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2000-06-15 (Queensbury ZBA Meeting 6/15/00) QUEENSBURY ZONING BOARD OF APPEALS SPECIAL MEETING JUNE 15, 2000 7:00 P.M. MEMBERS PRESENT LEWIS STONE, CHAIRMAN CHARLES MC NULTY PAUL HAYES ROBERT MC NALLY CHARLES ABBATE NORMAN HIMES ALLAN BRYANT ROY URRICO, ALTERNATE CODE COMPLIANCE OFFICER-CRAIG BROWN SENIOR PLANNER-MARILYN RYBA STENOGRAPHER-MARIA GAGLIARDI OLD BUSINESS: AREA VARIANCE NO. 23-2000 TYPE II WR-1A CEA WILLIAM WALKER OWNER: SAME AS ABOVE PILOT KNOB ROAD, KATTSKILL BAY APPLICANT PROPOSES CONSTRUCTION OF A SECOND STORY ADDITION ONTO EXISTING DWELLING AND SEEKS FLOOR AREA RATIO RELIEF, SETBACK RELIEF, AND RELIEF FOR EXPANSION OF NONCONFORMING STRUCTURE. CROSS REF. SPR 25-2000 ADIRONDACK PARK AGENCY WARREN COUNTY PLANNING 4/12/2000 TAX MAP NO. 18-1-21.2 LOT SIZE: 0.37 ACRES SECTION 179-60, 179-79, 179-16 GABE ARMANDO, REPRESENTING APPLICANT, PRESENT; WM. WALKER, PRESENT MR. STONE-These are the same Staff Notes. We haven’t changed the Staff Notes? Are they different? MR. BROWN-No, they’re the same. MR. STONE-The same. Okay. So we’ll read the tabling motion. MR. MC NULTY-The Zoning Board of Appeals record of resolution, for Area Variance 23-2000, William Walker, “Meeting Date: Thursday, April 20, 2000 Tabled Motion to Table Area Variance No. 23-2000 William Walker, Introduced by Lewis Stone who moved for its adoption, seconded by Robert McNally: Tabled for up to 62 days to get a clarification of all of the aspects talked about in the public hearing tonight, re: subdivision, water flow, number of docks, etc. Duly adopted this 20 th day of April, 2000, by the following vote: AYES: Mr. Himes, Mr. McNulty, Mr. McNally, Mr. Underwood, Mr. Stone NOES: NONE ABSENT: Mr. Abbate, Mr. Bryant, Mr. Hayes” MR. STONE-Is there anybody here to speak on behalf of this application? Okay. We did leave the public hearing open on this one, I believe. Okay. As noted in the tabling motion, there were a number of questions that were raised, both by the Board and by the public please state your name. MR. ARMANDO-My name is Gabe Armando. My company is consulting and I’m Construction Manager for William Walker who is sitting on my left. To address the concerns about the water, the drainage, this seems to be a big bone of contention. So I went up there and I took a video of the various parcels, where the water’s going, what has happened, and we have it here tonight to play, but before we do, I notice that where Washington County came in, they dug a pretty good sized hole between the Stevens and the Goodwin property, and they filled it full of shot rock, so this would act as sort of a catch basin, like a French drain. Now after a pretty good storm, that did take the water, and it stopped the water from going on to the Goodwin property. Now since then, Mr. Stevens has covered all that shot rock up with earth and with crushed stone. Therefore completely blocking it off and pushing the water past it into Goodwin’s. Now I spoke with Mr. Goodwin today at length, and he said that he really hadn’t had a big problem there, until two years ago when the County came in and re-paved the road, and of course that raised it enough so that the water from especially the Clark’s property, who’s shedding a tremendous amount of water, cannot get across the road anymore. That water now stays on the west side, and goes toward Stevens and Goodwins. Now, there’s nothing south of there that really is shedding into the road except a piece of the driveway from the William Walker property that’s approximately 16 by 18 feet. The road basically pitches to 1 (Queensbury ZBA Meeting 6/15/00) the east. So most of the water is going easterly in a drainage ditch where it’s supposed to go. The rest of it is trapped on the west side, and of course Mr. Goodwin’s getting the worst of it. Now, along with those concerns was a statement by Mrs. Clark that a the new septic system was built too close to her well. The well is 105 feet from the nearest lateral, which 100 feet is the recommended, is the required. Mr. Stevens made a statement that his well was only 75 feet from the septic system. That is, in fact, 137 feet, by actual measurement, and at this point, I would like you fellows to see this video. MR. STONE-Okay. Since we have a written record, would you tell us what we’re about to see, as best you can, and then we’ll confirm if that’s what we saw? Just tell us, just give us a brief description, so we can get it on the record. MR. ARMANDO-What I’m trying to show you is where the water is coming from that is effecting Stevens and Goodwin, and actually the lay of the land, the pitch of the road, the pitch of the parking areas, water coming off roofs, and just generally an overview of where the water comes from that goes to Stevens and Goodwin. That’s what I’m trying to show in this video. It’s 11 minutes. It’s an 11 minute video. MR. STONE-Okay. We’ll decide whether that’s what it shows. MR. ARMANDO-Okay. I’m not Cecile B. DeMille, but I did my best. (Video was shown) MR. ARMANDO-(Narrating) “Today is June 15, 2000, on Thursday. We’re up on Pilot Knob Road approximately seven tenths of a mile up from the Ridge Road, across from the Walker residences. For orientation here, we are looking west, now, at the southerly most portion of these properties. The cottage here belongs to Robert Walker, and as we come this way, the house way down in back here, in back of the trailer, on the lake, is William Walker property, and farther north, the log cabin belongs to William Walker’s sister, Lois Clark. North of that is the Stevens property, and you see this is his garage. A little farther north, in back of this boat, is the Goodwin property. Now we will head across the road to get a better idea of what is happening with this water. I’m standing almost at the crest of the hill to the southerly portion of the property. It appears that the road is sloped mostly to the east, and I doubt that much water from the road is actually getting on to the west side of the property here. The driveway for the Robert Walker property appears to be pitching away from the road. Possibly in the corner by the mailbox a little bit of water comes down, very little water apparently is coming out through here. We’ll go down further, as you approach the William Walker driveway, you’ll see that a portion of the 18 feet from the edge of the road is sloped toward the road. This piece is about 16 feet wide. The rest of the driveway goes in a westerly direction toward it’s natural drainage, where it’s gone for years. As we proceed north, you can see that the little water that’s coming down the road, (lost word) out of the driveway is running alongside of the road here. We’ll continue to proceed north, toward the Clark property. As we approach the Clark property, you’ll see that the paved area is pitching, all pitching toward the road. There are gutters on the house, but it looks like the end of the gutter is open on this one end, and it appears that water is coming down onto the pavement from this roof. Now, if you look at the house here, you can see that the water apparently is not all going in the gutter, and is coming down and soaking the side of the building. That water then is running out to the parking lot and to the edge of the road. Now, continuing north, you can see that this portion of the parking area is also pitching toward the road. Now, also, the turn here toward the other side of the Clark garage, there is a gutter again. However, if you look at the garage doors on the ground here, you’ll see that the water is coming over the gutter and apparently running out of the parking lot and also down toward the edge, toward the front of the Stevens’ garage. Now there’s a hole right here that the water has made as it runs down through. You can see the path of the water runs toward the apron of the garage, bypasses the apron, and continues toward the edge of the road. Now, it is my understanding that within the last two years, Mr. Stevens has expanded this parking area we’re looking at and built this retaining wall, and it’s pushing the water further north than where it traveled before. Now, as you can see here, this driveway is built up to keep the water out and push it toward the road. This area is where the County came up and dug up a hole and filled it with shot rock, and since then, someone has also placed crushed stone and some earth fill over that rock. I don’t know who did that, but if you look down through here, apparently, the property line between Stevens’ and Goodwin, you can see where the water actually flowed. That water is not allowed to go that way anymore. It comes this way toward the Goodwin property, coming right through this parking area here, the water is flowing down through. Now this is the entrance to the Goodwin property.” This is developed artisan. I explain it later. This property is heavily overgrown. “Now what I just filmed on the Goodwin property was some sort of an artisan, as protected by wire. Now the source of the water coming out of that is undetermined. We find nothing, in the road or anywhere in the driveway, which feeds that little stream of water. Now we noticed last week it was running much faster, and it’s possibly a tank in there, maybe a developed artisan. So we’re just trying to determine where in heck this water is coming from, and possibly when it rains, even more water is coming down through there. The place is so heavily overgrown, 2 (Queensbury ZBA Meeting 6/15/00) it’s hard to tell what’s happening there. So Mr. Goodwin’s coming over here now. So I’m going to just turn this off for a minute and see what’s happening. I just had a lengthy conversation with Mr. Goodwin who says that he really didn’t have a lot of problem here until after the County re-paved this road, and in doing so raised it up so the water from the west side of the road would no longer come over onto the east side, down into this natural ditch, which runs down through here along the east side of the road. Now also the County dug a hole over this vicinity and put the shot rock in it. Mr. Stevens then filled over the rock with some soil and some stone which stopped the water from going down there and pushed it closer even to Stevens. Now that so called artisan or whatever it was I saw down there, is a spring, is the source of the water for the (lost words). As you can see the water running in this ditch on the east side of the road takes care of everything on this side, and again from here, you can see better that the road actually pitches toward the east. Also, in response to complaints that the new septic system which you’re viewing right here is too close to the Clark and the Stevens’ well, we did take actual measurements, and at the very closest point, it’s 105 feet from the Clark well and the closest lateral to Stevens, who’s well is down alongside of the garage there, is 137 feet. In conclusion, I hope that this video helps to clarify any water concerns and drainage problems here, and I just hope that everyone in this area can get along and live their own lives.” That’s it, Craig. MR. STONE-Is it your contention, therefore, that all of the water going on to these other properties is coming from other properties than Mr. Walker’s? MR. ARMANDO-Correct. There’s a very small amount of it coming from Mr. Walker’s. The piece of the driveway that I showed you is about 16 by 18 feet. That is coming down along the edge. The rest of it is coming from Clark, and of course the roof of Stevens’ property is draining off. That’s all running down through there, too. MR. STONE-Normally that drain leads to a drywell or something, except for the end where the barrier is out? The downspout goes into a drywell? MR. ARMANDO-I don’t know where the downspout goes. It does into the ground. Apparently, it must be plugged up because the water’s coming over the top of it. MR. STONE-Okay. How about some other concerns that were expressed? MR. ARMANDO-About the water, or septic? MR. STONE-No, there were other concerns. MR. ARMANDO-Okay, which particularly, because Mr. Walker will answer some of them himself. MR. STONE-Well, I’m trying to remember, did we get the letter from the lawyer, Inge Fricke, into the, did we read it in? MR. MC NULTY-I believe we did. MR. BROWN-I’m not sure if we read it. I think. MS. FRICKE-I waived that, I waived the reading. MR. BROWN-Just acknowledged that it’s part of the record. MR. STONE-Okay, but you raised the points. So there were a series of points that were brought up by Counsel, for some of the neighbors, about area variance being substantial, that the hardship is self-created, that there are other ways of handling it without exceeding the floor area ratio, and certainly if it wasn’t raised in this letter, certainly my concern that the building to which the addition is sought is too close to the lake, in terms of requesting 24 feet of relief from the 50 foot minimum. MR. ARMANDO-Before we address any of those, exactly who is this Counsel representing? That was never brought up at the last meeting, except you said Mr. Phillips and others. Now who is Counsel representing? MR. STONE-The letter was Mr. and Mrs. Robert Phillips, Joan Taylor and David Vrooman. MR. ARMANDO-I don’t know those other people at all. MR. STONE-Well, let me ask Counsel, are they people who were notified, Ms. Fricke, do you know? MS. FRICKE-I know that Mr. and Mrs. Phillips were, because they’re the adjoining property owners. With respect to the Ms. Taylor and Mr. Vrooman, they are nearby neighbors who contacted us. 3 (Queensbury ZBA Meeting 6/15/00) MR. STONE-Okay. So they may not be within the 500 feet notification. Okay. MR. BROWN-You can check in the file if you want. MR. STONE-Yes. Who did we notify? Were they notified? MR. STONE-All right. Vrooman was, in fact, notified. They’re within 500 feet. So they’re a close neighbor, as defined by Code. MR. ARMANDO-I’m going to turn this over to Bud Walker, now, who can address some of these other concerns better than I can. WILLIAM WALKER MR. WALKER-I’m William Walker. He identified me when he identified himself. I’m the owner and the applicant. As far as the statement that you just read, or paraphrased from the attorney’s letter that this is a self-created hardship, the house was built in 1970, prior to my ownership, approximately 1970, and at that time, the location of the house was permissible. Apparently the regulations have changed since then, and the fact is I own it now. I can’t move the house back another 25 feet. So if I want to put an additional bedroom on, without increasing the amount of land space that I cover, I mean, there is a grassy area on the east side, away from the lake, but if I constructed a bedroom there I would be taking up more ground space, which at least seems to me would be more detrimental to the lake ecology than simply adding a second story on to an existing footprint that’s already there and has been there, and as far as I know was certainly legal at the time that it was built 30 years ago or approved 30 some years ago, when my parents got their original permit to build that house. As I said, as far as answering any of the legal issues that might be part and parcel of the question that the attorney had, I’m not qualified to. MR. STONE-What I think we may do is, the public hearing is open. I will call upon Ms. Fricke state the position of her clients, and she can choose, and then you’ll have the opportunity to respond to them, and anybody else that wants to speak, but I know she wants to speak. So we’ll call her forward now, unless we have any questions from the Board that want to be asked immediately. MR. ABBATE-Have these areas, in the letter by Chris Round, been addressed, that is the paragraph one, two, and three, that these parcels, as an example, occurred without Zoning Board of Appeals approval, and it goes on and on and on? Were these addressed by the applicant? MR. ARMANDO-Yes. We did address that, and I gave Craig Brown copies of deeds to show that this was originally two parcels. It has been implied that one parcel was split into two. However, that was not the case. There were always two parcels. There was a property line revision, but two parcels existed from Day One. MR. ABBATE-So you’re basically saying that the information contained in Mr. Round’s letter is incorrect? MR. ARMANDO-Yes, I am. MR. STONE-Craig, do you concur? MR. BROWN-Yes, the deeds are in the file. MR. STONE-Okay. MR. MC NALLY-The last time we went over this, they reconfigured the lot lines to allow a 10 or 15 foot corridor that would go down to the boathouse on the lake. MR. ARMANDO-That was seven feet. MR. MC NALLY-But for that lot change, there would be no frontage on the lake, the lot adjacent to the road, more adjacent to the road, if you will. MR. ARMANDO-Right. There was a seven foot strip of property taken from the William Walker property and added to the Robert Walker property, to give him a deeded right of way to an existing boathouse down on the lake. A question came up about why are there two boathouses. Those things are grandfathered. They’ve been there for who knows how long, way, way before the Walker’s even purchased the property. The boathouses were there. 4 (Queensbury ZBA Meeting 6/15/00) MR. STONE-Just for Mr. Walker’s edification, and I’m sure you know, Mr. Armando, we are not, there’s no contention that anything on the waterfront or the position of the homes currently is illegal, but, they are nonconforming. Therefore, that is why you are here, and it is our job to decide whether or not you can build further too close to the lake, and that’s one of the questions that’s before us. MR. ARMANDO-Okay. The only reason I brought up about the boathouses is it was brought up by one of your Board members at the last meeting, why there were two. So I just thought I’d clarify that. MR. STONE-Okay. We ask lots of questions. That’s what we’re here for. MR. ARMANDO-I’ll try to answer them. MR. STONE-Okay. Let me continue the public hearing, and Ms. Fricke, would you like to state your client’s position? PUBLIC HEARING OPEN INGE FRICKE MS. FRICKE-For the record, my name is Inge Fricke. I’m here from the law office of John Caffry, on behalf of my clients, Mr. and Mrs. Robert Phillips, Joan Taylor and David Vrooman. The letter to which Mr. Stone was referencing was the April 20, 2000 letter to this Board that I submitted prior to the last meeting on this application. Basically, without going into a ton of detail on that letter, the primary concern that my clients have is that this applicant hasn’t met the requirements for granting an Area Variance that are set forth in Town Law Section 267B. The first one, there is a detriment to the neighboring properties from this application. As you could see from the video, this is already a very overcrowded area. I didn’t see really any green space at all, and the runoff concerns, even though the video may have addressed some of them, presumably, if the other neighbors were here, they would be able to dispel some of those myths. Number Two, the benefit here can be achieved by some other means. There’s no viable reason here why the existing living area won’t suffice. The applicant hasn’t given any explanation as to why the existing living space is not sufficient for him anymore. You’ll recall that Mr. Armando, at the last meeting, represented to this Board that this building will not be used as the primary residence for the Walkers, despite the fact that the Walker application states that this variance is necessary to support his growing family. That should be seriously considered by this Board. The third item, this request is very substantial. You can see from a review of my letter that we already, just in a cursory review of this property, found that it exceeds at least seven setbacks and restrictions currently set forth in the Code. This variance application would result in further setback violations, and would also violate the maximum Floor Area Ratio requirements. We believe that this is a substantial request for a variance, and furthermore the hardship here is self-created. As I mentioned, the Walkers are not planning on using this as a primary residence, as stated by Mr. Armando at the last meeting. There’s no reason why this extra bedroom needs to be built here, or why they can’t use their intended primary residence to house the family. I just want to also reiterate our clients’ concern that this expansion may, in fact, be used to support the bed and breakfast commercial activity going on across the street. I’m sure Mr. Walker will dispute that, but that’s a very serious concern raised not only by my clients, but I believe by other neighbors that were here at the prior meeting, and finally, concerning the subdivision, or I should say the boundary line agreement, you asked Craig whether or not all the deeds were submitted, and my review of the file shows that at least one of the deeds is missing, the deed between and Bover and Walker. Without that, this Board can’t determine whether or not this was a proper simple boundary line change. I may have missed that in my review, but as far as I know, at least one of the deeds is missing. Finally, I think there needs to be some investigation as to whether or not that boundary line agreement is sufficient to avoid the Town’s Subdivision requirements, and the applicants need to prove that they filed all the necessary documentation associated with that boundary line agreement. Thank you. MR. STONE-Okay. Anybody else wish to speak in favor of the application? In favor? Anybody wishing to speak opposed to the application? Opposed? Hearing no comment, any new correspondence in there? MR. MC NULTY-The only thing we got new was that letter from Laura Moore. Okay. Would you read that in, please. MR. MC NULTY-Okay. This is a letter from Laura Moore, Planning Assistant, addressed to William Walker, 1154 Pilot Knob Road, regarding single family expansion, “The Planning Staff is in the process of reviewing your expansion for an expansion of the single-family residence located on Pilot Knob Road. A portion of your proposed project includes construction of a second story addition to be built onto the existing residence. The information submitted shows the location and height of the final proposal. Staff is concerned with the ability of the main structure to withstand construction of 5 (Queensbury ZBA Meeting 6/15/00) a second story addition. We would like to have information indicating that the main house is structurally sound for the proposed addition. The information will be forwarded to the Building Department for their review and comment. The information submitted by you should be certified by an engineer. Please provide the additional information by June 21, 2000 so that staff may further review these plans and have the information available for the Planning Board members. If you have any further questions, please do not hesitate to contact the Planning Office.” MR. STONE-Anything else? MR. MC NULTY-Nothing else. MR. STONE-All right. I will close the public hearing. PUBLIC HEARING CLOSED MR. STONE-But I will say that this is also a concern of this Board, the concerns expressed by Mrs. Moore, because we have had, in recent history, a number of cases where we have granted variances with much less relief than this one, but we have granted variances for an addition to an existing building, and upon inspection, after the variance has been granted, the whole building has had to come down. Therefore, in one sense, giving us another bite at the apple, and so this is the concern expressed by the Planning Department, but certainly expressed by this Board. So it is something that must be answered to our satisfaction also. MR. ARMANDO-I addressed that today with Laura Moore, and I told her that, before we could be granted a building permit, if this project was approved conceptually, we would have plans from a licensed architect or engineer, stating that this was feasible. It was possible. Now the house is built on bedrock. The rock was drilled, the rock anchors installed, reinforcing rods attached to them, and heavy concrete footings poured before the block walls were built. There’s 12 inch block walls built on top of that, for a crawl space. There’s about six courses of block there, and the place is built like a fortress. Now being in the construction business for many years as I have, if I saw any problems with this, I wouldn’t touch it with a 10 foot pole. I did, in fact, build part of that building that’s toward the lake, several years ago, on top of this foundation, which I just described. I went over this with Laura Moore, told her I would have some documentation to her tomorrow to give to the Planning Board. MR. STONE-Okay. That’s tomorrow, that’s not tonight. I mean, you say architectural review. We have had architectural review. We have had people come, in very good faith, that, I’m sure we can do it, and guess what, they can’t, when they get in there, because it’s an awful lot of, particularly on properties close to a lake, as you know, there is a lot of moisture, and internal problems in a lot of these homes. So, I mean, that’s the concern we have, but having said that, how about addressing, do you have any other comments to address Ms. Fricke’s comments? MR. WALKER-Yes. Gabe had indicated that a couple of months ago during the public hearing he really couldn’t speak for me on certain issues, as to intent of use, etc. The attorney made reference to a bed and breakfast across the street. That’s the location from which Gabe originated the long shot, I guess they would say in movie terms, where he showed all of the properties, not only the property that this application is about, but the properties of the neighbors who also spoke at the public hearing. That’s a single family residence, and it was my intent, as of two months ago, for that to be my principal residence. It’s a six bedroom home, and under a law passed in 1997 that went into effect in 1998, there is an exemption from a lot of the majority of the hotel and motel rules and regulations for bed and breakfast operations, where you rent out no more, and it’s in the statute, the exemption only fits if you rent out five rooms or less, and my intent was for that house to be my principal residence, and I would be able to rent out the other five rooms as a bed and breakfast. The house that this is the subject parcel to our family is growing. My fifth child is due in September, although the way my wife is looking, I expect the child to come earlier than that. In fact, that’s what happened two years ago with our fourth child. He was also due in September, but came in August. I also have substantial family in Florida. For instance, next week my sister, who has three young children, age three up to seven, likes to come up and visit us at the lake. It’s a completely different environment, as you can obviously tell, than Florida is during the summer, and my sister from Florida is coming up for one week this year. Her intent was to start coming up for as long as one month each summer to visit me at my home, and I also have a brother in Florida who also has two small children. They intended on coming up this year for a week, later on in the summer, and they hoped, also, to expand their visit to one month each year. We have a four bedroom house, and as I said, although across the street the intent was to be a bed and breakfast, and for that technically to be my residence, my entire family would not be over there. The family would basically be in the house that this application is about. I obviously, you saw a little bit of it, have experienced a lot of hostility from one of my neighbors. Again, you heard her in person a month ago, and that hostility and her expressed desire that I not run a bed and breakfast across the street caused the For Sale sign to go up, which you saw in the picture. So I will definitely be selling the six bedroom house across the 6 (Queensbury ZBA Meeting 6/15/00) street, and whoever buys it, whether, it’s for sale now as a large single family home, and what they use it for will be their business, thereby leaving only the subject parcel that I’m applying for this variance for now, for my use for my family, which I explained, is growing, as well as my Florida brother and sister and their families, who hope to be able to come up and spend a substantial amount of time up here with us each summer to get away from the Florida heat, and to be able to be at Lake George, and those are the issues that were brought up, that Gabe said he really couldn’t clarify or talk about, and certainly, as I said, you could see in the video tape that my intentions on the property across the street have changed. I don’t want to be operating a hospitality business in an environment that is inhospitable, and that’s certainly the attitude that I’ve gotten from my neighbor. So, I’ll move on. Leaving this house, with my request in place, to add the additional bedroom. MR. MC NULTY-You say you’ve got your six bedroom house on the market. MR. WALKER-Yes. MR. MC NULTY-You also have the house that you’re applying for the variance on the market. MR. WALKER-The house is on the market because, to tell you the truth, I’m so fed up with the attitude that I get next door, if I could sell it, I would flip that money, using a 1031 Tax Exchange, into another lake property. The price that I’ve put on it is way too high. I put that price on it because I spent one afternoon looking at what was available on the lake, and the only way that I could purchase a comparable house in size and number of bedrooms on the lake is to sell it at my asking price, pay the commission, and then buy another house. My real estate agent says that I’ve got it priced too high. It probably will not sell, and if there’s any concern that I might want this permit just to increase the value of the house, or in order to be able to sell the house, I’m, personally, convinced that the addition of money that it’s going to take to put this additional bedroom on will not add any value to the house that I would see in a real estate sale, and if I get my approvals, my intent would be to do the construction in the fall, take the house off the market, and I’ll have to learn to deal with my sister next door, at that time. MR. STONE-A sad commentary, but an honest one. Okay. Any other questions before we talk about it? Any questions at all of the applicant? Let me ask Staff. We are convinced that the deeds, subdivision questions are addressed? This deed that Ms. Fricke talks about, is that present? MR. BROWN-I think the Staff is comfortable with that. You need to be comfortable with it. MR. STONE-Okay. Well, we’re being guided by you first. MR. BROWN-Right. MR. STONE-We don’t have the deeds in front of us, and you’re assuring us that you believe the deeds are correct. The questions of subdivision, the questions of property lines is all right? MR. BROWN-Well, I think if you’re still a little unsure, if you look in the Staff Notes in 1992, the applicant or a representative for the applicant, made an application for a variance to create a two lot subdivision. It was withdrawn. Maybe they can speak on that, and maybe shed some more light on the configuration, if it was withdrawn because there were two lots, didn’t require subdivision, maybe they have some history on that for you that might shed some light. MR. STONE-Can you comment, this is Area Variance No. 62-92, which was to create a two lot subdivision of nonconforming lots, and it was tabled for no action, with no action. Any comment about that? MR. WALKER-That was when my dad owned it, and I was too busy working out on the farm to really get up to the lake very much or have anything to do with it. What I have been told by the attorney who was handling that matter was that it was determined that it wasn’t necessary to proceed with whatever proceedings had initially been started with the Town, and the changes could be accomplished as they were, and again, that was prior to my ownership, and it was actually, I guess in a sense, to the detriment of my property and for the benefit of my brother’s property. MR. STONE-What were the two lots that were going to be created? The ones that currently exist? MR. WALKER-Apparently, yes. MR. STONE-So, in a sense, it wasn’t a legal subdivision, if there was no action taken. MR. WALKER-It was determined that there already were two lots, and they didn’t have to be subdivided, pre-existing. 7 (Queensbury ZBA Meeting 6/15/00) MR. STONE-Okay. MR. BROWN-Right. MR. ARMANDO-As far as that deed from Bover that was mentioned, that is recorded in the County Clerk’s Office. I saw it. MR. WALKER-Yes. That would be the 1964, I think, when my father originally bought the property. I’m pretty sure that is in the County Clerk’s Office. MR. ARMANDO-It is there. I saw it. MR. STONE-Okay. Any other questions? MR. HIMES-Yes. Just one. If I could ask Mr. Walker to explain, again, the family situation you mentioned before. How is the make up, boys, girls? MR. WALKER-I can’t tell you what the one is that’s on the way, although I know my wife didn’t want to know. She made me promise. My oldest boy is 18. I have a girl that’s going to turn 17, July 17. I have a boy that’s 13, and I have a boy who will be two on the 17 of August, and then a fifth thth child on the way. MR. HIMES-Thank you. MR. STONE-Okay. Let’s talk about it. Jaime, would you start. MR. HAYES-Sure. Well, first of all, it’s a beautiful camp, Mr. Walker. I walked it with you there. I certainly am envious. It’s a nice piece of property, but as I look at the project cumulatively, my sense is, with the proposed application, we’re trying to put 10 pounds of sand in a 5 pound bag for that lot. I think the dimensional relief is very substantial. You have relief into the Critical Environmental Area, other setbacks. The property, based on the proposal, will violate the Floor Area Ratio, which I believe was designed to prevent this very type of thing, which is over utilization of a narrow lot, a small lot with a large camp. There’s runoff and stormwater issues, which have been explained, to some satisfaction, but nonetheless, it is a crowded area, to say the least, in that pocket. The proposed addition will move the total number of bathrooms up to five. That’s my understanding, and that certainly, for a lakeside property, has to bring, in my mind, the question of the viability with the existing septic. I believe that it could be remedied, but certainly it’s just another straw in an overall situation that I think makes the relief requested very substantial, and with the possibility of an undesirable change in the character of the neighborhood, and those two things together, I would think the balance would fall against the applicant, on this application, as it sits now. MR. WALKER-I think you asked me a couple of questions there, one of which was the number of bathrooms. There are currently two bathrooms. We would add a third, and as far as the septic being able to handle it, we have engineers certified letters to you. Actually, the septic system that is across the road, that is effectively a community septic system, is built to handle a total of 15 bedrooms. There are currently 12 bedrooms, and it’s all built to 1999 standards. This isn’t an old lake property with a little seepage well where the stuff is actually going on to a rock and down in. As Gabe explained to one of my neighbors, who else is, other than the Walker family, has spent $50,000 to build a State of the Art sewage and septic facility across the street, overbuilt even to the current codes. So your concern that the septic will not be able to handle it is refuted by the two engineers who wrote this Board, and the fact that it really is a substantial facility across the street, that is still well underutilized, even adding another bathroom. MR. HAYES-I’m willing to stipulate, I mean, that was my concern, and if that’s in those letters, which I missed that original meeting, I’m willing to stipulate that fact. That’s fine. MR. STONE-Let me just ask a question of Staff, though. This septic system that supposedly is over- designed is not under our jurisdiction, is it? MR. BROWN-That’s correct. It’s in the Town of Fort Ann. MR. STONE-It’s Washington County. So we, do we pretend it doesn’t exist? What do we do? We’ve not had this before. MR. BROWN-No. I think, practically speaking, that if an applicant can demonstrate to the Building Department that a building has a viable, up to code septic system, that’s fine. The installation and inspection of it wouldn’t fall under the Town of Queensbury’s jurisdiction. It would be under the Town of Fort Ann’s, Washington County, whoever inspects it, because it lies within their property. 8 (Queensbury ZBA Meeting 6/15/00) MR. HAYES-But he’s saying you’ve got the certification from a P.E. MR. BROWN-Right, and that would be sufficient for this Town’s Building Department. MR. ARMANDO-That was designed by a professional engineer, and it was submitted for approval, and built and inspected, and the existing system that was for the 15 bedrooms has been in there for, what, 10 years now. There’s never been a problem at all with it. MS. FRICKE-Just, if I may, I’m trying to look through the files right now to find that letter. I see one letter from Mr. Armando for the septic system that says that it will be satisfactory, but if I’m not mistaken, there’s another letter in your file that contradicts that, and says that the septic system will have to be expanded to allow. MR. ARMANDO-Yes, that’s part of the whole thing, that there definitely is a letter in there saying, from Tom Nace, if the project is approved, that the septic system does have to be upgraded, and an additional 1,000 gallon tank must be added to it, to bring it up to standard, and that definitely is in there. MR. STONE-Okay. So if we were to approve this, then this would be a stipulation. MR. ARMANDO-Right. MR. STONE-We’d put on there, if we’re inclined to approve it. Okay. I’ve still got you down as a no, still? Okay. Chuck McNulty? MR. MC NULTY-Well, I can basically echo Jaime’s comments. I have the same concerns. On the one hand, I can understand the problem that a camp owner has when they’ve got a camp that’s nonconforming, can’t do anything with it unless they get a variance, but at the same time, the rules that exist now are there for a reason, and to my mind, one of the things they’re trying to accomplish is moving the general population back away from the lake a little bit to give the lake a little bit of a break, to ease the number of people per acre that are impacting the lake, and it strikes me that this is going to increase the load, even though there’s going to be supposedly adequate septic treatment. The other concern I have, in balancing, I can understand the current owner’s needs, in terms of his family, but I have to think ahead to what happens if this property should sell, and certainly this is a real possibility with a For Sale sign on it right now, and if we grant the variance now, then that variance sticks with the property for the next owner, who may or may not have this much need, but it’s still the same kind of load potential that’s there. I guess in sum total its strikes me that it’s too much for the property. So you can put me down for a no, too. MR. STONE-Okay. MR. STONE-Bob? MR. MC NALLY-If I look at the five factors we’re required to look at, in my opinion, four of those factors weigh against the application, and only one of the factors weighs in favor of it, and that’s the first one, the benefit to the applicant. I think most residents on the lake would like to maximize their intensity of use. They’d like to get as close to the lake as possible. We’ve seen that with people. The construction of a second floor at this location, on a rock 26 below the lake, looking straight down the lake, is certainly going to be a use that is inherently contrary to what the intent of the setback is, but nonetheless, that would certainly be a benefit to Mr. Walker. As far as feasible alternatives, this is a very large house on a very small lot. It’s a pre-existing, nonconforming use, alternatives include using it as is. It’s already a five bedroom structure, and I don’t know that necessarily every child need, excuse me, a four bedroom structure, their own separate bedroom. Another alternative is no construction, and lastly, as much as you may not wish to do it, you do own the adjoining property across the road, and that’s an alternative use where you’ve already constructed a six bedroom house. Is the relief substantial relative to the Ordinance? If you tie this in with the effect on the neighborhood or community, that’s one substantial house. It’s a congest lot. It’s overcrowded. It’s elevated, sticking out on a rock. There’s no trees, in large part, in the portion which looks out over the lake where this construction is to be. It’s at a significant height, a 50% variance from the setback requirement, the property doesn’t meet other area requirements. So by expanding this use, we’re furthering the nonconformity of the property. The effects on the neighborhood, I think it’s an extraordinarily intensive use of the waterfront. You’re entitled to two boathouses. They pre-exist, no question about that, but there are two boathouses on effectively what is a single lot frontage. On top of that, the house is directly on the lake. So the congestion is right there. It’s a very intensive use. It’s an imposing house. Is the difficulty self-created? I think it is. There is a six bedroom house across the street, on a large lot. Mr. Walker elects to live in this four bedroom house instead. It’s an undersized lot. I know there are a lot of properties on the lake on undersized lots, but I don’t think we’re required to allow you to expand that house to such an intensive use. I’m not in favor of it. 9 (Queensbury ZBA Meeting 6/15/00) MR. STONE-Norman? MR. HIMES-Yes. I respect everything that I’ve heard here. I, too, am (lost words) you don’t need a bedroom for every child, not every family does. The thing is there’s another part of this, the extension of the kitchen. I don’t know, in a way, I’d kind of like to hear what the rest of the Board has to say, but say no to the kitchen, because that changes the building a little bit. The bedroom you’re putting on just brings, a split level thing, brings the lower part up to about the level of the principal part of the dwelling. I might agree to a modified application, do away with the kitchen expansion, which is out toward the lake, and could be seen to be a problem. So I’d like to hold off and hear a few more comments. How does that sound to you, that kind of a compromise? MR. WALKER-Like they say, half a loaf is better than none, and certainly if the rest of the Board was of the same opinion, we would amend our application. MR. STONE-Let’s continue for the moment. Chuck? MR. ABBATE-Well, in the interest of time, I’m going to echo the statements of everything my colleagues have said on the Board, but I would like to add that based on the testimony and documents that have been submitted, it’s my position that the arguments for or against should be compelling, and at that particular time, I believe that the Counsel’s seven page arguments are compelling against the applicant’s request for a variance as proposed. So at the present time, I’d have to say no. MR. STONE-Allan? MR. BRYANT-I’m also of the same opinion, I would have to say no, and I think everybody has said everything, at this point. MR. STONE-Well, I certainly concur with the majority of my fellow Board members. This is a big variance. It is multifaceted. It includes things that I particularly am very concerned about, when it comes to the waterfront of Lake George, namely the Floor Area Ratio, and even more importantly to me, closeness to the lake. As I said earlier, perfectly legal to be where you are, with the house as exists, but when you come seeking a change, we get a chance to say we really don’t like it. As I look t the numbers right now, we will be making a motion to deny the application. If you’re willing, well, actually, if we deny it, you can come back with an application which is markedly, or whatever the word, substantially different, and then we can decide whether or not to hear that variance, or you could withdraw the application at this time, without prejudice, and resubmit a revised plan. That is correct, Staff? MR. BROWN-Or they could asked to be tabled to come back with a revision. MR. STONE-Well, it would be tabling, yes, they want to revise the application. MR. MC NALLY-In all honesty, I don’t know if I would be in favor of any application that there’s new construction within the setback. I don’t know about the other Board members, but I don’t want this applicant to go away thinking that if he comes back with something less he’s going to get it. It might be a waste of everyone’s time if he did that. MR. STONE-An excellent point. Any other comments to that effect? I mean, I certainly would concur with that, because construction of a building that close to the lake is, unless you could construct, well, I’m not even sure you could construct outside of the 50 foot because it still comes into play. We still have to grant a variance. MR. MC NULTY-I’m inclined to agree with Bob. MR. STONE-Okay. MR. ABBATE-And I am, as well, Mr. Chairman. MR. STONE-Okay. I hear four votes. So I’m going to call for a motion to deny the application. Do I hear a motion? MOTION TO DENY AREA VARIANCE NO. 23-2000 WILLIAM WALKER, Introduced by Robert McNally who moved for its adoption, seconded by Charles Abbate: Pilot Knob Road. The applicant proposes the construction of a second story addition and a small single story addition. The applicant requests 24 feet of relief from the 50 foot minimum shoreline setback requirement and 1.48 percent relief from the 22% Floor Area Ratio requirement of the WR- 10 (Queensbury ZBA Meeting 6/15/00) 1A zone, specifically Section 179-16 of the Town of Queensbury Zoning Ordinance. Also, the applicant requests relief from Section 179-79, which is expansion for a nonconforming structure. I move that we deny this application for the following reasons. First, in considering the five factors relevant to our decision, the only factor weighing in favor of the applicant is the benefit that he would receive. Like most residents on the lake, he would be thereby allowed to use the maximum amount of lake frontage and be as close to that lake frontage as generally would be possible given the construction. The other alternatives weigh against him, however. There are feasible alternatives that include interior alterations to eliminate the new single story addition, also use as is. There is no construction which is a possibility, and also use of adjoining property across the street where Mr. Walker has already constructed a six family home. The relief is substantial relative to the Ordinance. Twenty-four feet of relief from the fifty foot requirement is substantial. It’s almost a 50% variance that they’re asking for. I do feel, however, that the 1.48 percent of the 22 percent floor area ratio requirement is minimal. Relief is also substantial when you consider the actual property itself. It’s a congested area consisting of two boathouses along the lake, a house which is in closer proximity than the current Zoning Ordinance would allow. It’s overcrowded. It’s elevated on a rock platform, and there are no trees in the area of construction that’s proposed, thereby it would be intrusive upon the lake. The property does not meet other area requirements as far as the side setback and other requirements. There’s no question that the use is oversized for the lot. The effects on the neighborhood or community would be negative. It’s an extraordinarily intensive use of the waterfront. It’s an imposing large house on bare rock facing the lake and in view to everyone going up and down the lake. The difficulty, with all due respect, is self-created. There is a choice made in construction a new building across the street that would be able to accommodate this home. This applicant has elected, rather than to live in that home, to try to improve the lakefront property, which is an undersized lot, and to construct an even more imposing home on that lot. For all these reasons, I ask that the Board deny the application. Duly adopted this 15 day of June, 2000, by the following vote: th AYES: Mr. McNally, Mr. Himes, Mr. Abbate, Mr. Bryant, Mr. Hayes, Mr. McNulty, Mr. Stone NOES: NONE MR. STONE-I’m sorry. SIGN VARIANCE NO. 25-2000 TYPE: UNLISTED HC-1A ADECCO EMPLOYMENT OWNER: J.M. WELLER ASSOC. 345 BAY ROAD, NW CORNER AT BAY AND QUAKER ROAD (TRUSTCO BANK BUILDING) APPLICANT PROPOSES ADDITION OF A 24 SQ. FT. SIGN TO THE EXISTING 64 SQ. FT. FREESTANDING SIGN AND SEEKS RELIEF FROM THE SIGN ORDINANCE. WARREN COUNTY PLANNING TAX MAP NO. 62-1-8.1 LOT SIZE: 0.58 ACRES SECTION 140 THERESA BROWN, REPRESENTING APPLICANT, PRESENT MR. STONE-Read the tabling motion. MR. MC NULTY-Tabling motion. The Zoning Board of Appeals record of resolution, regarding Sign Variance No. 25-2000, Adecco Employment on the meeting dated of Thursday, April 20, 2000, “Motion to Table Sign Variance No. 25-2000 Adecco Employment, Introduced by Lewis Stone who moved for its adoption, seconded by Norman Himes: The applicant will enter into a discussion with their landlord to see if, One, a wall sign might be permitted, according to regulations, or, Two, that the freestanding sign be modified so that the relief required is minimized or eliminated. We will table this for 62 days. Duly adopted this 20 day of April, 2000, by the following vote: AYES: Mr. th McNally, Mr. McNulty, Mr. Underwood, Mr. Himes, Mr. Stone NOES: NONE ABSENT: Mr. Abbate, Mr. Bryant, Mr. Hayes” MR. STONE-It’s your shot. MRS. BROWN-Okay. Just to remind you, that’s my husband. I didn’t know if you remembered, those that weren’t here. MR. STONE-We know that. MRS. BROWN-All right. I got the lease. I think you all have copies of that, which does state in there, on Page Three, that it is up to Adecco to try and get a sign variance, and that they will not forfeiture any signage, and I did go in front of Trustco with a proposal to amend the existing sign, and they are denying me. MR. STONE-To amend their existing sign. 11 (Queensbury ZBA Meeting 6/15/00) MRS. BROWN-Right. That’s what we had originally talked about to try. MR. STONE-In other words, they want the full signage they have now, and you, therefore, want to add to the bottom of that? That’s what we’re talking about? MRS. BROWN-Right, and when we tabled it last time, we talked about perhaps going, because I didn’t have the lease in front of me. So we wanted to see what the lease said and to see if, perhaps, Trustco would be willing to have me split their sign, and I proposed that to them with like making it Trustco and then Adecco at the bottom, and I did propose that to the attorney at Trustco, and I think the letter is included in what you have. He denied it. MR. STONE-It’s on the coversheet, but are you saying they don’t even want you to put it below? MRS. BROWN-No, they’ll allow me to put it below, but the owner of the building won’t let me put a wall sign on, and then I tried to come before to put it below, and you wanted me to go and see if they would forfeit some of their signage, and they will not. MR. STONE-That was one of the questions about a wall sign. Do you have a statement from the owner? MRS. BROWN-I thought that there was, yes, that he did not want it. MR. STONE-You’re saying your landlord is Trustco. MRS. BROWN-No, no, no. Our landlord is J.M. Weller, and the building is being foreclosed on, and I can’t figure out where J.M. Weller is. I can’t locate him anywhere. So I sub lease from Trustco. MR. MC NALLY-Your company’s sub leasing this, though, from the Trustco. MRS. BROWN-From Trustco, right. MR. MC NALLY-Your landlord is not Mr. Weller. Your landlord is Trustco. MRS. BROWN-Right, well, the landlord of the building I should say, yes, the owner. MR. STONE-But the outside of the building is the landlord’s, I gather is what we’re saying. MRS. BROWN-Right. He will not let us put anything on the building. MR. STONE-Okay. I mean, I certainly don’t say it’s not true, but we don’t have the piece of paper. MRS. BROWN-I understand. MR. BROWN-You could certainly make that a condition of the approval, that they forfeit the outside wall sign. That’s reasonable. MR. STONE-We have to be assured that the wall sign is not allowed by. MRS. BROWN-I thought that there was something, but maybe not. MR. STONE-I’ve got Trustco stuff in there. That’s all I. MR. MC NALLY-You said that as a condition you were suggesting that the wall sign be forfeited? MR. BROWN-If that’s amicable with the applicant, sure. I think that’s reasonable to, if they’re willing to forfeit it, in lieu of additional freestanding signage, that’s fair. MR. MC NALLY-And can a tenant do that, though, or does the landlord have to do that? Adecco’s not giving up anything. They don’t own the building. MR. BROWN-No, but I think the applicant is here with permission from the property owner to speak for the building. So, they have that signature. MR. MC NALLY-Okay. MR. STONE-So the applicant can’t say we won’t seek it. It doesn’t say somebody that may occupy that space, but the, of course, if they’re not there, then the other sign comes down. 12 (Queensbury ZBA Meeting 6/15/00) MR. HAYES-Yes, because we’re approving it on a case by case basis. MR. STONE-Right. MR. HAYES-Or contemplating it on a case by case basis. MRS. BROWN-And again, we wanted to add a 24 square foot sign below the existing illuminated sign, but ours was not going to be illuminated. MR. STONE-And their sign is eight by six? MRS. BROWN-Eight by eight. MR. STONE-Right, and you’re going to be three by eight. MRS. BROWN-Right. MR. HAYES-But it’s not going to be illuminated? MRS. BROWN-No. That was a stipulation of the County. MR. STONE-Okay. You have permission to abut their sign directly underneath their sign? MRS. BROWN-Yes. MR. STONE-With no space between? MRS. BROWN-Yes. MR. STONE-Okay. Any other questions of the applicant? MR. ABBATE-She indicates that she has permission to abut your sign to the Truscto sign. Do we have that in writing? MRS. BROWN-I think that the original application shows the original idea, and the original drawing showing it, one right underneath the other. MR. MC NULTY-That’s something, again, that should you want to grant the approval, that you could make a requirement, that if she can do that, fine. If she can’t, no. MR. STONE-The addition of a three by eight sign directly underneath, contiguous to, your Trustco sign, and you’re willing to stipulate it will not be illuminated. MRS. BROWN-Right. MR. STONE-Of course the sketch in here says internally illuminated. MRS. BROWN-Right, and we talked about that. That was a different quote. MR. STONE-Okay. I just happened to see it. Okay. Any other questions of the applicant? If not, I’ll open the public hearing. Anybody wishing to speak in favor of this application? In favor? Anybody opposed to this application? Opposed? Any correspondence? PUBLIC HEARING OPEN MR. MC NULTY-I believe so, no, other than the lease that we’ve discussed. MR. STONE-Okay, and that’s entered into the record, the comments from Trustco. Why don’t we read that in. MR. BROWN-You can just reference it, make it part of the record. MR. STONE-As part of the public offering was a letter from Henry Collins, Administrative Vice President, General Counsel of Trustco Bank, saying that they are unwilling to forfeit or waive their rights for certain signage associated with their property there. MR. ABBATE-And, Mr. Chairman, I’m sure that there’s an error here, that it’s not Mr. Theresa Brown. 13 (Queensbury ZBA Meeting 6/15/00) MR. STONE-Well, it is, it’s Ms. underneath and Mr. on the top. If I could get Mr. Lapper’s attention, that’s where lawyers sometimes make mistakes. They don’t read what they sign. MRS. BROWN-I’ll have to bring that to his attention. MR. STONE-Yes. I saw that earlier. Having said that, I’ll close the public hearing. PUBLIC HEARING CLOSED MR. STONE-Any questions of the applicant? All right. Let’s talk about it. Chuck McNulty? MR. MC NULTY-Okay. I’m going to be negative on this. I understand the need of the applicant, but I have a problem with the Town bailing out a business with, I don’t know whether to say a business that made a bad decision when they signed the lease, or a business problem, but it strikes me that this is a business problem. It’s between a lessor and a lessee. They both knew, or should have known, when they went into this, what the sign requirements were. It’s a business mistake. I don’t think it’s up to the Town to correct the business mistake. So I’m going to be opposed. MR. STONE-Okay. Bob? MR. MC NALLY-I hate like hell to get these things where family members are involved, and people on our Staff, but let me just express a general opinion, that we get these sign variance applications all the time, from businesses which started with one business in the building, and then they split it in two and they want two signs, then they split it in four and they want four signs, or one space becomes two businesses because you’ve got a sideline and you want an extra sign. It’s a problem. Your need for a sign I understand, and I think you should have a sign, and when you think about it, in the scheme of things, a three by eight sign, who the hell cares. It’s just a little tiny thing, but it becomes a repeated problem of sign congestion. I like what Chuck has to say, because it does seem to me in all these problem areas, it’s the landlord who says, I’m keeping my sign. I’ve got the maximum sign square footage, you go get another sign, and then it imposes upon the Town the responsibility to be the nice guy and say, what the hell, we’ll do it this time. We do it and we do it and we do it and we do it, and it eats at me. We’ve got two sophisticated businesses here, Trustco Bank and a nation wide employment agency. To buy a brand new sign we’re talking maybe one or two grand to replace it, make 64 square feet. I think that’s a feasible alternative, and I think that’s the cost of doing business that should be imposed upon new businesses, not upon the Town or the citizens, but I still come down to the bottom line. It is one tiny sign when you come down to it. I hate it when these things happen. That’s my thoughts. MR. STONE-Norman, go ahead. MR. HIMES-I agree that, you know, to just say, okay, go ahead would nullify the signage zoning. On the other hand, sometimes mistakes are made. In this case, it doesn’t do the Town any good either to put somebody out of business, or make this very, very difficult, especially with the location they’re at. It’s my feeling if we can make an exception, with the stipulation, that, okay, go with the sign. When the lease expires, no more sign. In other words, all right, the sign is there until X X day, the expiration of the lease, and then your company has to go head to head with Trustco or start making plans to find another location. I can see why Trustco doesn’t want to give up their 64 square feet, but on the other hand, they’re doing business with you. (Lost words) If we could make that stipulation, I’d go along with the sign for that temporary period. That’s it for me. MR. STONE-Okay. Chuck? MR. ABBATE-Mrs. Brown, help me out, please. At the present time, the current situation is that Trustco Bank has a lease, and in that lease, part of the lease determines that they have control over signs, correct? MRS. BROWN-Right. MR. ABBATE-And at the present time, they are unwilling to forfeit or to even waive these provisions. Is that correct? MRS. BROWN-Correct. MR. ABBATE-Okay. Now this is the part that I want you to help me out with. MRS. BROWN-I’ll try. MR. ABBATE-Are my colleagues correct that if we were to approve your request, we would be by passing, offsetting or perhaps forfeiting some of the provisions of the lease agreement with Trustco? 14 (Queensbury ZBA Meeting 6/15/00) MRS. BROWN-Trustco is not willing to give up any of their current signage. They don’t have a problem with us adding to their existing, adding below it. MR. ABBATE-Adding below it. MRS. BROWN-Right, but they don’t want to give up their 64 square foot. MR. STONE-In other words, they won’t allow the overall sign to be conforming with the two businesses on it, to be 64 square feet at that location. MRS. BROWN-Right, and to clarify, if I may, the business concern that you brought up. I’m just a peon Branch Manager. This was all handled from Corporate in California for the leasing and the agreement. MR. ABBATE-You had no part in the negotiations? MRS. BROWN-No. MR. ABBATE-So you have no idea whether they are, based on another approach, they would be willing to reconsider their position? MRS. BROWN-I did try. I called and talked to the attorney myself, and he would not, but I did not sign or originate the original lease. That was done in our Corporate in California. MR. ABBATE-See, I’m a proponent. I think the Town should support businesses. There’s no doubt in my mind about that, but my colleague on the end has made a very important point. We are placed, now, in a position to override a lease agreement, which I think is not the function of this Board, quite frankly. I think that a civil litigation or a civil confrontation or a civil whatever you wish to call it, but I don’t believe, at least in my opinion, that we should be placing ourselves in this kind of position, because if we do it for you we’re saying precedence, and this gentleman can say we want the same thing, he can say we want the same thing, and then we are imposing, this is only my opinion, not the Board’s opinion, that we begin to impose ourselves into contractual negotiations or forfeitures. MRS. BROWN-But they’re not forfeiting. They wouldn’t be forfeiting, and so that’s their, they’re saying that they won’t forfeit, and by us adding below it, they wouldn’t be forfeiting. MR. ABBATE-I understand that. Let me just say this, I’m uncomfortable. I support your business. For all I’m concerned, you should have a huge sign, same size as Trustco. I don’t have a problem with that, in my opinion, because we should support your business, but I’m uncomfortable with what is being presented to us this evening, and in the position I perceive we should not be in, and I’m not suggesting that I’m correct. I’m just suggesting it’s my perception. That’s it, Mr. Chairman. MR. STONE-Another confused answer. Allan? MR. BRYANT-Now I’m very confused. MR. BROWN-Could I just ask a question of Mr. Abbate, and I don’t want this to get confusing, but is your position that you think you are overriding the lease, or the Town Sign Ordinance? MR. ABBATE-I feel that we may be, may be imposing ourselves. MR. BROWN-Because I don’t think the lease says they can’t have any signage. It just says they can’t have any of the 64 square feet that’s there. MRS. BROWN-Right, and in the lease they’re saying it’s our responsibility to get anything further. MR. STONE-All right. This was the question I was going to ask you. Who owns the sign pole, the lessor, Trustco, they own the sign pole? MR. BROWN-I think so. MR. STONE-So they are saying, as part of the sub lease, you can use their sign, if, their sign pole below their sign, if you get permission from the Town to make the total sign 88 square feet, or a 20% increase to approximately. MR. ABBATE-But now we’re engaged in almost civil litigation. 15 (Queensbury ZBA Meeting 6/15/00) MR. STONE-No, not really. MR. MC NALLY-Can I add something? MR. STONE-Sure, Bob. MR. MC NALLY-This is written down in black and white in this lease. So these two companies thought about this before they even signed this lease, and Trustco said, no, you can’t have my sign. You’ve got to go get extra sign, and the employment agency signed this thing knowing that they might not ever get any signage. So it’s self-created. MRS. BROWN-It was signed by somebody in Corporate from California, which I know they don’t, unfortunately, they don’t know the Queensbury Ordinance. MR. STONE-What Trustco is saying that we’re entitled, at that position, the 64 square feet, and we’re not going to give up our 64 square feet. That’s what they’re saying. They’re saying you may use the pole that we own, that we put in at our expense, for you to add 24 square feet at your expense. MR. ABBATE-Yes, but if they’re entitled to 64 square feet, which is the allotment, the maximum allotment, how could, then, Adecco put up an additional sign? It would exceed the allowance. MR. STONE-That’s why they’re here, to talk to us. MRS. BROWN-And it says right here, “It shall be the leasee’s responsibility to obtain any and all necessary approvals for any signage.” MR. STONE-That’s why we’re here. MR. MC NALLY-We could give them more than 64 square feet. MR. STONE-If we so chose, we can give them the 24 square feet, if we want. That’s within our jurisdiction, but that’s all we’re granting. It’s like Trustco were to come to us and say, our sign is too small. We want to make it 88 square feet, in a sense, that’s what we’re saying, but in this case, there’ll be two signs on it, and some of the points that have been made are telling, but we’ll keep going. MR. ABBATE-Okay. My comments are not in concrete. MRS. BROWN-I understand your concerns. MR. ABBATE-I’ll listen to what everyone has to say. MR. STONE-Okay. Allan? MR. BRYANT-Mrs. Brown, you had mentioned that the Bank is foreclosing on the property? Did you say that? MRS. BROWN-J.M. Weller is the owner of the building, and I believe that it is being foreclosed on. MR. BRYANT-And Trustco is the bank that’s? MRS. BROWN-No, it is not the bank. That would be interesting, but, no, they are not the bank. MR. BRYANT-Well, the reason I ask is because you mention that the owner of the building has already said that you couldn’t put a sign on the wall. MRS. BROWN-Correct. MR. BRYANT-On the outside of the building. So, who’s the owner of the building? I mean, Weller’s the owner. MRS. BROWN-Well, when I originally started the proceeding, way back when we were moving into the building, which was in January, I got his signatures, and they did not want, nor did Trustco, nor did the owner of the building, want us to put any signage, because it is a nice looking building, on the outside of the building. So I did not go back. MR. BRYANT-But Trustco has a sign on the outside of the building? MRS. BROWN-No, they don’t. 16 (Queensbury ZBA Meeting 6/15/00) MR. BRYANT-They don’t? MRS. BROWN-No. So I did not go back to the Bank now that is in the process of foreclosing on Mr. Weller and ask their opinion. MR. STONE-But that, therefore, is an option. If Mr. Weller is going to lose the building, there may be a new owner. So that’s still an option. MRS. BROWN-Right. MR. STONE-Okay. MR. BRYANT-Well, my position basically is I agree with Mr. Abbate that we do have to support business, but I do disagree with the statement that he made. In that whole area, we’ve approved sign variances for other businesses. You’ve got multiple wall signs and the like, and I don’t think it would be detrimental to the area. So I’d be in favor of the proposal. MR. STONE-Okay. Jaime? MR. HAYES-I agree. I think this panel is charged with entertaining reasonable requests for minimal relief, and in my mind a 24 foot, non illuminated sign on Quaker Road is very minimal, compared to what’s there currently. I can’t imagine that really being any real impact at all, based on what’s there already, not to talk about what may be there in the future. I feel that the applicant has definitely explored every option possible, as it appeared in front of this panel several times now, and I think I’ll agree with my immediate Board member that responsible businesses are the community, just as much as the citizens are, because that’s the reason citizens can be here, and they deserve our support, where there isn’t a detrimental impact on the neighborhood. I agree, you know, I know, from personal experience, that the situation with Mr. Weller is complicated, and that complicates your, you know, your avenues of exploring options, and as far as precedence, I think it’s a unique circumstance, in that the owner of the building is not available. The lease was signed in California. I don’t have a lot of apprehension that we couldn’t deny another sign variance, that didn’t have as many unique characteristics to the application as this one does. I mean, that’s why we entertain each one on its merits and apply the test. So I guess I agree with Norm, in that, along with being in favor of the application, I think the contingency should be applied to alleviate the relief, if it’s possible. If a new owner comes in that will allow you to hang a wall sign, then the sign should come down. Obviously, we’re not trying to circumvent or alleviate the power of the Ordinance, but I think we can do that with some important contingencies that really narrow to the unique circumstance of your application. So I guess, cumulatively, I don’t have any problem at all with the application. MR. STONE-I have to admit, I’m conflicted by this thing. I have been a staunch defender, that doesn’t mean I haven’t voted for variances of our Sign Ordinance. I recognize everything my fellow Board members have said. It’s a good business. It’s a clean business. I mean, obviously, no one knows you’re there now because you don’t have any signs, and therefore you haven’t done anything to make them aware, negatively, that you’re there. I do hear you say that you tried to get a wall sign. Obviously, a wall sign would be satisfactory if you could get a wall sign. If, I would like you to say that if you get one, under this new ownership, because it is confounded, it is confusing with the situation with Mr. Weller, and the foreclosure and who knows who’s going to own the building, that if you continue to seek a wall sign from whoever the new owner is, and if you get permission, that you be willing to take down the other one, because I do believe it is close to the road. Sixty-four feet is what our Ordinance calls for at that particular point. You want to increase it by 27%. Twenty- seven percent is a fairly large number. It’s a substantial number. There are a lot of things I would like to have increased by 27% in my situation. So it’s a good number. Would you be willing to continue to pursue a wall sign? Certainly in terms of, I think it was Mr. Himes said when the lease is up, which is November 2001. So we’re talking approximately 17 months, something like that, I guess. Would you be willing to, at least at that point, assuming the building ownership is resolved, to seek a wall sign? MRS. BROWN-Sure, I can try. MR. STONE-Okay. Well, that’s all we can ask you to do, obviously. As I say, I would reluctantly go along with this. I’m not happy about, it’s not about your application. It’s the fact that we are increasing a sign to a fairly substantial amount, as far as I’m concerned, but having said that, it appears that the inclination of the Board is to accept this application. So do I hear a motion to that effect, to approve this application, I should say? MR. MC NALLY-Before we get there, Jaime, what conditions were you thinking about, what strong conditions were you thinking about? 17 (Queensbury ZBA Meeting 6/15/00) MR. HAYES-My two conditions were contingencies. One is that if a new owner did acquire the building, which I think it’s safe to assume that’s, in fact, what will happen, that the applicant will show a good faith effort to pursue that wall sign, and if granted, remove this sign. MRS. BROWN-Okay. MR. HAYES-And the second contingency was, as Mr. Himes brought up, that at the end of this lease, I think the variance should terminate and that the lease should be negotiated with Trustco or with the owner, to the fact that you need signage, deserve signage, or you shouldn’t be paying rent. I think that’s important in this circumstance, because I think we’re all sensing that the error was out of your hands, but once it gets in your hands, I think that. MRS. BROWN-And I don’t have a problem doing that, and again this isn’t, I will do whatever I can, but my only concern that I’m going to hear back is, we’re going to pay, whatever it was, the quote, $2400, to put up a 24 square foot sign underneath, and then within less than two years now, take that down and pay another $2500 to revamp. MR. STONE-Or use half of that sign on the wall. MRS. BROWN-That’s possible. MR. STONE-We recognize the position that you’re in. You are running an operation, and you’re out here all by yourself, and they’re sitting back in California saying, well, she better get this Sign Variance. We understand that, but I think these are reasonable conditions. I don’t know, Bob? MR. MC NALLY-Is the applicant willing to voluntarily enter into those conditions and accept them? MRS. BROWN-Sure. MR. MC NALLY-That’s what you’re offering us. MR. HAYES-I’m okay without them, but I don’t think you have the votes without them. MR. STONE-Okay. MR. HAYES-Well, I guess, when you say taking down the sign and the cost associated, when is your lease, when does this lease rollover? MR. STONE-November 2001, November 30, 2001. MRS. BROWN-It was a two year lease. MR. STONE-Twenty-three months. MRS. BROWN-Right. MR. HAYES-And as far as you know it’s their intention to stay there then? MRS. BROWN-Yes. It’s costly to move a business, and it’s hard to find, in Queensbury, a good location. So they have no intention of moving anywhere. They want to stay there for the duration. MR. HAYES-Now, Trustco’s lease, when does that? MRS. BROWN-Trustco’s lease, I think, expires around the same time, and honestly, I don’t know the intent of Trustco. They have another Trustco location down the road, right near the other plaza by O’Toole’s. MR. HAYES-They’re trusting in the intent of the new owner, too, I guess. MRS. BROWN-So I can’t speak for Trustco’s intent after their lease is up. MR. STONE-But in terms of what you are willing to say that what Adecco, and Jaime says a good faith effort, too, and you will make your management aware of what we’ve put you through. MRS. BROWN-I sure will. I don’t think they’d care, but. MR. STONE-Jaime, do you want to take a crack at it? MR. HAYES-Sure. 18 (Queensbury ZBA Meeting 6/15/00) MOTION TO APPROVE SIGN VARIANCE NO. 25-2000 ADECCO EMPLOYMENT, Introduced by Paul Hayes who moved for its adoption, seconded by Norman Himes: 345 Bay Road, in the Trustco Bank building. The applicant proposes construction of a 24 foot non- illuminated sign, in addition to an existing 24 foot freestanding sign. Specifically, the relief requested, the applicant requests 24 feet of relief from the 64 square foot maximum allowable square footage for a sign at 25 foot setback from the property lines per Section 140-6B(2)(a). The benefit to the applicant is very straightforward. They need signage for their business, from Quaker Road and they don’t have any currently. Two, feasible alternatives, I believe that the feasible alternatives are limited, based on the lessor’s unwillingness to share existing sign space. She’s presented the lease documents to support that. Three, is the relief substantial relative to the Ordinance? I don’t believe that it is. A 24 square foot sign, non-illuminated, placed immediately below the existing 64 square foot sign, I believe, is moderate relief. I don’t believe it’s substantial, and I don’t think the effects are too dramatic. Four, the effects on the neighborhood or community, I believe that, based on the fact that Quaker Road is a highly commercialized corridor in our Town, I do not believe that this small sign placed, unilluminated, below the Trustco Bank sign, will present an adverse effect on the neighborhood involved with Quaker Road. I believe it would have a very minimal impact. Is the difficulty self-created? I don’t believe that it is. I believe that the difficulty is created by Trustco’s reluctance to share sign space, even though they are the master on the lease. So cumulatively, I believe that the test falls in favor of the applicant. I move for its approval based on two specific contingencies. The first one is that if and when a new owner of the building emerges, or the deed is executed such that Adecco will make a good faith effort to obtain a mounted sign, a wall mounted sign, and at that time, remove the sign that this variance is contemplating, and the other contingency is that at the end of this lease, this Sign Variance will terminate, and it will be the burden of the applicant, as a potential lessor from a new owner or Truscto, to make it incumbent upon them to include your sign in the permissible 64 foot imprint. At the end of this lease, that Trustco could re- lease to Adecco, or whatever, that the total signage, at that moment that this lease expires, has to be reduced back down to 64 square feet, no matter whose sign is there. So with those two contingencies, I move for its approval. Duly adopted this 15 day of June, 2000, by the following vote: th MR. STONE-Can you live with those two contingencies? MRS. BROWN-Sure. MR. STONE-Okay. I think we ought to make it clear that the Trustco sign is in conformity. It’s not sharing sign space. I mean, they’re entitled to 64, and that’s what they’ve got. They’re not willing to reduce the size of their sign, so that the total two signs conform to the Sign Ordinance. MR. HAYES-I guess what I’m putting forth is that at the end of this lease, that Trustco could re- lease to Adecco, or whatever, that the total signage, at that moment that this lease expires, has to be reduced back down to 64 square feet, no matter whose sign is there. MR. STONE-Okay. MR. BRYANT-I have a question, Mr. Chairman, about that contingency. If Adecco chooses, then, to stay in that location, are you saying that, at the end of that lease, before they sign on again, that they’re going to have to remove the sign and, I mean, that doesn’t seem fair. MR. STONE-They’re going to have to come back to either remove the sign or come back to this Board, in anticipation of a denial at the end of that lease. I think that’s what you’re saying. MR. HAYES-I think it’s a very narrow issue, and I’m not sure how the Board feels. I agree with you. I think that that’s an overly harsh contingency, but maybe we should vote without it and see where it goes. MR. BRYANT-See, I would say, to amend that, as long as Adecco is occupying the space, they have the variance, and once that space, their lease is terminated, they do not renew a lease, or don’t sign another lease, then the variance is terminated. MR. STONE-Do you want to make it that way? MR. HAYES-I’d like to amend my motion to that exactly. I guess I’m okay with this variance without the contingencies, but I’m trying to construct a motion that represents the consensus of the Board, so that there can be a vote. 19 (Queensbury ZBA Meeting 6/15/00) MR. MC NALLY-Wasn’t the applicant willing to do that, though? And again, we’ve got two sophisticated businesses that aren’t small mom and pop type shops. I think the cost of a sign, particularly if Trustco goes out at the same time, and a new business comes in and is going to need a new sign anyway. MR. STONE-They also can appeal our ruling and they can come back in anticipation of the lease. MR. MC NALLY-As long as Adecco’s willing to do it, let’s keep their feet to the fire. MRS. BROWN-I mean, I’m willing to do it because I need a sign. I would certainly prefer not to have to do it. MR. HAYES-Do you want to vote without one? If it’s a split vote, you don’t get denied. There just has to be a new motion. MRS. BROWN-You can tell I’ve been doing this a lot. MR. STONE-No County Impact on this one? MR. BROWN-The County approved it with the stipulation that it was not to be illuminated. MR. STONE-Right, but that’s not a denial. So we only need four votes. MR. MC NALLY-You’ve got four votes, right? MR. STONE-I’m not sure. MR. HAYES-I guess, let me, I’d like to amend my motion as we discussed, and that’s the motion that I’m putting out there now. MR. BRYANT-Before you do this, can we find out if we have the vote without the contingency, the particular contingency? MR. STONE-Sure. MR. HAYES-That’s what I’m saying. That’s what we’re going to do. My motion is without the second contingency. The only contingency that I’m putting on there, at this time, is that the owner, that if a new owner obtains title to the property, that you attempt to place a wall sign. MR. STONE-Bob, can you go with that? MR. MC NALLY-I liked it the original way, to tell you the truth. MR. HIMES-I’m still in favor of the two stipulations, otherwise, you could face a lot of problems. MR. ABBATE-I’m still undecided. I’m still listening. MR. BRYANT-I’m in favor. MR. STONE-You’re in favor of it with the one stipulation? MR. BRYANT-With the one stipulation. MR. MC NULTY-I’m still opposed. MR. STONE-And I guess I would like to see some form of the two stipulations. MR. BRYANT-But rather than to say at the end of the lease, I think it would be fairer to say, when they vacate the property. I mean, when they’re done completely with that relationship and they no longer have a lease, then the variance should become null. MR. STONE-But if someone comes along, let’s take a hypothetical. If Trustco leaves that particular property, because they do have a bank down the road, I would like to see that sign become a conforming sign, as quickly as possible, 64 square feet, whatever names are on it, and that’s what we’re asking for, I think. MR. HAYES-Yes, well, that would be the second thing. MR. STONE-Yes. 20 (Queensbury ZBA Meeting 6/15/00) MR. HAYES-But I guess if we do that we’re kind of putting it on the back of Adecco who’s asking for a 24 foot sign to remedy that whole circumstance. How much square feet do you actually rent in that building? MRS. BROWN-I don’t know the exact square footage. It’s like 1200, if that. It’s half of the bottom floor. It’s four offices. MR. STONE-So they use three quarters of the building, or is anybody upstairs? MRS. BROWN-Right now a small envelope business is upstairs, but I believe that he is. MR. STONE-So you have half of the space that Trustco leases. MRS. BROWN-Downstairs. Right. They lease the entire downstairs, and we have. MR. STONE-Only the downstairs. MR. HAYES-So whoever comes in there and leases three, what we’re really purporting, with that second contingency, is anybody who comes in and leases three quarters of the building, that they’re going to give up signage for you. MRS. BROWN-Right. MR. HAYES-I mean, I hear the Board, but I just don’t think that would be possible or practical, but that’s all right. I guess if we don’t have the votes, we don’t have the votes. MR. STONE-Okay. So you’re willing to put that second back in? MR. HAYES-Yes. I don’t think, that the consensus of the Board seems to be on the second contingency. MR. STONE-Okay. Is everybody comfortable with the motion that we’re going to vote on? Two contingencies, one that they seek a wall sign as quickly, on the next owner, and, two, that when the lease expires, that we attempt to get the sign back in to conformity. MR. BRYANT-So you’re saying that in November 2001, Adecco has got to come back to the Board. MR. STONE-Or come back to us. They can come back to us. MR. BRYANT-And say that they want to keep their 24 foot sign. MR. STONE-Or that they tried in good faith, as the motion said, to get this and failed, and can we get a variance. MRS. BROWN-So I have to come back for another variance, is that correct, so I understand? MR. STONE-Yes. MR. MC NALLY-Or you get a conforming sign. MR. STONE-Or get a conforming sign. I think we ought to vote. Do I hear a second? MR. HIMES-I second it. AYES: Mr. Himes, Mr. Bryant, Mr. Hayes, Mr. McNally, Mr. Stone NOES: Mr. McNulty ABSTAINED: Mr. Abbate MR. STONE-So it’s five yeses, one no, and one abstention. So you’ve got your Sign Variance. MRS. BROWN-Thank you. MR. STONE-Until November 30, 2001. MRS. BROWN-And then you’ll see me again, I’m sure. 21 (Queensbury ZBA Meeting 6/15/00) USE VARIANCE NO. 30-2000 TYPE: UNLISTED RR-3A SBA, INC. & SOUTHWESTERN BELL CORP. OWNER: JAMES AND DIANE FOWLER 61 STATE ROUTE 149 APPLICANT PROPOSES PLACEMENT OF A 195 FT. TALL WIRELESS TELEPHONE TOWER ON AN 8.74 ACRE PARCEL IN ORDER TO PROVIDE ADDITIONAL WIRELESS TELEPHONE SERVICE. WARREN COUNTY PLANNING 4/12/2000 TAX MAP NO. 8-1-51 LOT SIZE: 8.74 ACRES SECTION 179-15 JON LAPPER & GARY WEISS, REPRESENTING APPLICANT, PRESENT MR. STONE-Do you want to read the tabling motion? MR. MC NULTY-Zoning Board of Appeals record of resolution, regarding Use Variance No. 30- 2000 SBA, Inc. & Southwestern Bell Corp, meeting date of Thursday, May 17, 2000, “Motion to Table Use Variance No. 30-2000, SBA, Inc. & Southwestern Bell Corp., Introduced by Lewis Stone who moved for its adoption, seconded by Charles Abbate: For specific information regarding the apparent appearance of the tower as constructed, taken from the perspective of the Lake George RV Park, namely the driveway or what is considered to be the most obvious place on their property, in terms of visibility, and I would ask that the applicant work in conjunction with Mr. King, if he is so willing, to help site the camera, in terms of where he thinks it would be most visible. Mr. King has agreed to work with the applicant, and this would be on the agenda for next month. That the applicant prepare a statement with specific sites and owners contacted and conversations that were held with these people and their particular positions, and that the applicant has asked that it be on the agenda for the month of June, any information to be submitted by June 9. Duly adopted this th 17 day of May, 2000, by the following vote: AYES: Mr. Abbate, Mr. Hayes, Mr. McNulty, Mr. th Himes, Mr. McNally, Mr. Stone NOES: Mr. Bryant” MR. STONE-Mr. Lapper. MR. LAPPER-Good evening. For the record, Jon Lapper. Shane Newell is the Property Specialist with SBA, Inc., which is the tower leasing company. Gary Weiss, to my left, is with SBC Communications, which is the wireless telephone provider, and Mike Schwedatschenko, to his left, is the RF Engineer. Last time I was here, Shane couldn’t make it because he was at another meeting. He was here for the first meeting, and Mike wasn’t available last time. So we were here with another engineer. We’re all here to answer your questions. In general, I think the record reflects at the last meeting that the Board made statements that you were satisfied that we had established the standard that service was necessary, that a tower was necessary for service in this area. There were statements even on the record from Mr. King, the owner of the property on the other side of 149, that the area traditionally has poor cellular telephone service. We submitted some studies that show the color studies of where there are deficiencies in service and the main area is along the Northway, going over the hill, parallel to Route 9. The case law, which I submitted originally and which we’ve talked about, talks about that standard for a Use Variance. It’s very different than the standard Use Variance that this Board would entertain, because wireless telephone service providers are considered a public utility. We have to establish that there is a deficiency in service. I believe that we’ve done that. We’re certainly here to talk about that again, if that’s necessary. We were talking about whether this was the proper location, and we submitted a memo, since the last meeting, from Shane, as to other people that he’s contacted, that other sites weren’t available. The RF study shows why it has to be in this particular location. Since that time, Shane met with Mr. King on his property. We did try to find a site on the King property, in terms of someone who is concerned about our application, to try and make him a proponent, to see if he was interested in the lease, to find a site on his property that was somewhat out of the way, but he really wasn’t interested in putting this facility on his site, but we did make a good faith effort to do that. I think that Mr. McNulty made a statement, if I remember correctly, last time, that the RV Park wasn’t like the pristine Adirondacks, although it’s an absolutely lovely facility, and the visual study, visual simulations that we submitted, I believe, show that it’s really a pretty minor impact on that Park. We were especially focusing on the entrance way, which is View Six, and because of the size of the trees and the distance, it’s really not, certainly it’s visible, but it doesn’t seem like a big problem. I know that George and Marilyn Stark are here also. We spoke with them outside, the owners of the Mohican Motel whom I’ve known for a long time and have a lot of respect for. They’re concerned because of the visual impact from the front entrance to their site. They weren’t here the other two previous meetings, and I guess what I’d say in response there is that because this is sited so that it is not along a roadway, and if you think of the Northway and the towers that are along, by Exit 18, where you see the entire tower from the base to the top, roughly 200 feet tall, this is 195, proposed, it’s much more of a visual impact when you see the whole tower. What we’re talking about here is something that’s some 600 feet in from Route 149. So you’re only seeing a portion of the tower, and because of the structure of the tower that’s proposed here, because the land is available, it’s not a self supporting tower which has to have a much larger structure, and therefore much more of a visual impact. It’s a guide tower with guide wires so that the face of the tower itself is, Gary, you said roughly three feet. So just in terms of the structure, it’s a much smaller tower than is common elsewhere in Town. With that said, I think that the tower is needed for service. It’s proposed for co-location as the tower ordinance requires, so that it would be the only 22 (Queensbury ZBA Meeting 6/15/00) tower constructed in this part of Town to make up for this deficiency, probably the only other tower that would be needed in Town, and I think that pretty much covers the issues that we were talking about previously. MR. STONE-Let me just ask you a question, Mr. Lapper. Yes, you did make a very strong case for the utility aspects, but a quote in an area newspaper has come to our attention, and I just want to read it, and any comments you wish to make, because it might bear on this thing. It’s a quote attributed to a gentleman. “The Federal Government mandates that if you have an FCC License, such as a Bell Atlantic or a Sprint, a certain amount of coverage must be provided along State highways.” This person said, “The mandate specifies that by 2001, 65% of this coverage must be in place.” Now, I take it back, I’m just reading it and it doesn’t say you have to have 65% coverage. You’ve got to have 65% of the availability, I assume. I think I misread that, and I withdraw the question. I hadn’t read it and I thought it said you only had to have 65% coverage. That was how it was purported to me. That’s obviously not what it says, and I take that back. MR. ABBATE-Well, 65% coverage by the Year 2001. MR. STONE-Of the area that you claim you’re going to cover, I assume. MR. ABBATE-Right. MR. WEISS-Gary Weiss and Mike Schwedatschenko with Cellular One. We’re not aware of any such Federal mandate. That sounds more perhaps like a business goal, perhaps, of a carrier that’s under time pressure to complete what’s known as a five year build-out. When licenses are issued, you have five years to provide basic coverage. Otherwise you can actually lose, under FCC Rules, some areas within your licensed territory that you are no longer permitted to even construct a site on. MR. STONE-Okay. As far as I’m concerned, I believe you have shown that the coverage is necessary, as far as you’re concerned, to supply your customers. I’m not sure that anything else is necessarily involved. MR. LAPPER-I want to just make one more preliminary comment. At the last meeting, one of the members of the Planning Board, Bob Vollaro, was here, and I spoke with him after the meeting, and I think he spoke to some of the members of the Board, and because of the way the Town regulations for telecommunications towers reads, assuming that we are successful with this Board, we would then have to go before the Planning Board for a site plan type review, and Bob had told me that, as a retired engineer, that his effort would be to make sure that the tower has to be 195 feet tall and he would hope that he could, as a Planning Board member, require that it be somewhat reduced. The RF Engineer from Cellular One is going to make the case that it needs to be 195 feet tall, but as to how that all ends up, that would be the subject of our meeting with the Planning Board. So we’re here to talk primarily about the use, although visual impacts are certainly a valid concern, and that’s why we’ve done these studies, but those would be issues that would be more likely to be hammered out at the Planning Board level. MR. STONE-No, we understand that we have ventured into the site plan situation, but obviously these have been concerns to Board members, and at least we want to get them on the table, and we have at least made you do a little more thinking about, and helped your arguments for the next step that you’ve got to go. Any other questions, comments of the applicant? MR. BRYANT-Just a question. The purpose of the tower, basically, is to improve reception on the Northway, primarily? MR. SCHWEDATSCHENKO-That’s correct. My name is Mike Schwedatschenko. I’m the RF Engineer, and it’s not just for the Northway, although that would be an important goal for us, but it’s to cover as much of the area as possible. That’s why we need the height of the tower. If we keep the tower height, where it covers a small footprint, then we’d have to build many, many more towers to get as much coverage as we would get with a tower at this height. MR. ABBATE-Yes. I’m going back to my notes the last time we met, and you feel that leasing space on the water tower would not meet these requirements? MR. SCHWEDATSCHENKO-That’s correct. MR. ABBATE-Because? MR. SCHWEDATSCHENKO-I’m not. MR. LAPPER-Which water tower are you referring to? 23 (Queensbury ZBA Meeting 6/15/00) MR. ABBATE-The water tower, the Queensbury water tower. MR. BRYANT-On 19? MR. ABBATE-Yes. MR. STONE-At Exit 19. MR. LAPPER-The Glens Falls water tower. MR. ABBATE-I beg your pardon. Let me amend the remarks, then. You don’t believe that leasing the Glens Falls water tower near Exit 19 would meet your requirements? MR. SCHWEDATSCHENKO-Right. I believe that water tower is too far south for us. What we need is to help facilitate a hand off. As you’re driving past our Glens Falls site, at Exit 18, you need to be able to hand off at another site before you get to our next site in Lake George. So the site at the water tank behind Aviation Mall wouldn’t help with that because it’s too far south. It wouldn’t be able to hand off to the next site. MR. ABBATE-And then one final question to make sure that I’m right. In the event that this, your request is approved and the 190 foot tower is indeed constructed, then other cellular units would then have the ability to lease from you or rent from you, is that the idea, is that correct? MR. NEWELL-My name is Shane Newell, Property Specialist with SBA. Yes, that’s correct. The tower is constructed for five carriers, Cell One being our co-applicant here. We’ve already had some interest from other carriers to go on this location. MR. ABBATE-Okay. Right, so building, constructing a 195 foot tower would enable up to five carriers to rent space from you, so to speak? MR. NEWELL-That’s correct. MR. ABBATE-And this, of course, is a business decision, or part of a business decision? MR. NEWELL-Yes, that’s correct. MR. ABBATE-Right or wrong? MR. LAPPER-Well, the Town’s Telecommunications Regulations mandate co-location, because it eliminates the number of towers, but also, SBA is in the business of constructing towers and leasing space. So they want to co-locate. MR. ABBATE-Yes. So that was my question. MR. NEWELL-To my knowledge, also, I think there’s only five licensed FCC carriers in this area. MR. STONE-Okay. Are they all at Exit 18 also currently? MR. NEWELL-To the best of my knowledge. I’m not real sure if Omni Point is there. I think they have a Lake George tower, but I’m not sure where their location is in Glens Falls. MR. STONE-But the bulk of the competition is there. MR. NEWELL-At 18 and on Prospect. MR. STONE-Right, and so then if you put this tower in you’re quite certain that they would have to come to you to put it on this tower, because of our Ordinance? I mean, it is a good location for everybody. MR. NEWELL-Absolutely. MR. LAPPER-And we will stipulate, as a condition, that this tower will be made available for leasing to those five. MR. STONE-I understand. MR. HAYES-The tower at 18, is that on Big Bay Road? MR. STONE-There’s two towers, but they’re both in the same location. 24 (Queensbury ZBA Meeting 6/15/00) MR. HAYES-Because that one’s very structured, it’s a large one, versus this one is narrower. MR. NEWELL-I think there’s actually three towers on that location. I think you’ve got one of every type. You’ve got a mono pole there. You have a lattice tower construction, then you have one guide wire tower, the tall red and white structure that’s on the right hand side. MR. STONE-Okay, but for radiation purposes, they all would need to be, for good coverage, where this tower is going to be? MR. SCHWEDATSCHENKO-Yes, for proper hand off. MR. STONE-Okay. MR. ABBATE-And if I hear you right, you said you would not object, you would be willing to accept a provision that this tower, in the event it was approved, would be available to your competitors for leasing? You would agree to that stipulation? MR. WEISS-Absolutely. We’re not competitors, though. SBA is a tower development company. MR. ABBATE-Well, use whatever word you wish. It would be available for leasing. You would not object to that as a stipulation. Okay. Thank you. MR. STONE-Okay. Any other questions? I’ll continue the public hearing, just to, I think we left it open. Anybody here wishing to speak in favor of this application? Anybody opposed to this application? PUBLIC HEARING OPEN ROY URRICO MR. URRICO-Hi. I’m Roy Urrico. I’m a resident nearby, in Courthouse Estates, and I’d like to address a couple of issues. I know the visual impact is not something that would normally be addressed by this Zoning Board, but in think in this case it needs to be addressed. I’m not concerned so much with the part that won’t be seen. The base of it will be covered by the trees. I’m concerned about the part that will be seen, which is about 95 feet above the tree line from what I understand. It will be seen along Route 9. It will be seen from the Northway. Used as an example, the current tower which exists behind the Municipal Center. I live in Courthouse Estates. From where I live, I can’t see that tower because of the trees blocking my viewpoint, but if you come down Route 9, it’s startling what you can see, and that’s a 145 foot tower, not 195 foot. I can just imagine another 50 feet on top of that, and I just think that visual impact will be startling, considering that it’s right up against the back of the, or the beginning of the Adirondack Park, and I just think that’s something that we need to protect. I’m not a legal expert, but in some states the utility aspect of what they’re contending has been debated, because cell use is, the 1996 SEC ruling doesn’t make it a regulated utility. It’s an unregulated business and therefore does not fall into the utility category. That’s what some states contended. New York State may look at it differently, but that has been addressed. Now my understanding also is that digital service does not need a 195 foot tower. Digital service, which is what’s going to be the primary use of wireless activity coming in to the new century here doesn’t need a tower that big. That smaller towers can pass the signals up. I may be wrong about that, but this is what I understand, and the last aspect that I’d like to address is that this is a residential area. This would be setting a dangerous precedent. There’s no guarantee that other carriers will use this tower. They may decide to bypass it. They may decide that this area does not need the service. Having this tower does not preclude smaller towers being added later on, because saturation is the biggest problem the wireless community has. Once enough service is established in that area, that tower or those antenna won’t necessarily handle the capacity, and I just want you to visualize that it’s not just a tower. It’s a tower with five dishes on top of it, and that needs to be considered. Thank you. MR. STONE-Thank you. GEORGE STARK MR. STARK-Good evening, Mr. Chairman, members of the Board. My name is George Stark, and I’ve owned the Mohican Motel, along with my wife and children, for the last 24 years. People that know the property know that we’ve constantly upgraded it and so on, like a lot of businesses along that road. This tower, last week, putting soda in my soda machine on my pool deck, and my son comes over and he says, what’s that thing going up in the air? It’s the tower that they were putting up. So we’re looking at it and we’re saying, it’s way above the tree line, which is over behind the Fitness Center, which is across the street from us, due east of us. You could see this skinny crane 25 (Queensbury ZBA Meeting 6/15/00) tower, which they have pictures of, quite clearly from where we are. We’re about seven to eight hundred feet north of 149, Route 9 interchange. We’re looking due east and we see the crane tower. Now I can just picture. MR. STONE-You saw a crane? They haven’t built the tower. MR. STARK-No. MR. ABBATE-You indicated that the tower is being constructed. MR. STARK-No, no, no. I did not indicate that at all, sir. I said they put the crane up to take pictures. MR. ABBATE-A crane. Okay. MR. STARK-I know they’re not putting the tower up. MR. STONE-Okay. MR. STARK-Okay. So when you have this crane, you know, which they took pictures of, from the Indian teepee up the road, about a half mile north of us, from David King’s, or Jessica King’s driveway, looking due north. They didn’t come to us to take a picture. Now, if you just can visualize this crane, with a minimum of five dishes on it, and I don’t think it would be five dishes. Say they rented it out to two four other people, plus themselves, and you have a cone, or a dish, catching the signal from the south, and then another one shooting it to the north. I’d look at that as having 10 dishes. So if they wanted to get an accurate picture of what this would look like, why didn’t they put on a few dishes on top of this crane, and I’m sure you would see that you’re talking about a lot more square footage up on top of this crane, or even below the top, you know, from other people renting it. People come to the Mohican Motel to enjoy French Mountain, look at the mountains and so on. They don’t want to be looking at this crane or this tower with all these dishes on it, probably 1,000 feet east of us. Now I realize the visual impact is a site plan review topic, or whatever you want to call it, not you people, but we are against it, and I’m sorry. We’re just against it. I think it’s not a good location. It’s in a residential area. You’ve got to get a variance for that, and if they can’t find another area, I’m sorry. I have a Cellular One phone. When I turn it on at my house, I get two little antennas instead of three. When I go down the road, I get three, down by the Municipal Center. So thank you. MR. STONE-Thank you. Any other comments? Opposed or for? Any other correspondence? MR. MC NULTY-Yes. There’s a letter here from Jean Dufresne, addressed to the Zoning Board of Appeals, dated May 17. It says “Dear Zoning Board Members: This writing is in reference to the th Diane and James Fowler property on Rte. 149, regarding the cell tower to be erected on their property. At the last meeting held regarding this matter it was being rejected by the Lake George RV Park….. on what grounds?? In all good conscience, how is this tower going to effect the aesthetic look of their campground. Really…. Just something else for them to complain about and to try and control. Diane Fowler took the time from her hectic schedule (a stay at home mom with 5 children) went to the library to research on the effects- if any – regarding human beings! How many people would even think to do this – her concern was 1 for others and the harmful impact it might have – st of course there are none – so they gave their permission. As for the rent that would be generated from the use of the Fowler land, for this cell tower – surely would be useful and much needed by this family. Other people were of concern 1 with the Fowlers, not the fact that the money would indeed st be a blessing – on the other side of the street – Lake George RV – their only concern was of themselves and how much control they can acquire – they have no right – no right at all, to object to this – and it’s up to you people to take an honest look at this situation and tell the Kings that other people also matter – not just them. I personally have no problem with the RV Park or the Kings, but fair is fair – we all pay taxes. Thank you for listening – Please weigh this situation honestly, carefully and fairly! Sincerely, Jeanne Dufresne I’m a neighbor who lives directly in front of the Fowler property – and directly across from the RV Park! the cell tower is not a problem in any sense of the word!!” MR. STONE-Is that it? MR. MC NULTY-That’s it. MR. LAPPER-Who was that from? MR. STONE-Mrs. DuFresne, I think. MR. MC NULTY-Yes. D-u-F-r-e-s-n-e. 26 (Queensbury ZBA Meeting 6/15/00) MR. STONE-I think that’s DuFresne, is the way that’s pronounced. Should we read Mr. Newell’s letter into the record? I think we ought to read that, yes. It was stated, it was summarized, but let’s read it into the record. MR. MC NULTY-Okay. This is to the Zoning Board of Appeals, Town of Queensbury, from Shane Newell, SBA Property Specialist, regarding alternate site statement. “Under the build-to-suit agreement between Southwestern Bell and SBA, Inc., the property specialist is required to identify potential candidates within the search area. The candidates must fit a basic criteria: 1. Is the site suitable? (size and set backs, elevation, access, utilities, surrounding properties and trees for screening). 2. Is the site obtainable (leased)? 3. Can the site meet all or most of the zoning requirements? 4. Will the site meet the coverage objective? Specific locations and conversations: Commercial Areas along Rt. 9/149 Boats by George: Several phone conversations with the property owner. Site walks showed that the property was not suitable in terms of size and set backs. Vacant Chadwick property offered by Schuh Real Estate: Phone conversation with Christopher Schuh to review terms of the lease. He stated the owner would not have any interest within the terms. Days Inn and Factory Outlet Stores: Met with David Kenny and he had no interest in leasing space within terms of the lease. Overview: The commercial corridor land is minimum and at a premium value. Ground leasing narrows the potential of the owners property development. Route 149 Residential and Commercial Lake George RV Park: Visited site and gave the receptionist SBA information to be forwarded to the property owner. Two follow-up phone messages and one visit with Mr. King, Sr. confirming that his son had received the information. Met with David King at LG RV Park property to take photos for visual simulation and discussed any alternate sites on his property and he did not feel any portion of his property would be suitable. Russell property: owners interested in leasing property but after a survey and site plan the lot did not meet set back and size requirements. Fowler property: Single residence on a 8+ acres lot provided adequate setbacks, lot size, access and screening for the tower. Property owner entered into a ground lease option. FM Tower on Moon Hill: Several conversations and site walks. The property owners had no interest in selling the property or sub-leasing the ground to SBA. Several contacts made with Bradmark Broadcasting concerning tower acquisition were rejected. Buckbee Mountain: Several phone conversations and submitted a lease proposal with the Politte’s. Owners had no interest in entering into lease or purchase of any part of the 30 acres for this use. Gurney Lane: Phone Conversations with each of the following property owners: Richard Linke: 214 Gurney Lane 13 acres No interest in leasing property for this use. Rob Fallman 346 Gurney Lane 26 acres No interest in leasing property for this use. Kathleen Swan 19 acres Not opposed to leasing portion of the property Dave Parker West Mt. Road 8.7 acres No interest in leasing property for this use. Overview: Several owners said that they have been approached before and they do not want to see a tower in the Gurney Lane area.” MR. STONE-Okay. I’ll close the public hearing. PUBLIC HEARING CLOSED MR. STONE-Would you like to address some of the comments that were made? MR. LAPPER-Yes. I’ll address a few and then pass the microphone. Mr. Urrico was talking about the Municipal Center tower being very visible from Route 9, and our point there is because it’s only behind the building, you can see most of the structure of the tower, even though it’s a shorter tower. You can just see a lot of the tower because it’s not in the middle of trees, like this proposed use. Also, in terms of the Route 9 corridor, it’s the same thing, just like at Exit 18, if you put it in a commercial zone, you’d see most of the tower, because it’s just not forested. He also questioned why it had to be in a residential zone. I didn’t make that point again tonight. The Town Telecommunications law that we’ve talked about allows towers to go without a variance in the industrial zones, and there are towers in the industrial zones at Exit 18. The only other industrial zones are Cieba Geigy by the river and around the airport, and the problem is that they don’t cover this area where there’s a deficiency. So it has to go in residential zones, and that’s why there’s this whole line of cases that I’ve submitted, that we’ve talked about in New York that Use Variances are allowed if you need it for this service. He also talked about the, asked about dishes, and Shane, if you should just address that, in terms of what’s really on the tower. MR. NEWELL-Well, the visual simulations that we have put forth all show panels across the different levels, based on what we think the carrier panels will look like. There’ll be no dishes on this tower. Those dishes are used for transmission of like telephone service from one area to another, without running a land line, and we don’t have any plans to put anything like that in there. This is strictly for cellular service. There are some dishes on Exit 18, if you drive by, that’s what you’re talking about, those cone shaped things. The panels look like what is submitted in the pictures. They’re, I don’t know, Gary, yours are five feet tall, maybe four feet? MR. WEISS-Eight feet tall by eight inches long. 27 (Queensbury ZBA Meeting 6/15/00) MR. NEWELL-Eight inches by eight feet. MR. STONE-Eight feet horizontally? Vertically. MR. HAYES-Is it circular? MR. WEISS-Yes, they go all the way around. The panels themselves are, what we’re proposing here are two sectors, which are directional intent as opposed to the whip style antennas like you see, well, actually, you have one on your building here. That’s known as a whip, or an omni directional antenna, and what we need to do is control the signal and allocate enough channels in a northerly and a southerly direction, so we would have antennas oriented, I’m not sure what the (lost words). MR. SCHWEDATSCHENKO-I’m not sure either, off the top of my head, but they would be approximately facing due south and at about 10 o’clock. MR. STONE-How much bigger than the tower on which they are are the panels. You say they’re circular, well, semi-circles, I assume, that way you’re talking. MR. WEISS-Yes. Typically on communications towers there’s three triangular booms located at the top and the face of the boom on which the antennas would be located, whether it’s whip style antennas or the panel antennas. It would be 12 feet across and they would be spaced six feet on center. The two outside panel antennas, which are approximately eight inches wide by eight feet high, those are the receiving antennas. They form or complete the uplink from the portable phones on the street and on the center antenna is the transmit antenna that gets signal out into the field. MR. STONE-So you’re saying they’re not much wider than the tower itself. MR. WEISS-No, I mean, the antennas themselves, the term dishes had been, I just wanted to clear that up, that microwave dishes, as you know, are a solid dish. I mean, you can see them, some of the microwave towers in people’s yards and sometimes they’re eight to ten feet in diameter, but these have been represented in the visual simulations and we have to look quite closely. MR. STONE-What about the comment that Mr. Urrico said about the ruling on regulated utility, in New York State? That’s not true? MR. LAPPER-Right. What I had submitted were the New York State cases. MR. STONE-Correct. MR. HAYES-So the test is as you’ve submitted, then? Are we, is Staff comfortable with that? Okay. MR. STONE-Another question. Will all of the leases be in place before you build the tower? MR. LAPPER-No, not necessarily. MR. NEWELL-No, the only lease that would be in place would be the one with Cell One. The crane study that was done was done by Nextel, an they’re very interested in the site. Usually we don’t market the sites until we have municipal approval. Otherwise everyone’s running around saying what they might get. We didn’t market the site, but they had a lot of interest in it, and we allowed them to run up there and do what they call a drive test, in which they actually hang their wire whip, which is what they intend to use on this tower, which is just a thin wire whip, at approximately the height of the tower, and then drive around and take different studies as to how well it covers the area, and that’s what they were up there doing. MR. STONE-They had a 190 foot crane? MR. NEWELL-It reached out there about 170 feet I guess, yes. They boomed it out over the tops of the trees. MR. STONE-Now, describe this crane, vis-à-vis the size of the tower. Mr. Stark had a concern, looking at it, is this going to be bigger than the tower or smaller than the tower? MR. NEWELL-The crane is solid. So you’re seeing the entire thing, other than like a lattice construction, but, honestly, visually, I don’t think there’s going to be a whole lot of difference. What he saw is going to give him a fair impact of what he’s going to be looking out at on that one view there. The crane was boomed out diagonally. MR. LAPPER-Gary would just like to make a couple of general comments. 28 (Queensbury ZBA Meeting 6/15/00) MR. STONE-Sure. MR. WEISS-Okay. Well, at the last meeting, Mr. King certainly runs an outstanding operation. We recognize and applaud his Woodall’s rating. I just did want to note that Southwestern Bell Communications, although the award has only been in place via Fortune Magazine, since 1997, we’ve been voted, each year, the most admired telecommunications company in the world, and we’re proud of that, and we’re really looking forward to bringing a full line of digital services to the Glens Falls MSA, including the Town of Queensbury, and quite frankly, it doesn’t help our reputation if we can’t get good service in Queensbury, one of the nicest towns in the region, and certainly one of the prime vacation destinations in the area. So we’re very interested in doing a good job here for the community. I did go, interestingly enough, to the RV Park’s web site, and in large, well, there’s kind of like a bullet list of items, of services that the Park does provide, and Number Four on the list, and in fact it’s the only one in large red letters, on site telephone connections coming in 2001, and then further down the list, modem friendly. So I guess I’d just ask that the Board consider that in the scheme of things, that perhaps we’re talking about somewhat of a competitive situation, hoping to perhaps provide, and I don’t know if they’re going to be free or not, or kind of a line item additional cost to those that choose to rent land lines during their stay or not, or if it’s going to be buried elsewhere in the cost. It could be free. I just don’t know that, but it would seem to me that there’s a little bit of a competitive situation, perhaps, between wireless and the Lake George RV Park’s plan to install and rent land line connections for their guests, and I think everyone’s aware, I guess like it or not, the growth of wireless, just a couple of quick statistics. In 1985, there were 340 subscribers in the United States. I’ll go in five year increments. In 1990, 5.2 million, in 1995, 33.7 million, and in 1999, 86 million subscribers in the U.S., and 43 million 911 calls placed annually. That’s 118,000 daily, and since we last met, there have been approximately 900,000 new wireless subscribers added nation wide. Believe me, we wish we could do it all underground, but that’s just not how the service is delivered. So here we are. MR. STONE-Okay. Let’s talk about it. I guess we have all our questions. Bob, do you want to start? MR. MC NALLY-Let me ask Mr. Lapper something. If you look at the Consolidated Edison case, you’d have to show public necessity, and as I read it (lost words) compelling reasons. MR. LAPPER-I’m sorry, Bob, compelling reasons for? MR. MC NALLY-Well, that’s what I was trying to figure out. How do you interpret what requirements have to be shown, other than public necessity? I think there’s a second one. I’m not quite satisfied, in my own mind, with what they’re trying to get at. I’m looking at that seventh page of the decision, the left hand side. MR. LAPPER-Yes. MR. MC NALLY-It says, “and there are compelling reasons, economic or otherwise, which make it more feasible”, then they state that factor, in terms of the particular case, which was an electric utility, I think, not quite applicable here. MR. LAPPER-Right. What I’m reading from is a synopsis of Consolidated Edison, and what is says is, utility must show proposed construction is a public necessity, in that it’s required to render adequate service, and that there are compelling reasons, economic or otherwise, which make it more feasible to construct or modify the proposed facility than alternatives. The utility has the burden to prove public necessity on the record, which is an essential part of the test. This may be accomplished by utilities showing need for the proposed facility in order to provide “adequate service” to its customers, e.g. alleviating gaps in service coverage. MR. MC NALLY-All right. The way I look at it is this, all right. I don’t think that there’s any question but that there’s a public necessity for telephone service at this location, all right. I think you’ve shown, admirably, that there is a gap in service, and that this is going to rectify that gap in service. I struggle with this second factor as to what the compelling reasons are. I would interpret this to mean that there have to be compelling reasons for the construction to take place in this location, as you propose, in other words, that there might not be alternative construction type alternative towers. I don’t think that you require a 195 foot tower, because I think probably the gap in service can be cured with a shorter tower, but I really think, given the Town’s Code requires bunching of an antenna in a single location, other utilities are going to need the same place. So as a practical matter, even though this individual carrier may not require the tower of this height, I think that overall there are compelling reasons to justify the construction at 195 feet, if we are, in fact, to reduce the number of towers throughout this Town. So I think I might be in favor of it. MR. STONE-Okay. Norman. 29 (Queensbury ZBA Meeting 6/15/00) MR. HIMES-Well, this is interesting, and there’s a couple of thoughts to keep in mind. We all know the area is Rural Residential, and probably zoned that way to protect the natural features and aesthetic character of that area of the Town of Queensbury. I really don’t think that comes up through there, be it a resident or a visitor, would disagree that it does have aesthetic character. Maybe it’s strange, too, that the problems that, most of the problems that we hear, except for a comment that was made tonight in a letter that was read into the record, are from other commercial interests that are nearby and feel that they will be impacted, much in the same way as many of us, as residents, feel that we are impacted, looking at that area and seeing something that we don’t think fits, if you fracture something that otherwise has some beauty, in my opinion. Notwithstanding all the proof that you’ve given to the service needs and so forth, I respect that. It’s interesting in the comments that the Gurney Lane people, of course they may be residentially zoned, off hand I imagine they are, it’s not commercial I imagine, that they declined to do business, because they don’t want to see the thing in their area. Maybe if the ante was upped they would, but maybe there’d still be the same problem, because, off hand, I don’t know how that’s zoned. I still don’t understand why something can’t be done with Warren County. That was talked about at the last meeting. I wasn’t present at the first meeting. I don’t understand why we can’t twist some arms there and do something to enable the thing to be built there, even though that may not be quite as desirable a location, from a technical standpoint, as the one you’ve selected. So in conclusion, I think that, in spite of the fact that there is a need, from a utility standpoint, and this is one of some locations that might satisfy that need, to some extent, whether it be 100% or 50 or whatever the saturation provides, in my opinion, we are losing more than we’re gaining, from the standpoint of the residents and the passersby in this area who don’t maybe happen to be on the phone in one of those areas where you list the problem, and what the impact is when you do drop a call. Does the world come to an end? You mentioned before in the explanations of the hardwired phones, some people that use those overcome some of the problems that the more convenient device has to have, but it has limited power. So, I’ll stop all the huffing and puffing, I am not in favor of the application, from the standpoint that I do feel that what we’ve got here should remain undisturbed from any commercial undertaking. MR. STONE-Chuck? MR. ABBATE-Since we met last time, I have re-thought everything, and I must say that I agree with Mr. McNally. I think there is a need. Grant you, everything that was said by my colleague, in terms of aesthetics and what have you, is a concern. What I found interesting, and one of the reasons I’ve re-thought all of this, is that I was fortunate enough to go on vacation, and the beautiful Countries of Spain and Portugal, and lo and behold, what do you think I saw? Towers, and the same concerns that we have here was expressed in Portugal and Spain. It’s ruining our Country, and they’re beautiful Countries, but there is a need, for a variety of reasons. Perhaps there’s needs there are a little more than they are here, but nonetheless there is a need. I think that, after all the huffing and puffing, that there are compelling reasons to approve this application. Not all of it I agree with, but putting my personal interests aside, I think it would probably be in the best interest of the Town and of the County for this construction. MR. STONE-Allan? MR. BRYANT-Well, at our last meeting, we talked a lot about the appearance of the tower and tourism and that. So I’m going to just address the need issue. At the last meeting, you provided all these colored charts and what have you that indicated that there was a need, and out of curiosity, this afternoon, I spent a couple of hours driving up and down the Northway, and the way we were talking about three lines, I have seven lines on my little cell tower on my phone, and of course when you fall below three, it starts to break up kind of thing, and when you have no little lines, that means you have no service at all. On the southbound side, going southbound on the Northway, between Exit 21 and Exit 19, I never fell below three, okay, which means that I had a solid signal. I could have used my phone at any given time on the southbound side. On the northbound side, the only place where the signal fell below three is less than one tenth of a mile, right at Exit 20. I have a perfect signal at Exit 19. I have a perfect signal at Exit 21. Seven lines on my little phone, okay. What all that means is, on a good day, my call might be a little staticky, at that point. On a bad day I may even lose transmission and have to re-dial, but we’re talking about a period of about ten seconds. Now I use my cell phone every day. I drive from West Mountain Road down Aviation, Quaker Road. The first place that the cell phone actually becomes weak is at the Cieba Geigy turn when I go to Hudson Falls, and in Hudson Falls it’s bad and Fort Edward it’s bad, but in the Town of Queensbury, the way I hear people talk about the cell phone usage and availability in the Town of Queensbury, it’s terrible, it’s really not that bad. Because on the major thoroughfares, you have a solid, good signal. I mean, I can make a call from this parking lot. So, in my view, with all your scientific data, and I know I’m not a scientist, but in my view, a need hasn’t been established. The fact that we lose a phone call for ten seconds on the Northway in my mind does not establish a need. So I’d have to disagree with a few of our colleagues, and I don’t think the need exists. If you want to 30 (Queensbury ZBA Meeting 6/15/00) put a tower at Cieba Geigy, that’s great, because then we’d have perfect usage in Hudson Falls and Fort Edward, but for the ten second space on the Northway, I don’t think the need exists. MR. LAPPER-Could we respond to that, just put the engineers on to talk about that? MR. BRYANT-Sure. MR. SCHWEDATSCHENKO-I think my first question is, are you a Cellular One? MR. BRYANT-No. I use Nextel. MR. SCHWEDATSCHENKO-Okay. I know that in that area for our service, we are weak in that stretch that you’re just talking about. MR. BRYANT-Why is that? MR. SCHWEDATSCHENKO-Because we have our tower in at Exit 18 and then another location at Exit 21. MR. BRYANT-Well, why is Nextel not weak? Where do they have another tower? MR. SCHWEDATSCHENKO-I’m not sure of that. MR. BRYANT-Okay. Well, maybe we ought to be looking and seeing where their other tower is, and maybe putting an antenna on that tower, to compensate for that area, that loss, because I don’t have a loss. MR. LAPPER-I guess none of us have Nextel phones. I have clients that like it also, but I can say on my Cell One phone, I was coming home from the Bolton ZBA the other night, and I lost it coming over between 21 and 20, and I know that they’re saying their study that for Cell One that there really is a problem, and that’s why you’ve got the white, the colors. So I think that even, notwithstanding Nextel, which is a different system, that Cell One does have a problem that we’ve established with the diagrams, the scientific information, if you will, but in addition to that, Shane just whispered in my ear that it was Nextel that spent the thousands of dollars to get the crane up there, so that they, it may not be right there with them on the Northway, but maybe on 149, but they certainly feel that they have a problem, because they’re the next one that’s going to come in, and the fact that they hired the crane, they wouldn’t have done that if they didn’t have a problem. So we believe that they have a problem, but we’re here primarily to talk about Cell One. MR. BRYANT-Now, how far do you actually lose service on the Northway? How far? I mean, you’ve got a tower at 21. So it’s got to be close to 20 before you actually lose service. MR. SCHWEDATSCHENKO-Well, when you go from Exit 18, you go past Exit 19, you start going past Exit 20, in that entire stretch, you could probably start going past Exit 19 and then get weaker and weaker and weaker, until you get to Exit 21, which you’ve got to go over the crest, and then you start going downhill and into Lake George before you start picking up. MR. BRYANT-See, my signal becomes weak about 10 feet before Exit 20. I mean, I have a seven line strength on my phone that whole distance, and then, I’m telling you, you can blink your eyes and then you pick up again and you have a perfect signal, all the way to 21. MR. SCHWEDATSCHENKO-Like I said, I’m not sure where their towers are, and we have a problem there, definitely more than a tenth of a mile. MR. BRYANT-Maybe Nextel wants to expand their service towards Fort Ann. I mean, that could be a possibility, but they really don’t have a problem. They’re a little a weak at 20, but it’s not really a problem. Frankly, in my mind, and I’m not a scientist, I don’t believe you’ve established a need, and I would be opposed to the. MR. LAPPER-With all due respect, you did your test based upon Nextel, and we’re here talking about, primarily about Cellular One, although making it available to everybody else, and so we believe that the studies, that the colored studies that we’ve submitted, verify what we’ve all experienced, and I think other people spoke about at the last meeting, also, that with Cell One, there really is a problem. MR. BRYANT-Well, maybe you could learn something from Nextel. I don’t know what to tell you. MR. WEISS-We wouldn’t be here if we didn’t need this site. 31 (Queensbury ZBA Meeting 6/15/00) MR. BRYANT-I understand that. I understand that. MR. STONE-Okay. Jaime? MR. HAYES-Well, obviously this is a very close issue. In my mind, under a normal Use Variance criteria, I think this thing would go down in flames, really, because the adverse effect on the neighborhood, I think, is a very valid concern. Mr. Stark’s been looking out, presumably, at that same view for longer than he can remember, and I’m sure he has an understanding of what that, the impact would be, and I think it would be negative, but as I read and talk to Staff here, our function here is interpreted along a narrow test of, is there a need, and does that justify the Use Variance, the test that we’re, I want to stay within the test that I think we’re, I personally feel that we’re charged with, because that’s the only thing that will hold up, ultimately, and I think, in that way, I think Bob is right. I mean, I think that the need has been justified, and I think in this particular circumstance, the Town Code actually works against us. The accumulation idea is raising the height that the tower has to be at this particular circumstance, and I’m sure most often that’s a good thing, but in this particular case, it might actually be a bad thing, but I think, being we’re charged with examining these things from precedent, according to Town Code, and according to New York State law, I think that, along the lines of a utility, I think that the need has been established, and I think, while it’s buck passing for sure, the negative impacts of the height of this tower need to be addressed at this site plan level. I mean, that’s where they belong. We can talk about them, but to actually make a decision based on that, I think, is actually outside of the rubric of our analysis in this particular case. So, I guess I think the use has been established. The need has been established, I should say, and therefore, if the test is as Mr. Lapper says it is, then the use of that land has been established. MR. STONE-Chuck? MR. MC NULTY-I’ll add my own testing experience with cell phones. I’ve got a Verizon, and I can keep digital service up through there, but my wife’s got a Cell One, and going north, when you drop into that dip opposite Great Escape, you drop calls. It just shuts it right off there. So I think the applicant’s correct that, at least for Cell One, they do have a coverage gap that needs solving there. I prefer not to see a cell tower up in that area. I’d prefer not to see the towers on top of Prospect and some of the other mountains you can see there, too, but they’re there. I think they’re a necessity, and one way or another, we’re going to have some of these towers, and I think I’d much prefer to see on single one there than a whole bunch of them scattered around. I guess it depends on the person’s viewpoint, as far as whether there’s compelling need or not, but I think given what our society expects these days, I have to agree that there is a need. I’d prefer one tower to multiple towers. So I’m inclined to approve. MR. STONE-Well, let me try to summarize my feelings, and hopefully everybody else’s. I don’t like cell towers. I didn’t like microwave towers. I would prefer the landscape was unmarred. As Mr. Abbate says, he went to Europe and there they are, and we have them. If you have to have a tower, as Mr. McNulty said, one is better than three. We’ve got three down at Exit 18, and they do stand out like a sore thumb as you drive down that way, although the more they’re there, the less we see them. We know that’s always the case. Using the test that we have to use, and as Mr. Hayes said, the four criteria, they’re slightly different. Obviously, the hardship case, I think you’ve established that seems to be, according to Staff and our reading of the decision seems to be the case that there’s a different standard when we’re using this tower. Is the alleged hardship relating to the property in question unique? Well, it’s unique to the whole area, because our Zoning Code says that you can put a tower up without question in a light industrial or heavy industrial zone. In the area that appears to satisfy the need that you have demonstrated, in my mind, particularly when it comes to 149, not so much the Northway, but we know down 149 you’ve got to have coverage down that way, and apparently Cellular One is going to put up two towers to take care of that, one in our Town and one close to Fort Ann. So that is a need area right now. So I don’t think it’s unique to this particular property. It’s unique to the area, and therefore, I think that it says that we should, in fact, grant this variance. Will it alter the essential character of the neighborhood? Obviously, it’s going to have a change on the visual aspects, but it is going to be shielded, for most of its height, by trees, and obviously in one sense, the closer you get, the harder it is to see the top. The further away you get, the harder it is to see the top because it’s further away. So in once sense, it kind of works that, wherever you’re standing, it won’t be as visible as certainly those other towers that you can see from top to bottom. I do wonder, and I hope that the applicant would consider removing the least number of trees to get this steelwork up, so that we’re not forming, even from the air, a circle of open ground with a tower up there. I mean, I can’t tell from the drawings where you’re going to have to clear to. MR. LAPPER-Just within the lease space would be cleared, which is as pretty finite area. MR. STONE-Within the lease space would be cleared. Okay. 32 (Queensbury ZBA Meeting 6/15/00) MR. NEWELL-A hundred by a hundred, and there may be one or two trees that might be removed for the access road, very small trees. Mr. Fowler, the property owner, is really opposed to removing any trees, and it was a big stipulation to our work there, that we’re very limited as to what we would do there. MR. STONE-Well then we would stipulate the same thing. Is the alleged hardship self-created? Well, it’s self-created if you say that this company went into business and they need to put a tower up, but apparently, the demand is there, and I think the figures that you quoted, 88 million cell phones or more at this particular point in time, it’s staggering. Obviously, the speed with which this has happened is unbelievable. In retrospect, I think this Board has done a credible job. Yes, we’ve spent an awful lot of time at it, but I think we’ve done our job in identifying some of the things that we know the Planning Board will look at, again, and we all apologize for that. I think you’ve got to satisfy these seven people, just like you’ve satisfied the majority here, but I think we’ve done our job by identifying a lot of these things, and having said that, I guess we have to do a Short Form SEQR.A. MR. LAPPER-We actually submitted a Long Form. MR. STONE-Yes. I know you submitted a Long Form. Do we just go through that, Craig? Can we adopt that? We have to read it. MR. BROWN-Yes. You can make a motion that, upon review of, yes. MR. STONE-Okay. Has everybody looked at this Long Form? Are there any questions that anybody has in particular about? We don’t see Long Forms very often. You’ve got to bear with us. Have you identified the visual aspects and said they’re not, I haven’t gotten there. MR. LAPPER-We would look to our visual studies, simulations for the visual aspects. MR. STONE-There are no 100 year old trees in this area? You say no. MR. LAPPER-The engineers prepared the report. MR. STONE-And they’re experts on the age of trees? I mean, I don’t know the answer to it, either. I just see that it’s there. MR. ABBATE-Did they sign off on it? MR. STONE-I have no signature on the form that I have here. It just says property specialist. Did anybody sign this? MR. ABBATE-If someone signed off on it, it would be fine. MR. MC NULTY-Yes. There is a signature on the copy that’s in the file. MR. STONE-You have? Okay. MR. ABBATE-All right. MR. STARK-Can I ask a question of the Board? Why is this Board doing a SEQRA instead of the Planning Board? MR. STONE-Because it’s an Unlisted action, and we cannot vote on it until we have done some kind of SEQRA. Normally it would be a Short Form. MR. HAYES-It’s a good question, though. MR. STONE-But it’s a good question. MR. HAYES-We’ve asked that question. MR. STONE-Mr. Brown, did you hear that question, why are we doing it? Why are we doing a SEQRA, because it’s an Unlisted action? MR. BROWN-Because it’s an Unlisted action, yes. MR. STONE-It may be a redundancy, I don’t know, but I know we have to. Okay. Do I hear any? 33 (Queensbury ZBA Meeting 6/15/00) MOTION THAT UPON REVIEW OF LONG FORM SEQRA PREPARED BY THE APPLICANT, WE FIND NO ADVERSE ENVIRONMENTAL IMPACTS AND THEREFORE WE ISSUE A NEGATIVE DECLARATION IN TERMS OF THIS PROJECT, Introduced by Lewis Stone who moved for its adoption, seconded by Paul Hayes: Duly adopted this 15 day of June, 2000, by the following vote: th AYES: Mr. Hayes, Mr. McNulty, Mr. McNally, Mr. Abbate, Mr. Stone NOES: Mr. Himes ABSTAINED: Mr. Bryant MR. STONE-Okay. Now I need a motion to approve this. MR. BRYANT-Before you, Mr. Chairman, can I make an additional comment before you actually make your motion? MR. STONE-Sure. MR. BRYANT-I just hope that we’re not confusing this concept of establishing a need. A public utility has got to establish a need, and that need is based on the need of the people, as opposed to establishing the need of Cellular One, which is what it sounds like we’re trying to do, and I’m really opposed to that, because if there is cell service in the area, then the need for the public has not been established. So I just wanted to clarify that, when we talk about establishing. MR. STONE-Well, the only thing I would say to that is that there’s more than one direction. That’s why I referred to 149. They have established, particularly on 149, that there is drop out as you get further down the hill toward Ridge and so on and so forth, and this is going to help that particular area. It’s also going to help mildly on Bay Road, not very well, but it’s going to help compared to what it is now. The other thing that we’re doing is we’re saying, here is a location, per our Code, which will be the only location in the area, and we have gone through, of course the Planning Board’s going to have to look at it, too, for site plan, but in our judgement, there is a need, and this isn’t a bad place to put the service for all cell phone service. That’s why I’m doing what I’m doing. MR. LAPPER-I could give a quote, to answer Allan’s question, from a Cellular Telephone Company versus Rosenburg, which is a New York Court of Appeals, the highest State Court decision, very short quote, “New York Court of Appeals has held that a cellular telephone company is a public utility for the purpose of a Use Variance application, and that a cell tower to facilitate the supply of cellular telephone service is a public utility building within the meaning of a Zoning Ordinance. The Court found that a cellular telephone company met the characteristics of a public utility which include, 1. The essential nature of the services offered. 2. Operation under a franchise, subject to some measure of public regulation, and 3. Logistic problems, including the maintenance of constant levels of service without alternate means of delivery of the service.” And that was one of the cases that I submitted. MR. STONE-Okay. I need a motion that approves relief from the allowable uses, as outlined in the Rural Residential zone, 179-15. That’s the only thing that we’re talking about here. Do I hear a motion? MOTION TO APPROVE USE VARIANCE NO. 30-2000, SBA, INC. & SOUTHWESTERN BELL CORP., Introduced by Charles McNulty who moved for its adoption, seconded by Charles Abbate: 61 State Route 149. Applicant proposes installation of a 195 foot tall wireless telephone tower, and is seeking relief for the construction of a nonconforming use, specifically the applicant requests relief from the allowable uses as outlined in the Rural Residential zone, Section 179-15. In considering the approval of this variance, we’re considering four factors. First, can the applicant realize a reasonable return provided that the lack of return is substantial as demonstrated by competent financial evidence. This standard, when addressing public utilities, has been modified to consider safe and adequate service rather than reasonable return, a test of public necessity rather than unnecessary hardship where an entity requesting a Use Variance is a public utility, and this was established in the matter of Consolidated Edison vs. Hoffman, and I believe that the applicant has shown to us that there is a public necessity for improved coverage in the area in question. Number Two, 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? While the hardship may not be unique to this particular property, it is unique to this portion of Town because of the Town laws restricting the construction of cell towers to just Light Industrial areas, and there is no Light Industrial area anywhere near this part of Town. Will the requested Use Variance, if granted, alter the essential character of the 34 (Queensbury ZBA Meeting 6/15/00) neighborhood? Moderate impacts may be anticipated as a result of this action, since there are currently no structures with features or this configuration in the immediate area. However, given that a fair share of the tower will be screened by the natural trees existing in the area, I think probably the impact certainly would be no more than moderate, and perhaps minimal, and finally is the alleged hardship self-created, I would suggest that it is not self-created, in that the applicant is simply responding to the demand of the public for good service that’s provided by the applicant. For these reasons, I move approval of this Use Variance. In dealing with whether the variance, if granted, will alter the essential character of the neighborhood, in assessing the impact being minimal to moderate, it’s the understanding of this Board that the tower will not be lighted unless, at some point, the FAA requires it to be so, but it is our understanding, and the expectation of the applicant, that it will not be lighted. Duly adopted this 15 day of June, 2000, by the following: th MR. STONE-Would you add to the third part, the character, that the applicant states that per current FAA regulations, this tower will not be lighted? MR. MC NULTY-Yes. MR. LAPPER-We will not light it unless the FAA requires it to be lighted, and our understanding is that, unless the FAA comes back and says that it has to be. We don’t expect that they will. MR. STONE-Then we will re-visit it, if we make this condition it will not be lighted, and that’s what, we have been assured that it will not be lighted, and I would like to condition it. MR. HAYES-I don’t know, let’s just run the business side, if they decide to invest all this money in the tower, which I’m sure it’ll be a lot of money, I’m not sure they could go forward with that investment with the contingency that a Federal agency could impose something on them and they couldn’t comply, based on our contingency. It doesn’t seem practical to me. MR. STONE-You can lower the tower, though. I mean, that’s what I would suggest. MR. HAYES-Versus lighting it? MR. STONE-Yes. MR. MC NALLY-I understood them to say that it was not going to be lighted, and there were specific reasons that were gone over at the last meeting. MR. STONE-Yes. MR. MC NULTY-Well, their expectation is that it’s not going to be lighted, but I think that the fact of the matter is neither they nor we have control over the Federal Aviation Administration, and what they do, and the trouble is, the FAA may decide, two years after the tower is built, that it should have a light on it. It’s conceivable. MR. STONE-I understand. MR. MC NALLY-We can’t control the FAA, but we can control the variance. MR. STONE-Yes. We can make it, at least re-visit it. I mean, that’s what I would like to see. I don’t know what the rest of the Board. MR. LAPPER-I guess I might suggest that that would also be something we’d have to deal with with the Planning Board, more of a site issue rather than the use issue. MR. ABBATE-Well, I think Counsel may have a point there, that perhaps that’s more in the purview of the Planning Board rather than this committee, since the motion’s made on the very narrow aspect of jurisdiction by the ZBA. MR. STONE-And I said in my comments that we brought all these things up, and the minutes will be available. All right. We should say that we refer our concerns to the attention of the Planning Board. Can we put that in there, or just do it? MR. LAPPER-Concerns about lighting? MR. MC NALLY-So this motion is not contingent upon any lighting condition at all, that’s what you’re saying, other than? 35 (Queensbury ZBA Meeting 6/15/00) MR. STONE-That’s what he’s doing. MR. HAYES-No, I think it should be contingent on, at this time, it should be contingent, unless they’re required by the FAA. I don’t think we should where they can do it now if they want to. MR. MC NALLY-They won’t do it unless the FAA requires it. MR. HAYES-Right, that’s what I’m saying. MR. MC NALLY-But the effect of a lit tower can be significantly different than the effect of an unlit tower, no question. MR. ABBATE-That’s right, and if you’ll recall, I’m the culprit who raised that issue about the light being on top of the tower, and Counsel assured us that FAA does not require a light on a 195 foot tower. MR. STONE-Well, we can just say that it’s contingent on our understanding that this tower, at this time, does not need to be lighted, or something to that effect. MR. ABBATE-Based upon the statements by Counsel. MR. STONE-Yes. MR. LAPPER-It wasn’t my statement. It was an engineer from last time, I think. They read something. MR. HAYES-I think it should be contingent that it isn’t lighted unless it’s required to be lit. MR. ABBATE-That’s a fair statement. MR. STONE-Okay. Everybody happy with the motion now? MR. MC NALLY-What was the final end result of that lighting? MR. STONE-It can’t be lit unless it’s required. Are you comfortable with that? MR. MC NALLY-I guess so. MR. STONE-It is a Planning Board, by putting what we put in here. MR. MC NALLY-It goes back to my question of necessity at this height. I’m on the border of necessity at this height, and. MR. MC NULTY-Of course, technically, we’re supposed to be just approving or disapproving the use, not the height, shape, color, just the use. MR. MC NALLY-Yes, but doesn’t necessity involve their application? The question is, they want to rent out a tower to five different communications companies. Their company needs only one antenna, so the necessity that they’ve demonstrated is that they need it. MR. LAPPER-There’s two companies here, remember. MR. MC NALLY-I’m willing to concede two companies, SBA and Southwestern, I’m willing to concede that there’s some merit in the Town Board’s decision to group antennas together, and I can offset that against the inconvenience to the public, because that’s probably a good idea. Now you’ve thrown in it’s going to be lit. MR. ABBATE-Who’s thrown that in? It’s not going to be lit. MR. MC NALLY-They’re making that statement, it will not be lit? How do we know that, though. MR. STONE-Well, they did tell us on record that they do not believe that it has to be lit. MR. ABBATE-They were firmer than that. They said it does not have to be lit at 195 foot. MR. BRYANT-Under 210 feet, is what it is. MR. ABBATE-Under 210 feet they claim it does not have to be lit, and that’s on record. 36 (Queensbury ZBA Meeting 6/15/00) MR. LAPPER-But those rules could change. MR. ABBATE-They could change tomorrow, yes. MR. MC NALLY-That’s a risk that I think you assume. MR. LAPPER-Well, I would only say that the Planning Board has, I’ve already talked to Planning Board member Bob Vollaro, that I know that height is going to be an issue that we will have to prove, and they will either accept the proof or not, in terms of that 195, that he would hope that it could be slightly reduced. I don’t know how that’s going to come out. I mean, that’s up to the engineers. It’s not up to the lawyers or the applicants. That’s up to the engineers to establish that. So that’s just going to be an issue we’d have to talk to the Planning Board about, but in terms of the application, 195 is the height to get the five carriers in Town, and that’s why it’s proposed. MR. STONE-I’m comfortable with leaving it it will not be lit unless directed to by the FAA. MR. ABBATE-Yes, because we’re subject to the government rules and regulations anyway, State/County municipality. That’s fair. MR. LAPPER-We’re not going to voluntarily light it. MR. ABBATE-I understand that. MR. BROWN-I just have a question. Do you want to leave the height in there, in the approval, the 195 was the original description of the project. Do you want to include the height, or do you just want to use the use of the tower, and approve the use? MR. STONE-No. I think per our discussion, I think 195 is an essential part in the motion, because all of the documentation that they have given us is based upon a tower height of 195. All the depictions on a tower of 195. MR. BROWN-Okay. As long as you’re comfortable with that. I don’t see how it relates to the use. MR. STONE-Well, no, the use is a 195 foot cell tower. That’s the description of the tower. It’s not a cell tower that’s 195 feet. It’s a 195 foot cell tower. MR. MC NALLY-It was in the application and we’ve approved it, in specific detail. MR. LAPPER-But in Queensbury we’ve got this thing before the Planning Board. So that’s a big deal that we’ve got to go through that level of review. MR. STONE-Okay. Is everybody happy with the motion? Second? MR. ABBATE-I’ll second it. AYES: Mr. Abbate, Mr. Hayes, Mr. McNulty, Mr. Stone NOES: Mr. Bryant, Mr. McNally, Mr. Himes MR. LAPPER-Thank you. MR. STONE-Four, three. May I say this, in all humbleness, please don’t come back. AREA VARIANCE NO. 43-2000 TYPE II WR-1A MICHAEL GINSBERG OWNER: SAME AS ABOVE OLD ASSEMBLY POINT ROAD APPLICANT PROPOSES CONSTRUCTION OF A 5,500 SQ. FT. SINGLE FAMLY DWELLING AND SEEKS RELIEF FOR THE CONSTRUCTION OF A SECOND PRINCIPAL BUILDING ON A LOT. ADIRONDACK PARK AGENCY WARREN COUNTY PLANNING 4/17/2000 TAX MAP NO. 5-1-28, 27, 40 LOT SIZE: 1.51 ACRES SECTION 179-16, 179-12 DEAN HOWLAND, REPRESENTING APPLICANT, PRESENT MR. STONE-Read the tabling motion. STAFF INPUT Notes from Staff, Area Variance No. 43-2000, Michael Ginsberg, Meeting Date: June 15, 2000 tabled May 24, 2000 “Project Location: Old Assembly Point Road 37 (Queensbury ZBA Meeting 6/15/00) MR. MC NULTY-Zoning Board of Appeals record of resolution, “Area Variance No. 43-2000, Michael Ginsberg Meeting Date: Wednesday, May 24, 2000 Motion to Table Area Variance No. 43-2000 Michael Ginsberg, Introduced by Lewis Stone who moved for its adoption, seconded by Charles Abbate: For sixty days, may be heard earlier if the applicant can get his material to Staff by next Wednesday to be on the June agenda. This application is being tabled because we have not yet received an approved, on site wastewater treatment system plan, approved by a professional engineer. We also need to know, to the best extent possible, information about the stormwater collection system which appears to be in the neighborhood of these properties. Duly adopted this 24 day of th May, 2000, by the following vote: AYES: Mr. Abbate, Mr. Bryant, Mr. Urrico, Mr. McNulty, Mr. Himes, Mr. Stone NOES: NONE ABSENT: Mr. Hayes, Mr. McNally” MR. HAYES-Mr. Chairman, I’d like to excuse myself, based on an economic conflict with the applicant. MR. STONE-Do one of you two gentlemen want to step in for this one? That’s okay under our rules? I just want to be sure. That’s what I thought. MR. BROWN-You just may want to make note of it for the record. MR. STONE-Yes. Mr. Hayes has recused himself in this particular application, and Mr. Urrico will sit in for this one application. Mr. Howland? MR. HOWLAND-I, since our last meeting, went out and did hire another engineer that could do it in the allotted time. I believe he met with Dave Hatin who first brought up the concerns about a leach field on the parcel of land across the road from where we’d like to build a new house. I believe you have copies of that. That, I believe, does, I believe, address the issues. MR. BROWN-There should be a copy in the file from Dave Hatin, addressing the adequacy of the septic system. MR. MC NULTY-There is a letter from Dave Hatin. Do you want me to read that in? MR. STONE-Yes, please. MR. MC NULTY-Okay. This to the Zoning Board of Appeals, regarding Michael Ginsberg property, 31 Old Assembly Point Road, “Dear Board Members: Please be advised that Dennis Dickinson of Dickinson Associates, has submitted a compliant septic system plot plan for the proposed dwelling unit located at 31 Old Assembly Point Road. As long as this system is installed according to the plan, this system will comply with all requirements of the Sanitary Sewage Ordinance. I trust this will answer all your concerns, if not please don’t hesitate to contact me. Sincerely, David Hatin, Director, Building and Code Enforcement” MR. STONE-We still have the question on the table of two houses on, that’s what we’re still talking about. All this says, the system will handle. MR. HOWLAND-It was designed for a total of six bedrooms, and we took down a three bedroom house and we want to replace it with a three bedroom house, but there’s also additional attic space above the garage because of the design of the house, with a 12/12 roof pitch. It could be, in the future, increased. I mean, there’s going to be floor space up there, but it’s just going to be attic at this time. So the leach field was designed for a future capacity, if somebody else bought the house and wanted to add more rooms up there. That’s how the leach field across the road got. We also included the cottage, which has its own leach field at the moment, in the new leach field. If we don’t get a variance, then we wouldn’t use this leach field. We’d put it back on the same side of the street as the proposed house would be on. MR. STONE-There was also a question of drainage. Wasn’t there something? MR. HOWLAND-Well, that was addressed in this, in the plot plan by the engineer. There was a ditch. I don’t know where it is on the piece of property, but somebody, whether it was the Town or not, bulldozed the piece of property, so the water would come off of, I believe it’s Assembly Point Road, onto this property, and that ditch had to be 20 feet away from the leach field, as designed. So in the leach field it says, if it can’t be fit in that area, that the ditch, which is just a cut in the earth, will be moved over, but being a raised, low bed Wisconsin Mound, you’re raising up the area anyway. MR. STONE-Any questions of the applicant here? MR. MC NALLY-I wasn’t here last time, Mr. Howland. As I understand this map there’s a proposed house on the lakefront? 38 (Queensbury ZBA Meeting 6/15/00) MR. HOWLAND-That’s correct. There was a house in that area. It wasn’t as large as the new house, but it was taken down last August, and it was, when I got involved, I was under the impression there was a variance granted before the new owner, Mr. Ginsberg, bought the property. Everybody assumed there was, but there wasn’t. So that’s, so when I went for a building permit, that’s why I kept on being delayed because we were putting back a second principal residence on a one family, on a single family area. MR. MC NALLY-That other principal residence was a one story cabin (lost words)? MR. HOWLAND-Correct. That’s the second principal residence. There was an old brick house that had been there for years. I really don’t know how large it was, but it didn’t take up the footprint of the new, I can tell you that. MR. MC NALLY-I can’t tell on the other side if it’s Old Assembly Point Road? MR. HOWLAND-That’s correct. MR. STONE-This is Old Assembly Point Road. MR. MC NALLY-It goes across the street, this lot? MR. HOWLAND-Well, it’s two separate lots, there’s actually three separate lots, but when I come in here, according to Craig, you’re going to, since they’re adjacent to each other, that you consider them as one lot, even though there’s three separate deeds and three separate tax map numbers and pays taxes separately on all three pieces of property. So, what we’re here is to maintain the, pretty much the status quo of what was there. MR. MC NALLY-Okay. MR. BRYANT-At the last meeting, it was brought up about moving the existing structure, the cabin across the street on one of the other lots. MR. HOWLAND-Well, that was a, again, we were addressing this concern saying, because it is a separate deeded lot, but as I said, the Town considers them as one particular lot, even though they’re separated by a road. I don’t know how they do that, but if we couldn’t put the house back where it was, or the house in a similar location where it was, the option would be to come back, if the owner wanted to maintain the cottage, and pick it up and move it across the road, we’d come back with that as an application, since both lots are less than one acre, and so therefore it would be a nonconforming lot, both lots are nonconforming. MR. BRYANT-But it’s also a lot more palatable to have one structure on one lot and another structure on another lot, and I think that’s what we discussed last time. MR. HOWLAND-Well, we didn’t discuss anything because it was tabled. MR. STONE-We tabled it. MR. HOWLAND-We never got that far. The reason was it’s an open area, and I just felt that, it’s always been that way. That’s just the way that it would be left. Other than we were trying to put the leach field as far away from the property. If we moved the cottage over there, this leach field becomes moot because there’s all sorts of room to put it on the side where we wanted to build the house. I guess that’s how I should state it properly. MR. MC NULTY-The other fact that’s going to come in there, too, is according to Staff we have to consider all three lots as one lot, for the purposes of siting. So it doesn’t matter where that second place is, on any of those three lots, according to Staff, we would still have to offer a variance, for putting two principal buildings on one lot that happens to be three smaller parcels. MR. HOWLAND-I was also asked, I’m not sure if it was from you, Craig, or from Dave, if it was approved, would be to go to Warren County, because at that level you’d file to make all three lots into one, even though one parcel’s just a little tiny sliver, and I didn’t think that would be a problem. MR. STONE-Well, combining for tax purposes can be done by petition. MR. HOWLAND-That was a request that was also made, if this was granted. Of course if it’s not granted, then we’d have to come back with saying, maybe it’s, well, it is two lots. He bought two lots, or three lots, that’s what he bought. 39 (Queensbury ZBA Meeting 6/15/00) MR. STONE-I’m trying to remember where the third lot is. MR. HOWLAND-It’s a little sliver, and it’s on the, it’s right on Assembly Point Road. It’s just a little tiny sliver. MR. STONE-Now, Assembly Point Road is a Town road. So it isn’t like, they haven’t lost anything by that road on Assembly Point Road. Because they didn’t close once a year. MR. BROWN-Old Assembly Point Road? MR. STONE-No, New Assembly Point Road. MR. BROWN-That’s definitely a Town road. MR. STONE-But they’ve got that little piece of property on the other side, which is not even a building lot. MR. BROWN-Right. MR. STONE-Yes, but you can tie it across the road. MR. BROWN-I think that’s reasonable to put them together. MR. STONE-So it could easily be one lot extending across the road. That would be interesting. MR. HOWLAND-I don’t know how, but I guess so. MR. STONE-I guess I’m getting befuddled. Right now the two houses would be on one lot, forgetting the other ones across the street? I mean, there’s no question that? MR. BROWN-That’s correct. MR. STONE-And if they moved the one house across the street, why wouldn’t it be a separate lot? Why would it have to be combined? MR. BROWN-There’s a consolidation section of the Ordinance that says if you have nonconforming lots in a Critical Environmental Area, they’re to be considered as one lot for zoning purposes. So if you’ve got two lots that are less than one acre and you want to develop them, you have to put them together. MR. STONE-Okay. MR. BROWN-They have to be considered as one parcel. MR. STONE-Okay. So the question still comes down, can we have two buildings on one lot, and the considerations are obviously going to build one new big house, and the other question is where the other house goes, either stays where it is, or does it move across the street? But if it moves across the street, we’ve still got the same variance to consider, except the conditions are somewhat different. That’s all. MR. MC NALLY-But across the street would be where the septic field is going to be? MR. HOWLAND-Well, that’s where we’re proposing to put the septic system, because that’s the furthest part from the lake, and again, we’re just here, but there are existing homes in the same neighborhood, all have little cottages outside, and they look very similar. So I don’t know if it was all combined at one time. I don’t know the history back there, but the object was not to put anything across the street. So it still looks like it’s looked for years. MR. STONE-Okay. Any other questions of the applicant? Because we did hold the public hearing and we left it open. Then we tabled it at that point. I will ask, with the public hearing still open, anybody wishing to speak in favor of this application. Anybody opposed to this application? Any further correspondence? MR. MC NULTY-I don’t believe so. I think we covered everything last time. MR. STONE-Okay. PUBLIC HEARING OPEN 40 (Queensbury ZBA Meeting 6/15/00) NO COMMENT PUBLIC HEARING CLOSED MR. STONE-Do we have any further questions of the applicant? If not, let’s talk about it. Norman? MR. HIMES-Thank you. I don’t hear any pleas or what not to support why someone might want or need that extra building there. I was expecting to hear all kinds of, well, we need it because we’ve got four dogs or something, but I didn’t hear anything that it wouldn’t be too much of a problem to just get rid of it. If a little more room is needed, take the original house and just remove the structure to accommodate the needs that they have, rather than this old thing that’s out there. So, in the absence of anything to sell me or convince me that there’s any real hardship, other than the expense of removing it, which I don’t think is going to be too unbearable, given what’s going to be spent, overall, on this thing, I’m not in favor of the application. MR. STONE-Okay. Chuck? MR. ABBATE-Mr. Howland, is the individual reluctant to remove this other structure? MR. HOWLAND-I don’t know about that. It just has always been there. He just was under the assumption that he could maintain it. MR. ABBATE-Is his application contingent upon the fact that the structure remains, whether or not it’s approved? In other words, is it an immovable request to have this structure? MR. HOWLAND-I would tell him not to. I don’t think the structure is large enough to make it worthwhile, the expense to move it across the street. I just don’t think that would, I’m just telling you my point of view. I don’t think that that structure, it’s not the expense of the size of the building to move it. It’s just how much it costs you to pick it up initially, and then, you know, moving it across the street is nothing. It’s just not worth it to move it across the street. MR. ABBATE-So the application is based upon the fact that the two dwellings will have to be approved on one parcel? MR. HOWLAND-Right, other than the fact that there was always two parcels, two buildings on this lot, and we’re just trying to maintain what was there. MR. ABBATE-So it’s either we approve the two structures on this one parcel, or we don’t? MR. HOWLAND-That’s correct. MR. ABBATE-Okay. You’ve answered my question. Thank you. MR. STONE-So where do you stand? MR. ABBATE-I’m against it. MR. STONE-Okay. Allan? MR. BRYANT-I concur with Mr. Abbate here. I mean, the applicant is building a 5500 square foot house, which is a reasonable, if not reasonably large house, and the need for the extra structure, this is an opportunity to improve on the area, and I would be opposed to having two buildings on the same lot. MR. STONE-Mr. Urrico? MR. URRICO-I agree with my colleagues. I do not see the compelling argument to approve this, and I would be against it. MR. STONE-Okay. Mr. McNulty? MR. MC NULTY-I can basically say ditto. I don’t see any good reason to approve it. I would be opposed to the second building, regardless whether it stayed where it is or whether it moved to one of the other pieces, parcels that constitute this overall lot. MR. STONE-Mr. McNally? 41 (Queensbury ZBA Meeting 6/15/00) MR. MC NALLY-I’m going to be the odd man out again. This is actually three lots. I don’t care if you have to consider them one, but it’s actually three lots, and the one place was demolished, with the expectation and understanding that two structures would be allowed. The one that’s up there now is really modest. We’re talking 20 by 26 for the size of the garage, and it’s set back awfully far from the lake, on a relatively large lot, and I don’t see how, if you look at the rest of the neighborhood, this piece of property differs from other properties that have the same circumstances. I don’t find the relief substantial to the Ordinance, and to require a guy to take it down, I don’t think that’s a very feasible thing to do. The effect on the neighborhood is going to be minimal. I’d say, ideally, you should only have one parcel, one house on the parcel, but in this case, I’d be willing to go with it. MR. HOWLAND-Can I say one thing, too, because I’ve heard what your vote is here, but when I was here last month, I requested that, to hear the views of this Board on whether, you know, you would consider giving a variance, and then you had me go out and spend $2700 now, for something that will not be used now, because if the variance isn’t approved, I just threw away $2700 for nothing. Where, all I was asking last time, I think in the future, was because there’s plenty of places on those parcels to put an approved leach field, but the only reason the leach field would go across the street is if there are two houses, because I don’t need one, I wouldn’t need this across the street. That’s why I’m saying it was just an expense that was unnecessary. MR. STONE-In our defense, we could not vote on this, if a septic plan wasn’t in place. We had to have an approved septic plan before we could even vote on the application. MR. HOWLAND-I met all the Town requirements, and all that would have been required at that time is saying, you wouldn’t have even considered the variance or you would approve the variance without this. I just think it’s an unnecessary expense. I’ve never had to do this in front of this Board before. I’ve been coming here for 30 years, up to the Town for variances. I understand you. I just think it was wrong, in the future. I mean, you could have said, well, you weren’t going to consider it, and then I wouldn’t have had to do anything, and I would have just taken the house down, and not have wasted, because it’s going to cost me that much in dump fees to take that house down. I could have spent it on dump fees. MR. STONE-Well, I’m not sure apologize. Our mandate was very clear, as far as Staff was concerned. We had to have a septic system in place before we could take a vote. Now, maybe we could have taken a straw vote. I wasn’t asked, and until we knew what the situation was, I’m not sure that we could adequately vote. MR. HOWLAND-But the septic system isn’t even coming into play, is what I’m getting at, from the Board, and I could have been told that last time, because I would have just withdrawn the whole thing. MR. STONE-Does the septic system, it is not part of the application, except that it had to be in place before we voted. Is that a correct interpretation, Craig? MR. HOWLAND-No, that’s not true, because I’ve been here, I don’t know how many times every year I come in front of this Board, and I’ve never had to do that before. That’s my statement. I’ve never had to do this before. MR. STONE-Have you ever had two houses on the same lot? MR. HOWLAND-Yes. I’ve done this numerous, in four towns, I’ve never had to do this before, and I just thought it was, you know, it could have been said it’s not approved, or something like that, because I just think it was a waste of, I mean, I spent three days trying to find an engineer to do this, because of the time limit and everything. I just think that was out of line there. That’s a lot of money to me. MR. MC NALLY-Let me ask you this. We’ve got three lots there, three separate lots, right? MR. HOWLAND-Yes. MR. MC NALLY-If one of those lots has the 20 by 26 foot camp, and it gets conveyed to Mr. Ginsberg’s mother-in-law, he could keep that lot, build on the other lot, and keep the third lot. MR. STONE-No. MR. MC NALLY-Why not? MR. STONE-Because it’s on the major lot. 42 (Queensbury ZBA Meeting 6/15/00) MR. MC NALLY-Suppose you have a boundary line adjustment, like the other guy did, Mr. Walker? MR. STONE-Then we get into the question of, is there enough adequate space? There’s a lot of questions that have to be raised. MR. MC NALLY-Can’t they achieve this same purpose by some legitimate other methods? Why are we knocking it down? MR. HOWLAND-Both lots are bigger than most lots I’ve built on in the Town of Queensbury. There are very few conforming lots on Lake George in the Town of Queensbury. Very few. MR. STONE-There are almost none. MR. HOWLAND-Almost none, and I think I’ve built on just a couple of them, and again, I’ve been in worse spots than that, the design system. So I’m just trying to, you know, that’s all I’m up against there. MR. STONE-And we hear there. We appreciate your upset, but the vast majority of the Board feels that, at this point, after hearing all of the information, about the septic system and about the three lots, or the possible three lots, that they do not seem to be willing to consider two principal residences on the same lot, particularly since no real compelling reason was given. I think that was the first thing that Mr. Himes said, and it’s been echoed by a number of people. Why do you want it, just because it’s there? As you know as well as anybody, Mr. Howland, when it comes to the lake, many of us are quite concerned, and by leaving two principal residences on a lot where they’re not allowed, particularly on the lake, it’s a concern to a number of people, and that’s what’s coming out at this particular point in time. MR. HOWLAND-But I can still take the lot, the house and move it across the street, but I have to come back for site plan review. Am I correct, then? So I’m still going to be, it is two deeded lots. MR. STONE-You can take the house and move it across the street, leaving that lot as a separate lot, maybe combined with the piece on the other side of Assembly Point Road, but now we’ve got two lots. You’re going to have to have two septic systems. MR. HOWLAND-That’s correct. Neither parcel is a problem for the septic system. The problem was the Town came in with a bulldozer and put a ditch on Mr. Ginsberg’s property to put the water from Assembly Point Road into his property. That’s what I found out afterwards. Because I really didn’t know what Dave’s concern was. MR. STONE-You’re saying they’re using his lot on Assembly Point Road as a drainage area? MR. HOWLAND-Yes. It’s a drainage ditch. That’s what they’re using it for. I mean, we’re going to eliminate that ditch. I mean, that’s going to be gone no matter what, but that’s neither here nor there. It’s just the water’s going to go further down the road, or whatever. Am I correct, I can do that? MR. BROWN-Re-locate the drainage ditch? MR. HOWLAND-No, I can put the cottage on the other lot. They’re separated by a road. So, I mean, they aren’t next to each other. MR. STONE-As far as I know you can put that cottage on the other lot, and then you don’t have to be here. MR. HOWLAND-Well, I have to come here because they’re two nonconforming lots. I still have to come back, correct? MR. BROWN-Under the same ownership. If it’s on another lot under somebody else’s ownership, you don’t count that. If they’re owned by the same person. MR. HOWLAND-But he could sell it to his son, let’s say, and stuff, and he can do that. MR. STONE-Yes. MR. HOWLAND-And then I don’t have to come back. I’m just trying to ask. MR. STONE-No, you don’t have to come back. You just need to satisfy the Town’s requirements that you have up to date septic systems for the houses. 43 (Queensbury ZBA Meeting 6/15/00) MR. BROWN-So, effectively, he could make it work, but he’d have to go through the whole, move the cabin, transfer the property, and is there a real benefit to that, I guess? I don’t know. It’s the same project. MR. STONE-No, it’s not the same project. Now you have a house on another lot across the street. It is not physically on the lot with the big house. It’s a different project. MR. MC NULTY-But that lot across the street has to be owned by somebody else than Mr. Ginsberg, a member of his family. He’s going to have to transfer the ownership. MR. ABBATE-That’s what was stated here. That can be conveyed to someone else, that other lot. MR. HOWLAND-I’m asking for clarification here. MR. ABBATE-Yes, even if it’s a member of the family, and that would make things simpler. MR. STONE-I’ve been looking at the lot size. It’s possible that you could reconfigure that lot and give it to somebody else, and leave the house where it is. Is that possible, Craig? If there’s enough room and access on a public road. MR. MC NALLY-I’m sure you can, but I mean, this is like Machiavellian legal maneuvers that have to be done, where now we’re being told that you have this huge lot, with a main house and a guest cottage. He’s going to end up doing the same thing, and I don’t know if the end result’s going to be as good. MR. STONE-That’s not what I’m saying. That is a possibility. I’m not sure I would be happy with that, but right now, the bulk of the Board, and I’m with them, I’ve said that, says, on this lot, which is the lakeside lot, from Old Assembly Point to the lake, is not going to have two principal residences on it. That’s what I’ve heard, because of a variety of reasons. One is, the argument is almost the one you’re making, because it’s there. That’s not a satisfactory argument. MR. HOWLAND-Could I ask one other question? If there’s no kitchen in the cottage, that’s not a residence, correct? Doesn’t a kitchen make it a principal residence? If it’s two bedrooms and a bath it’s not? MR. STONE-I forget. MR. HOWLAND-I’m asking because I just want to give the owner some alternatives here. MR. ABBATE-Is that within the Zoning Board of Appeals jurisdiction for review? I don’t think so, to answer that question. MR. STONE-It’s in the Code and I should know it. MR. HOWLAND-I mean, I can come in tomorrow and ask, but I think you can have, because we’ve done that before. MR. STONE-Yes, you can have. MR. BROWN-Yes. I think that what makes it a living quarters is a complete facility. MR. MC NALLY-You’re looking at a principal building? MR. STONE-No, it’s the definition of a building, I think is where it is. MR. BROWN-I don’t know if it’s in the Definitions. I think if you look at the definition for a Dwelling Unit. MR. STONE-Dwelling Unit, yes. MR. BROWN-You can interpret complete housekeeping facilities to be kitchen, bathroom, living room. MR. STONE-Complete housekeeping facilities for one family. So, it probably could not have a kitchen or maybe not have a bathroom. I’m not sure what the interpretation is. MR. BROWN-Kitchen. MR. HOWLAND-It’s always been a kitchen. That’s what determines a second physical residence. 44 (Queensbury ZBA Meeting 6/15/00) MR. BROWN-You may want to consider tabling to get an argument from Mr. Ginsberg on why he wants two buildings. MR. STONE-What are you reading? MR. MC NULTY-I’m on Section 179-7, Page 17936. MR. STONE-Okay. Go. Principal Building. MR. MC NULTY-Principal Building, and that’s what we’re talking about is not more than one Principal Building per lot. They’re saying a single family dwelling or a mobile home is one, a tourist cabin, it doesn’t say anything about whether it’s got a kitchen in it or not. MR. HIMES-On 17932 it defines Single Family Dwelling. It’s a building, not including mobile home, or one or more stories of height above the main grade level, which is designed or used exclusively as a living quarters for one family, whether seasonal or year round. MR. STONE-I mean, in one sense I think as Mr. McNulty is saying here, a single family dwelling is one principal building, a tourist cabin or similar structure for rent or hire is one principal building. Now this is not for rent or hire, but it comes close to being a, it’s not totally clear. In this case, it’s a second. MR. BROWN-I think if you go a little further in the definition, it specifically excludes accessory structures. An accessory structure cannot be a principal. MR. STONE-Does not constitute a principal building. MR. ABBATE-Yes, right. MR. BROWN-So I think that, to answer Mr. Howland’s question, if you take the kitchen out, is it a principal building? MR. ABBATE-If you take the kitchen out, no, if you take the kitchen out is it an accessory building? MR. BRYANT-No, it’s still a principal building. MR. STONE-No, it’s not a principal building. MR. HOWLAND-Because we’ve done a lot of garages with bedrooms in them before and that’s not been considered, it’s an accessory structure and we’ve been allowed to do it. I’ve done that numerous times. MR. STONE-Yes. You could do that. An Accessory Use Structure is any building or structure affixed to land…and incidental and subordinate to and associated with a permitted principal use. It could probably be an Accessory Use Structure without the kitchen. MR. HOWLAND-Without the kitchen. I understand you’re going to turn it down. That would allow him to keep it if he wanted to. He may just tell me to tear it down. MR. STONE-Well, I think as Craig says, if you want to discuss it with your client, we can table it to. MR. ABBATE-That might be a viable option. MR. HOWLAND-If I tabled it again, we’d come back next month? MR. BROWN-We have a meeting next week. MR. STONE-Do you think you have to consult with him? MR. HOWLAND-Well, yes, because he’s en route tonight, and I’ll see him tomorrow or this weekend I’ll see him, and he might just say, just tear it down. MR. STONE-We can table it for you to get advice and counsel from your client. MR. HOWLAND-That would be good, because it might be a moot situation anyway, and that would end the matter, unless I want to come back and say he wants to move it or whatever. MR. STONE-Okay. 45 (Queensbury ZBA Meeting 6/15/00) MR. HOWLAND-Because I still have to come back if he wants to move it, correct, I have to file again? Only because they’re nonconforming uses. MR. STONE-You’d have to satisfy ownership to move it. MR. HOWLAND-Right, that’s easy, but it’s not this Board, I don’t believe. MR. STONE-No. MR. HOWLAND-It’s the Planning Board. MR. BROWN-There’s 10 questions that need to be answered before we can make a determination. MR. HOWLAND-Well, yes, I don’t want to take any more of your time. You’ve been nice. MR. STONE-We’ll table it at your request for you to get counsel from your client. MR. BROWN-And you can table it as soon as next week’s meeting. MR. STONE-I understand. I intend to do that. MOTION TO TABLE AREA VARIANCE NO. 43-2000 MICHAEL GINSBERG, Introduced by Lewis Stone who moved for its adoption, seconded by Robert McNally: Until next week, or the following week, one of the next two June meetings, so that Mr. Howland can get counsel from his client, vis-a-vis the second structure on how he wishes to handle it. Duly adopted this 15 day of June, 2000, by the following vote: th AYES: Mr. McNally, Mr. Himes, Mr. Abbate, Mr. Bryant, Mr. Urrico, Mr. McNulty, Mr. Stone NOES: NONE ABSENT: Mr. Hayes MR. HOWLAND-Thank you. MR. STONE-We’re sorry to make it so hard. USE VARIANCE NO. 44-2000 TYPE: UNLISTED HC-1A KATHRYN PEASLEE PETER LIAPES OWNER: SAME AS ABOVE GREENWAY DRIVE APPLICANT PROPOSES 3 SINGLE FAMILY RESIDENCES ON A PARCEL ZONED FOR HIGHWAY COMMERCIAL USES. TAX MAP NO. 72-5-12 LOT SIZE: 0.84 ACRES SECTION 179-23 JON LAPPER & MATT STEVES, REPRESENTING APPLICANT, PRESENT MR. STONE-Okay. Why don’t you read the tabling motion, and then I have a question. MR. MC NULTY-Okay. Zoning Board of Appeals resolution, “Use Variance No. 44-2000, Peaslee and Liapes Motion to Table Use Variance No. 44-2000 Kathryn Peaslee Peter Liapes, Introduced by Lewis Stone who moved for its adoption, seconded by Charles Abbate: Greenway North, for sixty two days, in order to clarify the tax map situation, the tax status of this one lot, vis-a-vis Staff’s opinion versus four lots, as stated by the applicant. That the applicant also determine the status of any easements or granted right of ways, or anything else that may encumber this particular piece of property by a third party. Duly adopted this 24 day of May, 2000, by the following vote: AYES: th Mr. Abbate, Mr. Bryant, Mr. Urrico, Mr. Hayes, Mr. Himes, Mr. Stone NOES: NONE ABSENT: Mr. McNally” MR. STONE-Mr. Lapper, have we resolved this situation, yet? MR. LAPPER-Good evening, again. Remarkably, we have. MR. STONE-Good, because I didn’t think that we had. MR. STONE-Well, Mr. Brown didn’t think that we had, after I read his Staff Notes. So I respectfully disagree with him. 46 (Queensbury ZBA Meeting 6/15/00) MR. STONE-Well, why don’t we read, these are new Staff Notes? MR. BROWN-Yes, they are. MR. STONE-Even though they’re dated for May. Why don’t you read the Staff Notes, just to get it in the record. Because these are new. This is supposed to be June. STAFF INPUT Notes from Staff, Use Variance No. 44-2000, Kathryn Peaslee Peter Liapes, Meeting Date: May 24, 2000 (tabled) June 15, 2000 “Project Location: Greenway Drive Description of Proposed Project: Applicant proposes three single family residences on a portion of a parcel zoned as Highway Commercial. Relief Required: Applicant requests relief from the Highway Commercial zone, §179-23, which does not list single family residence as an allowable use. 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? The applicant has not submitted any financial information to support this position. 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 may be interpreted as unique, as the property listed in the application appears to be the only commercially zoned property within the subdivision. 3. Will the requested use variance, if granted, alter the essential character of the neighborhood? The requested use variance, if granted will allow single family residences to be constructed in a single family residential neighborhood. 4. Is the alleged hardship self-created: The alleged hardship could be attributed to the covenants and restrictions imposed on the subdivision lots prior to the institution of the current zoning. Parcel History (construction/site plan/variance, etc.): None applicable Staff Comments: While the proposed uses will be consistent with the neighborhood, a use variance does not change the underlying zoning. The properties would still be zoned Highway Commercial and future requests for Area Variances will be required, as the HC-1A setbacks will need to be maintained. A petition for a zoning change may best address this difficulty. A Use Variance granted for tax parcel 72-5-12 would include lands fronting on Aviation Road, and would not be recommended. Finalization of the parcel re-creations will be necessary prior to considering this project. The June 7, 2000 letter from Michael R. Swan, indicates that the Real Property Tax Service office will be separating the parcels based on the deed description. It is staff’s understanding, after conversation with Mr. Swan, that the parcels described in deed 447/132 were never individual tax parcels, and were originally conveyed together as one parcel containing three descriptions. Subdivision review, by the planning board, may be necessary to create these parcels. SEQR Status: Type: Unlisted” MR. LAPPER-Okay. Just to clarify the record, before we talk about the subdivision issue, I’d like to just respond. This was in the original Staff Notes, the applicant has not submitted any financial information to support this position on the crucial question of lack of reasonable return, and Mr. Abbate grilled me on this at the last meeting. The answer is zero, that I didn’t have dollars and cents because I didn’t feel I needed any because the answer is that with property that is zoned for commercial, that can only be used under Town Zoning Code as commercial, but covenants that say it can only be used residentially, it has no use, that you can’t do commercial or residential, because you have to comply with both. So that there’s absolutely no value to the lots as they are right now, and that therefore I didn’t feel the need to submit anything else on dollars and cents because the case sort of speaks for itself, a unique case for a Use Variance. In terms of the survey, Matt Steves who’s, for the sake of the record, with me tonight, went up to the County Tax Map department to talk about it, because we had this deed that we had submitted from ’64 that showed the lots as three separately described parcels, which, as a real estate lawyer, that means to me that we have three separate parcels, even though Craig Brown is correct that it’s assessed as one lot. So we went up to go and investigate this, and Matt was able to get the letter that we submitted, that should probably be read into the record, that the County Tax Map department reviewed the deed and said that we were right, that it should have been separate parcels, and that they’re now going to designate three different tax map lot numbers. When Craig said, in his Staff Notes, that we still may need a subdivision, the reason why I disagree with that is because, in 1964, the Town of Queensbury didn’t have Subdivision Regulations. So if they were three separate parcels by deed, I guess my point is that you don’t have to have three different deeds. As long as you have three different parcels described in the deed, it means separate parcels, and for some reason, the County put them altogether as a tax map parcel, but now the County is separating them. They’re going back to this deed of 1964, which pre-dates subdivision approval, so I don’t believe that we need subdivision approval, but I need to convince Craig of that. MR. BROWN-I think, ultimately, you’ll probably have to convince this Board, because I think the Zoning Administrator will make the same determination. So, you may want to talk about it tonight. 47 (Queensbury ZBA Meeting 6/15/00) MR. STEVES-For the record, my name’s Matt Steves from Van Dusen and Steves. There’s a few things to point out. This was a subdivision in 1954, and it was three lots within that subdivision. In 1964 when it was sold to George Liapes, it was sold as three distinct parcels in the deed. MR. LAPPER-How did you do subdivisions in ‘54 before there was subdivisions? MR. STEVES-You just filed it with the County Clerk’s Office. MR. LAPPER-Filed the subdivision map. MR. STEVES-Correct. Which it was filed in 1954, and it was sold in 1964 on a deed from Rogers to Liapes as Parcel One, Parcel Two, and Parcel Three. That would be this northerly part, which would be the three lots described, as shown on this original subdivision plan, and then the southerly part, which is not in question, with this application, is on another deed also in 1964. Also history has shown with the Town of Queensbury, I can point out a couple of specific lots with this same scenario to come up years ago. My father and I were up here in front of the Board a few years ago, I think back in the late 80’s, with two lots that were from Peggy Ann Park or West Mountain Park, one of those two subdivisions on the end of Peggy Ann Road along West Mountain Road. There was a client trying to put a house on a lot there, and it was part of the West Mountain Park subdivision, and the same scenario. He had a deed that gave him Lot Number One, and then described it, and then Parcel Number Two just described another lot, but it was tax mapped as one lot because he owned both, but at the same time, we went back through and we had that broken back into two lots and two different tax parcels, same scenario as we are here, and I know that that has been done in the past. MR. STONE-Do we have, we’ve got the parcel one, two, and three. Do we have that ’54 tax? MR. STEVES-A copy of the ’54 map? MR. STONE-Yes. MR. STEVES-There is a photocopy right here. MR. STONE-You’re saying there was a transfer, and it was a subdivision. Do we have, I think you read that. MR. STEVES-I said that it was a subdivision by Garner C. Tripp in 1954. MR. STONE-We don’t have that piece of paper. MR. STEVES-It’s in the deed. MR. LAPPER-It says it in the deed that was submitted with the application. MR. STONE-It is? MR. STEVES-I’ll read it specifically. “Beginning at a point in the east line of Greenway Drive, which point is the southwest corner of Lot No. 1 as shown on map of Second Subdivision, Glenacres, Town of Queensbury, N.Y.”, made by Garner C. Tripp. MR. STONE-Okay. I see what you’re saying. MR. LAPPER-So we’re saying we have a pre-existing subdivision, pre-existing subdivided lots. For some reason the County Tax Map office put them together, and now we’ve proven, or Matt has proven to them that that was in error, because they’ve always been separate in the deed, and now they’re separating them, and because this all happened before subdivision approval, our position is that we don’t have to go to the Planning Board for subdivision. They’ve always been of record as separate lots. It’s just that they haven’t been issued separate tax map designations. MR. STONE-Has this argument been made to you, Craig, and to Chris? Has this argument that Mr. Lapper is making been made to you and to Chris and you still disagree, about the ’54 subdivision, that it was a legal subdivision because there were no subdivisions that were legal? MR. BROWN-I don’t think we’ve talked about that. MR. LAPPER-No. I saw my letter and mistakenly figured that that took care of everything. So I really wasn’t too focused, and then I got Craig’s review letter today, and I just figured, okay, I’ll come in and talk about it, but we really didn’t talk about it. 48 (Queensbury ZBA Meeting 6/15/00) MR. STONE-Okay. So you have not made this argument to Staff? MR. LAPPER-No, because from my perspective, it’s so basic, just because of the dates and things. MR. STONE-You know what assume means, don’t you? MR. LAPPER-Yes, I understand that. I assumed. I was surprised to get the Staff Notes on this one. I thought it told the whole story. MR. STONE-Well, let’s read into the record Mr. Swan’s letter, just so that we have it here. MR. MC NULTY-Okay. This is a letter from Michael R. Swan, Director of Real Property Tax Services, Warren County, to Matthew Steves, Van Dusen and Steves Surveyors, “Dear Mr. Steves: At your request, we has reviewed the deed for the above referenced property. In fact, the deed for the rear portion of the property, 447/132, list three separate parcels. As a result, we will divide the parcel based on the deed description. This will result in two lots with 75 feet of frontage on Greenway Drive, and one lot with approximately 20 feet of frontage and 19,200 square feet. This work will be done on the tax maps for Queensbury within the next few weeks. If you have any questions, please call me at any time. Very Truly Yours, Michael R. Swan, Director, Real Property Tax Services” MR. STONE-This has a 20 foot frontage, one lot. MR. LAPPER-Matt’s map that we submitted to you, I’m sorry. MR. STEVES-The original subdivision. MR. STONE-Okay. He’s saying the original subdivision. MR. STEVES-Based upon the deed, it is going to be based upon the original subdivision, which this southerly lot, being right here, only has 20 foot of frontage on Greenway North, and at the last meeting, I stated the reason that we adjusted that lot line is to make it less nonconforming. MR. LAPPER-Let me just give you one more qualification. If this were an approved subdivision, we couldn’t be, when Matt says adjust that, we’d be doing that by way of boundary line agreement, where the Town Code and Definition of Subdivision says that you’re allowed to adjust the line as long as you don’t create another lot. It’s something you guys don’t deal with because it’s a subdivision issue, and you’re not allowed to do that in the case of an approved subdivision, because then if you’re going to even change something by a few feet, if it’s an approved subdivision, you have to go back through the Town Planning Board and have them pass on it, but because this wasn’t an approved subdivision, because it’s 1954, we believe that we can make that small adjustment. MR. STONE-How big, what are you making, the frontage on a Town road? Is it going to be 40? MR. STEVES-It’s going to be 40 feet, 6732 and 6732. MR. STONE-Okay. I couldn’t remember. That was last month. MR. STEVES-So we just wanted to make that last 20 foot lot comply. MR. LAPPER-The big issue that Craig was dealing with last time was, if this isn’t subdivided, then we have a real problem because we’re talking about a Use Variance on a piece of property that goes out to Aviation Road, which was never our intention to talk about that. MR. STONE-Okay, and there’s no question in your mind that the lot on Aviation is not in this at all? MR. LAPPER-Right, not part of the application. MR. STEVES-Absolutely not a part of this application. MR. STONE-Okay. MR. STEVES-Completely separate deed from the three lots we are talking about. Conveyed at a different, as a different lot. MR. STONE-Okay. MR. BRYANT-I want to ask a question, then. This tax lot 72-5-12, okay, which is listed as one tax lot, is four lots. That’s correct? 49 (Queensbury ZBA Meeting 6/15/00) MR. STEVES-That’s correct. MR. BRYANT-Okay. So you’ve gone back t to the County and you’ve done your application to change it back into four lots, tax lots, right? MR. STEVES-Not an application, just had them review the deed. MR. BRYANT-Okay. So they’re reviewing the deed and they’re going to make four lots. MR. STEVES-Four tax parcels. MR. BRYANT-Exactly. So the next process would be in the three lots that are not on Aviation Road, to apply for a zoning change, and not effect the lot that’s on Aviation Road, and why are you here? MR. LAPPER-There are two procedures that could work equally well to get to the same results, to ask for a zone change, which would mean go to the Town Board, or to ask for a Use Variance at this Board, because where we want to get is to be able to develop them residentially, and either of those paths would get to that result. So, procedurally, we chose to go with a Use Variance, because, since we had this interesting, and what I think is a great argument that we’ve got the covenants that say one thing and the zoning that says something else, it’s simpler because we only have to come to one Board, versus if we go on a rezoning, we’d have to go to the Town Board. They’d refer it to the Planning Board, and come back to the Town Board, and so it would just be more involved procedurally, and that’s really the only, I think it could have been done either way. MR. BRYANT-But based on the notes, the underlying zoning has never changed, even with the variance. MR. HAYES-Setbacks. MR. MC NALLY-Setbacks you mean. MR. HAYES-Can you get it done with the setbacks? MR. LAPPER-We would have to come back to you, when somebody wants to build houses, when they’ve got, somebody wants to buy houses, and we know what the setbacks are going to be, we’d have to come back and ask for Area Variances. MR. BRYANT-That’s different than what we’re talking about now. MR. LAPPER-Right. MR. STONE-But they’d still have to come back. MR. LAPPER-We’d still have to come back. MR. STONE-Because they’re nonconforming. MR. HAYES-You’re aware of the whole thing, then. MR. LAPPER-I have to admit, on the record, that in thinking this whole thing through, that part got by me when I applied, and Craig called me, and we talked about it, and he’s right, but I couldn’t have applied for the Area Variances, because we don’t know what the houses are going to look like yet, because it’s get it zoned and then go market it, and then go design the houses. MR. BRYANT-Here’s my question to you, Mr. Chairman, how can we vote on this issue, when even though they say it’s resolved, it hasn’t been resolved. We don’t have four separate. MR. STONE-How can we? Well, in a sense, we are, this becomes sort of an appeal of Staff. Well, he raised the question, how can we do this if we haven’t resolved the issue? But we are the judge in this case, is what I think you said earlier. We’re saying we can accept their argument. MR. HAYES-It’s a premise that, if proven wrong, the variances wouldn’t apply then. MR. BROWN-Well, right now what you have in front of you is a Use Variance for parcel 72-5-12. MR. ABBATE-Right. 50 (Queensbury ZBA Meeting 6/15/00) MR. BRYANT-That’s my point exactly. MR. ABBATE-Can I address that for a second? Procedurally, Counselor, you mentioned that word three times tonight, you made an application for a Use Variance. Is that not correct? MR. LAPPER-That’s correct. MR. ABBATE-And a Use Variance must meet certain specifications in order to be approved. Is that not correct? MR. LAPPER-Yes. MR. ABBATE-This was deeded to his son or son-in-law, whatever it was, the lots for one dollar. Is that not correct? Yes, it’s one dollar. MR. LAPPER-No. Deeds say one dollar, but the tax stamps. MR. ABBATE-Well, give me a number. MR. LAPPER-I don’t know if I know that number, because this doesn’t, I don’t see the tax stamps on this deed. MR. ABBATE-Okay. Forget that. MR. LAPPER-I don’t know what the tax was in 1964. So even if I had it, I couldn’t figure it out. MR. ABBATE-Mr. Steves, last time that we met, indicated to me that these lots could see for 400 and some thousand dollars, is that correct? Who mentioned the 400 and some thousand dollars. Somebody mentioned that, and you disputed that. Correct? I’m just trying to get this square. These are my notes. MR. STEVES-I think somebody in the public stood up and said somebody had it for sale for a million dollars. MR. ABBATE-Right. MR. STEVES-I didn’t say that. MR. ABBATE-Somebody said that’s not true, it’s only 400 and some thousand. MR. LAPPER-Either way you’d be talking about a commercial use that somebody would be considering this as commercial property on Aviation Road, which nobody would ever, you couldn’t build commercial in the middle of this residential subdivision right there on those lots. MR. ABBATE-Okay. Well, let me ask you this. Do you feel that, if this is not approved, that this would amount to nothing but confiscation of your client’s property? MR. LAPPER-Yes. MR. ABBATE-You do? MR. LAPPER-Yes. MR. ABBATE-Well I disagree with you. MR. LAPPER-Okay. MR. ABBATE-Because on a Use Variance, you must meet certain requirements. Putting everything aside, what we said this evening, if you use the word “Use Variance” you must meet certain criteria. MR. LAPPER-Absolutely. MR. ABBATE-And the fact that, of course you could make a larger profit, except whatever the case might be, doesn’t justify the granting of a variance on the grounds of unnecessary hardship. MR. LAPPER-But I’m not saying it’s a larger profit. I’m saying that these are totally worthless as zoned, that if they’re zoned for commercial, and they can’t be used commercially, there’s no profit. MR. ABBATE-They’re worthless. 51 (Queensbury ZBA Meeting 6/15/00) MR. LAPPER-Worthless. MR. ABBATE-Are they assessed for a certain amount of dollars? MR. HAYES-They have to be. MR. ABBATE-I’m just asking the question. MR. BRYANT-The whole lot, the whole lot though, all four lots are assessed at one price. MR. LAPPER-As one commercial piece. So it’s assessed, it’s probably overassessed, based upon. MR. STONE-The Assessor has not been given the opportunity to listen to their argument and make it four lots. MR. ABBATE-I see. MR. LAPPER-What happened here is that Mr. Liapes just passed away, and through the estate, it went to his kids and that’s how it came to Matt and myself. MR. ABBATE-Property always has value, regardless. Real estate always has property value. So it’s useless is what you’re saying? MR. MC NALLY-What can they use it for? What are you thinking about? MR. ABBATE-Well, I’m trying to ferret out their position that the property is useless under the present, it has not value at the present time. MR. LAPPER-That is our position. MR. ABBATE-It has no dollars and cents value? MR. STEVES-It might have a tax value, because the owners are being taxed on it. MR. LAPPER-As if it was commercial. MR. STEVES-If you have a piece of property that doesn’t allow you to use it residentially because of the Town code, and doesn’t allow you to use it commercially because of a deed restriction, what are you going to do with it? MR. BRYANT-But my argument in this whole discussion is that this application is worthless because we are talking about something that may not exist tomorrow, when the County restructures those four tax. MR. LAPPER-The County has told us how they’re going to restructure it. Based upon this. MR. STONE-Based upon this letter. MR. LAPPER-Yes. MR. BRYANT-Yes, that’s fine, based upon his letter, but we’re talking about this one parcel of property which includes Aviation Road. MR. LAPPER-No. MR. BRYANT-That’s what the application says. Am I right, or am I wrong? Does the application have to be restructured? MR. STONE-Well, the application, as submitted, as far as our Staff is concerned, was for one property that goes all the way to Aviation Road. MR. LAPPER-And the Staff was right about that, and we think we’ve fixed it with this letter. MR. BRYANT-Well, you may have fixed it. MR. STONE-They don’t refer to that other piece of lot. That’s the only problem I have with that letter. He does not get the other one out of there. 52 (Queensbury ZBA Meeting 6/15/00) MR. LAPPER-Matt said why that was, because the other one came through on a different deed, and his letter says he’s only doing this, but if you draw these lines, by definition, you’ve separated the lot. MR. STONE-But how is he going to, well, not necessarily. MR. STEVES-Absolutely. MR. STONE-Well, yes, except that he’s got to do something to show that other lot’s been reduced in size. MR. STEVES-He’s going to. Absolutely he’s going to. MR. STONE-Okay. I’m not disagreeing with you. I’m just trying to go through the. MR. STEVES-I know, but I’m guaranteeing you that what Mr. Swan is going to do is he’s going to take tax parcel 72-5-12, and it is now going to be four separate tax parcels. MR. BRYANT-Well, that’s great, and then we can look at this issue, at that time, on the three lots that they’re talking about building the three houses on, as opposed to looking at a lot which identified as 72-5-12, and voting on a variance. MR. STONE-He makes a very good technical point. MR. LAPPER-He does make a good technical point. MR. STONE-We cannot make a motion. Let’s say we all agree. We cannot make a motion. We have no numbers. Is that reasonable, Craig? MR. BROWN-Procedurally. We’ll use that word again. MR. STONE-When we grant a variance, we have to be very precise. MR. BROWN-Exactly. MR. STONE-We can’t be precise. I mean, you make a very good point there. MR. HAYES-Can you be precise by adding the contingency that it’s so divided? MR. LAPPER-I think it could be contingent upon the letter, that there will be numbers assigned to it in the next few weeks, as he said. MR. STONE-We could refer to the deeds. MR. STEVES-It’ll be the three northerly lots. MR. HAYES-You mean the motion referring to the three northerly lots? MR. STEVES-In this deed. MR. STONE-Well, we could take the deed and say as described in the deed, with 56 feet. MR. HAYES-Does that work, Craig? MR. BROWN-The only thing that just jumps up to mind is that legalities of advertising and referencing certain tax parcels for. I don’t know that answer. Is anybody else going to be notified because of the parcels changing? No. MR. LAPPER-But the only thing is, everybody was notified based upon the big parcel. MR. BROWN-Right, that’s what I’m thinking. MR. LAPPER-So they’ve already been notified, and we’re doing less than that. MR. STEVES-Right. There would be less people notified. MR. STONE-I would have no problem, assuming we all agree, that if we used this deed, and Mr. Swan’s letter, do you think we’re being adequate enough? 53 (Queensbury ZBA Meeting 6/15/00) MR. BRYANT-I think we can, but I would prefer not to, just basically on the grounds that I think that this is not the way to go about it. I think that you ought to, when you separate the four lots, you have four individual lots, three of them should be zoned residential, because that’s all they can be used for, and that’s the way it should be, instead of going. MR. STONE-But they have the option. Mr. Lapper is right, and in fact some of us wondered, and I don’t want to bring it up, necessarily, but that’s a route that the so called Cracker Barrel lot could have gone to. They could have come to us. Thank the good Lord they didn’t, but they could have taken this same route. MR. BRYANT-I understand that, and that is an option, but I would prefer to see that option exercised, rather than to come here. That’s only my opinion, but, for identification purposes, I would accept the deed. MR. STONE-Okay. This is what they’ve done. They have a perfectly valid reason for seeking this application, for putting in this application, and that’s what we’re talking about. Where are we procedurally? Has everybody gotten their questions answered, so far? MR. ABBATE-Providing that there’s some agreement that this is a request for a Use Variance, and there are specific criteria for that. MR. STONE-There are, and Mr. Lapper has attempted to answer them. You may not be satisfied with them, but that’s why we’re going to open the public hearing, and we’re going to talk about it. MR. ABBATE-Let’s do it. MR. STONE-Okay. I’ll listen, in terms of the public hearing, to those that are in favor of this application? In favor? Anybody opposed? Opposed? Any further correspondence? MR. MC NULTY-I don’t think so. PUBLIC HEARING OPEN NO COMMENT PUBLIC HEARING CLOSED MR. STONE-Any other questions? If not, we’re going to talk about it, and we’re going to start with you. MR. ABBATE-Start with me. Okay. Again, you know, Counsel was optimistic. He believes that this property amounts to confiscation, and I totally disagree. The mere fact that the property owner may suffer reduction in the value of the property because the zoning regulations, the fact that another permitted use may allow the sale of the property for a better price or permit a larger profit does not justify the granting of a variance on the grounds of unnecessary hardship. Period. I’m done. MR. STONE-Okay. Allan? MR. BRYANT-I am on the fence with this whole issue, and it’s not because I don’t believe that you should be able to build residential houses on these lots, because that’s what they’re designed for, but I really think that the more appropriate way to do it is to change the zoning for all time, and build the three houses, and live happily ever after, and I would prefer to see that option, rather than go for a Use Variance on three lots, you know. MR. LAPPER-I would just respectfully answer that if I had talked this out with Craig ahead of time, I probably would have gone that way, but I think I have a valid application this way. MR. BRYANT-You do have a valid, but like I say, I am not against the principle of it, but I am against the process. MR. LAPPER-Okay. I respect that. MR. BRYANT-And this will teach you a lesson. Next time talk to Craig first. MR. STONE-Jaime? MR. HAYES-Well, as I look at the criteria for a Use Variance, I do believe that a property that is zoned commercial but is covenanted not to have any commercial activity, is a hopeless deadlock and 54 (Queensbury ZBA Meeting 6/15/00) therefore nothing can be done with it legally, or in either direction. So I think in that particular case, the property is worth nothing. It would be worth nothing to me, if I couldn’t build a house on it or if I couldn’t do a business on it or anything. So, while that’s a roundabout satisfaction of the first criterion that relates to reasonable return, I think it is an adequate one. No return is lack or return or competent whatever. So, two, is the alleged hardship relating to this property unique in question? I think that it is because the zoning, being commercial and what is clearly, in my mind, a residential neighborhood, and the rest is already residential neighborhood, is a unique situation that cries for remedy, maybe this not being the best one, but I think clearly it is a factor. Three, will the requested Use Variance, if granted, alter the essential character of the neighborhood? I don’t think it will at all, and I want to premise that with the fact that I don’t think it will to the extent of the lots that are the northern lots. I think any lot that’s on Aviation Road is clearly commercial, and I would not have gone for that as far as the forward lot, but the lots that are inland, the northern lots, I think it’s a residential neighborhood, and that’s really, I don’t think building houses there would cause any problem in the neighborhood. Is the alleged hardship self-created? I don’t think that it is. We’re dealing with a 1954 subdivision, 1954 covenants, and 2000 zoning, and I don’t think that that’s the fault of the landlord or the property owner or their heirs, in this particular circumstance. So I think that all four tests have been met in this particular circumstance for the northern lots, for the three northern lots, and I would move for, I would be in favor of a Use Variance for those parcels. MR. STONE-Before I go to Chuck, I just remembered, looking at the tabling, the status of easements and rights of way that you were going to. MR. STEVES-I can address that also. MR. STONE-Well, please do, because we should have addressed it earlier. MR. STEVES-Okay. There is the right of way that was shown on the subdivision map, was a New York Telephone Company right-of-way on both sides of this. The telephone company has abandoned the wires that went through there completely. There’s no need for this whatsoever anymore. As a matter of fact, it was abandoned at the time the Mall was constructed. That’s where the line went through, and it also continued along to the north and ended up crossing the Northway just above Weeks Road, where the dance hall is now at the end of Weeks Road, and I just did a survey on that also, and it’s abandoned there also. As far as qualified abandonment for this section of it, it’s an island. There’s no easement on either end of this thing. So the New York Telephone Company has no need or wants for that, and as far as any power, there is power that runs along, which would be right along the back side of our southerly lot, right along the property line is a power line. So it doesn’t effect the construction of any of the three homes. MR. STONE-Okay. At least you’ve addressed those. Go ahead, Chuck. MR. MC NULTY-I think Jaime said it all. I don’t have anything to add. I’ll agree with what he said. I’d be in favor. MR. STONE-Okay. Bob? MR. MC NALLY-I agree with Jaime’s sound and reasoned opinion. MR. STONE-Norman? MR. HIMES-Well, I’m not going to be any different. I think this is a good resolution to a mess, and I agree with what Jaime said. I’m for it. MR. STONE-I could say I agree, and I do, but I think your argument, just to the rest, the last three there’s not a question. The first one, I think it’s a logical, you can get there logically. I think you’ve gotten there logically. It’s commercial. It’s residential, and if we can’t do either one of them, it’s worthless, quote unquote, and obviously it has been a negative on the Liapes family because they’ve been paying taxes for it without any possibility of return. So, having said that, I’ll call for a motion. MR. MC NULTY-I guess we need a SEQRA. MR. STONE-It’s Unlisted. Thank you for bringing that to our attention. Have you got a Short Form in there? Did he give you one? MR. BROWN-There should be one in the application. MR. ABBATE-I didn’t see one. MR. BRYANT-I didn’t get one. 55 (Queensbury ZBA Meeting 6/15/00) MR. BROWN-There’s one in my application. MR. STONE-Okay. Go ahead. MR. MC NULTY-Okay. We’re working on the Part II. “Does the action exceed any Type I threshold in 6NYCRR Part 617. 4?” MR. STONE-No. MR. MC NULTY-“Will the action receive coordinated review as provided for in Unlisted Actions in 6NYCRR Part 617.6?” MR. STONE-No. MR. MC NULTY-“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. STONE-No. MR. HAYES-No. MR. STONE-It may as an Area Variance, but not as a Use Variance, when you start to build on it. MR. LAPPER-We’ll be back. MR. STONE-I know you’ll be back. MR. MC NULTY-“C2. Aesthetic, agricultural, historic or other natural or cultural resources; or community or neighborhood character?” MR. STONE-No. MR. MC NALLY-No. MR. MC NULTY-“C3. Vegetation or fauna, fish, shellfish or wildlife species, significant habitats or threatened or endangered species?” MR. STONE-No. MR. MC NULTY-“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. It has to be yes. MR. HAYES-Or no, not significant. MR. STONE-But not significant. MR. MC NULTY-Well, this says could the action result in any adverse effects associated with. MR. BROWN-You can say yes, but then at the end you determine if there’s a significance to it. MR. STONE-Yes. MR. MC NULTY-So yes to that one. Okay. “C5. Growth, subsequent development, or related activities likely to be induced by the proposed action?” MR. STONE-Yes. You’re going to build houses on there. MR. LAPPER-Growth usually means beyond this application, are you going to get other people to do other things. MR. MC NULTY-No. MR. STONE-Then I’ll say no. MR. BROWN-Is the preface to all these questions will an adverse effect be created? 56 (Queensbury ZBA Meeting 6/15/00) MR. MC NULTY-Right. The preface to all these is, could action result in any adverse effects associated with the following. MR. HAYES-Then I would say no on the one before that, then. MR. STONE-Yes. MR. MC NULTY-Say no to the other one? MR. STONE-Yes. MR. MC NULTY-Okay. Two more of these with that preface, “C6. Long term, short term, cumulative or other effects not identified in C1-C5?” MR. STONE-No. MR. MC NULTY-No. “Other impacts (including changes in use of either quantity or type of energy)?” MR. STONE-Not adverse. MR. MC NULTY-No. Okay. “Will the project have an impact on the environmental characteristics that caused the establishment of a CEA?” MR. STONE-No. MR. MC NULTY-No. “Is there or is there likely to be controversy related to potential adverse environmental impacts?” MR. STONE-No. MR. MC NULTY-Okay. That brings us to Determination of Significance. “For each adverse effect identified above…” and we’ve identified none. So we don’t have to do that. So it’s just a matter of determining whether it’s going to have a. MOTION THAT A REVIEW OF THE SHORT ENVIRONMENTAL ASSESSMENT FORM SHOWS THAT THERE ARE NO NEGATIVE IMPACTS CAUSED BY THIS PROJECT, PROJECT BEING USE VARIANCE NO. 44-2000 KATHRYN PEASLEE PETER LIAPES, Introduced by Lewis Stone who moved for its adoption, seconded by Robert McNally: Duly adopted this 15 day of June, 2000, by the following vote: th AYES: Mr. Himes, Mr. Abbate, Mr. Bryant, Mr. Hayes, Mr. McNulty, Mr. McNally, Mr. Stone NOES: NONE MR. STONE-Now we need a motion. MOTION TO TABLE USE VARIANCE NO. 44-2000 KATHRYN PEASLEE PETER LIAPES, Introduced by Charles Abbate who moved for its adoption, seconded by Allan Bryant: Because a number of questions haven’t been resolved, particularly by my colleagues, and the fact that we’re basically abandoning the rules for a Use Variance, and I think that should be reviewed. Duly adopted this 15 day of June, 2000, by the following vote: th AYES: Mr. Bryant, Mr. Abbate NOES: Mr. Hayes, Mr. McNulty, Mr. McNally, Mr. Himes, Mr. Stone MOTION TO APPROVE USE VARIANCE NO. 44-2000 KATHRYN PEASLEE PETER LIAPES, Introduced by Robert McNally who moved for its adoption, seconded by Charles McNulty: Greenway Drive. The applicant proposes three single family residences as shown on a map in a deed filed with the Clerk of Warren County October 16, 1964, and is between Tom Rogers and Cleo Rogers, to George Liapes, and which describes the three parcels with essentially a meets and bounds 57 (Queensbury ZBA Meeting 6/15/00) description, Book 447 of Deeds Page 132 and 133, and the three parcels identified in this deed will be changed on County records per Michael Swan’s letter of June 7, 2000, and on a portion of a parcel which is currently zoned Highway Commercial. The applicant requests relief from the Highway Commercial zone, Section 179-23, which does not list the proposed single family residential use as an allowable use. I ask that the application be approved for the following reasons. First, that the applicant cannot realize a reasonable return. While this applicant has not provided us with hard financial numbers, they have demonstrated that the property is encumbered by a deed covenant which prohibits commercial use, and as zoned, it can only be used commercially. Hence, there is no possible reasonable return that this property can see. With respect to whether the alleged hardship relating to the property is unique, it is. The three parcels which we are allowing a different use than that otherwise permitted are basically unique within this entire area which is residential. It’s the only commercially zoned property within this subdivision. With respect to the third factor, whether the requested Use Variance, if granted, would alter the essential character of the neighborhood? I find that in fact by changing it to residential use, we’re continuing what is a longstanding use of all the surrounding properties, in large part, would be essentially one parcel, and finally, is the alleged hardship self-created? I don’t believe so. These parcels have been demonstrated as being purchased long before the subdivision rules and the zoning rules went into effect. Therefore, it’s simply the fact that these parcels were never developed, was not any act on the part of the owner which resulted in the current circumstances. For these reasons, I move the approval of the application. The three parcels I’m referring to are the three parcels that are described in the deed which is submitted with this application. Duly adopted this 15 day of June, 2000, by the following vote: th MR. STONE-Does everybody understand that motion? MR. BROWN-I just have a couple of questions. In the beginning he referenced it as an Area Variance, just to be sure that it’s a Use Variance. MR. STONE-A Use Variance. MR. BROWN-There were a couple of times that you referenced changing the zoning, and you’re not really changing the zoning. You’re allowing residential use. MR. MC NALLY-Right. We’re not changing the zoning of the parcel so much as we’re allowing a different use than that otherwise permitted. MR. BROWN-Right. Just a couple of times in it you referenced a change of zoning. MR. STONE-That’s fine. MR. BROWN-Okay. MR. STONE-Anything else? MR. BROWN-Did you want to make any mention of the Swan letter in the creation of the parcels according to subdivision review if necessary? Or you’re satisfied that they’re going to be three parcels? MR. MC NULTY-Yes. We’ve identified the three parcels. MR. STONE-We’ve identified the three parcels. You might say, all right, and the three parcels identified in this deed will be changed on County records per Michael Swan’s letter of June 7, 2000. MR. HAYES-Are we making the approval contingent upon that? It should be. MR. STONE-Yes. MR. STEVES-We’re fine with it. MR. BROWN-And just to go one step further, contingent upon the County doing it, or contingent upon consistency with the Town’s Subdivision Regulations, if need be. If the Zoning Administrator says, look, this needs subdivision review, then this is conditioned upon them getting subdivision review, if that determination’s made. MR. LAPPER-We don’t care. MR. HAYES-That’s fine? You’re that confident? 58 (Queensbury ZBA Meeting 6/15/00) MR. LAPPER-We’re that confident. MR. HAYES-Okay. MR. BROWN-That’s fine. You don’t have to include it. You kind of discussed it in the beginning as going to be a condition and then just breezed over it when you did the motion. MR. STONE-Yes, because I think we accepted the fact that it was all right. MR. BROWN-That’s fine. I just wanted to throw it back out there for you. AYES: Mr. McNulty, Mr. McNally, Mr. Himes, Mr. Hayes, Mr. Stone NOES: Mr. Abbate, Mr. Bryant MR. LAPPER-Thank you. MR. STEVES-Thank you. MR. STONE-I move we adjourn, gentlemen. On motion meeting was adjourned. RESPECTFULLY SUBMITTED, Lewis Stone, Chairman 59