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1999-11-18 (Queensbury ZBA Meeting 11/18/99) QUEENSBURY ZONING BOARD OF APPEALS SPECIAL MEETING NOVEMBER 18, 1999 7:00 P.M. MEMBERS PRESENT CHRIS THOMAS, CHAIRMAN DANIEL STEC CHARLES ABBATE ROBERT MC NALLY LEWIS STONE MEMBERS ABSENT CHARLES MC NULTY PAUL HAYES CODE COMPLIANCE OFFICER-CRAIG BROWN STENOGRAPHER-MARIA GAGLIARDI NEW BUSINESS: AREA VARIANCE NO. 99-1999 TYPE II MR-5 MH SINGLE SITING LINDA MITCHELL OWNER: SAME AS ABOVE OHIO AVENUE APPLICANT PROPOSES PLACEMENT OF A MOBILE HOME ON A LOT AND SEEKS SETBACK RELIEF. TAX MAP NO. 127-5-4 LOT SIZE: 0.14 ACRES SECTION: 179-18 LINDA MITCHELL, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 99-1999, Linda Mitchell, Meeting Date: November 18, 1999 “Project Location: Ohio Avenue Description of Proposed Project: Applicant proposes placement of a mobile home and seeks setback relief. Relief Required: Applicant requests 5 feet of relief from the 30 foot minimum front setback requirement and 5 feet of relief from the 10 foot minimum rear setback requirement of the MR-5 zone, § 179-18. Criteria for considering an Area Variance according to Chapter 267 of Town Law: 1. Benefit to the applicant: Applicant would be permitted to place a mobile home in the desired location. 2. Feasible alternatives: Feasible alternatives appear to be limited as size of the home can not be changed nor can the lot be increased easily. 3. Is this relief substantial relative to the Ordinance?: 5 feet of relief from the 30 foot and 10 foot requirements may be interpreted as moderate. 4. Effects on the neighborhood or community: Minimal effects on the neighborhood may be anticipated as a result of this action. 5. Is this difficulty self-created? The difficulty may be attributed to the pre- existing configuration of the lot and the size of the home proposed. Parcel History (construction/site plan/variance, etc.): None applicable Staff comments: Minimal impacts may be anticipated as a result of this action. This proposal is consistent with the neighborhood and community. SEQR Status: Type II” MR. THOMAS-All right. Is Linda Mitchell here? Do you want to come up here, somebody may have a few questions to ask you. All right. You’re going to be bringing this mobile home out of a trailer park onto this lot? MISS MITCHELL-Yes. MR. THOMAS-How old is the mobile home? MISS MITCHELL-I think it’s 1976. MR. THOMAS-Yes, ’76 is Code. MR. BROWN-Yes. MISS MITCHELL-Excuse me. I had the Town come and look at the trailer. They gave me a piece of paper saying it could be moved. That was before I realized there wasn’t enough room on the lot. They came and inspected it, and they gave me a piece of paper stating that it could be moved. MR. THOMAS-All right. 1 (Queensbury ZBA Meeting 11/18/99) MR. MC NALLY-You’re buying this land? MISS MITCHELL-Yes, I am. MR. MC NALLY-Have you purchased it already? MISS MITCHELL-I’ve paid half of it. MR. STONE-There’s an empty lot, it appears, to the north of your property. MISS MITCHELL-Yes, there is. MR. STONE-That belongs to the house beyond that lot, that gentleman back there? MISS MITCHELL-That lot doesn’t belong to the lady I’m buying the property from. MR. THOMAS-Anymore questions for the applicant? No? If not, I’ll open the public hearing. Anyone wishing to speak in favor of this application, in favor of? PUBLIC HEARING OPENED ROBERT CLARK MR. CLARK-I own the property north of it there, and I’ve got no problems with it. MR. THOMAS-Okay. Could you state your name for the record? MR. CLARK-Robert Clark. MR. THOMAS-Okay. MR. CLARK-Of Ohio Avenue. MR. THOMAS-Okay. Is there anyone else that would like to speak in favor of this application? Would anyone like to speak opposed? Opposed? Is there any correspondence? MR. STEC-No. MR. THOMAS-No correspondence. I’ll close the public hearing. PUBLIC HEARING CLOSED MR. THOMAS-Anymore questions for the applicant? MR. STONE-Would you consider this trailer in good shape, externally? MISS MITCHELL-Externally, I have to paint the outside. It needs some painting, but other than that, yes, and we’re going to do that in the spring. MR. STONE-Okay. So if we made that a condition of a variance, it wouldn’t bother you? MISS MITCHELL-It wouldn’t bother me in the least. MR. MC NALLY-Is it going to be on a foundation? What’s it going to be on, piers? MISS MITCHELL-It’s going to be on a slab. I mean, I got the stuff from the Town stating what I need, and it’s going to be on a cement slab. MR. MC NALLY-There’s an old foundation there right now, right? MR. THOMAS-Yes. MR. MC NALLY-There wasn’t a real slab, was there? MR. THOMAS-No, that’s not the slab. It wouldn’t fit on that slab. MISS MITCHELL-The slab would be made, and we’re going to use, there’s a small part of a foundation we’ll extend with, that’ll be part of the patio. The trailer will go to that point. That’s 2 (Queensbury ZBA Meeting 11/18/99) going to be used as part, you know, it’ll be cement over it to make it look right, but, I mean, that’ll be part of a patio coming out the door. MR. MC NALLY-Are you going to pour a concrete patio, is that what you’re going to do? MISS MITCHELL-Yes. MR. MC NALLY-Are you going to do it this fall? MISS MITCHELL-They told me that if this was approved tonight, I could get my building permit tomorrow. The guy that’s working on it will start this weekend, and according to, if we can get every step inspected right along the road, we hope to be in by the end of the month, the end of December. MR. THOMAS-Anymore questions? Are we all set? All right. We’ll talk about it. Lew? MR. STONE-Any time I see a project in what I call the States area, that is designed to make it better, I’m always in favor of that. Obviously, these are small lots. A mobile home on this lot is going to require a variance wherever you put it. The only condition that I would put on is what I just asked you, are you going to paint it. Because we’ve been granting these variances on the basis that it’s going to improve the neighborhood, and this is very important to us and to the Town, and if you’re willing to say you’re going to paint it, I have no problem with this. MISS MITCHELL-Well, that was the plan anyway. You could put it for the variance, that’s fine with me. MR. STONE-Good. MR. THOMAS-Okay. Bob? MR. MC NALLY-I don’t have a problem with it. Five feet of relief from 30 foot and 10 foot requirements really is not substantial, in my mind, given the size of this lot and the size of the proposed mobile home. It would be in conformity with the neighborhood, and I don’t see any effect on the neighborhood, except to better it. MR. THOMAS-All right. Chuck? MR. ABBATE-I think the questions have been answered for me, thank you. MR. THOMAS-All right. Dan? MR. STEC-I agree with the rest of the Board. The benefits far outweigh the granting of this level of relief. I have no problem with it. MR. THOMAS-All right. I agree with the other Board members, that this is a good project on this lot. It’ll take an empty lot and put a mobile home on it. It would probably improve the neighborhood, and I would agree with Mr. Stone the fact that as part of the variance, that the home will be painted next spring, when painting season opens. Having said that, I would ask for a motion. MOTION TO APPROVE AREA VARIANCE NO. 99-1999 LINDA MITCHELL, Introduced by Robert McNally who moved for its adoption, seconded by Lewis Stone: Ohio Avenue. Ms. Mitchell proposes the placement of a mobile home and seeks setback relief. Specifically, she asks for five feet of relief from the 30 foot minimum front setback requirement, and five feet of relief from the 10 foot minimum rear setback requirement of the MR-5 zone, that is Section 179-18 of the Town of Queensbury Zoning Ordinance. The benefit to the applicant would be that she would be permitted to place a mobile home in the desired location and have a home, something that she does not have, or at least she rents a home, if you will. The alternatives appear to be limited, as the size of the home cannot be changed, nor can the lot, which is undersized, be increased easily either. The relief is not substantial to the Ordinance. Five foot of relief from the thirty foot and ten foot of relief from the rear setback requirements are not, in my opinion, going to have any substantial effect upon the neighborhood or community, other than to improve it. I don’t see the difficulty as self-created. This approval motion is premised upon the applicant painting, freshly painting, the home by the end of next spring. With that, I move the approval of the application. Duly adopted this 18 day of November, 1999, by the following vote: th MR. BROWN-Do you want to pick a date for the painting? 3 (Queensbury ZBA Meeting 11/18/99) MR. THOMAS-Yes, the end of spring, the last day of spring. I don’t know what the last day of spring is. MR. STONE-June 21, or something like that. st MISS MITCHELL-June 21 summer starts. st AYES: Mr. Stone, Mr. Stec, Mr. Abbate, Mr. McNally, Mr. Thomas NOES: NONE ABSENT: Mr. McNulty, Mr. Hayes MR. THOMAS-There you go. See if you can have it done before the end of December. MR. STONE-Go get your building permit. MISS MITCHELL-So I can go up tomorrow morning and just get it? MR. THOMAS-Yes. MISS MITCHELL-Okay. Thank you. USE VARIANCE NO. 100-1999 TYPE: UNLISTED LI-1A LARRY & TERI WHITE OWNER: HENRIETTE LIEBER 11 HOMER AVENUE APPLICANT PROPOSES A PROFESSIONAL OFFICE USE, MASSAGE THERAPY, AND SEEKS RELIEF TO ESTABLISH A USE NOT PERMITTED IN THE ZONE. TAX MAP NO. 107-1-34 LOT SIZE: 0.49 ACRES SECTION 179-26 MARTIN AUFFREDOU, REPRESENTING APPLICANT, PRESENT MR. STEC-I have a letter from Jonathan C. Lapper, dated October 27, 1999, Bartlett, Pontiff, Stewart and Rhodes, attorneys at law. “Dear Mr. Thomas: On behalf of Larry and Terri White, I hereby enclose a Use Variance application for a proposed massage therapy/home occupation use at 11 Homer Avenue, in a pre-existing nonconforming residence which is located in the Light Industrial 1 Acre zone. The home is owned by Henrietta Lieber, a widow who is living in Hallmark Nursing Home. Her resources are being managed by Evergreen Bank, NA Trust Department, and they are severely strained by the fact that her home has been left vacant without any interest other than the proposed use. It is apparent that the lack of interest in purchasing the home is due to the changed character of the former residential street. The home is surrounded by industrial and commercial uses as well as a few remaining residences. The proposed use shall be viewed as a transitional use between the former residential uses and the existing uses. It is the minimum variance which would be requested because it will involve virtually no exterior modifications to the building or site, and it is similar to the Lockhart Chiropractic use two doors down. Please place this matter on the agenda for the November 24 Zoning Board of Appeals meeting, as I will be out of town the evening of the th 17 of November. Very truly yours, Jonathan C. Lapper” th STAFF INPUT Notes from Staff, Use Variance No. 100-1999, Larry & Teri White, Meeting Date: November 18, 1999 “Project Location: 11 Homer Ave. Description of Proposed Project: Applicant proposes a professional office use, massage therapy, and seeks relief to establish a use not permitted in the zone. Relief Required: Applicant requests relief from the allowable uses listed for the Light Industrial 1 acre zone, § 179-26 to allow a use not permitted. Criteria for considering a Use Variance according to Chapter 267 of Town Law: 1. Can the applicant realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence? It does not appear that the applicant has demonstrated the lack of reasonable return for “each and every permitted use under the zoning regulations for the particular district.” 2. Is the alleged hardship relating to the property in question unique, and does this hardship apply to a substantial portion of the district or neighborhood? The hardship does not appear to be unique. Surrounding residential properties are similarly affected. 3. Will the requested use variance, if granted, alter the essential character of the neighborhood? The essential character of the neighborhood appears to be residential in nature and industrial by zoning. The introduction of a professional office does not appear to be consistent with either condition. 4. Is the alleged hardship self-created: The alleged hardship could be interpreted as self created. Has the applicability of all other uses been explored. Parcel History (construction/site plan/variance, etc.): None applicable Staff comments: With the lack of financial information to the contrary, it appears as though several of the listed uses could be established on this property. SEQR Status: Type: Unlisted” 4 (Queensbury ZBA Meeting 11/18/99) MR. THOMAS-All right. Mr. Auffredou MR. AUFFREDOU-Yes. Good evening, Mr. Chairman, members of the Zoning Board. My name is Martin Auffredou. I’m here tonight for Jon Lapper. Let me introduce our team. We have Teri and Larry White, and Tom Haley. We know that a Use Variance is hard to come by, and that you have a, we have a tough burden in demonstrating for this, and you have a tough call to make on all of these, but we do feel that this property, and our presentation tonight, warrants a favorable outcome. The property is 11 Homer Avenue. It’s zoned Light Industrial One Acre. The owner, as you know, is in a nursing home. Tom Haley has listed the property since June of ’99. There has been virtually no interest in this property for any of the permissible uses. The only serious interest that Tom has, and Tom is here tonight to talk to you about that, is through the Whites. The Whites are going to live at this premises. This is going to be their home, and that we need to make very clear. I’m not sure if that was made very clear in the application, but they are going to live there. It’s going to be their residence. The massage therapy business is really a non-intrusive business. Teri White will tell you, she’s the massage therapist, she will tell you that the proposed use, as a home occupation, will be really a minimal use. There will be, perhaps, a sign, a single sign, which may be attached. It will be small in size. It will be whatever the zoning requirements allow, and there may, in fact, not even be a sign, but this will be their residence. What we see tonight is we see a unique opportunity for the Zoning Board to take a look at this property and say, this is an opportunity for us to get a positive result. This property is a stressed property. It’s in need of repair. It’s in need of some TLC. It doesn’t look great. Yes, it’s in a Light Industrial zone. That’s not our fault. The Town zoned it that way, but it is a residence. It’s a pre-existing, nonconforming use in this Light Industrial zone. The Whites are here tonight to tell you that they intend to spruce it up. They want to be proud of their place. Obviously, if she’s going to have a professional office inside, she doesn’t want it to look like it does now, and it is in need of some TLC. It’s a small wooden frame house with a ramp and deck. There are two separate driveways, as depicted on the map. It’s vacant. It’s been vacant for a considerable period of time, obviously in very poor condition. The assessed valuation is $60,000. The Whites are the contract vendees, perspective purchasers of this property. As you know, they have a contract with Evergreen Bank that’s managing the property under Power of Attorney, and the sale price is $36,000. We’re not talking about a humungously expensive piece of property here. We’ve talking about a stressed piece of property in a neighborhood that is a nice neighborhood. It’s well maintained. This particular piece of property is a bit of an eyesore. I was there this morning, and again, you have an opportunity here tonight to approve something very positive for this property, and to improve the neighborhood, in my estimation. The proposed use is residential, massage therapy, non intrusive, very little traffic, perhaps one car there at a time, at the very most, one customer at a time. They’re going to spruce it up. The use of a massage therapist is obviously not on the Type II list. That’s why we’re here tonight. The financial aspect of this, I have a letter from Tom Haley that I’d like to hand out to you. We believe that we can establish that there can be no reasonable return on this property for all of the listed uses. If you look at the listed uses in this zone, a freight terminal, extraction of sand, stone and gravel, restaurant, light manufacturing or assembly, heavy machinery repair facility, things of that nature. This is a .49 acre property with an existing single family residential structure on it. We maintain that no one is going to come to this less than one half acre property and establish a Light Industrial use. It’s just common sense. It’s not going to happen, without taking the building down and acquiring additional lands for a major light industrial use. It’s just not going to happen, on a piece of property less than one half an acre. With that in mind, what I’d like to do, at this point, is to read Mr. Haley’s letter into the record. It’s dated today, and Mr. Haley has asked me to read this. It’s dated today. It’s addressed to the Chair of the Zoning Board of Appeals. “Dear Sir: My name is Thomas Haley, Licensed Sales Associate of Balfour Realty, Inc. I listed the property of Henrietta Lieber, Evergreen Bank Power of Attorney, at 11 Homer Avenue in Queensbury for sale on June 24, 1999. The assessed value of the property is $60,700. It was listed for $39,000, and we have a contract pending for $36,000 for use by a massage therapist. I first attempted to market this property as a single family residence. No one, after viewing the property, wished to purchase it, after finding out it was zoned Light Industrial. I attempted to market the property for Light Industrial use, but because of the size of the building and the property, I could see this would not consummate a sale. On August 30, 1999, Teri White committed to buy the property, provided she could get a Use Variance for a professional New York State licensed massage therapist. Her practice will be limited to approximately five patients per day. She also plans to live in this home. It is a practical application for the best use of this property, and two lots away is a large building that already houses a chiropractor with a massage therapist on staff. Clearly, the requested use is much more suitable for the neighborhood than any of the uses provided by the Light Industrial code, which would be out of character for the existing homes. The owner of this property is a patient at Hallmark Nursing Home and can never return to live in this house. The sale of this property would certainly enable her to pay her medical expenses. Clearly the zoning of this property is causing the owner an undue hardship. After reviewing the Town of Queensbury code 179-26 section 3-site plan review uses type II. The allowable uses for the property include: Freight Terminal, extraction of sand, stone or gravel, a restaurant, building supply/lumber yard, and similar storage yard, and light manufacturing, assembly or other industrial or research operation meeting the requirements of this chapter, warehouse for enclosed storage of goods and material, 5 (Queensbury ZBA Meeting 11/18/99) distribution plants, or wholesale bargain, laboratory, office building in excess of 10,000 sq. ft. Truck repair facility, heavy machinery repair facility, television and radio station, construction company, logging company, heavy equipment storage, heavy equipment sales, agricultural service use, passenger limousine and or bus storage and terminal facility. I feel the cost involved in transforming this building is not feasible. In all honesty, the building would have to be torn down and a new building erected on this property and the property is only 150 feet wide. I feel it would be in the best interest of all parties concerned to approve the variance as requested. Sincerely, Thomas Haley Sales Associate Balfour Realty, Inc.” Again, I think also from a financial aspect of it, that the Town should look at it that, does the Town want this to remain vacant and decaying, unused? Does the Town want to take advantage of an opportunity to get an owner in here, a responsible owner, someone who is going to make some improvements? The interior is not designed for any use listed on the Type II list. It’s just not. It is designed for residential use and for incidental use for a home occupation for a massage therapist, with modifications, not major modifications, but with modifications. The uniqueness, it’s a residence in a Light Industrial zone. You either take the residence down, as Mr. Haley indicated, which isn’t feasible here, or you continue the residential use with a home occupation. That’s the only way this property is going to work. The character of the neighborhood, we think this is a non-intrusive use. Again, maybe a car there, maybe five patients a day, five clients a day, if you will, a car there, not more than one car there at a time. It’s not going to happen. Really the neighborhood isn’t going to change as a result of this use by any stretch of the imagination at all. I don’t think anyone with a straight face could say this is going to change the character of the neighborhood. There is a chiropractic office down the street, as you know, which I understand is on the Type II list as a 10,000 square foot building. There’s a bookkeeping business on this road. There are other commercial enterprises on this road. We maintain that the hardship is not self created. The Town was the entity that zoned this Light Industrial, and this house was here at the time the Town instituted that zoning. So we are a pre-existing, nonconforming use, which we believe deserves and warrants an approval of the Use Variance. MR. THOMAS-All right. My first question is, the ramp and deck that are on the front, is that because of the present owner, she had that installed because of a disability for access? TOM HALEY MR. HALEY-That’s correct. MR. THOMAS-Does anyone else have any questions, while I’m thinking of more? MR. ABBATE-I do, if I may. Mrs. White, Counselor, how are you. I’m a new member, as evidenced by the fact I have no name plate. So in addition to that, I ask you to indulge me when I ask some basic questions, please. MR. AUFFREDOU-We understand. MR. ABBATE-Your client answered, to the question is a reasonable return possible if the land is used as zone, and your client responded no, and then you indicated is assessed for $60,700, and the contract price is $36,000. Now, my first question is this. Is this referring to a conditional sales contract that your client has? MR. AUFFREDOU-The sale of the property, my understanding, is that it is contingent upon the approval of the Use Variance application. MR. ABBATE-So there is a conditional sales contract somewhere? MR. AUFFREDOU-There is a contract that exists. MR. ABBATE-Okay, and I don’t have a copy of it. MR. AUFFREDOU-And as evidenced in Mr. Haley’s letter, “On August 30, Teri White committed th to buy the property, provided she could get a Use Variance for a professional New York State Licensed Massage Therapist. MR. ABBATE-I’d like to suggest, with all due respect, that a conditional sales contract be furnished to this Board, please. MR. AUFFREDOU-Okay. MR. ABBATE-Number One. Second, so that I can get along here, your client also answered, is the alleged hardship relating to this property unique, and she responded yes. Then she responded to the question, is the alleged hardship self-created, and she responded no. So would I be correct in assuming that your request is based in part on unnecessary hardship and a reasonable return? 6 (Queensbury ZBA Meeting 11/18/99) MR. AUFFREDOU-Yes. MR. ABBATE-You would? Okay. Now, learned Counsel, of course, is aware of the fact that the hearing is concerned with evidence, fact to support your client’s claim of alleged hardship and reasonable return. So I have two points I’d like to raise, and then I’ll certainly listen to anything you have to say. Based on the documents that I have, my documents do not reveal any competent financial evidence, or facts to support your client’s premise that no unreasonable return is possible if the land is used as zoned. One. Two, I’m sure learned Counsel’s aware of the fact that a Use Variance cannot be granted where an unnecessary hardship has been created by the applicant, or where he or she acquired the property knowing of the existence of the conditions he now complains of, and at that I terminate my questions. MR. AUFFREDOU-Okay. We do have a contract and the addendum to contract which I will read into the record. I thought Jon had provided you with a copy of this, but apparently he’s not, but we can provide this tonight. There is a contract of sale. It’s between Evergreen Bank and Larry White and Terri White. It’s for the subject property. There’s an addendum to the contract which says contingent upon the property to be used as a New York State licensed massage therapist, which we’ll submit gladly. As far as the financial hardship, I do a lot of this work. I represent a lot of towns and municipalities. I also represent a lot of developers. I think that while your question is certainly a good one, I think we have demonstrated, through competent financial evidence, and through testimony, that there can be no reasonable return. I think you have to look at that schedule, and you have to look at the property, and you have to say, is this property really, in all practical purposes, going to be marketed for a Light Industrial use? Who is going to come in here and use this for a Light Industrial use? It’s not going to happen, and I think the Board, you know, sometimes you have to look at your Code, and you also have to look at reality, and I’m looking at reality here, and I just don’t see this, and I think I advise my Boards that I represent, very often, that sometimes you have a situation where the code really doesn’t make a lot of sense. This is one of those situations. It’s zoned Light Industrial. The property is residential. There’s an existing residential structure there. The only way that it could be Light Industrial is for that building to come down, and we don’t have anybody on the horizon who’s willing to do that, and we don’t think the property itself, the .49 acre parcel itself, as I indicated earlier, is large enough by today’s standards, to support a Light Industrial use. Now, perhaps, someone could come in and acquire a number of those lots, adjacent lots or whatever, from Duke Concrete or whoever owns those lots in the back, I’m not aware that any of that property is for sale, by the way, and I’m not aware that any of the adjacent property is for sale, but perhaps someone could acquire all of those lots and put in a nice Light Industrial manufacturing facility. We don’t have anybody that’s indicating they want to do that. What we have is someone who wants to live there, maintain that residential use, which is an allowed use because it’s pre-existing nonconforming, and simply have a non-intrusive massage therapist use there, period. The letter, we believe, from Mr. Haley, indicates competent financial evidence, in addition to what we’ve testified to, that there can be no reasonable return for the uses listed on the Type II list. Furthermore, with respect to your question about self-created hardship, again, as I had indicated earlier, this is zoned Light Industrial. It’s a residential use that’s in the zone. It’s pre-existing. It’s nonconforming. That use can continue as a residential use, but we don’t have anyone on the horizon, no one who’s willing to come forward, as Mr. Haley has indicated in his letter and is certainly willing to testify here tonight, that they will come forward and use this as a residence. The fact that this is zoned Light Industrial is something that we just have to deal with. MR. ABBATE-One final question. Would you agree that she is acquiring the property, knowing of the existence of the conditions that she’s now basically complaining of? MR. AUFFREDOU-Well, I mean, I can’t sit here with a straight face, after what I’ve said, and say no to that. MR. ABBATE-Thank you. MR. AUFFREDOU-But I think we often find ourselves in this situation, where someone comes in to a Zoning Board, as a contract vendee, saying, this is something that I’m willing to do. This is a property that I’m willing to acquire, if I can get the property permission. I mean, they could go in there, I mean, we could take the old adage, better to ask for forgiveness than to ask for permission and just go in there and do it. We’re not doing that. We’re coming in here and we’re asking you for permission to do this. We’re doing the right thing. MR. ABBATE-Thank you very much. I appreciate it. MR. STONE-There are a few uses, we blithely go across these Type II uses, but a restaurant could be put in there. A laboratory could possibly be put in there, a radio and t.v. station. I’m not saying they’re likely, but they are the kind of light industrial use that is in the zoning that could be in a 1,000 square foot home. 7 (Queensbury ZBA Meeting 11/18/99) MR. AUFFREDOU-Lew, I think that a restaurant on Homer Avenue, which is in between Bay and Everts, I mean, I’ve been in Queensbury 11 years. Maybe it would be a very nice restaurant, but kind of off the beaten path a little bit. The laboratory use, again, all I can say about that, Lew, is that this is a structure that is designed for residential use. That’s what they intend to do. If someone’s going to come in here and establish a laboratory, this building is going to require major renovations. They might as well take the building down and start over again. We don’t have anybody on the horizon who’s willing to do that. We have someone here who’s willing to make a difference, make an improvement. MR. STONE-I understand that. It’s just that, as you’re aware, probably better than we are, what’s on this card for a Use Variance is a very difficult test to meet. MR. AUFFREDOU-That was my premise when I started my presentation. MR. STONE-You said it. You’re right. I mean, obviously, I’m looking, since we’re obviously talking about doing a rezoning in the Town of Queensbury, I mean, commercial residential fits this thing absolutely to a T, but it’s not commercial residential, obviously. Mrs. White, you are aware that the character of the neighborhood is going to change drastically across the street? TERRI WHITE MRS. WHITE-Is that cast in stone? MR. STONE-Talk to Mr. Auffredou. His partner can tell us better than we can. MR. AUFFREDOU-We’re not allowed to disclose that. MR. STONE-Well, it’s been publicly said that that property, it’s all been spoken for, lets put it that way. MR. AUFFREDOU-Yes. MR. STONE-Whether it’s been consummated is another story. MR. AUFFREDOU-Right. MR. STONE-Yes. MR. MC NALLY-The property was listed since June 24? th MR. AUFFREDOU-Yes, and Tom, when was it vacant? MR. HALEY-I don’t know. I got the listing from the bank. She’s been in the nursing home for quite some time. MR. AUFFREDOU-Bob, it looks like it’s been vacant for a while. MR. MC NALLY-I’ve been by it. Was any effort ever made to rent it? Do you have any history of attempts at that or financials in that regard? MR. HALEY-No, I have not. I would think it would be very difficult to rent it. I’m having a hard enough time trying to sell this to residential. MR. MC NALLY-Is this property wholly owned? Is there a mortgage out there, what are the expenses related to this, so you can compare it with what the potential income is. Do you have anything? MR. AUFFREDOU-My understanding is that there is not a mortgage outstanding. It’s being managed by Evergreen Bank, and I don’t see much hope, Bob, that this property is really going to be utilized for any other use other than this. I mean, as far as for residential or rental. MR. MC NALLY-Well, I was thinking in terms of residential, if you discount it for that. If you were going to tell me that you couldn’t rent it out, that’s what I’m trying to figure out, and an effort was made, and that the income was insufficient to meet the needs of the maintenance of the property, that might be something to think about. What’s the average turnaround time of the property in the Town of Queensbury that’s been listed? 8 (Queensbury ZBA Meeting 11/18/99) MR. HALEY-Well, I’ve had 10 listings, some of them go signed in a week. Some go 120 days. Some, not priced properly, could go on forever. I think this was priced properly at $39,000. It was assessed at $60,000. MR. MC NALLY-Sure it’s over-assessed. MR. AUFFREDOU-I mean, we can get bogged down in the details of the financial aspect of this, and we can go all night on that if you’d like. I’m here. I’m willing to do that. We think that where you should hang your hat on this one is the character of the neighborhood, as far as their introduction of their residing there and a use is not a drastic change, if a change at all. It’s an improvement, and I know that’s not on the list of 267B, but it really is always an underlying, underpinning consideration, and that’s what you have to be, I think, a major factor that you should be concerned about. MR. THOMAS-Anyone else, questions? MR. AUFFREDOU-Terri or Larry, anything to add at this point? MRS. WHITE-For my use, it’s a great location. It’s not far from where I’m working currently. It’s the type of arrangement that I’ve been looking for for some time, to have a place that I could live but also have my work. My work is quiet, obviously. There isn’t going to be a lot of coming and going of vehicles. There isn’t going to be any noise. I just thought it would be a great location. It made a lot of sense for that location and for that building. MR. THOMAS-You’re saying that you work now at somewhere else? MRS. WHITE-Right now I rent space at a chiropractic office, but I only rent one very small room, and I have been thinking for some time of acquiring a piece of property where I could live and have my practice. I know other massage therapists who do this, and it’s worked very well for them. MR. STONE-Let me just throw this on the table, because reading the book, it’s always interesting. Under Home Occupation, Massage is specifically excluded. If this were a residential home, and this were a home occupation, it would be excluded, by definition, which compounds and confounds this thing even more. Obviously, the home is pre-existing, nonconforming. If she lives there, she can’t do anything to the house without coming to get a variance, in terms of expansion. The fact that, on top of that, when talking about a Use Variance, as you say, with it’s very strict thing, I think we all want to do the right thing. In theory, common sense absolutely says to me, at least, and I will say that when we talk about it. This is something that should be done. The problem is, what are we opening ourselves, in this particular very tight Use Variance situation. We’re going to have to talk about it, obviously. MR. AUFFREDOU-Again, there is a similar use just down the street. So it’s not a use that’s. MR. STONE-But that’s not a house. It’s a commercial building. MR. AUFFREDOU-I understand, but, Lew, it’s a use. MR. STONE-It’s a use, I agree. MR. AUFFREDOU-And it’s an identical use. The building is vastly different, but the use is ongoing in the neighborhood. MR. ABBATE-Counsel, are you saying that there’s a precedent for this, for her request? MR. AUFFREDOU-All I’m saying, sir, is that there is an identical use in the neighborhood, period. MR. ABBATE-But not a precedent? MR. AUFFREDOU-For a residence with a massage therapy? MR. ABBATE-Right. MR. AUFFREDOU-No, but a precedent for a use in the neighborhood, yes. MR. ABBATE-But not for a massage and what she wants to do. MR. AUFFREDOU-No, obviously not. MR. ABBATE-Okay. All right. Thank you. 9 (Queensbury ZBA Meeting 11/18/99) MR. THOMAS-Are there anymore questions for the applicant, or? All right. Then I’ll open the public hearing. Anyone wishing to speak in favor of this application? In favor of? Anyone wishing to speak opposed? Opposed? Any correspondence? MR. STEC-No correspondence. PUBLIC HEARING OPENED NO COMMENT PUBLIC HEARING CLOSED MR. THOMAS-Are there anymore questions for the applicant? MR. ABBATE-Perhaps one more question, if you’ll bear with me. Have you sought out other places in which to establish your business in the Town of Queensbury? MRS. WHITE-In the Town of Queensbury to purchase? MR. ABBATE-Yes. MRS. WHITE-No, I have not. MR. ABBATE-You have not. MRS. WHITE-I’ve looked at many pieces of property in Queensbury and Glens Falls. MR. ABBATE-None of them had met your requirements? MRS. WHITE-Not exactly, no. MR. ABBATE-Okay. Fine. MRS. WHITE-Like I said, the location is wonderful. I have an existing clientele. I wouldn’t be doing a major advertising campaign to try to dig up new clients. I have an existing clientele. They’re very loyal. They come to me on a regular basis. This location I thought would be wonderful because it’s convenient. It’s not far from where I’m currently working. So no one would have to go out of their way to try to find me. I’d like to fix up the property to make it a little bit more attractive, shall we say, and be a part of the neighborhood. MR. ABBATE-It meets your physical and financial requirements? MRS. WHITE-Yes. MR. ABBATE-Okay. MR. STONE-And you would be moving from where you currently reside? MRS. WHITE-Correct. I have an apartment. We rent an apartment, and obviously you can’t run a massage therapy practice out of an apartment, and another thing, a lot of people have said, well, just go get a place and don’t say anything and do it, and I said, I can’t do that. So I wanted to do it the honest way, that’s all, and I guess I didn’t realize it was so complicated. MR. STONE-Well, it’s complicated only by the fact that the Use Variance is very restrictive in the State of New York. Quite frankly, if we followed the letter of the law in all cases, I don’t think we’d ever have one, but obviously, common sense comes into play, as your attorney has been saying. MR. AUFFREDOU-There’s commentary out there that would say that the Use Variance standards are so restrictive that no one can meet them, in any situation, in any set of circumstances. Obviously, that’s not the intention of the law. The intention of the law is a strict standard, but it needs to be flexible under a given set of circumstances. MR. ABBATE-But while the may be true, Counselor, you have to also admit that there could be precedent setting as well. MR. AUFFREDOU-I think every time you make a decision, whether it’s this application or another application tonight, or any other evening, there’s some portion or perspective of that that is precedent setting. 10 (Queensbury ZBA Meeting 11/18/99) MR. ABBATE-And therein comes the danger. You’re absolutely correct. MR. AUFFREDOU-Well, then it seems to me that you shouldn’t approve any applications, if that’s your concern. MR. ABBATE-That may be true. MR. STONE-This is his second night. He’s learning. MR. ABBATE-I’m learning. MR. AUFFREDOU-I understand. We appreciate the debate. No problem. MR. THOMAS-All right. Anymore questions for the applicant? Before we talk about it, this is an Unlisted Action. So we have to go through the Short Environmental Assessment Form. Are you ready? All right. This is for the Board only, Part II of the Environmental Assessment Form, to be completed by Agency, that’s us. “Does any action exceed the Type I Threshold in 6NYCRR Part 617.4?” MR. STONE-No. MR. STEC-No. MR. THOMAS-The consensus of the Board is no. “Will action received coordinated review as provided for Unlisted Actions in 6NYCRR Part 617.6?” MR. MC NALLY-No. MR. THOMAS-No. Okay. “C. Could action result in any adverse effects associated with the following C1. Existing air quality, surface or groundwater quality or quantity, noise levels, existing traffic patterns, solid waste production or disposal, potential for erosion, drainage or flooding problems?” MR. STEC-No. MR. STONE-No. MR. THOMAS-“C2. Aesthetic, agricultural, archeological, historic or other natural or cultural resources or community or neighborhood character?” MR. STEC-No. MR. STONE-No. MR. THOMAS-No. ‘C3. Vegetation or fauna, fish, shellfish or wildlife species, significant habitats or threatened or endangered species?” MR. STEC-No. MR. THOMAS-No. MR. STONE-Well, unless the deer have gotten used to it being a vacant home and come by, or something. You’re not going to scare them away. No. MR. THOMAS-“C4. A community’s existing plans or goals, as officially adopted, or a change in use or intensity of use of land or other natural resources.” MR. STONE-Yes. MR. STEC-No. MR. MC NALLY-Well, we might have an existing change. MR. STONE-It’s a change from the zoning. MR. STEC-Is it adverse? MR. THOMAS-Or a change in use or intensity of use of land? 11 (Queensbury ZBA Meeting 11/18/99) MR. MC NALLY-Well, I don’t think it would be a significant one, but the point is, they’re asking clear to have these things. MR. STONE-Yes. We have to say yes here. Then we talk about the mitigation. MR. THOMAS-“A community’s existing plans or goals as officially adopted, or a change of use or intensity of use of land use or natural resources.” MR. STEC-It says any adverse. MR. MC NALLY-At the bottom it asks if they’re significant. What we’ve always done is like the traffic patterns, addition. MR. STONE-And then we say, no, it’s not significant. MR. MC NALLY-It’s not significant. So we can go past it, but effectively we’re doing what you’ve suggested. MR. THOMAS-“C5. Growth, subsequent development or related activities likely to be induced by the proposed action?” MR. STONE-No. MR. STEC-No. MR. THOMAS-No. MR. STEC-What did we decide for C4? MR. STONE-Yes. MR. THOMAS-“C6. Long term, short term, cumulative or other effects not identified in C1. Through C5.?” MR. STONE-No. MR. THOMAS-“C7. Other impacts, including changes in use of either quantity or type of energy?” MR. STONE-Only human energy. MR. THOMAS-Hey, the faster that meter spins, the better I like it. “Will the project have an impact on the environmental characteristics that cause the establishment of a CEA?” MR. MC NALLY-No. MR. THOMAS-No. “Is there or is there likely to be controversy related to potential adverse environmental impacts?” MR. MC NALLY-No. MR. THOMAS-No. All right. Part Two. Determination of Significance Check this box if you have identified one or more potential large or significant adverse impacts which MAY occur. Then proceed directly to the FULL EAF and/or prepare a positive declaration. MR. STONE-Don’t check that box. MR. MC NALLY-It’s the latter. MR. THOMAS-Yes. “Check this box if you have determined, based on the information and analysis above and any supporting documentation, that the proposed action WILL NOT result in any significant adverse environmental impacts AND provide on attachments as necessary, the reasons supporting this determination”. That’s the box we will check. Okay. MOTION THAT WE ACCEPT THE SHORT ENVIRONMENTAL ASSESSMENT FORM, AS DISCUSSED BY THIS BOARD, Introduced by Chris Thomas who moved for its adoption, seconded by Lewis Stone: 12 (Queensbury ZBA Meeting 11/18/99) Duly adopted this 18 day of November, 1999, by the following vote: th AYES: Mr. Stec, Mr. Abbate, Mr. McNally, Mr. Stone, Mr. Thomas NOES: NONE ABSENT: Mr. McNulty, Mr. Hayes MR. THOMAS-All right. That takes care of that part. Now, since there’s no more questions for the applicant, we can talk about this. I’ll start with Bob. MR. MC NALLY-I could be unnecessarily repeating several people by pointing out that the Use Variance is a very difficult thing to achieve, but by that same token, the practicalities and realities of this application are very apparent to me. So I kind of have to weigh both of these things. It is unoccupied property, and the proposed use, subject to conditions minimizing the traffic and things like that, would certainly be an improvement to the area, and it certainly, I don’t think, would be too out of keeping with the existing residential use of the property. There may be a chiropractic office or an accounting office down the road, but where this section of Homer Avenue exists, it’s residential period. With that being said, I don’t really see too much about a massage therapy limited to five cars a day or so as having a significant impact, but the way we’ve always treated this at the Board level, at least the large part, is the four criteria really have to be met. So I’d like to hear what the other Board members have to say, but if you look at these four criteria, whether there’s a reasonable return is really dependent upon hard financials, and we’ve been pretty strict, not terribly strict, but pretty strict in requiring this from time to time. A house that’s worth $36,000, or being sold for $36,000, makes me wonder, you know, what else it could be used for, how long it was marketed and things like this. I don’t know if five months are enough. The hardship is not unique to the property. It applies to all the little houses on Homer Avenue. The entire area is primarily residential, small, tiny homes, all in the Light Industrial zone. I don’t think the third criteria really goes against the applicant, though. The essential character of the neighborhood I don’t think is really going to be changed. It’s residential and industrial by zoning, and an introduction of a massage therapy office like this isn’t going to change anything. So the last application is whether the alleged hardship is self-created, and it is self-created, because the applicant’s coming in to a situation, knowing that the zoning prohibits their use and making an application for it, but as Mr. Auffredou said, that’s exactly how it’s done. It’s not as if they purchased it ahead of time and then made the change. They’re asking us for permission before purchasing it. So they’re going here with open eyes. I’d like to hear what the other Board members have to say. MR. THOMAS-All right. Chuck, you’re next. MR. ABBATE-Well, you know, Counselor presents a pretty good argument. There’s no question about it, and he talks about common sense, and I certainly would agree with him, but he’s also aware of the fact that there is intent, when we talk about law, and I can’t help but going back to, and this is a quote, “a Use Variance cannot be granted where the unnecessary hardship has been created by the applicant, or where he or she acquired a property knowing of the existence of the conditions he now complains of.” Now, the home, and Counselor indicates that it is a home owned by Henrietta Lieber, and as I understand it from one of the members today, this evening, that a massage parlor is not included in a home. Is that correct? Did someone say that? MR. THOMAS-A home occupation. MR. STONE-A home occupation. It’s not included. MR. THOMAS-It’s excluded. MR. ABBATE-Is excluded. Is that correct? So, while I have tremendous empathy with you, and I think I would, in your position, attempt to do the same thing, and acquire the same very qualified attorney that you have right now, I have concerns, and no other comments. MR. THOMAS-I’ll put you down for a question mark. Dan? MR. STEC-Well, I think the other two Board members make very good points, but I’ll try to, while I’m not an attorney myself, I’ll try to look at this from a what’s good for the Town, what makes sense standpoint, and I don’t see any adverse impact on the neighborhood. I think that, I don’t see any way that you could ever approve a Use Variance before hand, in this kind of a situation when you have a pre-existing, nonconforming use that is looking to turn over. It would always then, by definition, be the difficulty is self-created. So I’m inclined not to hold that against the, I don’t think that’s really applicable here. I think just looking at the situation, there’s going to be very minor change to the residential character of this particular property. I found the applicant’s argument about the size of the lot and the likelihood of, would there ever be a bonafide Light Industrial use on this 13 (Queensbury ZBA Meeting 11/18/99) lot, and I agree. I don’t see it happening, and in the past we’ve used the real estate testimony as basis for adequate evidence of lack of financial return. So I’m inclined to approve the Use Variance, only because it just seems to make a lot of sense to me, that it would be better for the Town to have this property occupied, put to some use, that is not intrusive on the neighborhood, that would allow it to deteriorate. So, I’m inclined to grant the variance. MR. THOMAS-All right. Lew? MR. STONE-I’m conflicted. Part of me says, obviously, this is a very good use for the property. Why don’t we just do it? But it is a Use Variance, and I am further confounded by the fact that no evidence has really been given by Mr. Healy or anybody else that there isn’t a buyer for this home in the thirties, just a place to live, and it’s not a, yes, the neighborhood is not an upscale neighborhood, by the definitions by some of the neighborhoods in Town, but it’s not a bad neighborhood. Yes, it’s a changing neighborhood, but that’s just happened, in recent months. It’s amazing to me that nobody has been willing to offer somewhere between $30 and $40,000 for this, as a residence. Be that as it may, and that’s one of the problems with a reasonable return, because any time we have a home, a home, by definition, provides a reasonable return. It is a place to live, but having said that, let me just go on. I alluded to the fact that maybe this should have been Commercial Residential. Even if it were Commercial Residential, if it were, a home occupation would be allowed, but not this kind of home occupation, as I read the definition. I don’t understand it. I don’t understand what’s wrong with a massage therapy in somebody’s private home, but this is the Bible as far as we’re concerned. It also says under home occupation that none of the allowed uses defined as a home occupation can have a sign on the premises. MR. BROWN-I think we (lost words) professional office. It may have been referred to by Counsel as a home occupation, but. MR. STONE-But they’re going to live there. MR. BROWN-Right. MR. MC NALLY-So it is a home occupation. MR. BROWN-It wouldn’t fit home occupation. I was unaware, when the original application was submitted, that there was going to be a residence there as well. MR. AUFFREDOU-The primary use is residence. MR. BROWN-Right. MR. STONE-So therefore makes it a home occupation, it seems to me. MR. BROWN-No, I don’t think so. There may be a density question, two uses on the same property, but that’s something (lost words). MR. STONE-That’s why I’m conflicted by the whole thing. I mean, obviously, part of me says, if this were Commercial Residential, let’s say, and you came to me and said, I wanted to have a home occupation, a massage parlor, and I looked at this thing and I said, yes, as long as you don’t have a sign, because that’s what it (lost word). That’s why I’m conflicted. I really want to do this, but when I’m confronted, as my fellow Board members are, by these four tests that have to be met, I guess may I would like to think about it some more. I mean, I don’t want encourage the applicant to ask us to table it, but I would welcome to be tabled and to do some more thinking about it. MR. AUFFREDOU-Mr. Chairman, could we just have the permission to have Mr. Haley address one of Mr. Stone’s concerns? MR. STONE-Sure. MR. THOMAS-Go ahead. MR. HEALY-We had several open houses on this, on Sunday afternoon, and we have had over 20 people look at this place. The price is right, but there is work involved, and not everybody that can afford the $30,000 is capable of making those changes inside. Mr. White here is very capable of doing it. The price is right, but there’s work involved, and not everybody can do that. MR. STONE-How much price, how much work involved? Obviously, by the White’s standards, to make it livable, forget the massage thing. What do you think you’d have to spend to make this thing? 14 (Queensbury ZBA Meeting 11/18/99) LARRY WHITE MR. WHITE-A couple thousand dollars. MR. HEALY-Because he could do it himself. They would have to hire people. MRS. WHITE-We would do a lot of the work ourselves. MR. STONE-So we’ll grant you $5,000. MR. WHITE-Yes. MR. HEALY-They look at it and they get scared of it, and they say no, this isn’t what I want to do. The house is cut up very funny. MR. STONE-Okay. Well, this is the kind of information that we certainly need to know. MR. AUFFREDOU-It’s a stressed piece of property. We have some photos of the interior, if you’d like to see them. MR. THOMAS-Are you finished? MR. STONE-I think I’m finished. MR. THOMAS-All right. That’s everybody except me. All right. As all of us here on the Board know, common sense and the law, as it’s written, conflict all the time. To me, this is a common sense decision, okay. This property, or this zone, is Light Industrial One Acre. This piece of property is a touch under one half acre. If this was one acre, I could see some of the uses, some of the Type II uses, going in there, but since this is a one half acre lot, and that the front of this house is Homer Avenue, and behind this house or behind this piece of property are lands of Warren County. So, I don’t see where the applicant could acquire any more property behind them to increase the size of the lot, to the one acre minimum required in this zone. You could go east/west, but it’s only 150 feet deep. MR. STONE-I understand. MR. THOMAS-But if you look at some of the Type II uses, 150 foot deep just isn’t going to cut it. A freight terminal, you’re talking bringing in trucks that are 55 and 60 feet long, tractor trailers, as a freight terminal, and you go in there and move around and back up, load, unload, you’d probably need a warehouse, this property, if you went the whole length of Homer Avenue, probably couldn’t handle it. Extraction of sand, stone or gravel, who’s going to dig the ground out? Restaurant, maybe if you got two more lots and brought it into a one acre, but then again, too, it’s location. Would a restaurant really fly in this area? I don’t know, would or wouldn’t it? It’s not our call, but common sense would tell you that a restaurant on a side street wouldn’t go. All right, a building or a lumberyard. Look at all the lumberyards in the area, look at Lowe’s. That’s 20 acres. Look at the old Woodbury’s down there on the corner. That was over three acres. This here is only half an acre. No way. Light Industrial manufacturing or assembly, any kind of assembly is going to take some kind of building, bigger than a 1,000 square foot house, okay. So here again, you’re going to have to tear down the house, and once they do that, they’re going to need a variance because it’s less than an acre. It’s a pre-existing, nonconforming lot, but still they’re going to need a variance to do anything on there. Warehouse for enclosed storage of goods and materials, distribution plans or wholesale business. That goes right along with a freight terminal. Office building in excess of 10,000 square feet. This is a half acre lot that’s, what, 22,500 square feet, with a 10,000 square foot building, never, never ever be able to meet the green space. Truck repair facility, if you’re talking pick up trucks, maybe, but I think they’re talking heavy trucks, because heavy machinery repair facility is right after it, and I don’t see heavy machinery, like coming from the paper mills, being dragged in here repaired, on this half acre lot. Television and radio station. Television and radio stations require antennas, and they also require quite a bit of space because of transmitters and other equipment, and I’ll grant you the fact that some of them have remote transmitters, but then again, too, you’re talking about parking, like in a restaurant, because there’s employees, and there’s people going in and out of radio stations all the time, all kinds of sales people. Sales people in a radio station going in and out making sales calls. A construction company. Construction company requires a lot of land, four and a half acre, to store materials, store vehicles. They need buildings on there. It’ll never fit on a half acre lot. Logging company, the same thing. Everybody from around here knows, has seen the logging outfits. They go up and down the Northway, those big logging trucks coming off Exit 18, going through this neighborhood, on that narrow street, never, ever make it. Heavy equipment storage. What can you store in a half acre lot that’s heavy equipment? You’d have to move it around. You’re talking front end loaders, steam shovels, any kind of heavy construction equipment. The same thing with the 15 (Queensbury ZBA Meeting 11/18/99) sales. If you can store it, you can sell it. So you have to have it on the property. Agricultural service use. An Agway? Look at the Agways around here. They’re all on, you know, the one on Route 9 there, that’s got to be better than two acres. The one in Fort Edward is probably three acres. There’s no way you’re going to get that on there. Passenger limousine and/or bus storage and terminal facility. Passenger limousine might make it, depending on how big it is. If the guy’s got one or two limousines, fine, but if he wants to grow, and wants four or five, that property will never handle it, because he’s going to want a garage. He’s got to be able to keep them clean, washed. He’s got to be able to keep them going any time of the day, 365 days of the year, or what they call 24 7. So, to me, there is nothing on that Type II list that could be put on that piece of property, that half acre piece of property, even with expanding up and down Homer Avenue, could go on there. So, to me, this is the perfect out for this piece of property. It’s a non-invasive type of business, four or five cars, six cars a day. It’s owner occupied. So it’s not like a business that shuts down at five o’clock, opens up at eight o’clock in the morning. It fits because it’ll be a residential building. It fits right in with part of the existing neighborhood, because it did start out residential, and as far as the other questions on a variance criteria, financial return. If you can’t do anything in Type II, there’s no financial return. MR. MC NALLY-Can I ask, though? MR. THOMAS-Yes. MR. MC NALLY-What consideration should we give that this is a residential property, and could be rented out with a return, as a residential property, or sold, as a residential property, strictly. I mean, is that a consideration, or are we supposed to just limit our thoughts to Type II’s and that’s it? MR. THOMAS-I would say that’s why they’re here, for a Use Variance, because what they’re asking for does not fall in the criteria of a Type II use, in a Light Industrial area. Residential is not an allowed use in a Light Industrial area. MR. MC NALLY-I understand, but my question is, irrespective of it being an allowed use, it’s an actual existing nonconforming use. MR. THOMAS-Right. It’s a pre-existing, nonconforming use. MR. MC NALLY-So it is an allowed use in that area. MR. THOMAS-It’s an allowed use as a residence. Absolutely. MR. THOMAS-And if they didn’t have a garage, for example, they could build one, as an accessory use, an existing nonconforming. MR. THOMAS-No, because it’s an expansion of a nonconforming use. MR. STONE-Customary accessory use and accessory use structures incidental to a permitted use or an existing nonconforming residential use. MR. THOMAS-So they could build a garage if they didn’t have one. MR. STONE-Yes, if they didn’t have one. I’m just saying, it is a confounding. I’m not disagreeing with you MR. MC NALLY-My point is this. When we consider financial return, are we supposed to also consider not only what it’s allowable uses are, but also what it’s actual existing use possibilities are? MR. THOMAS-Yes. MR. MC NALLY-We are. Okay. MR. THOMAS-Okay. So taking in your comment about either renting it out or selling it for residential use, the applicant has said that it’s cut up funny, and they have pictures to prove it. We haven’t seen them, but if we asked for them, they would give them to us, that it would take some monetary, they’d have to sink money into the house to bring it up to standards to rent it out, okay. Now, why it’s cut up funny, I don’t know. Maybe when it was built, that was the way they wanted it. How old is this house? MR. HEALY-It says it was built in 1940. MR. THOMAS-It’s been there a while. 16 (Queensbury ZBA Meeting 11/18/99) MR. MC NALLY-I wouldn’t doubt that. With a use where you’ve got a residence and an occupation in the same premises, the applicant has said five people a day, but if she wants, after she gets the variance, to put in 50 people a day, to have, you know, eight or nine cars parked out front, how do we stop that? I mean, I trust that that’s her word, but what, as a practical matter, can we do as a Board? Is that a concern that we should have? MR. THOMAS-What can we do as a Board? This is a 1,000 square foot building. It’s not like Mrs. White can go out and hire 10 or 15 more massage therapists, so they could run 50 or 60 people through there. MR. MC NALLY-Well, this is a concern I have. It depends upon the intensity of use, is what I’m saying. I mean, she may not hire 15 or 20, but she might hire 3 or 4, and then, you know, maybe they’ll move out to an apartment again, and continue using this as a massage therapy center, which is a separate occupational use. Don’t get me wrong, but how do we stop that? Or do we want to stop it? That’s my question to you. MR. THOMAS-To me? The zone is no longer residential. MR. MC NALLY-So you would allow massage therapy at any levels at that house? MR. THOMAS-Yes, taking into account the fact that if you looked through the neighborhood, there are other commercial enterprises including the Lockhart building, two lots down there, which is an allowed use because of the “10,000 square foot office building”. To me, the character of that neighborhood is changing from residential, that’s why the Town Board, in their wisdom, saw to change it from residential to Light Industrial. I don’t know, when did they change that? Was that in the ’83, or was that in the ’89 change? Or didn’t you look it up? MR. BROWN-’88 was the last change. MR. THOMAS-’88. MR. BROWN-Yes. I’m not sure if it was at that time or prior to that. MR. THOMAS-Yes. So, to me, you know, the Light Industrial use, why they wanted it, I don’t know if they read the, you know, even if the Town Board took into consideration the Type I and the Type II uses, when they decided to make this Light Industrial, I could see Quaker Road Light Industrial along in there, along that, but why they took a residential street and made it light industrial, it beats the hell out of me. MR. MC NALLY-I think that’s probably Duke behind it somewhere. MR. STONE-Well, you’re saying the County’s behind it. What does the County own behind it, does anyone know? MR. MC NALLY-The bike path. MR. STONE-That’s not the bike path. MR. THOMAS-It can’t be the bike path because it’s too wide. That’s over 100 foot wide in there, and the bike path is on the old trolley tracks. MR. STONE-The bike path is south of it. MR. THOMAS-So, for some reason, the County owns a big chunk of land back there, and what they’re going to use it for, I couldn’t tell you, but I don’t think they’re going to give it up and sell it. At some point they might. MR. MC NALLY-It’s not feasible with this application. MR. THOMAS-It’s not feasible, but to me, you know, this is a perfect use for this piece of property, which is a half acre in a Light Industrial zone. MR. STONE-What you narrated, Mr. Chairman, is a common sense thing about this (lost word) piece of property, no question about it, and I think we agreed that you can’t do most of these things. A couple of them may be iffy that you can’t do them, but is that enough to say, making a narrative, enough to say substantial as shown by competent financial evidence? That’s the hang up on a Use Variance. The only dollars we’ve heard tonight is that here’s a property that was listed for $39,000, going to the owner. She obviously, it was distressed enough that the Bank was willing to sell it for $36,000. The applicant has stated that it’s going to cost 15%, on top of that, I’m rounding off, to 17 (Queensbury ZBA Meeting 11/18/99) make this a reasonable place to live, and I assume to work, but I won’t even talk about that. Let’s just talk about the residence. That’s got to bring it up to roughly $40,000, $41,000, to make this a reasonable house. I’m not convinced, again, talking doesn’t mean where I’m going to vote, but I’m not convinced that a long enough effort has been made to sell this as a residence. I mean, I think that’s the thing, I mean, June 1999, we’re talking five months. MR. THOMAS-We’re talking five months. The thing of it is, in my opening statement, I said common sense and the law as written are not compatible, as written. To me, you’ve got to inject some common sense into this. I mean, you know, if you want to see a truck terminal there, you know, it’s just the intensity, compared to the rest of the area. MR. STONE-The concern is, I’m not worried about precedence, because most of these things are unique. MR. THOMAS-Yes. MR. STONE-The question is, if somebody wants to challenge us as a Board, and we have been challenged, in the courts, we would come up lacking, I think, in this particular case, in the eyes of the court. You don’t think so? I mean, you’ve got a lot of experience. I understand. MR. AUFFREDOU-Lew, I think you’re looking at the Statute in a vacuum. I clerked for a judge in Maine after law school, and he used to criticize me for taking two crabbed an approach. You’re crabbing the interpretation. I think you have to look at that Statute in the total context of what’s before you, and I think it’s more than Tom Haley’s letter. I think it’s more than what my client is talking about. I think it’s more than the character of the neighborhood. I think it’s more than what we’re willing to do. I think you have to look at it in the totality of the circumstances, and that’s your reasonable return analysis. MR. STONE-I think what I’m doing, and I think a number of us are doing, and I can’t speak for everybody, is that we’re at least getting it on the record that we’re troubled by this, and we’re trying to at least say why, if we approve this thing, why we’ve gone through this thing. I mean, I’m prepared to approve it, but I’m still troubled, but I’m prepared to do it. MR. MC NALLY-Can I ask Staff, Mr. Brown, whether you have any concerns about the distinction between this usage being both as an occupational place and a residence, the fact that it’s a dual usage, or is that not of concern to our Staff? MR. BROWN-Until earlier today when I spoke to Mr. Auffredou, I was unaware that there were going to be two uses there. There be some clarifications with the Zoning Administrator the density requirement, two nonconforming uses, technically, on one parcel. There may be one acre required for each use. I don’t know it’s the whole nonconforming things, but (lost words). This would also be required to go through site plan before it’s ever. MR. MC NALLY-Just basically your concern would be the intensity of the use? So if it was an occupation but low intensity business usage, it probably wouldn’t be a concern. MR. BROWN-I don’t know if intensity is the deciding factor. They’re two separate uses, a residential use and an additional professional office use. The distinction between home occupation, which if you’re a massage therapist and you keep your office in your home, if you go to someone’s house and they give you massage therapy, that’s home occupation. If you take the general public into your residence, and have interaction with the general public, now it’s a professional office, put a sign up, that’s the distinction. Home occupation is a service use. A professional office is when you have an interchange with the public. MR. STONE-I would argue with that, but not for the purposes of this, only because a domestic or service activity, carried on by members residing on the premises. MR. BROWN-That’s home occupation. MR. STONE-That’s home occupation, small scale crafters such as knitting, sewing, woodworking, artwork, shall be appropriate uses. I see work being done on the house, not just maintaining records and having an office. MR. MC NALLY-They’re going to be doing massage therapy in this home. MR. STONE-In this case, yes. MR. MC NALLY-That’s what they’re saying. 18 (Queensbury ZBA Meeting 11/18/99) MR. STONE-I’m not hung up on that. I don’t want us to think the wrong thing about this. MR. THOMAS-Everybody’s had their say. Does anybody have anything else they way to say on the Board, from any other comments any other members have made, or any questions of any comments? MR. MC NALLY-My concern is with usage and intensity, whether it’s a home occupation or a professional, whether you have a sign out front, whether you have five or fifty people in there a day, whether you have parking for fifty or five. What is the applicant willing to limit it by? Because if it is an inconsequential increase in the usage or type of usage, I don’t think I’d be opposed to it, but if there’s no limitations, then I’m going to think again. Craig, you were saying, if this were a professional office, like a doctor, they could have patients in there all day long, 50 times a day. A home occupation is usually where they live in. They don’t have quite that high intensity of use? See that’s the way I look at it. Maybe it’s not right. MR. BROWN-A home occupation offers no services to the general public. You don’t have people coming to your house. You work out of your house. You do telemarketing, you can do woodcarvings and take them some place to a craft show. MR. STONE-Okay. I’ll go with that. MR. MC NALLY-I suppose it doesn’t matter how we characterize the use. They want to change it to whatever they’re proposing. Right? MR. THOMAS-Right, and if we also limit it to, or if they cease to use it as a home and massage therapy, then the Use Variance is null and void. Like we do with the other ones. MR. STONE-Yes. MR. MC NALLY-What’s the plans for rezoning on this parcel? MR. STONE-We haven’t gotten there yet. Well, it’s going to change. Are you willing to come to any stipulation of what you restrict to? Because we haven’t even talked about daylight versus evening hours, either, and it is still, while it’s a Light Industrial zone, there are still homes occupied, at least on both sides. Are they not? MRS. WHITE-I have no problem, if it would make everyone happier, make the application go more smoothly, if you want to put a limit on the number of clients or vehicles per day. I’m not looking to do 10 and 12 massages a day. My hands would fall off, within a matter of months. I will say that I do have some evening hours, because that’s when a lot of my clients come is after they’re done with work. So I should be very open about that and say, yes, I’m busy between the hours of, I do see people in the morning. I usually don’t see too many people in the middle of the day, and then the “rush hour” starts. People want to come after work and get rid of the stress and the knots and whatever. People can’t leave work during the day to come and get a massage treatment, like they can go to the doctor’s office. MR. STONE-Your normal visit is an hour? MRS. WHITE-Normal treatment time is an hour. Some people it’s a half an hour. MR. STONE-But if we said five or six a day? MRS. WHITE-I don’t have a problem with that. MR. STONE-Is that reasonable for you, Bob? MR. MC NALLY-I want to know what her requirements were, what the applicant’s requirements were, and you’re telling us that that’s what you want it limited to. MRS. WHITE-I would limit it to five or six a day. MR. MC NALLY-I mean, I don’t think that kind of a use would be as obstructive in the area, and irrespective, it is a reasonable result. MR. THOMAS-Does everybody agree with that? All right. We’ve talked about it. Does anybody else have any comments? MR. ABBATE-I don’t know if it’s a comment, but I have a question. Can the Zoning Board, does a Zoning Board of Appeals have the authority to limit the growth of business? 19 (Queensbury ZBA Meeting 11/18/99) MR. THOMAS-We can put reasonable restrictions on a variance. MR. ABBATE-So in effect, what you’re saying is that the Zoning Board of Appeals does have the authority to limit growth of a business? MR. THOMAS-Yes. MR. STONE-In a nonconforming use area we do, yes. MR. THOMAS-We can put reasonable restrictions. MR. AUFFREDOU-Reasonably related to the use that’s approved. MR. ABBATE-I was only asking the question on your client’s behalf, in support. MR. AUFFREDOU-Particularly when the client consents. MR. MC NALLY-That makes it nicer. MR. THOMAS-And also the fact that if the business ceases, that the variance ends at that point. If you cease to use the building as a massage therapy, you can still continue to use it as a residence. Then the Use Variance for the massage therapy would then end. I don’t know if you would continue to live there or not, but from what I understand. MR. AUFFREDOU-My understand, Mr. Chairman, is that a Use Variance, once granted, runs with the land. It falls into the sunset provision that it’s terminated, or not terminated, but abandoned for a year or so under your Code. MR. THOMAS-Eighteen months. MR. AUFFREDOU-Then I think it’s gone, but I think it does run with the land. MR. STONE-It does. MR. THOMAS-But here we’re going back to reasonable, and we’ve done it before. MR. AUFFREDOU-I know, but I’m not sure that the White’s are going to sell this, if they sell it, as an ongoing use as a massage therapy use. MR. STONE-I mean, I just assume that you’re going to have a room that you use primarily for massage. MRS. WHITE-Correct. MR. STONE-And you’re going to live in the rest of the house. So it’s not as if you’re going to make this a massage salon. MR. THOMAS-All right. MR. ABBATE-No proposal to establish lights outside of the house or anything like that? Forget the question. MR. MC NALLY-How about signage? What are your plans in that regard? MRS. WHITE-To be very honest, I haven’t made a decision if I’m going to even put a sign. If I do put a sign, it would probably be a small street sign in the window. I’m not planning on hanging a big thing out by the road. Again, because I don’t need to attract new clientele. I have a loyal client base. They’ll probably follow me wherever I go, and I don’t need a big sign out front. Just a sign on the door so at least the first time they pull up, they know they’ve got the right place, or I’ll have to be standing out in the driveway waiting for them. MR. THOMAS-All right. We’ve talked about it, beat around the bush. We’ve done the Short Environmental Assessment Form. Now it’s time for a motion. Would someone like to make a motion. MOTION TO APPROVE USE VARIANCE NO. 100-1999 LARRY & TERI WHITE, Introduced by Lewis Stone who moved for its adoption, seconded by Daniel Stec: 20 (Queensbury ZBA Meeting 11/18/99) 11 Homer Avenue. The applicant proposes a professional office use that is massage therapy in a residential building that will continue to be used as the applicants’ residence, and the applicant seeks relief to establish this particular use, which is not permitted in the Light Industrial zone. The applicant requests relief for the allowable uses listed for the Light Industrial One Acre zone, 179-26, to allow a use not permitted under either Type I or Type II. The criteria for considering a Use Variance, according to Chapter 267 of Town Law: We find by reason of testimony and common sense that the applicant cannot realize a reasonable return on this property, in its present pre-existing, nonconforming use, nor would it yield a reasonable return of any of the allowed uses in the Light Industrial zone, primarily because of the lot’s size, less than half an acre, in a one acre area, and the fact that this neighborhood is still residential, has residential characteristics on either side of it. While the applicant did not provide dollars and cents, it is obvious to this Board, in granting this motion, that a reasonable return cannot be met on this property, in its present condition, nor for any other permitted uses. In considering this, we looked at whether the alleged hardship relating to the property in question is unique, and does this hardship apply to a substantial portion of the district or neighborhood. Actually, the neighborhood has varying characteristics in this Light Industrial zone, and every property, therefore, could be considered unique, because the neighborhood goes from residential use on end of the street to an obvious commercial use, that is a professional office building two doors down, and therefore, one could consider this to be unique, as it would be for any of the other properties on this street. Will the requested Use Variance, if granted, alter the essential character of the neighborhood? The particular business proposed by the applicant, a massage therapy practice, limited to five or six half to one hour visits per day, will not change the essential character of this neighborhood, and the alleged hardship is really not self-created, in the fact that this home exists in a Light Industrial zone. It is a pre-existing, nonconforming use, and we are satisfied that the applicability of all of the uses has been explored, and found to be not possible, in terms of returning a reasonable return. Based upon all of this information and the common sense that the Board possess, we believe that this Use Variance should be granted. The applicant agrees to limit her practice of massage therapy to five to six uses per day, and states that these will primarily be in the morning and late afternoon, early evening hours, and that there will be probably no more than two cars from customers at any one time. Duly adopted this 18 day of November, 1999, by the following vote: th MR. THOMAS-What about if it ceases to be? Do you want to throw that in there or not? MR. STONE-I don’t think it’s necessary, because I think if they leave, it’s not as if the home is going to be made for massage therapy. MR. THOMAS-Yes, you’re right. Okay. All right. AYES: Mr. McNally, Mr. Stone, Mr. Stec, Mr. Thomas NOES: Mr. Abbate ABSENT: Mr. McNulty, Mr. Hayes MR. THOMAS-There you go. MR. AUFFREDOU-Thank you. I appreciate the debate. We’re pleased with the outcome. Thank you very much. MR. THOMAS-You’re quite welcome. AREA VARIANCE NO. 101-1999 TYPE II LI-1A MIKE LENTZ OWNER: SAME AS ABOVE 6 LOWER WARREN STREET APPLICANT HAS CONSTRUCTED A COOLER ENCLOSURE AND SEEKS SETBACK RELIEF AND RELIEF FOR THE EXPANSION OF A NONCONFORMING STRUCTURE. WARREN COUNTY PLANNING TAX MAP NO. 110-3-39 LOT SIZE: 0.26 ACRES SECTION 179-26, 179-79 SHERRY LENTZ, REPRESENTING APPLICANT, PRESENT MR. STEC-“Warren County Planning Board Project Review and Referral Form November 3, 1999 Project Name: Lentz, Mike Owner: Same QSBY AV 101-1999 County Project #: November 99- 27 Current Zoning: LI-1A Description of Project: Applicant has constructed a cooler relief and seeks setback relief and relief for the expansion of a nonconforming structure. Staff Notes: A copy of the applicant’s drawing is included with the summaries. The applicant is required to obtain the Area Variance due to the fact that it is an expansion of a previous nonconforming structure. The applicant is proposing to provide visual barrier to an outdoor storage cooler unit. Staff does not identify any issues that are significant from the enclosure at the County level. County Planning 21 (Queensbury ZBA Meeting 11/18/99) Board Recommendation: Default recommendation of approval, due to lack of quorum at meeting.” Signed Terry Ross, Warren County Planning Board. STAFF INPUT Notes from Staff, Area Variance No. 101-1999, Mike Lentz, Meeting Date: November 18, 1999 “Project Location: 6 Lower Warren St. Description of Proposed Project: Applicant has constructed a cooler enclosure and seeks setback relief and relief for the expansion of a non- conforming structure. Relief Required: Applicant requests 13 and 14 feet of relief from the 50 foot minimum front setback requirement of the LI-1A zone, § 179-26. Further, the applicant is requesting relief for the expansion of a non-conforming structure. Criteria for considering an Area Variance according to Chapter 267 of Town Law: 1. Benefit to the applicant: Applicant would be permitted to maintain a storage area and enclosure protecting a walk in cooler. 2. Feasible alternatives: Feasible alternatives appear to be limited. 3. Is this relief substantial relative to the Ordinance?: 13 and 14 feet of relief from the 50 foot requirement may be interpreted as moderate. 4. Effects on the neighborhood or community: Minimal effects on the neighborhood may be anticipated as a result of this action. 5. Is this difficulty self-created? The difficulty may be interpreted as self created. Parcel History (construction/site plan/variance, etc.): BP 98-038 2/20/98 interior alterations Staff comments: Minimal impacts may be anticipated as a result of this action. Given the position of the building on this lot, any addition would require some form of relief. Removal of the enclosure would result in an exposed cooler, approximately the same size. SEQR Status: Type II” MR. THOMAS-All right. That’s it? MR. STEC-That’s it. MR. THOMAS-You’re on. Anything you want to tell us about, talk about? MRS. LENTZ-Not really. It just basically makes the building look better. You don’t have a cooler sticking out, which was an eyesore until we enclosed it. MR. STONE-When did you do this? MRS. LENTZ-Last November, December. MR. STONE-Nobody told you you shouldn’t be? MRS. LENTZ-Yes, we called, and we were told to go ahead, we could go ahead and do it, and after, we just got notified this past summer that we had to come and seek a variance. So we finally did that. We were told, we called Queensbury and asked if we could enclose it, because the roof was already done, and we didn’t like how that looked. So we enclosed it, but before we did, we called Queensbury. They told us we could go ahead and do it, so we enclosed it, and then we probably waited eight months, and they finally came and told us that it was wrong. We had to come up and get a variance. MR. STONE-So do you have any idea who told you it was all right? MRS. LENTZ-Yes. MR. STEC-Craig Brown? MRS. LENTZ-No. It was done verbally over the phone between my husband and somebody up here. MR. MC NALLY-The cooler was there for a long time? MRS. LENTZ-Not really. Probably about, maybe six months, but it looked nasty because it was all yucky gray. MR. STONE-But you said you actually enclosed it a year ago? MRS. LENTZ-I would say probably a year ago, yes. MR. STONE-Because I noticed the water, the bottom looks as if it’s been in place for some time. MRS. LENTZ-Yes, because we wanted to paint it last year, but we didn’t have time. It was too cold. MR. STONE-When you bought this, were you aware this building is not on your property? 22 (Queensbury ZBA Meeting 11/18/99) MRS. LENTZ-Which building? Only that one little corner and the garage. Yes, I know that. MR. STONE-It’s like being a little bit pregnant. MRS. LENTZ-Yes. I think that back point over there, which is the back, not near the cooler. MR. STONE-No, it’s not the basis of this, but it’s kind of interesting. MRS. LENTZ-Yes, because I asked them stupid questions about that, like what happens if somebody runs a truck into that one corner that’s off my land? Can I replace it? And like the garage, if it falls down, I guess not allowed to replace that? Because it’s already, you know. MR. STONE-Not where it is. MRS. LENTZ-Yes. MR. ABBATE-A question. You’re Mike? MRS. LENTZ-No, I’m Sherry. I’m his wife. MR. ABBATE-You’re Mike’s wife. I just wanted to make sure. I didn’t catch the introductions. MRS. LENTZ-Yes. Nobody asked. MR. ABBATE-Well, I’m asking. MRS. LENTZ-Yes, I’m Sherry. I’m part owner. I basically run the place. MR. ABBATE-I understand now. I’ve got it. MR. THOMAS-She’s the one that signed the statement. MR. ABBATE-She’s the one that signed the statement. MR. THOMAS-Yes. That’s what the secretary read into the minutes. Because that’s what I was waiting for, and what’s the name of the place? MRS. LENTZ-Coach’s Corner. MR. THOMAS-Coach’s Corner. I stopped by there today, as I drove by. MR. STEC-Looking at the application. MR. THOMAS-Yes. MR. STONE-I know. I stopped by the other day. MR. STEC-I stop by there a few times, on occasion. MR. THOMAS-All right. Anymore questions for the applicant? MR. STONE-No. The only concern, I’m disturbed by the fact that somebody, and you haven’t been willing to say who. MRS. LENTZ-I can tell you. I just didn’t know if I was supposed to. MR. STONE-Yes, I’d like to know. MRS. LENTZ-Dave Hatin. MR. ABBATE-Is that appropriate, really? MR. STONE-Yes. MR. MC NALLY-We’d like to know, because if it happens too frequently, we’d like to talk to somebody. MRS. LENTZ-Yes. It was Dave Hatin who told us, over the phone. 23 (Queensbury ZBA Meeting 11/18/99) MR. STONE-Craig, have you got a comment? MR. BROWN-If I may. MR. STONE-Please. MR. BROWN-It’s my understanding the information was given as, if the structure is less than 100 square feet, it wouldn’t need a building permit. If the building was over 100 square feet, it would require a building permit, and I’m not sure exactly what the information was that was given, but that’s my spin on it. MR. STONE-Okay. This is about 200 square feet. MRS. LENTZ-Yes, it’s like 160, think, something like that. MR. STONE-Well, you’re here for setbacks. It’s not here for the size. MRS. LENTZ-Yes, basically what it does is, we had a lock on it before, and it probably holds maybe 75, 80 cases of beer, and we had just a lock on it, and my biggest fear is because it’s back there in the corner, was somebody breaking in it. MR. STONE-It’s accessible from inside the tavern. MRS. LENTZ-Yes. If you were to turn around and go in the back of it, there is a door back there for deliveries, but when you look at it, you can’t really see it because we don’t have a handle. It pulls in from the inside. So we don’t advertise like with a handle or anything like that. So we don’t let anybody know there’s a way to get in there. Just your delivery people know it. MR. STEC-And now us. MRS. LENTZ-Yes, well, that’s okay. I don’t care if you know. MR. STONE-So they fill it from the outside, in other words? MRS. LENTZ-Yes. It’s basically on one side, this side is the cooler, and on this side is where we keep all the empty bottles, and when the guys come in and deliver, the deliver out back, they just walk in. They go left and put everything in the cooler, and then on the right side is where they keep all their empty bottles. MR. STONE-So there’s space that’s not a cooler there? MRS. LENTZ-Yes. Like right across, well, you’ve got like a little doorway, and then the cooler’s right here, and then there’s enough room for boxes and we pile them, and then enough room for the door to open, but if you pile the boxes too far, the door doesn’t open. MR. MC NALLY-You own this, right? MRS. LENTZ-Yes. MR. MC NALLY-You don’t rent it. MRS. LENTZ-No. We own it. We bought it almost two years ago. MR. THOMAS-Okay. Anymore questions for the applicant? If not, I’ll open the public hearing. Anyone wishing to speak in favor of this application? In favor of? Anyone wishing to speak opposed? Opposed? Is there any correspondence? MR. STEC-No correspondence. PUBLIC HEARING OPENED NO COMMENT PUBLIC HEARING CLOSED MR. THOMAS-Anymore questions for the applicant? All right, we’ll talk about it. Chuck, your turn to start. 24 (Queensbury ZBA Meeting 11/18/99) MR. ABBATE-My turn? MR. THOMAS-Yes, unless you’d like to defer? MR. ABBATE-No, I don’t want to defer. Here’s a young lady, if we used somewhat of the work ethic criteria we used in the previous case, there’s some merit here. A lady and her husband operate a business, and she’s attempting to do what she can to modernize, if you will, quote unquote, the business. Granted, there are some questions, I guess, that could arise. Building on some part of someone else’s property is one issue, but I’m not so sure that’s my concern. I have no other questions other than that, or comments. MR. THOMAS-Okay. Dan? MR. STEC-I think relatively speaking the amount of relief sought doesn’t bother me, and I think the benefit to the applicant clearly outweighs any impact on the neighborhood or community. I think it’s an improvement to the site. It’s certainly a benefit to the business, and it’s pre-existing. So we often say, all right, well, how would we have felt about this if this came before us as a request before the construction rather than after, and I think even then I don’t think I’d have a problem with them enclosing the cooler. So I’m in favor. MR. THOMAS-Okay. Lew? MR. MC NALLY-Why is this pre-existing MR. STONE-Because it was up. MR. MC NALLY-Yes, but the thing that was enclosing it was only up six months before that. MR. THOMAS-I think what Dan was talking about was if they had come for an application to put it in, but since it was built before they came here, we have to consider this, would we have approved this before. MR. MC NALLY-I understand now. I apologize. MR. STONE-I have no problem with this thing. I think Dan makes the right point. If you had come to us beforehand, and I wish you had, because we see too many of these things, although this is certainly not a heinous crime, in terms of something that was done before getting a variance, we certainly would have said yes. It’s on the right side of the building, in the sense that it goes toward the bigger part of the piece of property. If it were on the other side, we certainly might have said differently, but having said that, I certainly, it’s an attempt on your part to make the building as attractive possible, in what is quite frankly not a very attractive neighborhood. I mean, it’s an industrial part of Town, and there’s nothing wrong with that. I have no problem with it at all. MR. THOMAS-Okay. Bob? MR. MC NALLY-I agree with the other Board members. I don’t see it as having any significant effect on the neighborhood or community. There are no feasible alternatives to speak of because any addition next to this building is going to require some kind of relief. Certainly it would be a benefit to the applicant, and the relief is not substantial given the character of the neighborhood. I’m in favor of it. MR. THOMAS-All right. I agree with the other Board members. This is the only place it really could have gone, if the applicant had come in prior to the construction, even in the installation and construction of the building around it. I don’t know if it’s an improvement or not, but it’s an improvement for the business, because now they have a place to store additional merchandise. So I have no problem whatsoever with it. Having said that, I’ll ask for a motion. MOTION TO APPROVE AREA VARIANCE NO. 101-1999 MIKE LENTZ, Introduced by Daniel Stec who moved for its adoption, seconded by Robert McNally: 6 Lower Warren Street. The applicant has constructed a cooler enclosure and is seeking setback relief and the relief for the expansion of a nonconforming structure. Specifically, I move that we grant 13 and 14 feet of relief from the 50 foot minimum front setback requirements of the LI-1 Acre zone, Section 179-26, and I further move that we grant the relief for the expansion of the nonconforming structure, Chapter 179-79. The benefit to the applicant is that the applicant would be permitted to maintain a storage area which protects a walk-in cooler from theft or access from non employees. There are no feasible alternatives that we’ve been able to identify, and we feel that while the 13 and 14 feet of relief from a 50 foot requirement is moderate, that there will be minimal effects on the neighborhood and community, and while the need for cooler storage is certainly 25 (Queensbury ZBA Meeting 11/18/99) identified, the geography of the location on the corner contributes to the difficulty. So, with that said, I move that we approve the Area Variance. I will condition the approval that it will be painted by the end of spring, 2000. Duly adopted this 18 day of November, 1999, by the following vote: th MR. MC NALLY-Is it going to be painted soon? MRS. LENTZ-Spring. As soon as I can. I’ve been wanting to paint it, because it looks nasty the way it looks right now. MR. STEC-Well, we’ll make it easier for you, and we’ll condition the approval that it will be painted by the end of spring, 2000. MR. THOMAS-Okay. AYES: Mr. McNally, Mr. Stone, Mr. Stec, Mr. Abbate, Mr. Thomas NOES: NONE ABSENT: Mr. McNulty, Mr. Hayes MRS. LENTZ-Thank you. MR. THOMAS-There you go. AREA VARIANCE NO. 102-1999 TYPE II SR-20 CURRENT ZONING R-3 OLD ZONING RICHARD R. SEELEY OWNER: SAME AS ABOVE 1 STEPHANIE LANE APPLICANT PROPOSES CONSTRUCTION OF A 576 SQ. FT. GARAGE AND SEEKS SETBACK RELIEF AND RELIEF FROM THE BUFFER ZONE REQUIREMENTS. TAX MAP NO. 126-3-1 LOT SIZE: 0.44 ACRES SECTION OLD R-3 ZONING, 179-72 RICHARD SEELEY, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 102-1999, Richard R. Seeley, Meeting Date: November 18, 1999 “Project Location: 1 Stephanie Lane Description of Proposed Project: Applicant proposes construction of a 576 sf freestanding garage and seeks setback relief as well as relief from the buffer zone requirements. Relief Required: Applicant requests 4 feet of relief from the 30 foot minimum rear setback requirement and 0.24 feet of relief from the 30 foot minimum front setback requirement of the old R-3 zone. Also, the applicant requests 24 feet of relief from the 50 foot buffer zone requirement per § 179-72. Criteria for considering an Area Variance according to Chapter 267 of Town Law: 1. Benefit to the applicant: Applicant would be permitted to construct and utilize a freestanding garage in the desired location. 2. Feasible alternatives: Feasible alternatives appear to be limited to downsizing the garage. 3. Is this relief substantial relative to the Ordinance?: The cumulative requests for relief may be interpreted as moderate. 4. Effects on the neighborhood or community: Minimal effects on the neighborhood may be anticipated as a result of this action. 5. Is this difficulty self-created? The difficulty may be interpreted as self created. Parcel History (construction/site plan/variance, etc.): BP99-396 Cert. of compliance issued 8/13/99 deck AV69-1999 7/28/99 deck Staff comments: Minimal to moderate impacts may be anticipated as a result of this action. Current zoning (SR-20) would allow a 20 foot rear setback. The encroachment into the buffer zone with a residential use would appear to be less of an impact than an encroachment by the adjoining use (LI-1A) toward a residential area. SEQR Status: Type II” MR. THOMAS-Nothing from the County on that? MR. STEC-Nothing from the County. MR. THOMAS-Mr. Seeley. MR. STONE-Chuck, for your information he was before us in July for a deck that didn’t meet setbacks. MR. ABBATE-You can’t construct a deck without permission? MR. STONE-No, it was too close to the back line. MR. ABBATE-I see. 26 (Queensbury ZBA Meeting 11/18/99) MR. THOMAS-You need a building permit to build a deck anyway. MR. STEC-His contractor let him down, if I recall. MR. THOMAS-Anyway, Mr. Seeley, do you want to tell us about this new garage that would be painted by spring? MR. SEELEY-It’ll be vinyl sided, actually. MR. THOMAS-Okay. MR. SEELEY-It’s pretty straight forward. We’ve never had a garage there, and one car just basically almost rusted away sitting in the yard outside. We just purchased another new car. So it’s a fairly necessity. MR. STONE-It’s going to be a stick built? MR. SEELEY-The package that’s been presented from me, by the contractor I’m talking to, Bob Feeney’s talking with Curtis Lumber, so, yes. He has a package from there. MR. STONE-Okay. MR. THOMAS-Any other questions for the applicant? MR. STONE-Not a one. MR. ABBATE-Not a one. MR. STEC-Not a one. MR. MC NALLY-What is the height of this thing, though? MR. SEELEY-Whatever standard height. It’s single story. It’s nothing. MR. MC NALLY-You’re not going to have any living space or storage space on top? MR. SEELEY-No. Well, it’s going to be trusses there. If they put a board across the top, you could store, but it’s not going to be like a two story garage or anything, no. MR. MC NALLY-Okay. MR. STONE-That’s fine. MR. THOMAS-Anymore questions for the applicant? If not, I’ll open the public hearing. Anyone wishing to speak in favor of this application? In favor of? Anyone wishing to speak opposed? Opposed? Any correspondence? PUBLIC HEARING OPENED MR. STEC-Yes. I have a letter from Charles E. Seeley, 49 Glenwood Avenue, Queensbury, dated November 15, 1999, “To Whom It May Concern: We have no objection to Richard R. Seeley’s application for setback relief and relief from the buffer zone requirements to build a 576 sq. ft. garage at 1 Stephanie Lane as long as Mr. Seeley does not encroach onto our property and keeps in mind that the fence that was constructed for his privacy is not on the property line. Charles Seeley Barbara Seeley” MR. STONE-Are they the restaurant? MR. SEELEY-That’s the restaurant, and they’re no relative of mine. MR. STONE-Okay. Have you eaten there since? MR. SEELEY-Actually, I haven’t. MR. THOMAS-All right. That does it for correspondence. The public hearing is now closed. PUBLIC HEARING CLOSED 27 (Queensbury ZBA Meeting 11/18/99) MR. THOMAS-Is there anymore questions for the applicant? All right. The obligatory talk about it. I’ll start with Dan. MR. STEC-I have absolutely no problems with this. I think four feet of relief and .24 feet of relief from 30 feet is almost laughable, and as far as the buffer zone, I think the Staff notes are right on point. I have no problem with the residential use encroaching into, I have a lot less problem with the residential use encroaching into the buffer zone from their side than a Light Industrial encroaching from the other side. So with that said, there’s all kinds of benefit to the applicant. I don’t think this garage is so large that you need to discuss feasible alternatives to downsize the garage. I think the garage is a modest enough size. The relief is insubstantial. There’ll be no effect on the neighborhood or community. So I’m entirely in favor. MR. THOMAS-All right. MR. STONE-Basically what Dan says is my position. We’ve got a commercial property next door. We’ve got a big fence. You’re encroaching into your buffer zone, if you will. The buffer zone is there more for your benefit than it is for their benefit. You’re willing to put your building within that buffer zone. I have no problem with this whatsoever. Certainly the benefit to the applicant in this case far outweighs any detriment to the community whatsoever. MR. THOMAS-Okay. Bob? MR. MC NALLY-I agree with the comments of the other Board members. MR. THOMAS-Chuck? MR. ABBATE-Well, I agree with the comments of the other Board members, as well, and I think that the construction of this garage will add to the property value and to the area. I have no problems with that at all. MR. THOMAS-Okay. I just agree with the other Board members. Really nothing more can be said. Having said that, I’ll ask for a motion. MOTION TO APPROVE AREA VARIANCE NO. 102-1999 RICHARD R. SEELEY, Introduced by Charles Abbate who moved for its adoption, seconded by Robert McNally: 1 Stephanie Lane. The applicant proposes the construction of a 576 square foot freestanding garage, and seeks setback relief as well as relief from the buffer zone requirements. The applicant requests four feet of relief from the thirty foot minimum rear setback requirement, and 0.24 feet of relief from the 30 foot minimum front setback requirement of the old R-3 zone. Also, the applicant requests 24 feet of relief from the 50 foot buffer zone requirement, per 179-72, Queensbury Zone. The criteria for considering an Area Variance according to Chapter 267 of Town Law: 1. Benefit to the applicant: the benefit to the applicant: The applicant would be permitted to construct and utilize a freestanding garage in the desired location. 2. Feasible alternatives: Feasible alternatives appear to be limited to downsizing the garage. 3. Is this relief substantial relative to the Ordinance? The cumulative requests for relief may be interpreted as moderate. 4. Effects on the neighborhood or community: Minimal effects on the neighborhood may be anticipated as a result of this action. 5. Is this difficulty self-created? The difficulty may be interpreted as self-created. Duly adopted this 18 day of November, 1999, by the following vote: th AYES: Mr. Stone, Mr. Stec, Mr. Abbate, Mr. McNally, Mr. Thomas NOES: NONE ABSENT: Mr. McNulty, Mr. Hayes MR. THOMAS-There you go. Have fun with the vinyl siding. MR. SEELEY-Thank you. MR. THOMAS-Can’t do minutes because we only have three people here to approve them. MR. STEC-Motion to adjourn. MR. THOMAS-Second the motion to adjourn. RESPECTFULLY SUBMITTED, 28 (Queensbury ZBA Meeting 11/18/99) Chris Thomas, Chairman 29