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2008.03.26(Queensbury ZBA Meeting 3/26/08) QUEENSBURY ZONING BOARD OF APPEALS SECOND REGULAR MEETING MARCH 26, 2008 INDEX Area Variance No. 19-2007 Kelly E. Carte 1. Tax Map No. 300.16-1-3 Area Variance No. 13-2008 Jane B. Lowell 1. Tax Map No. 290.00-1-22.221 Notice of Appeal No. 11-2007 Robert and Victoria Glandon 2. Tax Map No. 239.7-1-14 Area Variance No. 11-2008 Debaron Associates by 22. Debra Schiebel, Partner Tax Map No. 239.18-1-47 Area Variance No. 12-2008 Bill and Becky Degasperis 41. Tax Map No. 226.19-1-59 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 3/26/08) QUEENSBURY ZONING BOARD OF APPEALS SECOND REGULAR MEETING MARCH 26, 2008 7:00 P.M. MEMBERS PRESENT JIM UNDERWOOD, ACTING CHAIRMAN JOYCE HUNT RICHARD GARRAND ROY URRICO JOAN JENKIN, ALTERNATE BRIAN CLEMENTS, ALTERNATE ZONING ADMINISTRATOR-CRAIG BROWN STENOGRAPHER-MARIA GAGLIARDI MR. UNDERWOOD-I’ll call the March 26, 2008 meeting of the Queensbury Zoning Board of Appeals to order, and starting out, I want to quickly go through our procedures once again for anybody that perhaps is new here. As we handle each application, I’ll call the application by name and number. The Secretary, that’s me, will read the pertinent parts of the application, Staff Notes and Warren County Planning Board decision if applicable into the record. Then we’ll ask the applicant to present any information they wish to present to the Board. The Board will ask questions of the applicant. Then we’ll open up the public hearing. The public hearing’s intended to help us gather information and to understand it, about the issue at hand. It functions to help the Board members make a wise decision. It does not make the decision for the Board members. There will be a five minute limit on the speakers. We will allow speakers to speak again after everybody’s had a chance to speak, but not for more than three minutes, and only if, after listening to other speakers, a speaker believes that they have new information to present. Because of the five minute limit, I would ask that Board members not interrupt the speaker with questions while they’re speaking. Rather they should wait until a speaker has finished his five minute period and then ask the questions. Following all the speakers, we’d read any correspondence that pertains to the record, then the applicant will have an opportunity to react and respond to that public comment. Board members then will discuss the variance request with the applicant. Following that, the Board members will have a chance to explain their positions on the application. Then the public hearing will be closed or left open, depending upon the situation, and finally, if appropriate, a motion to approve or disapprove will follow. Before we get underway tonight with our regular agenda, there’s a few adjustments we’re going to make here. Some of you may be in attendance this evening for the final item that we have on tonight’s agenda, and that is the Jane B. Lowell, that’s the Chestnut Ridge Road and County Line Road. That was a proposed subdivision. Staff was in receipt of a fax this afternoon, and that was received quite late in the day, and it reads as follows, “Dear Craig: Please be advised that on behalf of my client, Jane B. Lowell, we request that the above-referenced Variance application be tabled to the following month’s agenda. Please call me if you have any questions regarding this matter. Yours very truly, McPhillips, Fitzgerald, & Cullum, L.L.C. Melissa D. Lescault” Okay. We also received a request this week on a previous granted Area Variance, and that was Area Variance No. 19-2007, that was granted on March 28, 2007. A letter was received from Kelly Carte, who was the recipient of that Area Variance. His property is located at 659 West Mountain Road in Queensbury, and he writes as follows: I was unable to start my building project last year due to time constraints, but will be applying for a building permit and starting construction this spring.” And so I think what I’ll do is, Rich Garrand, I think you were the one that made that motion. Do you want to just re-read the motion in and grant them another year’s worth? MOTION TO EXTEND FOR ANOTHER YEAR AREA VARIANCE NO. 19-2007 KELLY E. CARTE, Introduced by Richard Garrand who moved for its adoption, seconded by Joyce Hunt: 659 West Mountain Road. Applicant proposes construction of a 1440 square foot barn. The applicant requests relief for an oversized garage on the property of 540 square feet in excess of the 900 square foot floor area, in a residential district, per Section 179-5-020 for the Land Conservation 10 Acre zone. As a condition, I believe the condition was that no further structures be erected on the property. First in the balancing test, whether the benefit can be achieved by other means feasible. There are feasible alternatives, and that is to erect two separate structures, but once again, that’s not a very cost effective 1 (Queensbury ZBA Meeting 3/26/08) way of doing it. Whether this will cause an undesirable change in the neighborhood, or character of nearby properties. I do not believe an undesirable change will be created. The request may be considerable relative to the Ordinance, but it is not substantial, given all factors involved. This request will not have any adverse physical or environmental impacts on the neighborhood. th Duly adopted this 26 day of March, 2008, by the following vote: AYES: Mrs. Hunt, Mr. Urrico, Mr. Garrand, Mr. Clements, Mrs. Jenkin, Mr. Underwood NOES: NONE MR. BROWN-Mr. Chairman, we probably want to do a motion to table Lowell, too. MR. UNDERWOOD-Okay. Sure. All right. I’ll make the motion to table. MOTION TO TABLE AREA VARIANCE NO. 13-2008 JANE B. LOWELL, Introduced by James Underwood who moved for its adoption, seconded by Roy Urrico: th Chestnut Ridge Road & County Line Road. Tabled to April 16. They’ve asked for an extension because they couldn’t be here this evening. So we’ll table that to the first meeting in April. th Duly adopted this 26 day of March, 2008, by the following vote: AYES: Mrs. Jenkin, Mr. Clements, Mr. Urrico, Mrs. Hunt, Mr. Garrand, Mr. Underwood NOES: NONE MR. UNDERWOOD-Okay. We’ll move on to Old Business. OLD BUSINESS: NOTICE OF APPEAL NO. 11-2007 SEQRA TYPE: N/A ROBERT & VICTORIA GLANDON OWNER(S): RICHARD SALOMON ZONING: WR-1A LOCATION: 67 KNOX ROAD APPELLANT IS APPEALING THE ZONING ADMINISTRATOR’S DETERMINATION OF OCTOBER 23, 2007 REGARDING SITE DEVELOPMENT ISSUES AT 67 KNOX ROAD. CROSS REF.: BP 2006-271 SFD; BP 2004-539 SEPTIC ALT.; BP 2006-273 DEMO SFD; BP 2005-945 DEMO WARREN COUNTY PLANNING: N/A ADIRONDACK PARK AGENCY: YES LOT SIZE: 0.45 ACRES TAX MAP NO. 239.7-1-14 SECTION: 179-4-020; 179-16-050 TOM WEST, REPRESENTING APPLICANT, PRESENT MR. UNDERWOOD-We did hear this previously, I guess the month before last, and a letter was sent in by the West Firm. I guess I’ll read that into the record. “Dear Members: This letter constitutes our status report in accordance with the directive from your January meeting that we report to you by February 15, 2008 in order that this matter may be heard at the March meeting. As you are aware, by letters dated January 18, 2008, we wrote to Mr. Brown and Mr. Hatin. In those letters, we raised a series of code compliance issues and requested formal determinations from both Mr. Brown and Mr. Hatin concerning those issues. By letter dated January 24, 2008, Mr. Hatin advised us that Mr. Brown had requested that the owners provide an as built survey so that the Town can get an accurate determination as to where the building currently sits on the property. That letter further advised us that representatives of the Town were going to meet with the owners and that the owners were going to submit a revised septic system along with the survey information. By letter dated January 28, 2008, we replied indicating that this is the same position we have been in since early summer with the promise of new plans and building construction that continues at variance from the code requirements. By letter dated January 29, 2008, Mr. Brown wrote us to advise us that a site inspection had revealed that the building was constructed at variance from the approved plans and that the applicant was directed to file by February 6, 2008 accurate plans and a new survey reflecting actual construction. Copies of these letters are enclosed. In a telephone conversation today, we were advised by Mr. Brown that the plans and survey that were requested by the Town from the owners have not been filed with the Building Department. Consequently, Mr. Brown and Mr. Hatin do not believe that they are in a position to respond to our letters, although they are hopeful that they will be able to do so in the next several weeks when plans are filed with their office. In the meantime, this will serve to confirm that both the Mr. and Mrs. Glandon and Dr. and 2 (Queensbury ZBA Meeting 3/26/08) Mrs. Rosenburg want to bring before the Zoning Board of Appeals all issues that were discussed at the public hearing in January, including, but not limited to, all issues concerning building height, the legality of the proposed septic system, the legality of the wing walls that were constructed to artificially elevate the fill on either side of the structure in an illegal effort to attempt to make the structure conform to the height limitations of the Queensbury Zoning Code, and the issue concerning the ratio of the constructed building to the square footage of the lot. Under these circumstances, we suggest that this matter be heard at your March meeting. To the extent that we receive responses to our letters between now and then, we will file appeals from any determinations that do not conform to the requirements of the Queensbury Zoning Code prior to the March meeting. Thank you for your time and attention to this issue. Very truly yours, Thomas S. West” STAFF INPUT Notes from Staff, Notice of Appeal No. 11-2007, Robert & Victoria Glandon, Meeting Date: December 26, 2007 “Project Location: 67 Knox Road Description of Proposed Project: Appellant is appealing to the Zoning Board of Appeals relative to an October 23, 2007 decision made by the Zoning Administrator regarding the necessity for Area Variances for the project at 67 Knox Road. Staff comments: The filed appeal appears to address information other than what the appellant originally inquired about and other than the October 23, 2007 Zoning Administrator decision. The appellants, October 23, 2007 letter of inquiry addressed 5 items: ? Building Height ? Side yard setbacks ? Stop work order ? Stormwater ? Erosion Control The October 23, 2007 Zoning Administrator decision addressed the same 5 items. The current appeal addresses 4 items: ? Side yard setbacks ? Building Height ? Lot Coverage ? Septic System Following the October 23, 2007 issues please note the following; Building Height: Historically, building height measurements have been taken from final grade. In the instance of the subject property, actual field measurements taken confirmed that the height of the structure does not exceed 28 feet from final grade. The current code does offer two methods of measurement; natural grade and final grade. Side Yard Setbacks: As noted in the October 23, 2007 Zoning Administrator decision, the “wing walls” are not considered structures and are not required to meet the minimum setback requirements for such. The concrete walls are to be considered landscaping elements and as such, like a sidewalk or a stone wall, are not subject to setback requirements. Additionally, if any open stairway is proposed, per 179-2-010, Definitions for Building Line: “All yard requirements are measured to the building line, except open steps that provide access to the ground floor or basement of the building…” The remaining two items referenced in the appeal; Lot coverage and Septic System were not originally identified in the appellants October 23, 2007 inquiry nor were they commented on in the October 23, 2007 Zoning Administrator determination. With no determination on these matters there does not appear to be any standing to appeal these items to this Board.” MR. UNDERWOOD-All right. There was a letter that was sent out also, and that was dated March 21, 2008, and that was sent to Richard Solomon and Provident Design 3 (Queensbury ZBA Meeting 3/26/08) Build, LLC at 100 Sitterly Road in Clifton Park. RE: The 67 Knox Road Building Permit No. 2006-271, and that was faxed on 3/21/08. “Dear Mr. Solomon: I am writing to you as a follow up to my inspection yesterday of your project site and building which was attended by you, Ed Esposito, Dave Hatin and I. During this inspection we discussed the proposed septic system and the current construction of the building and the requirements of the Town Code and we reviewed the revised plans that you submitted to this office on March 11, 2008. These recently revised plans still contain several inconsistencies not only between several sheets of the plan set but with the actual constructed building. As discussed, you will prepare a detailed plan for the proposed septic system as well as revised plans that show the house to be compliant with the Floor Area Ratio, (FAR) requirements of the Town Code. Specifically, the area above the garage will be reconfigured to remove all windows, dormers and access from the second floor of the home. Access to the upper garage space will be provided through a scuttle in the garage area. Further, you agreed that the remaining floor area of the home will be configured so that it will meet the maximum 22% FAR requirements. As previously discussed, an FAR in excess of 22% will require an Area Variance. As referenced in my previous correspondence to you, the STOP WORK ORDER is still in effect. No further work on the building or site may be performed until all outstanding issues are resolved. Should you have any further questions or comments, please do not hesitate to contact this office.” And that was signed Craig Brown. Okay. That’s it for the moment. MR. WEST-Okay. Thank you, Mr. Chairman, or Mr. Acting Chairman and all the members of the Board. It’s nice to be back up here in the North Country. I’d like to start with some of the procedural issues, because, based upon the notes that you read into the record, it appears that the Building Department is still trying to take the position that the Floor Area Ratio issue is not before you, and we think that that is clearly not the case, and let me explain why. MR. BROWN-Could we just get you to identify for the record. MR. WEST-Yes. Thomas S. West, The West Firm, PLLC, 677 Broadway, Albany, New York, for the appellants, the Glandons and the Rosenburgs. When were here last time, we went over, and Mr. Glandon read into the record some of his e-mail correspondence, clearly bringing the Floor Area Ratio issue before the Building Inspector, and we therefore took the position that that issue was properly before this Board. When we got into a discussion of the issue, there was some uncertainty as to what issues were before the Board and what issues were not before the Board, and we agreed to a procedure, and if you recall, one of the attorneys from Counsel to the developers sat here next to me, at the end of that meeting, and we very carefully charted out a set of procedures, and the procedures were very simple and straightforward. We would write a letter to the Building Department and the Zoning Department, and ask them to rule on a series of issues that had come up in the context of that meeting, which we did in our January th correspondence that was submitted along with my February 15 update. We did get letters back, as reflected in my update, indicating that they were waiting for further plans before they could respond, but that they would get around to responding. They, to date, have not responded to the very same procedures that we all agreed would be applied to bring this matter back on before you at this meeting. So we are, we’re kind of in a Catch 22. We have asked the Building Department to rule on an issue. They haven’t given us a direct determination, and they now take the position that issue is not before the Board, when we agreed to a set of procedures that was agreed to not only by the appellants, but also by Counsel for the developer, and so we think that that issue is very clearly before this Board. We think that the recent correspondence that you just read into the record, addressed to Mr. Solomon, specifically the letter of February 5, 2008, which establishes that the building was built at variance from the plans and well in excess of the Floor Area Ratio, warrants a very simple and straightforward determination from this Board that Mr. Glandon’s appeal should be granted, and it should be declared that this building was constructed illegally, and beyond the Floor Area Ratio requirements. Now, you’re going to hear tonight that there’s a lot of resubmissions going on, and just like we’ve been hearing since last June or July when we started complaining about this structure, that they’re continually making revisions to the plans and continually making submissions, but that doesn’t conform to what we agreed would be the procedure to bring this issue before the Board. So tonight we ask very simply one thing on the Floor Area Ratio, that you confirm that Mr. Glandon did an excellent job of recognizing that the building was built in excess of the plans. That fact has now been confirmed, and therefore it’s an illegal structure. I have no doubt that they’re going to try and come up with some remedial measures, and we certainly want to address those measures, but that’s a separate issue. Now, moving to that separate issue on the remedial measures and the specific remedies that were outlined in the February 25, 2008 correspondence, I would 4 (Queensbury ZBA Meeting 3/26/08) note for the record that in order to determine Floor Area Ratio, you have to look at the building floor area as it’s defined in the Code, and it does talk about the ability to exclude space as living space described in Section 7-11 and 7-12 of the New York State Building Code, but that only applies to basements. That doesn’t apply to garages. All right. So the fact that they’re going to wall in the garage and only make it accessible through a pull down door is of no consequence because this house was built with floor area above the garage that is still illegal and makes this structure go over the Floor Area requirement. So we would like you to confirm, Number One, that the Glandon appeal should be granted, that the house is illegal and it exceeds the Floor Area requirements, and that while they can make modifications to the basement, any modifications to other areas to take them out of the category of living space do not qualify under your Code. The other issue that is clearly before this Board, and there’s no doubt that it’s before this Board, is the building height issue, and we went through that extensively in the January meeting, and now the Zoning Administrator had weighed in with their interpretation that they believe that the Code can be interpreted as either fill or cut in a cut area, and that natural grade is of no significance, and we have explained in correspondence, and I’ll go back to my letter of August 21, 2007, that was submitted to Mr. Brown and copies of which were read into the record at the last meeting, where we very clearly demonstrated that the Code provisions at issue here require that you use natural grade or cuts, if it’s a cut area, but there’s nothing in this Code whatsoever that allows you to fill, artificially, to create an infinite height based upon whatever you can fill. I have one extra photograph I’d like to submit into the record. I don’t have copies of this. People have been very nice to give us photographs. This photograph shows the footings and building when they were being constructed, and it also shows, on the south side there, very clearly, what the pre- existing natural grade was. You can see the soil and you can see the level of topsoil, so you can see what the natural grade is, and I think if you rule in our favor, that photograph will be relevant to trying to determine what the natural grade was. It also shows the natural grade on the north side of the structure, but not as clearly. So, the second thing that we would like you to rule upon tonight is a proper interpretation of the Code, and specifically we would ask you to rule as we have set forth in correspondence and as we debated extensively at the last meeting where this matter was heard, that this Code provision can only be read as allowing natural grade to be used for absolute height, or cut in a cut area, and that it is illegal to use fill to artificially elevate the height of a structure, and that therefore the determination of the Building Department is in error. We think that once you reach that conclusion, and once a proper analysis is done, you will find that the peak height, as it faces to the south and to the north, because this peak goes across the lot, it doesn’t go out front, is approximately, what would you say? ROBERT GLANDON MR. GLANDON-It was six or seven feet on the north and three to four feet on the south. MR. WEST-And that if a proper analysis is done of the height of the peak, above the natural grade, that this building is six to seven feet too tall on the north side, and maybe three to four feet on the south side, and again, we don’t think there’s any reason why you don’t have to rule upon this tonight, because we do think that there are going to have to be modifications made to this structure. The other thing I want to bring to your attention is I told you about the driveway litigation. We argued the motion for summary judgment last Friday. The judge reserved decision on the motion and has granted the developer an additional week or two to submit some additional papers. We expect a decision on that in 30 to 60 days. We’re going to request that the Planning Board not make any decision concerning the septic system and we would hereby request that the Building Department not make any decision concerning the septic system until the courts rule whether or not Dr. and Mrs. Rosenburg have the right to get their driveway back. As you recall, that was the same driveway that pre-existed for 50 years or more, and was bulldozed by these developers without telling the Rosenburgs that that was going to happen. So, again, we’d like a determination on the Floor Area Ratio, that that’s before you, and that this building is illegal, and secondly we’d like a determination as to the proper interpretation of the height provisions of the Code. Okay. Any questions? MR. UNDERWOOD-Does anybody have any questions at the moment? MR. URRICO-Your original appeal was to the original determination? MR. WEST-That’s correct. MR. URRICO-And now you’re amending that appeal? 5 (Queensbury ZBA Meeting 3/26/08) MR. WEST-Well, we thought we had agreed, sir, to a procedure at the last meeting that would eliminate any confusion. We did not think that there was any confusion concerning the subject matters that were before this Board because Mr. Glandon demonstrated that he had a series of correspondence with Mr. Brown, and Mr. Hatin, and that all of the relief requested by him was denied. He took a timely appeal. There was a question concerning what issues were before this Board. We thought that we had come to an agreement, not only an agreement with this Board, but agreement with Counsel for the developer, who sat here next to me in January, and we had an agreement that we would make some requests to the Building and Zoning Departments and get some determinations, take any appeals that were necessary to bring those back before you. We did everything we said. We reported to you in a timely manner. We’re not getting any responses from Mr. Brown or Mr. Hatin. We recognize they may feel that more information is useful, but we think they have to call it as they see it, based upon the agreement that we reached in January. We feel like we’re, it reminds of the Muhammad Ali rope a dope. There’s nothing we can do. The Building Department is sitting there. They’re not responding to our questions. Yet it’s clear that this Building exceeds the Floor Area Ratio. We think it’s clear it exceeds the building height, and we think we’re entitled to determinations from this Board so that the developer and everybody will know how the law applies, and if there’s a redesign in any modifications to this building that needs to be implemented, that it can be all done at once. MR. URRICO-You said this agreement was, I don’t recall, it’s not in our motion to table it. So I don’t know what the agreement was that you had with the attorney and Mr. Brown, was it brought before us? MR. WEST-It’s reflected in the minutes. MR. URRICO-In the minutes. MR. WEST-And it’s something that was discussed openly here, because there was some confusion as to what issues were before you, and I think I even said these very same words. I’d like to offer a practical suggestion, and the Chairman at the time thought that that was a pragmatic way to proceed, and it was agreed, and there were no disputes, and I believe Mr. Brown agreed that this procedure would be implemented. In reliance upon that procedure, we submitted the letters that are now before this Board, and to date we haven’t gotten answers, and again, as I said in some of my correspondence to the Town, to the Building and Zoning officers, it’s very frustrating when you’ve been raising the same issues since June of last year with the Town and you can’t get a direct answer and now to be, for it even to be suggested that we can’t get a determination from this Board, really is denying these appellants due process. MR. UNDERWOOD-Can I ask you a question, Craig? My understanding, last time when we did meet was that we were looking to resolve all the outstanding issues and anything that hadn’t been addressed, including the Floor Area Ratio, and I would think from your letter that it’s clear that the Floor Area Ratio has been exceeded at this point in time. I understand you’re trying to make some plausible changes that are going to bring it into compliance, nonetheless, but I find it hard to believe that we’re not going to allow anybody to fully address that problem or have the Board look at that problem, as to whether, what you’re proposing is adequate or not. MR. BROWN-Right. Okay. It was definitely, it was obviously discussed the last time it was before the Zoning Board. At that time, as is the case tonight, no determination has st been made on the Floor Area Ratio. The closest is this March 21 letter of last Friday. It was based on some plans that were in this office. Tonight, I was handed yet another revised set of drawings, floor plans for the house. These are the plans that I’m going to use to make a determination on is the Floor Area Ratio acceptable. To this point, the appellants haven’t appealed the determination on Floor Area Ratio. I haven’t been able to render a decision on a final set of plans. This is going to be the final set of plans that I look at. There aren’t going to be anymore revisions. These are the plans that we’re going to use. So, if, when this decision is rendered, the appellants don’t agree with my decision, they can certainly appeal that and appear back before this Board. It does make sense to try and put them together, but there is no decision at this time. Definitely the height is still an issue before this Board. There’s no question about that. I don’t really have anything to say that it’s still before the Board. MR. UNDERWOOD-I would make the comment, you know, I think that there’s been a significant deviation from what was originally proposed on this project, and I think you would agree with me on that point. There are a lot of outstanding issues with the septic, the amount of. 6 (Queensbury ZBA Meeting 3/26/08) MR. BROWN-Not so much on the septic, and I don’t really want to go to that too much because the septic really isn’t under the jurisdiction of this Board. The septic’s entirely put upon the Town local Board of Health, which is the Town Board. So any decisions on the adequacy and the accuracy of the septic system, first start with the Building Department to see if it meets the New York State Health Department Code, and if it doesn’t, the Director of Building and Codes says you need a septic variance and go to the Town Board. So I don’t want to go to the septic too much. I’m guessing that in this set of plans there’s a cross section that shows that the septic system is going to be placed in the natural soil on the site, which is what the Building Code requires, and I think the Building Inspector has seen a draft of that, and is okay with that. So, you know, enough said on that, but. MR. UNDERWOOD-Is there anything in here that’s going to trigger any kind of Planning Board look at this? MR. BROWN-They already have, they have a pending Site Plan Review application with the Planning Board for the, if you remember back, the original building permit was issued for a limited amount of disturbance on the site. During the construction, in the preparation of the site, they exceeded that area that they said they were going to contain themselves to by a significant amount. Once we discovered that, we informed them of the violation, told them that the process would be to go to the Planning Board for Site Plan Review to have their project reviewed, basically, as a major stormwater application. They’ve started that process. They haven’t gotten all the way through that process. This is something that came up, these appeals came up during that process. So that’s kind of on hold until this is resolved. MR. UNDERWOOD-Is our rendering a decision going to have any impact on the Planning Board or would we be, in your opinion, would it make more sense to have the Planning Board look at the total picture here before we sign off on what, yes or no on this? MR. BROWN-Yes. That’s a difficult one to answer. Obviously, if your decision is that, and I’m not convinced that you can make a decision on the Floor Area Ratio tonight because there’s been no appeal of a determination because there’s been no determination made yet, but if the ultimate answer to that is, yes, the building’s too big, and, you know, the result of that is make the building smaller, sure, that’s going to affect the Site Plan and the disturbance to the site, but I think that’s a little further down the road than where we are right now. So, I mean, the Planning Board has their own specific concerns, stormwater, soil and erosion protection. Those are the things that the Planning Board’s focusing on. This is basically what the Zoning Board is dealing with is the size of the building, both height and square footage, at some point, I would guess. MR. URRICO-Craig, could you explain how we get from natural grade to final grade on the building height? The Code specifically says natural grade. MR. BROWN-Yes, well, it does. It offers a couple of different methods. It offers natural grade and final grade, and historically, it’s been interpreted that it’s the final grade. Appeals have been brought, many appeals have been brought before this Board for building height. They’ve always been measured to final grade. There hasn’t been any discrepancy between natural grade, cut grade, fill grade. I can’t give you specifics, but I know there have been several height variances that have been brought before this Board, and it’s always been final grade. Sometimes it’s a cut grade, sometimes it’s a fill grade. MR. URRICO-Is that because we can’t determine whether it was natural or final or not? MR. BROWN-No, I think, and when I started making these determinations, I picked up with the way they had been made before I started doing it, before it was my responsibility, and it had always been final grade, and why? Probably because there are two different ways to do it in the Code, and final grade is the way that’s probably the easiest to be more consistent, to pick a number. I don’t have a different answer for you. MR. UNDERWOOD-What is your interpretation of final grade, though, if you’re looking at a natural grade and then you’re going to add on more height, you know, in comparison to the surrounding territory? To me, you’re creating an unnatural grade at that point in time, and you know, unless you’re going to encapsulate it as in the case of this one here where these wing walls on here. It’s not something that if you piled it up there it would stay there of its own accord. It’s going to try and reach natural grade. 7 (Queensbury ZBA Meeting 3/26/08) MR. BROWN-Yes, there’s no question that natural grade and final grade often are not the same thing. Either by cut or by fill. MR. UNDERWOOD-Okay. Did you have something you wanted to add? MR. WEST-Yes, I just wanted to, I think enough has been said about the Floor Area Ratio. We think it was clearly before this Board. We agreed to a procedure. They’ve confirmed that the project does not meet Floor Area Ratio, and remember we had a very distinct discussion. We said this is not rocket science now because this building is constructed. You can go out there and take actual measurements and that’s what they were required to do, and it’s not how are they going to change their design and board things up claim it’s not living space. It’s what’s out there now, and we all agreed that that would be heard and determined in March, and I’m very surprised by Mr. Brown’s position, but on the building height issue, I’d just like to quote from the Code, because it’s very clear. It says the vertical distance measured from the lowest portion of the natural grade of the building site coverage by the building or finished grade of a cut required to accommodate the building to the highest point of the structure. Now, this doesn’t say anything about fill areas, okay, and there is a diagram that shows a house on a hill, and there’s a lot of problems with that diagram, but we’ve given you case law that substantiates that you have to follow the language of the Code, not a diagram, and I also told you the last meeting, the only way to properly read that diagram and make it square with the language, very clear and unequivocal language in this Code, is to assume that that, what they’re showing you is a cut area, not a fill area. There’s nothing in this Code that says you can build wing walls and you can block up windows and you can fill and you can do everything you want to try and make 28 feet, and we think if you just interpret the literal language of the Code, it would send a message to this developer and everybody else who’s going to build in this Town, 28 feet is 28 feet, and we’re not going to put up with any games. There’ve been a lot of games played here. We’ve identified them before. We’ve showed how the dormers in the front were above 28 feet. We come back a month later after we complain about that, they’re blocked in. There’s concrete block put in what was going to be walk out doors. They’re now windows and they’re going to fill up to that area. If you allow people to play this fill game, they’ll play it until they make it work, and you end up with some very artificial lots, subject to erosion and all the issues that Mr. Underwood identified. I can’t think of a clearer cut zoning issue than this one, because all you have to do is read the language of your Code. MRS. JENKIN-There’s one other determination we are supposed to decide on tonight, and that’s the side yard setbacks, which then includes the wing walls. MR. WEST-That’s correct. MRS. JENKIN-And I think that that needs to be discussed as well, because that has a bearing on the building height. MR. WEST-Well, we continue to believe that the wing walls, because they chose to pour concrete walls, and affix them and make them part of the structure, that they’re part of the structure that violates the setback, and I’ll submit one more photograph which clearly shows the wing wall affixed to the concrete basement, and we think that that issue is very much before this Board. We think that having chosen to make it a part, a permanent part of the structure as opposed to some landscaped wall, that they have extended their structure, and therefore they violate the side yard setback, and we would request a determination on that as well. Thank you very much. MR. UNDERWOOD-I would assume that those walls, when those wing walls were put on, that was all one big monolithic pour done at the same time? The forms, I mean, I wasn’t there. MR. WEST-Actually what happened is once we started complaining about the building height issue, the foundation contractor came back and there was a small wall that was poured originally that was part of a monolithic structure or tied in through a concrete pour as you identified it Mr. Underwood, but what they did was they added significant height to it. MR. UNDERWOOD-I can see that on the south side here. MR. WEST-You can see where the original line. MRS. JENKIN-Are we supposed to give opinions now, or just discussion? 8 (Queensbury ZBA Meeting 3/26/08) MR. UNDERWOOD-No, I mean, we’re just discussing. MRS. JENKIN-Okay. MR. GLANDON-The other comment on those wing walls, if you treat building height properly, and deal with natural grade, the wing walls are not necessary. That’s what causes the horrendous side yard hills, that’s what’s causing the wash off into my property. If you do the height right, you can take the walls down. They don’t mean anything. They’re only there to scan the height. MR. WEST-That’s an excellent point, and if you interpret this tonight, the way Mr. Brown has interpreted it, that you can use fill to make the height limits, and you also interpret that these wing walls are not part of the structure, what you’ve done is set precedent in this Town, that any time you’re on a hill, you can build a wing wall, a very high wing wall, and fill up to that wing wall dirt or other fill material to artificially make the height determination. If you just apply the literal language of your Code and say 28 feet is 28 feet from natural grade, unless you make it lower in a cut area, then you have to be lower, then wing walls no longer become necessary because the games aren’t allowed under the Code. MR. UNDERWOOD-Any other questions from Board members at this point in time? Okay. I’m going to open up the public hearing, then. Anybody wishing to speak on this subject? Mr. Lapper? PUBLIC HEARING OPEN JON LAPPER MR. LAPPER-Good evening, everyone. For the record, Jon Lapper on behalf of Rich Solomon. I guess I’d like to start off, in the record last time, my associate Karla Bittner was here, and she submitted the case law about our client being the real party in interest because it’s the property owner. So I would ask that, I will try to be brief, but I would ask that I have more than five minutes, because we’re not here on behalf of the public. We didn’t get noticed originally and we didn’t know about this in November, but we ultimately learned about it. So my client is the one who has the permit that’s at stake here, and due process requires that we get to fully respond. I’d like to start off with the standing issue. What was discussed at the end of the last meeting, and I fully reviewed the minutes, was whether there’s been a determination about the two issues of Floor Area Ratio and the septic system, and what was agreed was that the builder would meet with Craig and Dave Hatin, and they did have a series of meetings to try and determine this, and what you have to understand is that the applicant here is just trying to play by the rules, and when there’s an interpretation made they’re going to abide by that interpretation by the Zoning Administrator, and in this particular case, they haven’t gotten to a determination yet. The area above the garage that Tom West was talking about is attic, and attic doesn’t count as living space, and that was now closed. So you can only get to it by going up through the garage roof, going through a door in the ceiling of the garage. So that’s certainly not going to be living space, and that’s what Craig’s going to ultimately determine, because that’s what he told the applicant to do. So all I’m asking on that issue, in another few weeks there’ll be a determination, and if the neighbors want to appeal that determination on the septic system, or on Floor Area Ratio, they’re certainly able to do that, but there’s nothing to appeal. To appeal there would have to be a calculation, and Craig would have to say this is what we counted, this is what we didn’t count. There’s nothing for you to rule on because there hasn’t been a determination, but what I want to assure you is that my client is trying to play by the rules, so that set of plans is what we believe will be determined by the Town to be 22%, which means that part of the basement space is storage and can’t be used. So the reason why they bricked up a window was when it turned out that if they went over, they had like four or five hundred feet of space in the basement that was still left to be used for Floor Area Ratio, that they were allowed to finished, and when it was slightly over they had to change the downstairs so that part of the basement is going to be an area to walk in and a bathroom, and part of it’s going to be storage, and so to prove that it was going to be storage, they closed in a window, because that was the best way to do it. So their goal is to modify the plans to comply, and the next time Craig makes the determination on Floor Area Ratio, I’m confident it’ll be 22%, but if they want to appeal that, that’s the time to appeal, because they have to have something concrete to appeal that has these calculations that you can rule on, and on the septic system, some of the correspondence I read from Tom, he’s talking about a 20 foot separation between the septic system and the home, that, we had this discussion with Dave Hatin last week, that goes for living 9 (Queensbury ZBA Meeting 3/26/08) space. The garage is not living space. It doesn’t count for the garage. I’ve dealt with that issue many times on other projects. So there’s not a 20 foot separation. So the septic system is fully compliant, and it is in natural soil, and that’s another determination. Dave’s already told us that he’s satisfied with that, but he hasn’t rendered that decision in writing, and when he does, the neighbors are fully able to appeal that to you, it’s just that it’s not ripe yet because there hasn’t been a determination to appeal. MR. BROWN-Well, that’s not appealable to this Board. If it’s a determination of the Building Code, that’s the Town Board. MR. LAPPER-Okay. The septic system, I apologize, that would be the Town Board acting as local Board of Health on the septic system. So that’s certainly not before you, and on Floor Area Ratio, you have to wait until Craig renders a decision. So what that leaves us with is the two issues of the wing walls, whether they count for side setback, and hw you measure the height in the Town of Queensbury. On the wing wall issue, the way Mr. West just described, he’d have you believe that this was done somehow to get around the height issue. Any time you build on a sloped site, whether the slope goes up or goes down from the house, you often use retaining walls, and in the definition of landscape in the Zoning Code, it talks about retaining walls for landscaping to hold back the hill. Craig’s determined this on many other applications that retaining walls can be used, that retaining walls are used. They’re not part of the structure of the house. They are retaining walls. In fact, as part of the building process, he asked that these retaining walls be increased in height because he wanted the slope to be more gentle than it was to begin with. So part of the reason why these are so high is to modify the slope, but that’s not to get away with anything. Everybody knows what the rules are. The house can be 28 feet high. They applied for this building permit last spring, and it was always the intention to be 28 feet high, and the only thing that happened was when Craig went out and said you’re 29 feet high, they changed the door on the lakeside and backfilled it so that the height of the house would be 28 feet. Their goal, it’s been a complicated site to build on, and it was alluded to that the site contractor did disturb more than they have to, and as a result we’re before the Planning Board for a major stormwater plan, but that was not intentional, and it’s unfortunate, because they’d rather not have to do a major stormwater management plan. The main issue I want to talk about is how you measure height in Queensbury. What Craig said tonight on the record and in the correspondence is the way it’s always been measured, and I just want to hand out, I know that you’ve seen this, the Figure One from the Code that has the definition. MR. UNDERWOOD-Craig, I have a question for you while he’s handing this stuff out here. Those initial poured walls there then, in the original plans that were submitted and approved by the Town, were they those short walls? MR. BROWN-Yes, I don’t recall, and that’s a note I made to myself here. Mr. Lapper referred to the fact that we requested the walls be increased. It certainly wasn’t me. I didn’t request the walls to be changed, and I doubt that it was the Building Department, but I can’t speak for them. I just know that it wasn’t me. Yes, they look like they’ve been decreased, but I don’t have the history on that. MR. LAPPER-Did you want to comment on that, Jim? MR. GARRAND-Quick question for you, Craig. With respect to retaining walls and the Code, what’s the requirement on the setbacks for retaining walls? MR. BROWN-There is no requirement. Take the retaining wall so that it’s not attached to the building. Move it 20 feet closer to the lake, and you want to go from property line to property line, you can do that. There’s no setback requirement. It’s a landscaping function. Whether it’s a poured concrete retaining wall, a row of stones, it’s, you know, dry laid stones to create a wall, a retaining wall does not have a setback requirement. MR. UNDERWOOD-Why is it, though, when we’re dealing with CEA’s, that we have that 18 inch height on retaining walls? I mean, there must be a specific reason for that. MR. BROWN-Yes, it’s 16 and it’s a seawall, and I’m sure that it was put in the Code so that you’re not filling near the shoreline, and there’s certain wildlife issues to deal with, and you don’t want to have retaining walls that are over a certain height along the water. MR. UNDERWOOD-I mean, the only other retaining wall that I recall that we’ve dealt with, and a lot of us have been on the Board long enough to remember this, was Bob Wall’s property there on Antigua Road, remember we had a retaining wall on that garage in the back there that we had to deal with at that point in time. That’s the only other one 10 (Queensbury ZBA Meeting 3/26/08) that I can recall. Well, I think it would be interesting to see as to what was on the original plans. So I would like to see those original plans and see what the height of those wing walls were at that point in time. Because it’s going to have a lot of bearing on our decision if it ends up that those original approved plans had 18 inch walls that they appear to be on that picture there, and then it was artificially increased by adding probably another three and a half or four feet higher up on there at that point in time. I don’t know who signed off on that or who said it was such a great idea, but, you know, I think the Planning Board, when they looked at this before, was kind of upset with that, were they not? MR. BROWN-That’s a fair assessment. MR. UNDERWOOD-Yes. Okay. MR. URRICO-Can I ask Mr. Lapper and Mr. Brown, just to refresh my memory, why does the Stop Work Order exist? What triggered that? MR. BROWN-The overdevelopment of the site, too much clearing without a stormwater management plan, stormwater management plan. MR. LAPPER-There was the stormwater. MR. BROWN-They didn’t have that in place at the time. So rather than allow them to continue anything, get their attention, stop the work, and go to the Planning Board. MR. URRICO-Okay. MR. LAPPER-This, originally, was less than 5,000 square feet of disturbance, or less than 15,000, excuse me, so it wouldn’t have required a major stormwater plan. MR. UNDERWOOD-So is that because the rear of the property, that’s more? MR. LAPPER-By the lake. MR. UNDERWOOD-And the forefront because of all the vegetation that got taken down? MR. LAPPER-I just saw a photo that shows a lot of vegetation, but the only, the issue, it’s all been, I think it was sodded. The area that was disturbed before the winter, they sodded it so that it would be established as a lawn, so there wouldn’t be any issue of sedimentation, so that area of extra disturbance has been remedied, but it has to go before the Planning Board for their blessing. MR. UNDERWOOD-Craig, what was the original, what was originally proposed for the rear of the property, the part that’s in contention, that is that area above the garage there that’s two stories now. I mean, that originally came in as a single story, as you recall? MR. BROWN-The connector between the garage and the two story house was originally proposed as a single story connector, and the access to the area, it was going to be a storage area above the garage, I believe it was through a staircase, either, yes, it must have been in the garage, yes. MR. UNDERWOOD-Okay. So that was an addition, that whole carrying it all the way across from one roofline over to the garage roofline. MR. BROWN-Was a construction change during construction, yes. MR. UNDERWOOD-All right. MR. LAPPER-And when it was determined that that couldn’t be done, it was closed up and the stairs, I don’t know if the stairs were ever constructed. MR. BROWN-No changes in the building have occurred since we’ve issued the Stop Work Order. We’ve met with the applicants two or three times on the site, and listened to their offered remedies and discussed the options with them, and what they’ve propose to do, I think in, probably in these plans, is remove any way to get to the area above the garage except through a regular pull down set of stairs in the garage and reconfigure probably now in these plans again the basement, so certain portions of it don’t meet the Floor Area Ratio requirements. None of those changes have occurred yet, but once they get a determination, and we lift the Stop Work Order, then they could go back to work. 11 (Queensbury ZBA Meeting 3/26/08) MR. UNDERWOOD-So as it now exists, there’s probably a door entryway into that second story, so you’ve got through way all the way to the garage? MR. BROWN-There absolutely is. MR. UNDERWOOD-So I mean, the only real remedy would be to stud it up and put some sheet rock on there, over the door opening. MR. BROWN-That’s what they’re offering, yes. MR. LAPPER-And that’s what is in the plans, but I misspoke. That couldn’t have been done yet because there’s a Stop Work Order. So until we come to terms, but it’s going to be 22%, and we believe that that’s what those plans show. MR. UNDERWOOD-I understand. MRS. JENKIN-So the space will still be there, but it will be empty space? MR. BROWN-Again, these were handed to me tonight, but my guess is what’s going to be proposed is unfinished, uninsulated bare studs, plywood floor, storage room above the garage. No windows, no doors, no access to the house, pull down stairs in the garage. That’s what was discussed. MR. UNDERWOOD-Storage area above that cross way also. MR. BROWN-Storage area above the garage. Above that, I think there’s a bathroom or a closet in that area. MRS. JENKIN-Well, then that’s Floor Area Ratio. MR. BROWN-Correct, over that connector way, but nothing over the garage. MR. LAPPER-The bathroom is floor area. MR. BROWN-Absolutely floor area. MR. LAPPER-And that’s going to count towards the 22%. The bathroom is part of the living space of the house, not the storage area above the garage. MRS. JENKIN-And part of the basement is not considered Floor Area Ratio now either? MR. BROWN-Well, we haven’t landed on that one yet. MR. UNDERWOOD-I think that’s going to be questionable, too, because with the walkout basement, it’s going to be very difficult to not count it as, you know. MR. BROWN-Yes, I think, again, I think these plans are going to reflect a portion of that basement as Floor Area Ratio area, yes. MR. UNDERWOOD-All right, any other questions for Mr. Lapper at this time? I think we’ll open up the public hearing. MR. LAPPER-I didn’t finish. I handed this out. So what I want to point out, Tom West read the definition, under Building Height, and he stopped when it talked about finished floor, versus natural grade, and he referred to this as a figure and said, a diagram isn’t as important as language, but if you look at this, this actual has language, and this is how it’s always been explained to me that the Town measured, and this, as far as I know, this is how the Town always has, and what this says is Building Structure Height, the distance measured along a vertical plane from the highest point of a building or structure to finished grade at any point adjacent to the building or structure, and as measured at any point adjacent to the structure along the same contour. So the highest point to finished grade, and that, this is a separate definition. It’s a little bit different than the definition that he read, but our Code has two definitions in it, and this definition is a definition from the highest point to finished grade. That’s how Craig has said it’s always been interpreted, and I’m pointing out that there’s two different definitions in the same Code. I mean, it’s not a good result and somebody should do something about it, but for right now, if there’s two definitions, the one Craig’s been applying this, his predecessors have been applying this, and what the law says, and I have a couple of cases, since 12 (Queensbury ZBA Meeting 3/26/08) zoning laws are in derogation of the common law, they must be strictly construed against the parties seeking to enforce them and quote any ambiguity in language employed must be resolved in favor of the property owner. That’s a recent Third Department, Appellate Division case, and I also have, and that’s called Matter of Orenstein versus ZBA of Canaan and I’ve got the 1976, that one is 2007, and the 1976 that this all comes out of is Allan vs. Adami, and I’ll just hand these in to have them in the record. MR. UNDERWOOD-What’s the finished grade estimate of height from the finished grade in the forefront of this property on the Critical Environmental Area in front, Craig? What would you estimate the height to the top of the building? Because I mean I think what we’re looking at here is you’re looking at a side grade. You’re looking at with the grade in the front, the finished grade in the front, and I think that, you know, if you look at this picture here, that’s the real grade over there. You can see the neighbor’s grade over on that side of the house. I would interpret that as natural grade here. Obviously you’ve increased this grade over on the side, the side grading has been added on to at that point in time, and I think you need to make a determination. You’ve got two different grades here, and the critical element here is not so much the side grade as it is what it looks like from the shoreline. MR. LAPPER-And from the shore, it is 28 feet. When you’re looking at it, it’s 28 feet from the peak of the highest point to the foundation. MR. UNDERWOOD-To the ground. MR. LAPPER-Twenty-eight feet. MRS. JENKIN-No, not the highest point, to the highest point of the dormer, because it’s. MR. LAPPER-That’s right, it is to the highest point of the dormer. MRS. JENKIN-It’s adjacent to the building. It’s not the highest point of the building. MR. LAPPER-You’re right, but what you’re showing me, Jim, of course I know you’ve all been there. The site slopes down towards the lake. So that grade going up the side is really what the grade was because it’s sloping down to the lake, but they had to backfill after they put in, of course it’s fill, but they had to excavate to put in the foundation and they backfilled next to the foundation. When it goes up the side, it is backfilled, but it replicates the grade coming from the road down to the lake. It’s still, there’s nowhere that it’s more than 28 feet. MRS. JENKIN-You can say that that is, the way they graded that, with the retaining walls and the fill that they put in there, to bring that fill up, is the same slope that was there originally? MR. LAPPER-No, but I’m saying that you have to. MRS. JENKIN-Yes, you just said that. MR. LAPPER-But you have to manage the slope. It does the same thing. MRS. JENKIN-They’ve changed the slope. MR. LAPPER-Yes. MRS. JENKIN-Made it higher. MR. LAPPER-But that’s how you deal with constructing on a slope. You have to hold back with retaining walls. There’s nothing unusual about that. MRS. JENKIN-But you said that they bring it back to the natural slope of the hill, and it is not the natural slope of the hill now. MR. LAPPER-It was a pretty steep slope to begin with, and what you’re looking at, the backfill, goes from the height of the road to the height of the lake. So it’s got to, it’s graded. It’s, you know, manmade, but it goes from top of the hill to the bottom of the hill along the side of house, on a diagonal. That was my point. MR. UNDERWOOD-All right. I’m going to open up the public hearing and allow the public to speak on this issue, the issues that are before us here, and I want to remind 13 (Queensbury ZBA Meeting 3/26/08) them that the issues that we’re specifically concerning ourselves with are the confirmation as to the Floor Area Ratio, and that’s still, a correct determination as to that is still pending based upon these plans that were submitted here this evening. Secondly, it’s up to the public to give some commentary, also, on the proper interpretation as to what the Code Book means by grade, natural grade, versus filled grade as has been done here on this project here, and the other issue I think that was brought up by the people who are appealing this here this evening are was the driveway access, which is kind of beyond our purview here. I guess we’ll wait to see what their decision on that. I don’t think that, this evening, I’m not sure if we’re going to render any decision here, but I think we’ll allow the public to speak. MRS. JENKIN-And the side yard setback, too. MR. UNDERWOOD-Yes, and the side setback issue also, as to whether we think those walls that were added on. I am going to ask for a determination from you, and that is that before the next time we meet, I want a clarification, I want a copy of the original plans that were stamped and dated by the Town Building Department. I want to see what those wing walls looked like at that point in time, whether they were the full height that we have here now, because if it looks like this was a band aid attempt to bring this height compliance issue, you know, to negate that, I think that’s going to have bearing on our decision here. MR. BROWN-We can certainly do that. This is the actual file here. I don’t have copies for everybody tonight, but I think what might be a useful tool, and whoever the project engineer is will follow me on this, some sort of a cross section, both, we’ll call it north/south through the house, and east/west through the house, that shows original grade versus the constructed building, so you can see what the natural grade was and I’m not sure that’s what that’s going to tell you, other than where it’s been cut and where it’s been filled. So, that way you can see how close to the original grade this house was placed. MRS. JENKIN-So you can do that? MR. BROWN-Based on the topography that was done before construction, you can generate what that elevation is or was through the house area and superimpose the house on that so you can see where it sits, versus natural grade, and I think if you ask for that, the property owners can supply that for you. MR. UNDERWOOD-Okay. Anybody wishing to speak on the issues here? Mr. Navitsky? CHRIS NAVITSKY MR. NAVITSKY-Good evening. Chris Navitsky, Lake George Water Keeper. I will try to stick to the points that you are. Hopefully I won’t deviate. First point I wanted to bring up, and I’ll put some more photos in the record, talk about disturbance, exceedence was not intentional. I’ll show some more photos of the grades on the site. These photos were taken the Friday of Memorial Day when we first alerted Mr. Brown of the disturbance out there and the extent of it. I don’t think they could disturb anymore of the site than what they initially did. So if I could submit these for the record. It also gives you an idea of what the existing natural grades were before they even started excavating for the footings. One other, and this is not the first time that I’ve felt that the Town, this is in the Adirondack Park. The Town of Queensbury does have a local land use approved plan by the APA. However, I’d like to submit into the record what the APA’s determination and methodology for measuring height is, and it does, it’s not the first time I felt that there’s a discrepancy with the way the Town does, and I’ll submit this, but it says the agency measures height from the highest point of the structure to the lowest point of existing or finished grade, whichever is lower, and I’ve highlighted that, and then they also talk about structures supported by fill. Where a structure is supported by fill, height is generally measured from the highest point of the structure to the original grade directly beneath the structure. So, these are right off the APA’s website. It’s not the first time that I’ve disagreed regarding the alteration and unnatural building heights along structures to apparently lower the actual height from grade. So if I could submit these also, and again I question, it appears that plans are being submitted and discussed and prepare a plan that is compliant with Code. That just boggles me. You’ve got a plan. They’ve constructed a building, and is that building compliant with the Code or not? You don’t build a building and then make it compliant. It should be compliant before it gets built. I’m just boggled by it, and I won’t get into the septic issues, because I just do not know how they can put, the existing grades are 30% there. So, if they’re putting the 14 (Queensbury ZBA Meeting 3/26/08) septic system at existing grades, they can’t do it, but we won’t go there. So, again, building height, give you some more information on natural grades, and then you don’t build a structure and then make it compliant. It should be compliant before it gets built. Thank you. MR. UNDERWOOD-Thank you. Anybody else wishing to speak? JOHN SALVADOR MR. SALVADOR-Good evening. My name is John Salvador. I’m a resident in North Queensbury. I’d like to speak to the issue of building height. I disagree with Mr. Lapper. There is only one definition in the Town Code for building height, and it’s in that Section of 179-2-010, which is entitled Word Usage, and with regard to that Section, and I’m repeating a bit with what Mr. West has already said, but I’d like to reinforce it, because I agree with him wholeheartedly. That sentence that defines Building Height, if we could read that in two parts because there’s an or in there. It says “or”. It doesn’t say “and”. The vertical distance measured from the lowest portion of the natural grade of a building site coverage by the building, period. That’s one way. The natural grade, okay. The other way you can read it, the second part of the sentence, the vertical distance measured from the lowest portion of a cut required to accommodate the building, and as Mr. West pointed out, there’s no mention in there of fill. So I just believe that the Zoning Administrator has got a, just a very poor interpretation of what the Code says, and think of it this way. The purpose of having this building height in there, it wasn’t always in our Code, but it came along because there was great concern about excessive heights on the lakefront, and so we put this in our Code, and the purpose of it is to limit the heights of the buildings, to limit them, not find ways to escape and make them higher. If Mr. Brown is correct that we can manufacture grade, then the Code really has no meaning. It has no purpose. So, I just feel very strongly about the fact that this should be, his interpretation should be overturned. Retaining walls. Retaining walls are engineered items. They have to be designed properly to prevent overturning, sliding, uplift, as frost protection, and that they’re not, that they’re in a category with sidewalks and these other things that Mr. Brown mentioned is, it just doesn’t make any sense. Those wing walls or retaining walls or whatever they are, they have to be approved by the Building Department, and they have to be inspected, and they have to be certified, and if they’re not part of the structure, they play a very important role in this whole project, because they support the fill that’s used to measure the building height. How can you say they’re some kind of a temporary thing that doesn’t require any kind of regulation? With regard to the Floor Area Ratio, the subject of the garage, by golly if that garage is not going to be used for anything like living space, then let’s not have a floor in it. If it’s not going to be counted as Floor Area Ratio, then no floor, and we can design that roof structure so that it can’t carry a load on the bottom cord, and I believe that when all is said and done and you’ve come to an agreement of what you’re going to have here and what you’re going to allow, that this should be reduced to deed encumbrances. Lord knows what can happen to a structure like this in the future. So, that would be my suggestion. Thank you. DON KRUGER MR. KRUGER-My name is Don Kruger. I live at 3 Osprey View in Queensbury, New York. I’m a site work contractor and a builder, and although I enjoy Mr. Salvador’s friendship and a lot of his comments, I have to respectfully disagree with him. For anybody in this room to have to build a home and be limited to the original grade is necessarily, unnecessarily handicapping anybody. Jim, your house, if you had to build the existing, you mean to tell me you can’t go up and down? It has to be with what’s finished. If an architect or builder determines that they want to bring the house up or down, it’s 28 feet from finished height, that’s reasonable. To say from the original height is unnecessarily handicapping. If somebody wants to bring in five feet of fill and put their son or daughter’s house on it, why shouldn’t they be allowed to do that? It should easily go from finished grade. To interpret as from original grade is unnecessarily handicapping people, and it’s setting a terrible precedent. MR. UNDERWOOD-Anybody else? PETER BROTHERS MR. BROTHERS-Good evening, Peter Brothers. I concur entirely with what Mr. West was saying earlier, and I guess I find the conduct of the Zoning Administrator with this application reprehensible, and I would ask that when looking at this information that you follow through and do what is right for all concerned. We live south of this area, and 15 (Queensbury ZBA Meeting 3/26/08) quite honestly, even though there hasn’t been much discussion about the septic system this evening, but quite honestly, you know, walking by there, I just don’t know where you can put it, and I don’t want to be swimming in somebody else’s wastewater. Thank you. MS. GAGLIARDI-Excuse me, sir, could I get your name for the record. MR. BROTHERS-Peter Brothers. MR. UNDERWOOD-Anybody else? ED ESPOSITO MR. ESPOSITO-Good evening. I didn’t know we were going to have another chance to answer to the Board, but my name’s Ed Esposito. I worked on some of the plans, the grading plans, and if I could, I’ve got some of the response items that will be submitted to Craig’s office, and, you know, the presentation that I had is in a PowerPoint format that was geared towards the Planning Board responses, but there is a Stop Work Order on 67 Knox Road. Some of the plans regarding the elevations of the look of the building, and we’ve got a nice photographic assessment of what it was, not just before the backfilling, I mean, the final form of the retaining walls being cut down and being landscaped in stone face. I think the retaining walls, I was directed by the owner in response to Bob Glandon to have a Hemlock tree out his kitchen window, to change the deck stairs into a spiral stairs, away and around the back side of the lake and not so much be on the south side, and to show that these retaining walls would be cut down to grade, and to actually try to demonstrate, as Craig mentioned, the sections north to south and east to west, and I have these, but I don’t know what’s the most appropriate time to show them to you and at what length, if I’m going to be restricted to five minutes. MR. UNDERWOOD-I would think if you’ve got a PowerPoint project that you’ve already prepared for the Planning Board, you know, it’s something that we would probably be willing to take a view of also, because at the same time, you know, I don’t know what was originally intended, you know, and when I get a chance to look at those original stamped plans there, I’m going to have a better idea of what that was, but if these walls were increased in height at some point along the way there, there has to be a good reason for that, you know, and I hope it’s just not to cover up the height of the building, but maybe you can shed some information on that, or some light on that. MR. ESPOSITO-Well, I know I did the original set of documents, and the grading plan began as a driveway grading plan. We have a very elaborate, it looks like a commercial building site underground storage chamber for the stormwater, and the site, we’ve been making inspections for all these things, and they are still on holding back the reins. We have, when it was viewed as a major project, the site is performing the original intention of the Site Plan with the stone filter beds that do, are working, the sod and the diversion ditch. I’ve got a letter from Dave Wick at Soil and Water Conservation that, you know, when we did the walkabout, we’re stabilized. He said you could take down your silt fence at the lake. We’ve got a good 35 foot buffer. They did keep all the indigenous species. They started doing the planting. So I have a different perspective. I look at, as with what Don Kruger had mentioned, the finished product. These people stopped dead in their tracks in construction, where a retaining wall that was going to negotiate the grade at the front of the site, I’m looking at a total section here, I don’t know if anyone received this. What to do with 33 feet is a 10 foot offset from the property line, a 10 foot wide absorption bed detail, and 13 feet to the building, but it’s got an eight foot grading wall there. This site needed retaining walls. The wing walls, as they were, were to provide backfill to the foundation design. So we had a foundation engineer look at everything. We still have a new engineered wall we’re waiting to resubmit to the Town Engineer, and I can personally say, after testing the soils, with an environmental group, as the second test feature, this is a working feature along this section is to get a working septic field. A State rated, approved, you know, there’s several certifications for the stormwater management that has occurred. There’s no erosion to the lake, and we’ve got letters from, as I mentioned, Soil and Water Conservation and Saratoga Sod that say this is the best, you know, feature for there, and we’ve got photos along other properties being developed with no silt fence, disturbance right up to the lake frontage, and we’ve got a good, healthy buffer. MRS. JENKIN-But we’re not discussing this tonight, we’re discussing the height of the building and the retaining wall. MR. ESPOSITO-The height of the, the final height of the building, if I could provide to the Board the north/south section, the east/west section that does show the relationship, the 16 (Queensbury ZBA Meeting 3/26/08) dashed line of the existing grade and the proposed, you know, I have these if you need that, if it’s helpful to your decisions. MRS. JENKIN-Is that the same as the original plans? MR. ESPOSITO-Yes. It’s the original grade that showed the contours from the road, and how, virtually, the photographs show that the only 12 foot of that home from the road. That home, visually from the lake, we’ve taken pictures from the boat looking back, and we’ve taken pictures of some of these good people’s homes from the lake. So I’m of a different perspective, but that I can assure you, we do have engineers for the building. We’re not trying to get clever changing any of the plans. What had transpired is a definite response to the neighbors. There was, we have several Site Plans as a shared driveway alternate, but I hear a lot of legality of who’s, you know, that’s still not determined on the driveway, and regarding. MR. UNDERWOOD-Okay. I’m going to have to cut you off for now. MR. ESPOSITO-Okay. MR. UNDERWOOD-All right. Anybody else wishing to speak? Okay. Mr. West? MR. WEST-Thank you, Mr. Underwood. Again, for the record, my name is Thomas S. West, The West Firm, PLLC for the appellants in this proceeding. I’ll just briefly respond to a couple of points that were made. You made the comment, or interposed a question as to whether the wing walls were used to elevate the grade, and clearly they were, all right. Just so you know, the wing walls were originally built at a very low elevation. They backfilled up to that point. At that point in time, there were two windows, one on the north side and one on the south side, that were clearly going to be basement windows. When we complained to the Building Department about the height of the structure being more than 28 feet, the next thing we saw was they filled in some fill and they boarded up the windows. Then the next thing they came is they took the short wing walls and made them into monsters, okay, just as you’ve seen in the photos, and then they filled up the grade against the boarded up window even further, and when we complained about the boarded up window and said that if that’s going to be a window well, you have to measure down to the bottom of the window well, and it’s still at variance, they then put in concrete block. So this has clearly been a moving target. Secondly, you asked the question of what is the height from the front, and what is the height from the front of the building in the Critical Environmental Area? Well, if you were to apply the APA measurement techniques. If you were to look at the cut area in the front of the house, all the way to the peak of the roof, and not apply this slant rule, okay, it would be about 35 feet high, okay. It’s the only three story structure on Assembly Point that I’m aware of, okay. So I look forward to the PowerPoint, and PowerPoint’s can make things look pretty, but this is a very tall building from the lakeside. Mr. Underwood, you said that the critical grade is from the lake. We agree that that’s a very critical view for the public’s purposes, but for the Glandons, who live to the south, and the Rosenburgs who live to the north, it’s just as critical what they said, and that the 28 foot height limit be adhered to. Now, I’d like to close by going back to the Code. I’m glad, after 30 some years of often being at loggerheads with Mr. Salvador, we finally agree on something, and if you look at the Code provision, I’m going to hand you my copy because it has natural grade in quotes and finished grade of a cut in quotes, and it’s underlined, okay. It’s not ambiguous language, as Mr. Lapper would like to think it is, nor does the diagram render it ambiguous, and why is that? Well, first of all, the diagram says see Section 179-2-010, i.e. referring back to the provision I just handed to you, and it says building structure height, the distance measured along a vertical plane from the highest point of the building or structure to finished grade at any point adjacent to the structure. Well, Mr. Lapper says that this is a different grade to be considered. I would ask you, is there any place in the Code where finished grade is defined? It is not. So the only place that finished grade is mentioned is in the provision I handed you, which very specifically says finished grade of a cut area. So there is no ambiguity between the diagram and the language of the Code. The language of the Code controls. The diagram has to be interpreted that finished grade, as it appears in the text under the diagram, means finished grade of the cut area. Anything else would be to create an ambiguity where none exists. Thank you very much. MR. UNDERWOOD-All right. What’s the pleasure of the Board? Do you want to render a decision this evening, here, or do you want to? MR. LAPPER-Jim, could I rebut for about two minutes? 17 (Queensbury ZBA Meeting 3/26/08) MR. UNDERWOOD-Yes, sure. MR. LAPPER-The definition of Building Height in the Code right here is the one that Mr. Salvador and Mr. West were reading, vertical distance, blah, blah, blah. Turn to the next page is the page that I handed you. So at the end of that definition it refers you to Figure One, and Figure One refers to finished grade, and it doesn’t say finished grade of a cut. It says finished grade, and I want to explain that one of the speakers was talking about this, how everything has always been measured in Queensbury. When you do a Site Plan, let’s say for a commercial building, you have a cut and fill plan. If you have a site that undulates natural grade, if you weren’t allowed to alter that, you’d always be, you’d have to put it at the lowest point, wherever that is, and when you design for stormwater, when you design a Site Plan, you have to re-grade, you have to change the grade. So if that were the case, that we weren’t talking about finished grade, then probably every Site Plan that ever came before you wouldn’t be measuring from natural grade, they’d be measuring from finished grade, and every one would require a variance on height before you went to the Planning Board to do a Site Plan on any project that had a cut and fill plan. It’s never been interpreted that way. What I showed you on the second page of this, the finished grade is what’s always been done, and it’s been done not only because that’s practical, but because the Code has the second definition, and I’m assuring you that a court would interpret this way because if you have two definitions, the one that’s the more relaxed is the one under zoning that’s going to apply, but there’s nothing remarkable about finished grade. That’s how all buildings are designed, and that’s how it’s been, and that’s what Craig said. MR. UNDERWOOD-Let me ask you a question, then, because if you go into any subdivision that’s ever been created here in this community, if you’ve got side lot, you know, from one house to the next house to the next house, as you go along, can you explain to me where there are any examples in Town of deviations in grade between those lots, next door to each other? And I’m thinking in the case of Shore Colony houses we’ve built out there, you know, I’m talking about Takundewide, places like that. In every single instance, there’s an attempt to maintain natural grade. There’s a reason for that, is there not? MR. LAPPER-When you grade a house, you have to grade away from the house because you don’t want the stormwater to drain into the basement, and when you’ve got two houses next to each other, you often build them up at the houses, and you drain them down, so that between two lots, there’s a low area on the property line, so that the stormwater will collect on the property line and channel usually backwards away from the road, sometimes towards the road, but all that is done as natural stormwater grading, stormwater management, when you build a structure. MR. UNDERWOOD-Well, what does the Code book say about creating grades that drains onto somebody else’s property? I mean, that’s not allowed, for a good reason. MR. LAPPER-Well, the stormwater has to be managed. It has to be infiltrated, but you have to channel it, you have to collect it, and you have to put it into an infiltration basin. It’s always managed. It doesn’t just happen because there’s an undulating lot and you go figure out where the lowest point is and that’s where you site your finished floor. You site your finished floor where it makes sense for the lot, for the driveway, for the road, and you grade around it, and it’s always been done that way, and it’s based upon the provision in the Code. We have neighbors that are obviously unhappy. A lot of stuff, the reason why things have changed is because my clients have been trying to work with the Town and work with the neighbors and change the plans to try and satisfy everyone. We changed the driveway location a whole bunch of times. We continue to do that. I think the next time we’re here, because I get the sense that you may not vote tonight, Craig will have a determination. Certainly we’ll be back on the issue of Floor Area Ratio, and I think you’ll see that we’re at 22%. The goal is to comply with the Town Regulations, and height as well. Thank you. MR. UNDERWOOD-Okay. I’m going to ask the Board, do you guys want to deal with this tonight, or do you want more information? I mean, we still have not dealt with the full determination as to the Floor Area Ratio question. MR. URRICO-I would like to see the original plans. It will answer a lot of questions. MR. UNDERWOOD-Do you have those original plans, Craig? 18 (Queensbury ZBA Meeting 3/26/08) MR. BROWN-I do, but I obviously don’t have copies for everybody. We can have that for next time along with a determination on the Floor Area Ratio. Will there be an appeal of that decision at that time? I don’t know. Probably, I would guess yes. MR. UNDERWOOD-Just for the Board’s curiosity, I just want to look at the plans for a minute. MRS. JENKIN-Craig, I have a question about that, too. If we’re looking at the original plans, and your determination is made from the original plans, then if they introduce revised plans, and it’s not compliant, and they introduce revised plans, so that they are making it compliant, one of the speakers said that you don’t make, you make your house compliant to the Code, you don’t make your, the Code compliant to the house, and that just kind of. MR. BROWN-Yes, I agree with that. I think we’ve got a unique situation here where a building permit was issued for something that was going to work with the Code. That’s not what was built in the field. The applicants started with these plans and ended up with something else, and now we have the end product, and how do we get them back to something that’s compliant? Well, a couple of routes. You modify the building, or you seek a variance from this Board to make what you’ve done compliant, if it’s out of compliance. The first route that we’ve taken is modify the building. Whether modification means cut the roof off or chop an addition off or eliminate square footage, it’s an attempt to make it compliant. If they can’t achieve a compliance that way, and they’re still in need of relief, they’re going to be told that they need a variance, and they’re likely going to be back before this Board asking for permission. Will that be granted? MR. UNDERWOOD-Just for the Board’s, this is what I’m going to require before the next meeting. I want a full set of the original stamped plans provided for all the Board members, because I’m looking at these plans here and I’m seeing the cellar windows, I’m seeing the exposed foundation of the house on both sides, both the north and south sides of the house there. I don’t see the wing walls anywhere on these diagrams. There’s no wing walls anywhere on the approved plans. MR. BROWN-On the Site Plans they’re on there, not on elevation drawings. MR. UNDERWOOD-Not on the elevation drawing, they’re not included in there, but I’m looking at the decks here. I’m looking at, you know, trying to get an indication of what I’m seeing here, but I’m seeing a significant deviation here from what was originally done. I mean, it shows all the underground structures, you know, where these are, and it would be easy to get a height of what those walls were based upon those structures here, but I don’t even see anything in there. So obviously they were not ever engineered or thought to be part of the process or part of the, part and parcel for the project initially. MR. URRICO-Just to recap where we are. We’re still in the process of ruling on an appeal that was made to us in November, on a situation that exists on these plans on this house, and since there’s been a Stop Work Order since then, nothing has changed. So basically what we have before us is this Appeal, and the Appeal is based on the Floor Area Ratio and the height and the side setback. So we have to keep that in mind, because that’s what we’re still working with. MR. UNDERWOOD-Do we want to make a decision this evening? MR. URRICO-I want to see the plans. MR. UNDERWOOD-Okay. MR. WEST-Mr. Underwood, again, for the record, Thomas S. West, The West Firm, PLLC. If there is not going to be a decision tonight, can we have, as part of your motion, to put this over, a directive that the Stop Work Order remain in effect until this comes back before this Board? Because we do not want to be in a situation where we find that the Building Department lifts the Stop Work Order because under those circumstances we’ll have to go to court and get a TRO, and it’s going to get very messy, and we have no problem with this Board taking what time it needs to make these difficult decisions, but we want the Status Quo preserved. MR. UNDERWOOD-Craig, what’s the timeline for the Planning Board to look at this again? Are they going to look at this next month? 19 (Queensbury ZBA Meeting 3/26/08) MR. BROWN-I don’t think they’re back on until this Appeal is determined, yes, and the Stop Work Order will not be lifted under any circumstances until this Board has ruled. MR. UNDERWOOD-Okay. Then I guess what I’m going to do is look for a tabling motion here, this evening, on this issue. I would think that we’re all going to be provided with copies of the original stamped plans by the Town for this project, and that’ll allow us to render a decision as to the request here. MRS. JENKIN-So then our decision is on the original plans. MR. UNDERWOOD-Absolutely. MR. URRICO-It’s on the original Appeal. MR. UNDERWOOD-The Appeal here is based upon what was originally thought of here, and it seems to me that we’re starting to see a sequence of events here where we’re looking to cover up errors in judgment, you know, as to who made those errors, I’m not going to rule on that or if indeed those were errors that were done deliberately or they were done, but it seems to me that we’re looking here at some significant deviations from what was originally proposed on the project, and how it got off on this tangent, I don’t know, but. MR. BROWN-And again, just to clarify, if I could, it’s no so much, the determination wasn’t so much based on the original set of plans as it is to what’s actually there in the field. If they varied from the plans and it was still in compliance, then that would be the determination, or if it was out of compliance, that would be the determination. So ideally you follow the plans. In this case they didn’t, and we’re working with what’s there right now. That’s why I suggested, if you can get, and I guess Mr. Esposito said that he’s prepared the cross sections that show the original grade of the site before any disturbance, superimposed with existing house as it was constructed, then you can see, if you’re concerned with do we measure from cut or fill or original or natural, that’ll tell you where it should be. MR. WEST-Could we also have an understanding that Mr. Brown will respond to our January letters where we interposed a series of questions? I understand some of those issues may be resolved by your determination on Floor Area Ratio or whatever, but we think we’re entitled to fulfillment of the procedures that were agreed to at the last meeting. We carefully crafted a series of questions that go to significant code compliance issues, based upon the original plans and the building as constructed. We think we need those answers on the record, because we do think it does demonstrate the pattern of attempting to cover up violations here. MR. UNDERWOOD-With the new information that you’ve been provided this evening, Mr. Brown, do you think you’d be able to provide some answers to these people, reasonable answers? I mean, maybe not answer all their questions but I would think that most of them could be resolved given the new information you have received. MR. BROWN-Absolutely. MR. WEST-Thank you. MRS. JENKIN-The thing I, Craig, if you don’t mind me going back to this again, I’d like to be very clear about this. Because if we are making a determination on the original plans, and the elevations of the original plan, you made your determination on at site, after the changes have been made. So they won’t be the same. MR. BROWN-No, what you’re going to find, and I can tell you now before you even look at these original plans, is what was proposed isn’t what’s on the site. There’s no question about that. MRS. JENKIN-That’s right. So we can’t make a decision on the original plans because it was changed. MR. UNDERWOOD-I know, but I’m just saying this. In other words, the Town always believes that people act in good faith. When you issue a building permit to any person in this community, you’re issued a building permit for those plans. If you deviate from those plans, and there are problems, in other words, if you make, if the Zoning Administrator makes determinations that a building is not in compliance, it doesn’t matter what you do from A to Z, in other words, in this case here, they were supposed to do Plan A, instead 20 (Queensbury ZBA Meeting 3/26/08) they did Plan B, and it looks to me like there’ve been all these band aid attempts to try and minimize the difficulty. MRS. JENKIN-But we’ll be determining it on Plan A which was in compliance. So that’s not going to be the same as what happened in the field. MR. UNDERWOOD-I think at the same time, though, we’re going to make our decision based upon his interpretation as to what’s, you know, what’s in the Codebook, and those are the two issues of the Floor Area Ratio, and also the height of the building, all right, but you’re going to look at the whole train of events that lead up to where we got to, to get to that issue. MRS. JENKIN-But we won’t see what is on the site. MR. UNDERWOOD-You will see what’s on the site. MRS. JENKIN-In the plans. MR. BROWN-What you may want to request, and you can certainly seek whatever information you want to, but what would seem to me to make a lot of sense is to request the applicant provide you with as built drawings of what has been constructed, both of the structure and of the site. MRS. JENKIN-Then it will be comparing apples to apples anyway. Because that’s what you have made your determination on. MR. BROWN-That’s correct. MR. UNDERWOOD-Right, but at the same time, I think that we’re going to be looking at, in other words, if we had followed the plans, would it have been compliant, you know, I mean, if they had stuck to the original objectives. MRS. JENKIN-Well, that’s the way they got the Work Order approved, because it was according to. MR. UNDERWOOD-Well, and this is part of the problem, because, you know, this happens time and time again, you know, you go out in the field when the project is three quarters complete, and make your determinations, I don’t understand why no one picks up on this beforehand. The Building Inspectors are out there inspecting the footings. They’re inspecting the framing on the building and things like that. I mean, it seems to me that we always get to this point where, you know, it’s already done, and then we’ve got to deal with it like we’re the bad guys for somehow pointing out that they deviated from what they were supposed to have done. MR. BROWN-Yes. Not to get too far off track, but the simple answer to that is our inspection process is very much similar to what you just explained. You inspect the footings and the foundation, and then you’re not required to go back to inspect any of the building until you get to the framing inspection, which means the building is built, and that’s when you discover, hey, wait a minute, this is too big or too small or too close or too narrow. That’s when you make those decisions, and a lot of times you’re right. We do find that after the fact. MR. UNDERWOOD-I would also like a determination from you. I want your interpretation, in other words, you looked at those initial plans there and you know what the height of those wing walls were going to be on there. I want to know from you whether or not those wing wall heights were changed from what you originally saw to what you see now. MR. BROWN-Well, these plans, the plans that you just looked at, reference a nine foot wing wall. MR. UNDERWOOD-Okay. Thank you. MRS. JENKIN-All right. So then could we have both sets of plans, the actual ones and the original ones? MR. BROWN-Yes, we can give you all the paper you can handle. 21 (Queensbury ZBA Meeting 3/26/08) MRS. JENKIN-Because then we can at least see what you’ve determined, and then look at what was supposed to be. MR. BROWN-Sure. MR. UNDERWOOD- We have some other people that are here this evening besides this group. So we’re going to, does somebody want to make the tabling motion, or do you want me to do it? MRS. JENKIN-Sure. Go ahead. MR. UNDERWOOD-Okay. I’m going to move that we table this for up to, how many th days do you think we need? This is before the 15, right? So we could be on for May. MR. BROWN-Well, yes, if you want to table it for the property owners to get the th submission in by April 15, then it would be a May meeting. MR. UNDERWOOD-Okay. So this’ll, we’ll table this for the either the first or second meeting in the month of May. All right. Does somebody want to second that? MR. URRICO-I’ll second it. MOTION TO TABLE NOTICE OF APPEAL NO. 11-2007 ROBERT AND VICTORIA GLANDON, Introduced by James Underwood who moved for its adoption, seconded by Roy Urrico: 67 Knox Road. Tabled until one of the meetings in May. th Duly adopted this 26 day of March, 2008, by the following vote: AYES: Mr. Urrico, Mrs. Hunt, Mr. Garrand, Mr. Clements, Mrs. Jenkin, Mr. Underwood NOES: NONE MR. WEST-Thank you very much. AREA VARIANCE NO. 11-2008 SEQRA TYPE: II DEBARON ASSOCIATES BY DEBRA SCHIEBEL, PARTNER AGENT(S): HUTCHINS ENGINEERING/MC PHILLIPS, FITZGERALD, AND CULLUM OWNER(S): DEBARON ASSOCIATES ZONING: WR-3A LOCATION: DARK BAY LANE, OFF ROUTE 9L APPLICANT PROPOSES CONSTRUCTION OF A SINGLE-FAMILY RESIDENCE AND ASSOCIATED WASTEWATER SYSTEM AND STORMWATER MANAGEMENT CONTROLS. RELIEF REQUESTED FROM SHORELINE AND REAR YARD SETBACK REQUIREMENTS. RELIEF REQUESTED FROM ROAD FRONTAGE REQUIREMENTS AND STORMWATER DEVICES FOR MAJOR PROJECTS. WARREN COUNTY PLANNING: MARCH 12, 2008 ADIRONDACK PARK AGENCY: YES LOT SIZE: 0.45 ACRES TAX MAP NO. 239.18-1-47 SECTION: 179-4-030; 179- 4-090; 147-9B.2(d) TOM HUTCHINS & DENNIS PHILLIPS, REPRESENTING APPLICANT, PRESENT MR. UNDERWOOD-All right. This project is one that is going to require a significant number of variances on our part, and I think what we’ll do is we’ll read this in, let them present to us, and I think in the interest of doing this properly here tonight, it’s probably going to make sense to send this to the Planning Board. MR. BROWN-They also have a Site Plan Review application submitted for major stormwater project. So one of the bits of relief here that they need is for infiltration devices within 100 feet of the shoreline. That’s a variance for you, but it’s part of the stormwater review with the Planning Board. So it’s reasonable. MR. UNDERWOOD-All right. STAFF INPUT Notes from Area Variance No. 11-2008, Debaron Associates by Debra Schiebel, Partner, Meeting Date: March 26, 2008 “Project Location: Dark Bay Lane, off Route 9L Description of Proposed Project: Applicant proposes construction of a single family residence and associated site improvements. 22 (Queensbury ZBA Meeting 3/26/08) Relief Required: Applicant requests 24.47 feet for relief from the 75 foot minimum shoreline setback and 18 feet of relief from the 25 foot minimum rear yard setback requirements of the Waterfront Residential, (WR-3A) zoning district. Additionally, the applicant seeks 40 feet of relief from the minimum 40 foot requirement for road frontage on a public highway per section 179-4-090. Also, the applicant seeks to construct stormwater infiltration devices within 100 feet of the shoreline of Lake George, as such, relief is necessary per section147-9. Note: the proposed height of the building is shown at 27’-10” however the difference between the referenced basement and roof ridge elevations is 28’-10”. No request for height relief was requested or advertised. Criteria for considering an Area Variance according to Chapter 267 of Town Law: 1. Benefit to the applicant: Applicant would be permitted construct the desired home in the preferred location. 2. Feasible alternatives: There feasible alternatives to developing this property are limited as the required minimum shoreline setback overlaps with the required rear yard setback requirement. 3. Is this relief substantial relative to the ordinance?: The cumulative requests for relief may be interpreted as substantial relief when viewed against the Town Code requirements. ? 33% shoreline setback relief requested ? 72% rear yard setback relief requested ? 100% road frontage relief requested ? 54% setback relief for the stormwater infiltration devices ? Uncertain regarding overall height 4. Effects on the neighborhood or community: The immediate neighborhood is made similarly sized single family dwellings. 5. Is this difficulty self-created? A portion of the difficulty may be attributed to the subdivision layout whereby most lots were created without frontage on a public highway. Any development of this property will require some level of relief as the required shoreline and rear yard setback lines overlap each other. Parcel History (construction/site plan/variance, etc.): None applicable. Staff comments: Clarification of the proposed overall building height is necessary. While the road frontage relief request is a universal condition in this neighborhood, the proposed home requires significant relief from several code requirements. This project has been classified as a Major Project with regards to the Stormwater Management on the site and, as such, requires Planning Board review. Consideration may be given to seeking a recommendation from the Planning Board relative to the proposed stormwater infiltration devices. SEQR Status: Type II” MR. UNDERWOOD-“Warren County Planning Board Project Review and Referral Form March 12, 2008 Project Name: Debaron Associates by Debra Schiebel, Partner Owner(s): Debaron Associates ID Number: QBY-08-AV-11 County Project#: Mar08- 32 Current Zoning: WR-1A Community: Queensbury Project Description: Applicant 23 (Queensbury ZBA Meeting 3/26/08) proposes construction of a single-family residence and associated wastewater system and stormwater management controls. Relief requested from shoreline and rear yard setback requirements. Relief requested from road frontage requirements and stormwater devices for major projects. Site Location: Dark Bay Lane, off Route 9L Tax Map Number(s): 239.18-1-47 Staff Notes: Area Variance: The applicant proposes construction of a single-family residence and associated wastewater system and stormwater management controls. Relief requested from shoreline and rear yard setback requirements. Relief requested from road frontage requirements and stormwater devices for major projects. The information submitted indicates the home is to be located 50.53 ft. from the shoreline where a 75 ft. setback, 6.7 ft. from the rear setback where a 25 ft. setback is required. The plans show the location of the home, septic, well, and stormwater erosion control measures. 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 3/17/08. MR. PHILLIPS-Good evening. My name is Dennis Phillips. I’m a lawyer with McPhillips, Fitzgerald & Cullum in Glens Falls, and I have with me tonight Debbie Schiebel who is sitting here behind me, and Debbie is the applicant, and her husband Steve is behind me to the left. Sitting next to me is Lucas Dobie, and behind me is Tom Hutchins, and because we have applied a division of labor to this particular application, we’re all going to talk about different things. I though that I would begin by talking about the history of the property, because I think the history of the property is important for this variance application, and the additional reason I want to talk about the history is that, as you know, because we have a shoreline involved, assuming we are successful in putting a good record together here, assuming we are successful in obtaining a variance, then the variance would go to the Adirondack Park Agency for further review, and so we wanted to put together a record that would satisfy all of your criteria, and also satisfy the criteria of the Adirondack Park Agency. So this subdivision really begins back in 1968, when the property was owned by a Malcolm Mitchell, and I put on the board a colored tax map because I wanted to explain the whole area of the subdivision, and what I have done is that I have outlined in red the property that was owned by Mr. Mitchell back in 1968, and you can see that, on the right half of this tax map, I have the name McCormack written in, and that is a 4.78 parcel of land now owned by Mr. McCormack, but it was owned by Mr. Mitchell. On the left hand side, there are a number of tax map parcels and that effectively is the Dark Bay subdivision, and Lot Number 47 on the tax map, Lot Four on the subdivision map, is the lot that we are talking about. What’s interesting about the conveyance from Mr. Mitchell to the Dark Bay subdivision owners is that there were a number of covenants and restrictions in the deed from Mitchell to the Dark Bay people, and those covenants and restrictions I think were designed to protect the Mitchell property, now the McCormick property, because the language of the deed which I’ve referred to in my materials and I will give you an additional copy of tonight, indicates that the covenants and restrictions that were imposed by Mr. Mitchell were for the benefit of Mr. Mitchell’s property. I think that probably the reason he did that is that he probably didn’t want to see any kind of commercial development in this area, and he probably didn’t want to see development which back in 1968 would have been some kind of colonized trailer park or something like that. So he was very specific in terms of the scheme of development that he imposed upon the Dark Bay subdividers. He said, for example, that there had to be four lots subdivided along the shoreline. He mandated that in his covenants and restrictions. He also said that, as to the rest of the property, there could be no more than 11 lots. As it turned out, the Dark Bay subdividers did 11 lots. So altogether there were 15 lots in the subdivision. He also reserved for himself a right of way along the westerly boundary of his property, so that he could access his property, and he reserved also the ability to convey additional rights along that right of way in the event he ever wanted to subdivide the property. So in a peculiar way, in 1968, Mr. Mitchell created a two lot subdivision, one for the Dark Bay people with conditions, covenants and restrictions, and one for himself, and after 1968, indeed the Dark Bay people did subdivide the land, and they did create this 15 lot subdivision that I was mentioning, and they did impose upon each of those lots the same covenants and restrictions that he had for his benefit. So the way I look at this property, I look at it as an integrated whole, and it has been developed according to a plan that was laid out by the original owner of the property. In 1969, the Dark Bay subdivision people came to the Queensbury Planning Board and they obtained a subdivision approval. That approval was obtained on August 6, 1969. On July 11, 1969, the New York State Department of Health approved this subdivision, and then on September 26, 1969, the subdivision was filed in the Warren County Clerk’s Office, and after 1969, lots were sold off in that subdivision to the point where in 1976, this subdivision was brought to the attention of the Adirondack Park Agency, and the question was put to the Adirondack Park Agency as to whether this was a pre-existing subdivision under the Adirondack Park Agency Act, 24 (Queensbury ZBA Meeting 3/26/08) and if it were a pre-existing subdivision, it would receive the benefit of grandfathering under the Act and it did receive that benefit, and you have in our application materials a copy of that letter, and that letter indicates also that it was received by the Town of Queensbury back in 1976. After that, nothing happened between 1976 and 1990, relative to this Lot Four that we are here on tonight, but in 1990, the Debaron Associates came to the Zoning Board of Appeals, and at that time, they were looking to develop this property. So they made application to the Zoning Board of Appeals, because even though there was grandfathering from the Adirondack Park Agency Act, and even though there was grandfathering in Queensbury, there still was the setback issue of a 75 foot setback. So by Variance No. 1442 on February 21, 1990, this Zoning Board of Appeals granted unanimously a variance for the development of this lot, and the variance that was asked for at the time was a very, very extensive variance, because at that point the setback from the lake was only going to be 36 feet. Also at that point, the sewage disposal system on the property was going to be a holding tank. So the variance that was a nice variance to have, I suppose, but because of the way the system works, that variance then went to the Adirondack Park Agency, and the Adirondack Park Agency did not have in its files at the time a record of its own pre-existing subdivision determination that it had made, and unfortunately the people who presented that to this Zoning Board at the time did not put that letter into the record, and so that was one basis, and the primary basis upon which the Adirondack Park Agency vetoed the variance. There were other reasons as well, and the big reason was that back in 1990 we were dealing with the common law on this concept of practical difficulty where the definition of practical difficulty was not well known and there’s confusion in the case law as to what constituted a practical difficulty. That actually was resolved in 1992 by your current statute that you’re looking at, 267-B, and so all of that confusion that existed at the time of that case has now been clarified and I think that it has been well defined. So with that, we look at some of the issues on this property. I look at the concept of practical difficulty and I know that there’s a little bit of a disconnect between Town law on what is needed to obtain a variance and Adirondack Park Agency law. One thing that seems to be present with the Adirondack Park Agency Act is that there needs to be some showing of economic injury relative to a property in order to justify a variance. So the economic injury that we have shown, and this is not something that you have to decide at this level, but we wanted to put it into the record, is the taxation where we have been dealing with a galloping problem on this property, and I’m going to give you a writing on this which will parrot what I’m saying, but the five year tax history that you have in the record shows that the assessment on this property has quadrupled between 2004 and the present date to the point where the assessment on the property is now $1,231,200. The County taxes have tripled, more than tripled, from 2004, so that today they’re $5,992.26. The school taxes have almost tripled from 2004 to $8,204.52 today. So the total taxes in the last year that were paid were $13,678.43. So at this level of taxation where we are paying for a residential building lot, if we can’t use this lot for its intended purpose, and it’s intended purpose is a mandate under the private covenants and restrictions that were imposed on this development back in 1969, and the intended purpose is the lawful zoning for this area now, which is limited to single family residential and a hunting camp of less than 300 square feet, we couldn’t do that because our private covenants and restrictions require us to have a structure of at least 900 square feet. So we can’t use it, without a variance, we can’t use it for its private covenant and restriction purpose and its legal purpose. We just did some numbers on this, and we figured that at the current level of taxation, without any increases over the next ten years, we would be paying $136,784.34 for this property, and if we were to endow that amount with a three percent after tax return, we would have to put into a fund $455,947, and so we are experiencing some significant economic impacts relative to this property. So, having said that, I would like to move on to the neighborhood for a moment, before turning this over to Lucas, and I would ask at this point, if you have in front of you, that you look at the plans on Sheet Three of your application, of your site application. MR. UNDERWOOD-Could I ask a question, because, is most of your assessment being based upon the docks that are down there on the shoreline? Is that why they’re dinging you so high on an empty lot? MR. PHILLIPS-Well, they have this assessor’s formula, which is based on shoreline. So it’s not the docks, it’s the shoreline, you know, and we have 231, 241 feet of shoreline, approximately. So that’s what attracts the big assessment on the property, and on the assessment, now that you have this Sheet Three in front of you, and we call it the neighborhood site plan, does everybody have that? It’s on Sheet Three. In the neighborhood site plan, in the left hand corner, we have a lake setback schedule, and as we were going through the analysis of this property, we wanted to see what the other setbacks were in the neighborhood, to see if we were going to be in line or out of line, you know, relative to our variance request, and so we have 13 properties there, and 25 (Queensbury ZBA Meeting 3/26/08) those 13 properties tie in to the 13 properties that are identified on the neighborhood site plan with the exception of the LGLC property. We don’t have that on there. I don’t know why but we don’t, but with those 13 properties, we found that with our variance application for 50 feet on the shoreline, we would have a better setback, a farther setback, than nine out of the 13 properties that are already in that neighborhood. As to the other ones, those properties appear to be, and I’m talking about Freihofer, Prol and Doetzer, those properties appear to be of newer construction, where when they did the construction, and when they did the subdivision lots, they could comply with the setback, and they did, and as to the property that was reserved to our grantor back in 1969, by the Mitchells, now by Mr. McCormick, he also has relatively new construction on his lot, and he could comply with the setback and he did, but in terms of looking at the overall aspect of the neighborhood, you know, with a 50 foot setback approximately, a little bit more, we would be better than nine out of thirteen camps in that neighborhood. The second thing I’d like to point out is the economic thing. What’s interesting, and I just discovered this late today, is that when I looked at all of the assessments of all of the properties in that neighborhood, even though we do not have a camp on our property, our assessment is higher than five of the properties that do have camps in that neighborhood, and that’s just the, kind of the craziness of how the assessor’s formula operates with respect to shoreline, and so we look at that as being something where we are suffering economic injury as a result of the fact that we have that shoreline, and we realize that if we put a camp on that property, our assessment will probably be higher, but on the other hand, if that happens, that probably will be a benefit to the community, because that will increase the assessment base in the Town of Queensbury, but I think that I’d like to summarize on this topic by saying that our investigation of the neighborhood leads us to the conclusion that what we’re asking for is not out of line with the neighborhood and would not disturb the neighborhood in terms of one more residence in that neighborhood, which is in accordance with the Queensbury plan and the private covenants and restrictions. So, with that, I’ll turn it over to Lucas, because we also were concerned about whether or not there would be any detriment to the neighborhood, in terms of visual effects, and so Lucas has done some work on some visual aspects of this neighborhood. MR. UNDERWOOD-Craig, has this always been three acre zoning down here or was it originally one? I mean, I assume because of the steepness of the shoreline, that’s why it’s three acres? MR. BROWN-Yes, at least as far back as 1988 it’s been three acres, yes. MR. UNDERWOOD-And what was the project we had down there by Freihofers last year or the year before, didn’t we have one down there? MR. BROWN-I think it was a dock. MR. UNDERWOOD-Yes. I remember when the Lake George Land Conservancy had their thing on there. MR. BROWN-Yes, I think it was a dock, boathouse, yes. LUCAS DOBIE MR. DOBIE-Good evening, Mr. Chairman, Board members. For the record, my name is Lucas Dobie. I’m a civil and mechanical engineer with Hutchins Engineering. I’d like to talk a little bit about the proposed house that the Schiebels would like to build. Actually it’s quite a rare opportunity where we actually take the time to design a house to fit the site, and because this is a challenging site and the Schiebels have been quite gracious with their concerns for the neighborhood to keep the house small. They would like a 24 by 40 foot house, which is, on lake terms is quite small, at least for what we’re used to dealing with. With this property, we are allowed Floor Area Ratio of about 3200 square feet, and we’re proposing, our house would have a 960 square foot footprint, and we assumed it times three. We’re not going to try to massage the numbers. We’re just going to say we’ll count the basement, count the first floor and count the second floor, and that brings us to approximately 2900 square feet, which is around 20% Floor Area Ratio. In the Staff Notes, there was an issue brought up, when I detailed the house section or elevation, I showed a dimension of 27 feet 10 inches, which is correct. That’s what we intend to build, but in labeling the elevations, I labeled 364.3. It should be 363.3. So I was a foot off there, a typo or maybe I need some help in math class or something, but essentially the style of the house would be a Dutch Colonial with a gambrel roof, natural stone facing, nothing too exotic for a window package or anything. What I consider an important perspective on this, obviously, is the lake, looking at it, we’ll be 28 feet from the walkout basement to the roof or just under 28 feet, excuse me, and if 26 (Queensbury ZBA Meeting 3/26/08) you’re coming down Dark Bay Lane, some of the neighbors may see it. Essentially all you’ll see is pretty much the first floor and then some of the roof. So it’s not like we have a tremendous amount exposed to the neighborhood. If you’ll allow me to hand out some more photos which we took today, I’d greatly appreciate it, because I’d like to show some of the photos and some of the view sheds in the neighbors. MR. UNDERWOOD-Sure. MR. DOBIE-Thank you. MRS. JENKIN-Could I ask a question? Just from what I noticed when I went to the site. That retaining wall that is right next to the road, so you’re going to fill that in so that it’s flat, so the top of the retaining wall will then just be land right to the house? MR. DOBIE-I’ll probably be a foot or so of exposed retaining wall to our finished grade. MRS. JENKIN-Okay. MR. DOBIE-We’re not going to fill it all in, no. MRS. JENKIN-So it’ll be a foot below. MR. DOBIE-Right, and we intend our finished floor to be just above the grade of the road, of Dark Bay Lane at that point, just because we don’t want to sink it down anymore, and have a chance of stormwater coming in our front door and ruining the house. So we’re trying to keep it as low as we reasonably can. In determining the detriment to neighboring properties in the neighborhood, we looked at the two main houses that we would possibly see would be Mr. McCormick’s, which is the 4.8 acre parcel, and also Mr. Foulke, who is the blue house that you can, that’s kind of behind us to the west of us about 20 or 30 feet higher than our property. I’d like to start with Mr. McCormick, which is photos that I just handed out, photos nine, seven, and eight. Mr. McCormick is in the end of the bay, I would say, and his primary view is looking north out of the bay as the lake opens up. Photo Nine shows a nice buffering of Mr. McCormick’s property, it’s absolutely beautiful, and on his westerly shore portion he has this large clump of pines or spruce, whatever they are, which I think is quite significant in that that will shield most of our project from him, as pointed out in Photos Seven and Eight, taken from the shore, and our building site respectively. From the shore, if you look at Mr. McCormick’s, you can see probably the one third of his house, and if you look from our building site, with our screening and his screening, we can’t even see his house. So I think it’s probably fair to say that we will not impact his view shed. If we do, it will be very negligible. On the previous photos, I’d like to talk about the Foulke residence. He is the one that would most likely be impacted because we are building somewhat in front of him towards the bay. So there’s no question we’re going to impact his view slightly towards the bay, but I think we’ve demonstrated in Photo Five, which shows the Durante and VanSlooten house, I believe Mr. Foulke’s primary view is to his north and northeast, and the clearing area just to the west of this gazebo. So I think that’s the most valuable lake view. They have a nice second story porch or deck up there, which allows them to look north and northeast, and that’s totally away from our house location. The only area that would impede his view would be Photo One. With our house location he may see some impediment into the bay, but he’s submitted, I think it’s probably part of the record, a letter stating his concerns and stating his support which said that our house elevation as shown would be about as high as he would comfortably support. So I think we have his support on that, that we’re not impeding his view too awfully bad. Mr. Foulke suggested in this letter that we could possibly lower the house and make a larger footprint to accommodate our desired floor area. We looked at that. Like I said to Mrs. Jenkin, I wouldn’t want to really lower the house anymore to make the entrance door lower than the road, for the risk of stormwater coming in, and if we made a larger footprint, it leads to more disturbance, more stormwater impervious areas. So I think what we have is a pretty reasonable application, and again, with the height, we’re measuring, we’re putting no fill in front of the house because we’re essentially at the 50 foot setback. So there’s no fill. It’s a clean height measurement measured from where the basement walks out to the peak of our gambrel roof, and we’re just under 28 feet. Again, this is preliminary sketches. I’m not an architect, but we intend to take these plans, once we hopefully get there, to an architect to design it to fit this site, from what we’ve shown, and that’s pretty much what I have. MR. CLEMENTS-Could you do me a favor while you’re right there? Could you point to the site of the house on those pictures, and I know there’s a couple of them where it’s 27 (Queensbury ZBA Meeting 3/26/08) going to be off of it, but could you just point to like the center of where the house would be? MR. DOBIE-Sure. I’m referencing Photo One you can see kind of a large oak tree. We’ll be setting it pretty much centered around that oak tree just about. The oak tree is not in tremendously good health, and we have a pine tree on the shore that blew down just recently, so it’s not a tremendously valuable tree. We’ll be siting it right about there, and this photo does show the potential impact on Mr. Foulke. It would be, this little line of clearing would be his view shed of the bay, but again we offset that by saying what a nice view he has out here, and he did not raise any view concerns in his letter to us, that I’m aware of. MR. UNDERWOOD-Who uses the docks down there presently? Is that the people that Debaron owns the docks and utilizes them at the present time? MR. PHILLIPS-Yes, the family uses it. There are other family members who live in this development. So it’s been a family affair. MR. UNDERWOOD-No, I assume that Lot 13 further up the hill there, that’s the one where you want to pump the septic up to? MR. PHILLIPS-Yes, and I wanted to talk about that a little bit, in the category of whether the requested variance is substantial, and, you know, with an old subdivision like this that was previously approved, we looked at a number of things, and of course we looked at the shoreline restrictions, and the big three of the shoreline restrictions, we looked at sewage disposal and a setback for sewage disposal, and we looked at vegetative cutting, and then of course we looked at the setback itself. With the sewage disposal that Tom Hutchins is going to talk about, we thought that from a public health point of view, getting that as far away from the lake as possible was a good goal, and so Tom’s going to talk about that, but whereas the variance that was previously approved back in 1990 had a holding tank on site, you know, we’ve taken the sewage disposal and put it a long way from the lake. On the vegetative cutting, we do have some natural screening on the shoreline right now. We have some beautiful trees on the shoreline. We’re intending to keep those trees so as to prevent the screening both looking out and looking in, and in that sense, as we were looking at the site being a limited site, we valued the distance from the shoreline as being greater than the distance from the back line. We thought that the farther away from the shoreline we went, the better off we would be, and we know that from a public policy point of view, in a Waterfront Residential One A zone, the shoreline setback is 50 feet. Now, by the bad luck of history, we wound up in a Waterfront Residential Three A zone where it’s 75 feet, but as a matter of public policy we know that, in the Town of Queensbury, and under the Adirondack Park Agency Act, 50 feet is a legal setback, and theoretically it works in terms of protecting a resource. So we wanted to meet that 50 feet as much as we possibly could, and we did. We then looked at the rear setback issue, and we realized that rear setbacks really are designed to prevent overcrowding, density, to provide air and space between adjoining landowners. In terms of what’s to the rear of us, we have a road, and then with the Foulke house up on a hill, we have a huge separation between that and we don’t expect that that hill is going to be developed because it’s a very ledgy hill. So, as we look at that rear setback, even though, when you do the math, it looks like a big percentage, on the ground, in terms of satisfying the purpose of providing air, light and room, you know, we have a good separation there, so that’s the one where we’re asking for the bigger variance because we think that on the ground we do have that situation where we have the light and air. We thought of the possibility that maybe we could buy across that road, so as to give us a greater setback, but with the road there, and with the ledge there and the slope there, it didn’t make any sense for us to do that. So it was not feasible for us to pursue anything other than this variance application. So, with that, on the physical and environmental factors, I’d like Tom Hutchins to address what he’s done with the stormwater and the sewage disposal. MR. HUTCHINS-Good evening, Board, Tom Hutchins, Hutchins Engineering. I’ll try to briefly summarize what we’ve shown and proposed for both wastewater and stormwater systems. Obviously, they touched on siting. It’s a relatively small house, 20 by 40, and we’ve sited it, we’ve primarily tried to hold the 50 feet, and we have, we’re something just under 10 feet in the rear back to the road. We felt it was as reasonable a siting as we could come up with to function on this site, and it’s a relatively modest sized house. Wastewater systems, the original approved subdivision had an on-site septic system. I believe it was 65 feet from the lake, approved, which was a surprise to me. The variance from 1990 was for a holding tank on site, and this was, what we came up with, which was actually Debbie’s suggestion, and it’s an interesting concept. They also own a vacant 28 (Queensbury ZBA Meeting 3/26/08) parcel that’s some 450 feet from the lake, and it crosses, we would have to cross one parcel via easement, which is also a family parcel, and what we’re proposing at this point is conventional septic tank, pump station, and force main to a conventional absorption system to be located on this lot. We haven’t gone through a tremendous amount of detail and designing this and working out, the particular (lost word) protection and the force main is going to be something we’re going to have to. MR. UNDERWOOD-How far uphill, what’s the height you’ve got to raise the water up there? MR. HUTCHINS-In the neighborhood of 60 feet or so, yes, 340 to 400. I mean, it’s a pretty good lift, but we can do it, and we’re anticipating a conventional probably shallow absorption system, what Queensbury calls a fill system, but it is a conventional system. MRS. JENKIN-Is that currently just a wooded lot? MR. HUTCHINS-This is a vacant lot, yes, it’s wooded. MRS. JENKIN-Wooded. So will you have to clear, you’ll have to clear all that space? MR. HUTCHINS-Yes, we’ll have to cut to get the system in there. Yes, we’ll have to cut that out. It is elevated considerably from 9L as you drive down 9L, this is ledgy, and it’s elevated up probably eight to ten feet, so as far as whether, the lot is higher than the road, yes. MR. UNDERWOOD-Is everybody drawing their drinking water from the lake, I assume, on the whole, within the subdivision, nobody’s on wells up there or anything? MR. HUTCHINS-As far as, I don’t know. AUDIENCE MEMBER-Everybody’s on a well, as far as I know. MR. UNDERWOOD-Everybody’s on a well up there. MR. HUTCHINS-Okay. MR. UNDERWOOD-Yes, because I’m just wondering about, you don’t really show any setbacks from well heads and things like that. I’m sure the Planning Board’s probably going to get into that. MR. HUTCHINS-The Planning Board’s going to get that, if we get to Site Plan Review, obviously we’ll have to do a whole lot more detailed design data on this, but it’s a considerable effort. MR. UNDERWOOD-No, I’m just wondering in a sense of, you know, like if you’re looking at the whole subdivision, you know, like if you’re thinking of it in the sense of say Takundewide, you know, where, you know, like in the past, you know, we’ve allowed everybody to individually deal with their own lots and things like that, but at some point in time we finally got wise and decided that, you know, some kind of a group septic was a good idea or something like that, and I’m thinking in the sense here, I mean, I understand what you’re trying to accomplish, it’s a good idea, but, I mean, I’m not sure what the other people down on the forefront of the water there have as far as their septic issues, you know, whether they’re adequate or whether they’re antiquated or whether they work sometimes, don’t work other times, or whether you’re on bedrock, issues like that, because a lot of it hinges on that, and the fact that the APA, the last time, it looks like the holding tank thing is not something they’re amenable to at this point in time. I know with our Town we’ve approved them in the past, but, you know, I would think that’s probably going to be an issue for the neighbors, you know, whether they want that up the hill or not, but go ahead. MR. HUTCHINS-And I can comment a little bit on my observations of the neighborhood. I think I can safely say it’s a somewhat challenging area for wastewater design. It’s rocky. It’s rocky, and I think that pretty much goes for most of this area. This house is new construction. There was rock excavation done at this area, and it’s ledgy. So depth to bedrock is an issue. I’ve looked around here enough to, like I said, not a great deal, but enough to convince myself that we can probably get a system in there, that it’s reasonable to propose one at this point in time. MRS. JENKIN-What do you have against a holding tank? 29 (Queensbury ZBA Meeting 3/26/08) MR. HUTCHINS-The Town Ordinance doesn’t allow them for new construction. MR. UNDERWOOD-You can’t use them for new construction. MRS. JENKIN-You can’t. Okay. MR. UNDERWOOD-Would you comment on why it’s a major stormwater protection plan that you needed that, just because of your proximity to the lake? I mean, I don’t know if there’s a difference between the one acre and the three acre. The stormwater protection stuff is stuff that we just have dealt with in recent times. MR. HUTCHINS-Yes, I’ll comment on that. It’s a major stormwater, it’s not major stormwater for any of the disturbance criteria, the hard area criteria. There is also, it’s in the judgment of the Zoning Administrator. Am I correct, Craig? MR. BROWN-That’s correct. MR. HUTCHINS-I mean, and that’s clear in there, that based on slopes and Critical Environmental Area, at the Zoning Administrator’s discretion, he can define a major, and we talked about it early in the project, and he said, yes, it’s going to be major. MR. UNDERWOOD-I mean, is that because you can’t infiltrate down there because of the rockiness of it? MR. BROWN-Well, that’s a portion of it, given the proximity, it’s in a CEA. It’s very close to the lake. It’s not close to the 15,000 square feet of disturbance that would automatically trigger a major, but it’s enough to say that you combine all those factors together and we should look at it as a major project, yes. MR. UNDERWOOD-What is the, all those rock walls that are down there, what was the purpose of those, were those causeways to get out to the lake? MR. HUTCHINS-This rock wall has been there for some time. I don’t know the purpose or intent or time of construction. I do know it benefits us to a certain extent, in that we’ve got a fair depth of granular relatively well drained material behind it. We don’t intend to disturb in the area below the wall, and we intend to leave it there. It’s a well built stone wall. It looks nice. MR. UNDERWOOD-Do you anticipate, when you go to Planning Board, that they’re going to have issues with stormwater? Because, I’m looking at all the other camps that are built so much closer to the lake. This one’s really, as you said, set back the furthest of almost all of them down there, that 50 feet. MR. HUTCHINS-Well, I don’t want to attempt to predict the Planning Board, but I will say, because of the major stormwater issue, they have a 100 foot setback for stormwater device. Now, from a practical standpoint, it creates a difficulty for any construction within 100 feet of the lake, because the water’s going to want to flow downhill, and the Planning Board realizes that. Really, any of these lakefront projects, that whether they’re in a WR-3A or 1A, whether they’re 75 feet or 50 feet from the lake, or somewhere in between, if they’re a major stormwater, then technically the devices are, if they’re infiltration devices, which most devices meet the definition, they’re supposed to be 100 feet from the lake. Very difficult to do. MRS. JENKIN-Is this bedrock here where you’re going to build the house? Do you have to blast? MR. HUTCHINS-For the house construction, no. MRS. JENKIN-That’s dirt, that’s soil that you can dig? MR. HUTCHINS-Yes, it’s actually a fair amount of cut, and, yes, the area behind this wall is, there’s soil, yes. MRS. JENKIN-Okay. MR. UNDERWOOD-Does anybody have any questions? 30 (Queensbury ZBA Meeting 3/26/08) MR. GARRAND-I’ve got a question for Staff. On the agenda, it states that this parcel is .45 acres. Is that a typo? MR. BROWN-It appears to be. The survey says .35. Yes. It’s likely it was taken from our RPS information which comes the tax maps, and the way the property’s assessed. My guess is that’s where that number came from, but the accurate number is .35, according to the Van Dusen survey. MR. GARRAND-All right. Thank you. MR. HUTCHINS-So on the stormwater side what we’re asking for is enough such that we can install infiltration devices basically between the house, the driveway and the lake, and we’ve kept them as close as we feel we reasonably can. MR. UNDERWOOD-You’ve got a garage on there with this print? MR. HUTCHINS-We do not. MR. UNDERWOOD-You don’t. So you’re probably going to be coming back at some point for a garage then in the future or, I don’t know. Logically. MR. HUTCHINS-He says I hope not. MR. UNDERWOOD-So they’re okay with the 22% FAR right now, Craig, with what they’re proposing? MR. BROWN-Yes, that’s correct. MR. UNDERWOOD-What would a garage do if they dumped that on there? Would that push that over the limits probably, a two car? I mean, I’m just guessing, 900 feet more. MR. BROWN-I can do the math quick here, but I think there’s six or seven hundred feet of room to play. MR. CLEMENTS-You said you have 2900 square feet right now? MR. HUTCHINS-Twenty-nine hundred square feet proposed impervious. We’re proposing 2100. MR. CLEMENTS-Twenty-one hundred? MR. HUTCHINS-We’re proposing 2100. Right now, we have 598, in the difference between the floor space inside the house and the impervious. I think that’s what you’re getting at. MR. CLEMENTS-Okay. MR. BROWN-What’s allowed is 3350 square feet total, is at the 22% number, and if we take their, and I think Lucas said a 900 and something square foot floor plan times three, it’s in the 2700, about six, seven hundred square feet. So with a 24 by 24 garage, at 576, you’re going to. MR. UNDERWOOD-Sure, you’re still within. All right. MR. BROWN-Yes. MR. UNDERWOOD-What do you think the Planning Board’s going to say about your proposed septic thing there? Do you think that’s going to be a reasonable thing, or do you think they’re going to think you’re way off kilter on that one? I mean, there’s not a whole lot else you could do down there, realistically. MR. HUTCHINS-I believe they’re going to look at it as favorable to the lake as we could be given the circumstances, but whether or not, just how favorable they’ll consider it, I don’t know, and I think it is, I mean, we looked at a, there’s a family property that we’re crossing. We looked at a system in that property. MR. UNDERWOOD-All the existing ones down there, are they pretty much just on standard systems, as close as they are to the lake? I mean, they must be. 31 (Queensbury ZBA Meeting 3/26/08) MR. HUTCHINS-I don’t know, to be honest with you. They’re on on site systems, for the most part. I don’t know of any. MR. UNDERWOOD-Nobody else is pumping up right now. MR. HUTCHINS-I don’t know. MRS. JENKIN-But that pipe, you’re going to have to go, the road now is paved, right, so you’re going to have to cut it, dig. MR. HUTCHINS-Yes. We’re going to have to cut the road and we’re going to have to re- pave the road. MRS. JENKIN-And then if this isn’t road up here. MR. HUTCHINS-Yes, that’s road. MRS. JENKIN-Up here, but then you’re going on to the Behren’s property also with the pipe? What would you get an easement or? MR. HUTCHINS-I didn’t believe I was on Behren’s. No, we’re going across Durante’s property. MRS. JENKIN-Durante’s, okay, it’s both places. The road goes through Durante’s, too. MR. HUTCHINS-And then the roads run across private property. They run across Durante, which is. MRS. JENKIN-That’s a right of way there, an easement. MR. UNDERWOOD-Is there any kind of an association currently in effect down there, as far as the neighbors, or is it just every man for himself down there? MR. PHILLIPS-There is a Dark Bay Association, and Mr. Foulke, who has the letter in the file, is the President of that Association, and this property would be a member of that Association as well. MR. UNDERWOOD-Anymore questions? MRS. JENKIN-Just on the septic or? MR. PHILLIPS-We have a couple of more things to say. I just wanted to mention a couple of other things, just to put them in the record, because I know people look at these records, and there is the question of whether the alleged difficulty was self-created in the application we say no. The reason we say that is that this is one of those old subdivisions where it was approved a long, long before regulation came along. So the longer we have a subdivision like this, the more regulation there is that attaches to it, but with these lots already being in place, and really being locked in by adjoining ownerships, particularly with the Association and the Foulke properties, there’s no where to go in terms of doing anything to make this better. So I think that is important to put in the record. The other thing I wanted to put in is that it’s interesting to see the interplay between the Town law and the Adirondack Park Agency Act in terms of variances, because in addition to these five factors that we’ve gone through in this presentation, you know, we still have that balancing test where we look at what is the benefit to the applicant versus the detriment to the healthy, safety and welfare of the neighborhood or the community. I think that as we’ve tried to work this, and as Lucas said, we’ve tried to fit the building to the site, as opposed to the reverse. We think that we’ve come up with a plan where, with the septic system far away, we don’t have any detriment to the health. With just one additional house in a subdivision that is designed for this purpose, we don’t see any safety issue. Probably from a welfare point of view, the winner on something like this would be the Town of Queensbury, in the sense that it maintains the tax base and with a house it probably increases the tax base, and if we didn’t get a variance on this property, we probably would effectively have a condemnation of the property because we could not use it for any economic purposes. So under the Town Law 267- B(3) balancing act, you know, we think that we’re in pretty good balance here, in terms of our benefit of using this for its intended purpose and for its legal purposes, and there’s no downside on the public side. Now when you look at the Adirondack Park Agency Act, it’s worded a little bit differently, but it really means the same thing. It says a variance will be granted when the adverse consequences to the applicant resulting from the denial are 32 (Queensbury ZBA Meeting 3/26/08) greater than the public purpose sought to be served by the restrict, and so we think that with an adverse consequence in this case, basically making our property useless if we don’t get the variance, that clearly we’re in a situation where the adverse consequences to us are greater than the purpose sought by the restriction, in the sense that we have a restriction that’s 75 feet, but we also have restrictions that are 50 feet and so we think that from a public policy point of view, we can protect the lake with 50 feet, because that’s all we have to play with, and with protecting the lake also from the stormwater side, no vegetative cutting and putting our septic far away, we think we can achieve the, meet the public purpose. So, because we know that the APA is looking over our shoulder, as we proceed on this, we are going to be asking for the variance under Town Law, and we are going to be asking that you find, because of this economic information that we have put in front of you, that we are economically damaged as well if we can’t get this variance, so that we satisfy that practical difficulty test of the Adirondack Park Agency Act, which is just a little bit different than what you have before you. So, with that, I think we probably have said enough. I just want to present to the Board a written version of the presentation that I have made so you have it for the record, and then everybody here is open for questions. Thank you very much. MR. UNDERWOOD-On the question of the, it’s a family that owns this property and they have other sites further up the hill also? You have the one empty site up there? I mean, I see the tennis court up there on the hill, too. How many other parcels are there? MR. PHILLIPS-Well, there are the three Debaron parcels. There’s the tennis court, Lot 13, and Lot 4 that we talked about here, and, you know, as we look at all of these lots as having basically having been sanctioned by the pre-existing subdivision approval in the Town of Queensbury and the pre-existing subdivision determination by the APA Act. Of the three lots, the only lakefront lot, which is obviously the most important and the most valuable lot, this is the only lakefront lot that we have, and any kind of residential development on any of the other lots wouldn’t be the same, and, under the covenants and restrictions, the lake access is basically confined to the common area, to the Dark Bay Association lot. MRS. JENKIN-Is this tennis court for the whole Association? MR. PHILLIPS-That is a family tennis court, I believe. MRS. JENKIN-Okay, and there’s no house on either of these lots? MR. PHILLIPS-No. There’s the tennis court on the one lot, and then where we are proposing to put the sewage disposal system, that’s a vacant lot. MRS. JENKIN-So at this point the Debarons have no home in Dark Bay, is this correct? There’s no house here in Dark Bay? MR. PHILLIPS-Debbie Schiebel has no home in Dark Bay. DEBBIE SCHIEBEL MRS. SCHIEBEL-Right. MRS. JENKIN-Okay. Just you. Okay, but the rest of the family does. MR. UNDERWOOD-Okay. I guess we’ll open up the public hearing, then, see if anybody wants to comment on the project. Okay. Go ahead. PUBLIC HEARING OPENED JIM TOBIN MR. TOBIN-All right. For the record, my name is Jim Tobin, and I live at (lost words) Dark Bay Lane which is an adjoining property. I come here as a neighbor. I hope I’m not too judgmental on what I’m going to say because the last 20 years or so I’ve enjoyed the company of the Schiebels, but I hope to keep my comments very objective. So I’d like to go on for the record. I received a letter from Mr. (lost words). I believe that is probably not true. There’s been no board action on this (lost words) personal letter rather than (lost words) Association. Is it the province of this Board for me to talk about the engineering Site Plans, or should I save that for the Planning Board? MR. UNDERWOOD-No, I mean, you’ve got your five minutes. 33 (Queensbury ZBA Meeting 3/26/08) MR. TOBIN-I’ve got five minutes. Okay. I’ll keep it very short, then. I speak also a professional. I’m a registered architect for 40 years, so I can speak with some credence on what I say. I’ve looked at the Site Plan, and I believe that the Site Plan is inadequate for the parcel. There’s a number of issues. One, to make this parcel work, all the trees would have to be removed, not only for the house, but for the grading that’s associated with the house. The retention system of the parking area, what’s there I believe would be subject to freezing and will not work in the wintertime. I did not see any stormwater management for the parking area. Currently all the water comes off Route 9 and ends up right where the parking area is, and it soaks in every year. Also, it was mentioned before that there’s an existing retaining wall, stone retaining wall. To put a house that close to the stone retaining wall will require the stone retaining wall be removed because there are probably, Number One, no footings under there, and new footings will underpin the existing members. The next item is that the house was shown to us as 28 feet high. I believe that’s almost physically impossible to do. If you consider ceiling height of eight feet, three stories, you do the math, plus the roof, that exceeds the 28 feet. I’m sure that they will put (lost words). The view from the dock, which I am the Association member, the dock is an adjoining parcel and is labeled (lost words) what number lot it is on your maps, but being a member of that, I am an adjoining property owner and partial owner of that property. My view from the lake is a three story building now rather than a wooded lot. I believe other neighbors will have the same view, once you cut all the trees, nothing will be left. Looking at the disposal system, they’re pumping it to the upper lot. I really have no issue with that, but I do have any issue with the construction members that intend to be used. This site, the entire site is rock. You go down two inches it’s rock, and the only way you can put a force main, Point A to Point B, up 60 feet, is to dig a hole, however long, and that’s a long way, five feet deep, and what that will do will deny me access to my house. I have continuity access to my house, and I will be in the middle of a construction project. Also the routing that’s shown on the plan is across the Dark Bay Association’s land. There is no easement granted. I would like to bring up, Mr. Phillips brought up some deed restrictions that were in the original covenants of the deed from Malcolm Mitchell. I read the section of it which was overlooked. It says no home, no house shall be constructed less than 35 feet from a driveway and 30 foot setback from the rear line of the premises. This is a deed restriction that was put in for the interior lots on the parcel, and I believe your deed restrictions will supersede any Zoning Ordinances. This project, 20 years ago I was here before this Board, and my recollection of it at that time was that the ZBA granted the project, the Planning Board denied it. The APA denied it and it wound up in Article 78 lawsuit, which was also denied. This project was talked about on the high taxes on the parcel, which are quite evident, but the family, for the last 20 years that I’ve lived there and for the period of time that they’ve owned it, have received beneficial use of this property. The beneficial use of the property is they enjoy the lake. They have a dock on it. They have picnics there and family gatherings there. So it is not just an empty lot. I thank the Board members for your time. I think I kept within the five minute. MR. UNDERWOOD-You’ve got it. Thanks. Anybody else? JOHN MATTHEWS MR. MATTHEWS-My name is John Matthews. I’m a neighbor on the other side of Dark Bay. My year round residence is there. I drink the water from the lake. I have it tested regularly and it’s been fine so far. I’m very happy with the amount of detail that’s been put into this project so far. It far supersedes what was done in the past. My main concern is that a variance is granted for them to do this project and they get a permit and we get into a situation like we were here for an hour and a half before. I want to make sure, I think pumping the system away from the lake is great. I have to do the same thing. I pump mine 300 and some feet back from the lake. The plan is not finalized for this septic system. Every inch of that whole subdivision is nothing but rock and trees that are sitting on top of the rock. I’ll bet there isn’t a foot of soil anyplace in there. I built two of the houses down in there in my building career, but that’s a time gone by, and it’s rock, and any runoff goes in the lake. So any vegetation that is removed, removes any absorption that can be absorbed into what little soil is there, but to get back to my original issue is if a permit is issued, and they haven’t completely done all the soil tests and the design on the septic system, and the variances or the easement given by all property owners to put the pipe from the septic system down to the lake all finalized, all of a sudden, something’s going to happen, they’re going to decide it’s too expensive to blast through the rock, they can’t do this, they can’t do that, and they’re going to come up with some hair-brain sophisticated system that they’re going to put next to the building on the lakefront property. Now I’ve seen this happen in Cleverdale and in Rockhurst and what not, and we all know where the effluent’s going, it’s like pouring water in a bucket, you 34 (Queensbury ZBA Meeting 3/26/08) know, it gets to the top, it runs in the lake. Other than that, I think it’s great. They should have some ability to develop the lot, but I want to make sure that it’s done thoroughly and correctly, right from the get go, so we’re not having to re-do and sit through meetings, two years from now, because something has failed, and it’s not working the way it should be. MR. UNDERWOOD-Thank you. Anybody else? Sure. JOHN SALVADOR MR. SALVADOR-Good evening. My name is John Salvador. I’m a resident in North Queensbury. A lot of people have asked questions about this septic system that’s being proposed and all. The best thing I’ve heard so far is the holding tank. We, they’re becoming quite popular in North Queensbury. Phil Morse built a gigantic house up there. He’s been on a holding tank for 10 years. It seems to work. I haven’t heard any problems. Trying to traverse this land to get up above for that infiltration, I think is going to require a transportation corporation. They don’t have easements. They’re going to have to cross other people’s land. So, I think you might find that the simplest solution, and get them right going, is the holding tank, and I think you’d find a lot of local support for that. There was mention of a boat dock on this property. The Assessor’s records show that this boat dock was built in 1975. What we have here is an accessory use without a principle use on a parcel, and for that we need a variance, and I don’t know if one was obtained then, but that should be noted here, as a cross reference. The other thing is that this dock should have been registered in 1981 with the DEC, for it to be legally pre-existing. So that should be checked out. With regard to the assessed valuation of the property, boy, I sure would like to see these people join us in the complaints we’ve had at the Assessor’s Office on excessive taxation of lakefront property. We could sure use the help. Staff Notes mention the fact that a variance was going to be needed. It says here also the applicant seeks to construct stormwater infiltration devices within 100 feet of the shoreline of Lake George, and it looks like a variance is going to be needed for that. That comes out of our Section 147 of the Town Code. In addition that, this Section 147, you know, comes from the Lake George Park Commission, and the Lake George Park Commission Regulations, I’ll read from 6NYCRR Part 646-4.16, Paragraph G. Commission Review of Variances. Any applicant seeking a variance from any stormwater regulatory program shall submit a copy of the variance application and all supporting materials to the Commission, but shall not be subject to the permit application provisions of Part 645 of this Title for any variance application submitted to a municipality. The Commission shall coordinate its review of such applications with the municipality, which shall give the Commission 10 days notice of any public hearing of the variance. Any variance which is granted by a municipality must be reviewed and approved by the Commission. So that’s a part of the stormwater, and also as a major stormwater project, this plan is going to have to be recorded in the County Clerk’s Office, and there may be performance bonds required, who knows, it depends on the extent of it and what’s required by the Town, but the wastewater and the stormwater and two of the most difficult things to handle now. We’ve just got more tighter regulations. This substandard lot was (lost word) was created when the subdivision was created, and then in the wisdom of the Town of zoning this area to three acre makes it even more difficult because of the more stringent setback requirements. So it really is a dilemma, but as long as the stormwater requirements are met, and I would recommend that they proceed to try to get a variance from the Town Board of Health for the installation of a holding tank. I can assure you you will receive, at that hearing, a lot of local support. Thank you. MR. UNDERWOOD-Anybody else wishing to speak? Sure. TOM SPALI MR. SPALI-My name is Tom Spali. I purchased Lot Two in 2002, and I’m neighbors with Steve and Debbie. I like them very much. I financed that property in 2002, 90% (lost words) summer home. My biggest concern is what John Matthews said. The pipe sounds like a great idea, but the feasibility of putting it in the ground and blasting 400, 300 feet of earth, five feet down would put severe impact on my quality of life for my summertime living up there. That road, as you go around the corner, that goes to my house. That’s only the way you get on that road is past that retaining wall. One single day of impasse on that road puts me in a hardship. Three hundred dollars a day on a mortgage puts me in a hardship. So you’ve got to understand my fear that, although it sounds like a great idea, on paper everything’s great, but when it comes down to digging the ground and blowing rocks up, John Behrens just put that house in on Five and Six, and they had to do a lot of shock and a lot of blasting, and although I took the rumbling of 35 (Queensbury ZBA Meeting 3/26/08) the ground in stride, I still got to my house, 99.9% of the time. I feel this would be a situation that even one single day I can’t get to my house is going to be a problem, but other than that, I think it’s great. They should be able to use the property. They should be able to do anything they want with that lot. It’s a nice little spot, as long as they can keep it in the confines of not upsetting anybody else’s quality of life in the construction. MR. UNDERWOOD-Okay. Thank you. Anybody else? Mr. Navitsky. CHRIS NAVITSKY MR. NAVITSKY-Good evening. Chris Navitsky, Lake George Water Keeper. A couple, I sympathize with the landowners. I think, I don’t know how many times we’ve had a 24 by 40 lakefront footprint come your way, but I haven’t seen too many around the lake, and the efforts to move septic away, there can be a discussion on holding tanks or removing septic in a way that’s better, but I think I’ll pose to you, I guess, a question. Yes, it’s a philosophical question. When is there ever a situation when a lot is deemed unbuildable on the lake? Looking at minimizing impacts to the lake, we have a lot of limited depth which cannot provide an approved building area. We have wooded stabilized shoreline and we have steep undisturbed slopes. I also sympathize with you on the balance here, and that’s my, and Mr. Salvador referred to, and I think it’s kind of an irony when people say that the dock right now is an accessory use. To me, that’s a primary use. That’s the main reason that people are here, but set that aside. A couple of points that I’d like to add. I’d like to say thanks to Craig Brown about determining this to be a major stormwater. I think that that’s an improvement in looking at the water quality protection towards the lake. They are looking at a variance, and there was questions about the soils there, and I think maybe we need to get some information on the soils there before we determine a variance possibly. What is the depth to bedrock, what are the soils there? If we are getting a variance on the setback, perhaps we should have additional treatment and what do I mean by that, and I spoke with Tom Hutchins about that, well maybe we should think about additional considerations for pollutant removal, perhaps the installation of a standard peat filter, (lost words) base of the infiltration chambers, if we don’t have a lot of soil there for infiltration trenches, we can add sand and a peat mix which provides additional removal, especially for phosphorus, depending on the content of iron and what not that’s in the media. So perhaps that could be something to implement as a condition there. So it’s deemed so. I had a question about the tree removal. Is there going to be a no cut zone? I think some of the residents expressed concern about tree removal, and I think maybe a tree survey should be added and get an idea on actual disturbance limits. I, again, also had a question about the amount of blasting. We’ve got a two or three story home set right off of the road. They said you would really only see the top story and a half. That means you’re going to have a story or a half going right down into soils there. Is that going to be blasting? And we’ve seen from some projects around the lake that can have a severe impact. It’s not just the final product, but it’s the product during construction when we start blasting. It’s going to have some impact upon the neighbors, and also on how we handle the runoff from the construction site. So those are a couple of my points, and I just had another question. We’ve got steps leading down to the dock. I don’t know if those are made of impervious material or not, if that is kind of a conduit or a soothway or they’re just wooden steps on grade. I don’t know. It’s something that’s really not tied to the variance. So that’s all. Thank you very much. MR. UNDERWOOD-Thank you. Okay. Anybody else? All right. I had some questions for you, Tom. If you’re going to balance between doing the blasting all the way up the hill to bring the septic up there, versus the holding tank concept. I mean, is that something that the Planning Board you think is going to, or, I mean, the Town Board’s the one who’s ultimately going to make that decision. I know that we don’t allow them at the present time, but when you’re looking at the disturbance factor down there with blasting that deep into the ground and such a massive project to do it, I mean, it’s not going to be cheap, either. MR. HUTCHINS-Yes, I’ll address that. We’ve considered approaching this with a holding tank. It’s certainly simpler, easier to install, less destructive, less costly, and even at an operation cost, it would be cost effective for an awful lot of years. Obviously, in new construction, we try to get a conventional wastewater system. We’re agreeable to looking into a holding tank option. I’m not exactly sure, I believe we’d have to go before the Board of Health. Would that be our sole regulatory hurdle, Town wise, to approach this as a holding tank? MR. BROWN-Town wise, sure. 36 (Queensbury ZBA Meeting 3/26/08) MR. HUTCHINS-And I think if we were to be able to do that with a recommendation from someone like this Board, I mean, we could do that. MR. UNDERWOOD-I think you could make the argument as a hardship, and I think, you know, you’ve got the neighborhood to consider the access while you’re doing construction. MR. HUTCHINS-While, during this period that the force main is going in, that will be disruptive. The plan is to maintain traffic and bypass around construction, but it’s going to be disruptive to the people. We can’t do it without it. It would be a relatively short duration, but, yes, there would be a disruption. We can look into a holding tank. John Salvador indicated he’d come to the Town Board meeting and be supportive. Anything else on that I’ll do my best. MR. UNDERWOOD-Anybody else have any questions? MRS. JENKIN-I have a question or a concern about this seven feet from that road, the setback. MR. HUTCHINS-There’s some discussion about the excavation for the house as well, and right now, this being the Foulke house, this is the section looking, well, I’ll show you on the plans here, this is the section looking from the Foulke house through our proposed house out toward the bay, and right now this wall drops down six to eight feet basically at the (lost words). MRS. JENKIN-Right. MR. HUTCHINS-So our finished floor would be within a couple of feet of the area at the base of that wall. We’re not going to have to excavate eight feet into existing grade to build the basement. MRS. JENKIN-Right, lower down, but my concern is your roofline, and in the winter, if it’s only seven feet from the road, if there’s a lot of snow that falls off that roof right onto that area, and I assume because the parking is on the other side, that there’s a walkway and that’s where the front door is, at the front of the house? MR. HUTCHINS-Yes, and again, architecturally, we’re somewhat conceptual. A real architect starts working on these plans (lost words). MRS. JENKIN-I hope so, because if you’re walking from the parking area along, just seven feet, and it’s in the middle of the winter, and you’ve got a huge snow pile, is it going to go onto the road? What are you going to do with snow, because it’s going to be sitting there. That’s your main entrance, that’s your only entrance to the house. MR. HUTCHINS-It’ll have to be removed, and we’ll have to capture runoff and remove it around, and it’s definitely close, but the alternative was. MRS. JENKIN-Right, but you, just for your own, the feasibility of the house itself it might be better to move it a few feet closer to the lake only for that reason, because you may not be able to get into the house in the winter. MR. DOBIE-Currently, I believe all the snow is plowed all the way to the end of Dark Bay Lane, down towards the Durante and VanSlooten house, and there’s a flat area which will be adjacent to our parking area where they make the snow bank. So I don’t think it would be a tremendous concern with the snow coming off the roof. It will probably be snow blowed and plowed right down. MRS. JENKIN-But when you plow a road, too, there’s always snow that comes off to the side of the snow plows, too, and that’s going to go right onto that area because it’s right on. STEVE SCHIEBEL MR. SCHIEBEL-Yes, and we will deal with that, shovel it around our house, do whatever we have to do to keep the snow from coming off. MR. TOBIN-Could I comment on that? For the record, my name is Jim Tobin. One more comment on snow. The snow situation there is very difficult. In fact, we’ve had a snow man there for the last number of years. It’s very, very difficult to plow that area. In fact, 37 (Queensbury ZBA Meeting 3/26/08) at the time we’ve had trucks go off the wall. You go down a hill, it’s very difficult. There’s no place to push the snow. You can only push snow so far. Snow has to go over the wall. MRS. JENKIN-Right. MR. TOBIN-The fact that the house is within eight feet of that wall makes it extremely difficult to plow the snow. It’s just difficult. Drop off on one side, now there’s going to be a house, now there’s a cliff that’s 30 feet on the other side. This is no place to put it. From a practical standpoint, it’s very important that snow be solved. It can’t be (lost word). MR. UNDERWOOD-Do you guys want to make any closing statements? MR. PHILLIPS-I just have a couple of things that I’d like to respond to Mr. Tobin on. Firstly, he mentioned some private covenants and restrictions, and some setbacks. You have copies of all of those private covenants and restrictions in your packet, both in our original submission and what I’ve provided today, and one he did not tell you is that those restrictions that he was talking about related to Lots Five to Fifteen in the subdivision, but not Lots One through Four. MR. UNDERWOOD-That was the interior lots? MR. PHILLIPS-The interior lots. So, if you take a close look at that, I think that you’ll see that Lots One through Four were exempted, you know, by Mr. Malcolm at the inception of this development. The other thing is, is that, you know, as we look at subdivisions, we kind of look at subdivisions as a contract in the sense that when people buy into a subdivision they get an abstract of title for that property, or a search or title insurance, and they get copies of the covenants and restrictions, and so they know exactly what they’re buying into. They know what they’re buying into relative to their lot. So certainly if Mr. Tobin built or if he bought something that somebody else built, and if you bought then he bought a lot from somebody where the lot at one point was vacant, but because of the covenants and restrictions, the person who bought into that vacant lot had a right to build, and as that person looked at all of the other covenants and restrictions, he would have seen that every lot in there had a right to build. So it’s not as though anybody in that subdivision was not put on notice as a matter of contract. They were, because everything is filed in the Clerk’s Office. They buy these properties off a filed map. They all have their lawyers review the covenants and restrictions, and these covenants and restrictions are very clear that these lots can be used for only one purpose, and that is single family residential. So, you know, as people oppose anything that we’re doing here, you know I think they’re also possibly overlooking the fact that subdivisions are a contract, and I want to make a point of that. So, with that, I think that we are finished with our presentation here tonight. It’s been very informative, and I’m glad to hear that we’ll look into this holding tank idea, and certainly we will look forward to continuing on. MR. UNDERWOOD-Okay. I guess what I’m going to do at this time is ask the Board what they want to do. Do you want to deal with this, or do you think we have too many outstanding issues that we want to backburner this for the moment? MR. GARRAND-I think we ought to table it. MR. UNDERWOOD-Here’s what I think we should probably do, then. I think that you ought to float the idea to the Town Board of Health about the possibility, and, you know, explain to them the situation that you’re in with the blasting and things like that. It seems reasonable to me that, even though these are not permitted, that you’re literally between a rock and a hard place. You’re either going to do the, it’s really going to hinge on what you do with the septic here in this issue, and in a practical sense, the practical thing to do is to put a holding tank in. I don’t really see it as a burden on the lake. It’s not a burden on the neighborhood. It’s something that isn’t always the answer for what we’re trying to accomplish up on the lake, and in this instance here it makes more sense to me then to blast all the way up the whole side of the hillside, even though that’s a great idea, at the same time I think it’s way over the top, and as far as the other issues that we’re dealing with here, the shoreline setback relief. I think you’ve tried to put this house as far back from the lake as you could possibly put it, and, you know, in a practical sense, if you’re going to have a buildable lot, if you’re going to call this a lot that you can build a house on, the house you’re proposing there isn’t some massive McMansion that you’re going to see sticking out like a sore thumb. As you’ve said, you’ve protected the forefront by having a no cut zone in front of there, in front of the rock walls and such, that’s going to 38 (Queensbury ZBA Meeting 3/26/08) limit the view, and the side view also from your neighbors on either side of you at the same time. The road frontage relief, I don’t think any of us are probably going to be worried about that to any great degree. I mean, that’s a given on a project like this, and numerous times we’ve given relief for that before. The rear yard setback relief, I think there’s room to even think about, would it make more sense to move it a few more feet from the road, even though you’d be closer to the lake, the impact on the lake is not going to be severe. You’re 50 feet now. If you were 45 feet, you know, if that was something that was going to help you out with snow removal and the issues with the plow that the neighbors have brought up, I think that that was something that, you know, we might consider to be a reasonable request also. I mean, only other alternative is to say it’s not a buildable lot, and I don’t think we want to go there completely on that. The overall height thing, I think you’ve addressed that, that you’re going to keep it within the parameters of the 28 foot allowance, and I don’t think that’s something that you can’t deal with reasonably either. The Planning Board is going to have to deal with the stormwater infiltration devices, and it looks to me like you have other issues besides just your lot. Because of the road, it looks like everything comes down off of Route 9, all the way down, and you’re the lucky ones that get all the runoff coming down the road there. So, I don’t know if that’s something, I mean, as you said before, it’s going to be awful hard to infiltrate into solid rock anywhere along that roadway there. You really couldn’t put any kind of catch basins, other than to catch the sand and stuff like that coming off the road. Mr. Navitsky made some pertinent comments about utilizing those rock walls down there. Your stormwater protection plan, using some of those peat systems, and things like that, which have been used on other projects up on the lake. MR. HUTCHINS-And we don’t have a problem with that. MR. UNDERWOOD-No, I don’t think you would have a problem with that, either, but I think what we’ll do is we’ll send a copy of the minutes, and I don’t know what you guys feel like. Anything I said that you disagree with, or do you think that’s reasonable, send this to the Planning Board? MR. GARRAND-I wouldn’t make a recommendation to move the house. I mean, that’s something I wouldn’t do. MR. UNDERWOOD-I would think it would make sense to move the house a little bit closer to the lake. MR. HUTCHINS-I’m sorry, you wouldn’t? MR. GARRAND-Wouldn’t. MRS. JENKIN-Why not? There’s going to be a problem, if that’s their main entrance. MR. GARRAND-I don’t want to tell them where to put their house. They asked for a certain variance. I don’t want to. MRS. JENKIN-Okay. I was just bringing up the problem. MR. UNDERWOOD-But, I mean, I would think it would be reasonable to give you leeway of another five feet closer to the lake or something like that. I don’t think that’s a big deal for anybody, and I think it’s probably going to site the house better for you. Why don’t we send our comments here tonight to the Planning Board, so they can address those issues, and then come back to us with their recommendations. You’re going to have to go to the Town Board of Health, and I would think that’s going to be your Achilles heel there, you know, what they tell you to do. I mean, I think if you’re going to end up doing the blasting project, (lost word) probably going to have second thoughts about it, you know, because I think that’s a major undertaking. The other concern I would have with that is if you’re going to blast five feet down and put pipe and then you’re going to backfill, are you going to create a situation in a major storm event where you blow the whole thing out, all that gravel that you backfilled the ditch with down there, because you do have bedrock, and you know what it’s like when you get those major rain events up there. It runs right down through the woods, because there’s no place else for it to go. Any other things you guys want to add? MRS. JENKIN-No. MR. URRICO-I think that covers it. MR. UNDERWOOD-Okay. All right. So I think what we’ll do is table this for. 39 (Queensbury ZBA Meeting 3/26/08) MR. HUTCHINS-If I can ask Craig. Craig, do we need some form of recommendation to take this before the Board of Health, from this Board? MR. BROWN-I don’t think you need it. You may request that from them and they may offer it, but it’s not required. MR. HUTCHINS-Okay. So we can walk in with an application. MR. BROWN-Walk in with a septic variance application, sure. MR. UNDERWOOD-If you want that from us, I’d be willing to give it to you. MR. HUTCHINS-I think it would be helpful, from that standpoint, if you folks could put that in the form of a recommendation. MR. URRICO-Well, normally we wouldn’t be dealing with septic system issues, unless it was a setback issue. MRS. JENKIN-Yes. MR. UNDERWOOD-Right. MR. URRICO-So how can we make a recommendation one way or the other? MR. UNDERWOOD-Well, we can’t. The Planning Board, I mean, when are you going to the Planning Board? MR. HUTCHINS-Well, our plan was to secure our variances before we go to the Planning Board because they can’t take any action without them. MR. BROWN-Yes. I think if the Board is comfortable stating what you stated, the applicant can certainly take the minutes of this meeting and present your comments to the Town Board as part of their variance argument. It saves you from doing a recommendation. They can certainly say, hey, the Zoning Board said they’d like to see a septic variance for holding tanks. So I agree with Mr. Urrico. I don’t think we want to paint the Zoning Board into a corner to give recommendations on septic systems, but I do think what you want to do, procedurally, is, you know, leave the public hearing open, table this application to a May date, June date to get you back and forth to the Town Board, and give them a specific list of what you want from them when they come back, whether it’s a revised plan, additional landscaping, you know, whatever it is you’re looking for. MR. UNDERWOOD-I think we’ll table this, then, until the second meeting in May, and I think what we’re looking for from the Planning Board is for them to sign off on the major review of the stormwater protection plan, under their advisement as to, you know, whatever they tell you you’re going to have to do to meet the parameters of stormwater protection for the lake, that’s what you’re really going to have to do. MR. HUTCHINS-Okay. I’m confused. Are you anticipating us being before the Planning Board before we come back to this Board? MR. BROWN-Yes. MR. UNDERWOOD-I would think so, yes. I would think it would make sense to have the overall view of both Boards here. I mean, we’re basically telling you that we think that what you’re doing, what you’ve proposed to us here this evening is reasonable. It’s probably the only reasonable solution, and that our recommendation is that the Planning Board review the stormwater protection plan, that the Town Board review the alternative, which would be a holding tank, as opposed to the major blasting project, due to the fact that it’s going to have a lesser impact on the neighborhood, and at that point, come back to us with the variances, and I think that we would be amenable to the, a little bit of jockeying, five feet one way or the other, you know, going towards the lake, that that would give you more room for, you know, the issues that were brought up regarding snow removal on the road in the background. So we’ll table this for up to the second meeting in May. Does somebody want to second it. MR. BROWN-Well, I don’t think, I mean, this is my recommendation. I don’t think that’s a very good motion. I think you want to do a formal, I make a motion to table, and list 40 (Queensbury ZBA Meeting 3/26/08) everything out. You did a lot of conversation here. It’s difficult to condense to a resolution unless you do it start to finish. MR. UNDERWOOD-Okay. MOTION TO TABLE AREA VARIANCE NO. 11-2008 DEBARON ASSOCIATES BY DEBRA SCHIEBEL, PARTNER, Introduced by James Underwood who moved for its adoption, seconded by Roy Urrico: nd Dark Bay Lane, off Route 9L. Tabled until the 2 meeting in May. At that point in time we will have requested confirmation from the Planning Board regarding the stormwater protection plan, as proposed, or any tweaking they want to do to make it compliant. Also, at the same time, that our Board in general feels that the plan as presented here this evening is reasonable. It’s probably the only reasonable thing you could do on that lot, based upon the constraints on the site, that is, you know, taking into account the rockiness of the site, that we also would ask for a confirmation from the Town Board regarding the septic plan, and that our guess is that the better septic plan would be to go to a holding tank, even though it’s not permitted, but the Town can grant it, nonetheless. So, the hardship is there, as far as we’re concerned, and it makes more sense to do that as opposed to doing a massive blasting project, and that as far as the road frontage relief, I don’t think we have a problem with that. The rear setback relief, it’ll probably be not as much as 72% is what we’re requesting now, and that the overall height, I don’t think that’s going to be an issue either, because you’ve already told us you’re going to deal with that. To request a recommendation from the Planning Board on stormwater, to allow the applicant to come back with a revised plan, and to allow the applicant time to appear before the Town Board and get some sort of direction regarding the septic system, and that the minutes of this meeting be provided to both the Town Board and the Planning Board so they understand where we were at. th Duly adopted this 26 day of March, 2008, by the following vote: MR. BROWN-So, just to clarify, before, and I hate to stay on this, but it’s tabled until the second meeting in May. MR. UNDERWOOD-Yes. MR. BROWN-To request a recommendation from the Planning Board on the stormwater, to allow the applicant to come back with a revised plan, and to allow the applicant time to appear before the Town Board and get some sort of direction regarding the septic system. MR. UNDERWOOD-Sure. MR. BROWN-Okay. MR. UNDERWOOD-And that the minutes of this meeting be provided to both the Town Board and the Planning Board so they understand where we were at. AYES: Mr. Urrico, Mrs. Jenkin, Mr. Clements, Mr. Garrand, Mrs. Hunt, Mr. Underwood NOES: NONE MR. UNDERWOOD-We’re going to take a five minute break. AREA VARIANCE NO. 12-2008 SEQRA TYPE: II BILL AND BECKY DEGASPERIS AGENT(S): STEFANIE BITTER, ESQ. BPSR OWNER(S): BILL AND BECKY DEGASPERIS ZONING: WR-1A LOCATION: 28 NORTH LANE APPLICANT PROPOSES CONSTRUCTION OF A 350 SQ. FT. DETACHED GARAGE. RELIEF REQUESTED FROM FLOOR AREA RATIO REQUIREMENTS. CROSS REF.: BP 2006-633 SFD; BP 96-625 SEPTIC ALT. WARREN COUNTY PLANNING: MARCH 12, 2008 ADIRONDACK PARK AGENCY: YES LOT SIZE: 0.26 ACRES TAX MAP NO. 226.19-1-59 SECTION: 179-4-030 JON LAPPER, REPRESENTING APPLICANT, PRESENT STAFF INPUT 41 (Queensbury ZBA Meeting 3/26/08) Notes from Staff, Area Variance No. 12-2008, Bill and Becky Degasperis, Meeting Date: March 26, 2008 “Project Location: 28 North Lane Description of Proposed Project: Applicant proposes construction of 350 sf detached garage. Relief Required: Applicant requests relief for the 350 sf garage which will result in the Floor Area Ratio for the property to rise to 25% versus the allowable 22%. 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 desired garage and gain additional storage space on the property. 2. Feasible alternatives: There feasible alternatives are limited as the recently constructed home was built to the maximum allowable Floor Area Ratio. 3. Is this relief substantial relative to the ordinance?: The proposed 25% FAR total versus the 22% as allowed by code may be interpreted as moderate. 4. Effects on the neighborhood or community: Will the proposed garage require an additional driveway? 5. Is this difficulty self-created? The difficulty, while perhaps not directly connected to the current owner, may be attributed to the plan change during construction which removed the originally designed garage in favor of a sunken family room. Parcel History (construction/site plan/variance, etc.): BP 2006-633 Single Family Dwelling C/O issued 8/24/07 Staff comments: The original Building Permit for this home called for a 440 sf two car garage on the westerly end of the home with a potential “unfinished storage room” above the garage. The plans were subsequently revised to eliminate the garage in favor of a sunken family room. The “unfinished storage room” was constructed as a finished room which created a Floor Area Ratio in excess of the allowable 22%. The developer at that time was required to remove the finishes in that room and close off the doorway leading to that room before a Certificate of Occupancy was issued. Consideration might be given to discussing this matter as the future use of such space (approx. 280 sf) would create an even larger FAR excess. SEQR Status: Type II” MR. UNDERWOOD-“Warren County Planning Board Project Review and Referral Form March 12, 2008 Project Name: Degasperis, Bill and Becky Owner(s): Bill and Becky Degasperis ID Number: QBY-08-AV-12 County Project#: Mar08-33 Current Zoning: WR-1A Community: Queensbury Project Description: Applicant proposes construction of a 350 sq. ft. detached garage. Relief requested from Floor Area Ratio requirements. Site Location: 28 North Lane Tax Map Number(s): 226.19-1-59 Staff Notes: Area Variance: The applicant proposes the construction of a 350 sq. ft. detached garage. Relief requested from Floor Area requirements. The information submitted indicates the lot is 0.26 acres with a 1,585 sq. ft. (foot print) home on the lot. The construction of the garage results with a 25% floor area with the maximum allowed is 22%. The information submitted also indicates the garage meets all the required setbacks for the zone. Staff does not identify an impact on county resources based on 42 (Queensbury ZBA Meeting 3/26/08) the information submitted. Staff recommends no county impact. Warren County Planning Board Recommendation: No County Impact” Signed by Richard C. Merrill, Warren County Planning Board, 3/17/08. MR. LAPPER-For the record, Jon Lapper with Bill Degasperis. The Staff Notes are our application pretty much sum it up. The house was nearly complete. They closed on it in August, the day after the CO was issued. Bill and his wife had nothing to do with the garage coming out, and probably the builder realized it was a small house and thought it would be easier to sell if it had the family space, and it is a lovely house, and that living room/family room is nice, but then they get there and realize that they have no place to put their stuff. So when he came in to see me, to talk about this, you know, we discussed trying to have a minimal application, and so the proposed garage at 350 square feet, that’s set back farther than the house, and to utilize that existing driveway area, there’s plenty of room to stay off of the septic field and use that area that the drive, not to pave it or to gravel it, but just to use the dirt drive area that was there from the prior house is sufficient and it would just sort of curve around to the garage right at the end. We hope you view this as a minimum application, or request for relief for a small garage. It’s not a two story anything. There’s no storage upstairs, but just in terms of lawn equipment and a car, just to have a place to store it, and I think, I’m sure you all went to the site, and the landscaping was all done by the present owners. It wasn’t done by the builder, and they certainly do a very nice job of maintaining the property. It looks lovely, and the garage would tend to fit right in. So it’s 25%, when 22 is permitted, and obviously that’s, you know, additional relief that we’re asking you to grant, but just a way to neaten up the property and have a place to put their stuff. MR. UNDERWOOD-Craig, what were the circumstances as far as your experience with it? Did they decide they were going to do the sunken thing without your knowledge of it? MR. BROWN-No, that was during the construction of the home they made a change, sunken living room, garage. The square footage in that area didn’t change, so as long as they met the Building Code requirements, it wasn’t a big deal. MR. UNDERWOOD-Was there any kind of like discussion as to the effect that it was going to screw things up by not having a garage or did they just think it was going to sell the house better? MR. BROWN-Not with me. It was handled strictly in the Building Department, just a plan change. MR. UNDERWOOD-How about the experience with it over the garage or which is now the, I mean, you had to deal with that. MR. BROWN-Yes, that I did definitely had to deal with, and there was some, and it’s not directed to this applicant. They weren’t involved, but there was some difficulty gaining compliance and ultimately it was agreed and inspected by our Building Inspectors, the insulation and wiring and sheet rock and everything was taken out of that bonus room above what used to be the garage, and now it’s above the living room, and that wall, that doorway that lead in there was closed off, and it was sealed at the time of CO. I hope it’s still that way, and I hope it remains to be that way in the future. Because, again, that area would count as Floor Area Ratio. MR. UNDERWOOD-Sure. BILL DEGASPERIS MR. DEGASPERIS-Yes, we haven’t touched anything since the CO was given. MR. UNDERWOOD-Because my suggestion was going to be, you know, in other words, if you’re looking for storage, would there be any problem to create storage capability up there if you had an outside entrance to it, like a stairway leading up to it? MR. BROWN-Up where? MR. UNDERWOOD-Up to that area above that’s been taken out? MR. BROWN-Again, if it’s finished to any degree and there’s access to it, you know, as egress, it kind of counts as that Floor Area Ratio. 43 (Queensbury ZBA Meeting 3/26/08) MR. LAPPER-The issue is that this is stuff like gasoline stuff that you wouldn’t want to have in the house. MR. UNDERWOOD-Sure, I understand that. MR. DEGASPERIS-Yes. We put the sod in, my wife and my boys, and if you saw my lawnmower and my tools are all chained to the propane tanks right now, in the back. My wife said, listen, that can’t look like that. So that’s when we said, well, I can’t put it in the basement. I can’t go through the house to get to the basement. I just realized I didn’t realize how important a garage was as one example. MR. UNDERWOOD-What’s the maximum storage shed we would allow automatically, 200? MR. BROWN-The maximum allowable is 500 square feet. MR. UNDERWOOD-Five hundred square feet. MR. BROWN-But you can’t have a garage door on that. You can’t get a vehicle in that. MR. CLEMENTS-There’s a temporary lean-to in the back. MRS. JENKIN-There’s a temporary lean-to. MR. LAPPER-That lean-to is gone. MR. DEGASPERIS-That was gone before we bought it. MR. LAPPER-Yes. That’s still on the survey. Yes. I asked about that. That’s incorrect. So that record should show that that’s been removed. MR. BROWN-That’s been removed, yes. MRS. JENKIN-I guess I don’t understand what you’re going to do with a driveway. You said something about you’re just to have a dirt driveway? MR. LAPPER-Here’s the picture of the driveway. MRS. JENKIN-Yes, that’s on the left hand side of the house now. MR. LAPPER-Right. There’s also a driveway on the right hand side. It’s just this dirt driveway. MRS. JENKIN-There is? MR. DEGASPERIS-That was actually existing. They’ve got the new plans. That was the driveway for the original house. MR. LAPPER-When the original house was knocked down. It’s just that the sod ends and there’s compacted soil here. So it’s just going to go straight back the way it is and just turn a little bit because the garage structure will be closer to the house. MRS. JENKIN-It might have been covered with snow. MR. LAPPER-Yes, I’m sure of that. MRS. JENKIN-Perhaps. MR. LAPPER-That’s what it looks like. MRS. JENKIN-So it’s just dirt now. MR. LAPPER-Yes, that’s correct. MR. DEGASPERIS-Very hard dirt, and don’t even use the sod as an example, because that’s just as much sod as we ordered. MRS. JENKIN-The picture is very strange. 44 (Queensbury ZBA Meeting 3/26/08) MR. LAPPER-The perspective? MRS. JENKIN-Yes, very strange. It doesn’t look like your house at all. MRS. HUNT-So that crushed stone driveway, will that remain? MR. DEGASPERIS-Yes. We’re not intending on paving anything. My wife likes, we both like as natural as possible. MR. UNDERWOOD-What have you got, on that end of the house where the garage was going to go, that family room’s got a big fireplace on that end of the building there, too, right? MR. LAPPER-That, right there. Fireplace? MR. DEGASPERIS-Yes, it’s a fireplace. MR. LAPPER-Yes, it is a fireplace. MR. UNDERWOOD-I mean, the only other thing I can consider here is that you make it into one of those snout houses, you know, with the garage that sticks out towards the road. There’s no place to park except in the garage. I mean, it seems to me like we’re pretty much building out the whole property with not much left for house. MRS. JENKIN-Did you say that a storage shed is allowed? MR. BROWN-Yes, a storage shed is allowed. Anything over 100 square feet counts against the Floor Area Ratio, though. MRS. JENKIN-So it can only be 100 square feet. MR. BROWN-Anything over counts against the Floor Area Ratio, yes. That’s right. MR. LAPPER-And the problem is you couldn’t put a car in. MR. BROWN-Yes, and if one of the objectives is to get a car in the building, then that’s a pretty small car. MRS. JENKIN-Yes, but it would be enough for your lawnmower and equipment to have a storage shed like that. MR. UNDERWOOD-Who did you buy this from? Who were the people that built it? MR. LAPPER-It was a builder, right? MR. DEGASPERIS-Builder, yes. Mike Chrys. MRS. JENKIN-So it’s a newly built home. MR. DEGASPERIS-Yes. MRS. JENKIN-It was built in 2008. MR. LAPPER-Seven. MR. UNDERWOOD-Okay. Do we want to open up the public hearing? Does anybody else have any questions they want to ask? Should we open up the public hearing? Anybody wishing to speak on this? PUBLIC HEARING OPENED MR. CLEMENTS-Just one. The pictures that are with this, are these, is that like something you want to put in there? MR. UNDERWOOD-It’s going to be one of those ones that you just order and they drop it off the truck, dump it off? MR. LAPPER-Yes. 45 (Queensbury ZBA Meeting 3/26/08) MR. UNDERWOOD-Are you going to pour a slab on it or anything? MR. LAPPER-A slab? MR. DEGASPERIS-Undecided. I’d have to ask them what their recommendations are. MR. UNDERWOOD-Usually you’ve got to have something for it to sit on. MR. LAPPER-Well, I was just looking through this during the last application, and they’ve got site preparation with crushed stone. So I guess you could do either way. MRS. JENKIN-Crushed stone is a real problem, though, it really is. MR. UNDERWOOD-What does everybody think about where they’re trying to site it? Do you think there’s a better place than that? MR. CLEMENTS-Well, yes, I had a question about that, because I see where the, and it says that the septic design is on file with the Town, and then there’s a, but you’ve got an approximate location of your septic tank and the field there. If you put that garage there, is that going to be over the top of any pipes or anything that are going from the septic tank to that field? MR. LAPPER-What he’s asking is, the septic tank is here and the field is here. MR. DEGASPERIS-No, I was told that there wasn’t, that the garage would, and that was one of the things, one of the considerations I had worried about, and they told me it was okay. MR. LAPPER-I can see here I’ve got it. Brian, I’ve got the, this was the original septic tank from the other house and the field, and it goes straight across in the back. I’ll show you. MR. CLEMENTS-How does it match this? MR. LAPPER-It goes from right there, like that. MR. CLEMENTS-So this goes actually back further? MR. LAPPER-Yes. MR. CLEMENTS-Okay. MR. UNDERWOOD-How does the size of this house compare to the other ones in the neighborhood, Craig, would you say? Are they all about the same size down there? Or do these guys get a big bonus for that extra room and stuff? MR. BROWN-The extra room in the garage that was converted to the family room? MR. UNDERWOOD-Yes. MR. BROWN-No. Like I said, the Floor Area Ratio number is the same whether it’s garage or living space. MR. LAPPER-It’s about 2400 square feet. MR. BROWN-Yes, I don’t think it’s out of ordinary for the neighborhood. MR. UNDERWOOD-Okay. Anymore comments the Board wants to make? MRS. HUNT-What about the size of the garage. Is that a typical? MR. UNDERWOOD-That’s about as small as you can go. MR. LAPPER-Yes. MR. UNDERWOOD-Are you going to use it for vehicles or storage of junk, because you’re not going to have much room in there with a car in there? 46 (Queensbury ZBA Meeting 3/26/08) MR. DEGASPERIS-You could get the rakes and things along the wall, lawnmower in the back, or something like that, and just get the car in. Because the car is important, I think, for the winter? MR. UNDERWOOD-I mean, what if you get into a situation where you don’t really have enough room for all your stuff? I mean, I don’t know where you’re going to put it, other than to go, I mean, they can’t add a shed on there either, can they? MR. LAPPER-No. MR. UNDERWOOD-Without coming in at that point. If we’re going to grant them all this extra relief. MR. BROWN-Under 100 square feet, they technically could get a shed, yes. MRS. JENKIN-Do you want our questions or our opinions? MR. UNDERWOOD-Well, I guess I’ll close the public hearing. PUBLIC HEARING CLOSED MR. UNDERWOOD-And then I guess I’ll poll the Board. I’ll start with you, Brian. Or if you have any questions, first. Are you guys ready to poll or what do you want to do? Okay. Sure. Go ahead. MR. CLEMENTS-I think that Jon answered my question about the septic. I think that probably, you know, you could put a storage shed there. You’ve taken out the temporary lean-to in the back. It’s a small piece of property. You don’t need any variances for setbacks. It’s going to fit in there without that, and in looking at all the other properties around there, I would probably be in favor of this. MR. UNDERWOOD-Okay. Rich? MR. GARRAND-I’m basically looking at this, when you look at the property, it’s a small, it’s a very, very small piece of property. Twenty-five percent isn’t a whole lot, but also I’d be in favor of it if you put the stipulate in there that there’s never any expansion over the bonus room, such as, you know, a stipulation that they never expand that storage space, thereby also increasing the Floor Area Ratio of this place, you know, conditioned that if they ever do finish off the area above the bonus room, that they have to remove the garage. MR. LAPPER-That sounds reasonable. Would you agree to that as a condition? MR. DEGASPERIS-Yes. MR. LAPPER-Yes, that’s acceptable. MR. GARRAND-Okay. I’m in favor. MR. UNDERWOOD-Okay. Joan? MRS. JENKIN-I just, I feel it’s a small lot. I feel that the builder made a large mistake, because it is important in this area to have a garage, but he did it to sell it, and you bought it knowing that you didn’t have a garage, and you didn’t have the space to put a garage in because of the Floor Area Ratio and the size of the lot, and I will not be in favor of this, because I think that it’s substantial because of the property itself. I think that putting another, I should go through these, the criteria, so I am going to. I think, because of the size of the property, and looking around the other homes around it, too, I think having another building such as you’re planning to put in there is an adverse effect to the neighborhood. I don’t think that it would add to the neighborhood having one of those little tiny garages put in, and I think it’s probably self-created because you bought the house knowing that there was not a garage. So I’m not in favor of it. MR. UNDERWOOD-Joyce, go ahead. MRS. HUNT-Well, I think this is a modest request, a small garage. I don’t think there are really any other feasible alternatives, and I don’t think, I think it’s only a moderate proposal, going from 25% FAR to 22%, and I don’t think it was self-created by you, and I feel that I’d be in favor of it. 47 (Queensbury ZBA Meeting 3/26/08) MR. UNDERWOOD-Yes. To sum up the feelings of the Board, I think the only other thing to do would be to, like, you know, force you to take out the family room and turn it into a garage, which would probably lessen the appeal of why you bought the home, you know, with that extra living space there. I don’t know what’s going to happen in the future with that unfinished room up there. You say to yourself, in the grand scheme of things, how long is it going to stay unfinished or unused, you know. I mean, that’s a difficulty that you’re going to have to deal with yourself down the road, and that was created by the builder who was building this building as a spec house, obviously. The original building permit called for a 440 square foot, two car garage, and you’re only going to get a 350 square foot garage, which is going to house a single car and all the junk that we all accumulate over our life spans. So, I don’t know, I mean, it’s hard to tell people you can’t have a garage, and in the grand scheme of things, I don’t think this lot here is going to be changing the neighborhood to any great degree by adding that smaller garage onto the site there. I mean, it’s a fit, as far as I’m concerned. It’s not an unreasonable request. I think it is a reasonable request. So I think we can issue it, based upon the fact that we’ll consider you to be an honest, upstanding member of the community that’s not going to develop that other part of your house. If you do, and the Town finds out, you’ll be in big trouble. MR. LAPPER-And we’ll agree to that. That’ll be a condition right in the approval. MR. UNDERWOOD-So does somebody want to make the motion? MR. GARRAND-I’ll make a motion. MOTION TO APPROVE AREA VARIANCE NO. 11-2008 BILL AND BECKY DE GASPERIS, Introduced by Richard Garrand who moved for its adoption, seconded by Joyce Hunt: 28 North Lane. The applicant proposes construction of a 350 square foot detached garage. The applicant is requesting relief for a 350 square foot garage which will result in the Floor Area Ratio of approximately 25% versus the 22% allowed by Code. With the balancing test, whether the benefit can be achieved by other means feasible to the applicant, the benefits cannot be achieved by any other reasonable means available to the applicant. Will this cause an undesirable change in the neighborhood? (DUE TO TAPE PROBLEMS – SOME OF MOTION WAS LOST) th Duly adopted this 26 day of March, 2008, by the following vote: AYES: Mrs. Hunt, Mr. Clements, Mr. Garrand, Mr. Underwood NOES: Mrs. Jenkin ABSENT: Mr. Urrico APPROVAL OF MINUTES February 27, 2008 MOTION TO APPROVE THE QUEENSBURY ZONING BOARD OF APPEALS MEETING MINUTES OF FEBRUARY 27, 2008, Introduced by James Underwood who moved for its adoption, seconded by Richard Garrand: th Duly adopted this 26 day of March, 2008, by the following vote: AYES: Mr. Garrand, Mrs. Jenkin, Mr. Clements, Mr. Underwood NOES: NONE ABSENT: Mr. Urrico On motion meeting was adjourned. RESPECTFULLY SUBMITTED, James Underwood, Acting Chairman 48