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2002-06-19 QUEENSBURY ZONING BOARD OF APPEALS SECOND REGULAR MEETING JUNE 19, 2002 7:00 P.M. MEMBERS PRESENT LEWIS STONE, CHAIRMAN CHARLES MC NULTY, SECRETARY NORMAN HIMES CHARLES ABBATE ROY URRICO PAUL HAYES ALLAN BRYANT CODE COMPLIANCE OFFICER -BRUCE FRANK STENOGRAPHER- MARIA GAGLIARDI AREA VARIANCE NO. 9-2002 TYPE II DAVID & LINDA JOHNSON PROPERTY OWNER: SAME AS ABOVE AGENT: WD WILLIAM CONSTRUCTION, INC. ZONE: WR-1A, APA, CEA LOCATION: 347 CLEVERDALE ROAD APPLICANT HAS CONSTRUCTED A 1,000 SQ. FT. RESIDENTIAL ADDITION. RELIEF IS REQUESTED FROM THE SIDE SETBACK REQUIREMENTS OF THE WR-1A ZONE AND FOR THE EXPANSION OF A NONCONFORMING STRUCTURE. CROSS REFERENCE: SP 43-99, BP 99-709 (BEDROOM,KITCHEN, BATH) ADIRONDACK PARK AGENCY WARREN COUNTY PLANNING: 2/13/02 OLD TAX MAP NO.: 14-1- 9.1 NEW TAX MAP NO.: 226.12-1-48 LOT SIZE: 0.47 ACRES SECTION: 179-16F, 179- 79 BRAD KRAUSE & WAYNE WILLIAMS, REPRESENTING APPLICANT, PRESENT MR. STONE-I want to remind the applicant that, while it may says it says in the Staff notes, which are available if you want to read them, that this needs a ZBA quorum, I want to make everybody aware that a quorum happens to be four for this Board. Tonight we have a full Board, but we’re at this point in this application because at a previous time we did not, and the applicant wished a full Board, but a full Board is four or more. I just want to make that very clear. Would you read the tabling and the Staff notes, please. MR. MC NULTY-Sure. Tabling motion for Area Variance No. 9-2002, David and Linda MOTION TO TABLE AREA Johnson, meeting date was Wednesday, May 22, 2002 “ VARIANCE NO. 9-2002 DAVID & LINDA JOHNSON , Introduced by Lewis Stone who moved for its adoption, seconded by Paul Hayes: 347 Cleverdale Road. Until one of the June meetings, the meeting most likely to have a full Board in attendance, to be determined by Staff as soon as the applications close for the month of June. nd Duly adopted this 22 day of May, 2002, by the following vote: AYES: Mr. Hayes, Mr. Urrico, Mr. Bryant, Mr. Abbate, Mr. Himes, Mr. McNulty, Mr. Stone NOES: NONE” STAFF INPUT Notes from Staff, Area Variance No. 9-2002, David & Linda Johnson, Meeting Date: Description of Proposed June 19, 2002 “Project Location: 347 Cleverdale Road Project:Relief Required: Applicant has constructed a 1,000 sq. ft. residential addition. Applicant requests 13.13 feet of relief from the 20-foot minimum side setback requirement of the WR-1A zone, § 179-16 and for the expansion of a nonconforming Criteria for considering an Area Variance according to Chapter structure, § 179-79. 267of Town Law: 1. Benefit to the applicant: Applicant would be permitted to keep 2. Feasible alternatives: the addition as built. Feasible alternatives may include completely removing the porch on the south side of the addition, which was not part of 3. Is this the approved plans, and was never shown in the plans for the building permit. relief substantial relative to the Ordinance?: 13.13 feet of relief from the 20-foot minimum requirement may be interpreted as moderate to substantial, relative to the 4. Effects on the neighborhood or community: ordinance (65.7%). Moderate effects 5. Is this difficulty on the neighborhood may be anticipated as a result of this action. self-created?Parcel History The difficulty may be interpreted as self created. (construction/site plan/variance, etc.): AV 9-2002: tabled 5/22/02; request to table because of applicant’s work conflict. AV 9-2002: tabled 4/17/02; request to appear before a full Board. AV 9-2002: tabled 3/27/02; request to appear before a full Board. AV 9-2002: tabled 02/27/02; side setback relief. SP 43-99: 09/21/99; 1000 sq. ft. addition to residential structure. BP 99709: 11/22/99; 2226 sq. ft. residential addition. Staff comments: Moderate impacts may be anticipated as a result of this action. The applicant claims an error by the architect resulted in a building permit being issued in error. Consideration might be given to the removal of the porch on the south side, which would result in 8.08 feet of relief needed in place of the 13.13 feet of relief currently SEQR Status: being sought. Type II” MR. STONE-Please come forward. MR. KRAUSE-We’ve got several parties here tonight. MR. STONE-If you’d introduce them all, I’d appreciate it, or if they’re going to speak. If they’re not going to speak, we don’t. Go ahead. Start with you. MR. KRAUSE-Okay. I’m attorney Brad Krause. I’m with the law firm of Fitzgerald, McPhillips & Cullum. Mr. Cullum appeared here before. Unfortunately, he has some other issues which prevented him from being here this evening, and he sent me in his place. I’d ask you to bear with me, I do have a bit of a cold this evening. I guess, well, let me first introduce the folks that are sitting here. This is Wayne Williams. MR. WILLIAMS-Wayne Williams, residing at 80 Seelye Road. I was the builder of the project. LINDA JOHNSON MRS. JOHNSON-Linda Johnson, owner of the home. MR. KRAUSE-And we may have others testifying during the public hearing. MR. STONE-Fine. MR. KRAUSE-The first item I’d like to draw the Board’s attention to is that we do have three correspondences from neighbors which are in support of the project. MR. STONE-He’s going to introduce those during the public hearing. You can read them or the Secretary will read them. Why don’t you give them to him now, and we’ll put them in the file until such time. MR. KRAUSE-I appreciate it. This matter has been considered by the Board before, and in some detail, but let me just briefly state what the underlying problem is. The chief underlying cause of the problem has been an architectural error. In 1999, the Johnsons had architectural plans drawn up and within those plans, which I believe are before, or a part of the record, there was a plot plan that was created, and the architect rendered the plot plan in such a way to show that the addition that was built was within the setback lines, and pursuant to that plot plan, the builder constructed the addition. The Town Building Department approved the plans and also issued a Certificate of Occupancy. It’s significant that at the time that this was going on, the Johnsons were out of the area. They were in Arizona. So they weren’t here. They had hired professionals to do the job right, and they’re entitled, we believe, they’re reasonably entitled to rely on the people they hired to perform the tests that were done. In addition to the part of the building that was added on to, there was a stoop or porch that was subsequently added after the addition to the home. Although this should not have been done, as it wasn’t part of the original plot plan or the original building plans which were approved, it’s noteworthy that the porch is not so close to the line or it’s not as close to the line as other original structures on the property, which, in fact, hide it from the street and other properties, for example, there’s a shed or a garage. There’s also a carport, which are much more closer to the property line than the porch itself. Furthermore, the Johnsons built this porch with a good faith belief that it was within the setback line. Again, they relied on that architect’s map, that plot plan which showed that the addition which was built to the house was within the setback lines, and the addition of a small porch didn’t seem like it would exceed the setback lines as set forth on that plot plan, as rendered by the architect. With respect to that porch, it virtually is hidden from view. On the one side, near the property line, there’s a stand of trees or shrubs which are eight feet tall, which completely obscure the view from the other property, the O’Brien’s property, of that porch, the Freeburns, I’m sorry. It’s not very visible from the lake, if at all. There is some trees in the way of the view, but the porch is so far back from the line of the lake that you cannot really see it, particularly with the trees in full, when they’ve completely leafed out. You can’t really see this porch from the lake. So there’s really no one who can see this porch. It doesn’t have the appearance of a built up character. It’s also noteworthy that the original house itself is beyond the setback lines. In my review of the minutes of the last Board meeting, it seems to be pretty clear that no one argues that this property, as now constructed, really enhances the neighborhood. It’s within the character of the neighborhood. It really has no adverse impact. It’s aesthetically pleasing to the eye, that part of it that you can see from various other properties or the road or the lake, and it’s completely within the character of the neighborhood, and there apparently is no adverse impact on the environment or on the aesthetic views of the neighbors in the surrounding homes. This is not a self-created violation or problem of the setback lines. The Johnsons were entitled to reasonably rely on the people that they hired to do this project. They’re laypeople. They’re not surveyors. They don’t have any knowledge about surveying. They weren’t present at the property. They weren’t there during the construction phase and during the end phase. They were in Arizona. They hired people to tend to this for themselves. There was no intention here to violate the zoning rules as set forth by the Town. This was an innocent mistake and they relied upon their professionals to do the job right. That having been said, I don’t think that this would open the door or a Pandora’s Box, if you will, to others making the same excuse. I mean, professionals are hired to do these kinds of jobs all the time, and generally they get it right, but occasionally mistakes are made. We’re all human, and this is just one of those rare instances where an architect made the mistake, and in reliance on that, my clients had this thing constructed, the addition constructed, which all agree is aesthetically pleasing to the neighborhood. The requested variance, numerically, may look substantial. I mean, we’re talking about 13 some feet compared to 20 feet, but in reality, the impact is not substantial. Nobody can really see it. It beautifies the neighborhood. There is no impact here which makes it a substantial violation. Feasible alternatives, the construction of the addition to the home is such that if you were to require it to be torn down it would result in serious structural deficiencies within the rest of the home, and it would be unduly burdensome and unduly costly to both, you know, to the Johnsons, and it would, in essence, ruin the structure to take down that portion, that 1,000 foot addition. A structure which everyone seems to agree is a beautiful structure, and is in character with the neighborhood. With regard to the porch, there is no impact on the, there is no visible impact or environmental impact of that porch. Nobody can really see it. To require that it be torn down would really be punitive, and doesn’t really solve any substantive problem or aesthetic problem. Perhaps a punitive measure might be appropriate if there was some intention to violate the rules, but clearly in this case there were no intentions. There was an innocent mistake made. Moreover, it would be costly and burdensome to my clients to force them to remove this small porch on that side of the house. I believe all the criteria which should be considered in determining whether a variance should be granted, after considering all the facts and circumstances, I think the criteria favors granting the variance in this case. It’s noteworthy that there’s some case law out there which indicates that even if it is self-created, you can still grant the variance, and at this time I’d like to ask Mr. Williams to comment on the structural issues surrounding taking down the addition and/or the porch. MR. WILLIAMS-I’d just like to read a short statement first. When Dave and Linda Johnson decided to build an addition to their home, they did all the correct things. They hired an architect to draw their plot plan and design their addition to fit their property and neighborhood. They were required to go through a site plan review for this addition. The Johnsons don’t believe the architect would intentionally position this building nearly 14 feet over the 20 foot property setback. To their knowledge, no one has ever complained about how close this addition is to the adjacent property line. For these reasons, the Johnsons believe the variance should be granted. As far as removing any part of the addition to meet the setback requirements, the section that was up there before facing the west, you cannot just remove a portion of that addition. It’s a truss roof system. So basically to remove just the portion that’s encroaching on the setback line could not, there’s no way that that could be done that way. You would have to remove the whole roof system, which this portion here, yes, on the left side, that’s a truss roof that’s nearly, I believe it’s, I think it’s 24 feet wide from right side to left side. As far as the stoop and the roof over the stoop, they need some stoop there to get out of the house. So, you know, what would be reasonable to take off of that thing to satisfy whatever we’re trying to achieve here. They’d still have to have some stoop there in order to get out of the house. So, to remove a couple of feet of it, I don’t know if that’s going to really accomplish what everybody is here to try to get done here. I guess that’s all I have to say. MR. STONE-Anything else? MR. KRAUSE-At this time, I’d like to move to have it open for public comment. MR. STONE-No, we get to ask questions first. MR. KRAUSE-Okay. MR. STONE-It’s my meeting. I run the meetings. MR. KRAUSE-Okay. Fair enough. MR. STONE-Just a couple of things before I ask the Board for their thoughts. You made some great arguments for a civil suit. This is not a civil court. I mean, if the architect made a mistake, the Johnsons can take that up with their architect. That’s not for us to decide yes or no about that. All we can do is grant relief or not grant relief to make whatever conditions are reasonable under the rules on which we follow. I’m, as you were talking, I wrote down a couple of things. I’m sure some of the other guys did, too. You’re argument seems to say that if I make a mistake, if I put in the wrong plans and I get them approved, then I can go off and put the house where I want to and argue, well, it was a mistake. Unfortunately, this Board, over my tenure, and most of us, have seen too many mistakes, and maybe they’re mistakes and maybe they’re not mistakes, but I have problems with making a mistake and then saying, well, gee, I got what I wanted in the first place by getting a variance. I have, over the years, made a couple of statements that variance is not a God given right. It’s up to the applicant to earn it by making a valid presentation and a valid argument. Relying on professionals is wonderful, but the owner of the property is the one who is responsible for the property, and the owner can seek recourse, but I do have a couple of real questions. How old was the old house? MRS. JOHNSON-1969 or ’70. MR. STONE-Okay. So it does pre-date Code. MR. KRAUSE-Yes. MR. STONE-I just wanted to be sure. Well, let me, I made a couple of comments. Does anybody else want to say anything? MR. ABBATE-Okay, Mr. Chairman, thank you. Good evening, folks, nice to have you here this evening. Yes, the Chairman makes some good points, but I get confused. So I’m going to ask you to kind of guide me through this, okay. The applicant claims, that’s Mr. and Mrs. Johnson, that there was an error by the architect, and a building permit being issued. The building permit was issued. Correct? MR. KRAUSE-That’s correct. MR. ABBATE-Okay. Now hold on for a second. When was the building permit issued? nd MR. FRANK-November 22 of ’99. MR. ABBATE-Why was it issued? MR. FRANK-Because it met with the current zoning at the time, setback and so forth. MR. ABBATE-Are you suggesting that the plans that were submitted to you did, in fact, meet the Code requirements at the time? MR. FRANK-The required plans to be submitted with an application show that it met the proper setback. MR. ABBATE-Did it, in fact, meet the proper setback? MR. FRANK-It was determined that it didn’t. Even though a survey was supplied, eventually, by the applicant to prove that it did, and a request. MR. ABBATE-Okay. So then the application was submitted to the Town, okay, indicating that your request did, in fact, meet the codes, you documented that, when in fact it didn’t. Am I right so far? MR. KRAUSE-Well, I’m not sure who you’re saying documented that it met the Code. MR. ABBATE-Okay. You submitted the request, I say you, you’re representing the client, a request was submitted to the Town, okay, requesting a building permit, and based upon the information supplied to the Town, they looked at it and they determined, yes, well, the information submitted to us is accurate and it falls well within the Code. Right so far? But it didn’t, did it? MR. KRAUSE-Well, it was all based on the architect’s plot plan. MR. ABBATE-But it didn’t, did it? MR. KRAUSE-In fact, no, it did not. MR. ABBATE-Okay. So we’ve got that cleared up. Okay. Now, we have a builder here this evening, Mr. Williams, okay. I’m assuming this is your profession, Mr. Williams? Okay. Do you check architectural plans before you construct? MR. WILLIAMS-I review what I have in front of me, yes, on paper. MR. ABBATE-And I’m sure that as a builder that you also check Codes to ensure that prior to you building a structure that you are in fact meeting the codes, the ordinances, and etc. and etc. of the Town? Correct? MR. WILLIAMS-I know there’s a 20 foot setback. On the plot plan it showed the building fell well within those. MR. ABBATE-On the plans? MR. WILLIAMS-Yes. MR. ABBATE-Okay, but practically, you didn’t take and measure to say, my goodness, it doesn’t, does it? MR. WILLIAMS-Well, I had nothing to go by. There’s no property line stakes or anything there at the time we were constructing, constructing this. MR. ABBATE-So, in fact, you did not physically measure to ensure that this met the codes prior to construction? MR. WILLIAMS-No, no. MR. ABBATE-Okay. Fine. Thank you. This, I’m going to assume, Counselor, is a very important matter for both Mr. and Mrs. Johnson? MR. KRAUSE-Right. MR. ABBATE-Is there any reason why Mr. Johnson isn’t here this evening? MR. KRAUSE-He’s out of the country on business, your honor. MR. ABBATE-On business. He was out of the country at another time as well, on business. MR. KRAUSE-He travels for his job. MR. ABBATE-I’m not criticizing that. MR. KRAUSE-Okay. MR. ABBATE-I’m just thinking in terms of what’s important and what isn’t important, st that’s all, and is it correct to assume that, in August or September 21 of ’99 a 1,000 square foot addition to the residential structure, this is still the same thing? MR. KRAUSE-Yes. MR. ABBATE-It is. So it goes back to 1999. MR. KRAUSE-Yes. MR. ABBATE-Thank you. Thank you, Mr. Chairman. MR. BRYANT-Mr. Chairman, for Staff, you said that the Johnsons provided a survey. Was that an as-built survey, or was it a survey prior to that? MR. FRANK-The survey recently submitted this year was an as-built survey. MR. BRYANT-Okay. It was an as-built survey. The porch was not originally included on this project that the Town issued the building permit for? MR. KRAUSE-That’s correct. MR. BRYANT-Okay. MR. URRICO-Is there an explanation about that? MR. KRAUSE-Well, there really is no explanation, except to say that, you know, the Johnsons needed something to step out from their house. They needed a way to exit their home, and that’s the purpose of having that stoop or porch there. MR. URRICO-There was no thought given to the fact that that might create an additional problem? Even with the first plans being approved. MR. KRAUSE-It wasn’t believed that it would create a problem because it was believed that the addition, pursuant to the plot plan, was well within the setback requirements and a few extra feet or so of a porch, they didn’t think would violate that setback line, according to the plot plan. Moreover, it was well within the line created by the garage and existing structures, the garage and the carport. MR. URRICO-I don’t recall the plot plan. I was here at the first meeting. What was the original, what was the plot plan showing that you were reading off of, the original one? What was the side setback? MR. WILLIAMS-I’d like to make a comment on that. That particular part of the house where the stoop is, on the original plot plan it shows that corner of the house well over 20 feet from the property line, from the neighbor’s property line. It’s, according to the plot plan, and you’d have to take a ruler out and measure it, but that corner of the house is somewhere between 25 and 30 feet from the property line, the neighbor’s property line. According to that plot plan, this stoop was measured and built so that it would still fall within the 20 foot setback. MR. BRYANT-We see the plot plan, okay, I understand that, and we see the addition. The question is, you say that they had to, this was an afterthought and they had to have some way to get out of their house. Wasn’t that part of the original architectural project there? Didn’t the architect figure that they had to get out of their house? You put a door there after the fact, or what happened? MR. WILLIAMS-No, there was an entry door there. The Johnsons, at the time during construction, asked if we could put a stoop with a small roof over it, and I didn’t think that was a significant change, and that’s what we decided. That was the change that we made during construction. MR. BRYANT-And when you have a building permit, is it customary, then, in the middle of the project, to then change the plans, and continue the building without amending the permit in some way? I mean, is it customary? MR. WILLIAMS-This was not a significant change. All we were doing was putting a small roof over a stoop. This is not like we’re adding on a whole other side of the house. The building inspectors that came inspected it. Everything was done according to Code. MR. BRYANT-You had a stoop but you didn’t have a porch, and now you have a porch. Am I understanding this correctly? MR. WILLIAMS-Yes. MR. BRYANT-Okay. MR. KRAUSE-Just for a point of reference with regard to the stoop, if you note on the plot plan, it shows that the existing garage and the existing carport are within the setback lines, and the porch, as constructed, is not even on the same line as the existing garage and the existing carport. That is it’s closer to the house, further from the setback lines or the property line, then the existing garage and the existing carport. MR. BRYANT-Well, the fact that you have a garage that is over the setback requirements, that doesn’t give you the authority to continue to build the rest of your house up to the property line. MR. KRAUSE-Well, the reason I mention this is, you asked me why the Johnsons placed the porch and was there any consideration given to whether or not it would put the property over the setback line, and my answer to that is, they thought about it, in consideration of the plot plan that they had before them, and with reference to certain structures that are shown on the plot plan, it was clear to them, according to the plot plan. MR. BRYANT-Sure, the plot plan shows that the garage is within the setback requirements. MR. KRAUSE-That’s right. If that was within the setback line, surely the porch would be within the setback line. That was the process of thought. MR. STONE-Are you saying that those structures are not inside? MR. KRAUSE-That’s correct. MR. STONE-And this survey indicates they are? This is an official survey by whoever Dreamscapes Unlimited is. MR. KRAUSE-It’s a, I don’t think that it’s a survey. MR. STONE-Well, he’s a professional engineer. MR. KRAUSE-Right. MR. STONE-Okay. Well, that explains it. MR. KRAUSE-It’s a plot plan, and it shows an existing garage, an existing carport within the setback line, but it’s not. MR. STONE-So this is fiction? The thing that was given to the Town in ’99 is fiction? MR. KRAUSE-Well, but my clients had no way of knowing that. MR. BRYANT-Do we have a copy of the survey? Do we have a current? MR. STONE-Do we have the as-built survey? MR. ABBATE-See, that goes back to my original question, then. MR. STONE-I know. I know. MR. ABBATE-Thank you. MR. STONE-Well, while they’re studying that, let me just tell you an anecdotal story about my own experience. I came up here, after acquiring property from my father-in- law on Assembly Point, and we tore down and we put up a house, but we had never lived here full time. The first thing that I did was hire a lawyer to guide me through the process. The first thing that he did, and the builder did, was to come to Town Hall and find out what the setbacks were, and I can assure you that we designed our house to meet the current setbacks. We didn’t even ask for side setback relief. We may be to the inch, but we took maximum advantage of the legal building dimensions, but we went and we found out, and I say this, and we’ve said this many times, anybody who is contemplating doing anything in the Town of Queensbury, the first place to go is the Community Development office. They will help you. They will tell you what’s right, and they will tell you what’s wrong, and we’re getting to the point, I don’t know where we’re coming down tonight, but we have little sympathy who don’t seek advise, and as you make a comment, and I wrote down, you rely on professionals. So what. It is the Johnson’s property. They’re the people who are responsible. MR. KRAUSE-I’m not sure what else the Johnsons could have done. They went out. They got an architect to draw up some plans. The plans clearly thought about the setback requirements. The plans clearly set forth that it was a 20 foot setback line. I’m not sure what else the Johnsons could have done. MR. STONE-Well, it seems to me, not being a lawyer and not being a judge, that they have recourse to this person, without a question. I mean, if we say, when we get done, take it down, then they have recourse to go to this person and to get it made right, because our responsibility is to the Town of Queensbury. Our responsibility is to the other citizens of the Town who follow our codes and we’ll see where it goes, but I have to admit that, I’ve been on a kick this week. I’ll be very honest. Mr. Salvador heard me on Monday night. I get very upset with things when I see things are wrong, and right now I think this is wrong. Does anybody else want to say anything? MR. ABBATE-Yes, one other comment I just want to make. I want Mr. and Mrs. Johnson to understand, at least from my perspective. I think you acted in good faith, don’t misunderstand what I’m saying, and I’m sure the Board feels the same way, but somebody must be held responsible for something. Perhaps not you. MR. STONE-Anybody else? Anybody else before I open the public hearing? We can open the public hearing and let’s see. Okay. I will open the public hearing. Anybody wishing to speak in favor of this application? In favor of? Please come forward. Would you give ground at the table, please. MR. KRAUSE-Yes. MR. STONE-Even though they’re supporting you, we’ve still got to give them room. PUBLIC HEARING OPENED BOB O’BRIEN MR. O’BRIEN-My name is Bob O’Brien. I’ve been a resident of Cleverdale for, a year round resident in Cleverdale for about 20 years, and I own the property just north of the Johnsons. I’ve owned that property for 30 years or better. The Johnsons, through Mr. Williams, have built a splendid home. A home that any one of you would be very proud of if you owned it, and his neighbors, we’re proud of it, and we’re very proud to have the Johnsons as neighbors, and I’m speaking, not for myself, but I think I can speak for many of the residents of Cleverdale. I would ask you to take a look at this problem, not from a pure law, pure legal standpoint, but I’d ask you to take a look at it as more of a practical viewpoint. You’ve got a property that on the south side of that lot has existed a garage that’s been within the required distance as long as I’ve owned the property. That garage was built after we owned the property. This so called porch and addition is inside that garage. The garage is outside of it. You’ve got two buildings on that south side of the Johnson property. One is on the lake. One is on the road front. The garage and this addition is in between those two houses, probably 75 yards back from the lake house, and maybe 50 yards toward the lake from the road house. The road house is a seasonal property. The lake house, is that a year round property? Well, it’s in between. The people stay there sometimes late fall, but it’s not used as a year round property. Laws are made, I think, for the common good, and I just can’t believe that you’ve got a law here that says that this porch and that addition is an obstruction to this property on the south side of that house. That is located in the middle, middle ground, of those two houses. I don’t think it has any problem to the current owner of that property, and I don’t think it would be a problem to any future owner. Granted we’ve got laws, but this whole thing reminds me, this whole issue reminds me of a tale that I had a few years ago when I was in the insurance business. I had a client going south on the Northway on a Sunday morning, eight o’clock. The Northway was empty. Those days the speed limit was 55. A trooper stops him going 60 miles an hour. He appears before a judge. He gives them the story, and the judge is realistic, throws it out. I’m asking you folks to be realistic on this issue. Where is the harm of that addition? Where is the harm of that porch? If you’re talking of a neighbor who is outside of that, or close to it, and you’ve got a vision problem or some other problem, I might listen to your issue, but the issue here is nobody’s near that and nobody will be near it. I ask you to look at this as a practical issue, and that is something in your books. Thank you. MR. URRICO-They’re not our books, sir. They’re the Town’s books. MR. O’BRIEN-They’re the Town books. Are you just stone to this law? MR. STONE-Sir, that’s why we operate. We are called the Zoning Board of Appeals, and we hear variance requests. I’m not saying your argument, you make a very good argument, but our job is to take this book and put our judgment and the consideration of the benefit to the applicant and the detriment to the community and/or neighborhood. That’s our job. MR. O’BRIEN-Lew, tell me where the detriment to the community is in this issue. MR. ABBATE-Can I respond to that, Mr. Chairman? MR. STONE-No, hold on to it. MR. ABBATE-Sure. MR. STONE-I don’t want to interrupt the public hearing at this point. Okay. Thank you. MR. O’BRIEN-Do I get an answer to that? MR. ABBATE-Well, he didn’t say anything. MR. O’BRIEN-I’m asking you. You said. MR. STONE-That’s our job. You made the point and I’m saying this is what we go by, but we do, our job is to grant variances. MR. O’BRIEN-Where is the issue of detriment here? MR. STONE-Chuck, get in here if you want to. MR. ABBATE-May I, please? That’s a good question, where is the issue of detriment. Sir, if every individual in the Town of Queensbury submitted false documentation to construct a project and the Town, based on good faith, issued a permit based upon falsified documents which they were unaware of, then we might as well throw out the Zoning Ordinances throughout the Town. It’s obvious to me, here’s documentary evidence right here, this was the original plan that was submitted, and here’s documentary evidence which proves that this is false information. That’s the detriment to the Town. MR. O’BRIEN-Okay. Documentary. Okay. I asked you at the beginning of this to look at this from a different perspective. MR. ABBATE-I won’t do it. MR. STONE-We’re not getting into an argument. He made a statement. He responded to you, and let’s go on with the public hearing. You have the right to speak again when we get done. MR. O’BRIEN-Let me ask one question. MR. STONE-No. I want to go on. You certainly have the right to speak again. I will let you do that, but I don’t want to get into a dialogue at the moment. Is there anybody else wishing to speak in favor of? Please come on up. We’re not going to have a dialogue. You’re going to state what you want and we will listen and then we will comment later. WILLIAM BROWER MR. BROWER-Good evening, Mr. Stone and Members of the Board. My name is William Brower. I live at 351 Cleverdale Road, which is two doors away from the Johnsons. In fact, I live right next to Bob O’Brien. I think the Board, if it fails to take into consideration the nature of Cleverdale, is making a big mistake, and it would be very unfair. I hesitate to throw this in, but there is a statement in the Pledge of Allegiance that says “With Liberty and Justice For All”. So justice sometimes takes more than just adherence to the legal rules. I think the law says, and I’m not a lawyer, heavens knows, the law is not concerned with trifles. Relative to the problem, I think this is a trifle. Now, if you go to Cleverdale and look around, and we’re talking about 20 feet as a setback here, what do you do with a property that’s 30 feet wide? You have minus 10 feet to build on, and we have (lost word) out there. That area was built up before 1920, and further out on the Point there are tiny residences which would not serve, would not pass the Code at all. My house, there’s nothing in the house that fits the Code, except the electric panel and the sewage system, which is a modern septic system, and I agree with the speaker and the attorney for the aggrieved that the Board should take this into consideration. I don’t think that it’s a fair thing to merely apply these Zoning Ordinances. This neighborhood is not a common-type of neighborhood in Queensbury. We live on Cleverdale Road and Cleverdale Road faces one side of Lake George, one side of the peninsula in Cleverdale, and the, behind us is a road, Mason Road, and there are buildings on that road, too, that face the lake, on the other side of the peninsula, but the great majority of the houses starting with the, about midway, maybe five or ten houses south of us, would not fit the Codes. They simply, they couldn’t fit a building that would suit the Codes. So that, if you don’t take that into account, I think you’re going to be rendering many injustices. Cleverdale, I think some Queensbury citizens, look at it as a pot of gold. You take those two streets that I mentioned, Cleverdale Road and Mason Road. They’re about the same length as Sweet Road. Now, I haven’t done any computation, but I would guess that the taxes paid by the citizens of Cleverdale, including Mason Road and Cleverdale Road, would pay three to five times the total taxes of the residents who live on Sweet Road. Now you look at that road, and you see a fine road, has drains in it. Just take a look at Cleverdale Road sometime and see if you think that’s a great kind of road, and do you think that they get their money out in taxes? Anyway, I support the application for a variance. I think a great injustice will be done to the, that house is a fine house, and it’s a credit to the neighborhood, and we’re very happy to have the Johnsons live near us. Thank you. MR. STONE-Thank you, sir. If I may just make one comment. The condition of Cleverdale is exactly why we are concerned. That’s why we the current zoning code. Our Waterfront One Acre zoning, in an attempt to avoid that happening in the future. That’s why we have a Code. MR. BROWER-How do you think you’re going to get that to apply to Cleverdale, sir? What are you going to do with these lots that have negative building widths? MR. STONE-Then we’re not going to have mega houses on them. MR. BROWER-Well, there are houses on them already. MR. STONE-But they’re not mega houses, and that’s what we’re concerned about. Anyway, thank you. Anybody else wishing to speak in favor of? Please come forward YOLANDA BROWER MRS. BROWER-I’m Yolanda Brower. I just want to comment about one of your comments about David Johnson. You should not have implied that he would prefer to be elsewhere rather than here, that his priorities are warped. That was unfair. He’s a fine man and he kills himself on that property. So that was hitting below the belt. MR. STONE-Thank you. Anybody else wishing to speak in favor of? MICHAEL O’CONNOR MR. O'CONNOR-I would speak as a tax payer in the Town of Queensbury, and I speak because I understand, notwithstanding the fact that many Board members have kind of given an indication of where they’re going or not going, and probably to the prejudice of that, but you’re still here as a Zoning Board of Appeals to weigh the impact of what’s here as opposed to the area requirement of the Ordinance. You’re not here to punish the Johnsons. If the Town wants to file a violation against them, that is done in a Town court. It is entirely inappropriate for you to bring that into consideration when you’re actually making the weight, making your judgment, and I feel very strongly about that. I think it’s a very poor precedent. I think it’s unfortunate that people find themselves where mistakes have been made, but if they’ve been made in good faith, and there’s no indication that it’s not in good faith, you should deal with the circumstances as you find t them. I think somebody, one of the neighbors has pointed out that there’s another building, another structure on here that encroaches even further into the setback than this proposed construction. So I would openly ask you, what is the impact of what is there, other than the fact that it was built inappropriately, built without permission, and built apparently upon bad information? I think you’re going down a lane that would not be sustained. This is an Area Variance. It’s not a Use Variance. If you balance between the neighbor to the south and the Johnson property, what do you find? There are many properties up there that have less setback than this setback, and I’ve only seen the pictures that are up here. From the lake, it doesn’t look like it’s anything that’s obtrusive. I would not want to have you start setting a precedent, if there’s an honest, legitimate mistake, that that’s the basis for your denying the application. MR. STONE-Thank you. Anybody else wishing to speak in favor of? Anybody opposed? Opposed? Mr. Salvador. JOHN SALVADOR MR. SALVADOR-I apologize to Mrs. Johnson for this whole affair. This sort of thing has been going on too long in the Town of Queensbury. It’s unfortunate that we arrive at this point in your application that this sort of thing has to be aired. Firstly, I would like to comment on Mr. Brower’s issue of negative setbacks. There’s no such thing. In the one acre waterfront zone in the Town, we allow a 300 square foot hunting and fishing cabin. That’s all a small lot will support. That’s why it’s in there, and anything above that is what Mr. Stone refers to as a mega house. These lots cannot sustain the kind of development we’re putting on them without municipal utilities, namely a sewer system, without control of the stormwater, but the Ordinance, the Town Zoning Ordinance addresses this and allows a 300 square foot hunting and fishing cabin. You might say that’s not compatible with the price of the land, that may be, but the Town has dumped this in there for the expressed purpose of precluding a claim against, a takings claim. That’s exactly why it’s there. I am also confused with some of the things I hear. It sounds like the Town Staff tried to address the accuracy of the plan that was submitted. Did it sound to me like it was sort of bounced back and they came back with additional information, at the time they made application for the building permit. Am I correct that I think that’s what I heard? MR. FRANK-That’s not correct. The Johnsons supplied an as-built survey at the request of us, at the end of last year. MR. SALVADOR-Was that at the end of the project? MR. FRANK-No. The house had been in existence for at least two years, three years. MR. STONE-That was when we didn’t automatically require an as-built survey for a modification. MR. FRANK-Well, you still don’t for an addition. MR. STONE-Well, we do, if we came for this proposal and we granted it, we would ask for an as-built survey. We have the right to. MR. FRANK-You have the right to. It’s not regulated that we have to. MR. STONE-Right. I understand. MR. SALVADOR-Engineers, licensed or otherwise, are not authorized, in the education law, to certify something called a survey. It’s a very important word. Survey is a very important technical legal word, and only licensed professional surveyors in the State of New York can put their stamp or certification on that kind of a drawing. Staff knows that, everyone knows that. So if that was in error in the beginning, then the whole project is flawed from the get go. Mr. Stone mentioned being at the meeting on Monday where, complaining about, he mentioned my name. I want it clear that I wasn’t the target of his complaint. MR. STONE-No. MR. SALVADOR-Okay. I just happened to be at the meeting. MR. ABBATE-Not that time. MR. SALVADOR-I see here on the schedule this was before the Warren County Planning Board, and was it denied? MR. STONE-They did it the other night again, didn’t they, Johnson? I think it was on Tuesday night. MR. HAYES-No, it wasn’t denied. MR. STONE-No, it wasn’t denied. They just said conform with Town Code. MR. SALVADOR-Okay. MR. STONE-But it wasn’t denied. MR. SALVADOR-It’s been mentioned here, and there’s no sense belaboring the point, but, you know, professional people who practice, and are responsible for their, they’re responsible to the public, as well as to the applicant for their work. That’s why they’re licensed, to protect us, the public, and I’m sure all of them carrier what we call Error and Omissions Insurance, and these people have recourse, that’s what will take care of them. Somewhere, somehow, sometime, we’ve got to call a halt to this sloppy work that’s being done. There is no excuse for it. I can tell you. I’ve done a lot of building in my day. I’ve done a lot of applicant submissions in my day, and there is absolutely no excuse for it, and I’m sorry if it has to manifest itself in drastic action in this regard, but the day is long overdue. MR. STONE-Thank you. MR. SALVADOR-Thank you. MR. STONE-Anybody else opposed? Correspondence? MR. MC NULTY-We have just the three pieces that the attorney handed me early in the meeting. Two of which are letters from people that have spoken, but I’ll read them anyway. One is from Robert J. O’Brien, and he says, “I’ve been a taxpayer in the Town of Queensbury for more than 30 years, and a year round resident of Cleverdale for 18 years. I am the immediate neighbor of Dave and Linda Johnson, to the north side, and we could not have a better neighbor. I have no problem with the setback lines on any side of our property lines, and I would urge this Board in all its wisdom and fairness to grant the Johnsons a favorable decision in this appeal matter. Thank you for this consideration. Sincerely, Robert J. O’Brien 349 Cleverdale Rd. Cleverdale, NY 12804” The next one comes from a William M. Freeburn. This is addressed to Dave and Linda, it says, “My family and I thank you for your condolences. I wish the two of you could have had more time to spend with my mother. You would have enjoyed her wealth of knowledge about the people and events of this area. She had a keen appreciation for life all of her 89 years. We will miss her. You have all the support I can give you in confronting the zoning board. However, the timing of this skirmish is not good. Until my mother’s estate is settled, I cannot rightfully represent myself to the Town of Queensbury (as in your proffered letter) as “own(ing) the premises.” Also, a petition in my name to the Town of Queensbury at this time conflicts with my obligations as executor of the estate. You could, however, point out to the Zoning Board that your adjacent neighbors to the south, having received all notices of public hearings, have never indicated to the Town of Queensbury that they have had any complaints or objections pertaining to any of the changes you have brought to your property. I hope this issue gets resolved to your satisfaction. You both obviously enjoy your beautiful place, and we, next door, are happy to have you as neighbors. Late this summer ownership will be transferred to my brothers Bob and Mike; Pat, the wife of my late brother Don, and myself. We have no plans for changes; I expect, however, things will be much quieter this summer. No ice on the lake this winter! Last time this occurred was 1919 they say. See you soon. Sincerely, William M. Freeburn” The third is from W.B. Brower, and he says “I have a summer home two doors away from the cited appellants and it is my understanding that in the substantial upgrading of their property, recently completed, a projection of a ground-level porch has failed to meet the 20-foot setback requirement on the south side of their house. It is also my understanding that the extent of the projection was the result of an error made by the architect on the project. I can say from my own observation that the offending projection is not visible from the road and I understand that the neighbors immediately south of the property have not made any objection to the finished porch. I believe that in making your final decision you should take into account the fact that this is an old neighborhood. My own building was erected about 1890 and it could not pass any test for a setback on its south side, let alone for a 20-foot setback. Except for the O’Brien property between us and the Johnsons there is only a single property (the Lupe property to my north) within 500 feet to the north and none to about 200 feet to the south, on either side of the road, which could pass a 20-foot setback requirement, as far as I can recall. [I am writing this in Troy, NY.] Thus it seems to me to put an unduly hard burden on the Johnsons. Consequently, I recommend strongly, and my wife concurs, that the Board grant this appeal. Sincerely, W.B. Brower, Jr. P.S. My winter address is 47 Second Street, Troy, NY 12180” MR. STONE-Mr. O’Brien, do you want to add some more? MR. O’BRIEN-Okay. Perhaps I’m repeating, but I would ask the Board to look at this from a different perspective, the perspective that you might be living in that house, you’ve got the addition. It’s not visible from the road. You have to be almost on top of it before you can see it. The neighbors to the south have no objection. We have no object. Please look at it that way. Thank you. MR. STONE-Thank you. Let me close the public hearing. PUBLIC HEARING CLOSED MR. STONE-But I do want to make, before I go and check with my Board, I want to make comment that Mrs. Brower made. Any comments we’ve made in no way reflects on the goodness or the badness of the Johnsons. That is not in our purview, and I know Mr. O’Connor would remind us of that on many occasions. It’s the project we’re talking about. That’s where our consideration is, and its effect on the Town, obviously its effect on the applicant. So, having said that I want to, any other questions before I find out where we stand? The public hearing is closed. MR. BROWER-I thought you said we were going to get a second chance. MR. STONE-If you want. I’m sorry. Go ahead, come on up. I’ll open the public hearing again. I didn’t mean to cut you off, sir. PUBLIC HEARING RE-OPENED WILLIAM BROWER MR. BROWER-I’m sorry. I didn’t get this gentlemen’s name in the green shirt here, but I want to state that I believe that invoking these rules at this time, I don’t deny that the objectives he expressed are very valid. It will have no effect, absolutely no effect in Cleverdale. Cleverdale is a special place, and I think it should not be treated as an ordinary, adhering to the ordinary rules. You have too many which are already in violation, and I think you should take that into consideration. Thank you for the chance to speak again. MR. STONE-All right. Anybody else want to say anything? Go ahead, Mr. Salvador. MR. SALVADOR-If we allow this sort of thing, my name is John Salvador. If we allow development to continue and not recognize the limitations put on development in the Zoning Ordinance, what we’re approaching on Cleverdale, as we have on Rockhurst, we have city densities. We have city densities, and we don’t have city infrastructure. It’s as simple as that. The roads aren’t proper, access for emergency, water, sewer, all of these things that you would expect in a community with those densities are not there, and we haven’t even gotten to the environmental impact on the lake sort of thing. MR. STONE-Thank you. Anybody else? You can respond after I close the public hearing, since you’re one of the applicants. Let me just close the public hearing. PUBLIC HEARING CLOSED MR. STONE-Everybody else is happy, right? I mean, at least you have spoken. All right. Now you may comment on anything you want about what you heard. MR. WILLIAMS-The issue here is not whether this property can sustain this size building. They went through the whole permit process, to determine if the addition was going to be too big for the property, and that was not the issue. They could have easily gone out toward the lake. They had enough property to construct the same size addition towards the lake, if that’s the way they wanted to. They chose to keep it back, and the issue here is not that addition or the existing house is too big for the property. MR. STONE-Okay. Since you raise that point, what is the setback from the lake, because we don’t have a survey, or is it on that other survey? MR. BRYANT-It looks like 86. MR. STONE-86? Okay. Thank you. It wasn’t in my, I couldn’t tell. So the setback to the house right now is 86 feet? All right. Okay. Let’s start talking about it. Chuck Abbate, where do you stand? MR. ABBATE-Okay. Thank you. MR. KRAUSE-Mr. Stone, may I? MR. STONE-Yes. I’m sorry. You have something to say. MR. KRAUSE-I just want to make a few final comments. I understand that the Board frowns upon requests for variances after construction, and you should, because we don’t want people intentionally frustrating the purposes of the zoning law, but where as in this case, there is an innocent mistake. I mean, there’s no evidence here of bad faith, any intentional design or fraud perpetrated upon the Town or the Board. Where there’s an innocent mistake, the Board shouldn’t penalize, and I use the word “penalize”, because that’s what you’d be doing in denying my client’s application, you’d be penalizing him, because this will serve no practical purpose, environmental purpose, aesthetic purpose whatsoever. There is no detriment to the neighborhood. There is no evidence that has been presented to this Board that there is, in fact, an actual detriment to the neighborhood. The question was posed earlier by one of the people presenting during the public portion, the public response portion of the proceedings here, and yet nobody can answer that question. There is no actual environmental, aesthetic detriment that’s created by the construction here, and that’s, we’re here to do a balancing, to see if there’s an adverse impact in the balance versus the interest of the community, versus the interest of my client, and I think when you do that balancing test, it resolves very favorably for my clients. Thank you. MR. STONE-Okay. Chuck, let’s start with you. MR. ABBATE-Okay. Thank you. I maintain that we have a responsibility, not only to the applicant, but to other residents of the Town of Queensbury, as well as the Town of Queensbury Zoning Ordinances, and in my opinion, the history of application 9-2002 raises questions in my mind which demands that I not support this application, and further, Cleverdale should not be granted special privileges not available to other residents of the Town of Queensbury. Thank you, Mr. Chairman. MR. STONE-Allan? MR. BRYANT-I want to reflect a little bit on Mr. O’Connor’s comments. I’m looking at a survey that indicates that the neighbor, I believe, to the north, his property, and he has a porch that’s nine feet away from the property line, and then Mr. and Mrs. Johnson, their building is five feet away from the property line. When you take that into consideration, the two houses are basically 15 feet apart. You take that into consideration, then you look at the other side, and you’re talking about a house that’s seven feet away from the property line. Virtually the house stretches the whole width of the property. The other thing that Mr. O’Connor mentioned, talk about the Board taking punitive action against the Johnsons, and I think we’ve said it a number of times, we don’t believe that the Johnsons are at fault, but on the other hand, I believe that the engineer or architect, the engineer that drew up this plot plan, and the architect who then designed the building, were at fault, and that’s where the fault lies, not with this Board that changed the Zoning Ordinances to conform to the existing structure, but to the architect and the engineer who made the original error. So, I, too, am opposed to the application. MR. STONE-Roy? MR. URRICO-Yes. I was present in February when this was first presented, and at the time, I went down the list of criteria, which obviously, counselor, you have as well, and as I go down the list, I look at it a little differently. Normally, in circumstances such as this, we often look at the case as if it was being presented to us brand new, and to me it still comes down to that one critical issue, 13.13 feet of relief from a 20 foot minimum setback. The criteria I see. The benefit to the applicant would be he would be permitted to keep that addition, obviously that’s the benefit. Feasible alternatives, the only alternative at this point is removing the porch, because I haven’t heard any compromises, other than, either you let us keep it or we have a hardship. There’s nothing in between here that we can say there’s something to work with. Under normal circumstances, if you were presenting this brand new to us, there would be a chance to compromise on this. On the relief substantial relative to the Ordinance, 66% of relief is quite substantial. Even though you make the point that other, or a piece of the property or structures are closer, that’s exactly why that side relief exists because there needs to be some sort of illusion of space there, especially in that area. As far as effects on the neighborhood or community, you have some very good neighbors. They’ve spoken very well on your behalf. There’s also neighborhood or community. Community can refer to the community at large. How does it impact the community at large? We may have other applicants here tonight or coming in the future that are asking for the same sort of relief, and the message being sent is, if you make a mistake, whether it’s honest or not, do you get absolved from that mistake? Well, in this case the mistake really we’re talking about is are you too close to the side setback? That’s really what we’re talking about. It’s not the mistake, it’s what the side setback is. In my opinion, I could come down either way on that. I understand the neighbors. I understand the community. As far as the difficulty being interpreted as self-created, I believe it was self-created. I mean, obviously it was done maybe in error, but it was a self-created problem. So if I were voting on this brand new, I would come down on the negative side of this. However, I look at it, and I see, this is not a normal case, and I think some mistakes were made, and there is no sort of compromise here, and I think, to borrow a phrase of one of my Board members, it would be draconian for us to have them take it down, and I submit as an alternative that some sort of a buffer be put up between the lake and the house, some sort of vegetation that would completely block it from view, so that the porches could not be seen, or something, I won’t take full credit for, Mr. Underwood sat on the Board at this time previously, and it was something he suggested, and I think it was a great idea, and you have a hedgerow along the south side of the property. I don’t think there’s any impacts as far as the lake goes. You’re far set back from the lake, but if you put it, perhaps plant some trees down the front, you let them grow up to be big trees, don’t trim them, and it keeps the area closed off. So, I’m not sure if I’m coming down on the negative or the positive side, but I am submitting a compromise. MR. STONE-Jaime? MR. HAYES-Well, this certainly is a very close case. We heard it in February, as Roy pointed out, and I think there’s some valid issues on both sides. I think the Board, and probably for good reason, has a sense that we’re possibly losing control of the enforcement of the Town Code which we all value tremendously, and I think there’s some urgency in the message that we’re giving to applicants that build and then come in and ask for a variance. I think that we’ve made that message very clear and I think we will continue to, but I’ve listened to the case very intensely, and it is a balancing test, and as I spoke in February, I’m certainly not high on this type of relief, but as I view the addition and the porches as they are now, and use a balancing test approach, I think the benefit to the applicant is obvious. I think that they wanted to improve this camp. I think they did. I think that it’s been established on the record and in my opinion that this was a quality addition. This is a compliment to the neighborhood. I think Mr. O’Brien and the other neighbors confirmed that, and that was my impression. I have to say that. Feasible alternatives, certainly some kind of, you know, as far as a feasible alternative, reducing the amount of relief that’s required in any capacity is a feasible alternative, and I think that falls against the applicant in this particular case. I think that certainly they could have provided plans and built within the setback if they had done it right. Is the relief substantial relative to the Ordinance? I believe that 13.3 feet of relief in a 20 foot minimum requirement is certainly moderate. I say moderate being that, under normal circumstances I would consider it substantial, but I think it is not inconsistent with the neighborhood, this type of relief. It is not something that’s going to stick out and say that this is being granted to them and not being granted to, or letting existing other people on Cleverdale. There is a great deal of side setback encroachment in Cleverdale. It doesn’t mean we should encourage it. It doesn’t mean we should allow it, but again, I’m analyzing this on a balancing test perspective, because the addition is there now, and we have to view it, you know, the impact versus the benefit to the applicant. Effects on the neighborhood or community, I believe this falls in favor of the applicant. Certainly, setting a precedent that could be violated I think is possibly a small negative, but I think the camp, as it sits now, is in fact a compliment to the neighborhood. When I drove in there, it didn’t strike me as being improper or overly built in this particular circumstance. I think that the neighbors have said that they are comfortable with it. We have no public feedback that anyone is uncomfortable with it. So I think it’s a benefit to the neighborhood. Where my decision rotated, really, in three factors versus two, is is the difficulty self-created. I don’t believe that it is. I believe that, in this particular case, an honest mistake was made. The Johnsons live in Arizona. I think they relied on professional people to do their plans, to do their work. I know Mr. Williams has relied on the fact, in his arguments, that this was a compliment to the neighborhood, but I don’t think that that entirely relieves him from responsibility in this particular case, and I want to say that, but I think an honest mistake was made. I think we have to view this on the balancing test. There’s no evidence that the Johnsons intentionally did this, and what really convinced me of that was the fact that they could have built the same size addition closer to the lake. This was not a circumstance where they had no other chance, no other choice but to built too close to the line to gain the square footage they wanted. They could have, in fact, built the same addition, square footage wise, and moved it toward the lake, and been within compliance of the law, and to me, that would indicate that there was not an intention to circumvent the Code’s authority or what the Code intended to do. In this particular case, I think it was an honest mistake. Therefore, on balance, I would be, reluctantly, in favor of the application, on a balancing test issue. MR. STONE-Mr. McNulty? MR. MC NULTY-This is a tough one. Certainly what is there is attractive. I really liked it. I can’t agree, though, with my fellow Board members, that this is an honest mistake or it should have been an honest mistake because frankly, when I looked at that side porch, I looked at it and my immediate reaction was, it’s too close to the line. It’s not 20 feet, and I can’t believe a builder or a homeowner or anybody else looking at it wouldn’t initially question the distance from that side porch to the lot line. Now maybe the hedgerow is not on the lot line, but that’s the first thing I looked at. Okay. If the hedgerow is the lot line, then there’s no way this porch is 20 feet, probably is maybe not even 10 feet. That would have caused me to find out where the lot line was before I started building. So I think, while it may not have been a malicious mistakes, I think there were some mistakes made. I can’t say they were all honest because somebody should have known better. I could more readily understand a mistake on the front porch which also is in violation, part of that. I can sooner see that, but anyway, I don’t think this is a totally innocent mistake. I don’t think you can totally blame it on the architect that drew the drawing, although certainly somebody drawing that and saying it was 20 feet from the lot line has got a lot of blame to bear. As has been pointed out, probably the effect on the immediate neighbors is nil with this. Certainly the attractiveness of the addition and the grounds probably counterbalance any negative effects on the immediate neighbors. Addressing the comments about the zoning being impractical in the area, one acre lots when we know there aren’t one acre lots there, true, but it’s not this Board’s purview to change the zoning. The Town Board has enacted the zoning, presumably because somebody felt that that’s what really should be there is one acre lots rather than quarter or half acre lots, and that’s the direction that they would like to see things go. It certainly is a balancing act, but I’ve got to come down, I think, opposed, simply because I think any reasonable person working on that should have known it was a problem. They could have checked. They didn’t. I’m not looking to punish people, and I think I, too, could consider some kind of a compromise. It sounds like tearing into that front porch would be a major problem. It strikes me that trying to come up with something else for that side entrance would not be anywhere near a major problem, but as the plan is proposed at this point, I would be opposed. MR. STONE-Norm? th MR. HIMES-Yes, thank you. I also was here at the February 27 meeting, at which time I voted in favor of the application, and my comments are in that record, and, in short, I have two division in my thoughts here. The second more important than the first which I describe, is that I looked at it from the standpoint, if this thing was coming to me having not been done, I mean, I’ve done my share of huffing and puffing about already done things that we should pursue violations or variations from submitted information that we should pursue it to its source and then decide what to do about it. We don’t do that. Additionally, I’ve seen drawings that accompany applications that are done by the applicant sometimes and I’m thinking, is this person qualified to do any kind of drawing at all, and we’re relying on those drawings, in some cases, which I don’t think are always that dependable. Lastly, in connection with this point, especially in construction in sensitive areas or where close tolerances are evident, we should check on the dimensions in the course of construction and I’ve mentioned this in several meetings. I’m sure the Board is sick of hearing this from me. They go out and they take a look at things from the standpoint of the building codes, but nothing is done in connection with the dimensions, in terms of our Code. So the thing goes on and it’s done, and then after everything’s all done we may find that we’ve got one or two, again, that’s it’s a little off. I really think that there should be some changes made in our procedures, some preventative steps put in to anticipate what looks like is going to be a problem, or could be a problem, rather than waiting until something like this. This is the third or fourth time we’ve been together with these people. A skeptic, and further reason, that a skeptic could probably say that, you know, it seems to me that these mistakes are getting more frequent, and generally speaking in the past, they all kind of come out the same way, from our decision standpoint. So I think there should be some preventative action taken, and that has an important bearing on how I feel about this application. That being said, I also feel that when I look at this thing and I see the carport and the garage and the rest sitting there, I looked at that house and I couldn’t tell what was new construction. It was done so well, and part of it’s stone, and I wonder if I’m at the right place, and well, I was, and I’ve been out there I think three times or four since this all began, and looking at how the house is situated compared to the neighbors’ houses. I think on one side you actually have two neighbors, and so on, and distance from the lake and all that stuff, from the standpoint of a new application, and I think I might have approved it. So I a am still in favor of the application, although I recognize what has been said negatively about it, but we’ve got to do something about our procedures to prevent this kind of thing from happening in the first place. Thank you. MR. STONE-A number of things I’d like to say about this application. One, I think we’ve said it in a way, but the property is at fault, not the Johnsons. None of us is blaming the Johnsons. The property is in violation of the current Code. The other properties on Cleverdale are nonconforming. They were there prior to the zoning. This particular house is in violation of the current zoning code, and there’s a difference. It’s a significant difference, and certainly the lawyers can argue all day about, but there are differences. A couple of Board members talked about, if this had come with clean hands, so to speak, if this had been a normal request for a variance to put the house 13, or 7 feet from the line or whatever it is, six and a half feet, I certainly would have said no at that point. So then the question comes forward, well, why should I say yes because it’s built? It doesn’t make sense to me, if I would have said no before because it’s too close to the line, it makes a very crowded situation even more crowded, why would I say yes because it’s built? I’m also concerned, when we get into the benefit to the applicant versus the detriment to the community, Cleverdale is what it is. I think a number of people have talked about, it’s an old summer cottage neighborhood, and, yes, the cottages are very close, but if we were to allow this, and I’m not saying, I really don’t know where I’m coming yet, guys, so just let me talk. Be patient. If we were to allow this to stand, I think we might be creating a very dangerous precedent for the rest of Cleverdale, maybe not the neighborhood at the end, because obviously the neighbors have no problems, but one of the things that we have to keep in mind is that variances are forever. They don’t go with the people. They go with the property, and that’s something that we think about a great deal of the time. So if we allow this house to be there, it’s going to be there, unless one of the other people on either side buys the next property and combines them and makes it one legal property. The other thing that I’m concerned about is the applicant has shown on willingness to give any accommodation. Some suggestions were made in February, I understand, looking at the minutes. Some suggestions have been made tonight, for screening. I hear no offer on the part of the applicant to make any accommodations to the concerns of the Board members here. A couple of Board members said, well, if there was some kind of screening maybe penalizing, they didn’t use that word, but taking away part of the view of the lake from inside the house from the offending portion of the house, maybe they might be more inclined to support this thing. I haven’t heard anything on the part of the applicant. I find myself in a situation right now, as I look at the numbers, that if I say yes, we let it stay, and if I say no, we seek some kind of remedy, and it becomes a Town remedy. We don’t set remedies. We would merely say that it’s in violation and we don’t grant a variance, and then I guess the Town does whatever it has to do, Bruce. Is that correct? MR. FRANK-I believe so. If the application is denied, then it’s up to the Town to take action. It’s not the Board that’s ruling that something has to be. MR. STONE-And it can go to the courts, and the courts can, in their infinite wisdom, can do what they want, and that’s the thing that, we’re not the Supreme Court of the United States. There is another step. I, in good conscience, as I go through, and I’ve ticked off the things I said, I, in good conscience, could not vote for this variance because, one, I think that the only thing it benefits is the applicant. It hurts the community. There were certainly feasible alternatives. I certainly would not have voted for a request for a variance to construct this house. I think almost all of us have done the job that we were asked to do. We have balanced the benefit of the applicant to the detriment of the community, and I think we’ve done it well. I think you’ve heard some deep thought feelings on the part of the people about the application, not about punitive damages. We don’t seek punitive damages. It’s not our job. We merely say that we, in good conscience, I think where it will come out, cannot grant this variance. So, as I look at the vote, I get four nos. So would like a motion to deny. MR. ABBATE-All right, Mr. Chairman, I’ll take the motion to deny. MOTION TO DENY AREA VARIANCE NO. 9-2002 DAVID & LINDA JOHNSON , Introduced by Charles Abbate who moved for its adoption, seconded by Allan Bryant: 347 Cleverdale Road. One, there is a responsibility for all applicants to submit accurate building plans to the Town of Queensbury. Two, there were a number of serious architectural errors. Number Three, the request of the applicant violates the demand for accurate information to be submitted with a request for a variance. Four, in this case the applicant’s submission contains many inaccuracies, and as such, and based on the conversation this evening, Mr. Chairman, I move that we deny Area Variance No. 9- 2002. Mr. and Mrs. Johnson have already constructed a 1,000, and the relief required, Mr. and Mrs. Johnson have requested 13.13 feet of relief from the 20 foot minimum side setback requirement of the WR-1A zone, Section 179-16, and for the expansion of a nonconforming structure, Section 179-79. Criteria, One, benefit to the applicant. Should this be approved, the applicant would be permitted to keep the addition as built. Two, feasible alternatives, feasible alternatives may include completely removing the porch on the south side of the addition which was not part of the approved plans, and was never shown in the plans for the building permit, and I might add at this point, nor were there any suggestions by the applicant to compromise. Three, is this relief substantial relative to the Ordinance? 13.13 feet of relief from the 20 foot minimum requirement may be interpreted as moderate to substantial relative to the Ordinance (65.7%). The effects on the neighborhood, moderate effects on the neighborhood may be anticipated as a result of this action, and with this, I would like to add the comments to the Chairman, I think he spoke quite accurately in terms of the decor of Cleverdale. Five, is this difficulty self- created? I don’t think there can be any question that the difficulty is, indeed, self-created, and based on this information, Mr. Chairman, I move that we deny Area Variance No. 9- 2002. th Duly adopted this 19 day of June, 2002, by the following vote: MR. BRYANT-I’ve got a question for Staff. The relief requested is not only the setback but the fact that they’re expanding a nonconforming building. Is that correct? MR. FRANK-Yes, I think so. MR. BRYANT-That being the case, then why would the permit be issued if that variance wasn’t already issued? MR. FRANK-I’m not quite sure what you’re saying. Why was the building permit issued? MR. STONE-Well, it wasn’t 50%, though. MR. BRYANT-It wasn’t 50%? Because I don’t have those figures in front of me. MR. STONE-No, it was a 1,000 square foot addition, and the house was, what before, 1200? 1400. So it wasn’t 50%. MR. FRANK-The footprint was 1,000 square foot. MR. BRYANT-Well, no. According to this information, the addition was, the total was 2226. MR. FRANK-No, that’s not correct. That includes the whole footprint of the old structure and the new addition, I believe. MR. BRYANT-So the addition was 1,000 feet. So it was less than 50%. MR. FRANK-The addition is, the footprint is 1,000 feet. MR. BRYANT-I just wanted to clarify that. Okay. AYES: Mr. Bryant, Mr. Abbate, Mr. McNulty, Mr. Stone NOES: Mr. Himes, Mr. Hayes, Mr. Urrico MR. STONE-I suggest that you go see the zoning office and see what happens. OLD BUSINESS: