wildfire, as you can imagine, but my question is standing. Are there currently valid contracts or unexpired contracts between seller and purchaser to allow them to have standing here? I think we probably should get past that first. If so, great, I’d be happy to talk about the merits, but it’s just a rumor that I heard. I’d rather have that taken care of and off the table for everybody first. MR. LAPPER-Well, I have no problem answering that, because it bears merit. I mean, what’s happened here, we view this as a high quality, low intensity project, because we’re taking out all the metal buildings and gas sales and everything else, and, you know, building expensive homes, but in terms of the impact on the lake, a quality project, and the neighbors have always supported this. The problem is that we’ve got a marina facility that’s very valuable. There are other people that have always expressed an interest in purchasing it and keeping it as a marina, and the sellers have gotten continuously impatient as the process has dragged on. Now, I’m here every month before this Board, and I understand that things take time, and, you know, it’s unfortunate that we had to have this final appeal, but I can tell you that the sellers are certainly anxious and are telling us that if things don’t get moving quickly, that there may come a time when they take another offer because there’s not a lot of time left on this contract. So, as of right now, we expect that this is going to go forward as when we submitted this and the seller signed on, us as their agent, but there certainly could come time where the sellers lose patience and this just stays as a commercial marina with gas sales, and then I think everyone’s at risk if that happens, but it is what it is. So at the present time we are hopeful that everything’s going to go forward and we’ll get the project approved. MR. MOORE-But, I guess the Administrator’s question is, as of November 28, 2007, there’s still a valid contract? 11 (Queensbury ZBA Meeting 11/28/07) MR. LAPPER-Yes. MR. BROWN-Okay. That’s fine. Then merits of the lot size. Thank you. This issue’s come up probably a dozen times in the Town of Queensbury. We have land that crosses municipal boundary between Queensbury and Fort Ann, Queensbury and Luzerne, Queensbury and Lake George, whatever adjoining municipality there might be, and it’s consistently been decided by my office and consistently been found by this Board that that’s considered a separate lot in the Town of Queensbury. It’s going to get a separate Tax ID number, a separate tax bill. It’s considered a separate parcel. So, I don’t know how you could call it anything else besides a lot, and that’s the short answer for it, because not a lot more to it. It’s consistently what we’ve done, and it’s always treated as a lot. MR. ABBATE-Okay. MR. LAPPER-And my response is just look at the definition of lot. It doesn’t seem to fall within the definition of lot, but we’re happy either way you want to handle it. MR. BROWN-And as far as, if I could just respond to the second part, the other request that Mr. Lapper offered, to re-hear, basically, or re-visit a decision you guys made before. Everybody on the Board’s familiar with that process. You can’t just go back and amend that decision. You have to make a motion to re-hear, a unanimous vote, hold a public hearing, go through that whole process, you can’t just go back and tweak it like that. That’s my understanding. MR. ABBATE-Just a moment. I want an opportunity for Counsel to respond, please. MR. MOORE-I was just going to ask a question, I guess, and the question is, would the applicant have any objection, if this subdivision were ultimately approved by the Planning Board, to a note being included on the subdivision that specifically says, QB-4 is not and shall not be a separate building lot, it’s part of FA-4, and nothing whatever shall be construed? MR. LAPPER-We would absolutely agree to that. That’s always been the intention. We’ve always said that. It is certainly not a separate parcel. So absolutely. MR. MOORE-And if that note were included on the final plat, would that cure your objections, or no? MR. BROWN-Well, I don’t think so. I don’t have the luxury of granting that relief from the lot size requirements. I think it’s a great argument for a variance. If there’s a question, do we want to grant this variance or not, they throw on the table we’re never going to call it a building lot, I think it’s a, not to make a decision for this Board, but I think it’s a slam dunk on the variance at that point, but in my opinion it still needs a variance. MR. ABBATE-And the final decision is up to this Board. MR. LAPPER-Right, but I would just beg you, procedurally, that, since we’ve had all the hearings on this and we’ve properly submitted for this, the idea of having to re-apply and re-notice this, I mean, that could kill the project, to have to go another two months to come back here to get you to grant something that you already said you’d grant if we needed it granted. MR. ABBATE-All these things were on the table before, and both sides decided and agreed that they only wanted to talk about the road frontage at that point. So, I mean, we tried to do this one way, but these things were pushed off the table in favor of only the road frontage. That was back in August. MR. LAPPER-But that was because it wasn’t deemed necessary. It wasn’t because we were changing the lot. There was never any issue that we were changing the lot. It just wasn’t deemed necessary that night. MR. ABBATE-Mr. Bryant? MR. BRYANT-Thank you. MR. ABBATE-You’re welcome. 12 (Queensbury ZBA Meeting 11/28/07) MR. BRYANT-I want to get back to the statement that you just made, Mr. Brown, that this has been on the table before. This was not part of the original determination, that this lot has never changed, and I don’t understand why, in the eleventh hour, we’re re-visiting it. MR. BROWN-Yes. Lot sizes were always, right from the first phase of Staff Notes that came out back in the most recent Executive Director days, those Staff Notes always identified lot size as a variance. MR. BRYANT-Yes, but that was not identified as an area that a variance was needed. MR. BROWN-Well, if you recall, this project, you know, to try and be kind here, I don’t think it’s come back to this Board twice the same way. They’ve been flexible. You’ve asked them for information. They’ve made modifications and been trying to work with the Board to get a project that’s. MR. BRYANT-Yes, but QB-4 has never changed. MR. BROWN-Sure, it has, to get a project that’s approvable by this Board. So it’s changed over the course of time, and, you know, that moving target of what’s the determination this month kind of thing is something we’ve been trying to deal with. MR. BRYANT-I don’t know that QB-4 was ever an acre. MR. LAPPER-It was never an acre. MR. BRYANT-Yes, and I don’t understand why it wouldn’t have been included in the original slate, you know, and now we’ve got a new determination, and this is problematic because we do have to re-open it if we want to resolve it, and that becomes problematic for the Board. MR. ABBATE-Absolutely, and I intend to address that later on. Do we have anymore questions from Board members before I open up the public hearing? All right. I’m going to open up the public hearing. To meet the obligations of Public Officers Law Sec: 3 for a fair and open process the public hearing is open for Notice of Appeal No. 8-2007. In the interest of time, please be crisp, organized, and limit your comments to only the facts and information given this evening. Would those wishing to be heard, please be kind enough to raise your hand and I’ll be more than happy to recognize you and ask you to come to the table, speak into the microphone tell us who you are. Yes, ma’am, please. PUBLIC HEARING OPENED MR. BROWN-Could I just ask a question real quick, before we get started? Did you want to have them do both parts before you do the public hearing, talk about the docks, too, or do you want to do public hearing time for the docks after? MR. ABBATE-No, we’re going to do it as I said. We’ll open up the public hearing and we’ll say what the public has to say, and then we’ll go back to our procedures. MR. BROWN-Okay. MR. ABBATE-Please, ma’am, tell us who you are. RITA WHITEMAN MRS. WHITEMAN-I am Rita Whiteman from Bean Road. I am here to speak on behalf of the Irish Bay project. This proposal has been before the Board for almost a year and a half. During this period of time, the professional team that the Irish Bay Partners assembled have crossed every T, and dotted every I called for by the Town. The surrounding community has overwhelmingly shown their support. The Town of Fort Ann and the APA are positive about the project, and yet the Town still won’t reach a conclusion. When I drive down the Cleverdale Road, and see two huge homes that look like they are on zero lot lines, it begs the question what were they thinking when they approved this? Yet Irish Bay is proposing 17 lots on 97 acres, and the Town is still dragging its feet. The Fischers have maintained a wonderful facility, but if you disallow Irish Bay, and the marina is sold as a marina, and it will be sold, one way or another, you will have created a nightmare in that small bay. The volume of business a new marina would have to generate to make it profitable would be the antitheses of what is best for the lake and the surrounding neighborhood. This is not what the majority wants. The Irish Bay project deserves a conclusion. As I have stated before, it is time to set aside 13 (Queensbury ZBA Meeting 11/28/07) personal opinion and rely on the expertise of professionals and the approval of the community. If you cannot give a definitive reason why this should not move forward, then it is clear that enough is enough and the project should be approved. Stop the stonewalling and get on with it. It’s what’s best for the area and what the public wants. When can we expect a decision? MR. ABBATE-Thank you very much for your comments. We appreciate that. MRS. WHITEMAN-You’re welcome. MR. ABBATE-Do we have anyone else? Yes, sir, please. Would you be kind enough to come to the table, speak into the microphone, and tell us who you are. DOUG SMITH MR. SMITH-My name is Doug Smith. I’m a property owner within 500 feet of the project. I’ve spoken at several prior meetings, and I don’t think I can add anymore than what Mrs. Whiteman did. I agree with everything that she said. I think she did it eloquently, and I think that that is the consensus, and the feeling of the neighborhood. We think it’s the best thing for Lake George and it’s the best thing for our community, and I’m 100% in favor of it. MR. ABBATE-Thank you, sir. Do we have any other members of the public that also would like to comment? All right. I see no other hands, then I’m going to move on. I now would like to request the Board members to offer their comments, and I would respectfully remind the Board 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. Having said that, do we have a volunteer? Mr. Bryant, sir, please. MR. BRYANT-Actually, I have a question, because the Zoning Administrator did make a mention of the fact relative to the docks. MR. LAPPER-I didn’t get into that yet. MR. BRYANT-Yes, we didn’t get into that. So I don’t know that we should, you know what I mean, poll the Board on one issue. MR. ABBATE-Well, what we can do is give Counsel an opportunity to respond to any public comments, and once you’ve done that, then you’ve concluded your portion. MR. LAPPER-Well, this appeal is really two separate parts. One was the issue about QB-4 and one was the issue about the dock configuration. So I stopped just not to confuse matters, to keep it on the one issue. So I didn’t proceed yet on the issue. MR. ABBATE-Proceed, Counsel, please. MR. LAPPER-Okay. So the second issue is the Zoning Administrator made a second determination, the day after we got the approval resolution from this Board, that the dock configuration is nonconforming. Specifically what he said, the proposed dock configuration as shown on the same map still requires area variances due to non- compliance with the size, location and configuration requirements of Section 179-5-050 of the Zoning Ordinance, further states “additionally the issue of the marina operations and the applicability of Article 10, Special Use Permits as a final plan for the docking facility has not been identified.” So it is our position that this dock configuration has been in place since 1969. We specifically changed the plan back to this, as I mentioned previously, to the existing dock configuration. We’re actually reducing the impact by removing five slips, which was our agreement with this Board, and I’m pointing out the Section 179-13-010, which is the identical Section that we discussed last week for the Appeal of Glens Falls Heating which was the question of replacing office use with office use, the continuation case on Thanksgiving eve. So, pursuant to that Section, Continuation say, subject to the provisions of this Article, “a non-conforming structure or use or a structure containing a non-conforming use may be continued and maintained in reasonable repair, but may not be enlarged or extended as of the date this Chapter becomes law…” The only new portions of the proposed marina facility are the docks for single family lots QB-2 and QB-3, which are on the other side of the channel, which are new structures. These two docks have been designed so that no new area variance is required. The main dock facility has been in existence since 1969, prior to the current Zoning Code and therefore may be continued pursuant to Section 179-13-010. In fact, 14 (Queensbury ZBA Meeting 11/28/07) based upon prior discussions with the Zoning Administrator and the Zoning Board of Appeals, the applicant previously withdrew a proposal to revise the marina facility in order to maintain and continue the pre-existing configuration. And then last week I brought and submitted to you copies of case law, which you’ll probably recall, even though it was the night before Thanksgiving, Abude vs. Wallace, which said, the office case, that that use was, the Board properly found that the time that the Ordinance was enacted the office was a lawful, nonconforming use which is the same case here with the dock facility, and the proposed office use was substantially the same as the prior office use, and therefore there was no improper substitution of one nonconforming use for another. So here, in terms of the dock facility, right now it’s a commercial marina that has a lot of other stuff besides the docks. The sales, service, gasoline, etc., quick launch, but in terms of the use of the dock is to tie a boat to, and that’ll be exactly the same, except that quite the opposite from enlarging the use. It’s going to be diminished by removing these five slips. So I’m really at a lost to understand at this point, this has been going on for months, in terms of the dock configuration, and I don’t understand how, since we made a number of submittals that, yes, in June we made a change back to the original one, but since then, it’s always been this dock facility. I don’t understand why there would be a late determination that somehow the dock facility is not grandfathered, since it’s a dock facility that’s always been there. MR. ABBATE-And by the way, you’re right. You did present that to us, and for the record, I did review that case file, and I concur with your position on that. MR. LAPPER-Thank you. MR. ABBATE-Do you have anything else at this time? MR. LAPPER-No. MR. ABBATE-Okay. Now I’m going to move on to Board members for comments, and as I said, I started with Mr. Bryant. MR. MC NULTY-Mr. Chairman, how about a comment from the Zoning Administrator on this issue, the Zoning Administrator’s side of this issue. MR. ABBATE-By all means, if you’d like to comment, please do. MR. BROWN-Sure. I’m just going back, as Mr. Lapper was making his presentation. I th went to the August 29 ZBA minutes, and Page 17, there’s a discussion on there where the issues of the docks were discussed by the Board and myself, and Mr. Lapper. Those issues were on the table, and it was this Board who didn’t feel comfortable going forward with any variance requests for those docks without a formal determination, and in these notes, this eleventh hour determination that we’re hearing about, I made a statement at that meeting that, if it’s the pleasure of the Board, I would issue a formal determination the next day to address all these issues that you didn’t want to deal with that night because you didn’t have that written determination before you. So, that’s the determination that’s being appealed here. The determination was issued the next day after this meeting, in response to you not wanting to hear the issues without the determination. So that’s where the determination came from. The pre-existing, nonconforming use, I don’t have an issue with the use. It’s the structure and the setbacks. I think that’s a valid argument, if you’re not moving property lines. I think that’s what we’re doing here, we’ve moved a property line, and that new property line causes the docks that are there to not meet the setbacks, and I know there was some discussion the last time that, you know, you can’t draw the line across the land. There’s nothing in the Code that says you don’t do that. I could certainly come up with a Sketch, and I have one here to show you a situation where if you have a certain peninsula piece of property with angled property lines, the lines could cross that peninsula, and you’d have no place to put a dock without a variance. I think they have a very strong argument for a variance. I just, I don’t see the argument for an appeal. It’s clear how you interpret the Code. It’s clear how you apply the dock setback requirements. I don’t think there’s any ambiguity there at all. It’s spelled out pretty clear in there. So that’s my side of it. MR. ABBATE-Thank you. MR. LAPPER-If I could very briefly respond to that. I’m glad to hear the Zoning Administrator isn’t questioning the use, just in terms of the area issues, and this was something, I think he just missed this on the plan, because this was something that we were certainly cognizant of and careful of. On the southern property line, this dock is already existing and nothing’s changing. Obviously, this is pre-existing, nonconforming, 15 (Queensbury ZBA Meeting 11/28/07) because if you extend the southern property line, it would cross the dock, but again, this has been there since 1969, before those rules existed. On the northern side, we created this property line between QB-2 and QB-3, the two, of all the lots, these are the only two lakefront property lots, and in order to address the issue, because we had discussed this with him, I believe, in July before we made our last submittal, we jockeyed the line, as you’re allowed to, so that we were compliant because the property line would not cross the docks, and we did have the 20 foot separation, and it’s labeled right on the plan, the 20 foot separation. MR. BROWN-Yes, that’s not the line you need to use, though. It’s that little short one halfway back up the inlet there. That’s the actual property line for QB-4. MR. LAPPER-That, I have that also, and that goes, we show the 20 feet there as well. MR. BROWN-Right, and on the drawing the docks, in order to meet the setback requirements, have to be on, well, if you’re facing the drawing, the docks have to be on the right side of that line, and they’re all on the left side of that line. MR. LAPPER-I don’t understand that point. MR. MC NULTY-The two lot lines that you’re looking at. MR. LAPPER-These two right here. MR. MC NULTY-Right, belong to Lot, what is it, Three? MR. LAPPER-They both belong to Lot Three, yes. MR. MC NULTY-Okay. If you extend them, they pretty much encompass all the docks. So all the docks are within the range of the extended lines on Lot Three, as well as the extended lines of Lot Four. MR. LAPPER-I don’t see that. I mean, this lot, it’s an unusual shaped lot, granted, but the lot line comes here, and we have 20 feet outside of that line, which it’s labeled where the 20 feet are. MR. BROWN-If I might, it might be easier. If you remember, some of this, the location of this property line came up as a result of the applicant requiring a certain amount of lake frontage to have a certain number of docks on that parcel. MR. LAPPER-To make it compliant. MR. BROWN-Contractual lake access, X number of feet per lot. So with all these lots over here, and these lots here, they’re required to have a certain length of lake frontage. That’s why they moved the line from some place over here near the end lot to over here. The way that you apply the Code is you extend this property line, this little short property line, straight across the property. Doesn’t say that you stop when you hit the land. Doesn’t say you stop when you hit the other side of the lake. You just extend the property line. You just extend the property line, and then you apply the 20 foot setback into the property. So all these docks have to be on this side of the line, not on this side of this property line. Where this line is doesn’t matter because the docks aren’t on either one of these two parcels. The docks are on this parcel. So you have to look at the setbacks for this parcel, not any other parcel. MR. ABBATE-I want to know why they have to be on that side of the line, why? MR. BROWN-Because that’s what the Code says. MR. LAPPER-That’s just silly. MR. MC NULTY-It’s a silly situation, but that’s the way it lays out. Those docks lie both on Lot Four and Lot Three. MR. BROWN-Yes. If you’re going to require an applicant to meet and apply certain setback requirements for docks, why would you have them do that if you’re going to let them put their docks on somebody else’s property? They have to be on their property and meet the setback requirements. I think this is an ideal situation where there’s no way possible they can meet the zoning requirements for the docks. 16 (Queensbury ZBA Meeting 11/28/07) MR. BRYANT-Yes, but where the docks are, that’s not anybody’s property. That’s the lake. MR. BROWN-These docks are on this property. MR. BRYANT-Yes, they attach to that property. MR. BROWN-Right. MR. BRYANT-Okay, but when you look at that other property, there are no docks there. I mean, you know, how far in the lake, I mean, are we going to go across the lake and say this guy’s lot is in, you know, you can extend these across the lake, or across the bay and conflict with other lots. MR. BROWN-Well, the docks aren’t going to extend that far. MR. BRYANT-Yes, well, now we’re making a judgment as to how far we’re going to extend. Those docks aren’t anywhere near that property. MR. BROWN-There’s length and width limitations for docks. They’re not going to extend any further than maximum of 40 feet from the shore. That’s a requirement that’s in the Code. MR. BRYANT-I understand that, but do you understand, and I can see Mr. Lapper’s point exactly. Do you understand that, extrapolating that, and then saying that those docks are infringing on that lot, it starts to get, you know, a little bit out of control, because those docks have no effect on that lot. MR. BROWN-And again, that’s a function of where they chose to put this property line to meet that lake frontage requirement. I’m not saying it’s a bad variance. I’m not saying they shouldn’t get it. I’m just saying it doesn’t meet the Code, that’s all. MR. LAPPER-And my point is just that these docks have nothing to do with this lot, and we are not encroaching 20 feet on that lot. MR. BRYANT-That’s my point exactly. I mean, you’ve got to come to a point where, you know, these docks are actually in the water. You’ve got to come to a point where, you know, where does that line extrapolate out, where does it end? MR. LAPPER-And very simply, we’re used to looking at a straight shorefront, and you have 20 feet from the edge. We have this lot that does this here. So there’s no way to apply it the way that the Zoning Administrator is saying. No one’s being harmed here. MR. BRYANT-I understand. MR. LAPPER-Okay. Thank you. MR. ABBATE-Okay. I’m sure you’re finished with your comments for now. Temporarily. Okay. Let me go on to some of the other Board members. MR. BRYANT-I haven’t commented yet. MR. ABBATE-Let me give the members an opportunity for some input. Roy, do you want to start, please, if you’re ready. MR. URRICO-I think I’d like to hear what Mr. Bryant has to say. MR. ABBATE-All right, Mr. Bryant. MR. BRYANT-Well, actually there are a couple of issues. When it comes to the first part, I don’t understand why we have a determination at the eleventh hour when that lot is substantially never changed. Okay. We’ve always viewed it as part of the Fort Ann lot, and we didn’t have any problem with it at that time. It was never an issue about lot size, and I know this Zoning Administrator didn’t write the original documentation and maybe that was overlooked. So I think that we should rectify it one way or another. So in that regard I disagree with the Zoning Administrator. When we talk about the docks, frankly, I have never been in favor of the docks, and I don’t agree with Mr. Lapper’s argument that it’s a nonconforming use and now it’s another nonconforming use, and it’s grandfathered in. I’ve never bought that in the very beginning, but, this Board, we had that long 17 (Queensbury ZBA Meeting 11/28/07) conversation, if you look on Page 17, that the Zoning Administrator referred to in the minutes, we were basically talking about the length of shoreline that we needed, and you came back with a calculation, complicated calculation, and we figured it out, and everything was copasetic and we were happy. I get the sense, and I remember from the previous meetings, and it has been a long stretch. I became an old man and had grandchildren since this thing started, but anyway, I believe that we selected the, we agreed to your original variance because it was the lesser of two evils, okay. Do we want a marina that’s active with gasoline trash in the bin and all that stuff? No. We want a sane, community that will have normal use of the lake and the resources and not strain those resources, okay, and I think that’s why we went with the original plan. So I disagree with that whole dock situation. We always knew what the docks looked like. I acknowledged the fact that you did change that little line there, but, you know, I think we ought to put this to bed and do what we need to do to end this. MR. ABBATE-Okay. Thank you. Mr. Urrico, please. MR. UNDERWOOD-Are you going to open up the public hearing? MR. ABBATE-I’ve already opened the public hearing. MR. UNDERWOOD-Are we asking questions right now? MR. ABBATE-I already opened up the public hearing. MR. UNDERWOOD-Not on the dock issue, I don’t think you did. MR. ABBATE-All right. I’ll open up the public hearing on the dock issue. Do we have any members of the public who would like to address the dock issue? The public hearing is open. Please raise your hands and I’ll be more than happy to recognize you and ask you to come up to the table. I see no hands raised. As such, the public hearing is closed on that issue. Mr. Urrico, please. MR. URRICO-The last time we met, and the last time we voted on this, I came away feeling that we had worked long and hard on a compromise, that we had deliberated carefully to arrive at what I felt was a good decision, and the fact that we’re here again going over the same issues basically sort of troubles me. I had raised the question, everybody is focusing on Page 17. I had asked the question why we hadn’t, I was the one that asked the question about the variance at that time, and there wasn’t a variance at the time. It was in the Staff Notes. After we voted and we approved what was the variance at the time, which we felt was an approval of what was needed for that project from our point of view, I was kind of surprised to see that a new variance appear. I agree with Mr. Bryant. I think we’ve covered this case. I think we’ve given our determination, and I’m satisfied that that was reached at the time, and I think we should let the appeal, I would be in favor of the appeal. MR. ABBATE-All right. Thank you, sir. Mrs. Hunt, please. MRS. HUNT-Thank you. Yes, I think it’s unconscionable what you’ve been put through, and I agree with Mr. Urrico. I mean, I made the motion at that meeting, and I thought that we had laid everything to rest, and was surprised to find later that further variances would be needed. So I would be in favor of the appellant. MR. ABBATE-Jim, please. MR. UNDERWOOD-I just have one question. So are we totally dismissing the docks? We’re not going to modify the docks? We’re going to give them their 43 dock spaces? This is what you’re agreeable on right at this point in time? MR. LAPPER-It’s 40, because we gave up five. MR. BROWN-Yes, and that’s really not the issue at hand tonight. There’s two issues at hand tonight. Is my application of the Code relative to the lot size of Lot Four, does it require a variance, and my application of the setback requirements for the docks. Those are the only two issues on the table. You’re not granting them variances for docks. You’re not giving them numbers of docks. It’s the determination, do they need a variance for the docks and do they need a variance for lot size. That’s the only two things on the table. 18 (Queensbury ZBA Meeting 11/28/07) MR. UNDERWOOD-Okay. On QB-4, you know, I would have to agree with the other Board members. I think that the Zoning Administrator is correct in saying that we don’t just say that this dock is in limbo, that it doesn’t require any kind of requirements, but nonetheless, I think that we implied the last time around that I don’t think any of us had a problem with QB-4 being attached to Fort Ann-4, and I think that that was something that we were all agreeable on, and I don’t think we need to re-visit that one. As far as the docks go, I think that the last time that we met, you know, I was very adamant about the fact that I was not comfortable with the number of docks that you still were coming before us for, and that, you know, at some point in time in the future you’re still going to have to come in and deal with the number of docks you have there. I don’t, by any, way, shape or means think that we should accept your proposal at 40 or 43, whatever it happens to be at the present time. As far as the Zoning Administrator’s determination, I’m a little bit confused, because as far as the setbacks on the docks, I mean, as they exist, their nonconforming structures. MR. LAPPER-Right. MR. UNDERWOOD-In the sense that this is a, at the present time, a marina operation, and I think that what we’re working towards in the long grand scheme of things is that we somehow craft a dock situation there that fits into the residential, Waterfront Residential district that exists in that neighborhood, and I think that in the case of the docks as they exist, they’re nonconforming structures. I’m not going to argue that point. I think you’re perfectly correct in your interpretation. If you were to say to me now, that’s the configuration we want to have, that’s the one that we expect we’re going to get or this project isn’t going to continue, I’m going to tell you right now, point blank, I’m not going to accept that as it exists at the present time. You’re going to have to significantly modify that, based upon all the other multiple dock projects that have come on line in this Town and around the southern basin of that lake. I’m not going to argue with you. I’m not going to argue with you. MR. LAPPER-I’m not arguing. MR. ABBATE-The comments by the Board members are directed to the Chairman and they will not be subject to debate. Continue. MR. UNDERWOOD-I’m going to have to support the Zoning Administrator because I think that, you know, as I mentioned before previously also, the segmentation of this project, and in my mind it has been segmented because we’ve always sort of ignored the dock issue there. As those docks exist presently, they’re nonconforming, and as far as I’m concerned, if you’re going to make this a Waterfront Residential district, then that’s what they’re going to have to conform to. So, I’m going to say that, you know, on the second part of it, I will support the Zoning Administrator. MR. ABBATE-Okay. Thank you. What is your question? MR. BRYANT-Mr. Brown, is it your determination that these docks are nonconforming and it’s going to continue as nonconforming docks, or are we going to, because the use changes, therefore we now have to look at the docks? MR. BROWN-No. My concern here is the fact that they’ve moved the property line around to gain the required amount of lake frontage, and the placement of that little short property line there, as you apply the setbacks, makes the docks, the setbacks nonconforming now. MR. BRYANT-Okay. That’s not my question, though. Maybe I’m not being clear on it, because frankly, if your understanding or determination is that this is a marina now, it’s used as a marina, and even though it’s no longer a marina, it’s a nonconforming use, in the same vein as the marina use, and therefore the docks are never going to be an issue. Because if they never change the dock configuration, and you continue with this nonconforming, used to be a nonconforming, is now a nonconforming, then the docks are off the table. There’s no more discussion about them. MR. BROWN-Yes. I’m not convinced that we’ve gotten a final plan on what the docks are going to be and how they’re going to be used. That’s not a zoning, it’s a site plan, or a Special Use Permit with the Planning Board if anything. So I don’t know what the determination on that’s going to be, because I don’t think I have a final plan in front of us. MR. ABBATE-Let me continue on. This could go on all night. Rick, please. 19 (Queensbury ZBA Meeting 11/28/07) MR. GARRAND-All right, Mr. Chairman. As far as this being the eleventh hour, I don’t agree with that at all. I think these issues were brought up well over a month ago. Mainly by this Board, we brought up a lot of these issues. QB-4 and Fort Ann-4 are going to be combined into a Homeowners Association and for all intents and purposes I believe this is going to be one lot, with the exception of the County map. It’s going to be one lot. On that I disagree with the Zoning Administrator, but the strictest interpretation of the Code, I have to go with the Zoning Administrator, as far as the dock configuration and his determination on that. MR. ABBATE-Okay, and Mr. McNulty, please. MR. MC NULTY-Well, several thoughts if I can remember them all. I guess one point I want to make is the Zoning Administrator is making decisions based on the rules that are in front of him, and he may or may not wish that he could say, fine, go ahead, but I’ve got to agree with him. On the issue of the lot lines, it’s a ludicrous situation. It’s a perfect example of why we have a variance process, but I agree with him with what he’s saying. Within the definitions, those docks are both within the property boundaries of Lot Three and Lot Four, even though they’re not attached to Lot Three, and I don’t think he could have made a ruling any other way. As for the lot size on QB-4, the portion that’s in the Town of Queensbury is the only portion we have control over. We’ve had situations like this before where we’ve granted variances for somebody that wanted to develop something on a lot where he only had half the acreage necessary in the Town of Queensbury and the other half was in another town, but we have no control over what Fort Ann does tomorrow or 10 years from now with their portion of Lot Four, and therefore I think we’ve got to look at it and say, okay, we’ve got a sub sized lot in Queensbury, and I think perhaps the proposal that our Board attorney had made earlier is the ultimate answer, it’s to say, okay, let’s put it on the plot plan that says it’s never going to be separated from the portion that’s in the Town of Fort Ann, but then the answer is not to ignore what the rules are, and overrule the Zoning Administrator. The answer is to handle it as a variance and grant a variance. So, on the one hand, I am in favor of seeing the project move forward. I am in favor of saying, fine, go ahead with Queensbury Lot Four and I’m in favor of saying let’s figure the docks are where they belong and not worry about the fact that they also were within the property lines of Lot Three, but the way to do that is with a variance, not by overruling the Administrator, because I think he’s right in interpreting the way the rules and the laws are now. So I’m going to support the Administrator. MR. ABBATE-So you’re a proponent, then, and a great believer of following the rules and regulations, correct? MR. MC NULTY-In this case anyway, yes. MR. ABBATE-As well as ZBA resolutions, too. MR. MOORE-Just before you vote, on this issue of nonconforming use or structure, I think Mr. Brown is correct, in that the nonconformance here arises not simply from the fact that these docks have been here apparently for nearly 40 years. It arises in this case because of the unusual configuration of the shoreline and the somewhat unusual manner in which the lot lines have been drawn. Those are not attributable to your Code, which is what is a classic, in my understanding, nonconforming use or structure. So that in my view it really isn’t a nonconforming use or structure. That being said, how the Board may choose to interpret the Code, in terms of the setback requirement, is up to you. The Administrator has stated his position, as have other Board members, but I simply want to say I don’t think the nonconforming issue has been quite accurately stated. MR. ABBATE-Okay. Thank you. My turn. I concur with Mr. Urrico, Mr. Bryant, and Mrs. Hunt. I have, Mr. McNulty indicated that the responsibility of the Zoning Administrator is to interpret the zoning. The Zoning Administrator merely attempts to interpret as he sees it. It’s the Zoning Board of Appeals decision to determine what decision they reach as ought to have been made in the first place. Now, Number One, before I get into my little statement here, our Counsel, Counsel for the ZBA, has suggested at the beginning of this hearing a plan that I believe was quite brilliant, particularly in view of the fact that I think it’s a compromise that serves all purposes, and if I heard it right, I believe Counsel for Irish Bay agreed to that initially. MR. LAPPER-Yes. 20 (Queensbury ZBA Meeting 11/28/07) MR. ABBATE-So, having said that, I have read the 20 pages of the ZBA minutes of the meeting of 8/29/07, as well as the 25 pages of the ZBA minutes of the meeting of June 20, 2007 all dealing with Irish Bay, and when I re-read them the second time, I was taken aback with the number of hoops the appellant has been required to jump through. At first I thought it might be just my perception, until I noticed a very astute observation by one of our Board members. Quote, the individual says, I feel that it’s a shame that we made Irish Bay Partners come back again and again, and every time we made a suggestion they eliminated five boat slips, they reduced from 20 of 17 the number of sites, unquote. I’m going to support the appellant because due process is the fundamental principals of justice and the entitlement of a citizen to proper legal procedures and natural justice and my position is going to be based on that principal. So I will support the appellant. Having said that, we have two decisions to make, ladies and gentlemen of the Board, in this appeal. One, either to support the appellant’s challenge to the Zoning Administrator’s decision, or, Two, to uphold the Zoning Administrator’s decision. Is there a motion? I seek a motion, please. MR. BRYANT-Mr. Chairman, I’ll make the motion. MR. ABBATE-Thank you, sir. MOTION IN REGARD TO NOTICE OF APPEAL NO. 8-2007 IRISH BAY PARTNERS, LLC TO SUPPORT THE APPELLANT’S CHALLENGE TO THE ZONING ADMINISTRATOR’S DECISION, Introduced by Allan Bryant who moved for its adoption, seconded by Joyce Hunt: 44 Bean Road. th Duly adopted this 28 day of November, 2007, by the following vote: AYES: Mrs. Hunt, Mr. Urrico, Mr. Bryant, Mr. Abbate NOES: Mr. Garrand, Mr. McNulty, Mr. Underwood MR. ABBATE-The vote is four yes, three no to support the appellant’s challenge to the Administrator’s decision. Thank you very much. MR. LAPPER-Thank you. NEW BUSINESS: AREA VARIANCE NO. 68-2007 SEQRA TYPE: II TED AND JENNIFER ISLAS OWNER(S): TED AND JENNIFER ISLAS ZONING: SR-1A LOCATION: 49 WESTBERRY WAY/PINE RIDGE ESTATES SUBDIVISION APPLICANT PROPOSES CONSTRUCTION OF A 194 SQ. FT. STORAGE SHED. RELIEF REQUESTED FROM FRONT YARD SETBACK REQUIREMENTS. CROSS REF.: BP 2007-601 WARREN COUNTY PLANNING: N/A LOT SIZE: 0.63 ACRES TAX MAP NO. 308.7-1-34 SECTION: 179-4-030 TED ISLAS, PRESENT MR. UNDERWOOD-I’m going to read the letter that they sent in, because I think that pretty much summarizes what’s going on. MR. ABBATE-Okay. Fine. MR. UNDERWOOD-“We are respectfully requesting an Area Variance for the placement of a storage shed. During initial discussion with Town Officials during the Permit Application process, we understood the setback to be 10’ from the adjoining property line. We continued with the purchase of a storage building and cleared a treed area for the placement of the building. During subsequent conversations with Town Officials, I (Ted) was advised that due to the adjoining property being a future access road; the setback requirement would be 30’. The change in setback results in the storage shed being placed in the middle of the yard to the west of our residence. I contacted Town Officials to inquire if it was possible to modify the Permit to have placement of the storage shed on the other side of our lot and was advised that due to the future access road, this portion of our property was also changed regarding setback requirements; changing from 10’ for Property Line setback to 20’ for Back of Property setback. This would result in the building being in a very visible location in the area to the east of our residence, and would be difficult to place due to the recent installation of an inground 21 (Queensbury ZBA Meeting 11/28/07) pool. Either scenario would be a detriment to the aesthetics of our property, and would produce an undesirable change in the character of the neighborhood. An area variance is requested to allow the placement of the storage shed to be within the 30’ setback requirement. A setback of 6’ would allow the building to be placed inside an existing tree line toward the rear of the property, and would enhance the character of the neighborhood. In the event that the future access road is constructed, we would agree to place the building in a compliant location if so requested by Town Officials; or remove it. Your consideration in this matter is appreciated. Ted & Jennifer Islas 49 Westberry Way” STAFF INPUT Notes from Staff, Area Variance No. 68-2007, Ted and Jennifer Islas, Meeting Date: November 28, 2007 “Project Location: 49 Westberry Way Description of Proposed Project: Applicant proposes construction of a 194 sf accessory structure. Relief Required: Applicant requests 24 feet of relief from the 30 foot minimum front setback requirement of the SR-1A zoning district. Criteria for considering an Area Variance according to Chapter 267 of Town Law: 1. Benefit to the applicant: Applicant would be permitted to construct the structure in the preferred location. 2. Feasible alternatives: There appears to be ample area available for compliant construction. 3. Is this relief substantial relative to the ordinance?: The request for 24 feet of setback relief from the 30 foot requirement may be interpreted as substantial (80%). 4. Effects on the neighborhood or community: No letters of support were submitted with the application materials. The proposed location is adjacent to land reserved as a right of way for a future roadway. The applicant has stated that the shed would be moved to a compliant location in the event that the road is constructed. 5. Is this difficulty self-created? The difficulty may be interpreted as self created. Parcel History (construction/site plan/variance, etc.): BP 2007-601 196 sf shed pending BP 2007-168 Inground pool 4/17/07 BP 2006-056 Single Family Dwelling 3/6/06 Staff comments: The plan submitted does not indicate the constructed location of the pool. Attached please find a copy of the plot plan submitted with the pool permit application. The proposed location for the shed is approximately 150 from the front property line on Westberry Way. SEQR Status: Type II” MR. ABBATE-Okay. I see that the applicant is at the table. Would you be kind enough, sir, to speak into the microphone and tell us who you are. MR. ISLAS-Yes, sir. Ted Islas. 22 (Queensbury ZBA Meeting 11/28/07) MR. ABBATE-Okay, and you are not represented by counsel. MR. ISLAS-Correct, sir. MR. ABBATE-Okay. Now, you understand our procedures. MR. ISLAS-Yes, I do. MR. ABBATE-Okay. Then would you proceed, please. MR. ISLAS-The letter pretty much speaks for itself. I was under the initial impression that my setback requirement was 10 feet. Through discussions with the Town and went ahead with the purchase of the building and clearing a treed area, and was later contacted by Town Officials stating that the requirement was actually 30 feet, and a few people I think went by and looked at it yesterday, the building is right now in the middle of my backyard. So I’m just requesting to move it to a treed area out of the middle of the yard. MR. ABBATE-Okay. Now if there’s anything else during this hearing that you felt perhaps you may have forgotten to tell us, stop us and feel free to introduce it, okay. It’s not a problem. We’re very informal in that. MR. ISLAS-Okay. MR. ABBATE-All right. You heard what the applicant had to say, so what I’m going to do is ask the Board members if they have any questions for Mr. Islas, please. Rick, please. MR. GARRAND-Sir, it says here if there is ever a road constructed there you’d be willing to move it to a compliant location? MR. ISLAS-Yes. MR. GARRAND-That’s all I needed to know. Thank you. MR. ABBATE-Okay, as a matter of fact, great, Rick, because you might want to include that in a motion. Okay. Mr. Bryant, please. MR. BRYANT-Well, that being the case, why don’t you just put it in a compliant location now and we can go home? MR. ISLAS-Well, I also said or remove it. I’m not sure I want it in a compliant location. MR. BRYANT-Mr. Garrand asked you the question. MR. ISLAS-And I said, yes, I would move it. MR. BRYANT-You would move it to a compliant location. MR. ISLAS-Or remove it. MR. BRYANT-My question is, why don’t you put it in a compliant location and then we don’t have to be here? MR. ISLAS-Well, my statement also was or I would remove it. Sell it. MR. BRYANT-Okay. MR. ISLAS-I was advised of the setback requirements by the Town Officials, purchased the building and then was told of a change of setback requirement. If I had known that, I wouldn’t have bought a building the size of what I did. That takes up the whole middle of my back yard. MR. BRYANT-Yes, but you weren’t going to, by buying a smaller building, you were not going to make up that 24 feet. MR. ISLAS-No, but it would have made more locations that would have been easily attainable and compliant. 23 (Queensbury ZBA Meeting 11/28/07) MR. BRYANT-Okay. MR. ABBATE-All right. Anyone else have any comments for Mr. Islas, please? MR. UNDERWOOD-Craig, is there any indication as to whether those roads are going to be created, or are they just possible in the future? MR. BROWN-They’re potential for the future. There’s no plans in place to do that. So it’s not in the near future. MR. UNDERWOOD-Right. MR. URRICO-If that road is constructed and it becomes a corner lot, that creates other problems as well. MR. BROWN-Well, that’s what we’re talking about here, that that’s a front yard setback requirement, and the applicant’s argument, not to argue for him, but it doesn’t matter until the road’s there. MRS. HUNT-You said in your letter that you have already taken down trees in an area. MR. ISLAS-Correct. MRS. HUNT-And prepared for the shed. MR. ISLAS-Yes, I have, ma’am. MR. ABBATE-All right. Do we have any other questions from the Board members? Okay. If no other questions, then what I’m going to do is open the public hearing for Area Variance No. 68-2007, and if we have any folks in the audience who would like to comment? Yes, sir. Would you be kind enough, sir, to come up to the table, speak into the microphone, and tell us who you are. PUBLIC HEARING OPENED NICK NICHOLSON MR. NICHOLSON-My name’s Nick Nicholson. I have the property on the other side of the pole line behind him. I guess that’s why you’ve notified me. This is his property. I have no problem what he does on it, but I’ve been up here twice on this road thing, which wasn’t even on the plans when it started, when this development started, but then it was put in with little digit marks and I came up and talked, and they said they had no plan for the road there, which would have to go under the pole lines into my property, and we also have blue butterfly area in that area. I don’t know if you know the area at all, and they have PCB’s on the other side of it. So I’m just here to, as far as him having the shed there, I don’t know the gentleman, but it’s his property, but as far as the road goes, I don’t want any road going through my property. MR. ABBATE-Just a minute, Mr. Nicholson. I want to make sure I understood you right. You said something about something going under the roads? MR. NICHOLSON-Niagara Mohawk’s right behind this piece of property. MR. ABBATE-And what road would Niagara Mohawk be going under? MR. NICHOLSON-Well, if this supposed road that has never been in the prints from Day One, to my knowledge, right? I talked to you about it. MR. BROWN-Yes, that’s part of the subdivision. MR. NICHOLSON-I mean, this seems to be a thing that comes up every once in a while, and I’ve been on top of it since that development started, Schermerhorn’s development. I mean, it wasn’t even there to begin with, but then all of a sudden I see the lines there later on in the prints, and I’m just, then it’s going to become my business. So I’m just telling you what’s there. I’ve lived there all my life. MR. ABBATE-All right. Thank you very much, Mr. Nicholson. I appreciate that. MR. NICHOLSON-You’re welcome. 24 (Queensbury ZBA Meeting 11/28/07) MR. ABBATE-Do we have any other folks in the audience, public who would like to address 68-2007? I see no other hands raised. No other folks in the audience want to address that issue? Okay. Then I’ll move on. I’m going to ask the Board members, then, if they wish to comment on Area Variance No. 68-2007. MR. UNDERWOOD-We did have a submittal this evening from the applicant. MR. ABBATE-Okay, please. MR. UNDERWOOD-This was signed by three neighbors that are adjacent to him, Cynthia Barno, Richard Abbate, and Peter Percell, “We, the undersigned, are in support of the Area Variance application submitted by Ted and Jennifer.” MR. ABBATE-Okay. Great. Thank you very much. All right. So any of the Board members have any questions? I see no Board member’s hands raised, so I’m going to go on, and what I’m going to do is close the public hearing, and the public hearing is now closed for Area Variance No. 68-2007. PUBLIC HEARING CLOSED MR. ABBATE-Now I respectfully ask the Board members if they’d like to discuss this. If so, do I have a volunteer? The comments are to myself, they’re not subject to debate by either the public or any other member of the Board. MR. GARRAND-Thank you, Mr. Chairman. At this point, there’s no road there, and I don’t know of any plans to actually go out there and build a road in the near future. I don’t think the shed in this spot is going to change the neighborhood in any significant way, and I don’t foresee any adverse environmental impacts the shed could possibly have on this neighborhood right now. Mr. Islas has agreed that, should there be a road constructed there, he would move the shed. So I have no problem with this application. MR. ABBATE-Okay. We can include the stipulation, if you wish, into the motion. Any other Board members have any comments? MRS. HUNT-I have a comment. MR. ABBATE-Yes, please, Mrs. Hunt. MRS. HUNT-Yes. I have no problem with this application. I think that it’s not self- created. It’s because on paper there’s going to be a right of way, which does not exist and may never exist, and it’s not a large structure, and I’d be in favor. MR. ABBATE-Okay. Thank you so much. Anyone else on the Board have any comments? All right. We have no other comments. Then I’m going to ask, then, if we have a volunteer perhaps to move a motion. MR. BRYANT-I have a comment. MR. ABBATE-Okay. MR. BRYANT-I had to think. Mr. Chairman, I’m going to disagree. First off, the Board is charged to give the least amount of variance that we can get away with possibly, okay. We have a lot of applications where there really is no other feasible alternative, and the applicant has stated that, yes, he can put it in other locations, and he would at a later date, if the road was going to be built, you know, if that’s the case, then I go back to my original statement that it ought to be placed in a compliant location now. The fact that the road doesn’t exist doesn’t mean that it’s a plan thing, and I’m going to quote Mr. McNulty who’s always saying a variance is forever. So, the road could be built next year, or two years from now or five years from now. So, I would be opposed to it. MR. ABBATE-All right. Thank you very much. Your comments are noted. MR. UNDERWOOD-I’ll make mine. MR. ABBATE-Yes, Mr. Underwood, please. MR. UNDERWOOD-I think that in the grand scheme of things here, I think what we’re looking at, we have to keep in mind this is a storage shed, and I think that even if the 25 (Queensbury ZBA Meeting 11/28/07) road were built in the future, I don’t think the storage shed would have any bearing on that roadway, as far as whether or not it would intrude into its right of way or anything like that. The variance is going to be from the property line. I think if you were going to make it compliant and put it in the middle of the yard, it would be ridiculous. No one wants a storage shed in the middle of their backyard. So I think, in the grand scheme of things, as a temporary solution, most likely a long term solution, the suggested location for the shed is logical, and even though it’s a lot of relief based upon what’s on the plots, it’s not likely that it’s going to be affected. MR. ABBATE-All right. Thank you very much, and I think Mr. Urrico had a comment. MR. URRICO-I have a question. Does any vehicular traffic go through this property at any time? MR. ISLAS-No, it’s a treed area. MR. URRICO-Right. Let me get this straight. We’re providing a variance, we’re voting on a variance because of a road that doesn’t exist yet. MR. ABBATE-You’re taking the thunder out of my statement when it comes time. MR. URRICO-I mean, the road doesn’t exist. It may never exist. So if we make him move it to a compliant location, for what, maybe he doesn’t ever have to move it there. According to our definition of Street in our Code, it says a way for vehicular traffic, whether designated as a street, highway, thoroughfare, buck parkway, thoroughfare, thorough way, road, avenue, boulevard, lane, cul de sac, place, none of these exist yet, and we don’t know if they will exist. It’s on paper, but so what. I mean, by that time, this could be grandfathered in and he won’t have to move it. I really think this variance is unnecessary. MR. ABBATE-Well, there’s nothing else for me to say because Mr. Urrico said everything I was going to say. I was going to raise the issue of why do we need a variance in an imaginary situation in the first place. I’ll leave it up to the Board. I’m just as concerned abut this as Mr. Urrico is. I’m not so sure, ladies and gentlemen of the Board, why we need a variance. Somebody help me out. MRS. HUNT-He would need one anyhow because it’s six feet from the property line. MR. ABBATE-Yes. MRS. HUNT-And it should be 10. So he would need four feet anyhow, if this wasn’t a right of way. MR. ABBATE-All right. So what are you suggesting, Mrs. Hunt? MRS. HUNT-That he needs a variance. MR. ABBATE-He needs a variance. MR. BRYANT-He needs a variance. Just because something is not built, I mean, they do all kinds of subdivision plots with roads and right of ways and paths and all that stuff, and because something doesn’t exist. It was planned that way, and therefore in reality it does exist. MR. ABBATE-Okay. Great. That’s what’s great about this Board. Mr. Urrico, you and I happen to be in the minority this evening, on this particular issue. All right. Fine. Having said that, ladies and gentlemen, is there a motion to move Area Variance No. 68-2007? Please, do I have a volunteer? MR. GARRAND-Mr. Chairman, I’ll make a motion. MR. ABBATE-Yes, sir. MOTION TO APPROVE AREA VARIANCE NO. 68-2007 TED AND JENNIFER ISLAS, Introduced by Richard Garrand who moved for its adoption, seconded by Joyce Hunt: 49 Westberry Way/Pine Ridge Estates. With the stipulation that, should a future road be built along this right of way, that Mr. Islas has agreed to move the building to a more compliant location. Applicant proposes construction of a 194 square foot accessory 26 (Queensbury ZBA Meeting 11/28/07) structure. The applicant is requesting 24 feet of relief from the 30 foot minimum front setback requirement of the Suburban Residential One Acre zoning district. Now, the balancing test. Can the benefits be achieved by other means feasible to the applicant? Well, the applicant wants the shed in this location. I don’t believe the benefits can be achieved by other means at this point. Will this change the character of the neighborhood or the character of the nearby properties? In this case, no it won’t. This road has not been built. It is merely a proposed road. This shed won’t, in any way shape or form affect the other properties. This request may be deemed as substantial. Will the request have adverse physical or environmental impact on the neighborhood? No, I do not believe it will have any environmental impact on the neighborhood whatsoever. Is this difficulty self-created? This may be interpreted as self-created since it is the applicant who wants the shed in this location. With that, I move that we approve Area Variance No. 68-2007. th Duly adopted this 28 day of November, 2007, by the following vote: AYES: Mrs. Hunt, Mr. Garrand, Mr. Underwood, Mr. Urrico, Mr. Abbate NOES: Mr. McNulty, Mr. Bryant MR. ABBATE-The vote for Area Variance No. 68-2007 is five yes, two no. For the record, the applicant understands, of course, the conditions, and accepts the conditions as stated in the motion? MR. ISLAS-Yes, sir. MR. ABBATE-You do. Okay. Then let the record show that Area Variance No. 68-2007 is approved with conditions. Thank you very much, sir. MR. ISLAS-Thank you. AREA VARIANCE NO. 69-2007 SEQRA TYPE: II MICHAEL & VERONICA CHASE OWNER(S): MICHAEL & VERONICA CHASE ZONING: SR-1A LOCATION: 230 FIFTH STREET EXTENSION APPLICANT PROPOSES CONSTRUCTION OF AN 80 SQ. FT. STORAGE SHED. RELIEF REQUESTED FROM FRONT YARD SETBACK REQUIREMENTS. WARREN COUNTY PLANNING: N/A LOT SIZE: 0.81 ACRES TAX MAP NO. 309.15-1-58.2 SECTION: 179-4-030; 179-5-020 MICHAEL AND VERONICA CHASE, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 69-2007, Michael & Veronica Chase, Meeting Date: November 28, 2007 “Project Location: 230 Fifth Street Extension Description of Proposed Project: Applicant proposes construction of an 80 sf accessory structure. Relief Required: Applicant requests 21.58 feet of relief from the 30 foot minimum front setback requirement of the SR-1A zoning district. Criteria for considering an Area Variance according to Chapter 267 of Town Law: 1. Benefit to the applicant: Applicant would be permitted to construct the structure in the preferred location. 2. Feasible alternatives: Feasible alternatives appear to be limited as there is a 75 foot wetlands setback that consumes the majority of the rear yard. 3. Is this relief substantial relative to the ordinance?: The request for 21.58 feet of setback relief from the 30 foot requirement may be interpreted as substantial (72%). 4. Effects on the neighborhood or community: 27 (Queensbury ZBA Meeting 11/28/07) A letter of support bearing 27 signatures with neighborhood addresses was submitted with the application materials. 5. Is this difficulty self-created? The difficulty may be interpreted as self created, however, it would appear as though relief might be needed for a shed in any location on the property. Parcel History (construction/site plan/variance, etc.): BP 1999-618 Single Family Dwelling 11/22/99 BP 2007-048 252 sf deck 2/22/07 Staff comments: The proposed shed, at 80 sf, does not require a building permit. The shed has been constructed to match closely with the colors and architecture of the home on the property. It appears as though a significant portion of the immediate neighborhood is in acceptance of the structure and its location. SEQR Status: Type II” MR. ABBATE-And I see the applicants are before us, Mr. and Mrs. Chase. Okay. Do you understand our procedures? You do understand them. Okay, and any time during the hearing, if there’s anything you forgot to tell us that you feel may help you, stop us, and we’ll be more than happy to listen to you. Okay. So if you’re ready, all you have to do is explain to us why you think we should support your appeal. Okay. So, go ahead and speak into the microphone for us, please. MRS. CHASE-Maybe if I could just read the letter? MR. ABBATE-Yes, ma’am, please do. MRS. CHASE-Okay. We are applying for a variance for a variance to have an 8’ x 10’ storage shed on our property at 230 Fifth Street Ext., Queensbury. Since we were not familiar with all the zoning laws, before we purchased the shed, we called the Town to find out if we needed building permits or if there were other requirements. Unfortunately we found all the guidelines they gave us but didn’t know enough about this to ask if there were setback requirements from the front of the property. Because our property has very limited level area available, we felt our only option was the front, left side of our lawn behind our picket fence. We meet the setbacks for side boundary and distance from the house, however our front setback is less than the 30’ required. As stated, we were not aware of front setback requirements and most likely, this information was not offered to us since most people put sheds in their back property. Our property does not have a garage so we have been storing lawn equipment, snow blowers, etc. around the outside of our house under tarps. We believe this storage shed will improve the appearance of our property in our neighborhood. We are making every effort to be sure this shed has nice curb appeal. It was purchased from a local nursery, Garden Time and built to match our house including siding, roof, windows and shutters. It is 8’ x 10’ and sits behind a white picket fence. We have also spent hundreds of dollars to plant tall shrubs in front of this shed shielding it from view of neighbor across the street. The view of side neighbor is already shielded by trees, shrubs and numerous plantings on that property. We appreciate your consideration of our variance application. MR. ABBATE-Okay. Thank you very much, ma’am. Okay. Do any of the Board members have any questions for Mr. and Mrs. Chase, please? MR. BRYANT-I do. MR. ABBATE-Please, do, Mr. Bryant. MR. BRYANT-There’s some discussion about wetlands and what have you. None of the drawings show any wetlands or anything. Is there anything in there that shows anything? 28 (Queensbury ZBA Meeting 11/28/07) MR. BROWN-I thought the survey map has the wetlands on it. There’s a map some place. MR. BRYANT-I looked at the survey, I don’t see it. MR. BROWN-Yes, they may not have submitted it. MR. ABBATE-I don’t think it’s on the survey. MR. BRYANT-It should be on the key. I looked through my whole package a couple of times. MR. MC NULTY-It was hard to see. MR. UNDERWOOD-Yes, it’s on the smaller plot, this little one here. MR. BROWN-Yes, here it is. MR. UNDERWOOD-There’s a smaller plot that was submitted. MR. ABBATE-Is it designated as, edge of wetlands. Here is it. I’ve got it. MR. MC NULTY-That’s the 75 setback, right up to the deck. MR. ABBATE-Okay. Got it. It’s on that separate sheet, members of the Board. Good. Thank you. MR. BRYANT-Thank you. So, now my next question, on this plot, I saw that, but, you know, I don’t know which is north, south or whatever. You have a section, as you’re looking from the wetlands to the back of your house, you have a section to the left there, right there. Why can’t we put the shed there? MRS. CHASE-That doesn’t, it’s not 75 feet from the shoreline of the wetlands. MR. BRYANT-According to this, it would look like it would be more than 75 feet. MRS. CHASE-Have you seen the property, though? MR. BRYANT-Yes, I saw the property. MRS. CHASE-It’s very steep. There’s no level. MR. BRYANT-Right, but, you know, it’s hard to tell when you go to look at the property, okay, exactly what this map represents. MRS. CHASE-Okay. Yes. If you were standing on the back road there, where that is the only level part, that’s right adjacent to the wetland. So, what’s that, 15, feet, yes, from the wetlands. I don’t even know, the deck actually is 75 feet from the wetlands. That overhang’s a very steep hill, the deck does. MR. BRYANT-Yes, but I’m not talking about back behind the deck. I’m basically talking about in this area here. MR. CHASE-That’s also very steep there also. There’s actually a rock wall. If I was standing next to it, maybe four or five feet and then it drops off. MRS. CHASE-I have pictures. MR. BRYANT-Yes, there was pictures in the package. MRS. CHASE-Yes, I put pictures in. MR. CHASE-So it’s a very unlevel place. MRS. CHASE-We’d have to put it on stilts or something, I think. MR. ABBATE-Are you still thinking, Mr. Bryant, or do you have additional questions? MR. BRYANT-I’m done. 29 (Queensbury ZBA Meeting 11/28/07) MR. ABBATE-You’re done. Okay. Thank you very much. Any other Board members have any questions concerning 69-2007? None? None. Okay. Then I’m going to move on. I’m going to open up the public hearing for Area Variance No. 69-2007. Do we have any folks in the audience who would like to address this? If so, would you be kind enough to raise your hands. Yes, ma’am. Ma’am, would you come to the table, please, and gentlemen. Have a seat, speak into the microphone, and tell us who you are. PUBLIC HEARING OPENED RAY & JANICE WOLFE MRS. WOLFE-We’re Ray and Janice Wolfe, and we’re the neighbors across the street. MR. ABBATE-Okay. MRS. WOLFE-And there’s no other homes in our street that have a shed in the front property, and it doesn’t conform with that at all, none of our places do, and we’re across the street and we have to look right at that shed, and granted, they did make the shed to conform with their house, but it doesn’t look nice from where we are standing. MR. ABBATE-Okay. Is there anything else you’d like to tell us? MR. WOLFE-I did make a suggestion on a house towards Richardson Street. The back of the house is about even with the cut off somewhere in there of the wetlands, but if you put the shed the same way as the house, even with the house, that means it would only go back approximately, if it’s eight feet, halfway to the house. You’d have to build piers up, put a deck on top and set it on that, or make a base of cement blocks and set it on that and have it facing the road, which we wouldn’t be looking right out of our picture window, looking at a shed. See I’m across the street. I’m on 231. They’re at 230, and the shed is right where I look out my window across the street. MR. ABBATE-So are you suggesting that if the shed is constructed as proposed, it would block your view? MR. WOLFE-It’s already constructed. MR. ABBATE-Well, it’s blocking your view. MRS. WOLFE-It’s not blocking our view. MR. WOLFE-We just have to look at a shed. MR. ABBATE-Okay. MR. WOLFE-But if it was moved to the other end of the house, where the bank goes down like this, you’re always going (lost words) and come up and put a platform on top with piers or come up with blocks and set it there and have it the same way as the house, facing Fifth Street, I wouldn’t be looking at it. Nobody would. MR. ABBATE-Okay. Thank you very much, folks, I appreciate that. Do we have anyone else? Yes, sir, please. I believe you were next. Be kind enough to speak into the microphone and tell us who you are, please. DAVID COON MR. COON-Yes. My name’s David Coon. I live at 125 Fourth Street, which is directly around the corner. I got a notice from you people, and if I could bring this up to you. MR. ABBATE-By all means. Thank you, sir. MR. COON-I just want to say that I travel by Mike’s house considerably, and I was a UPS driver in the whole west end for 15 years. I saw a lot of sheds in my delivery time in that area. This is very appealing. I don’t see anything. I understand Mr. Wolfe’s concern looking out, but if you were to go around and look at some of the other places that people look out at, this is very appealing, like I say, so I see no problem, and I have no problem, and I know when he came for one of the signatures I was more than willing, and I told him I would help him get some. 30 (Queensbury ZBA Meeting 11/28/07) MR. ABBATE-All right. Thank you, sir. MR. COON-Thank you. MR. ABBATE-Do we have anyone else in the audience who would like to address 69- 2007? If not, would the applicants both come back to the table for me, please. Now, would you like to address any of the comments that were made before we begin? MRS. CHASE-I guess I would just like to say that we didn’t do this secretly. We talked to the next door neighbor that we were going to put a shed there. Mike needed to take down one tiny tree. So he talked to her to make sure it was okay with her. We put stone down. There’s no permanent foundation or anything, but it was all leveled with stone underneath the shed. That was there for probably weeks before we purchased the shed. Our neighbor obviously knew that was our plans, because when we went around with a petition, many neighbors told us that, yes, Mr. Wolfe told us you were putting a shed there and that it was not going to comply. Had he come and talked to us, we would have known about it before we put the shed there. That’s not an excuse, but that’s just an explanation. MR. ABBATE-Okay. Thank you, ma’am. Okay. I’m going to ask members to offer their comments. MR. URRICO-Can I ask a question? You said you met with the Town, and you were never apprised of what was needed? MR. CHASE-I called the Town. I wanted to put the shed, and so I called the Town and talked to someone there, said I want to put a shed on my property, what are the requirements and what do I need, and she said, well, if you put an eight by ten, you don’t need a building permit, and just keep it five feet away from your neighbor’s property, and I said, that’s great. That’s good, and on with my decision and process I went, until the shed was delivered and the Code Enforcement person showed up a half hour after it was delivered to my front yard. So I thought I was doing everything right, but, as I find out after, I wasn’t. MR. ABBATE-All right, folks, do we have any comments? MR. BRYANT-Just one question about your statement. MR. ABBATE-Yes, please. MR. BRYANT-So when you called the Town and they gave you all the requirements and so forth, I’m sure they told you that you had certain setback requirements. MR. CHASE-The only thing they mentioned was just keep it five feet away from your neighbor’s property. MRS. CHASE-And from the house, something from your house, did you tell me? MR. CHASE-No. She just said just keep it five feet off of your side property. MR. BRYANT-Well, I can understand that statement, because normally people don’t put sheds in their front yard. MR. CHASE-That’s right. MRS. CHASE-That’s why we’re not blaming them for not telling us that. We just, who would think that you’re putting it in a front yard. MR. CHASE-And I didn’t mention to her that I was putting in it in the front. So she didn’t know. MRS. CHASE-Yes, to tell us that. MR. ABBATE-Okay. MR. BRYANT-Okay. MR. ABBATE-Any other comments? Okay. Then I’m going to move on and I’m going to close the public hearing for Area Variance No. 69-2007. 31 (Queensbury ZBA Meeting 11/28/07) PUBLIC HEARING CLOSED MR. ABBATE-And I’ve reached a point where I’ll ask Board members if they have any comments they wish to make. Do any Board members wish to comment on Area Variance No. 69-2007? Okay. Jim, please. MR. UNDERWOOD-I think, you know, if you look at the configuration of the lot, to put any kind of a structure there, other than if you were going to put a garage on eventually on that other end there, would take a substantial amount of fill. I would imagine you must have had to put a lot of fill in a lot just to construct the home there. MR. CHASE-Yes, it was built when we bought it, but, yes. MR. UNDERWOOD-But in that respect, you know, to put that shed down at the bottom of the base of the hill in the back yard would be illogical. I don’t know how you would get the snow blower up the hill every time it snowed or anything like that, other than going to all the trouble of constructing it as the neighbors had suggested, but, I mean, it’s going to be very, you know, not cheap to do it. You’re going to have to bring in all that fill. You’re going to have to build it up in order to put the shed back there. I suppose that would be a feasible alternative. In a normal sense, we don’t allow these things in the front yard, but I think that, you know, plantings are suggested, you know, I mean, it’s apparent they’re going to be evergreen trees. MRS. CHASE-They are. MR. UNDERWOOD-They’re going to be greening up all the time. They already somewhat screen it. I would think that you could put some on the side view, even from the neighbors that haven’t complained on the other side of you. Arborvitaes are going to grow up and block the view almost entirely. It would be, in a sense, just like looking at a hedge instead. I mean, it’s going to be a temporary view of that shed as it’s presently been constructed there, and I don’t really see any other place to do it, other than it’s going to cost you thousands of dollars to do it, and I think that’s a negative as far as I’m concerned. I think that, you know, in general, the neighborhood is very accepting of the fact that this is here, and everybody understands the fact that this isn’t something that we normally allow in any sense, but I think that this yard specifically, it’s the only place you could have done it on the cheap. So I’d be in favor of it. MR. ABBATE-Okay. Thank you very much. Mrs. Hunt, please. MRS. HUNT-Yes. It’s a very unusual lot, I mean, that steep back yard. You couldn’t have put it anywhere else, and I think it’s very attractive. In fact, if you look at it head on, it almost looks like part of the house rather than a shed. So I would be in favor. MR. ABBATE-Okay. Thank you. Any other comments? MR. BRYANT-Mr. Chairman. MR. ABBATE-Yes, sir. MR. BRYANT-I respectfully disagree. The same would apply if you wanted to build a garage, for example. You’d bring in all this fill. You’d want to disturb the wetlands and you’d say, well, we don’t have a garage and therefore, you know, we’d like to build a garage, and we couldn’t permit it. A feasible alternative sometimes, and this is not your fault, it’s more a configuration of the lot, but a feasible alternative sometimes is not to build, and I understand that you got 27 people to sign your petition, but you’ve got your immediate neighbors who are going to be most affected by it that really don’t care to see a shed in the front yard, and I don’t necessarily disagree with them. So I know that you’re in a predicament, and I know that your lot is a terrible configuration there, but I think the feasible alternative is not to build, and I would be opposed. Okay. Any other comments? All right. Hearing no other comments, then I’m going to move on and request a motion from a Board member. Do we have a volunteer? Before we volunteer, let me say one thing to Board members. State law sets forth five factors to take into consideration, but just remember one thing. Unlike a Use Variance test, this Board need not find in favor of the appellant on every one of the factors. Rather we must merely take them into consideration in deciding what to do. Now, having said that. MR. UNDERWOOD-I’ll make the motion. 32 (Queensbury ZBA Meeting 11/28/07) MR. ABBATE-Yes, Jim, please. MOTION TO APPROVE AREA VARIANCE NO. 69-2007 MICHAEL & VERONICA CHASE, Introduced by James Underwood who moved for its adoption, seconded by Joyce Hunt: 230 Fifth Street Extension. The applicant has constructed, or has purchased an 80 square foot accessory structure, and unfortunately has placed it in the front yard. The applicant consequently is requesting 21.58 feet of relief from the 30 foot minimum front setback requirement of the Single Family Residential One acre zoning district. Under the benefit to the applicant, they would be permitted to keep the structure in its preferred location, which appears, at this point in time, to be logical, based upon the severe topography in the back and side of this yard. Feasible alternatives appear to be limited to bringing in massive amounts of fill to accommodate the structure that may be parallel with the house, between there and still meeting its five foot setback, but at this point in time, they don’t appear to want to go to that great trouble to do this. Is the relief substantial? The request for 21.5 feet of relief from the 30 foot requirement is substantial at 72%. As far as effects on the neighborhood or community, there are 27 signatures from neighborhood addresses that were submitted with the application, and I think everybody recognizes that we normally never allow sheds anywhere in the front yard of any dwelling, but in this instance here, most people in the neighborhood did not have a problem with it. However, the neighbor across the street did have a problem with it, but I think that in lieu of the fact that the shed is there, they have put some green plantings around it to shield it and as those grow up it’ll be less apparent than it is at the present time. The difficulty is self-created because they do want it in this proposed location. No building permit was required for doing this, and it was brought to their attention after bringing it on site. So as far as accepting it or not, that’s up to the Board, but I would move for its approval. th Duly adopted this 28 day of November, 2007, by the following vote: AYES: Mrs. Hunt, Mr. McNulty, Mr. Underwood, Mr. Urrico, Mr. Abbate NOES: Mr. Garrand, Mr. Bryant MR. ABBATE-The vote for Area Variance No. 69-2007 is five yes, two no. Jim, did you want to use any conditions in terms of putting those trees? MR. UNDERWOOD-No. I mean, the trees are already there, and I would just say that, you know, if the trees succumb to the salt from the plows coming by that you’ll have to keep them in order and always there and replace them if they die. That’s all. MR. ABBATE-All right. Then let the record show that Area Variance No. 69-2007 is approved. Good luck to you folks. Now, ladies and gentlemen, I have some approval of minutes. APPROVAL OF MINUTES September 19, 2007 MOTION TO APPROVE THE QUEENSBURY ZONING BOARD OF APPEALS MEETING MINUTES OF SEPTMBER 19, 2007, Introduced by Charles McNulty who moved for its adoption, seconded by Richard Garrand: th Duly adopted this 28 day of November, 2007, by the following vote: AYES: Mr. Garrand, Mrs. Hunt, Mr. Underwood, Mr. Bryant, Mr. Urrico, Mr. Abbate NOES: NONE September 26, 2007 MOTION TO APPROVE THE QUEENSBURY ZONING BOARD OF APPEALS MEETING MINUTES OF SEPTEMBER 26, 2007, Introduced by Charles Abbate who moved for its adoption, seconded by Joyce Hunt: th Duly adopted this 28 day of November, 2007, by the following vote: AYES: Mrs. Hunt, Mr. Garrand, Mr. McNulty, Mr. Underwood, Mr. Abbate 33 (Queensbury ZBA Meeting 11/28/07) NOES: NONE October 17, 2007 MR. ABBATE-The vote is five yes to zero no. September 26, 2007 is approved. MOTION TO APPROVE THE QUEENSBURY ZONING BOARD OF APPEALS MEETING MINUTES OF OCTOBER 17, 2007, Introduced by Charles Abbate who moved for its adoption, seconded by Richard Garrand: th Duly adopted this 28 day of November, 2007, by the following vote: AYES: Mr. Underwood, Mr. Bryant, Mrs. Hunt, Mr. Urrico, Mr. Garrand, Mr. Abbate NOES: NONE MR. ABBATE-The vote is six yes, zero no to approve October 17, 2007. October 24, 2007 MOTION TO APPROVE THE QUEENSBURY ZONING BOARD OF APPEALS MEETING MINUTES OF OCTOBER 24, 2007, Introduced by Charles Abbate who moved for its adoption, seconded by Joyce Hunt: th Duly adopted this 28 day of November, 2007, by the following vote: AYES: Mr. Garrand, Mr. McNulty, Mr. Urrico, Mrs. Hunt, Mr. Bryant, Mr. Underwood, Mr. Abbate NOES: NONE MR. ABBATE-The vote is seven yes, zero no to approve the minutes of the meeting of October 24, 2007. Thank you very much, ladies and gentlemen. Have a good evening. We’re done. On motion meeting was adjourned. RESPECTFULLY SUBMITTED, Charles Abbate, Chairman 34