2000-05-24
(Queensbury ZBA Meeting 5/24/00)
QUEENSBURY ZONING BOARD OF APPEALS
SECOND REGULAR MEETING
MAY 24, 2000
7:00 P.M.
MEMBERS PRESENT
LEWIS STONE, CHAIRMAN
CHARLES MC NULTY,SECRETARY
NORMAN HIMES
CHARLES ABBATE
ALLAN BRYANT
PAUL HAYES
MEMBERS ABSENT
ROBERT MC NALLY
CODE COMPLIANCE OFFICER-CRAIG BROWN
STENOGRAPHER-MARIA GAGLIARDI
MR. STONE-Before we start, let me make it known, anybody waiting here for Area Variance No.
23-2000, William Walker, on Pilot Knob Road, that will not be heard this evening. So if any of
you came prepared to speak on that particular application, you may stay and watch us work, but we
will not be discussing that.
MR. BROWN-Just for everybody’s information, the applicant requested a tabling.
MR. STONE-He requested to be tabled. It was tabled.
MR. BROWN-Yes. They requested to be tabled until next month. That’s why it’s not heard tonight.
MR. STONE-Right. Okay.
OLD BUSINESS:
AREA VARIANCE NO. 14-2000 TYPE II WR-1A CEA JOSEPH & NANCY POLONSKY
OWNER: SAME AS ABOVE ASSEMBLY POINT ROAD APPLICANT PROPOSES TO
MAINTAIN EXISTING NEWLY CONSTRUCTED DECK AND SEEKS RELIEF FROM
THE SETBACK REQUIREMENTS AS WELL AS FOR THE EXPANSION OF A
NONCONFORMING STRUCTURE. CROSS REF. AV 5-1998 ADIRONDACK PARK
AGENCY WARREN COUNTY PLANNING 2/9/2000 TAX MAP NO. 9-1-18 LOT
SIZE: 0.28 ACRES SECTION 179-16, 179-60, 179-79
JON LAPPER & STEVE COTTLER, REPRESENTING APPLICANT, PRESENT
MR. STONE-We shall read the tabling motion, since everything else is in the public record, and then
we will call on the applicant.
MR. MC NULTY-“The Queensbury Zoning Board of Appeals has reviewed the following request at
the below stated meeting and has resolved the following: Area Variance No. 14-2000, Joseph &
Nancy Polonsky Meeting Date: Thursday, April 20, 2000 TABLED MOTION TO TABLE
AREA VARIANCE NO. 14-2000 JOSEPH & NANCY POLONSKY, Introduced by Lewis
Stone who moved for its adoption, seconded by Norman Himes:
The application is tabled in lieu of investigation by the applicant of feasible alternatives, and/or the
additional compliment of Board members. We will table this to the first meeting in May.
Duly adopted this 20 day of April, 2000, by the following vote:
th
AYES: Mr. Underwood, Mr. Himes, Mr. McNally, Mr. McNulty, Mr. Stone
NOES: NONE
ABSENT: Mr. Abbate, Mr. Bryant, Mr. Hayes”
MR. STONE-Okay. Mr. Lapper, are you speaking for the applicant?
MR. LAPPER-Yes, sir. For the record, my name is Jon Lapper. With me is the applicant, Joe
Polonsky, and for the first time, Steve Cottler, who is an architect from Latham, who was retained to
come up with an alternative design. Just to recap, for the new member of the Board, and when we
were here, I think last month, it was a school holiday, and not everybody was here. We have an
unfortunate situation of a small deck that was built at the back of the home when the home was
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(Queensbury ZBA Meeting 5/24/00)
reconstructed. There was a prior Area Variance for a 45 foot setback for the home, and when the
home was constructed, it turned out that the home was 34 inches above grade, approximately, and
the architect who designed the house instructed Joe to just go ahead and put a deck on, even though
that violated the 45 foot setback of the prior Area Variance. I believe that the architect was thinking
as a matter of the building Code that you had to get from the doors down to the ground, and that’s
why he told him to go ahead, but regardless, it requires an Area Variance, and it should have been
done before it was constructed, but it wasn’t. So when Joe submitted the final survey, the as built
survey to Craig, to get the CO, Craig said, wait a second, this isn’t what I expected, and that’s how we
got here. So Craig instructed Joe to file for an Area Variance, and it’s an after the fact Area Variance,
which is not the way things should happen, and that’s unfortunate. In terms of our prior discussions,
Joe has brought me, tonight, a copy of the contract. I’d just like to read two excerpts and then give
you a copy, just in terms of the issue, to establish that this was certainly not the plan to begin with, it
still doesn’t mean that he shouldn’t have gotten a variance before it was built, but one of the
provisions, the specs of the construction, under Number Four, grading, it says, new home to be
raised approximately 12 to 18 inches above existing level of home to accomplish, one, gravity fed
septic, two, basement floor above high water level of lake, and, three, lake side yard to be graded
level with top of seawall to accomplish level yard. The seawall was raised two feet from the old
seawall, and what was anticipated was that the back door would be at grade, and in addition to that,
talking about the grade, there is a provision that says, flagstone patio, contractor to construct eight
foot by thirty-six foot patio, which was all that was anticipated when the contract was entered into,
that it would be at grade and that there would be a patio. Because it was not at grade, the deck was
built, and we’re here to talk about it. When we were here last month, we talked about alternatives,
and so Joe hired Steve to design something that would require going in and doing a reconstruction,
to make it a smaller deck that would still accomplish getting down from the 34 inches down to the
patio, which obviously is something that Joe doesn’t look forward to doing because he’s going to
have to partially destroy what’s a very lovely mahogany deck, and he’s going to have to spend money
for new piers, but at the same time, we understand that you’re looking to always grant the minimum
variance. So this wasn’t something that Joe had originally hoped for, but, based upon our previous
meetings, Steve designed a smaller deck. I faxed this to Craig, but I think it didn’t get to him in time
to get into your packet. So I’ll hand this to you. You have one to talk about, right? So let me just
hand you this.
MR. BROWN-There’s one in the file, but it came after the notes went out.
MR. STONE-Okay. All right.
MR. COTTLER-My name is Steve Cottler. I’m a partner with Cottler & Horsh Architects out of
Latham. We looked at the existing grade as it exists now and as Mr. Lapper said, there is a 34 inch
difference between the first floor level and the stone patio. We looked at what could be done to
modify the deck. There is an existing deck on the second floor that projects out about six to six and
a half feet. So we duplicated that deck with the deck and actually moved the whole assembly back 18
inches from what it exists now. So that the upper deck and lower deck would be of the same height,
and it’s only the steps that would project beyond the line that the upper deck now projects, the
setback from the lake. We felt that this modification would bring it more in line with what it’s
supposed to be.
MR. LAPPER-At the last meeting, there was a question asked of Joe whether he intended to use this
deck as a seating area to put lawn furniture on the deck, and he said that it wasn’t, and it was just a
way to get down to the patio, which would be the seating area. So for Joe to take off two feet, it’s
not going to, since that’s not his intended use anyway, it’s not going to hurt his ability, I mean it
would hurt his ability to put chairs there, but he didn’t want to do that anyway. That’s okay. It’s just
a way to safely get out of the house and get down the stairs. I just also want to point out, for those
of you who weren’t here at the last meeting, that three neighbors came and spoke on the record that
they were supportive, that they thought it was a good looking deck, and that they have no problem
with the issuance of the variance. So we think that this respectfully is more of a procedural issue,
precedential issue for the Board, but in terms of the impact on the area, that there isn’t an impact on
the area, and in terms of regrading the whole thing as another alternative, that that would be worse,
in terms of what it would look like for the neighbors, and we’re here to answer any questions the
Board has.
MR. STONE-I’ve been trying to do some figuring here. What would the new setback, if this foot
and a half, apparently it’s a foot and a half that you’re taking off?
MR. LAPPER-We’re taking off two feet. Because it was an eight, I’m sorry, six foot six. It’s 18
inches, excuse me. So we were asking for ten feet. So it would be eight and a half feet, at the
variance.
MR. STONE-Any questions of the applicant?
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MR. MC NULTY-I have one question. Is this still going to require a railing on the deck?
MR. BROWN-If the deck is above 18 inches above final grade, it’ll require a rail, yes.
MR. LAPPER-Chuck, they’re the railings on the sides, but no rail on the stairs.
MR. STONE-So, I’m making it very simplistic. Obviously, it’s not the way it’s going to happen, but
you’re going to take out a foot and a half in the upper level and move everything back.
MR. LAPPER-That’s right, move the stairs back and then put more pavers in, extend the patio.
MR. STONE-Okay. We’ll continue the public hearing, if we have no further questions from the
Board. All right. Anybody wishing to speak in favor of this application at this particular point in
time? New information that may not be on the record? Anybody wishing to speak opposed to this
application, which now requires a variance, a request for eight and a half feet of relief, an additional
eight and a half feet of relief from the additional relief that was given.
MR. BROWN-Previously they granted a 45 foot setback. So they gave you five feet before.
MR. STONE-We gave five feet, and we’re giving another.
MR. BROWN-Eight and a half.
MR. STONE-Another eight and a half.
MR. BROWN-So it’s a total of 13 and a half.
MR. STONE-Yes, 13 and a half.
MR. LAPPER-I was just looking at the as built, and the as built shows 48 feet to the house.
MR. BROWN-I used this number to come up with the relief you’re asking for, if you’re pulling it
back a foot and a half.
MR. LAPPER-I think that what’s correct, because this shows 48, and if we go out six and a half plus
eighteen times three, that it would actually be less. I was starting at 45, and I think, based upon this,
we should start at 48.
MR. STONE-Well, the deck is going out three and a half plus six and a half. It’s going out 12 feet
from the house.
MR. LAPPER-Three and a half plus six and a half.
MR. STONE-Well, you’ve got the three steps, four and a half feet for the steps. Four and a half plus
six and a half.
MR. LAPPER-Is 11 feet.
MR. STONE-Yes.
MR. LAPPER-But I think we’re starting at 48 rather than 45. That the house is actually three foot
back farther.
MR. STONE-Mine says 48.
MR. LAPPER-Right, but the variance said 45.
MR. STONE-Okay.
MR. LAPPER-That was something that only dawned on me today.
MR. STONE-Okay. We just need to come up with a number when we get ready to make a motion.
It’s approximately.
MR. LAPPER-This is the as built that shows 48.
MR. STONE-Forty-eight, and we’re going out six and a half and four and a half. So that’s 11. So
we’re going down to 37. So it’s 13 feet of total relief from the Ordinance.
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(Queensbury ZBA Meeting 5/24/00)
MR. LAPPER-Thirteen feet from forty-eight, but you’ve got to count from 45, because that’s the
variance. You allowed three feet.
MR. STONE-We allowed three feet. You’re allowed, 50 feet is the normal.
MR. LAPPER-But the variance is to 45 feet.
MR. STONE-Is to 45, okay.
MR. LAPPER-And the house is actually back to 48.
MR. STONE-Okay. So it’s three plus four and a half, three plus eleven.
MR. MC NULTY-It’s 13 feet of relief from 50.
MR. STONE-You were at 48. You had three feet of relief on the other thing. So that’s 45. You’re
going to go out, from the 45, you’re going to take off.
MR. LAPPER-No, we’re going to go out from the 48, because the house is at 48.
MR. STONE-Okay.
MR. LAPPER-So from the 48, we’re going the deck six and half.
MR. STONE-You’re going out six and a half and four and a half. You’re going out 11.
MR. LAPPER-Right, which would be 37.
MR. STONE-Thirty-seven. So we need eight feet more of relief.
MR. LAPPER-Right.
MR. STONE-Okay. I’ll buy that. Okay. Now I’ll go back to anybody wishing to speak against this
particular application? Against? Any additional letters in there?
MR. MC NULTY-The same letter in here, but I think we read it.
MR. STONE-Okay.
PUBLIC HEARING OPEN
NO COMMENT
PUBLIC HEARING CLOSED
MR. STONE-Do we all understand, they’re asking for an additional eight feet of relief, and the deck
will be from the house to the bottom of the step closest to the lake will be 11 feet from the house, or
37 feet from the lake, total, but five of that was already granted. So we’re talking eight.
MR. ABBATE-A couple of questions here, just so I can follow this thing. Now, the applicant
initially, what I have here, requested to maintain a 34.9 foot shoreline. Is this still accurate?
MR. LAPPER-No, because I think I was off by three feet.
MR. ABBATE-Okay. So what are you maintaining right now is the?
MR. LAPPER-Thirty-seven feet.
MR. ABBATE-Thirty-seven feet. Okay. You also indicated shoreline setback in lieu of the 45 foot
setback. That remains the same, as far as the Area Variance 5-98?
MR. LAPPER-That’s what’s allowed.
MR. ABBATE-Okay. That would remain the same. Okay. Then on the bottom here in Paragraph
Three, you are now only requesting an additional eight foot of relief from the forty-five foot setback,
correct?
MR. LAPPER-Correct.
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MR. ABBATE-Okay. I think my math came out okay.
MR. STONE-Any other questions of the applicant? If there’s no other questions, Norman?
MR. HIMES-Yes. I think this is quite unusual, and I think the applicant has made a bonafide effort
to reduce the impact of the mistakes that were originally made by the architect and/or contractor or
both. They were out of his control, and the same thing I think could have happened to many of us
here, thinking everything’s all right, and then finding out, when it’s all done, that it isn’t all right, and
then we send them back to do a little bit of revision, and they have done it, and I think it’s kind of in
keeping with the thing above, if it’s called a balcony or whatever that comes out the back there. So
there’s some symmetry there, and it looks good, and certainly the general neighborhood thinks it’s a
great addition to the property. So I tend to favor the application.
MR. STONE-Okay. Chuck?
MR. ABBATE-Yes. I would agree with Norm. I don’t have a problem with this. Mr. Polonsky has
been flexible, has been under the gun, and everything else, and he’s come back with some
modifications, and as far as I’m concerned, they’re reasonable, and I certainly don’t have a problem
with it.
MR. STONE-Al?
MR. BRYANT-Well, I didn’t have a problem with it in February at 10 feet, and I certainly don’t have
a problem at 8 feet. So I’d be in favor of it.
MR. STONE-Okay. Roy?
MR. URRICO-I’m satisfied that everything is in order.
MR. STONE-Chuck?
MR. MC NULTY-Well, I’m not as happy with it as the rest of the Board, but you know it was a
tough thing for the applicant. Maybe it wasn’t within his control, but on the other hand it should
have been, but having said that, given the current situation, it strikes me that to require him to pull
back to the 45 feet that was allowed before is going to leave a worse situation than what he’s
proposing now, and I’ll agree probably at this point trying to regrade the whole yard to solve the
problem would be a worse solution than what’s being proposed. So I’ll reluctantly go along with it.
MR. STONE-I certainly agree with, in terms of the bottom line, with the rest of the Board members.
I’m more in line with Mr. McNulty, but I do applaud the applicant for listening to us. I mean,
obviously we don’t like to be tough guys. We don’t like to make people do things that probably we
wouldn’t like to do either, but nevertheless, we do have to respect our zoning. We have to respect
the lake, all water bodies in the Town, we’re particularly concerned about them. I think the
willingness of Mr. Polonsky to make these changes, which obviously will be at no small expense, and
I hope he can recover them in some manner from one of the parties, but that’s up to Mr. Lapper and
other people, but having said that, I certainly think that the concession made by Mr. Polonsky is
commendable and obviously necessary as far as we’re concerned, but nevertheless, I applaud his
willingness to do it, and with that, I will call for a motion to approve this application.
MOTION TO APPROVE AREA VARIANCE NO. 14-2000 JOSEPH & NANCY
POLONSKY, Introduced by Norman Himes who moved for its adoption, seconded by Allan
Bryant:
Assembly Point. Applicant has constructed an open deck closer to the lake than a previous variance
allowed and seeks relief to maintain the deck. Relief required, applicant requests to maintain a 37
foot shoreline setback in lieu of 45 foot setback granted as part of Area Variance 5-98. Also, since
the existing structure does not comply with the setback requirements, relief for the expansion of a
nonconforming structure is required. The benefit to the applicant, the applicant would be permitted
to maintain additional outdoor recreational area. Feasible alternatives. Feasible alternatives, as
originally stipulated here, would have included a smaller proposal. The applicant has modified the
construction of the deck and minimized the encroachment so that alternative was used. Is the relief
substantial relative to the Ordinance? An additional eight feet of relief from the 45 foot setback
previously granted may be interpreted as moderate to substantial, technically speaking, but from
everyone who has seen it and viewed it, this does appear to fit in nicely, visually and environmentally.
Effects on the neighborhood or community? Minimal to moderate effects on the neighborhood may
be anticipated as a result of this action. In fact, we have correspondence in the file from several
neighbors voting in favor of this application. Is the difficulty self-created? Indirectly, yes. However,
the problem was caused as a result of architectural and/or construction agents of the applicant who
precipitated the problem that we’re all here to talk about today. Minimal to moderate impact may be
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(Queensbury ZBA Meeting 5/24/00)
anticipated as a result of this action. The low, near ground level deck may present a more significant
impact with the construction of a railing as necessary per New York Building Code.
Duly adopted this 24 day of May, 2000, by the following vote:
th
AYES: Mr. Bryant, Mr. Urrico, Mr. McNulty, Mr. Himes, Mr. Abbate, Mr. Stone
NOES: NONE
ABSENT: Mr. Hayes, Mr. McNally
MR. LAPPER-Thanks very much.
MR. STONE-Thank you.
JOE POLONSKY
MR. POLONSKY-Thank you for your patience, gentlemen.
NEW BUSINESS:
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
STAFF INPUT
Notes from Staff, Area Variance No. 43-2000, Michael Ginsberg, Meeting Date: May 24, 2000
“Project Location: Old Assembly Point Road Description of Proposed Project: Applicant
proposes construction of a 5,500 square foot single family dwelling. Relief Required: Applicant
requests relief to construct a second principal building on one lot. §179-12, C. (5) allows
construction of one single family home per lot, regardless of lot size. Criteria for considering an
Area Variance according to Chapter 267 of Town Law: 1. Benefit to the applicant: Applicant
would be permitted to construct and utilize two single family dwellings on the same lake front
property. 2. Feasible alternatives: Feasible alternatives may include removal of the existing camp.
3. Is this relief substantial relative to the ordinance?: A second single family dwelling, where
only one is permitted may be interpreted as substantial relief, (100%). 4. Effects on the
neighborhood or community: Moderate to substantial effects on the neighborhood may be
anticipated as a result of this action. 5. Is this difficulty self-created? The difficulty may be
interpreted as self created. Parcel History (Construction/Site Plan/Variance, etc.): Area
Variance 100-1993 res. 11/17/93 Building Permit 99/527 issued 8/23/99 demolition permit
Staff Comments: Moderate impacts may be anticipated as a result of this action. Apparently, there
were previous structures located on the property in the same general area as the proposed home.
Based on information in the demolition permit, the applicant intended to replace the demolished
building with another, however, no plans for construction were submitted for approval at that time.
Per §179-76, E.; lots listed in the application shall be considered as one for zoning purposes.
Further, consideration may be given to the interdependence of the lots and consolidation should be
required. SEQR Status: Type II”
MR. MC NULTY-“Warren County Planning Board Project Review and Referral Form May 10, 2000
Project Name: Ginsberg, Michael Owner: Michael Ginsberg ID Number: QBY-AV-43-2000
County Project #: May00-28 Current Zoning: WR-1A Community: Queensbury Project
Description: Applicant proposes construction of a 5,500 sq. ft. single family dwelling and seeks relief
for the construction of a second principal building on a lot. Site Location: Old Assembly Point
Road, bottom of hill, left and right side of road Tax Map Number(s): 5-1-27 5-1-28 5-1-40 Staff
Notes: The application notes that the main house on the property was demolished last summer.
There is an existing remaining camp that the applicant could move to the adjacent parcel (tax map
number 5-1-27), also owned by the applicant. However, the applicant would rather leave the
adjacent parcel as open space and place septic fields for the camp and proposed house on that
property. Staff does not identify any impacts significant at the county level. County Planning Board
Recommendation: No County Impact” Signed by Terry Ross 5/12/00.
MR. STONE-Introduce yourselves, and then I have a question.
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MR. HOWLAND-I’m Dean Howland. I’m the agent for the owner.
MR. STONE-Okay. Question. What’s the situation with the septic system?
MR. HOWLAND-As far as what?
MR. STONE-Is it approved to put it across the street? I understand that that determination has not
yet been made.
MR. HOWLAND-Well, Dave Hatin came to me two weeks ago, not quite two weeks ago, after all
the applications were filed, and said, there is a drainage ditch, or a drainage, there’s manholes on
either side of the street, and where they go, we don’t know. There’s a pipe. We don’t know who put
it. There’s nothing in the deed on my owner’s property, and we’re not sure where it goes. I’ve
provided all the information to engineers during this time, and because of the Memorial Day
weekend, both of them said, I don’t see why you can’t do it, but they just did not have the time to get
it in there, in until this time.
MR. STONE-Well, I am told by Staff that if we don’t have this resolved, we cannot hear this
application at this time.
MR. HOWLAND-I have room across the road.
MR. STONE-Well, we’re talking across the road.
MR. HOWLAND-No. I’m sorry, on the first parcel. See, you’ve got three deeded parcels there.
MR. STONE-I understand.
MR. HOWLAND-And I know the Town now, afterwards, they said they’d consider it as one, but I
could put a septic system for the house on that side of the road. Also, there’s room for it on the
opposite side of the road, away from, which is closer to the lake, but away from that. The owner, we
can agree to one thing. If they require an engineered leach field, because of this drainage ditch or
drainage manhole, which nobody really knows what it is, we’d be willing not to do anything until
there is an engineered plan. I’ll go along with that but the object is if we can’t do anything, then
that’s sort of moot, because we’ll just take the camp down and put the leach field on the lot where
the house would go.
MR. STONE-But do we know that the septic system can go on the lake side property? Is that an
approved area?
MR. HOWLAND-Yes. We’ve done all the perc tests. What I did was the leach field that that was
designed, it’s a three bedroom house. The cottage, as it exists, has its own leach field. What is it I’m
not sure. There is 800 square feet above a garage in an attic area that’s open, that I included, and
that’s included in the 5500 square feet, that nothing’s being done with. When this owner sells his
property some day, somebody probably will do that. So I designed a septic system that would
increase the existing three bedroom house up to four bedrooms. There would only be one more
bedroom because the angles of the roof are so steep, and then I took into account the cottage with
two additional bedrooms, if it was left. So I designed the septic system under the Queensbury
guidelines, based on the percolation tests that was done with one of the Building Inspectors. There
was a percolation test done prior to the owner buying the piece of property. I was also told in a
letter, too, that there was a variance granted for this prior to that time. It never happened. It was
just a letter that I have in my file. So everybody assumed that there was a variance already, until we
came to get the building permit. Quite obviously there wasn’t. So the percolation test and all the
setback requirements on the parcel that’s across the road from the existing houses, meets all the
Town of Queensbury requirements, as it’s designed and shown on my prints and application. Dave
Hatin came and said there is a drainage ditch, what is it? I said, I don’t know, and we’ve been up
there. Nobody knows. So I just talked to Craig and said, well, maybe the Town put it in, but it’s on
this person’s property. We’d just take it out. That’s all.
MR. STONE-Well, just keep in mind that if we were inclined, after this hearing, to grant this
application, and have two houses, I would certainly insist that it be conditioned that we have a
system, that new system that would handle both structures, without question.
MR. HOWLAND-Okay. The system that’s shown on the building permit will handle both
structures plus future bedrooms.
MR. STONE-Okay. I just wanted to make that very clear.
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(Queensbury ZBA Meeting 5/24/00)
MR. HOWLAND-But there’s also room behind where the structure would go now, where that area
has enough room on the, where we want to build the house, that area has enough room to put a
septic system.
MR. STONE-Okay.
MR. BROWN-The New York State Health Department requires that systems for residential
construction, for all construction, to be designed by a P.E., and that’s what we’re trying to get from
Mr. Howland is that confirmation, either in letter form or design form, that shows the system that’s
designed is for X number of bedrooms and it’s going to fit on the property, and meet all the
setbacks. That’s the information we don’t have yet.
MR. STONE-Okay, and as Staff, you’re suggesting that we don’t hear it until we have that?
MR. BROWN-Historically, the Planning Department and the Zoning Board has liked to see and
required to see a compliant system on the property some place, prior to hearing the application, to
assure that it doesn’t need a septic variance, or we’re not going to get the cart before the horse kind
of thing. You can, certainly it’s been advertised. You can do a public hearing. You can get some
information from the applicant and give them some direction. I don’t know if you want to make a
decision on it, though.
MR. HOWLAND-Can I state one thing, too. I only build in Lake George, and I built five or six
homes a year. One out of those six homes a year we might have to get an engineer, usually on a
Wisconsin Mound. I’ve never gotten an engineer for a leach field, and I built about three houses in
the Town of Queensbury, last year, that were larger than this one, and I didn’t have to get an
engineer for anything to get a building permit.
MR. STONE-I have to be guided by Staff, as the people who live with this day in and day out.
MR. HOWLAND-I know, but it’s not a requirement for that, the Board of Health or an engineer
stamp a residential septic system. Because I don’t have to do that to get a building permit.
MR. BROWN-It is a requirement. The Town of Queensbury’s Building Department has historically
been flexible with that requirement. Is it feasible to ask somebody to get a $2,000 designed system
for a straightforward gravity system, the Department, the Building Department’s been flexible in that
requirement. It’s always been a requirement. They haven’t always required it, but it’s always been a
Health Department requirement that they do that, and especially in this case where there’s a question
of groundwater and drainage ditches and those types of things that Mr. Howland is referencing.
MR. HOWLAND-Yes, but the groundwater’s not a problem.
MR. STONE-Okay. We can do this. I’m willing to go through the up front work, the public
hearing, but I have to state that I will table it, at that point, to be sure that we have a compliant septic
system, because this is, I don’t want to modify unique, but it’s quite unique, in the fact that putting a
second house, it flies in the face of our Ordinance, which is going to require a great deal of thought
on our part before we’d even consider granting it, I believe, but having said that, I think we need to
have this, and if you’re willing, you’re here, we can go through to the end of the public hearing. I can
keep the public hearing open and table it at that point.
MR. HOWLAND-That’s what I just asked for. It’s going to be forthcoming, because the engineer is
doing it.
MR. STONE-It’s not here.
MR. HOWLAND-They just didn’t, I was notified too late that we needed anything. Again, because
this was all done, all the perc tests and everything were all done by Town.
MR. STONE-Mr. Howland, all I’m saying is that I am willing to spend the time to get through the
public hearing, because there may be people here who have come for this particular hearing, but after
that, I will table it. I will seek a tabling motion from the Board, because we do not have what Staff
tells me is required.
MR. HOWLAND-One other question. Would that mean that I would have to come back one more
time?
MR. STONE-Yes, it does mean that.
MR. HOWLAND-All right. Okay. That’s what I’m asking.
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(Queensbury ZBA Meeting 5/24/00)
MR. STONE-Okay. Having said that, we will start, knowing that we’re going to come to a halt at
some point, but tell us what you want us to know, about the application.
MR. HOWLAND-The application basically is to build a house in the vicinity of where the old main
house was, and besides doing that, we took out all the existing septic systems, and tried to put them
across the street on what the owner thought was a separate deeded lot. Well, it is a separate deeded
lot, and that’s basically our request.
MR. STONE-Does the applicant recognize the Town’s insistence that these be considered as one lot
for building purposes?
MR. HOWLAND-Again, he went through, I got involved after he bought the property, but he
bought two specific lots and there’s a sliver. There’s three deed lots, and he bought it as a separate
lot, not to do anything with it, but quite obviously, he does not understand that, because it is a
separate deed. He pays taxes on it. When I came to the Town for the building permit, they said,
well, we’d like to combine the lots, but since Warren County counts this as three deeded lots, you’d
have to go and request that they combine them into one lot, and he had no problem with that.
MR. STONE-Okay, because they’re three nonconforming lots. That’s why they have to be one.
MR. HOWLAND-No. They have two lots that conform.
MR. STONE-Are they one acre lots?
MR. HOWLAND-Okay. I’m sorry, one acre or less. No, but they were pre-existing lots.
MR. STONE-But they do not conform.
MR. HOWLAND-Okay, to the new zoning, okay.
MR. STONE-That’s all.
MR. HOWLAND-Okay. I understand.
MR. STONE-Okay. Any questions of Mr. Howland at this point?
MR. ABBATE-Yes, please. Mr. Howland, you’re referring to Lot 5-1-28 as one and 5-1-27 as the
other?
MR. HOWLAND-Correct.
MR. ABBATE-And the 5-1-40 is?
MR. HOWLAND-It’s just a sliver on, it’s actually borders Assembly Point Road.
MR. ABBATE-And 5-1-27 is separated from 5-1-28 by Assembly Point Road?
MR. HOWLAND-Yes, Old Assembly Point Road.
MR. STONE-No, the new Assembly Point Road.
MR. HOWLAND-Well, it’s got Old Assembly Point Road on the street sign up there.
MR. STONE-Apparently it goes across both roads.
MR. HOWLAND-I brought the survey map, and I gave that to Craig. So I don’t, I have just my
drawings here.
MR. ABBATE-And you are aware, of course, that WR-1A requires at least one acre, each principal
building?
MR. HOWLAND-That’s correct.
MR. ABBATE-And is 5-1-27 one acre?
MR. HOWLAND-It’s shown on that drawing. I don’t have, the information, I gave you the only
map I had.
MR. ABBATE-Craig, is 5-1-27 one acre?
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(Queensbury ZBA Meeting 5/24/00)
MR. BROWN-I would say no.
MR. ABBATE-Is 5-1-40 one acre?
MR. BROWN-No.
MR. ABBATE-Is 5-1-28 one acre?
MR. BROWN-No.
MR. STONE-No, none of them are.
MR. ABBATE-I just want it on the record. Thank you very much.
MR. STONE-But the total acreage is this 1.51?
MR. HOWLAND-It’s 1.51 plus 140.
MR. STONE-Okay. It really is a sliver. Just out of curiosity, Craig, I mean, that sliver of lot is not
contiguous to his property. The road is not on his property, regular Assembly Point Road. Correct?
MR. BROWN-Correct.
MR. STONE-Yes, okay. I mean, that little sliver, I don’t know what it comes into play about.
MR. HOWLAND-I don’t, either, but it’s there.
MR. STONE-Okay. Any other questions of the applicant?
MR. HIM ES-When, for building purposes, these three lots are consolidated, so to speak, then what
would be the argument against just relocating that shed across the street? There’s not much to it.
MR. HOWLAND-There was an option to do that, but we were just trying to keep the neighborhood
as it was before, and we’re actually trying to put the leach field at the furthest part away from the
lake. That’s the only reason that was designed that way. There is no, if you wanted to have it moved
across the road, because he felt that, he bought it as a separate lot.
MR. HIMES-Thank you.
MR. STONE-But it’s not a separate lot. It still requires a variance.
MR. HIMES-So it’s still one principal residence.
MR. STONE-Right.
MR. HIMES-Okay.
MR. STONE-It still requires a variance.
MR. BRYANT-Craig, even if those lots were combined into one lot, it would still require a variance
for the second building, is that correct?
MR. BROWN-Yes.
MR. STONE-I mean, as far as we’re concerned, it’s one lot, and we’re considering whether there
should be two principal residences on it, wherever they’re located.
MR. HOWLAND-If we’re allowed to move the little camp across the street, where I have the leach
field, then that would need a variance because it’s not larger than an acre. It’s a substandard. I mean,
that’s what it would need a variance for.
MR. STONE-You certainly would need, yes.
MR. HOWLAND-Because technically it is two lots, but you want to be able to combine, I
understand you want to be able to combine them, but it is two lots.
MR. STONE-If we moved it, it would have to be, it would be a self contained lot. It would require a
variance because it’s not an acre lot, and it would require a conforming septic system of its own on
that property, and one on the other property.
10
(Queensbury ZBA Meeting 5/24/00)
MR. BROWN-That’s correct.
MR. HOWLAND-And that’s, and none of those are a problem.
MR. BROWN-That’s not what’s presented tonight.
MR. STONE-That’s not what’s presented. Okay.
MR. HOWLAND-That was just an option.
MR. ABBATE-Craig, do you know of any other second principal buildings on one lot?
MR. BROWN-That the Board has reviewed, or in existence?
MR. ABBATE-In existence.
MR. HOWLAND-Old houses next store, adjacent to it, have that.
MR. BROWN-I’m sure there are a number of them up in that area.
MR. ABBATE-Okay. Thank you.
MR. HOWLAND-I think up the street, I think the next three houses up the hill.
MR. STONE-Right. This came about because he took the house down with no contingency to build
at that point in time.
MR. HOWLAND-Well, we were told that it wasn’t, again, everybody thought the variance was
granted, even the Building Department at that time.
MR. STONE-Okay. Any other questions? Let me open the public hearing. Anybody wishing to
speak in favor of this application? In favor? Anybody wishing to speak opposed to this application?
Opposed? Any correspondence?
PUBLIC HEARING OPENED
MR. MC NULTY-Yes. There’s one record of phone conversation
PETER BROTHERS
MR. BROTHERS-My name is Peter Brothers, and I represent my parents John Theodore and Noelle
Catherine Brothers, residents at 12 Tall Timbers Road, which are three doors just to the south of the
new owners, Mr. Ginsberg and his wife. Just on the advice of my parents, who are unfortunately not
able to be here this evening, we just wanted to make sure that, from an aesthetic standpoint,
architecturally speaking, that this house would be a nice addition to the neighborhood, specifically
speaking not like a sore thumb, say like the former next door resident, Mr. David Kenny, who clear
cut his property and built up this huge box structure, similar to Carl McCall’s, I believe that’s his
name, Tire Warehouse guy, a few doors down, who also clear cut his property. However, we would
welcome this addition if it were to conform to the natural surroundings. That’s all that we really ask,
and we are also concerned, as are many lake side residents, I’m sure, of the increase in property taxes
along the lakeshore. I’m sure that many of you that have children and grandchildren and future
Great grandchildren who would, I’m sure, would love to enjoy what we now enjoy, which is a
beautiful lake, and we definitely just don’t want that to be compromised in the future. I’m,
personally, in favor of this building because I know that if it were me, myself, I would love to do the
same thing, and would voice no objection, but just raising those concerns.
MR. STONE-Just a question. If we approve this, when we do, does this go to Site Plan because of
the nature of it?
MR. BROWN-It’s not required. You can certainly refer, if you want to, for specific reasons, but it’s
not required to.
MR. STONE-Yes.
MR. BROWN-With the second principal on one lot, that might be.
MR. STONE-Might be something we want to do.
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(Queensbury ZBA Meeting 5/24/00)
MR. BROWN-Might be something about.
MR. STONE-Okay, but that will not be tonight, because we’re not going to go any further. Okay.
Thank you. I appreciate the thought. It’s in the record, and we will talk about that when the time
comes.
MR. BROTHERS-Thanks very much.
MR. STONE-Okay. You’ve got something there?
MR. MC NULTY-Okay. Record of Phone Conversation between Raymond Shirvell and Craig
Brown, dated May 24, 2000, regarding Tax Parcel 5-1-32 “Mr. Shirvell has two concerns: Will the
proposed septic system have an adverse effect on the future development of his vacant land? RE:
separation distances between wells and septic? Highway Department stormwater collection devices,
where do the devices in the area discharge the collected stormwater?”
MR. STONE-That’s what Mr. Howland wants to know, but at least he identifies them as Highway
collections devices.
MR. MC NULTY-That’s the extent of that conversation.
MR. STONE-That’s the extent. Okay. I’m going to cease the public hearing at this point. We’ll
leave it open, but on the basis of advice from Staff, I’m going to table this until we have an approved
septic system.
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 this 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 May, 2000, by the following vote:
th
MR. BROWN-Do you want information about the stormwater devices that Mr. Howland had
questioned, or do you not need to know that? It’ll probably be addressed in the engineering report.
MR. STONE-Okay. Then 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.
MR. HOWLAND-Is this the road stormwater management?
MR. STONE-Yes.
MR. HOWLAND-The two drywells that are sitting there?
MR. STONE-Yes.
MR. HOWLAND-We just have to find out who put them in.
MR. STONE-Yes.
MR. BROWN-The ones that you’re concerned about, what they are, if there’s a pipe between them,
if it’s going to go through that area.
MR. HOWLAND-That’s a big road.
MR. STONE-Try your best.
MR. HOWLAND-If the engineer’s not done with this by next Wednesday, I have to wait another
month?
MR. BROWN-Well, there’s probably some flexibility on when we can take the information. It’s not
going to have to be resubmitted to the County.
MR. STONE-Obviously, we don’t want to push you back too far. If you can get this information in
a reasonable length of time.
12
(Queensbury ZBA Meeting 5/24/00)
MR. HOWLAND-If it wasn’t the two weeks before Memorial week, there wouldn’t have been any
problem. He just didn’t have the time.
MR. STONE-Okay, but we do have to make sure that it’s advertised, that it’s going to be back on the
agenda. Okay.
AYES: Mr. Abbate, Mr. Bryant, Mr. Urrico, Mr. McNulty, Mr. Himes, Mr. Stone
NOES: NONE
ABSENT: Mr. Hayes, Mr. McNally
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 APPLICANTS, PRESENT
STAFF INPUT
Notes from Staff, Use Variance No. 44-2000, Kathyrn Peaslee Peter Liapes, Meeting Date: May 24,
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: Please see the enclosed November 10,
1999 letter from Chris Round, Zoning Administrator to Kathryn Peaslee. 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. This difficulty may be best addressed by
a petition for a zoning change. A zone change would afford the property more lenient setback
requirements, assuming the proposed change would be to SFR-10. The setbacks depicted on the
applicant’s April 24, 2000 map, prepared by Van Dusen & Steves are those required by the SFR-10
zone, not the HC-1A zone. Also, the lot configurations shown on the applicant’s map are similar to
but not the same as conveyed in the deed description supplied. Further, as shown on the original
subdivision map, the lots in question were created and represented as “PLAY AREA” for the
subdivision. Should this original restriction on the property be maintained, similar to the referenced
“no commercial” restriction? A Use Variance granted for tax parcel 72-5-12 would include lands
fronting on Aviation Road, and would not be recommended. SEQR Status: Type: Unlisted”
MR. STONE-Would you read the November 10, 1999 letter. It’s attached to the Staff Notes.
MR. MC NULTY-Okay. The November 10, 1999 letter from Chris Round to Mrs. Kathryn Peaslee,
“This letter is in response to your inquiry regarding tax parcel 72-5-12 located on Greenway Drive in
the Town of Queensbury. My apologies in the delay to your request. The details regarding the
property history are somewhat complex. Background The northern portion of the lot in question
is shown on a map entitled “Map of 2 Subdivision Glen Acres, Town of Queensbury, NY Tom
nd
Rodgers Owner” prepared by G.C. Tripp dated July 1953. The map was recorded in the Warren
County Clerk’s Office February 11, 1954 and displays the seal of the NYSDOH dated October 5,
1953. This portion of the lot is identified as a “Play Area” on the filed subdivision map. The
southern portion of the lot is occupied by a multi-family residence and fronts on Aviation Road. The
parcel in question is zoned Highway Commercial (HC-1A) and you propose to site additional homes
on the site or sell the property for commercial use. A deed provided by Bob Sears (Book 447 page
132) dated October 16, 1964 indicates there are three (3) parcels which comprise the northern
portion of tax parcel 72-5-12. The deed dated October 16, 1964 describes three lots separately and
13
(Queensbury ZBA Meeting 5/24/00)
the portion fronting on Aviation Road is not contained in the description of the record. Deed
restrictions on the property limit your ability to site businesses on the northern portion of the parcel.
Determination It is my opinion that subdivision of the property is required to permit the siting of
additional residences. Additionally, a use variance or change of zone is first required to proceed with
the proposal to subdivide the property. The change in zone is recommended as part of the Town’s
1998 Comprehensive Plan (enclosed). The designation of the land as a “play area” is a concern that I
cannot resolve at this time. I hope this information is helpful in assisting you in your evaluation of
future use of the property. As discussed, consultation with a land development professional may also
be of assistance. Sincerely, Town of Queensbury Chris Round Zoning Administrator Director of
Community Development”
MR. STONE-Mr. Lapper.
MR. LAPPER-Good evening. For the record, Jon Lapper, and with me is Matt Steves, Licensed
Land Surveyor with Van Dusen and Steves. To first address the principal case for the Use Variance,
we all know that the standards for a Use Variance in New York, for lack of a reasonable financial
return, is always a tough lift, in terms of establishing that. When I submitted this, I saw this as the
easiest possible Use Variance case. Craig mentioned in his notes that we didn’t submit financial
information, and this is the one case where I don’t think financial information is required to be
submitted because if the covenants went on in 1953, as I submitted them to you, saying no business
of any description shall be conducted upon said premises, and the Town has rezoned the property to
Highway Commercial, by definition, you can’t get any reasonable return because, under the Town
law, you’re only allowed to use it for commercial, and under the covenants you’re not allowed to use
it for commercial. So I think that it’s an extremely straightforward case there. In terms of the impact
on the neighborhood, we’re all aware of the background in this neighborhood. When a restaurant
wanted to site on an adjacent vacant parcel, and to put three residential lots that are the same or
similar size to the residential lots in the subdivision seems like a perfect answer here, rather than to
try and do something to put some commercial use on the property. In terms of the history of the
parcel, the applicants, Liapes and Peaslee, are the children of Mr. Liapes, who recently passed away.
So through the estate, it was transferred to them, and I was asked to handle the land use portion of
this by their attorney, Bill Bacas, who’s representing them on the estate portion of this, to get some
use out of this, and in fact they have a contract from Tony LoCasio to purchase the land if the Use
Variance is approved, so that he can build three homes. Craig correctly pointed out in his notes that
because it would still, the underlying zone is still Highway Commercial, once, assuming this is
approved, and then they determine what houses they want to build, we would still have to come back
for Area Variances, once we know what the footprint of the house is going to be, and what Matt
designed is to show you what the footprints would be in the SFR zone that all of the other houses
are in, which would be compatible, and we would need an Area Variance because the Highway
Commercial zone has much larger setbacks required. So that would be a separate issue, once we
know what the footprints are going to be, but that would be an issue for another day. It was only
today, when I got Craig’s notes, that I learned of the subdivision map from 1953 having play area,
and he included a copy in his notes, and Matt and I tried to research this today, and it wasn’t until a
few minutes ago that we called Matt’s dad, Leon, who’s been surveying all of Warren County for the
last 116 years or so, and Leon, all knowledge starts with him, or at least whenever I have a question,
what he said is that, and what it actually shows on the map, is that there was an underground
telephone cable easement on the site, and if you look at the map that Craig included, on the last Lot,
Lot One, which was not included in that play area area, the footprint or the building location of the
house, is just inside of the easement, because the easement is on a diagonal, and what Leon told us,
without having this before him, just from his knowledge, was that that’s the reason why it was not
buildable and why they said play area. So we don’t know the history of any of that, but obviously, it
was never an active play area. It was a passive play area, because nothing was ever constructed on
there, as far as any of us know. So I don’t think that that’s a problem, but in any case, in terms of
your determination, I think it’s, just focusing on the Use Variance, the issue is pretty straightforward
as to whether they can get a reasonable return and whether there’ll be a negative impact on the
neighborhood, and we would propose that we’ve established that, and I’m here, and especially Matt,
for any questions about the subdivision. The last issue, in terms of whether or not it needs
subdivision approval, we have the deed, which I submitted, which Chris referenced in his letter and
Craig referenced in his notes, that when it was transferred, there were three lots. So I don’t know at
what time the County Tax Map Office combined them, but we will maintain that they are still three
separate lots, and in the event that we’re wrong, we’ll go talk to the County, but in the event that
we’re wrong, that would, of course, require subdivision approval from the Town, but that’s also really
an issue for the Planning Board if that’s required. So, I think, for you guys, it’s fairly straightforward,
and please feel free to disagree.
MR. STONE-Well, question first. You maintain that the forward property, the southernmost lot of
where that house is, which has a For Sale sign on it, or is that, what is that for? Is that part of this
property?
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(Queensbury ZBA Meeting 5/24/00)
MR. LAPPER-It is not part of the application. It is all owned by the same family, the same estate,
but because we believe that there are three separate deeds, we believe that that is subdivided. I’m
sorry, four separate deeds, and that that is a separate parcel, and that that would be appropriate as a
Highway Commercial use. It would require a buffer between the uses, of course, but that that would
be an appropriate commercial use because it’s next to the motel, but that these are not appropriate
commercial uses because they’re next to residences.
MR. STONE-So, just for the record, you’re saying there are four lots on this, well, it’s not an
undeveloped parcel. There’s the house, the overgrown lot on the south side, plus three lots. You
maintain there are three subdivided lots there.
MR. LAPPER-Yes, and we hope that we’re right, but yes, we maintain that there are, because we’ve
read the deed, and the deed has separate lot descriptions.
MR. STONE-And Staff is concerned.
MR. LAPPER-Well, Staff is correctly looking at the tax map and saying the tax map shows one lot.
We didn’t look at the tax map, because we had these deed descriptions, but sometimes over the last
47 years, the County Tax Map Department could just combine something that’s in common
ownership, but these days, in order to do that, you’d have to submit an application, fill out a form,
and say you wanted that to be done. So certainly we’ll go up to the Tax Map office and say, tell us
when these were combined, why were they combined, we don’t think they should be combined, and
based upon these deeds, we’d like them not to be combined, and we’d like you to assign separate tax
map numbers. If there’s some information that we’re not aware of, that requires a subdivision, that’s
separate and apart from the use issue that’s before you.
MR. STONE-But as far as Staff is concerned, there are four lots, all four lots are one. Am I being
correct? Or are we saying that southernmost lot is, in fact, separate?
MR. BROWN-They’re all considered under one tax map number right now. There appear to be four
different deed descriptions to four separate parcels.
MR. STONE-Okay.
MR. BROWN-But they’re all considered under parcel 12 right now. So the building out on Aviation
Road is technically part of this application. It’s listed on the parcel that’s listed on the application.
MR. LAPPER-We’re only asking for the variance on the northern part of the lot that we believe to
be subdivided, but in terms of the use, it’s certainly not uncommon that you’d have a use, because
use lines don’t always go, zoning lines don’t always go with property lines. So it’s not.
MR. STONE-Well, you don’t divide a lot and say half of it you can do this and half of it you can’t.
MR. LAPPER-A lot of times you do, because when the zoning code is done, it’s not always done at
property lines.
MR. STONE-I understand.
MR. LAPPER-We can point to situations that we’re aware of in Town, but we also, since we’ve
submitted the deed that has those separate parcels, our position is that that’s the proof.
MR. STONE-I understand your position.
MR. LAPPER-We don’t disagree, actually. It’s a question of what the impact is.
MR. BROWN-Procedurally it might be easier if we can figure out if they’re separate lots and they’re
going to have separate tax map numbers, and then amend an application to show just those lots, and
not the rest of it.
MR. STONE-You’re suggesting, not now? Can we make that determination?
MR. BROWN-You can certainly ask for more information.
MR. STONE-Well, I meant we can ask for more information. That’s what I’m saying. Yes. We can
ask for a clarification of this particular situation.
MR. BROWN-Before you make a determination.
MR. STONE-Yes.
15
(Queensbury ZBA Meeting 5/24/00)
MR. STEVES-Okay. Yes, right now as far as the County Tax Mapping is concerned, it is one lot.
Actually John B. Van Dusen, not Van Dusen and Steves, did a survey for George Liapes on the .83
acre parcel, which is on the Aviation Road side, which would be the southerly port of this property in
question, in 1964, and on the northerly boundary of that, he shows the southerly bounds of this
second subdivision of Glen Acres. In 1965, it was be almost a year to the day later, we did a survey
for Mr. Liapes, when he acquired three lots in the Glen Acres Subdivision, these three lots, and I
have a map of this southerly portion which was a separate parcel at that time, and then the three lots,
and then the Glen Acres subdivision. As far as one of the questions on the lot, that the Staff has
brought up that it doesn’t exactly match the deed of the deed description of the lot, that’s correct.
Because of the fact that the Town Code now calls for a 40 foot road frontage, so on the most
southerly of the three lots proposed, the original lot only had 25 foot of frontage, so I just did a
boundary line adjustment between those two lots to accommodate the 40 foot requirement now, so
that we don’t have any less of a conforming lot.
MR. STONE-I’m not sure I understand. Which is the 40, on Aviation or on Greenway?
MR. STEVES-On Greenway. These three lots that are shown on your map that are proposed, this
southerly of the three lots originally only had 25 feet of road frontage. That’s why the three
proposed lots don’t exactly conform with the deed lots, as was stated in the Staff notes, and the only
reason for that was the boundary line adjustment to accommodate your 40 foot requirement.
MR. LAPPER-Which we think has nothing to do with the Use Variance.
MR. STONE-That was a question. That house that’s sitting there at the end of Greenway Drive, is
that on this property?
MR. STEVES-No. That’s on Lot 25, and that’s just to the west of our property.
MR. STONE-But it looks like it’s right on the lot line.
MR. LAPPER-That’s the garage.
MR. STONE-That’s the garage. Okay.
MR. STEVES-It was just for clarification why we varied slightly from the deed line on this.
MR. STONE-Okay. I’ve got you. Any questions of the applicant?
MR. ABBATE-I do. It’s always refreshing to listen to Counselor and his optimistic arguments.
Counselor will agree with me that the justification for any kind of a variance falls squarely on the
shoulders of the applicant to present a compelling argument? You would agree with that?
MR. LAPPER-Yes.
MR. ABBATE-Up to this point it hasn’t been presented. That’s my position. The Staff notes
indicate that the applicant has not submitted any financial information, and you gave justification as
to why you feel it would be inappropriate.
MR. LAPPER-I think zero is my financial information, that you can get no return from the property
because it cannot be used.
MR. ABBATE-So the financial information, then, on record is zero?
MR. LAPPER-Yes, that can have no use under the zoning code, because the property cannot be
used commercially under the covenants, and the Town only will allow it to be used commercially and
not residentially, and that’s why.
MR. STONE-Okay, but would you agree that the Town is not responsible for deed covenants, for
enforcing deed covenants? I just want that on the record, we are not.
MR. LAPPER-Yes, but I mean in terms of, the Town is not responsible, but it still proves the case
that you can’t, as something that preceded zoning.
MR. STONE-I’m not saying whether it does or not.
MR. ABBATE-The Chairman’s been reading my notes.
MR. LAPPER-It’s still pertinent to the reasonable return.
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(Queensbury ZBA Meeting 5/24/00)
MR. ABBATE-Would you agree that a Use Variance does not change the underlying zoning?
MR. LAPPER-Yes.
MR. ABBATE-You would agree to that, and also, I notice here that the applicant’s map is not similar
to, but not the same as conveyed in the deed description that was supplied to this Board.
MR. LAPPER-And that’s what Matt was just attempting to describe, and that’s a slight adjustment to
make these better lots.
MR. ABBATE-I see. So we’re having slight adjustments here to make better lots.
MR. LAPPER-But that can be done under the Town Code as a boundary adjustment, because you’re
not creating an additional lot. You’re just moving the line slightly.
MR. ABBATE-But then I go back to the Chairman’s question he just asked you a few moments ago.
I’m not so sure that we should address that issue, but that’s only my opinion. I’m in minority on the
Board.
MR. LAPPER-No. I think that those are all planning questions, and not having to do, first we have
to get through the use issue, with you, and the use issue is whether it should be residential or
commercial.
MR. ABBATE-Well, Counselor is also aware of the fact that in a Use Variance there are a number of
required areas which have to be satisfied.
MR. LAPPER-Certainly.
MR. ABBATE-And up to this point they haven’t really been satisfied.
MR. LAPPER-Okay, and I just respectfully disagree with you, in the sense that.
MR. ABBATE-That’s perfectly okay.
MR. LAPPER-But I’d also like to convince you that if you can’t use it commercially, and you can’t
use it residentially, that you can’t get any return.
MR. ABBATE-You might have convinced me at 1:20 the other morning, if you had coffee. I have
no other questions, Mr. Chairman, thank you.
MR. HIMES-I’m just curious. In connection with the telephone utility easement, the foliage, it
looked like I could see over the (lost words) on the little map here it looks like it goes right through
the middle of it, of the three acre lots.
MR. LAPPER-You’re asking if that line above, that’s there now, is the same line that’s on the map?
MR. HIMES-Yes, that and what (lost words).
MR. LAPPER-In order to build the houses, it would have to be relocated, but that would be
something to work out with the telephone company, the power company.
MR. STEVES-And whether or not it’s in the same location as it was in 1953, I’m not certain of that.
MR. STONE-No, but. Any other questions?
MR. BRYANT-I have a question for Craig. If the Board were to act on this Use Variance, would
that also affect the lot that’s on Aviation Road? I mean, that’s all part of the same parcel in reality?
MR. BROWN-That’s correct.
MR. BRYANT-So it would affect that lot also?
MR. BROWN-This application addresses tax parcel 12.
MR. LAPPER-But our intention is just to address it north of that line. We’re not asking for a Use
Variance.
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(Queensbury ZBA Meeting 5/24/00)
MR. BRYANT-See, we cannot look at your subdivision lots. We’ve got to look at the whole piece of
property. That’s my understanding. Is that correct?
MR. BROWN-That would be my understanding until this situation has been clarified. If they’re
three separate lots and they’re going to be three separate tax map numbers, then you can modify an
application and address just those. Currently, you have a tax parcel 12, and that includes the property
from Greenway all the way to Aviation.
MR. BRYANT-Then it really would be, Mr. Chairman, appropriate not to hear this application, and
let them split the lot into number of lots, or whatever, and the come back with a revised application,
that only affects the three northern lots.
MR. LAPPER-Well, let me suggest something that, since we have no intention of talking about the
southern portion, one way to do it, and I see that you all have a lot of questions, but one way to do it
would be to say that it was conditioned upon either establishing that it’s a separate lot based upon the
deeds, or else asking the Planning Board for approval, because we’re not asking for any variance as to
the southern portion, but, you know, let’s see where we go tonight.
MR. STONE-Well, I think what I’m hearing is, and I, quite frankly, don’t know, whether we
condition it upon the southerly portion of this lot staying the way it is, not receiving a Use Variance,
and providing a Use Variance for the remainder of the lot to the north.
MR. LAPPER-Well, we’re saying it’s appropriate based upon the deed that I submitted because we
got the three parcels.
MR. STONE-I understand that. There seems to be, Staff and the applicant do not agree.
MR. LAPPER-I think we agree on the facts. We just don’t agree on the implication.
MR. STONE-I’m not sure you agree on the facts. He’s saying this is one tax map.
MR. LAPPER-It’s one tax map and there’s also three deeded parcels, and we both agree on that.
MR. STONE-But how can that be?
MR. LAPPER-Because the Tax Map, County Tax Map Department, at some point, combined them.
MR. STONE-Okay.
MR. BRYANT-Let me ask a question of Mr. Lapper, if I might. Wouldn’t the logical progression be
to take whatever steps were necessary to secure the four different tax numbers, and then come back
to this Board and say, these are the tax map numbers that we want a variance?
MR. LAPPER-It’s a little bit of a Catch-22, if you will, because the Planning Board won’t act on an
application if it’s not zoned, because the zoning is the first thing. You have to deal with the
underlying zoning. So if we don’t have a variance, they’re not going to subdivide it for three
residential lots, because they’re certainly not going to allow three commercial lots.
MR. BRYANT-I’m not talking about the actual physical zoning. I mean, your deed, according to
you, is proof that three exists four lots.
MR. LAPPER-Right.
MR. BRYANT-So, why wouldn’t the Planning Board act on that proof?
MR. LAPPER-I would propose that our next step will be to go to the County and try and get the
County to re-instate those.
MR. STONE-That’s what I’m suggesting, yes.
MR. LAPPER-And if that doesn’t work, then we’d have to go to the Planning Board, but I don’t
think the Planning Board, we’ll ask Craig, but I don’t think the Planning Board would hear us until
we came to you for the Use Variance.
MR. STONE-But the applicant, it seems to me, bears the onus of dividing these lots on the tax map,
going to the County and saying, we have a situation here. We want this one lot to stay Highway
Commercial. We want to be three other lots.
MR. LAPPER-Yes.
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(Queensbury ZBA Meeting 5/24/00)
MR. STONE-I mean, it seems that would be the next step.
MR. BROWN-I think it would be a lot cleaner to do it that way. You could give a Use Variance for
parcel 12 and then once they create the other parcels.
MR. LAPPER-I will stop disagreeing with that point, and we will go talk to the County and come
back.
MR. STONE-Okay. So we will table this.
MR. LAPPER-Well, you should open the public hearing and see what their neighbors feel.
MR. STONE-Yes. We can do that. Sure. Okay. Any other questions before I open the public
hearing? Okay. Let me open the public hearing. Anybody wishing to speak in favor of this Use
Variance application? In favor?
PUBLIC HEARING OPENED
BOB SEARS
MR. SEARS-My name is Bob Sears. I’m the realtor involved in this application. I’ve been trying to
market that property for the last year, and I finally discovered, after the first three weeks, there was a
big problem. There are two separate deeds. There is a deed to the front part of approximately an
acre of land, and that deed fronts on Aviation Road. There’s a deed to the back part, approximately
seven tenths of an acre of land, and that deed fronts on Greenway North. Now the problem is this.
You have one lot there, under the tax map. You have two deeds. On the one deed that fronts on
Aviation Road, there are no covenants in that deed that says that it can only be for residential houses.
Okay. So obviously, Highway Commercial could pertain, the Highway Commercial designation and
the deed are in conformity. With that deed, there are covenants that strictly say that you can only
build residential homes on that property. So, in reference to Jon’s zero, as far as value goes, he’s
absolutely right. I cannot sell that property, the back piece, under the current existing zone, because
the covenants stop me from doing that, and that’s why they came here tonight.
MR. STONE-And we understand that.
MR. SEARS-I don’t think Mr. Abbate understood that.
MR. STONE-Well, whether he buys the argument of zero return, I mean, will we get to that.
MR. SEARS-Maybe I should rephrase it then. My hands are tied. I cannot react in any way to that
back property without getting a change of zone.
MR. STONE-And it seems to be the feeling of this Board that if we get this tax map situation
straightened out, then that argument becomes germane to this whole thing.
MR. SEARS-Exactly.
MR. STONE-I mean, I, for one, think it’s an interesting argument. I’ll go that far at this moment,
but that’s, we’ll come to that when we come back.
MR. SEARS-Right. Meanwhile, it’s been under one ownership for, I don’t know. The Liapes Estate,
either George Liapes or the Liapes Estate, have owned it since, I don’t know, I think it’s 1987 or ’86.
The taxes are current on the property. They have continued to pay their taxes. So obviously, you
know, if you mentioned that it was a park like setting or there was a designation for a park in the
back, well, they’re the sole tax payer on that property. Thank you for your time.
MR. STONE-Thank you. Anybody else wishing to speak in favor? In favor? Anybody wishing to
speak opposed to the application? Opposed?
CHRIS VANDERZEE
MR. VANDERZEE-Hi. My name is Chris Vanderzee and I live right directly east of this, I guess it
would be, in Greenway North. I don’t know what number that would be. I think it’s, I think I’m
number Five. The numbers don’t quite.
MR. STONE-Are you the end lot here?
MR. VANDERZEE-No.
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(Queensbury ZBA Meeting 5/24/00)
MR. STONE-You’re down at the corner, down here.
MR. VANDERZEE-Right.
MR. STONE-Okay.
MR. VANDERZEE-First of all, that lot’s been there for a long time, obviously. It’s been marketed,
no wonder they can’t get a return. It’s been marketed I think over a million dollars they were trying
to sell it for. So, they can’t sell it for a million and not do anything with it. If they want to subdivide
it, I’d love to buy it as is, zoned the way it is, and keep it there, because it’s right behind my house,
obviously. When I bought my house, I was guaranteed by the realtor, which I’m going to go back
and double check, that Niagara Mohawk and the cable company and the phone company all had
right of way to that land, and hence all the 7,000 volt line and all the lines are there, and two years
ago they went in and just clear cut a bunch of that land around the lines, and that’s all, they have the
right of way to that, and there was never any way that anyone could build on there. There wasn’t
enough room or anything, and the other concern with this is, which I guess will come up again, right
on the corner of Greenway Drive, where the first “40 foot lot” is, that’s where all the drainage, the
whole water coming down that hill, it all comes right down the road and pours right down through
there, and it comes right through, and I’m just wondering what all this is going to affect. I don’t
know if that’s appropriate to this meeting yet.
MR. STONE-No. That would be site plan approval, whenever they get to that.
MR. VANDERZEE-We’ve got lots of ammo for that one, but.
MR. STONE-Okay. Anything else?
MR. VANDERZEE-That’s it.
MR. STONE-Okay. Anybody else opposed?
BETTY MONAHAN
MRS. MONAHAN-Betty Monahan, Queensbury. This is not in opposition, but maybe some
research needs to be done into why these lots were combined. Because at one of the zoning changes
one time, old lots were grandfathered in for, I think, three years, and if they weren’t sold, and were
under the same ownership, then they did become combined to conform with whatever the new
zoning was, and so I don’t know, and that regulation has gone back and forth several times. I don’t
know the dates. I don’t know what the zoning is there now, but you might want to research that, to
see if that’s why these lots got combined.
MR. STONE-I appreciate your input and history of the Town of Queensbury.
MR. SEARS-I just want to make a point of clarification. To my knowledge, that lot, well, since I’ve
had it listed, we’ve priced the total package at $185,000.
MR. STONE-For four or three lots?
MR. SEARS-Four lots.
MR. STONE-Four lots, okay.
MR. SEARS-And then we sold the back piece, for the residential, for 36, and we re-priced the front
piece for $125.
MR. STONE-Okay. Thank you. Any correspondence?
MR. MC NULTY-No correspondence.
MR. STONE-Okay. I will, again, cease the public hearing at this time. I think it’s evident to myself
and the rest of the Board members that we need clarification of the tax map status or of this
particular piece of.
MR. LAPPER-And we will go find out when it got combined by the County, whether the County
will separate it based upon the deeds that we have, and come back and talk to you.
MR. STONE-And can you also respond to Mrs. Monahan’s?
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(Queensbury ZBA Meeting 5/24/00)
MR. LAPPER-Yes. I’m not aware.
MR. STONE-Well, she threw an idea out. I mean, and I certainly respect her knowledge of what has
gone on in this Town.
MR. LAPPER-As do I. I think what she was saying was that at some point, the Town was
combining lots that were under the same ownership. What she mentioned, in terms of when the
zone changed, what’s interesting here is that the zone changed to this Highway Commercial One
Acre, which would require an acre, it’s just so strange to me, because Highway Commercial is such an
inappropriate zone, right in the middle of a residential subdivision.
MR. STONE-As you know that stretch of road from Aviation down to Glen Street has its own
history.
MR. LAPPER-Yes.
MR. STONE-Unique.
MR. LAPPER-And I guess if you were looking at this as one lot, and you were saying that the front
piece that’s on Aviation should be Highway Commercial, that makes some sense. So it doesn’t make
sense that the front and back should have the same zoning, but we understand what you’re looking
for, and we’ll find out and come back.
MR. STONE-We will table.
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, visa vi 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:
th
MR. ABBATE-I’m not clear. I’d like to know whether there are any ROW’s, right of ways, going
through this land.
MR. STONE-Okay.
MR. ABBATE-I think that might have some impact on this thing, and that would include, of course,
NiMo as well as telephone company. Do you know, Craig, whether there are ROW’s there?
MR. BROWN-Right of ways or easements?
MR. ABBATE-Right of ways.
MR. STONE-Or easements.
MR. ABBATE-Easements.
MR. BROWN-There’s an apparent easement on the, it’s a filed subdivision map.
MR. ABBATE-There is an easement?
MR. LAPPER-But that was 47 years ago.
MR. BROWN-Right. I’m not sure if it’s current history.
MR. STONE-His request is that, as part of your findings, you determine the status of any easements
or granted right of ways, or anything else that may encumber this particular property, by a third
party.
MR. LAPPER-We shall.
AYES: Mr. Abbate, Mr. Bryant, Mr. Urrico, Mr. Hayes, Mr. McNulty, Mr. Himes, Mr. Stone
NOES: NONE
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(Queensbury ZBA Meeting 5/24/00)
ABSENT: Mr. McNally
MR. STONE-Sorry to do this.
MR. LAPPER-No, those are all good issues. Thank you.
AREA VARIANCE NO. 45-2000 SFR-1A IVAN STRIEBLE TAMMY MOFFITT
OWNER: SAME AS ABOVE 40 MEADOW DRIVE APPLICANT PROPOSES
CONSOLIDATION OF 2 PARCELS TO ACCOMMODATE CONSTRUCTION OF A
DETACHED 2-CAR GARAGE (24 FT. BY 24 FT.). PROPERTY CURRENTLY HAS A 1-
CAR GARAGE AND RELIEF IS REQUESTED FROM NUMBER OF GARAGES
ALLOWED ON A PARCEL AS WELL AS THE MAXIMUM ALLOWABLE GARAGE
SQUARE FOOTAGE. TAX MAP NO. 58-3-16.2, 15 LOT SIZE: 0.43 ACRES, 0.69 ACRES
SECTION 179-20
IVAN STRIEBLE & TAMMY MOFFITT, PRESENT
STAFF INPUT
Notes from Staff, Area Variance No. 45-2000, Ivan Strieble Tammy Moffitt, Meeting Date: May 24,
2000 “Project Location: 40 Meadow Drive Description of Proposed Project: Applicant
proposes construction of a second garage (detached). Relief Required: Applicant requests relief
from requirements allowing only one garage on a parcel and 94 square feet of relief from the 900
square foot maximum allowable garage square footage per Definitions, §179-9. Criteria for
considering an Area Variance according to Section 267 of Town Law: 1. Benefit to the
applicant: Applicant would be permitted to construct and utilize additional vehicle storage area. 2.
Feasible alternatives: Feasible alternatives may include addition to the existing garage. 3. Is this
relief substantial relative to the ordinance?: 94 square feet of relief from the 900 foot
requirement may be interpreted as minimal, however, the construction of a second, detached garage
may be interpreted as a moderate to substantial request. 4. Effects on the neighborhood or
community: Moderate effects on the neighborhood may be anticipated as a result of this action. 5.
Is this difficulty self-created? The difficulty may be interpreted as self created. Parcel History
(construction/site plan/variance, etc.): BP 93-322 6/24/93 Staff comments: Moderate
impacts may be anticipated as a result of this action. The proposed project involves the
consolidation of two parcels, in order to alleviate side setback difficulties. The lot shown as parcel
(31) on the applicant’s plot plan is separate and could be developed with a single family dwelling and
a free standing garage. However, the proposal outlined in this application would limit development
on the parcel. SEQR Status: Type II”
MR. STONE-Okay.
MS. MOFFITT-My name is Tammy Moffitt.
MR. STRIEBLE-Ivan Strieble.
MR. STONE-Anything you want to add to your application?
MR. STRIEBLE-Basically why we wanted to put this other part of our garage up is because of the
tight quarters that we have now and the people who recently, whoever built the house before us, was
really small about putting their garage up themselves. It’s very, very tight quarters in there, and as far
as parking and stuff like that, we’re pretty well jammed up. Anybody visits or anything, they would
have no place to park.
MS. MOFFITT-Right. We’re also at the bottom of a hill, out driveway is. So it’s not practical for
people to be parking out front. There’s also a fire hydrant out front. So when people, if we have a
party, any type of a get together, we want to be able to keep them in a safe area in the driveway.
MR. STONE-Okay. Have you considered attaching the garage to the garage that you have now and
having it face out to the street? Your neighbor did, across the street, something like that. We
granted him a variance, a year or so ago.
MR. STRIEBLE-Well, as we drive up in our driveway.
MR. STONE-Right now, you have to turn, but I’m saying if you built the garage, I’m just wondering
if you considered building the garage attached to the house, sort of closing off the other garage, and
putting a two car garage at the end of the house?
MS. MOFFITT-Well, again, it would be taking up more driveway space.
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(Queensbury ZBA Meeting 5/24/00)
MR. STONE-I’m only asking that, whether you considered it, because you are asking for two
garages, which is why we’re here.
MR. STRIEBLE-Right. We thought about that, but the garage itself, we did that. In order to do
that, we’d have to lengthen out the existing garage now, because the garage now is only 18’ 6”, I
think, or 19 feet. Now to drive a car in there and park, her truck is 19 feet long, she has, her truck
she has, and by the time you park in there, we would have to widen out the garage plus add on, like
you said, add a two car garage attached on to the existing one now, and as far as feasible, for money
goes, we’d have to completely take the roof off the garage now, our existing garage, go back over our
deck. No, we did, we thought about that, too, but it didn’t seem feasible to us, as far as the money
goes.
MS. MOFFITT-And appearance wise, I don’t think it would look better to attach and add on, than
to make it a separate one.
MR. STRIEBLE-One other thing, too, is as we turn into our garage, if we did that we’d have to open
up another side of that garage, because our garage that we have now would be completely useless to
us. We have two vehicles parked in the garage that we attach to now, we’d have to go up and turn
through that garage and turn into it.
MR. STONE-No. My thought was that you make an additional living room space out of the garage.
MR. STRIEBLE-I didn’t know that’s what you were thinking of.
MR. STONE-Yes, just a thought.
MS. MOFFITT-Well, at this time, there is no entrance from our garage to the house, because of the
design that was there. There’s a fireplace, it’s a cement wall. So we don’t even have an entrance
from our garage into the house at this point.
MR. STONE-Okay. Any questions from anybody? I don’t want to monopolize.
MR. MC NULTY-I’ve got one. You mention in the application that you’ve got a one car garage, and
yet it looks to me like you’ve got a two car garage door on it. The door looks a lot wider than a
single.
MR. STRIEBLE-It is. It’s like, the inside of that garage is less than 19 feet across, and for her to
drive her vehicle in, or my Jeep or her truck, to drive in to get in these two doors with our two
motorcycles there, we can’t drive them, there’s not enough room.
MS. MOFFITT-With two vehicles, you cannot open the door without hitting another vehicle.
MR. STRIEBLE-It’s tight.
MR. BRYANT-So basically you’re going to end up with two and a half garages, when you’re done?
Is that correct?
MS. MOFFITT-A two car plus one.
MR. BRYANT-One and a half cars.
MR. STRIEBLE-We’ve got probably one and a half now. It’s not a full two car garage.
MR. BRYANT-So you’re going to build a two full car garage. So you’re going to have enough room
for three cars and a couple of motorcycles.
MR. STRIEBLE-Exactly.
MR. BRYANT-Do you plan on using this area for commercial use at all?
MR. STRIEBLE-No, just for our vehicles.
MR. ABBATE-Where are all these vehicles stored at the present time?
MR. STRIEBLE-My Jeep, her pick up truck are outside, and her new car is inside with her my new
motorcycle and her motorcycle are inside with our snow blower and a four wheeler. So we’re
jammed up in there. That’s why I was asking.
MR. STONE-You’ve combined these lots, 30 and 31, parcels there?
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(Queensbury ZBA Meeting 5/24/00)
MR. STRIEBLE-That’s what our variance was combining them for, yes.
MR. STONE-So you have done that?
MR. STRIEBLE-No, because we’ve only been there a little over a year. So that’s what we were
doing now with our variance to combine the two lots.
MR. STONE-Okay.
MR. BROWN-Well, the variance doesn’t combine the lots. They’ve got to do that.
MR. STRIEBLE-I’m sorry. I misunderstood.
MR. HAYES-That’s a contingency, then.
MR. BROWN-Yes. It would be contingent on the building permit, that they’re combined.
MR. STONE-Right.
MR. STRIEBLE-I’m sorry, I misunderstood you.
MR. STONE-And it would have to be one lot, because you certainly couldn’t have the garage on a
lot all by itself because you can’t have a garage without a principal building.
MR. BRYANT-And you understand by combining the lots it would restrict you from further
building another house on that other lot?
MR. STRIEBLE-Exactly. You don’t have to worry about that. We know that.
MR. STONE-Any other questions before I open the public hearing? All right. Let me open the
public hearing. Anybody who wishes to speak in favor? In favor of the application?
PUBLIC HEARING OPENED
CHRIS GRANGER
MR. GRANGER-My name is Chris Granger. I live on Meadow Drive, right across from Tammy
and Marty, and I think I would have the most impact because our front window faces, kind of faces
their house, and, you know, we’re not objecting to it at all. We know that what they’re going to build
is going to look aesthetically pleasing, and they have a big enough piece of property. They’re
requesting a little bit of relief, and this is what they want to do. They don’t have any kids and they’ve
got a couple of extra vehicles. They want to be able to protect them and put them in there, and have
enough room, and I kind of agree with them, with adding on to the garage, with changing the roof
line and stuff, and plus they have some other considerations with the hill and the way that the
property is sloped and stuff. They want to put it up in the back, where they’ve cleared some trees
and stuff and made it look nice, and they’ve made quite a few improvements to the property since
they’ve been there. So I think it would add to the neighborhood, and I know that they’re going to
build it the right way and make it aesthetically pleasing and stuff, and I think, you know, they’ve got
enough piece of property to put it on there. Thank you.
MR. STONE-Thank you. Anybody else wishing to speak in favor? In favor? Anybody wishing to
speak opposed? Opposed? Any correspondence?
MR. MC NULTY-No correspondence.
MR. STONE-Okay. I’ll close the public hearing.
PUBLIC HEARING CLOSED
MR. STONE-Any other questions of the applicant? Well, let’s talk about it. Chuck Abbate?
MR. ABBATE-I certainly understand your predicament. We currently have only a one car garage,
where my wife puts her new car in. Mine stays outside.
MR. STRIEBLE-That’s what’s happening.
MR. ABBATE-And the snow blower. So I appreciate the situation. I don’t have any objections.
24
(Queensbury ZBA Meeting 5/24/00)
MR. STONE-Okay. Allan?
MR. BRYANT-I don’t have any objections either. Of course it being contingent upon joining the
two lots, but I just want to make you aware that, you know, once you join the two lots, then as far as
the development of the other lot, there is no development of that lot.
MR. STRIEBLE-Yes.
MS. MOFFITT-Yes, we wouldn’t want to, and would have somebody very close to us, we wouldn’t
want that anyway.
MR. BRYANT-Okay. Other than that, I have no objection.
MR. STONE-Roy?
MR. URRICO-I’m satisfied with what they want and how they put this together, and I also agree,
make sure that you understand that the development of the lot is no longer a possibility.
MS. MOFFITT-Sure.
MR. URRICO-I’m fine.
MR. STONE-Jaime?
MR. HAYES-Well, I think I agree with my fellow Board members. I know, at least my
understanding of the rule for a second garage is to reduce, or restrict the possibility of clutter by
having too many buildings on small lots or too many buildings on an overall area, but in this
particular case, I think the addition of the other parcel alleviates that. I really do. In fact, it might
actually make for less density, a less dense use. As far as the 93 feet, or 94 feet, I don’t think that’s
any problem. We’ve brushed up against the overall garage square feet limitation quite a lot recently,
and we’ve been lenient on that, when the circumstances called for it. So considering that both parts
of my concerns are really alleviated, I don’t think it’s a problem. I think it’s a good project, and I’m
okay with it.
MR. STONE-Chuck?
MR. MC NULTY-I’m going to be on the flip side of this for a couple of reasons. I’m not sure I like
the picture I get in my head of what it’s going to look like within the neighborhood. I saw one other
house with a second garage, two car garage, separate, over on the next street, and I wasn’t overly
impressed with the appearance, but also, as Jaime mentioned, we are seeing more and more of this
type of request for the same kind of problems you have, of somebody that’s got a couple of
motorcycles, or a couple of snowmobiles, or additional things, and they need more square footage
than what the Town Zoning allows, and I think we’ve all agreed that indeed, maybe it’s time to revisit
the zoning law, but I think that’s the reason I’m going to be opposed to this, is I think we’re in the
realm now where we are no longer offering variances. What we’re doing is amending the zoning law,
application by application. I think this is an issue that should go to the group that’s working on
rezoning, and they should correct it that way. So therefore I’m going to be opposed.
MR. STONE-Norman?
MR. HIMES-Yes, thank you. I, too, share the space problems, vehicles and garage, and I don’t have
any problem with the fact that you’re asking for a variance in connection with the size of the
additional garage, a little bit over 900 feet. In terms of the existing garage, what other use it might be
able to be put to is not for us to say. However, it is pretty clear, one garage, and it may be a bigger
new garage might be applicable. I agree with Chuck in that we do have a lot of problems with garage
variances and I, too, think that even 900 square feet for the garage, be it attached or detached, is
small, in my opinion, and I think that’s being addressed in some of the zoning plans. However, I
think the aspects of your case are very much like a lot of us. They’re not unique from the standpoint
where the zoning says one garage. So I’m going to say that I do not agree with approving the
variance as submitted, or application as submitted, excuse me.
MR. STONE-Well, I, too, am going with the minority, it appears to be the minority. Basically
because I’m concerned, and I have voted in the past against two garages. I don’t like the lot clutter.
I certainly agree that the benefit to the applicant to place motor vehicles in an enclosed space is a
desirable objective. There’s no question about that. I also share Mr. McNulty’s concern that the new
zoning law should address the need for larger garages, and I think, as a member who, somebody who
sits on that Committee, we certainly will be taking that up. It’s been discussed and will be discussed
further. I’ve made a note to do that. I voted against two garages on a much larger piece of property,
because I agree with the principle that we should have one garage on a piece of property, and while,
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(Queensbury ZBA Meeting 5/24/00)
as a I recognize the benefit to the applicant, I just think the detriment to the community, as it
currently exists, in terms of our zoning, that we should resist the idea of having a second garage.
Having said that, as I poll the Board, it appears to be there are four people in favor and three
opposed. So I would call for a motion for approval of this variance.
MOTION TO APPROVE AREA VARIANCE NO. 45-2000 IVAN STRIEBLE TAMMY
MOFFITT, Introduced by Charles Abbate who moved for its adoption, seconded by Roy Urrico:
40 Meadow Drive. The applicant proposes construction of a second garage detached. Relief
required, applicant requests relief from the requirements of only one garage on a parcel, and 94
square feet of relief from the 900 square foot maximum allowable garage square footage per
Definitions Section 179-9. Benefit to the applicant, obviously, the applicant would be permitted to
store his current vehicles that are stored outside, as well as other motorcycles, etc., which would
benefit him. Feasible alternatives, there have been several mentioned. Feasible alternatives may
include an addition to the existing garage, which, based upon the applicant’s justification, it didn’t
seem to be really appropriate. Is this relief substantial relative to the Ordinance? Ninety-four square
feet of relief from the nine hundred foot requirement may be interpreted as minimal. However, the
construction of a second detached garage may be interpreted as moderate to substantial relief.
Effects on the neighborhood or community, moderate effects on the neighborhood may be
anticipated as a result of this action. However, this evening, we did see a neighbor who resides
directly across from the applicant having no objections. Is this difficulty self-created? The difficulty
may be interpreted as self-created. I’m not sure. Moderate impacts may be anticipated as a result of
this action. The proposed project involves the consolidation of two parcels in order to alleviate side
setback difficulties. The lot shown as parcel 31 on the applicant’s plot plan is separate and could be
developed with a single family dwelling and a freestanding garage. However, the proposed outline in
this application would limit development on this parcel. However, in view of the fact I’m
recommending approval of your request, I would also like to include a contingency of the joining of
both lots simultaneously, and that this be approved based upon that contingency.
Duly adopted this 24 day of May, 2000, by the following vote:
th
AYES: Mr. Urrico, Mr. Hayes, Mr. Abbate, Mr. Bryant
NOES: Mr. McNulty, Mr. Himes, Mr. Stone
ABSENT: Mr. McNally
MR. STONE-It’s approved, four, three.
MR. STRIEBLE-Thank you.
MS. MOFFITT-Thank you.
MR. STONE-Go and get your building permit.
AREA VARIANCE NO. 46-2000 TYPE II SFR-1A DAVID & SUSAN BOTCH OWNER:
SAME AS ABOVE 16 OLD FORGE ROAD APPLICANT PROPOSES CONSTRUCTION
OF A DECK. RELIEF IS REQUESTED FROM SETBACK REQUIREMENTS. TAX
MAP NO. 94-1-3 LOT SIZE: 0.26 ACRES SECTION 179-20
DAVID & SUSAN BOTCH, PRESENT
STAFF INPUT
Notes from Staff, Area Variance No. 46-2000, David & Susan Botch, Meeting Date: May 24, 2000
“Project Location: 16 Old Forge Road Description of Proposed Project: Applicant proposes
construction of a 630 square foot deck. Relief Required: Applicant requests 6 feet of relief from
the 20 foot minimum setback requirement of the SFR-1A zone, §179-20. Criteria for considering
an Area Variance according to Chapter 267 of Town Law: 1. Benefit to the applicant:
Applicant would be permitted to construct the desired deck in the preferred location. 2. Feasible
alternatives: Feasible alternatives may include a smaller deck or reconfiguration. 3. Is this relief
substantial relative to the ordinance?: 6 feet of relief from the 20 foot requirement may be
interpreted as minimal to moderate. 4. Effects on the neighborhood or community: Minimal, if
any, effects on the neighborhood may be anticipated as a result of this action. 5. Is this difficulty
self-created? The difficulty may be interpreted as self created. Parcel History (construction/site
plan/variance, etc.): BP 2000-180 issued 4/19/00 deck Staff comments: Minimal impacts may
be anticipated as a result of this action. The proposed deck is narrow in the area of violation and
does not extend past the end of the house. SEQR Status: Type II”
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(Queensbury ZBA Meeting 5/24/00)
MR. STONE-Mr. and Mrs. Botch. Before you start, let me ask you a question. Are you aware the
building permit you received had a condition on it?
MR. BOTCH-What condition?
MR. STONE-You were not supposed to build that section that was in violation of the Ordinance?
MR. BOTCH-The part that was built, he didn’t put the footings in. So they’re just, they’re not, the
footings aren’t there. So it was done.
MR. STONE-But there is a deck there, where the building permit said specifically not to build on.
MR. BOTCH-Yes. We didn’t try to break any laws by doing that. That was built, the assumption we
were under was that this would be passed, and just don’t fill those in, and if it didn’t pass, we’d have
to take it out of there, but it’s not permanent, at this point.
MR. STONE-Okay, but you were aware that there was a condition in the building permit?
MR. BOTCH-Yes.
MR. STONE-That’s the point I wanted to get.
MR. BOTCH-Yes, we were.
MR. STONE-Okay. Why don’t you introduce yourselves, for the record.
MR. BOTCH-I’m David Botch.
MRS. BOTCH-Susan Botch.
MR. STONE-What do you want to tell us about your application?
MR. BOTCH-What we ask for, I think, is pretty basic. We have two little kids, and we do have an
outside bathroom that they can use from the deck, and it makes it a lot easier with the deck
extending to that area. As noted, that part of the deck is only about two and a half feet wide, and it’s
a convenience factor there. We don’t think we’re bothering anybody else. Our nearest neighbor has
no problem with it, and that’s basically it.
MR. ABBATE-You indicate in your application that, and you just mentioned again, that your
neighbor, Dennis and Cheryl Pennock, are they here this evening?
MR. BOTCH-No.
MR. ABBATE-Is there any reason why they’re not here this evening to support your application?
MR. BOTCH-I don’t think they thought we’d have a problem with it.
MR. ABBATE-Okay.
MRS. BOTCH-Because the deck doesn’t go beyond our house, as it is now, I think that everyone
thought it was just kind of a technicality that we needed to go through with you and get your
approval.
MR. ABBATE-Yes, well, the only reason that I’m asking is that you listed their names in here, saying
that they would support your proposition here, and I’d just be interested in hearing what they actually
had to say. Thank you.
MRS. BOTCH-They didn’t think they had to come. I’m sorry.
MR. ABBATE-Thank you, Mr. Chairman.
MR. STONE-Listening to some of the statements you’re making, I am very troubled. This Board is
empowered with upholding the Zoning Code for the Town of Queensbury. I have made speeches
before that I don’t look like a rubber stamp, and I don’t act like a rubber stamp, and I don’t want to
be considered a rubber stamp. This is a process. It is a legal process. We have a zoning code. You
are supposed to ask us for permission to violate, in a sense, quote unquote, that zoning code, and
when I hear you talking, well, we didn’t think we’d have any problem, or my neighbors didn’t think
we’d have any problem, that’s why we meet. We don’t sit here, two or three times a month,
sometimes until 1:30 in the morning, just to be a rubber stamp, and I’m very concerned by the
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(Queensbury ZBA Meeting 5/24/00)
attitude that I perceive. I mean, quite frankly, I think this is a good project. I have no, looking at it,
and looking at the map, the only question I wrote down, before I walked around the house, was, why
do they want it? I saw why you wanted it. I mean, it’s a reasonable, reasonable application, but that
does not forgive the fact that you did it when you knew you weren’t supposed to do it, and footings
make no difference, as far as this deck is concerned. The deck is a physical thing. It extends six feet
over the setback required.
MR. BOTCH-And let me just say this. We may have been mis-advised by friends and neighbors.
We’ve never done anything like this before. I said we thought it was just a technicality, no disrespect
to you guys. That’s just what everybody was telling us. We had no idea what to expect tonight. So, I
mean, don’t take it any other way than that.
MR. STONE-I understand that, but you did go, to your credit, you went to the Community
Development office and asked, sought a building permit. You recognized you needed a building
permit.
MR. BOTCH-Right.
MR. STONE-You were told, in getting that, that you had a restriction on this building permit, and
you ignored the restriction. I mean, you may think because you didn’t put a footing in, is
justification. It’s not. Having said that, any other questions of the applicant? 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?
MR. MC NULTY-No correspondence.
PUBLIC HEARING OPENED
NO COMMENT
PUBLIC HEARING CLOSED
MR. STONE-Any other questions of the applicant, before we talk about it?
MR. ABBATE-One clarification, Mr. and Mrs. Botch. The Chairman makes a valid point. In my
own mind, were you aware of the fact that you were not permitted to construct this project? Prior to
constructing it?
MR. BOTCH-Well, like I said before, I thought if we didn’t pour the footings, that we were okay to
do what we were doing.
MR. ABBATE-But you went to Community Development, or some place there, and you received,
did someone tell you that there are restrictions in construction here? What did they tell you? I want
to understand your position.
MRS. BOTCH-The person who is helping us build this, he’s kind of our technical advisor, because
we’ve never done anything like this before. He said that everything was approved except for the
footings for that part of the deck, and it’s completely separate. I don’t even know if it’s attached, at
this point, to anything. So he said this part can be taken off.
MR. ABBATE-Was he aware of this restriction, prior to constructing this little project?
MR. BOTCH-Yes. He knew that we were waiting for a variance.
MR. ABBATE-So he was aware of this, correct, and both of you were aware of it, is that correct?
MR. BOTCH-I mean, maybe we had some bad advice.
MR. ABBATE-Well, I’m sure what you’re saying is accurate, but I have two questions. He was
aware that there were restrictions, prior to constructing this project, and both of you were aware that
there were restrictions, prior to constructing this project?
MR. BOTCH-That’s correct.
MR. ABBATE-Well, thank you for your honesty. I appreciate it. Thank you.
MR. HIMES-Is this person a licensed contractor?
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(Queensbury ZBA Meeting 5/24/00)
MR. BOTCH-No. He’s just a friend of ours who’s built some decks himself, and just helping me
out. I’m not sure how many he’s done, but he’s got a lot more knowledge than me, but maybe not
the correct knowledge in certain areas, I’m finding out.
MR. HIMES-Yes, I understand in connection with the building part of it. It’s just in connection with
the advice and recognizing its source, and we’re trying very hard here to see what might have gone
on and when and where. Because the technicality you speak of, because something exists, which is
(lost words) there for a long time, that does not carry forward automatically. What generally happens
is when something else is considered, the whole thing is subject, again, to a variance. So you’re in
deep water here. I just have to think a little more about it. What kind of a compromise, evidently
the gentleman said to you that, well, there’s no problem. We won’t pour the footings and we can
take the thing off, well, maybe that’s got to happen, and reapply. It sure seems like running around
in circles to do that. I’m kind of, that’s just hanging up in front of me and maybe some others of us
here, in the position that we’re in, to say, something has been done wrong, and we’re saying that’s
okay. So, I’ll think a little longer, listen to what some others have to say.
MR. STONE-We’re going to start with Allan and discuss it. Go ahead, Allan.
MR. BRYANT-Well, when I looked at the project, it’s coming along. It looks like a good project,
and I’m just curious why the notation that there was a building permit issued, there was also a
notation that there was, you know, contingent upon this Board, because, you know, this is a new
light. That doesn’t change my view. I still think it’s a good project and I’m in favor of the
application, but, you know, it does taint it somewhat.
MR. BROWN-The building permit was issued after it was amended from the previous submission,
or the original submission. The original submission shows the deck that’s in the variance application.
I talked to their contractor, Mr. Franko, Dave Franko, discussed the need for a variance, how much
deck. In order to get the project going, I suggested that he revise his plan, to show a compliant deck.
We could issue a permit for that. That’s what we did, revised his drawing, said I’m not going to build
this portion of the deck, I’m going to get the variance for it. I’m going to build the portion that’s
compliant, and that’s what the permit was issued for, the compliant portion of the deck.
MRS. BOTCH-And that’s what he told us. I mean, that piece was completely separate. It’s a
different level.
MR. BOTCH-And he’s even been in contact since then, because we have another, we had a small
change.
MR. BROWN-That was probably with the Building Department.
MR. BOTCH-Yes. He called me. We haven’t done anything until this meeting is done. So, again,
we’re not trying to do anything the wrong way. We’re just trying to get our deck built, and if we went
the wrong way, we apologize.
MR. STONE-You did hear us earlier this evening. Were you here at the beginning? Okay.
MR. BOTCH-I’ve been here all night.
MR. BRYANT-Those are my only comments. I am in favor of the project.
MR. STONE-Okay. Roy?
MR. URRICO-I’m sort of the new person on the Board here. So I may not have the lower tolerance
for looking the other way. I would suggest that in future projects that you consult with the Town
before you make that step, but I think it’s a good project, and I’m in favor of it?
MR. STONE-Jaime?
MR. HAYES-Well, obviously, I mean, you’ve felt the wrath of the Board.
MR. BOTCH-We’ll never do it again.
MR. HAYES-And I sense that you’ve been properly humiliated. So beyond that, I guess what’s
important, beyond that, even though there’s things about that that truly are important, I think,
overall, the project is okay. I guess I’m agreeing with Lew that, really, outside of this being more or
less, to me, easily passed, if this was a borderline issue, you’d probably be in a lot of trouble, because
of the way you went about it, and that’s just an honest remark. I mean, I think the way the test might
have gone against you, based on the way it all came down, but I just, personally, feel that the area in
violation is inside the footprint of the house, and it’s a very, very, narrow, small section. So I don’t
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(Queensbury ZBA Meeting 5/24/00)
think there’s any impact on the neighborhood negative, and the fact that your neighbors aren’t here
to complain about it, when they had the chance to, kind of solidifies that, in my mind. So, I’m in
favor of it, based on the project only, not by the way it came down.
MRS. BOTCH-We apologize.
MR. STONE-Chuck?
MR. MC NULTY-Well, I, too, looking at the project itself, am fully in favor of it. I think it makes
sense. As everybody’s pointed out, it doesn’t extend beyond the house, and what not. On the other
hand, I am fascinated with the possibility of saying no, take it off, come in and apply, and then build
it back. Probably a childish approach, but yet I think at some point this Board may have to start
doing that, if we keep seeing applications come in that are pre-built, before they get the variance, but
sum total, looking at this as we have some of the others, saying, would we approve it if it hadn’t been
built yet? Yes, I would have approved it. So, I’ll be inclined to go along.
MR. STONE-Norman?
MR. HIMES-In spite of all my huffing and puffing, it is a nice deck. I’d go along with it. I’d vote
for approval.
MR. STONE-Chuck?
MR. ABBATE-I guess, in spite of my huffing and puffing, as well, because, you know, who wins or
loses, you know, but I have to agree with some of my Board members here, that there’s got to be a
time where I’m going to jump on this table and say, no, and start screaming. We’ve got to say no one
of these days, but had this been submitted under other circumstances, I would have said okay, and
it’s a good project, and so, to ease your anxiety somewhat, I’m going to support it, but with
reservation.
MR. STONE-Well, we have poured wrath on you. There’s a test that most of us use on these
particular things. We don’t like having to use it, but there is a test that we do use. If it had come
before us clean, would we have approved it? And in this case, I would have approved it, too,
because there is very good, logical reason for it. I mean, as soon as I got back there and I saw why
you wanted to do it, I was surprised to see it there, you have to understand, but as soon as I saw the
fact that there was this door, and I recognize it was probably a bathroom, it’s a very logical reason to
have it, and the fact that it doesn’t extend beyond the house, and it’s well inside, actually, the house
itself, in terms of setback, I certainly would have approved it. I also have to echo my fellow Board
members, that we’re getting more upset all the time when these things come before us, and actually,
you saw us tonight make a man take out a very pretty deck, part of it at least. Having said that, I’ll
call for a motion to approve it.
MOTION TO APPROVE AREA VARIANCE NO. 46-2000 DAVID AND SUSAN BOTCH,
Introduced by Charles Abbate who moved for its adoption, seconded by Paul Hayes:
16 Old Forge Road. The applicant proposes the construction of a 1630 square foot deck. The
applicant requests six feet of relief from the 20 foot minimum setback requirements of the SFR-1A
zone, Section 179-20. Benefit to the applicant, the applicant would indeed be permitted to construct
the desired deck in the location that they’ve suggested. Feasible alternatives may have included
including a smaller deck or reconfiguration. Is this relief substantial relative to the Ordinance? Six
feet of relief from the twenty foot requirement may be interpreted as minimal to moderate, and the
effects on the neighborhood or community, minimal, if any, effects on the neighborhood may be
anticipated as a result of this action, and in addition, I might add, there were no objections this
evening. Is this difficulty self-created? The difficulty may be interpreted as self-created. Minimal
impacts may be anticipated as a result of this action. The proposed deck is narrow, and the area in
violation does not extend past the end of the house, which means it’s within the footprint of the
building, and based upon that, I recommend that we approve the project.
Duly adopted this 24 day of May, 2000, by the following vote:
th
AYES: Mr. Hayes, Mr. McNulty, Mr. Himes, Mr. Abbate, Mr. Bryant, Mr. Urrico, Mr. Stone
NOES: NONE
ABSENT: Mr. McNally
MR. STONE-Go, and enjoy.
MRS. BOTCH-Thank you, and I apologize.
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(Queensbury ZBA Meeting 5/24/00)
MR. STONE-Before we get on to the next one, I also want to spread it around to Staff a little bit. I
think we need to know that this was built, in Staff notes.
MR. ABBATE-Right.
MR. STONE-I know you didn’t, you believed the building permit that you issued, I understand that,
but I almost didn’t go behind, because I figured I could see what it was, and then I went back and
said, uh oh. You always feel a little bit strange about going on people’s property occasionally, even
though we’re empowered to do that. So, anyway.
MR. BROWN-I understand.
NOTICE OF APPEAL NO. 4-2000 JOHN SALVADOR, JR. APPELLANT IS
APPEALING ZONING ADMINISTRATOR’S DECISION TO ISSUE A BUILDING
PERMIT FOR THE RECONSTRUCTION OF DOCKS FOR TAX MAP PARCEL
NUMBER 4-1-11 IN A WR-1A ZONE.
JIM MORGAN & SHEILA GALVIN, REPRESENTING APPLICANT, PRESENT
MR. STONE-Read in the Notice of Appeal and Chris’ letter dated April 26.
th
MR. MC NULTY-Okay. We have a memorandum to the Zoning Board of Appeals, from Chris
Round, dated April 26, 2000, Appeal No. 2-2000. “This memorandum is in response to your
directive contained in the March 15, 2000 decision regarding Appeal No. 2-2000. Background It is
the policy of our office to require authorization from the owner of a property prior to issuance of a
building permit for that property. However, once an applicant has demonstrated at least a colorable
claim of authorization, it is not the function of this office to resolve ownership disputes among
private parties. A building permit was not issued for the construction activity that is the subject of
the referenced appeal due to non-routine matters beyond our control. Correspondence from our
office dated May 22, 1998 outlined this position, indicating the Town’s desire to remove itself from a
personal and private property dispute. The matter continues to be the subject of litigation.
Determination Our office is issuing a building permit (BP 98-172) for the two (2) docks in
question. The applicant has provided information which at least purports to show that he has the
right of ownership. The construction of the docks is not an expansion of a nonconforming use,
merely maintenance of a nonconforming marina use. The destruction of the docks in question was
beyond Mr. Parillo’s control and therefore allowable under the land use regulations. Docks
(especially stake docks) are subject to the forces of nature and are typically replaced/reconstructed.
The replacement of a structure destroyed by “fire, flood, wind, hurricane, tornado, or other act
beyond the control of man shall be allowed to reconstruct according to its original dimension and
intensity…” from Section 179-83 Destruction (of a Nonconforming use/structure). This
construction activity is subject to this section of the Ordinance. This determination is based on my
interpretation of the Town’s zoning ordinance and land use regulations. It does not constitute any
findings of who has the legal right to conduct the authorized activity, as it is not the Town’s role to
resolve private ownership issues.”
MR. STONE-It’s in your court.
MR. MORGAN-Okay. Mr. Stone, I will address some general comments. Jim Morgan, I’m
representing John and Kathy Salvador here, and my colleague Sheila Galvin. I have some general
comments, and I will turn it over to Sheila for some specific points in relation to what we feel are
violations of your Town Zoning Code. In the first place, I believe that the issue of the ownership
has been used as an excuse. That is, in fact, has been, continues to be subject to litigation, but the
applicable case law from the Appellate Division Third Department says that once a Town has had an
indication of ownership, a colorable title allegation, then it must proceed to enforce its own Zoning
Code, and I have precedent that I can provide to this Board if necessary to support that proposition.
The basis for Mr. Round’s determination is a clause in your Zoning Code that’s basically, it appears
in other legal documents that’s a force le zure or Act of God Section. I would state emphatically I
don’t believe that Section has any applicable basis in this record. The prior docks on the site were
removed due to an order from the Appellate Division Third Department. It had nothing to do with
an Act of God. It was a court order. That court order, as I’ve explained, has been appealed in
various forms, and there’s a continuing proceeding relating thereto. We take the position that they
were new construction. They required a building permit. Having an application with portions of the
record dated August 1998, with a final issuance of a building permit in April of 2000, we believe
renders that construction illegal, and it’s sort of an expos facto attempt to ratify something that was
already done. The issue of the ownership should not have precluded the Zoning Administrator of
this Town from looking at very carefully and requiring that the building permit be based upon law, in
a timely fashion, and with that, without further comment, I’ll turn it over to Sheila.
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(Queensbury ZBA Meeting 5/24/00)
MRS. GALVIN-With respect to Mr. Parillo’s application, I’d like to point out to this Board that the
prior hearing on the Botch deck is directly in point. As Chairman Stone very aptly stated, the Board
is not here to be a rubber stamp, and it is not supposed to take over and correct errors that have
been made by applicants after the fact. As Chairman Stone said, you’re supposed to ask the Board
for permission before you go ahead and do whatever violation you intend to do and then come to
the Board to try to get your errors corrected. Now, with the Botches, it was a different situation.
You have homeowners. They’re not involved in a commercial operation. With respect to Mr.
Parillo, however, they can’t hide behind what would be the equivalent to the IRS’s Innocent Spouse
rule. Mr. Parillo has placed himself in a totally different position from the Botches. He’s the
operator of a commercial marina. He knows the rules. He’s played by them. He’s gotten permits.
He knows before you build something, you have to go forward and request a building permit. It was
not until after the construction of the docks began that any application was filed, and it was not until
after Mr. Salvador became aware of this construction and became aware of the fact that there had
been rebuilding without a permit, that in fact anyone from the Zoning or Planning Department went
out to inspect and determined that there was unauthorized construction going on. He is not an
innocent homeowner who did something by mistake without intent. He runs commercial businesses.
He’s built docks before, and he went ahead and did it, and didn’t even bother to go to seek an
application. He just went ahead and did what he wanted. As Mr. Morgan stated very aptly, with
respect to this construction, it was not an Act of God. Your Section 179-83 is very specific in
definition of Acts of God. This was not a destruction as a result of such an act. This was a removal
of docks at the direction of the courts. That if Mr. Parillo wanted to go back and reconstruct, or
build new docks, it was up to him to obtain all of the necessary and proper approvals. As this Board
said in the prior hearing, you have to follow the rules. Again, Mr. Parillo knew what the rules were.
He’d been there, done that before, and this time he just went ahead and did what he wanted.
Whether or not the docks were to be constructed at all was an issue which first had to be determined,
following a proper application for a building permit being submitted and reviewed. The docks were
built before the permit was even requested. So, therefore, it’s a done deal, just like the Botch deck.
We’re back to the point, there was no respect for the existing laws, rules and Ordinances. He went
ahead and did it, and he knew what the rules were. Turning to the application that was actually
submitted by Mr. Parillo, we’ve just recently received what was in the file as part of the permit
application. Included in that is a two page apparent sketch, and I believe that you have these within
your file. Those two sketches.
MR. STONE-We don’t.
MR. BROWN-They’re in the building permit file.
MR. STONE-Okay. In the building permit file.
MRS. GALVIN-Okay. They do not show the location of the docks. They do not show any of the
structural components of the docks. They do not properly meet the requirements of what would be
mandated for establishing whether or not a dock or a commercial dock in particular was structurally
sound, and more to the point, your Code specifically requires, in Section 179-60, that plans be
submitted because there has to be a showing that a dock, in Sub 9 of 179-60B(1)(b)(9), provides that
no dock shall be constructed unless designed to withstand the forces of flowing water and wave
washes. There is no architectural stamp. There is no engineering stamp. There is no stamp that
appears on the documents which were submitted as part of the building permit application. This is
in direct violation of Section 7209 of the New York State Education Law, which requires specifically
that all plans and specs must be signed and sealed by professional engineers before they are
approved. The specific language says, and I quote “No official of this State, or of any City, County,
Town or Village therein, charged with the enforcement of laws, ordinances or regulations, shall
accept or approve any plans or specifications that are not stamped”. These are not. What we have
received through FOIL of the building plan application by Mr. Parillo clearly are just hand sketches,
and they do not even show the location of where these docks are proposed to be placed. The fact
that they’re in the water now is irrelevant. The Statute is very specific in its requirements.
additionally, Section 179-60B(1)(b), in its entirety, deals specifically with docks and moorings. It
requires specific setbacks. It requires specific distances being met with respect to the water line. If
you will look at the building permit file, there’s no water. There’s no land. These are apparently
hanging in mid air, if the application as submitted is to be taken on its face. In addition, the
provision of 179-60B(1)(b)(6) provides that no dock is to be constructed to interfere with normal
navigation or reasonable access to adjacent wharves. As Mr. Salvador can attest, the way in which
the docks have now been constructed does interfere with the reasonable access to his adjacent
wharves. There is a situation which exists now as a result of the placement and construction of these
docks, wherein the boats which are at the Parillo side of the docks interferes with, because of the
proximity to them, with boats that are docked at Salvador’s docks. With respect to that, it has not
even been addressed because you can’t even tell where these are.
MR. HAYES-I have one question, because I guess I’m getting confused here, and I’m sorry to
interrupt. I guess I’m getting confused between flaws in the building application, or the, as she’s
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pointing out, versus the appeal, based on colorful title, if you will, or colorable interest or whatever. I
mean, is she going to, are you going to arrive at that?
MRS. GALVIN-That’s part of where we’re heading.
MR. HAYES-Okay.
MRS. GALVIN-Title is not the only issue. The decision of the Department in the issuance of the
permit was hinged upon a title question which we believe is erroneous. Title is an issue, but that is
not the sole determinative issue in arriving at a determination as to whether or not a building permit
is to be issued.
MR. HAYES-Is that challengable, though, under this appeal? That’s my question.
MRS. GALVIN-Yes, it is.
MR. BROWN-This appeal is, from the way I read it, you all can interpret it your own way, but it’s
specific as to was the determination made to issue the building permit sufficient based on the claim
of the ownership, not of the validity of the application.
MR. HAYES-That’s what I’m asking.
MR. STONE-Yes, that’s what the application says.
MR. HAYES-That’s the wording of the appeal.
MRS. GALVIN-The wording of the appeal is in that fashion because of the decision resulting from
the issuance of the permit. The permit was issued, based on specific language. That specific
language deal with the title question. It did not deal with any of the other issues.
MR. STONE-I understand, but Mr. Salvador’s application, I’m going to read it for the record, again,
it is a specific request. “Zoning Administrator’s determination that Mr. Parillo has a “colorable
claim” to lands owned by this applicant, and that such claim is sufficient to issue a building permit”.
It only has to do with the colorable claim to the lands owned by this applicant. The fact that the
building permit file is flawed, which you are attempting to tell us, as Mr. Hayes points out, is not
germane to Mr. Salvador’s language.
MR. HAYES-To his appeal.
MR. STONE-To his appeal.
MR. MORGAN-But if you recall the previous hearing we had in this matter, there was a great
discussion in relation to why the building permit wasn’t issued. The sole given reason, at that time,
was because there was a dispute over ownership. That continues through this finding. That does not
mean that a finding that is flawed, as a matter of law, can stand.
MR. STONE-There’s no reference in this application for an appeal to any other application for an
appeal. We are standing on the merits of this particular handwritten document by Mr. Salvador. I
mean, he has to be responsible for what he wrote. I think Mr. Hayes is correct in saying that’s what
we’re here about. Is there the possibility of a colorable claim in this thing.
MRS. GALVIN-I beg to differ with you, Mr. Chairman, with respect to what the appeal is on. It is
on the decision as the decision reads, and part of what that decision deals with is a determination that
was made by Mr. Round which interpreted the Zoning Ordinance and the land use regulations as he
says in his final paragraph. Additionally, it all hinges on the issue of whether or not the docks were
destroyed and were being rebuilt in accordance with Section 179-83. That goes specifically to the
title issue because Mr. Round has interpreted a removal of the docks which was done at the direction
of a court order to be an Act of God and beyond the control of man, when it actually is clearly
within the control of man. It was done as a result of the specific court order.
MR. HAYES-Maybe you could back up there, as well. The court order, Craig, is that your
understanding that these were removed as a result of a court order?
MR. BROWN-I’m not aware that the court order required the docks to be removed. I don’t know.
I can’t speak one way or the other.
MR. HAYES-You’re testifying that that is, in fact, the case? That was the specific remedy?
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MR. MORGAN-That was the impact of the court order. The court order basically, without
definition, transferred, I’m talking about the Appellate Division decision of March 11 or 12 1998.
thth
It basically transferred ownership of two separate parcels, two separate sections of property. They
still remain to be defined. That’s part of the appeal that’s still pending.
MR. HAYES-How it’s going to be split up.
MR. MORGAN-But the courts basically said that a portion of the property that Mr. Salvador had
believed to be his, and upon which he had two docks, then would belong to Mr. Parillo, and on the
other side of that same issue, there’s another area where the two docks that Mr. Parillo claimed was
on his property, the court found to be Mr. Salvador’s property now, but what we’re dealing with is
the two docks that were found by the court to be on property that they said was Mr. Parillo’s. To
effectuate that order, we advised Mr. Salvador to remove those docks. That’s the impact of that
order.
MR. STONE-That was your advice, not the courts determination.
MR. MORGAN-That’s basically what the court’s determination was.
MR. STONE-Did they tell him to go out and physically take these docks down because they’re on
somebody else’s property?
MR. MORGAN-They remanded it to Judge Moynihan for further proceedings.
MR. HAYES-So there was no specific remedy to that effect, though.
MR. MORGAN-But you’re begging the question. What you’re seeking to do is to put yourself in
violation of what you just stated to the previous applicants. You’re seeking to ratify what we are
telling you is an illegal act that was construction without a permit, in expso facto, later, after the fact,
and the appeal deals, since the old thread of the original appeal, our original position here, because
the Town’s position had been that there was no permit issued because there was a dispute as to
ownership, if you recall our previous discussion. That’s what Mr. Salvador focused his language on,
but that does not mean that the other issues, whether you find that determination was lawfully
proper and based properly upon your Zoning Code, is not obviated by the language of the appeal.
MR. STONE-Was the removal of the docks lawful? Was the demolition permit?
MR. MORGAN-Yes, as a matter of fact, he applied for a demolition permit, which he was told he
did not need. Mr. Salvador, in every instance here, has come to your Building Department to apply.
I’m sure you’re familiar with that. He does attempt, everything he does he attempts to do to the
letter of the law.
MR. STONE-I understand that.
MR. MORGAN-Okay, and what we’re asking is the same standard be applied to others, in this case
Mr. Parillo. Now, also one thing that should be factored into your determination is that since
Zoning Code is in derogation.
MR. STONE-Hold it. Mr. Parillo is not a party to this proceeding.
MR. MORGAN-That’s correct.
MR. STONE-Well, you used this as a question of did Mr. Round do the right thing, are we going to
agree or disagree with Mr. Round’s determination. It has nothing to do with who owns that land. It
has nothing to do with whether the building permit was right. I mean, you can argue that.
MR. HAYES-I guess it does have to do with the land, because that’s the nature of the appeal.
MR. STONE-It has to do with who owns the land.
MR. HAYES-Yes, at the present time.
JOHN SALVADOR
MR. SALVADOR-At the present time.
MR. MC NULTY-Mr. Chairman, let me point out one other thing. My initial reading was like Mr.
Hayes, looking at Section 7 here, where it’s written in, it says “Zoning Administrator’s determination
that Mr. Parillo has a colorable claim….” But then looking a little further, the next line printed says,
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please attach additional documents, letters, maps, and so forth, that may support this application, and
attached is a copy of Chris Round’s memorandum.
MR. STONE-Okay.
MR. MC NULTY-Which I think perhaps does open us up to some of the other questions that are
stated in that memorandum.
MR. STONE-Good point.
MR. HAYES-You don’t think that the please attach the documents, letters, maps, that’s the applicant
that’s supposed to do that. That’s the form that he’s filing.
MR. MORGAN-That’s the Appellant, would be the person who’s applying for the review, and he
attached the entire decision, which calls into question the entire decision.
MR. STONE-It’s attach additional documents that may support this application for an appeal. It
doesn’t support the appeal.
MRS. GALVIN-It’s our position it does on its face, that the memorandum from Mr. Round is
flawed on its face and does not meet the required standards for the issuance of the building permit.
Additionally, the issue was raised about the removal of the docks. Mr. Salvador was directed by the
court to vacate the property, even though the property, the specific lines were not drawn at that time,
and it was referred back to Judge Moynihan he was directed to vacate. Additionally, he had to
remove a power cable, which had been placed underground, and that took some time to effectuate,
but he commenced that process at the same time.
MR. HIMES-In other words, is it the matter of the dock construction being given a permit, is based
upon a flaw in connection with zoning because the docks weren’t being repaired because the wind
was blowing or something. They were gone because of a court order, and therefore, the zoning law,
the zoning regulation is not applicable, and that is the only thing we have an interest in connection
with, whether it was right or not? Whether or not zoning has any bearing on construction of these,
or building permit? Am I right, is that what it is?
MR. MORGAN-That’s a portion of it, but it’s not the whole issue. One thing I’d like to point out is
the docks that were, the new docks that were built by Mr. Parillo were not in exactly the same
configuration nor location as the docks taken out by Mr. Salvador. Mr. Salvador’s docks, had a slight
dog leg in them, and these are straight docks, what we’re dealing with. So they’re not pure
replacement docks. That was part of the basis of the decision we’re talking about.
MR. HAYES-You don’t think that that idea right there would be a matter of like civil litigation,
whether, in fact, there was a taking, based on the construction of the docks in that fashion versus the
old fashion.
MR. MORGAN-But that’s the issue that’s separate from this, and you said so yourself. What I said,
the case law that’s applicable is once there is an indication of ownership made to the authority, which
in this case is the Town’s Building Department, they go ahead and enforce the law. What I had
started to say before was that any Zoning Ordinance is in derogation of common law, and therefore,
any ambiguity is resolved against the Town. In this case we don’t feel there’s an ambiguity, because
we don’t feel that proper procedures were followed, and that’s why we’re here.
MR. ABBATE-Let me try and clear this all up. Everybody is presenting persuasive argument here.
Counsel has agreed that title is an issue. Am I correct? You said that, that title is an issue. So would
you also agree that as part of title being an issue, this is a dispute over ownership?
MRS. GALVIN-This is, the matter that’s currently before this Board has nothing to do with
ownership, because this Board has already, or at least the Building Department, has already reached
an opinion that Mr. Parillo has presented to the Building Department adequate indicia of ownership
to allow them to issue a permit. That’s Hurdle One. Whether or not that’s a correct determination is
irrelevant at this point in time, in terms of our argument. We contest whether or not Mr. Parillo’s
ownership rights, but that’s a matter for civil litigation.
MR. ABBATE-You took the words right out of my mouth.
MRS. GALVIN-However, that has nothing to do with the whether or not a municipal entity properly
issues a permit, and that’s what we’re here about tonight.
MR. ABBATE-But you can’t dissect your arguments by saying, title is an issue in one instance, and
title is not an issue, your total argument includes that title is an issue, and this is a dispute over
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ownership, and as a result, I believe it’s a property dispute, and this should be a matter of civil
litigation, and this Board should not become involved in it.
MRS. GALVIN-And then no building permit should have been issued.
MR. ABBATE-That’s your statement.
MRS. GALVIN-There’s only one course of action that Mr. Salvador has at this time. Once the
building permit was issued, in order to exhaust his administrative remedies to do anything, he must
follow all of the steps. This step is the next step. He must appeal to this Board. He believes the
building permits were improperly issued, and we concur that that building permit was not properly
issued and that Mr. Round’s memorandum of April 26 supports the improper issuance.
th
MR. ABBATE-One final question then I’ll keep quiet. Is this matter an active subject of litigation?
Is this subject an active, continue to be an active subject of litigation, that we’re discussing this
evening?
MR. MORGAN-The underlying the order, the last order was issued by Judge Moynihan, last year, is
the subject of an appeal with the Third Department. That order deals with the issue of damages, and
boundaries, but the underlying decision is final, that the property has been found to be, a portion of
the property, whatever that portion is determined to be ultimately, to be Mr. Parillo’s.
MRS. GALVIN-Mr. Salvador’s.
MR. MORGAN-The ultimate portion Mr. Salvador’s, but that’s not before the Board. What we’re
saying is that the first appearance before the Board, we dealt with the issue, and the Board responded
that there was no building permit issued. The construction had been done. Now we’re here to
appeal the determination to issue that building permit, which was issued following the direction of
this Board. We’re saying the grounds it was issued on are wrong.
MR. ABBATE-Okay. Thank you.
MR. HAYES-I guess the problem that I have with that is that doesn’t appear in Mr. Salvador’s
appeal.
MR. MC NULTY-Jaime, it does, because the copy of the memo that’s attached is attached by Mr.
Salvador.
MR. HAYES-Right, but what I’m saying is he’s not appealing the memo, Chuck. He’s appealing the
decision about colorful claim.
MR. SALVADOR-Excuse me. May I?
MR. HAYES-Sure.
MR. SALVADOR-This document that was issued by Mr. Round was issued after the closing date of
filing a notice of appeal for this term of your Board was allowed. I was allowed an extra day to file
my notice of appeal because this was not timely, okay. That’s Number One. I appeared at the office
and I had like two minutes to fill out that piece of paper.
MR. HAYES-I’ll accept that. I understand.
MR. SALVADOR-Okay. So that’s why I attached it. I think what I’m appealing here is Mr. Round.
I think he has acted beyond his authority in allowing a building permit to be issued. The building
permit application was not complete. It was not accurate, and he should never have allowed that to
move forward for a building permit to be issued. Mr. Hatin issues the building permits. It’s Mr.
Round that checks that the application is complete and that the application meets the Zoning
Ordinance. Okay.
MR. HAYES-I understand.
MR. SALVADOR-And I’m appealing Mr. Round’s determination that that application should move
forward to receive a building permit. His determination, I maintain, he made his determination on
the basis of an incomplete and inaccurate permit application.
MR. STONE-Let me just ask a question of Staff. Because this is something I really don’t know.
Building permits, where are they covered in Town law? Are they in Chapter 179?
MR. BROWN-Off the top of my head, I don’t know.
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MR. STONE-I mean, I don’t see anything about building permits in 179.
MR. BROWN-I don’t know. I could find it for you.
MR. STONE-Well, the reason I ask the question.
MR. BROWN-There is a section that deals with permit, or submission requirements.
MR. STONE-Is it in Chapter 179?
MR. BROWN-I don’t know.
MR. STONE-Because it says here, the Zoning Board of Appeals shall have appellate jurisdiction for
all matters pertaining to this Chapter.
MR. SALVADOR-Right, and this allows an appeal of a Zoning Administrator’s determination.
MR. STONE-If it’s a matter pertaining to this Chapter.
MRS. GALVIN-Section 179-98 specifically says “The Zoning Administrator shall have the power
and duty to administer and enforce the provisions of this chapter.” Now that is exactly what Mr.
Round was stating he was doing.
MR. STONE-I understand, this chapter. I’m saying are building permits covered in 179?
MRS. GALVIN-He issued the building permit in reliance upon Section 179-83, under the
Destruction provisions. What he failed to do was he failed to address 179-60B, in particular (1)(b) in
its entirety. It would be 179-60B(1)(b)(5), B(1)(b)(6), and B(1)(b)(9) in particular. In addition, Mr.
Salvador is well aware of the hoop that has to be jumped through with the Lake George Park
Commission with respect to matters involving docks. There is no indication or no restriction with
respect to the construction of the docks by Mr. Parillo, for which the building permit was issued, that
Mr. Parillo meet any requirements of the Lake George Park Commission, of the DEC, of the APA,
of any of the other permitting agencies. The docks were gone. They were not destroyed by an Act
of God. They were destroyed as a result of a court order . They were removed. It was not a
replacement of destroyed docks by Act of God.
MR. STONE-I understand your point. I’m only asking a very technical question, because I don’t see
the word “building permit’ in Chapter 179. I don’t see it, and that’s what we’re empowered here to
talk about. He cited destruction. It doesn’t say anything about having a building permit.
MRS. GALVIN-Will you go to Page 18023 of your Zoning Code, Section 179-60B(1)(b), that
appears on 18023.
MR. STONE-B(1)(b), right. Go ahead.
MRS. GALVIN-That says, “Docks and moorings.” Do we agree we’re talking about docks?
MR. STONE-Okay.
MRS. GALVIN-“In all residential and recreation commercial zones….”
MR. STONE-It does mention the word building permit in that definition. That’s all I’ve asked,
because I haven’t seen it here before. That’s all.
MR. HAYES-I have one question for Counsel. As far as Mr. Round’s decision making process, he
refers to that section, and part of that section, it says it’s allowable based on fire, flood, wind,
hurricane, tornado, and then, or other act beyond the control of man. Now, let me finish my
statement here. Theoretically, because of the nature of the court order, the properties being
swapped, at the time, Mr. Parillo wouldn’t have control of the property until the decision was issued,
and Mr. Salvador removing the dock would, theoretically, be beyond his control, as if it was an Act
of God.
MRS. GALVIN-But it’s not beyond the control of man. I don’t think that the Appellate Division
would like to be considered sub human, or try to place themselves in the position of God. However,
I don’t know. You could ask them.
MR. BRYANT-Can I ask a question, please, Mr. Chairman?
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MR. STONE-Surely.
MR. BRYANT-Counselors, you know, you’re talking about this Act of God clause, and I don’t think
that’s what Mr. Salvador said at all. I’m hearing different things here from the Board and from Mr.
Salvador, from Counsel. Let me just try to clarify it in my mind, okay. Mr. Parillo, well, after Mr.
Salvador tore down the two docks, for whatever reason, the court determined that they had to be
torn down, it wasn’t an Act of God. Mr. Salvador did it with his own bare hands.
MR. SALVADOR-Could I interrupt? Before I commenced work, I came to the Town Hall.
MR. BRYANT-To get a permit.
MR. SALVADOR-And I filed a demolition permit. I paid a fee. I paid a fee at the Town Clerk’s
Office for that permit. After that was done, I was told by Mr. Hatin, and I don’t know by what
authority he can do this, but he did it. He said, you don’t need a demolition permit, okay, and they
refunded my money.
MR. BRYANT-Okay. Now Mr. Parillo started building two docks. After you removed your docks
and some time passed, he started building two docks, and then after the fact, the docks are complete,
he comes to the Town and he gets a permit.
MR. SALVADOR-No, let me clarify. Mr. Parillo commenced building the docks. He started
moving material and equipment onto our land, onto our land. I went to Mr. Hatin and I said,
doesn’t he at least need a building permit to do that? Yes, and Mr. Hatin visited the site and
informed Mr. Parillo, during the construction, that a building permit was necessary, and that’s when
Mr. Parillo filed his application.
MR. BRYANT-So then Mr. Parillo filed the application, and it was eventually granted?
MRS. GALVIN-After the docks were completed.
MR. BRYANT-Okay, and now basically what you’re saying is what you have on your application
relating to the colorable claim is not really your appeal. You’re really appealing the fact that you
believe that the whole process, the application process, was incomplete, inaccurate, and the permit
should not have been granted. That’s what you’re saying?
MR. SALVADOR-No, that Mr. Round. I’m not complaining about Mr. Hatin’s action, although we
have pointed out that it doesn’t meet the Code, okay. Mr. Round is the gentleman who’s action we
are appealing here, and we are doing that in accordance with the Zoning Ordinance. It allows he to
bring an appeal, a determination he makes before this Board for review, and his determination is
embodied in this memo.
MR. BRYANT-In that memo, okay, and what, specifically, are you appealing, relating to that memo?
MR. SALVADOR-All of it. It’s attached to my appeal.
MR. ABBATE-Mr. Chairman, you know, we keep mentioning the word “Chris Round”, who is a
human being, correct?
MR. STONE-Yes.
MR. ABBATE-Mr. Round is not here to defend himself.
MR. SALVADOR-That’s his choice.
MR. ABBATE-Wait a second. I’m not so sure whose choice it is. I’m just saying.
MR. STONE-It’s his choice.
MR. ABBATE-It was his choice? I don’t know.
MR. STONE-He wrote this memo. This is his position, obviously, and we have to either agree with
his position or disagree with his position.
MR. ABBATE-Okay.
MR. STONE-I mean, that’s basically it.
MR. HAYES-Presumably, he’s not here because he feels that memo represents his position.
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MR. ABBATE-I’m just trying to give Chris Round a fair shake, that’s all.
MR. HAYES-And we’ve had this discussion.
MR. ABBATE-Fine.
MR. SALVADOR-There is a procedure within the Town Planning Department, and the procedure
holds that when a building permit application is received by Mr. Hatin, that he sends that building
permit application to the Zoning Administrator, who makes a determination that all other aspects of
the Zoning Ordinance are in conformity, and if they are not, he makes the applicant file for a site
plan review or a variance. That is the sole, that is the responsibility of the Zoning Administrator, and
my appeal here is that Mr. Round has acted improperly in the discharge of his duties, as he enforces
this Zoning Ordinance. That’s my appeal, okay, and as evidence, we submit that the application, the
building permit application, was inaccurate and incomplete.
MR. BRYANT-I don’t understand why you feel that he acted incorrectly when he was basically
responding to the original appeal, and the result of what this Board.
MR. SALVADOR-The original appeal was the lack of his making a determination. He was sitting on
this application for a year, doing nothing.
MR. BRYANT-Well, okay. You say that you disagree with this whole thing, but what specifically?
Because as I read it, it seems pretty logical to me.
MRS. GALVIN-Very specifically, we believe that Mr. Round did not properly interpret, as he said he
did, the Town’s Zoning Ordinance and applicable laws, rules and regulations. He set forth his
position that being Mr. Round his April 26, 200 memo. That memo is the only thing we have to
appeal. What he did was he acted at the direction of this Board to do something with that permit.
Mr. Salvador had no standing to oppose or to support anything until after Mr. Round acted.
Therefore, the last appearance before this Board. Now Mr. Round acted on April 26 and sent the
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application of Mr. Parillo for the long completed docks, that had no building permit, on to have a
late permit, a permit issued as a late starter.
MR. STONE-Okay. Well, let me ask you a question. If you believe your argument. Obviously you
do, this is hypothetical, what motion would you make? I’d like to know what you’d like us to vote
on.
MRS. GALVIN-I believe that an appropriate motion would be to direct Mr. Round to rescind his
memorandum of April 26, and as part of that, it would be necessary for Mr. Hatin to revoke the
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existing building permit until all applicable laws, rules and regulations of this Board are met. That
means a proper application is placed before Mr. Hatin and Mr. Round for review, that Mr. Parillo
meets all requirements, and that Mr. Parillo apply for a variance. He went ahead and built the docks
with no permit.
MR. STONE-Okay. I think you go beyond the scope of the Zoning Board with that particular
motion. Our question before us, was Mr. Round correct in saying that there was colorful title and
therefore could issue a building permit, period. That’s being very simplistic, but that’s what our job
is.
MR. SALVADOR-Mr. Stone, a better phrase would be, was Mr. Round correct in his determination
as embodied in his determination. This is his determination, okay.
MRS. GALVIN-The entire memo. It’s including his interpretation of the applicable laws, rules and
regulations.
MR. BRYANT-I don’t know that the entire memo is, that the paragraph relating to the Acts of God
is not correct, and I agree with that to some regard, but in the paragraph prior to that, where he says
that Mr. Parillo had no control over what was happening, and apparently not. It was his property.
MRS. GALVIN-He had control over whether or not he built the docks without a permit. He chose,
knowingly, to proceed.
MR. BRYANT-But that’s in relation to the destruction of the docks, and not in relation to the
building of the docks.
MRS. GALVIN-This Board has a legal obligation to enforce the laws, rules and regulations which it
is to apply. As this Board just told the last applicants, the Botches, that you’re not a rubber stamp,
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(Queensbury ZBA Meeting 5/24/00)
and that persons are supposed to ask permission from the Board before they do something. The
same is true with building permits.
MR. BRYANT-That doesn’t pertain to what I just asked you about the prior permit relating to Mr.
Parillo’s ability to control the removal of the docks. That’s all I’m asking.
MRS. GALVIN-Whether or not he could control the removal of the docks is irrelevant. Number
One, Section 179-83 does not have a provision for rebuilding for reason of removal by court order.
That’s not a provision, and your Ordinance is very specific, and you are bound by the scope and the
limits of that Ordinance. It refers to Acts of God. Regardless of whether or not Mr. Parillo could
determine whether the docks were removed is irrelevant. The fact is they were not removed by Act
of God.
MR. MORGAN-I would also like to add that as I recall, I don’t have evidence before me, with me
tonight, but we received a letter from Mr. Parillo’s counsel indicating he would remove the docks if
we did not. So we had no choice in advising our client to do as he did. What we’re saying is
regardless of what happened to the docks, they were properly removed, whether John properly, he
applied for a demolition permit, which he was told he did not need. The act of building new docks,
not exactly in the same location, configuration constitutes new construction, which required a proper
building permit from this Town.
MR. HAYES-So that’s really, then, what you’re appealing,. Mr. Salvador, essentially.
MRS. GALVIN-The entire determination.
MR. HAYES-I understand, but you’re asking us for the leniency to go outside of the exact word of
his appeal.
MR. SALVADOR-The exact word of my appeal includes this document. It’s attached, is it not?
MR. HAYES-It is.
MR. SALVADOR-Okay. The exact word of my appeal includes everything embodied on this piece
of property.
MR. STONE-First of all, I want to caution the applicant, and I should have done this earlier. The
word “God” does not appear in this Ordinance. They are not acts of God. It does not say that, and
I would prefer that we not use that terminology, since it isn’t in the Ordinance. I happen to believe
in the Almighty, but he is not, or she is not listed here.
MR. ABBATE-Mr. Chairman, excuse me. Would it be inappropriate if I requested an Executive
Session? May request Executive Sessions?
MR. STONE-I think it would be a good idea.
MR. ABBATE-Yes. I’d make a motion that we have an Executive Session.
BETTY MONAHAN
MRS. MONAHAN-On what grounds? You have only certain grounds that you can go into
Executive Session. Can you meet that test?
MR. STONE-Yes, we can.
MRS. MONAHAN-But what? You have to state that.
MR. STONE-We could discuss, and I can’t make it part of the record.
MR. BROWN-You could discuss the appeal.
MR. ABBATE-I think we need clarification.
MR. STONE-The legal aspects of the appeal.
MR. ABBATE-Exactly.
MRS. MONAHAN-I’m not sure. Only if it’s going to get the Town in a lawsuit, and you have to say
how it might get the Town in a lawsuit.
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(Queensbury ZBA Meeting 5/24/00)
MR. BRYANT-I don’t think we have to say that, Mr. Chairman. The motion is made that we go into
Executive Session to discuss the legality of the appeal, and I think that we ought to act on that
motion.
MR. STONE-I do think, and if we’re wrong, then we’ll err on that side, but I think we can discuss
the legal aspects as it relates to potential legal impact on the Town of Queensbury.
MR. ABBATE-That’s my motion, Mr. Chairman, that we have an Executive Session.
MR. STONE-Do I have a second to that motion?
MR. BRYANT-I second it.
MOTION TO GO INTO EXECUTIVE SESSION TO DISCUSS THE LEGAL ASPECTS
OF APPEAL NO. 4-2000 JOHN SALVADOR, JR. AS IT RELATES TO POTENTIAL
LEGAL IMPACTS ON THE TOWN OF QUEENSBURY, Introduced by Charles Abbate who
moved for its adoption, seconded by Allan Bryant:
Duly adopted this 24 day of May, 2000, by the following vote:
th
MR. HIMES-I wanted to ask one more question before I say yes.
MR. STONE-Go ahead.
MR. HIMES-In connection with the Zoning Board’s involvement with all this, and the fact that it
wasn’t water or an Act of God, or however you want to state it, that caused the docks to be gone, in
the event there had been a building permit to put those docks there, what was it that would have put
that before the zoning committee? Are there setback problems, like you mentioned, they’re right on
top of you?
MRS. GALVIN-It’s very specific, in 179-60B(1)(b).
MR. HIMES-Yes, but I don’t know what’s the problem on your side.
MRS. GALVIN-Specifically, what the problem is, is the way the docks have been positioned by Mr.
Parillo interferes with the normal navigation and reasonable access to Mr. Salvador’s adjacent
wharves.
MR. HIMES-I mean, that’s subjective. Is there anything that says like a certain number of feet?
MR. SALVADOR-Fundamentally, we all forget, these are commercial docks. These are commercial
docks. This is a one acre Waterfront Residential zone. These are nonconforming uses, commercial,
not private, commercial, okay, and there is a separate set of rules and regulations that cover this sort
of construction activity. It is not necessary, for instance, for a residential homeowner to have
licensed certified drawings for the construction of a structure. He can design his own and build it. A
commercial entity, however, cannot, cannot put forth a structural design, and that’s what a dock is,
okay. It’s a structure, cannot do that without certified drawings, and Mr. Hatin and Mr. Round
cannot accept an application that is not supported by that.
MR. HIMES-That’s true, but in so far as (lost words) what would bring that before the Zoning
Board?
MR. STONE-The decision by the Zoning Administrator. That brings it before the Zoning Board.
Any decision by the Zoning Administrator that’s appealed, can be appealed to us. That’s the only
reason that it’s before us. So continue with the vote.
MR. HIMES-All right.
AYES: Mr. Bryant, Mr. Urrico, Mr. Hayes, Mr. McNulty, Mr. Himes, Mr. Abbate, Mr. Stone
NOES: NONE
ABSENT: Mr. McNally
MR. STONE-We’ll adjourn to the other room. (The Board came back in after a few minutes). Do
you have anything more to add to your application? What I propose to do, when you’re done, that I
would open the public hearing, and will close the public hearing, and then we will make a motion.
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(Queensbury ZBA Meeting 5/24/00)
MRS. GALVIN-There is one additional item that I’d like to point out to the Board, and that’s the
provisions of Section 179-104, Zoning Permits. Mr. Chairman, you asked the question earlier about
building permits. Well, based upon review of your Code, and I’m certain you’re more familiar with it
than I am, I don’t find a definition for zoning permits, but under 179-104 A, it states, “Permit
required, no building, structure or sign shall be erected, added to or structurally altered until a permit
therefore has been issued by the Zoning Administrator. No new use of a building or structure shall
be undertaken until a permit therefore has been issued by the Zoning Administrator. I think that
Section 179-104 can only be interpreted to refer specifically to building permits.
MR. STONE-Building permits are listed in sub section paragraph b.
MRS. GALVIN-That’s correct.
MR. STONE-Not in A. These are zoning permits, but again, I hear the comment. So, if you’re
happy, we’re going to open a public hearing. I’ll open the public hearing. Anybody wishing to speak
in favor of this appeal? Anybody in favor? Anybody opposed? Anybody opposed? Any
correspondence?
MR. MC NULTY-No correspondence.
PUBLIC HEARING OPENED
NO COMMENT
PUBLIC HEARING CLOSED
MR. STONE-Anything more you want to add, on the basis of the public hearing that you heard? I
am proposing a motion.
MOTION THAT BY LITERAL INTERPRETATION OF THE APPEAL WORDING,
WE SUPPORT THE ZONING ADMINISTRATOR’S DETERMINATION THERE WAS
“COLORFUL CLAIM TO TITLE, AND THAT SUCH CLAIM IS SUFFICIENT TO
ISSUE A BUILDING PERMIT”, Introduced by Lewis Stone who moved for its adoption,
seconded by Charles Abbate:
Duly adopted this 24 day of May, 2000, by the following vote:
th
AYES: Mr. Abbate, Mr. Bryant, Mr. Urrico, Mr. Hayes, Mr. McNulty, Mr. Himes, Mr. Stone
NOES: NONE
ABSENT: Mr. McNally
MR. STONE-There you have it. We support the Zoning Administrator, on the basis of what we
said. The ball’s in your court.
MR. MORGAN-Would you mind just re-reading the resolution, Mr. Chairman?
MR. STONE-By a literal interpretation of the appeal wording, we support the Zoning
Administrator’s determination there was colorful claim to title, and that such claim is sufficient to
issue a building permit. That is quoting from Mr. Salvador’s application for an appeal.
MR. MORGAN-So the Board has unanimously adopted the position that the fact that the appeal
encompassed the statement, as a portion of the notice of appeal, that it didn’t include the underlying
issues?
MR. HAYES-No, you’re saying that.
MR. STONE-You’re saying that, of the appeal wording. The wording is Mr. Salvador’s appeal
wording.
MR. MORGAN-Okay.
MR. STONE-And I’ll make it more specific, if you’re going to be, by a literal interpretation, I’m
taking back the motion, does everybody agree? By a literal interpretation of Mr. Salvador’s wording
on the appeal, wording on the appeal, as written, we support the Zoning Administrator’s
determination there was colorful claim to title, and that such claim is sufficient to issue a building
permit.
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(Queensbury ZBA Meeting 5/24/00)
MR. MORGAN-And that’s it.
MR. STONE-That’s it. Now we’ll vote again.
MOTION THAT BY LITERAL INTERPRETATION OF MR. SALVADOR’S WORDING
ON THE APPEAL, AS WRITTEN, WE SUPPORT THE ZONING ADMINISTRATOR’S
DETERMINATION THERE WAS “COLORFUL CLAIM TO TITLE, AND THAT
SUCH CLAIM IS SUFFICIENT TO ISSUE A BUILDING PERMIT”, Introduced by Lewis
Stone who moved for its adoption, seconded by Charles Abbate:
Duly adopted this 24 day of May, 2000, by the following vote:
th
AYES: Mr. Abbate, Mr. Bryant, Mr. Urrico, Mr. Hayes, Mr. McNulty, Mr. Himes, Mr. Stone
NOES: NONE
ABSENT: Mr. McNally
MR. STONE-That’s it.
MR. MORGAN-I thank the Board for it’s consideration. I, obviously, dissent from your position.
We’ll see if it’s revisited.
MR. STONE-Obviously it will be. We understand that.
CORRECTION OF MINUTES
February 23, 2000: Page 20, Mr. Lapper, in the middle of the page, it says, Mr. Hayes: Sure, then it
should say Lapper, Mr. Lapper made the rest of the statement
MOTION TO APPROVE THE MINUTES OF THE ZONING BOARD OF APPEALS
MEETING DATED FEBRUARY 23, 2000, Introduced by Paul Hayes who moved for its
adoption, seconded by Lewis Stone:
Duly adopted this 24 day of May, 2000, by the following vote:
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AYES: Mr. McNulty, Mr. Himes, Mr. Abbate, Mr. Bryant, Mr. Hayes
NOES: NONE
ABSTAINED: Mr. Urrico, Mr. Stone
ABSENT: Mr. McNally
March 22, 2000: NONE
MOTION TO APPROVE THE MINUTES OF MARCH 22, 2000, Introduced by Lewis Stone
who moved for it adoption, seconded by Paul Hayes:
Duly adopted this 24 day of May, 2000, by the following vote:
th
AYES: Mr. Hayes, Mr. McNulty, Mr. Himes, Mr. Abbate, Mr. Bryant, Mr. Stone
NOES: NONE
ABSTAINED: Mr. Urrico
ABSENT: Mr. McNally
February 16, 2000: NONE
MOTION TO APPROVE THE MINUTES OF FEBRUARY 16, 2000, Introduced by Charles
McNulty who moved for its adoption, seconded by Allan Bryant:
Duly adopted this 24 day of May, 2000, by the following vote:
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AYES: Mr. Hayes, Mr. McNulty, Mr. Abbate, Mr. Bryant
NOES: NONE
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(Queensbury ZBA Meeting 5/24/00)
ABSTAINED: Mr. Himes, Mr. Urrico, Mr. Stone
ABSENT: Mr. McNally
March 15, 2000: NONE
MOTION TO APPROVE THE MINUTES OF MARCH 15, 2000, Introduced by Charles
McNulty who moved for its adoption, seconded by Charles Abbate:
Duly adopted this 24 day of May, 2000, by the following vote:
th
AYES: Mr. McNulty, Mr. Himes, Mr. Abbate, Mr. Bryant, Mr. Stone
NOES: NONE
ABSTAINED: Mr. Hayes, Mr. Urrico
ABSENT: Mr. McNally
MR. STONE-Okay. I move we adjourn.
On motion meeting was adjourned.
RESPECTFULLY SUBMITTED,
Lewis Stone, Chairman
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