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2002-06-19 (2) (Queensbury ZBA Meeting 06/19/02) 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 Johnson, meeting date was Wednesday, May 22, 2002 “MOTION TO TABLE AREA 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. Duly adopted this 22 day of May, 2002, by the following vote: nd 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: June 19, 2002 “Project Location: 347 Cleverdale Road Description of Proposed Project: Applicant has constructed a 1,000 sq. ft. residential addition. Relief Required: 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 structure, § 179-79. Criteria for considering an Area Variance according to Chapter 267of Town Law: 1. Benefit to the applicant: Applicant would be permitted to keep the addition as built. 2. 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. 3. 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%). 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.): 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 1 (Queensbury ZBA Meeting 06/19/02) 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 being sought. SEQR Status: 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 2 (Queensbury ZBA Meeting 06/19/02) 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. 3 (Queensbury ZBA Meeting 06/19/02) 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? MR. FRANK-November 22 of ’99. nd 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. 4 (Queensbury ZBA Meeting 06/19/02) 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, 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 st 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 5 (Queensbury ZBA Meeting 06/19/02) 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? 6 (Queensbury ZBA Meeting 06/19/02) 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 7 (Queensbury ZBA Meeting 06/19/02) 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 8 (Queensbury ZBA Meeting 06/19/02) 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. 9 (Queensbury ZBA Meeting 06/19/02) 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. 10 (Queensbury ZBA Meeting 06/19/02) 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. 11 (Queensbury ZBA Meeting 06/19/02) 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 12 (Queensbury ZBA Meeting 06/19/02) 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 13 (Queensbury ZBA Meeting 06/19/02) 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? MR. HIMES-Yes, thank you. I also was here at the February 27 meeting, at which time I voted in favor of th 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 14 (Queensbury ZBA Meeting 06/19/02) 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 15 (Queensbury ZBA Meeting 06/19/02) 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. Duly adopted this 19 day of June, 2002, by the following vote: th 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: AREA VARIANCE NO. 102-2001 TYPE II RANDY BARRETT PROPERTY OWNER: SAME AS ABOVE AGENT: N/A ZONE: CR-15 LOCATION: 10 NEWCOMB STREET APPLICANT HAS CONSTRUCTED A MODULAR HOME ON THE PROPERTY AND SEEKS RELIEF FROM THE SIDE SETBACK REQUIREMENTS OF THE CR-15 ZONE. TAX MAP NO. 309.10-1-68 LOT SIZE: 0.48 ACRES SECTIOIN 179-24C MR. MC NULTY-Read the tabling motion? MR. STONE-Yes, read the tabling motion, and the notes. MR. MC NULTY-Okay. “MOTION TO TABLE AREA VARIANCE NO. 102-2001 RANDY BARRETT, Introduced by Lewis Stone who moved for its adoption, seconded by Norman Himes: 16 (Queensbury ZBA Meeting 06/19/02) 10 Newcomb Street. Until such time as the court action is finalized. At that point, we will, again, entertain a variance application. Duly adopted this 15 day of May, 2002, by the following vote: th AYES: Mr. Hayes, Mr. McNulty, Mr. Abbate, Mr. Urrico, Mr. Himes, Mr. Underwood, Mr. Stone NOES: NONE” STAFF INPUT Notes from Staff, Area Variance No. 102-2001, Randy Barrett, Meeting Date: May 15, 2002 “Project Location: 10 Newcomb Street Description of Proposed Project: Applicant has placed a modular home on the property. Relief Required: Applicant requests 12 feet 4 inches and 9 feet 2 inches of relief from the 20-foot minimum side setback requirement of the CR-15 zone, § 179-24. Criteria for considering an Area Variance according to Chapter 267 of Town Law: 1. Benefit to the applicant: Applicant would be permitted to keep the modular home as constructed in the preferred location. 2. Feasible alternatives: Feasible alternatives seem to be limited due to the home being placed on a block foundation basement. 3. Is this relief substantial relative to the Ordinance?: 12 feet 4 inches and 9 feet 2 inches of relief from the 20-foot requirement may be interpreted as moderate to substantial, considering relief is being requested on both sides. 4. Effects on the neighborhood or community: Moderate effects on the neighborhood may be anticipated as a result of this action. Public Comment has been submitted. 5. Is this difficulty self-created? While difficulty may be interpreted as self-created, a portion of the difficulty could be attributed to the pre-existing lot configuration. Parcel History (construction/site plan/variance, etc.): AV 102-2001: 04/17/02; tabled until applicant’s site is in compliance with violations of the junkyard ordinance. AV 102-2001: 12/19/01; tabled until a survey can be provided. Town Board Res. No. 198-2000: revocable permit issued (Mobile Home Outside a Mobile Home Court). AV 60-2000: 9 feet of relief granted for both side setbacks (same home in current application). Staff comments: Moderate impacts may be anticipated as a result of this action. The applicant applied for this variance due to enforcement action from a formal complaint by Mr. Klein (neighboring parcel to the south). The applicant claims the foundation for the modular home was constructed in the wrong location because of human error. The Code Enforcement Officers during their inspections did not discover the human error, as it is not their responsibility to check setbacks. The Code Compliance officers have the responsibility to check setbacks; however, a survey is necessary to accurately check setbacks. The Code Compliance Officers would have discovered the setback error when the final survey was eventually submitted, as required by Town of Queensbury Code. Part of the tabling motion of 12/19/01 includes a request for the status of the current enforcement action against Mr. Barrett for violations of the junkyard ordinance. According to Dave Hatin, Director of Building and Codes, Mr. Barrett had until 04/19/02 to bring his site into compliance, which included removing all of the debris from the demolished trailer and the removal of all junk vehicles that are in excess of those allowed by Town of Queensbury Code. Mr. Barrett appeared before the court on 04/22/02 where Mr. Hatin reported Mr. Barrett was still in violation of the junkyard ordinance. A trial date has been set for 5/20/02. SEQR Status: Type II” MR. STONE-Is there anybody here to speak on behalf of this application, I mean the applicant? Anybody here? Therefore, because of the impending trial on Monday, as we have done in the past, I move that we table Area Variance No. 102-2001. MOTION TO TABLE AREA VARIANCE NO. 102-2001 RANDY BARRETT, Introduced by Lewis Stone who moved for its adoption, seconded by Norman Himes: 10 Newcomb Street. Until such time as the court action is finalized. At that point, we will, again, entertain a variance application. Duly adopted this 15 day of May, 2002, by the following vote: th AYES: Mr. Hayes, Mr. McNulty, Mr. Abbate, Mr. Urrico, Mr. Himes, Mr. Underwood, Mr. Stone NOES: NONE ABSENT: Mr. Bryant STAFF INPUT Notes from Staff, Area Variance No. 102-2001, Randy Barrett, Meeting Date: May 15, 2002 “Project Location: 10 Newcomb Street Description of Proposed Project: Applicant has placed a modular home on the property. Relief Required: Applicant requests 12 feet 4 inches and 9 feet 2 inches of relief from the 17 (Queensbury ZBA Meeting 06/19/02) 20-foot minimum side setback requirement of the CR-15 zone, § 179-24. Criteria for considering an Area Variance according to Chapter 267 of Town Law: 1. Benefit to the applicant: Applicant would be permitted to keep the modular home as constructed in the preferred location. 2. Feasible alternatives: Feasible alternatives seem to be limited due to the home being placed on a block foundation basement. 3. Is this relief substantial relative to the Ordinance?: 12 feet 4 inches and 9 feet 2 inches of relief from the 20-foot requirement may be interpreted as moderate to substantial, considering relief is being requested on both sides. 4. Effects on the neighborhood or community: Moderate effects on the neighborhood may be anticipated as a result of this action. Public Comment has been submitted. 5. Is this difficulty self- created? While difficulty may be interpreted as self-created, a portion of the difficulty could be attributed to the pre-existing lot configuration. Parcel History (construction/site plan/variance, etc.): AV 102-2001: 04/17/01; tabled until applicant’s site is in compliance with violations of the junkyard ordinance. AV 102- 2001: 12/19/01; tabled until a survey can be provided. Town Board Res. No. 198-2000: revocable permit issued (Mobile Home Outside a Mobile Home Court). AV 60-2000: 9 feet of relief granted for both side setbacks (same home in current application). Staff comments: Moderate impacts may be anticipated as a result of this action. The applicant applied for this variance due to enforcement action resulting from a formal complaint by Mr. Klein (neighboring parcel to the south). The applicant claims the foundation for the modular home was constructed in the wrong location because of human error. The Code Enforcement Officers during their inspections did not discover the human error, as it is not their responsibility to check setbacks. The Code Compliance officers have the responsibility to check setbacks; however, a survey is necessary to accurately check setbacks. The Code Compliance Officers would have discovered the setback error when the final survey was eventually submitted, as required by Town of Queensbury Code. Part of the tabling motion of 12/19/01 includes a request for the status of the current enforcement action against Mr. Barrett for violations of the junkyard ordinance. According to Dave Hatin, Director of Building and Codes, Mr. Barrett had until 04/19/02 to bring his site into compliance, which included removing all of the debris from the demolished trailer and the removal of all junk vehicles that are in excess of those allowed by Town of Queensbury Code. Mr. Barrett appeared before the court on 04/22/02 where Mr. Hatin reported Mr. Barrett was still in violation of the junkyard ordinance. At the 5/20/02 trial, Mr. Barrett was fined $250 and was ordered to clean up the site by 06/15/02 or a 15-day jail sentence will be imposed. SEQR Status: Type II” MR. STONE-Mr. Barrett, you’re on. MR. BARRETT-What do you want me to tell you? You guys are God. You’re going to either give it to me or you’re not. Make up your mind, okay. Either give it to me or don’t give it to me. I don’t care what you do at this point. MR. STONE-Where do you stand with the courts, Mr. Barrett? MR. BARRETT-The courts have nothing to do with this hearing. MR. STONE-I understand. MR. BARRETT-You should be in control of the building and not my yard. If I’ve got two pieces of baby equipment out there or a trampoline or two doors or anything else, it should be none of your damn business. Either give it to me or don’t give it to me. MR. STONE-I respectfully disagree, but that’s all right. Okay. Any questions anybody has for Mr. Barrett? Any questions? I’m going to open the public hearing. Anybody wishing to speak in favor of this application? Anybody opposed? Any correspondence? PUBLIC HEARING OPENED MR. MC NULTY-I don’t find any recent correspondence. I do have a piece, we may not have read this, on April 7, 2002. MR. STONE-Okay. MR. MC NULTY-Let me see if there’s anything else buried down here. MR. BRYANT-While he’s looking for the correspondence, could I ask a question? MR. STONE-Sure. MR. HAYES-Yes, I have one, too. MR. BRYANT-Did we ever get a survey? MR. FRANK-Yes, a survey was supplied. 18 (Queensbury ZBA Meeting 06/19/02) MR. BRYANT-Do you have the survey there? MR. FRANK-I believe the Board at the time, that’s all they really wanted from Mr. Barrett was the survey supplied. I thought the Board was willing to grant the variance at the time. They needed proof of how much relief they were granting. Mr. Barrett was going to supply a survey that was provided as part of the deal of purchasing the home. I guess it was provided by the bank. We have a stamped survey stating the relief that he needs, which is in my Staff notes. MR. STONE-Okay. Your numbers of 12 4 and 9 2, therefore, are based on the survey. MR. FRANK-That’s correct. MR. BRYANT-Is it correct to assume that if the house were straight that there would be no additional requirements? MR. FRANK-Well, I believe there was a variance already granted. MR. BRYANT-For nine feet on each side. MR. FRANK-That’s correct. MR. BRYANT-Okay. My question is, the house is cockeyed. It’s cockeyed. Okay. So if the house were straight, would the nine feet be okay, or is the house just too wide? MR. FRANK-I believe it would have met the required setback if it had been placed ideally the way it supposedly was going to be done. I think so. MR. BRYANT-Who put the foundation down? MR. BARRETT-The contractor. MR. BRYANT-A contractor. MR. HAYES-Mr. Barrett, certainly the Board, historically, has granted more variances than we’ve denied, but the test that we go by, the test that we’re charged with maintaining, which just has to do with the benefit to you of this house and the dimensional relief that you’ve asked for and the detriment to the community, is there any evidence that you’d like to present, I think you should present, why you feel that this variance is in order or proper? MR. BARRETT-Nobody else has a problem with it but the guy out in back there that thinks he’s Newcomb Street’s mayor, and he’s not. Six hundred people go up and down that road every day. They don’t seem to have a problem. I’ve got 12 neighbors around the other way, like the other guy said. Nobody else has a problem but the mayor of Newcomb Street, and I don’t have a problem with it. I don’t know why there’s a problem. MR. HAYES-Was there any way that you could put this house on this lot without requesting relief? MR. BARRETT-We already got that, and it was okay. So they put the place in, and the guy said, well, the cellar’s okay, this is okay, and now they say he has nothing to do with it, but he’s there every day. He could tell that a beam that was going down cellar was three inches away, so I had to move that. He could tell the D-box was a quarter inch away from the (lost word). He could tell that, but he couldn’t tell that that building was off when they started the foundation. At the end, oh, this is no good now? Something’s wrong there. Something’s radically wrong. MR. STONE-Okay. We have ascertained that we have read the other letter into the record. So I will close the public hearing. PUBLIC HEARING CLOSED MR. STONE-Any other questions? Well, let’s talk about it, then. Allan, let’s start with you. MR. BRYANT-Well, Mr. Chairman, you know, this gets back to the same question of the responsibility. Apparently, a contractor put this foundation in, and the house was put on the foundation. Back when we spoke about it, back in May I think I was, I was opposed to the application at that point, and I think I’m still going to fall on that side. MR. STONE-Okay. Roy? 19 (Queensbury ZBA Meeting 06/19/02) MR. URRICO-Yes. As we talked about it in prior instances, I’m looking at this as we’ve already provided nine feet of relief on each side, and so we’re looking at an additional two inches on one side and three feet four inches on the other side. That’s the difference between this variance and the last one that was given, and I really don’t see much of a problem with that, and I would be in favor of the application. MR. STONE-Jaime? MR. HAYES-I, essentially agree. This is a pre-existing, nonconforming lot, which has presented us with difficulties in the past, but that’s the nature of pre-existing, nonconforming lots. Quite often they need relief, and I’m not sure, I can’t remember whether I was part of that decision before or not. I guess I’m getting old, but in this particular case, I don’t think that the additional three feet of relief turns the tide, as far as the balancing test, in this particular case. I’m in favor of the application. I believe that the effects on the neighborhood or community, I don’t think they’re great in this case because I think it’s not that inconsistent with the other houses in the neighborhood, as Mr. Barrett has pointed out, and again, we struggle with this self-created difficulty and certainly a mistake was made, but I don’t get the impression that Mr. Barrett purposely moved this building three feet, I really don’t, and I don’t see, first, as the potential remedies, I think that I could be in favor of the application, seeing through Mr. Barrett’s obvious animosity toward the Board, I think I’m in favor of the application. MR. STONE-Chuck? MR. MC NULTY-This has been a difficulty for me. It certainly would have been easier if the lot had been cleaned up, but. MR. BARRETT-What has the lot got to do with the building? It has nothing to do with it. MR. STONE-That’s okay. He has a right to say what he wants. MR. MC NULTY-It would be easier for me to approve if the lot had been cleaned up, but I will agree with the applicant that I think the prime question here is the placement of the home and not the condition of the lot. The condition of the lot is up to the enforcement people. Certainly there was a mistake made. As opposed to the last application, it strikes me that this one might well have been a little bit more difficult to detect quickly, although somebody should have been more careful, knowing that there’s already nine foot relief given for each side, and made sure that the foundation was placed properly. However, I would agree with some of the other Board members that I don’t think the additional relief requested is that great. Balancing that against the alternative which is going to be jack the house up, tear the foundation out and put it in where it belonged, that strikes me as getting to the draconian solution. So I think the benefit to the applicant outweighs the detriment to the neighborhood, as far as the placement of the house goes, and therefore I’ll be in favor. MR. STONE-Norm? MR. HIMES-Yes, thank you. Just as a matter of history, I think I’ve got in my notes here from the meeting we had in December whereabouts that there was general favor in this neighborhood for putting in the new mobile home, a big improvement over the other one, and he was replacing, from figures that I think were submitted, given to us at the meeting, a 10 by 40 foot home with a 28 by 60 home. Twenty eight feet wide on a fifty foot lot should have given us a little hint that, you know, you need a little more variance than we approved or we talked about. Without going back to what I said at the last application, here is a situation that wasn’t good to begin with, and I feel, again, agreeing with what Jaime said, that this is something that I think has a very, very modest impact, the increase needed over what we were approving to begin with. So I’d be in favor of the application. Thank you. MR. STONE-Chuck? MR. ABBATE-Okay. Thank you. I’m going to maintain consistency, Mr. Chairman. We didn’t approve the previous one because construction took place with inaccurate information, and here is an instance where the applicant placed a modular home on the property, and I’m not saying that it’s his fault, but somebody, we have to start holding people responsible for something along the line, or dissolve this Board, one or the other, and based upon that, I would not be in favor of the application. MR. STONE-Okay. I don’t want to say I’m giving up. If we don’t grant it, it’s not going to help that piece of property. I think the fact that a variance was sought, was granted, and was not sufficient due to an error, certainly Mr. Barrett has recourse with whoever built the foundation. I think we had a good reason to hold this up for a period of time. I think most of us, of course I can only speak for myself, but certainly I was appalled by the condition of this property, but again, that’s not a reason to deny a variance for where we put a building, but since there was deliberations going on, it was our feeling on this Board, as I understood it, to not make the, whatever Mr. Hatin’s title is, job more difficult by saying, well, we don’t care, this house can be anywhere it wants, but you’re at a point where you’re in the jurisdiction of the courts. I think the extra relief is, one could say an honest mistake if you want to go there, but I don’t see any reason to be punitive by not 20 (Queensbury ZBA Meeting 06/19/02) granting the variance, and therefore I would vote yes on this thing. I think the balancing test certainly says that we should grant it. So, having said that, I’d like a motion to approve. MOTION TO APPROVE AREA VARIANCE NO. 102-2001 RANDY BARRETT, Introduced by Paul Hayes who moved for its adoption, seconded by Roy Urrico: 10 Newcomb Street. The original meeting date was May 15, 2002. Today’s date is June 19, 2002. The applicant has already placed a modular home on the property. The relief requested, specifically the applicant requests 12 feet 4 inches and 9 feet 2 inches of relief from the 20 foot minimum side setback requirement of the CR-15 zone, 179-24. The benefit to the applicant would be he would be permitted to maintain his modular home as constructed. Feasible alternatives. I believe, in this case, that feasible alternatives are extremely limited, based on the pre-existing nonconforming dimensions of the lot in question. Is the relief substantial relative to the Ordinance? 12’ 4” and 9’ 2” of relief on the 20 foot requirement I believe is moderate to substantial, but I believe that it is not entirely inconsistent with other homes in this immediate neighborhood. Effects on the neighborhood or community? I don’t believe that there will be substantial negative impact on the neighborhood or community by granting the relief in this particular case? Is the difficulty self-created? Certainly, the difficulty is self-created, in that a variance has already been granted. Mr. Barrett was given relief in the past by this Board, and he exceeded that relief, and therefore the difference between those two things is self-created, but I certainly would give some credence to the fact, again, that this is a nonconforming lot, and that the small misplacement of this house and the additional relief that needs to be requested has more to do with the lot than an over attempt by the applicant to exceed what he was permitted, in this particular case. Therefore, on balance, I would move for the approval of the application. Again, as the Chairman has pointed out, we are clearly separating the Area Variance test and requirements from the enforcement actions that are being maintained on the property at this time. Again, I will say that it is not additional relief. We are granting exactly 12 feet 4 inches of relief and 9 feet 2 inches of relief from the 20 foot minimum side setback requirement of the CR-15 zone, Section 179-24, exactly. Duly adopted this 19 day of June, 2002, by the following vote: th MR. STONE-I’d just ask a question of Staff. Bruce, that 12’ 4” is 3’ 4” more than we granted before, right? We’re not granting an additional 12? MR. FRANK-That’s correct. MR. STONE-You referred to it, but I think I would like it to say. MR. HAYES-Well, again, I will say that it is not additional relief. We are granting exactly 12 feet 4 inches of relief and 9 feet 2 inches of relief from the 20 foot minimum side setback requirement of the CR-14 zone, Section 179-24, exactly. AYES: Mr. Urrico, Mr. Himes, Mr. McNulty, Mr. Hayes, Mr. Stone NOES: Mr. Bryant, Mr. Abbate MR. STONE-There you go, Mr. Barrett, and all I want to say is, please respect this Board. We are trying to do a job for the Town of Queensbury. We are not against you. We are trying to uphold the Code to the best of our abilities. NEW BUSINESS: SEQRA AREA VARIANCE NO. 36-2002 TYPE I GREEN MOUNTAIN DEVELOPMENT GROUP CEDAR SENIOR LIVING FACILITY PROJECT PROPERTY OWNER: WOODBURY DEVELOPMENT GROUP AGENT: THE CHAZEN COMPANIES (STUART MESSINGER) LITTLE & O’CONNOR (MIKE O’CONNOR) LOCATION: BAY ROAD ZONE: PO APPLICANT PROPOSES A THREE LOT SUBDIVISION. APPLICANT SEEKS RELIEF FROM THE MINIMUM ROAD FRONTAGE REQUIREMENTS FOR LOTS 2 AND 3. CROSS REF. SUBDIVISION NO. 8-2002 AND SPR 25-2002 TAX MAP NO. 296.07-1-15 AND 289.19-1-15 LOT SIZE: 19.39 ACRES AND 5 ACRES SECTION 179-4-90 MICHAEL O’CONNOR, STUART MESINGER, & CHARLES BRUSH, REP. APPLICANT, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 36-2002, Green Mountain Development Group, Meeting Date: June 19, 2002 “Project Location: Bay Road Description of Proposed Project: Applicant proposes a three-lot subdivision, which has one lot without frontage on a public street (Lot #2) and one where the primary access is not provided by a public street (Lot #3). Relief Required: Applicant requests, for both lots, 40 feet of relief from the 40-foot minimum required road frontage per § 179-4-090(A). Criteria for considering an Area Variance according to Chapter 267 of Town Law: 1. Benefit to the applicant: Applicant would 21 (Queensbury ZBA Meeting 06/19/02) be permitted to subdivide the parcel, which would create two lots that do not meet the minimum road frontage requirements. 2. Feasible alternatives: Feasible alternatives seem to be limited. 3. Is this relief substantial relative to the Ordinance?: 40 feet of relief from the 40-foot minimum required road frontage may be interpreted as substantial relative to the Ordinance. 4. Effects on the neighborhood or community: Minimal effects on the neighborhood may be anticipated as a result of this action. 5. Is this difficulty self-created? The difficulty may be interpreted as self-created. Parcel History (construction/site plan/variance, etc.): Subdivision No. 8-2002: to be reviewed 06/27/02 SPR 25-2002: to be reviewed 06/27/02. Staff comments: Minimal impacts may be anticipated as a result of this action. Should this application be approved, the newly created Lots #2 and #3 will be accessed by parcel #1 which has a 60-foot wide frontage on Bay Road. SEQR Status: Type I” MR. MC NULTY-And we have a “Warren County Planning Board Project Review and Referral Form May 8, 2002 Project Name: Green Mountain Development Group Owner: Woodbury Development Group ID Number: QBY-AV-02-36 County Project#: May 02-30 Current Zoning: PO Community: Queensbury Project Description: The applicant proposes to create a three lot subdivision where lot one contains the primary means of access from Bay Road to lot two and lot three. The variance request is to create two lots without the required town road frontage. Site Location: Bay Road Tax Map Number(s): 289.19-1- 15 296.07-1-15 Staff Notes: The applicant proposes to create a three lot subdivision where lot two and lot three do not have the required road frontage. The plans indicate that the primary access to lot two and lot three will be from lot one on Bay Road. The applicant intends to construct a Senior Living Facility in phased plan, the subdivision of the lots would assist with financing of the project. Staff recommends discussion. County Planning Board Recommendation: Approve The County Board recommended approval of the variance to create three lots with two having no road frontage or actual access.” Signed Thomas E. Haley 5/10/02. MR. STONE-Gentlemen. MR. O'CONNOR-Mr. Chairman, gentlemen of the Board, for the purposes of your record, I’m Michael O’Connor from the law firm of Little & O’Connor. I represent the applicant. With me is Charles Brush who is a principal in the applicant, and also Stuart Mesinger who is the Planning Consultant. I won’t try to beg the question, but we think the application is fairly simple. We did, last night, get a negative declaration for the SEQRA review from the Planning Board, and we are going through the process with the Planning Board for subdivision approval and site plan approval for the project. Basically, this project is one project, but for financing reasons, we are developing it as three parcels. Parcel one is the parcel nearest Bay Road. It is 5.5 acres. It has 60 feet of frontage on Bay Road. Parcel Two is the second parcel, which is on the southerly side of the project, and that has 3.7 acres. That has no frontage on a Town road, except through mutual easements that will be to the benefit of all three lots, which will give all lots the right to use the roadway which is being constructed. Lot Three is the back lot, which I think is 15.75 acres. That has separate road frontage, but it’s not road frontage that we’re using. It’s quite a bit of a grade to go to Blind Rock Road, if you went up through that end of the property, and it would not present a good way of entering or exiting the property. So basically we’ve got a project that, for financing purposes, we are going to have three lots. They are all going to use the Bay Road entrance and exit. They’re going to be mutual easements that will benefit each of the lots, so that they have the right to use that in permanency. I think the point on your road frontage requirement for lots is that you not create a landlocked parcel, and we’re not doing that in this instance. The roadway that comes in will, in the first part, be a boulevard, and then will be the same constructed as almost a Town road except it will be privately owned, and that’s basically it. MR. STONE-Okay. On the diagram up on the board, Lot Two is in the lower right corner of that big? I mean, we don’t have, obviously. MR. O'CONNOR-Yes. You don’t have the subdivision map up there. MR. STONE-Thank you. MR. BRYANT-The question about Lot Three, the actual area where you intend to build I guess is in the center of the wetlands area? No? MR. O'CONNOR-No. It’s, on Lot One and Two, it’ll be where the structures are built, and the Lot Three, in the upper part of Lot Three, is where the septic will be. There is no structure or residence that goes up there. MR. ABBATE-This has nothing to do with the application, but I am absolutely devastated by counsel’s remark that we are punitive, and I don’t know when I’ll sleep this evening, because I certainly hope that he knows that we don’t act in a punitive nature. Thank you, Mr. Chairman. MR. O'CONNOR-You just made my client feel real well, but I did have his permission to speak. I did ask permission to speak. MR. ABBATE-You’ve got to have some humor. Otherwise you know it’s no fun, right? 22 (Queensbury ZBA Meeting 06/19/02) MR. O'CONNOR-Absolutely. MR. ABBATE-Okay. MR. O'CONNOR-Next time I won’t speak so freely. MR. STONE-Having attended the Planning Board meeting last night where you gentlemen were put through your paces pretty well from the engineering standpoint, and listening to their SEQRA determination, I’m certainly confident that whatever you do on this property is not going to have a problem, and I think the technical variance that you’re asking for, to me, is not really a problem. I think it’s, how else do you get there, as long as you’re willing to put it in writing that it stays that way, and it’s not your fault that the banks, no, I won’t go there. MR. ABBATE-Can I follow it up with a serious remark, now? MR. STONE-Yes. MR. ABBATE-I really believe this is a good example of where an applicant has brought into his plans competent people, and they have a well thought-out plan, presented to the Town and to this Board, with all intents and purposes, have dotted the I’s and crossed the T’s, and I think if many of the applicants who come before us go through this sobering and laboring administrative procedures, there’d be no problem. So I would like to congratulate you folks. MR. MESINGER-We’d be happy to leave our cards with the Board. MR. STONE-I was going to make a facetious comment that one of the gentlemen sitting in front at the table over there is one very responsible for our bible here, and if you have any problems with it, talk to Mr. Mesinger. MR. ABBATE-My comments were appropriate, then. Okay. MR. STONE-Anyway, any other comments? I’ll open the public hearing. Anybody wishing to speak in favor of this application? In favor of? Anybody opposed? PUBLIC HEARING OPENED VICTOR THOMAS MR. THOMAS-I just have some questions. My name is Victor Thomas, and I own the property on the south side, okay. I have no problem with their development. I should have gotten up in favor of, but it’s driving me crazy. The map is not correct. MR. STONE-Take it up with Staff, will you, please. MR. THOMAS-Okay. Well, I know, I just wondered if this was the correct map. MR. O'CONNOR-The survey is. MR. THOMAS-The survey is? MR. O'CONNOR-Yes. MR. THOMAS-Well, the property on the south side, I own half between Country Club Road and Bay Road, and Mr. Mattison and I do not have the same property line. It’s no big deal, but it’s just driving me crazy. MR. STONE-Well, if you’re concerned MR. THOMAS-Do you want me to show you what I mean? MR. STONE-Yes, go ahead, sure. At least we’ll get it on the record. MR. ABBATE-Yes, set the record straight. Why not. MR. O'CONNOR-That’s the GIS, that’s not our map. That’s the GIS tax map. MR. THOMAS-This is mine, okay, well, it should be down in here. Any map that I’ve seen. MR. O'CONNOR-Did you just volunteer to pay those extra taxes? 23 (Queensbury ZBA Meeting 06/19/02) MR. THOMAS-Thank you. MR. STONE-Anybody else wishing to speak, for or against, or want to pay more taxes, as Mr. O’Connor said? Any correspondence? MR. MC NULTY-No correspondence. MR. STONE-Let me close the public hearing. PUBLIC HEARING CLOSED MR. STONE-Any other questions, gentlemen? If not, let’s just go down the list. Roy, we’ll start with you. MR. URRICO-Yes. Taking it down the list. I see a benefit to the applicant. There are limited feasible alternatives. While the relief is substantial relative to the Ordinance, this is necessary in order for there to be access between their properties and the easements will address that problem. The effects on the neighborhood or community are minimal, as far as I can see, and the difficulty may be interpreted as self- created, but on balance, I’m in favor of it. MR. STONE-Okay. Jaime? MR. HAYES-I agree with the Chairman. I think this is pretty much a technical variance. I think the substantial issues, or the substantive issues on this particular project are going to be decided at the Planning Board, and I believe that that’s where the decisions really should be made, and on balance, going through the criteria, I think that I’m in favor of the application. MR. STONE-Chuck? MR. MC NULTY-I’ll basically agree. I think the explanation that’s been given is logical. As has been pointed out, this is basically a technical request to support the financing, and I think the arrangement is going to be feasible. So on a practical basis, as each lot is developed, it will have the adequate access to a public road. So, I’d be in favor. MR. STONE-Norm? MR. HIMES-Yes, thank you. I’d be in favor of the application. I have nothing further to add to what my fellow Board members have already said. Thank you. MR. ABBATE-Okay. Again, I just want to say that I believe that it’s a very well developed plan, by very competent parties, and I think this is a good example, perhaps we should hold up for those individuals seeking a variance coming before this Board, and I would have no problem supporting it. MR. STONE-Allan? MR. BRYANT-It’s refreshing to see that you haven’t already built the building. MR. ABBATE-Thank you. Thank you. MR. O'CONNOR-That is my specialty. MR. BRYANT-I agree with what the other Board members have said. I’d be in favor of the application. MR. STONE-There’s nothing more for me to add. I think everybody has said, it’s a good, it looks like a good project. I wish it well. I wish you’d have as easy a time with the Planning Board as you’re obviously having with us, but ours is a very technical matter here, and no problem. So, I need a motion to approve. MOTION TO APPROVE AREA VARIANCE NO. 36-2002 GREEN MOUNTAIN DEVELOPMENT GROUP, Introduced by Norman Himes who moved for its adoption, seconded by Charles Abbate: Bay Road. The applicant proposes a three lot subdivision which has one lot without any frontage on a public street, and one where the primary access is not provided by a public street. Relief required, the applicant requests for both lots 40 feet of relief from the 40 foot minimum required road frontage per 179-4-090(A). The benefit to the applicant would be they would be permitted to subdivide the parcel which would create two lots which would not meet the minimum road frontage requirements. Feasible alternatives, there are no practical alternatives. Is this relief substantial relative to the Ordinance? 40 feet of relief from the 40 foot required road frontage is certainly substantial. Effects on the neighborhood or community? Minimal effects on the neighborhood or community may be anticipated as a result of this action because there’s going to be 24 (Queensbury ZBA Meeting 06/19/02) legal measures that will be in place to enable the lots in question requiring the variance to be connected and accessed. So, with that, I move that we approve the application as submitted. Duly adopted this 19 day of June, 2002, by the following vote: th AYES: Mr. Abbate, Mr. Himes, Mr. McNulty, Mr. Hayes, Mr. Urrico, Mr. Bryant, Mr. Stone NOES: NONE MR. STONE-There you go. MR. MESINGER-Thank you. AREA VARIANCE NO. 47-2002 TYPE: UNLISTED GIRL SCOUTS OF THE ADIRONDACK COUNCIL, INC. PROPERTY OWNER: SAME AS ABOVE AGENT: THE LA GROUP, PC AND JON LAPPER, ESQ. LOCATION: 213 MEADOWBROOK ROAD ZONE: SFR-1A APPLICANT PROPOSES CONSTRUCTION OF A 2,800 SQ. FT. ADDITION TO THE ADMINISTRATIVE/OFFICE BUILDING. RELIEF REQUESTED FROM WETLAND SETBACK REQUIREMENTS. CROS REF. SPR 30-2002; FRESHWATER WETLANDS PERMIT 1-2002 TAX MAP NO. 296.16-1-10 LOT SIZE: 13.38 ACRES SECTION 179-4-30 JON LAPPER, HOLLY ELMER, BOB ZILCH, REPRESENTING APPLICANT, PRESENT MR. STONE-Because of my intimate connection with one of the principals in the organization, I will recuse myself and Mr. Hayes will conduct the meeting. STAFF INPUT Notes from Staff, Area Variance No. 47-2002, Girl Scouts of the Adirondack Council, Inc., Meeting Date: June 19, 2002 “Project Location: 213 Meadowbrook Road Description of Proposed Project: Applicant proposes construction of a 2800 sq. ft. addition to the administration/office building. Relief Required: Applicant requests 84.5 feet of relief from the 75-foot minimum shoreline setback requirement of the Shoreline Setback Regulations for the SFR-1A Zone, § 19-4-070. 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 structure in the preferred location. 2. Feasible alternatives: Feasible alternatives may include constructing the new administration/office building in a compliant location. 3. Is this relief substantial relative to the Ordinance?: 84.5 feet of relief from the 75-foot minimum shoreline setback requirement may be interpreted as substantial, relative to the ordinance (113%). 4. Effects on the neighborhood or community: Substantial effects on the neighborhood/community may be anticipated as a result of this action. 5. Is this difficulty self-created? The difficulty may be interpreted as self-created; however, may also be attributed to the financial constraints of the not-for-profit organization. Parcel History (construction/site plan/variance, etc.): SP 30-2002: to be reviewed 06/25/02 pending this application. Freshwater Wetlands Permit 1-2002: to be reviewed 06/25/02; pending this application UV 12- 2002: 02/27/02; expansion of office/administration facilities. Use Variance 44-92: 05/27/92; storage building & breezeway. Freshwater Wetlands Permit 2-92: 05/14/92; storage building & breezeway. Off Premises Sign: 04/16/85; located at Quaker and Meadowbrook Road. UV 1226: 03/18/87; expand facilities. Staff comments: Substantial impacts may be anticipated as a result of this action. The cover letter submitted with the application states “…a mere 15 sq. ft. of the new building will be in the wetlands”. Also, the proposed setback is minus two feet. Sheet L-3 of the plans locates the southernmost portion of the deck and stairs approximately 9.5 feet into the wetlands, and the area of the building/deck proposed to be constructed in the wetland is much greater than the 15 sq. ft. claimed in the cover letter. It appears ample area exists to construct an administrative/office building and develop the land as proposed in a cleared and graded area in the northeast section of the parcel. Sheet L-1 of the plans labels the area as parking. The plans don’t accurately depict the area that exists to the south of the entrance drive from the road. An area approximately 120 feet by 55 feet exists between the tree line on the road and the bottom of the rock ledge. Staff recommends an advisory recommendation from the Planning Board before the Zoning Board proceeds with any action on the area variance. SEQR Status: Type II” MR. HAYES-Do we have any Warren County? MR. MC NULTY-No Warren County that I could find. MR. HAYES-Was there Warren County? MR. LAPPER-There was Warren County. They recommended approval with advisory comments from Warren County Soil & Water, and we’ve already been working with them. MR. HAYES-Do you have a Warren County referral, by any chance, Bruce? 25 (Queensbury ZBA Meeting 06/19/02) MR. FRANK-I thought it was included with the material that was supplied to the Secretary. MR. HAYES-If it’s not obtainable, we’ll proceed under the presumption that there was no denial at the County level, but obviously that would change the vote content if there was a denial. MR. MC NULTY-I don’t see any in the file. MR. HAYES-Do you have a copy, Mr. Lapper, by any chance? MR. LAPPER-I don’t, because I sent it back to the Town, but Holly and I were both there, and I’m certain that it was not denied, although it was a week ago. So I can’t remember the details, but it was positive. MR. HAYES-Bruce, that’s permissible to proceed under the presumption the counselor is correct? MR. FRANK-I believe so. It’s part of the record. I mean, it can be checked if there’s a problem. MR. HAYES-Right, then they would need the five vote supermajority, if that turned out to be incorrect. MR. FRANK-I believe so. MR. HAYES-Okay. Thank you. MR. LAPPER-I know that Planning Board member Mr. Strough was there. Maybe he recalls and can verify that it was approved, as well. JOHN STROUGH MR. STROUGH-He got approved pending DEC and Army Corps, whatever applications may apply. MR. FRANK-John, would you like to state that on one of the microphones, for the record, if we’re going to go by that. MR. HAYES-Yes. I’d just like to get it behind us. So that’s fine. MR. STROUGH-Yes, I was at the Warren County Planning Board meeting when this application was reviewed, and they gave it approval pending DEC and Army Corps of Engineer requirements. MR. FRANK-Thank you. MR. HAYES-Thank you. Mr. Lapper? MR. LAPPER-And just for the record, we do need a DEC permit and so that’s certainly something that we agreed to with the County Planning Board, and the Army Corps they said if necessary, and we don’t expect that we need Army Corps approval, but we’ll get into that in detail in a few moments. For the record, my name is Jon Lapper, an attorney with the Bartlett Pontiff firm in Glens Falls, on behalf of the Adirondack Girl Scout Council. With me is Holly Elmer, to my left, from the LA Group. We’re also going to have Bob Zilch, from Joy McCoola, the project architect, Dean Long from the LA Group, and Kit Huggard, the Executive Director of the Girl Scouts is here, along with many of her Board of Directors. I want to just beg your indulgence. Because this is the first application before the Queensbury Zoning Board for a variance for a wetlands, we feel that we’re at somewhat of a disadvantage because this is just a new area for this Board to explore, and for the Planning Department. So I asked Dean to join us so that he can give you some background, in terms of wetland permitting in New York, both at the State level and at the Federal level, so that we can show how this application fits into the permitting, why we think that this will be very well received by DEC, but this may appear to you, or to Staff, to be a significant variance. To the wetland consultants that do this work all the time this is an absolutely minor permit, 3800 square feet of wetland disturbance, but we’ll get to that in a few minutes. I want to just make some preliminary comments, and then we’ll have Holly go through the site plan and have Bob Zilch show you that we have looked at other parts of the site. Mr. Underwood had asked us specifically to do that at the last hearing, and we considered other alternatives and came back to this as the best alternative, in terms of the Girl Scout’s use, and we think most appropriate for the site, but we’ll get there in a few minutes. To begin with, the reason that we’re here is because, since we were here in February, for the Use Variance, the Town, of course, has implemented the new zoning code, and one of the changes in that zoning code was that the definition of shoreline, which previously referred to shoreline of lakes, ponds, streams, rivers, etc., it now includes State wetlands. I felt, when talking to the Planning Department in the spring, that we would be grandfathered under the old Code for this aspect of it, because we were here starting the project in February, and because we had submitted a conceptual site plan, the Zoning Administrator felt that since we hadn’t actually applied for site plan approval at that time, it would be more appropriate to come and ask for the approval and it just didn’t seem necessary to argue about it, so we figured that we would just make the presentation to you. We’ll be going to the Planning Board anyway for a Freshwater Wetlands permit. So, rather than argue on a procedural point, we 26 (Queensbury ZBA Meeting 06/19/02) just felt that we could explain to you, after we’d gone through all the details of the Use Variance, exactly what we’re talking about here, and part of the reasoning was just that, again, with our consultants, we look at this as the 3800 square feet of wetland disturbance being very small. Dean will get into it in greater detail, but in general, the Army Corps of Engineers, which regulates Federal wetlands has a threshold of a tenth of an acre, and if you’re under a tenth of an acre, an acre is 43,560 square feet. So if you’re under 4300 square feet, you don’t even have to make application to the Army Corps. You’re just allowed to do that. It’s called a Nationwide Permit, and you’re just allowed to fill a tenth of an acre without a permit, up to a tenth of an acre, and we are under a tenth of an acre, which is one of the reasons why we think this is minimal, but beyond that, the wetland is a very different animal than a stream or really a lake which really we’re used to, because when you’re talking about setbacks from lakes, you’re talking about visual impacts, recreation impacts. You’re talking about people that are on boats in the lake looking up at what you’re going to build. A wetland serves a purpose of primarily a recharge area for stormwater, to clean that water before it goes back into becoming groundwater, and our plan deals with that by creating a detention basin, which is, again, something that the Planning Board is more familiar with than the Zoning Board, but we’re handling that function on the site by designing a stormwater detention basin into the site. So that even though we’re taking out this area, disturbing, filling this wetland area, we’re creating another area to deal with the stormwater that would be offset by this disturbance. So the function is being covered, and for that reason, specifically, we feel that this is an absolutely minor permit, without any impact on the neighborhood, in terms of the standards under New York law. That said, that’s where we’re going to end up with our presentation. I want to hand it over to Holly to just re-familiarize you with what we had asked for last time, and we’ll move on from there. MS. ELMER-Holly Elmer from the LA Group. I’d like to refer to the site plan as we talk about this. This is the 13 and a half acre site of the Girl Scouts that you’re familiar with. It’s on the Camp Meadowbrook site on Meadowbrook Road. The photo here is of the back of the building, looking at Halfway creek, and this site has served the Girl Scout Council since the 1940’s, when the site was purchased. The two biggest lodges on the site, the two nature lodges, were built in 1952 and 1963, and that’s these two that, they actually show up on a USGS Map as well. The office was built in 1967. The Camp was built before zoning was established, and before any of the State or Federal wetland programs were established, and it does serve, the five county area that it serves includes over 3500 girls that come to the Camp every year. The five counties are Warren County, Washington County, Lower Essex County, Northern Saratoga County, and part of Hamilton County. Now the whole campsite, as you can see, has the Halfway Brook surface water resource itself with the tributary and the associated wetlands, and you can see that it forms, about seven acres of this 13 and a half acre project site is the wetlands and the surface water. So they’ve got their office in one corner and all the camp activities for the girls occur up on this part of the land, it’s about six acres worth of land that they have to work with. There’s a bedrock outcrop that’s about a 10 foot drop that runs along the east side, and you can just drive by it and you’ll see it out there. I think I want to look at the site plan at this point. The site plan that’s been submitted to you shows the existing office site. This is at 20 scale. You can see the existing building and the proposed addition of the 2880 square foot. There are 30 parking spaces, total, proposed. Two of them are handicap accessible. It takes away any parking in the actual front of the building on the Meadowbrook Road side, and it restricts the ingress and egress to the two points, and it creates a grassed island to separate the activities at the center, at the office, from Meadowbrook Road, which we feel would be a substantial improvement over the existing condition. Right now it’s not good for the people accessing the office or for people on Meadowbrook Road itself. The building itself is 15 square foot into the wetland, and we’ve colored the wetland here, on this drawing. This is the 75 foot buffer, this blue line, which actually crosses the road and keeps going, but at 15 square foot of the building is accurate. The deck itself, which is an open wood structure, is 158 square foot, and the total, the dark red here that’s shaded in, is any grading that’s being proposed, and includes the stormwater detention, the parking, the walkway in the back, and of course the building and the deck, and that comes to 3880 square foot, and, you know, we’re in the permitting business, and we’re working for the Scouts here, and we know what we have to do to get their permits, you know, we know if we want to go to the Army, if we’re over a tenth of an acre, we’re going to be talking to the Army, and we don’t want to do that, you know, to keep things streamlined and simple, this is the way we designed it, and we’ve met with the DEC on the site, and I’ll let Dean get into that in some more detail, but we, you know, we pursue six to ten wetland permits a day, you know, in our job, and it’s part of probably why we get called. So this is the major part of the site plan. There’s two stormwater detention areas are shown on this edge of the parking, on the west side, and then there’s a small area here under the grassed buffer. When you look at stormwater, you look at existing conditions and proposed conditions. Under the existing conditions, you’ve got a very shallow water table, and with that condition being that way, when you build impervious, the increase in any stormwater is very small because of the comparison, there is not much difference, when you compare the two, and the increase in runoff is handled on the site, so that there is no increase in runoff from the project. It’s all maintained and managed on the site. I did want to review the Staff comments that we saw. I think I answered about the 15 square foot of the building. The building itself, as you can see, and the deck, if you were to measure it out at this 20 scale, you know, that’s 158 square foot of the deck, which is an open wood structure. When they say the plans aren’t accurate, I think they mean that in the upper part of the site, there is some wood that when you look at an air photo, which is what we took the vegetation from, what you’re looking at is tree canopy. There’s an area up to the north and east here that is used for parking. It’s not paved and it’s used only in the summer, basically on Thursday nights when the parents come to visit their children and the kids stay overnight that one night, and this is during the eight week summer programs. So there is some parking that occurs in here, underneath the canopy, but this is drawn from an air photo, so that’s why you see the canopy extending over the parking. So I think that’s what 27 (Queensbury ZBA Meeting 06/19/02) the reference was being made to. There’s the entrance. So we don’t need to pave it because they don’t use it in the winter. It’s never plowed. It’s only used in the summer, basically Thursday nights for the parents to come and go, and it keeps them off Meadowbrook Road. So we feel that’s important, and that it’s been working very well. So I think at this point I could turn it over to Dean and he’ll give you some more detail o the wetlands. I’m sorry, here’s Bob. MR. ZILCH-Hi. I’m Bob Zilch with Joy, McCoola, Zilch architects. We were hired about, I guess it was a little over a year ago to look at the feasibility of expanding the Girl Scout facilities on their present building. Grossly used up, I guess is one way to put it. They really were running out of space. They had people all over each other in there, and they have really a lack of meeting space now because of that. Any meeting space has really been taken over with office space. So they really are somewhat desperate for doing something here, and Kit Huggard, the Executive Director, asked us to look at this, and she said, you know, we’ve got two possibilities here, I think, and you tell me if I’m wrong. We have the existing building that we can expand on, and then we have the parking lot up to the north, and we went up there and took a look at it, and it’s true. This is the site that was on the photograph there was a site that looked like it had some potential. So we agreed that that would become part of the study, and we’ve tried to create some criteria for looking at the feasibility of these two different locations on the site, and one of the critical issues was parking. Safety was related directly to that because of the fact that you’re on Meadowbrook Road and we all know with the increased development and the increased traffic along there, so that was becoming a more important issue than it had been in the past, we also needed to be able to expand the building adequately so that it satisfied their program needs. Cost was also a consideration, as you know. This is a non-profit organization, and fundraising, you know, is something that they do on a regular basis selling cookies, but this was going to require a lot more than that. So cost was definitely a consideration here. Utility, the feasibility of getting utilities onto this site was also a major consideration. When they made some improvements to their Freedom Lodge up here, added some toilet rooms and so on, that became a major expense because basically they had to run the utilities on top of the bedrock and then build a berm over that, and of course since this is mainly a summertime operation, that works, but this administration building is a full 365 day a year operation. So we had to take that into consideration when thinking about those kind of features that you have to build into utility construction. So, in terms of the existing site, we weren’t too excited about the building. It’s not a particularly attractive building. You’ve probably got some photographs up there. I’ll put these up. As you can see, it kind of looks like a ranch style house with multiple entrances. It also has multiple handicap ramps. It has a garage off to the side here. You can see the parking, the way it is backed, people basically pull in from the street, straight in, which presents a problem when you want to back out. It’s great for getting in, but kind of dangerous getting out. So those were some of our first impressions. Looking at the other site, we realized that, yes, you could put a building down there and provide adequate parking, but then you run into the issue of what are we going to do for those Thursday nights when all the parents show up and so on, and we decided that that may not be a very good thing to do that, because then we would lack that parking, and part of the feasibility study took into account of actually selling this property in order to make it more affordable to do a project at the other end of the site. So, when all was said and done, because of the higher utility costs up at the other end of the site, the loss of the parking, the increased expense and so on, and perhaps leaving kind of an unattractive building here on Meadowbrook, it was decided that this would be the more feasible site, and I can just show you how this expansion will happen here. This is the existing floor plan. You see the garage here on the right, and there’s multiple entrances, like I was telling you, and this is the new floor plan, which you can see basically does not really drastically change the road frontage appearance, except for the fact that it will be completely refaced and re-done, as I’ll show you, that basically expands toward the creek in the back, and that, we thought, worked well, because it did not increase the scale of the building in relationship to the neighbors’ street front façades and so on. This is a rendering of the new façade and it’s a combination of clapboard, asphalt shingled roofing, and a concrete block kind of, actually I think that’s a shingled base there, and some concrete block or stonework up around here at the entrance. So, I think that covers it in a nutshell. I don’t know if anybody has any questions regarding that, while I’m up here, but that was why we chose that site, and we think that it will be a definite improvement to the streetscape. It will create a safe parking situation, and also I think keeps within the cost parameters that the Girl Scouts can afford for this particular building. Thank you. DEAN LONG MR. LONG-I’ll put flip this over to the site plan. I will talk briefly about the site plan. My name is Dean Long, and I’m the Director of Environmental Planning at the LA Group. My primary function at the LA Group is dealing with environmental permitting for a large variety of projects, and what I’m going to do here in the next couple of minutes is describe both the State and Federal program, as well as relate them to your typical variance criteria that you are also considering tonight, to show how these are all entirely compatible overlapping a lot, and still work within both the State and Federal rules. I’ll start off with the State rules. The State rules were set up under Article 24, in about 1976, and between 1976 and in through the mid 80’s, there was a process of mapping wetlands in New York State. Some of that mapping work actually did not get completed until into almost 1990 with the final maps, but nonetheless, the State process operates with a set of jurisdictional maps. Once a wetland is shown to be jurisdictional on the map, then we go through a boundary determination process in the field in order to fully define that line, and they’re successfully managing to get the Halfway Brook wetland complex up there, which is what that slide shows. Once you get to that point, then you have a jurisdictional wetland under New York State rules, and then you’re into a permitting process 28 (Queensbury ZBA Meeting 06/19/02) at DEC. That process looks at a number of criteria. Among the criteria that are important for this project is first avoidance and minimalization, as well as alternatives analysis. Bob Zilch has already talked about the alternative analysis that’s been completed by the Girl Scouts, that essentially shows that this is the best site that they have available for the development of the office building. Also part of that is avoidance and minimalization. Avoidance and minimalization is a concept that carries through both the State and Federal rules, as far as what can the applicant do to minimize the amounts of wetland fills and the amounts of wetland disturbances here. Certainly on this project we’ve minimized some of the disturbances by the arrangement of the building, the shape of the building, and these kind of factors, and these all weigh into how these, both the State and Federal, will examine the permit criteria. One of the important things, or one of the things that’s much clearer under the State rule is social benefits. The State understands that there are activities and groups out there that provide social benefits to the community in general. Girl Scouts certainly fall into that. School buildings fall into that. Municipal buildings fall into that. So that is one of the criteria that they will consider as part of their overall permitting status. Another item that’s clearly defined in the New York State wetland rules is the consideration of public health and safety. The improvements that we’re proposing here for the parking, so that we prevent people from backing out onto Meadowbrook Road, is an important improvement to DEC. Because they will look at the entire picture here, as far as public health and safety benefits. So the parking lot arrangements, the grassed areas that we’ve proposed in the front of the building there to prevent people from backing out onto Meadowbrook Road, as well as the fact that this facility is served by municipal sewer, all form into the State, fall into items that the State examines in their permitting criteria. On Monday, Al Koechline from DEC, the regional wetland specialist, came down and examined the site. We verified his wetland boundary, which is the wetland boundary that we’ve been examining and using. We went through the entire program for the building, as well as the general proximity of the fill, as well as the alternatives analysis that’s been described here tonight by Bob Zilch as well as what we had written up in the past. His basic comments is that’s the type of information that he needs, that’s the type of information that’s going to allow DEC to move forward with a permitting process. Since the majority of these impacts are in the adjacent area, they are much, much easier for DEC to permit, and because our impacts in the wetland itself are pretty small, that all falls within the types of criteria that DEC looks for, especially under their avoidance and minimalization. On the Federal side, as Jon has mentioned, what we’re doing here is creating a project that fits into the Nationwide Permit criteria. Nationwide permits are a set of pre-authorized disturbances in Federal wetlands. The Federal government somewhat understands that it does not need to regulate every function and every bit of our lives here. So what they’ve created it this Nationwide Permit category that has about 40 different types of water quality wetland disturbances in them that allow people to make minor adjustments to buildings, build head walls on docks, small fills such as this, build driveways through wetlands in order to get access through property. So these are all the kinds of things that fall under this Nationwide Permit criteria. As I spoke about on the State rules is that they look at avoidance and minimalization, and avoidance and minimalization is the same under the State and Federal rules. They also look at public need, and the State calls it public interest benefit. The Girl Scouts qualify under public interest benefit because it is a community service organization that’s providing service, as we have spoken about tonight, to five counties and 4,000 youth during the summer, during the course of the year. So obviously there are public interest benefited for this project. Public health is a concern, not as clearly enunciated in the Federal rules as it is in the State rules, but nonetheless, because of the necessity and the advisability to minimize pedestrian conflicts with cars parking out front and also prevent cars from backing out onto Meadowbrook, those are things that they will examine and consider, if we were to have to request a permit from the Army Corps of Engineers, but right now we have a project that’s below their permitting criteria. Part of the confusion also lies here in how do you count decks. Both under the State and Federal rules you don’t examine decks as a wetland disturbance, because the poles and posts themselves fall into, under the Federal rules what they call diminimus fill, and under the State rules it’s viewed as a compatible activity to post support a walking deck or that kind of bridging operation. So that’s why in our discussions and in our analysis we don’t tend to count the deck as a fill or as a disturbance within the wetland area. Regionally, I think it’s important to understand what’s all going on here as far as the project goes. The 3,380 square feet of fill that we’re proposing to place within the shoreline setback or within the wetland setback is .022 percent of the almost 400 acres of Halfway Brook wetland complex that’s downstream of this site. So this is a very, very small project. It is occurring in a wooded wetlands. Wooded wetlands, however, in New York State, are the wetland category that is growing the fastest and is the most dominant. It is about 60, 65% of the wetlands in New York State fall as a wooded wetland. So it’s certainly not a habitat type that’s rare or threatened. So, basically, you know, this project has been composed and created to avoid jurisdiction of the Federal government, and comply with the State rules as goes to avoidance and minimalization as well as protecting the public health and safety and as well as providing benefit to entire region and group of folks. MR. LAPPER-I want to just highlight one comment that Dean made. The map that Bruce put up is the Halfway Brook corridor wetland map, downstream of the Girl Scout camp. So that’s the camp where the arrow is, and then it continues toward the, this is in the Lake Champlain drainage basin. So it continues through Queensbury, over Ridge Road into Fort Ann, to the Champlain Canal. It’s 396.7 acres of wetland downstream of the project site, and our fill is 22 one thousandths of one percent. So that’s why we’re stating on the record that this is an absolutely diminimus wetland fill application, and again, we feel disadvantaged because we’re the pioneers that get to explain this to the Zoning Board for the first time because you haven’t seen an application like this, but this is something that Dean would be doing all the time with the State and Federal agencies, and he feels that this would be a very minimal permit to get from the State, and regardless, that’s going to be a requirement of this as a condition of the Planning Board site plan approval. We will, of 29 (Queensbury ZBA Meeting 06/19/02) course, have to go to DEC for the permit. Queensbury had not been regulating this until now. It had been left to State and Federal, but now this is another layer of regulation, so here we are, and I guess that’s it for our principal case. I know that Kit Huggard would like to say some things, but we can do that during the comment period, and we can answer your questions first. JAMES UNDERWOOD MR. UNDERWOOD-A question for Dean. Dean, given the fact that we’re going to see increased development on Quaker Road and also in the PO area that exists up Bay Road and up into where we had that earlier permit that we issued tonight for up there, where Green Mountain is going to do their project there, you have a substantial tributary that comes in right exactly at a 90 degree angle right to the side of your building there. I would anticipate that you’re going to see increased flow volumes over the years, as we build up both Quaker Road and those areas, that you’re going to see substantially more runoff coming down. Is there any concern with the fact that you’re going to build this out into a wetland? I mean, I would assume you’re going to get major flow volumes and major rain events and things like that, you know, as already occurs. When I was down there looking at the site, I mean, even though we haven’t had rain in over a week, it was obvious to me that you had substantial pooling that had gone back to groundwater, right out in front where you’re anticipating doing this. Would you comment to that effect? MR. LONG-Yes. Well, first of all, as far as stormwater management, regionally, you know, certainly the Planning Board here in Queensbury works very aggressively on assuring that pre and post discharge rates off of properties are maintained as close as possible to a zero net increase. So that should minimize any impacts, as far as additional flow volumes coming down the Meadowbrook Road. A lot of the Meadowbrook drainage in itself is already in a development state that’s relatively stable, because the golf courses are probably going to continue to operate. Hiland Park and such are longstanding uses, and a lot of that land is pretty well committed. So, you know, granted there are going to be some widenings of the roads and some increases and things, but given the fact that there are stormwater rules in the Town, that should pretty well minimize the amount of increased flow. The property is in a floodplain. The building itself will have to be elevated slightly in order to come out of the floodplain, which will be a benefit to the structure in itself, as well as being a very, very minimal impact. The example of the impact would be essentially the same as the amount of fill that we’ve just discussed. So, you know, when you’re only going to change a floodplain elevation and a flood height by .022 percent, that’s a very, very small change. So, overall, you know, site specifically, it’s very small risk, as far as additional flooding risk and the storage capacities and such of the wetlands as well as the storm management procedures in the Town we believe are adequately protected. MR. ABBATE-Mr. Chairman, I have a comment, too, and I don’t wish this comment to be supportive or detract from the application, but Counselor’s right. This is the first time that it’s being addressed on the new zoning, and this gentleman mentioned social benefits. Now, keep me straight here, Counselor, because I’m doing this from memory. It seems to me there’s a couple of cases that deal with precedents on what they call non-profit organizations. One is Union College versus Schenectady, and the other, I believe, is Monroe something or other, which I don’t recall, and they basically state that when dealing with non-profit organizations, there should be considerations not to hold non-profit organizations to the stringent, I hope I’m wording this correctly, not to hold these non-profit organizations to the stringent requirements that are demanded by such boards as Zoning Board of Appeals to non-profit organizations, and I just mention this because you are somewhat at a disadvantage because this is the first time that this is being presented, and I don’t offer this as support of the application or detracting from it, but there has been a little precedence set for this. Am I correct on this? MR. LAPPER-In response to that, when we here in February, we talked very much about those State cases, and mostly they apply to the much tougher Use Variance standard for financial hardship, and they essentially treat the financial hardship standard as more of an Area Variance balancing test on the benefit to the applicant versus the burden on the neighborhood, and it was on that basis, doing that balancing test, that this Board essentially reviewed and approved, the much more difficult Use Variance. We’ve come in tonight saying, we believe, with our consultants and experts, that we can satisfy the regular Area Variance test. So we haven’t asked for, although Dean has mentioned that the State and Federal agencies would view the fact that this is a not-for-profit with a community benefit as part of their analysis, but we feel that we satisfy the balancing test because of just the minimal amount of fill that we’re talking about, and I think that’s responsive. MR. ABBATE-Okay. Thank you. MR. UNDERWOOD-I’m sorry, would you pull that picture back up showing the current building. MR. FRANK-I don’t think I have a very good photo of the whole building. You’re looking at like the north structure, side of the structure. I can bring up another one. MR. UNDERWOOD-You had that one before. You had one taken right off the road, like from the parking lot and the other side of the street there. Yes, that’s the one. All the trees that are over on the left hand side there are going to go for your parking, then, I would assume? 30 (Queensbury ZBA Meeting 06/19/02) MR. LAPPER-I presume that’s the case. MR. UNDERWOOD-Off to the left there, you’re buffer between there and that last house on the street. MR. HAYES-Where the power pole is there. MS. ELMER-There is some clearing to the other side of the building you can see. If you’ve walked out there, you’ve probably been on this part of the lawn. MR. UNDERWOOD-Yes, there’s about five feet. MS. ELMER-No. It’s a little bit bigger than that, I would say, but we do try to show the existing tree line on (lost words). It shows about (lost word) foot of lawn on this edge here, on the north side, or south side of the building. You can see the tree line on probably the site plan you have. On the copy of the site plan you have you can see the existing tree line, and please keep in mind that that’s taken from the aerial photo. So that’s canopy as well. MR. HAYES-Are there any other questions for the applicant at this time? MR. URRICO-Yes, I do. Is this exactly the same plan that was presented to us in February? MR. LAPPER-Yes, it is. MR. HAYES-Architecturally. MR. URRICO-Architecturally. MR. HAYES-Yes. MR. URRICO-You haven’t moved any closer to the wetland? MR. LAPPER-Not at all. We went back, because Jim had asked us specifically to look at that, and we looked at the other side, the north parking lot that Staff talked about, and as Bob Zilch said, it would just eliminate all of the off-street parking that we need, and so because of the wetland and the rock outcropping, in fact we didn’t talk about it, but all the area in the back is the program area where the girls are doing their projects and learning and playing. We can’t really impose on that. So it’s just, it’s a limited site, but in terms of the self- imposed nature, at the time that the Girl Scouts built the camp in the 50’s, there was no such thing as wetland regulations then you could fill in a wetland with a bulldozer any time you wanted. So, you know, what’s changed is the regulations. I think that makes it not self-imposed, but the area that Jim just asked about, the area where the trees would be cleared on the south side of the office building, is one of the few areas along the road where there’s no wetland. So that’s why the parking lot’s going to go there. There are wetlands in the back, but we’re clearing the area that’s upland. MR. URRICO-All right. How many staff members will occupy that building today, or if this new structure goes in? KIT HUGGARD MRS. HUGGARD-We have 10 full-time staff members. MR. URRICO-And how long do you anticipate this building, let me rephrase that. How many people can this building hold, the newer structure? MRS. HUGGARD-Are you talking about increasing the size of the staff? MR. URRICO-Yes. MRS. HUGGARD-Because of the plan of the building, we now are doubled up in offices, and so we would be in single offices. I suppose you could go to doubling up again, which is what we did to get where we are now. This wasn’t any anticipation of that at this point. MR. URRICO-That was going to be my next question. Have you projected an increase in the Staff over the next, five, ten years, and what would that be? MRS. HUGGARD-There isn’t a plan for that at this point. MR. ABBATE-And let me clear this up, too. This is a proposed construction. You haven’t actually constructed this? 31 (Queensbury ZBA Meeting 06/19/02) MR. LAPPER-Correct. MR. ABBATE-Thank you. I just want to clear it up in my mind. Thank you. MR. HIMES-I have a question for us and Staff. In connection, there’s a Short Environmental Assessment form here in the file. It talks about, in Item Six, a new pedestrian bridge over Halfway creek. Is that anything we should be concerned with? MR. FRANK-I think that’s a further proposal, but that’s not what’s before the Board tonight. MR. LAPPER-That doesn’t require a variance because that’s not a building. MR. HIMES-Okay. MR. LAPPER-That’s part of the Freshwater Wetlands permit before the Planning Board. MR. HIMES-Okay. I just wanted to make sure it hadn’t been overlooked somehow, and lastly is in the Staff comments. It says Staff recommends an advisory recommendation from the Planning Board before the Zoning Board proceeds with any action on the Area Variance. Are we going to be concerned about that, Mr. Chairman? MR. HAYES-Well, I guess, what is the rationale for that, Bruce? Why don’t you enlighten us a little bit on that. MR. FRANK-It’s a recommendation. The Zoning Administrator, he directed me to put that in the notes. You’re not being told to do it. I mean, you act independently. It’s a recommendation from the Staff, as per the Zoning Administrator. MR. HAYES-Okay. Well, I will not speak for the rest of the Board members in this case, but personally I believe that we have entertained this proposal in the past and entertained it on its merits, and I think part of why the applicant is back here is because of the change in Zoning Ordinance. That’s pretty much been established. So, I’m not sure that we need to, I feel that I’m not sure we need to kick this over, or back over to the Planning Board, under that recommendation, but I’ll be happy to listen to what everybody else feels about that. MR. HIMES-No, that’s fine with me. MR. HAYES-Allan? I mean, I guess we should talk about that before we move on to talking about the variance itself. So Norm has already said how he feels. Chuck? MR. ABBATE-Did this come before the Planning Board, this gentleman before, this application? It did not? MR. LAPPER-No. It will be on next week. MR. ABBATE-The 25, I think that’s what you were showing me, Allan. One of my Board members just th brought to my attention a declaration of policy. It’s pretty heavy duty talk. It’s on Page 82, dealing with wetlands regulations, but I’m not going to take the thunder from him, and perhaps I’ll, let me put it this way. I don’t, currently, object to the application. Unless somebody can show me something where I should get concerned and not sleep tonight, then I’ll be upset. MR. HAYES-I guess, sticking to the idea of whether we should. MR. ABBATE-Yes, the Planning Board. MR. HAYES-Go for an advisory recommendation to the Planning Board before we proceed. That’s the question. MR. ABBATE-Yes, and that’s what I’m addressing right now, after reading this. MR. HAYES-Allan, do you have something you want to add, how you feel about that? MR. BRYANT-Yes. I agree with Chuck. I think the project, overall, looks good. We haven’t had a wetlands issue before the Board, at least since I’ve been on it, and reading over the declaration, and I’m not going to read it into the record, very strong language relative to invasion of any wetland area, okay. So I would like to see what the Planning Board has to say relative to this, and how they address that issue. That’s the way I feel. MR. HAYES-Roy? 32 (Queensbury ZBA Meeting 06/19/02) MR. URRICO-Yes. I’m in agreement. I think it’s, you know, I think the project looks terrific, but because this is the first case coming before us, I’d like some more guidance, and I think that’s something the Planning Board will offer us at this point. MR. HAYES-Jim? MR. UNDERWOOD-Yes. I think we have to be vigilant here. I think that we have a good handle on what goes on up on the lakes, you know, and the projects that are proposed to us on a regular basis, but, you know, I looked up a little bit of stuff historically, just to see how important wetlands are and what the net loss has been and things like that across the board, and this is just for your own information, but maybe it’ll help you guys to think about the seriousness about what we’re going to decide here. Historically wetlands have always been regarded as wastelands, places to be dredged or filled in to suit our needs. As a result, the statistics regarding human impact on wetlands are staggering. When the U.S. was first settled by Europeans approximately 215 million acres of wetlands existed in the Country. We now have about 90 million acres left in the lower 48 States, and I think that, you know, New York State is just as irresponsible as other states have been in the past, as far as dredging rivers and changing the course of nature. Only about 42%, then, of the original acreage of wetlands, and those wetlands in our Country cover a mere 5% of the total land surface area, the rest have all been filled in, drained or altered so that they no longer possess the natural values that wetlands have. As far as what those wetlands are, water quality is frequently enchanced as water passes through wetlands as organic material can settle out. They also absorb substantial amounts of nutrients and chemical contaminants, soil microbes, plant litter and living plants actually reduce pollution, and I think when you consider Quaker Road and the impact of all that road sand that comes down the creek each year, if you go back behind there and look at the creek, you can see that it’s chock a block full of stuff that’s come off of roads. So if we’re going to fill in a little bit more, we’re going to reduce some of that capacity along the shoreline to absorb some of that capacity. As they mention, it’s a minimal amount, but, nonetheless, I think, all through the years, we’ve minimized the impact of what we do here with wetlands. As far as the socio- economic value of those wetlands, when runoff exceeds the capacity of the outflow channels, we all know what happens, flooding ensues, and if you go right back behind the building there, you can see where silt and stuff has settled out in those low lying areas that we’re proposing to fill in back there. So, you know, you can always write it off and say it’s just one more little place. It’s not that minimal because we have more wetlands downstream, but I think it is important that we send this to the Planning Board. MR. HAYES-Thank you. Chuck? MR. MC NULTY-I’d appreciate hearing from the Planning Board. My training is a wildlife biologist, and I could tell you that the reason for the buffer around wetlands is because anything that happens within that buffer area affects the wetlands. So we’re looking not only at what this project will do by invading the wetlands. It’s also going to have an effect on the wetlands, even if it stays away from the wetlands itself but it’s just in the buffer area, and I’m going to have to have some real good reasons to go along with this project getting into the wetlands, especially an organization like the Girl Scouts that’s supposed to be supporting the environment and teaching good environmental stewardship. So, anything the Planning Board could say to convince me otherwise, I’d like to listen to. MR. HAYES-Okay. Well, it appears to me that from an informal poll of the Board members, that the majority feels that we should make a motion for an advisory recommendation from the Planning Board on this matter before we proceed with the Area Variance. The only thing I would add, in the past we’ve spoken about jagged procedures, I guess, or imperfect procedures. It would seem to me that if this was the predominant feeling of the Staff in this particular case that, versus the applicant going through the whole demonstration of their project, and having the experts and people that are using their personal time to come speak, that we should do that right at the beginning of the presentation, and then have the full presentation as to the Area Variance after the Planning Board advisory. I don’t know if people agree with that. MR. ABBATE-That’s well said, Jaime. MR. HAYES-I mean, it’s kind of made this presentation moot, because we’re just going to move it to the. MR. BRYANT-Actually, if that’s the recommendation, it shouldn’t even be on the agenda. MR. HAYES-That’s what I’m referring to. I mean, that’s seems to me to be a little bit of a, it almost should be discussed initially. MR. FRANK-You have a valid point, and I brought this up with the Zoning Administrator, and he said well you still want to give the Board the opportunity to discuss things and I don’t think it’s a moot point, because this is going to be fresh in your mind, I think. I mean, it’s bee a good presentation. If it should come back before you, it’s not like it’s going to be a first exposure. So I guess you could take it that way also. MR. HAYES-Yes, that’s true, but it would be a re-exposure, and there’s also the possibility that it’ll be a different Board configuration, and it just seems a little diversion to me, but, having said that, would someone 33 (Queensbury ZBA Meeting 06/19/02) like to make a motion that we do that advisory recommendation, or accept that advisory recommendation from the varsity boys on the Planning Board? MOTION THAT WE SEND AREA VARIANCE NO. 47-2002, GIRL SCOUTS OF THE ADIRONDACK COUNCIL, INC. FOR REFERRAL TO THE PLANNING BOARD, Introduced by James Underwood who moved for its adoption, seconded by Charles Abbate: 213 Meadowbrook Road. Duly adopted this 19 day of June, 2002, by the following vote: th MR. HAYES-Does everybody understand the motion as it was made? MR. BRYANT-I understand it, but I think on the record, I think that it would be to our advantage to have the minutes from the Planning Board meeting of the 25, you know, in our package so that we can review th this and see what the comments were. MR. FRANK-I’ll make sure that’s taken care of. MR. HAYES-This is an unusual circumstance, obviously, we’ve already dealt with the fact that this is the first time we’ve dealt with it, but let me ask Staff, now, as far as the public hearing, I’ll ask counsel as well, with direction, should I open the public hearing, people that have invested their time to come, should they be allowed to speak? MR. FRANK-I think it’s up to you. You’ve already made your motion. They’re going to have the opportunity to speak again. I think it’s entirely up to you, though. MR. HAYES-Yes. Okay. I think we’ll stick with our motion. If we’re going to have to re-hear this case, or re-entertain the application after the advisory from the Planning Board, then they will be given the opportunity to speak then. MR. ABBATE-Can we make a short note, Mr. Chairman, really a note of congratulations to the Girl Scouts of the Adirondack Council. Again, they have surrounded themselves with experts, and I think they went the proper route and they are to be congratulated for that. Thank you. AYES: Mr. Abbate, Mr. Himes, Mr. McNulty, Mr. Underwood, Mr. Urrico, Mr. Bryant, Mr. Hayes NOES: NONE ABSENT: Mr. Stone MR. LAPPER-We’ll see you next month. MR. HAYES-Thank you. AREA VARIANCE NO. 48-2002 TYPE II DR. HOWARD WORTS PROPERTY OWNER: SAME AS ABOVE AGENT: N/A LOCATION: 19 WOODS POINT LANE ZONE: WR-3A, CEA APPLICANT HAS CONSTRUCTED A 20 FT. BY 40 FT. BOATHOUSE/SUNDECK AND 48 FT. DOCK. RELIEF REQUESTED FROM MAXIMUM ALLOWABLE DOCK LENGTH REQUIREMENTS. ADIRONDACK PARK AGENCY WARREN COUNTY PLANNING: 6/12/02 TAX MAP NO. 239.14-1-2 LOT SIZE: 0.66 ACRES SECTION 179-4-20; 179-6-60 HOWARD & DORIS WORTS, PRESENT MR. MC NULTY-“To the members of the Queensbury Zoning Board: I am requesting an “as built” variance for a dock with sundeck located at 19 Woods Point Lane in Lake George. I am submitting modifications to the mean low water mark on the original plot plan. Mean low water mark: The original plans of the north pier show a 40 foot length from the mean low water mark as measured by the builder. Recent measurements by Queensbury officials indicate an 8-foot discrepancy, due to a difference in opinion as to the location of the mean low water mark. Current measurements now indicate a length of 48 feet from the mean low water mark to the end of the newly constructed pier. Explanation: First of all the mean low water mark: The builder made his measurements and submitted these on the original plans. This measurement is noted on the north side of the proposed new pier. It is most important to note that the existing pier extended approximately 56 feet from the shoreline. The new pier followed that same length. It is obvious that the boathouse could not have been constructed as submitted unless both piers were the same length. I am respectfully requesting this variance on the basis that the structure is already built and received a Certificate of Compliance issued on July 12, 1999. The boathouse replaced an existing “structure” that was an eyesore. In addition the old existing pier was in a state of disrepair and was determined by neighbors to be a navigational hazard. It should also be noted that at no time have the neighbors complained about the new 34 (Queensbury ZBA Meeting 06/19/02) structure. In fact we have received many compliments from them. Again, as I have pointed out, the new boathouse could not have been built using the existing pier unless the new pier was the same length. Attached is a copy of the Certificate of Compliance and a sketch showing the original and new boathouse plans.” A. Howard Worts. STAFF INPUT Notes from Staff, Area Variance No. 48-2002, Dr. Howard Worts, Meeting Date: June 19, 2002 “Project Location: 19 Woods Point Lane Description of Proposed Project: Applicant has constructed a 20’ x 40’ boathouse/sundeck on a 48-foot dock. Relief Required: Applicant requests 8 feet of relief from the maximum allowable 40-foot extension of a dock offshore from the Mean Low-Water mark (MLW) of the Docks and Moorings regulations per § 179-5-050(A2). Criteria for considering an Area Variance according to Chapter 267 of Town Law: 1. Benefit to the applicant: Applicant would be permitted to keep the desired structure in the preferred location. 2. Feasible alternatives: Feasible alternatives seem to be limited. 3. Is this relief substantial relative to the Ordinance?: 8 feet in addition to the 40-foot maximum allowed may be interpreted as minimal to moderate relative to the Ordinance (20%). 4. Effects on the neighborhood or community: Minimal effects on the neighborhood may be anticipated as a result of this action. 5. Is this difficulty self-created? The difficulty appears to be attributed to the work performed by the contractor, not the applicant/owner. The applicant claims the contractor stated when the dock was constructed in 1998, the dock extended only 40 feet offshore from the MLW mark. Parcel History (construction/site plan/variance, etc.): BP 98-524: 10/14/98; boathouse with dock. SP 49-98: 09/24/98; modification of existing dock and construction of a new open-sided boathouse/sundeck. BP 98- 025: 02/03/98; demolition of single-family dwelling. Staff comments: Minimal impacts may be anticipated as a result of this action. As previously mentioned, the contractor claims when the dock was built in 1998, it did not extend more than 40 feet past the MLW mark. The applicant/owner stated the contractor would not represent him for this application to defend his claim. It should be noted that the original pier (south side) extends only 36 feet offshore from the MLW mark. Additionally, the boathouse/sundeck is not out of character with the neighborhood, and the neighbor to the immediate south (John Boomer) stated he is in favor of this variance being granted. SEQR Status: Type II” MR. STONE-County? Did we ever get the report from the County this month at all? MR. FRANK-There was No County Impact to this one. I know for a fact. I spoke with Laura Moore. MR. MC NULTY-I don’t see anything. MR. STONE-Okay. Gentlemen, lady. Talk to us. DR. WORTS-I believe I’ve stated my case in my letter. MR. STONE-Introduce yourself. DR. WORTS-My name is Howard Worts. I am the owner. My wife Doris to my left. I have stated my case in the letter as so read. The dock that we’re looking at is the picture up there. The pier in question is the pier to the left that is the new pier. The pier to the right that’s behind the tree is the existing pier. I believe some of you gentlemen may have visited the dock first hand. I talked to one gentleman here this afternoon. I took him out and showed him where the existing old pier was that was submerged underwater. That was the length from the original original dock. MR. STONE-Dr. Worts, what was done to the dock? What work did you authorize? DR. WORTS-You have the application in front of you. MR. STONE-I’ve got the green thing. DR. WORTS-Okay. If you look at the colored computer diagram that I did there, the red indicates the new work that was done. MR. STONE-How far down did the new work go? DR. WORTS-How far in depth? To be honest with you, the end of that pier is probably maybe 10 to 12 feet. MR. STONE-Okay, but he just put it on top of the old crib? DR. WORTS-There was no crib in the red area. MR. STONE-There was no crib? 35 (Queensbury ZBA Meeting 06/19/02) DR. WORTS-There was no crib. That is the new construction. The existing construction is the green, and the yellow represents the original original dock that was lost due to ice. MR. STONE-Okay. DR. WORTS-When we purchased the house, the original dock, the yellow part was destroyed by ice, the decking, but the rock crib was there and still is there. They removed all the rock from that yellow area to a depth of about six feet and filled in the cribs on the red area. MR. STONE-Where I’m going, I thought, Bruce, that under current rules, new construction is supposed to be pillar type cribs with open water underneath. DR. WORTS-Yes, that’s correct. There are three cribs. That red is not a solid crib. MR. STONE-That’s what I, I couldn’t tell, looking today when I was there. So there are three cribs. DR. WORTS-If you skip over and look at the original drawings from the builder, it does indicate that. MR. STONE-I see that, yes, there are three X’s. Okay. I’ve got you. DR. WORTS-I can hold that up. Those three X’s indicate that those are the cribs. MR. STONE-I apologize for not opening it all the way fully, but I couldn’t see when I was there. Now the other question I have, where’s the property line? You seem to be right in front of your neighbor’s house. DR. WORTS-We are. MR. STONE-Okay. That’s an honest answer. DR. WORTS-Once again, I believe, on the maps that are submitted with the application, it does show the property line. The existing dock was in the same location. We actually moved, the new dock is further away from the owner’s. MR. STONE-He’s the neighbor that claims to have no problem with your dock? DR. WORTS-That is correct, Mr. Boomer. I believe he also submitted a letter. He gave me a copy of the letter, but he did submit a letter. MR. STONE-Okay. MR. STONE-I have to admit, I was struck, as I went out on the dock. Nobody was around, and I’m looking, I’m staring into this house looking down on the dock, and he’s very tolerant. DR. WORTS-Once again, you’ll have to understand, there was an existing dock there that was more toward the front of his house. If you look at the picture that is up there, the other dock was to the right hand side where the computer arrow is showing. It was a terrible, terrible eyesore. It was terrible. So what we did was an obvious improvement, and that is why he was so much in favor. MR. STONE-Yes, but would you comment, I know how long you’ve been here this evening. I apologize for the length of the meeting, but we have to be here, but are you suggesting that the builder is in error? DR. WORTS-I am not suggesting that. I believe your zoning official is suggesting that. MR. STONE-Okay. DR. WORTS-In other words, I was, this was brought to my attention by a letter from Bruce Frank. I believe it was in December some time, approximately three years, almost four years after this dock was built, that there was some kind of an error in this measurement of the mean low water mark and to be honest with you, I am not familiar with that and I still don’t quite understand what this is all about. The builder claims one thing, and Mr. Frank claims something else, and there was an eight foot discrepancy between these two measurements. MR. STONE-Yes. The way you’ve explained it, I mean, like it grew from 40 to 48. MR. BRYANT-Well, I have a question. MR. STONE-Go ahead. 36 (Queensbury ZBA Meeting 06/19/02) MR. BRYANT-To the lake experts, maybe you can help me, or Mr. Salvador. This low water mark, is it possible to change eight feet in four years? MR. SALVADOR-No, it’s a fixed. MR. STONE-It’s a fixed number. MR. FRANK-The mean low water mark doesn’t move. It stays fixed. MR. STONE-It’s an altitude above sea level, 317.74. MR. BRYANT-So why are we talking about the, he’s saying that, the contractor is saying in 1998 that it did not exceed more then 40 feet. MR. HAYES-According to his measurements. MR. STONE-According to his measurements. MR. BRYANT-According to his measurements. MR. FRANK-That’s correct. MR. STONE-And your measurements, would you tell us how you figured the mean low water mark? MR. FRANK-I did it exactly how contractors are supposed to do it. You can call up to the Lake George Park Commission. You ask them what the current lake level reading is for the day. You go to the website, there is, if you’ve ever been there, you know what I’m talking about. You can figure out the exact depth from the water level down to the mean low and up to the mean high. So, I made a story board from that day’s gauge reading. I went out there, it was just as flat as can be. So I know I got a very accurate reading, and again, I did state in my notes that the southern portion of this dock, the existing dock is less than 40 feet from the mean low water mark out. MR. STONE-Now, approximately how far out from when you step on the wood is the mean low water mark? I’m just curious. Have you got a feeling for that? MR. FRANK-Are you talking about from the shore? MR. STONE-Going horizontal, yes, from the shore. MR. FRANK-Well, you have the application in front of you. The total length of the dock is, I believe, 56 feet. MR. STONE-So it’s eight feet until you get there, on that pier. MR. FRANK-That’s correct. That’s before you reach it. MR. STONE-Okay. MR. FRANK-And again, there are docks on Lake George that are well longer than 40 feet from the mean low water mark out to the end of the pier. I mean, I had Heather Shoudy call me up about this, and she told me that, which I wasn’t familiar with. Depending on where you are on the lake, and it’s not the norm, but you will find docks that extend much 40 feet past. MR. STONE-From the shore. MR. FRANK-From the mean low water mark to the end of the dock, that’s correct. That’s what I was informed by Heather Shoudy of the Lake George Association. MR. ABBATE-This was constructed four years ago? MR. STONE-Three years ago. MR. FRANK-It was in 1998. That’s correct. MR. ABBATE-Whatever the case might be. It seems to me the statute of limitations may have expired on this one, and I’m not so sure that. MR. FRANK-This was approved by the Planning Board back in 1998. 37 (Queensbury ZBA Meeting 06/19/02) MR. ABBATE-Yes, but why are we here this evening, if this was constructed four years ago? Why are we here? MR. FRANK-That’s a legitimate question. That’s a legitimate question. MR. ABBATE-I mean, if there was a problem, and I’m serious. There should be a statute of limitations on this. They have it in law. How many years can we drag an applicant and hold the individual responsible for a questionable act? MR. FRANK-When you have a site plan approved, that is good for life, unless you modify it. MR. BRYANT-Well, how did you know, I mean, how did this application come to be? MR. FRANK-My job is to inspect site plans that have been reviewed and approved. MR. BRYANT-I mean, is this something, this site plan was approved four years ago. MR. FRANK-That’s correct. MR. BRYANT-Okay. Why are we inspecting it now? MR. FRANK-I’ll be glad to explain. At the end of, I believe the year was 2001, Craig Brown, who was the Code Compliance Officer at the time, and he went to do the inspection at the end of, it was early spring, and the snow was too deep, he told me, he couldn’t get down to the dock. He had a backlog of site plans that needed to be inspected. I have more than 50 site plans still waiting to be inspected. That was one of the reasons why I was hired, because they needed additional help. So I inherited 50 some site plans, and I was going to catch up inspecting them, and I discovered this and just to double check to make sure that somebody else could concur with what I was doing I requested that the Zoning Administrator go out there with me, so I could show him myself again. MR. STONE-Okay, but the question that was asked by Mr. Abbate, there is no statute of limitations? MR. FRANK-None that I’m aware of. I mean, your site plan was approved, and it’s supposed to be, another words, if I don’t get around to inspecting your site plan in a timely fashion, what someone may deem to be timely, you have to maintain those conditions for the life of the approval either ways. MR. ABBATE-In my opinion, this application should be approved by default. If the Town has an administrative problem, that’s their problem. This is not directed at you, but I mean I think it’s quite unfair to drag people before this Board after four years, then maybe, as you said, for life. MR. STONE-But let’s assume, for purposes, I’m not disagreeing with you, Mr. Abbate. MR. ABBATE-I understand. MR. STONE-But let’s assume that the site plan was reviewed, and it was done in ’98, and I don’t want to tie you, but an applicant or an owner of the site plan added to the site plan. MR. ABBATE-Now that raises another issue. That’s another issue. MR. STONE-Yes, well, we don’t know when this was done. MR. ABBATE-Well, that’s my point. MR. STONE-I mean, I’m not suggesting it was. Don’t get me wrong. I think we have jurisdiction. The easiest thing to do is for you to argue that we should grant this variance. MR. ABBATE-Then I will. MR. STONE-Well, we’re not there yet, though. MR. ABBATE-All right. I’m ready. Let me know. Okay. Anybody else have any questions? MR. URRICO-Bruce, I’m just curious. Where did you take that other picture from, there’s another picture there. MR. STONE-By the way, it’s a lovely dock. MR. ABBATE-Isn’t it gorgeous? 38 (Queensbury ZBA Meeting 06/19/02) MR. STONE-It’s a gorgeous dock. DR. WORTS-Thank you. We think so, too. MR. URRICO-Was that taken from that other dock? MR. FRANK-I took this from Mr. Boomer’s dock. I had a long conversation with Mr. Boomer. He gave me permission to go out there and take this photograph, and since you brought it up, he was completely supportive of this. He said the old dock was a horrible eyesore. Dr. Worts was very cooperative that he removed a lot of the cribbing to allow access for Mr. Boomer to get into his dock. I mean, he says, he couldn’t understand why I was even there either. I had a long conversation. MR. STONE-Okay. The only impression I have, and again, it’s this low water mark, and you do have some very low water there. I mean, you’ve got that little shallow beach type place. As you stand on the dock, having a dock of my own, it’s a long dock, but by the definition, and I’m sure Mr. Steves could go out and survey it. He knows where the low water mark is, our local surveyor sitting over here, that I’m sure it’s right. I mean, the numbers are right. It’s just a long dock, and if there is confusion on the part of the builder, shame on him. He really should know where the low water mark is. Why don’t you give him your little tool next time. MR. FRANK-Well, there’s another case you could require additional hardship to the applicant to have a level run down to the dock, and I’m sure that Mr. Steves would tell you what that would cost. It’s not going to be cheap, and they could put a control in, an elevation control, and then there would be no discrepancy. I could go out there and take a look at it, but does the Town want to really add additional hardship to applicants. MR. STONE-Okay. MR. ABBATE-And let me add one thing, too, and I also think that we have to be careful of selective enforcement. If this happened the other day, I’d be screaming. You constructed a dock, and I would go bananas, but this is four years ago. MR. STONE-The one question I did write down, when you did repair this thing, that crib, that one stayed. That was always there, the one that is most offensive to the other property? That’s a technical term. DR. WORTS-This, part of the original, there was also a piece that came out from here, and the original boathouse went over this area. The other pier that is submerged, part of the navigational hazard, came out from here. So the original dock was what you would call an “F” shaped dock. This and this. The winter had destroyed this end and this original pier, the decking, but all of the rocks were still there, and that’s what we refer to as the navigational (lost words), but once again, the original length, when it was built (lost words). MR. STONE-And you had a cover on that? DR. WORTS-No, there was no cover on it. MR. STONE-Okay. DR. WORTS-There was a cover over here that came over towards Mr. Boomer’s dock. MR. STONE-Okay. So it was more offensive, is what I’m saying, to Mr. Boomer’s property than your modification. DR. WORTS-Absolutely. MR. STONE-Okay. MR. ABBATE-And this certainly adds, I would agree, because I took a look at it. This certainly adds to the beauty of the community in my opinion. DR. WORTS-Thank you. MR. STONE-Okay. In the interest of time, let me open the public hearing. Anyone wishing to speak in favor of this application? In favor of? Anybody opposed? Mr. Salvador. PUBLIC HEARING OPENED JOHN SALVADOR MR. SALVADOR-My name is John Salvador. I have a business on Lake George in North Queensbury. Not so much that I’m opposed to the application, but it’s this continuous sloppy work on the part of everybody 39 (Queensbury ZBA Meeting 06/19/02) whether it’s the contractor, the architect, the engineer, the code enforcement officer. It’s getting sickening, and it’s no basis for you to take action, just because the work is sloppy. I’ve just got some questions because I’m a little confused. Here on the agenda it talks about Adirondack Park Agency. How are they, and what do they have to do with this, and what did they have to do with this. MR. FRANK-Because it was in the APA, they get the application to review it. MR. SALVADOR-Did they review it? MR. FRANK-I believe so. They got the application. Anytime there’s anything that’s in the Adirondack Park, that’s in the Town of Queensbury before a Board, they get the application. MR. STONE-And they usually have the right, they have 30 days to say something, I think. If they don’t say anything. MR. SALVADOR-They have 30 days within which you make your approval to. MR. STONE-That I know. MR. SALVADOR-Okay, to respond, but I didn’t know they played an active role the permitting process for something like this. MR. STONE-Well, it may be, that’s a good question. It may be that it has to go there if we grant it. Mr. Steves, can you add? MATT STEVES MR. STEVES-I can add to that. Any variance that is submitted in the Town that is within the APA, the variance is required by State law to go to the APA. MR. STONE-And they have 30 days to comment. MR. STEVES-That’s correct. MR. SALVADOR-Okay. MR. STONE-So that’s what it means, Mr. Salvador. MR. SALVADOR-Okay. The Critical Environmental Area that’s noted here. I believe that’s a Lake George Park Commission Critical Environmental Area, and yet they’re not listed here. MR. STONE-Okay. MR. SALVADOR-Did the Lake George Park Commission play a role in the approval of this? MR. FRANK-Why it’s not there, I don’t know. I’d have to talk to support staff that drafted this. Were they? I don’t know. MR. STONE-They probably did review it in 1998. MR. SALVADOR-Well, it’s a question I had. There should be evidence of it, and if there’s a problem with the as-built conditions of this structure, if they permitted what was done, they permitted it on the basis of a submission of some drawings, and if it hasn’t been built in accordance with what they approved, that’s an illegal structure, and the statute of limitations never expires on an illegal act, your honor. MR. STONE-Okay, and that’s why we’re considering it, and we are considering making it a legal act. MR. SALVADOR-Okay. Well, the significance of the mean low water mark is important, and the distance from that is important, and it’s not too difficult to establish this. I had the same surveying firm establish a benchmark on my property. It was so simple and so easy to do, they haven’t sent me a bill for it yet. MR. STONE-And when was this? MR. SALVADOR-That’s years ago. It’s not a difficult thing to do. We make a big, you know, blind us with science on how to do this. MR. STONE-Just a second, Mr. Salvador. I don’t want Dr. Worts and his wife to think we’re jovial. These gentlemen appear before us a lot, and so we’re a little more tolerant of their comments. 40 (Queensbury ZBA Meeting 06/19/02) MR. ABBATE-They’re referred to as advocates, but you know, Mr. Salvador made an excellent point, though. This has got to stop. Somewhere along the line, the procedures have to be tightened up. There’s no question about it, and I don’t know what the solution is to the thing. MR. SALVADOR-Do you know why there’s how many site plans for you to approve, how many are there? MR. ABBATE-That I inherited? MR. SALVADOR-Yes. MR. ABBATE-Somewhere in the area of 50. MR. SALVADOR-Yes, they’re all sticky wickets. That’s why that haven’t been approved. MR. ABBATE-What’s sticky wicket mean? MR. FRANK-They were approved. These are to be inspected. MR. SALVADOR-Yes, inspected. I’m sorry. They haven’t been inspected because they’re probably all sticky wickets. Difficulty. MR. STONE-I think he means there’s a little hanky panky. MR. SALVADOR-They’re difficult. They’re difficult to address. MR. ABBATE-I understand now. I’ve got it. MR. SALVADOR-But we can come to grips with, if there’s a problem here. MR. STONE-Mr. Salvador, the only thing I suggest to you, and you know we’ve talked about it at length, is this is not the body. We can’t do anything about it, and you do take it up with the Town Board and you should continue to take it up with the Town Board, like I did the other night, and you did also, but I think we, the Town Board has to recognize, and I will say this for the record, that enforcement is as important as granting building permits and variances. We have to know what it is we’ve granted, and we have to ensure that they’re done correctly. There’s no doubt about that, and we don’t do as good a job as we could, not because the people who are trying to do it, but sometimes we don’t have enough Staff, as Mr. Frank says. We need more people. We need objective observation. MR. SALVADOR-Just one last comment. Within the Lake George Park Commission regulatory program, the DEC regulatory program, and I think the Town of Queensbury’s program, you’re obligated to remove all old cribbing, not just down to six feet, all of it taken out. MR. STONE-Thank you. Anybody else wishing to speak? Any correspondence? MR. MC NULTY-Yes. We have two pieces of correspondence. One is from Deborah and Lionel Barthold. They say, “We are close neighbors of the Worts family and strongly encourage approval of the requested variance on two counts. 1. The excess in dock length was not a deliberate attempt on the Worts’ part to exceed any standard. They presumed that their authorization to the builder was simply to build within a prior overall footprint. Any of us would have done exactly the same thing. I do not think they should be penalized. 2. The new dock is exceptionally well built and, from an aesthetic standpoint, is a vast improvement over the wreckage that was there before. The latter was not only an eyesore but was also a safety hazard to boaters. Deborah and Lionel Barthold” The second letter is from John N. Boomer, and he says “I am Dr. and Mrs. Worts’ next-door neighbor. As a result of the way property lines were drawn years ago, the boathouse and boat dock for which a variance is requested are located directly in front of my home. I have no objection to this location because it is a significant improvement over the location of the old boathouse and dock. Therefore, I am fully in favor of approval of the variance being sought by the Worts. The Worts are very good neighbors. They have made substantial improvements to their home, grounds, and waterfront – including the boathouse and docks. As I understand the problem with the boathouse and docks, the new crib dock, which was built to extend into the water exactly the same distance as the existing dock, is eight feet too long when compared with mean water level standards. I do not recall how the length of the new crib was indicated on the builder’s plans when I reviewed them some years ago, but then as now it makes sense to me to build the new dock the same length as the existing dock. Very truly yours, John N. Boomer” MR. STONE-Thank you. If there’s nothing else, let me close the public hearing. PUBLIC HEARING CLOSED MR. STONE-Mr. Himes, you had a comment. 41 (Queensbury ZBA Meeting 06/19/02) MR. HIMES-Yes. Thank you. Yes, I just wanted to ask the applicant something. Here in our Staff notes it’s stated that the applicant/owner, you folks, stated the contractor would not represent him for his application and defend his claim. Could you give us a little information as to why he wouldn’t? DR. WORTS-From personal observation and discussion with him, the builder seems to have a certain personality problem with authoritative boards and does not like to appear before them. He sort of has a chip on his shoulder, if you will, and he feels as though anybody telling him what to do and how to do it is against his general nature. I did not feel it was going to be in my best interest to have him here to represent me. I, therefore, chose to represent myself. MR. STONE-Well said. MR. ABBATE-You know, I’m a little offended because I’m a pussycat. MR. STONE-I will ignore that remark. MR. HIMES-I’d like to make one other comment on that, that, conceivably, especially if he has that kind of an attitude, maybe he’s responsible for this and liable for it, if it might be deemed that it’s something that needs to be brought back to where it should be. Thank you. MR. HAYES-I would add one thing to that, as far as zoning, I think Mr. Salvador is correct. I don’t think that there’s a statute of limitations, but I think a civil suit there very well could be, as far as a remedy, a civil remedy, a court remedy. MR. SALVADOR-There is a statute of limitations? MR. HAYES-Yes, I would bet there is. MR. SALVADOR-Any contract that’s subject to error is a nullification in the law. MR. BRYANT-Who is the contractor? DR. WORTS-John Creede, Pro-Built Docks. MR. STONE-He appeared before us on a neighboring property, six, eight, ten months ago, to the west. MR. ABBATE-Just a fast correction to Mr. Salvador. Even in the criminal justice system, there’s compassion. There’s what’s known as alternative sentencing, and in this case, I would put him on probation for 24 hours, and still approve the application. MR. STONE-Let’s not go there, guys. DR. WORTS-Mr. Chairman, I would just like to add one more thing, in defense of Mr. Creede, he built a wonderful dock. MR. STONE-Yes, he did. DR. WORTS-He’s a marvelous builder. Everything else put aside, he was a great person to work with, and he did everything as planned and as we discussed. So if he has some other problems, I understand that also. MR. STONE-At the risk of anybody taking umbrage, he is from the North Country. I won’t say any more than that. DR. WORTS-Understood. MR. STONE-Okay. Jaime, why don’t you. MR. HAYES-Well, as a Board, we’re empowered to entertain, you know, minimal relief under justifiable circumstances. I think, in this particular case, we’ve had some honest words by Staff about the delays involved with the inspection. I think Chuck has made some good points, too. We have to possibly consider that in our balancing test a little bit here, just how long we hold the applicant’s feet to the fire for this particular matter, but the benefit to the applicant is obvious. He would be permitted to keep what in my mind is a beautiful structure, a well-built structure. Feasible alternatives, I think the feasible alternatives are limited in this case because the dock is already built. I think that’s not a good reason not to have a feasible alternative, but it is one in this particular circumstance. Is the relief substantial relative to the Ordinance? I think it’s moderate to minimal in this particular case. You walk down to the dock and walk around the property and it is, to me, it did not immediately strike me as a visual, strikingly out of place. So I would say eight feet on a 40 foot maximum allowable dock is minimal in this particular case. The effects on the 42 (Queensbury ZBA Meeting 06/19/02) neighborhood or community, I don’t believe that there really are any in this case. I think there’s noted neighborhood support. My own personal view is that it’s a beautiful dock. It’s well done. It’s a compliment to this property and to the properties immediately surrounding it. Is the difficulty self-created? That’s the question before us in this particular case, because of the mean water line, the contractor, when it was actually done, when the inspections were actually done, but who’s at fault, who created this difficulty, I think it’s hard to say, and I certainly wouldn’t hold it entirely against the applicant who is representing himself in this particular case. So, on balance, I think we have the power to deal with this application on the normal area variance criteria, and I think it falls in favor of the applicant. MR. STONE-Mr. McNulty? MR. MC NULTY-In a nutshell, I can basically agree. While, if this had been a new application, it had come in and it was for a 48 foot dock where a 40 foot one is allowed, I would probably say no, but in this case, I think there are extenuating circumstances, and I’ll agree it’s a well-built dock. The way it’s constructed, cutting eight feet off would create problems, and I think it’s location on the shoreline and its location on the lake means that it doesn’t infringe on someone else. So I’d be in favor. MR. STONE-Okay. Norm? MR. HIMES-Yes. Thank you. Certainly I don’t feel, believe that the applicant had anything to do, directly, with the conditions that exist now, but, in connection with certainly it’s too bad that so much time has gone by, but on the other hand, nothing has changed, I don’t think, at least, since the day the work was done. So, what would the way we do things in Queensbury, go out after, and it was discovered that it wasn’t right within a reasonable period of time, then what would have happened. Probably it would have had to have been taken care of immediately by the contractor involved. So, the fact that it’s a later, the damage isn’t magnified, I don’t think, in my mind very greatly, and I think that there ought to be something done about that. I think perhaps I feel it is a nice dock to look at. I had used, earlier in the evening, something being over-built on one of the other applications and to this, it seems to me, that that was my impression when I looked at it. As nice as I liked it, and as beautiful as your place is, that thing going out to the right there, but the only way I would approve this would be that that be removed, and that you just have the dock, and I might accept that as a compromise. So, without that, I would not be in favor of the application. Thank you. MR. STONE-Chuck? MR. ABBATE-Okay. Thank you. I’m not going to address the application per se, but rather, as I said before, jagged procedures. I think this is another good example of where the applicant could conceivably be penalized because of a four years discovery of a potential mistake. Quite frankly, I believe that the applicants have acted in good faith. I truly believe that. It’s a beautiful, beautiful dock. There’s no question about that. So I would be in a position where I would approve this application. MR. STONE-Allan? MR. BRYANT-We’ve had a number of applications tonight, similar to yours, where there’s been a contractor error or an architect or engineer error, and consistently I voted against all of those applications. Generally, when I apply the questions that we have to ask ourselves, when approving a variance, I always ask myself how would I feel if you were coming to us with a clean slate, the dock had not been built or the building had not been built, how would I feel with that application. With that in mind, I have to say that I would be in favor of the application, but I agree with what Mr. Abbate says. Somewhere we’ve got to draw the line. Somebody’s got to be accountable for what’s done. It might be the greatest carpenter and I did stand on your dock today and I went upstairs. I mean, it’s a beautiful dock, and it’s a real piece of quality workmanship, but that does not relieve him of his obligation to obey the law. Somebody has to be accountable, but anyway, that being said, I’m in favor of it. MR. STONE-Roy? MR. URRICO-I’m also in favor of it for the same reasons that have been given earlier. I’d just like to add that one of the mitigating circumstances to me is that one dock is actually four feet shy of the maximum 36 feet instead of 40, and to me that sort of offsets the extra footage on the other side, and speaking of jagged procedures, I think Dr. Worts is a victim of jagged shoreline and jagged mean water mark more than maybe incompetent work or work that was not watched as carefully as it should. So I’m in favor of the application, but I’d also like to add my viewpoint that there needs to be some closer examination of the procedures as a means of not putting us in the position all the time of having to make a choice of taking it down or keeping it up. I think the proper procedure is to come before us first, give us the opportunity to offer opinions and constructive criticism if needed, but after the fact, it creates not only an due hardship to perhaps the applicant, but an undue hardship on the Board in trying to make a decision. MR. STONE-I agree with the bulk of the Board. Mr. Urrico made the point that I was going to make, that this dock is not 48 foot out, it’s 48 36 and it’s not 40 feet, depending on how you average it, but when you look at it and you look at the shore and everything else, it certainly, if we go by the definition of Mean Low 43 (Queensbury ZBA Meeting 06/19/02) Watermark, it is certainly not too long. It is a long dock, if you stand on it and don’t know anything about mean low watermark, but I think it’s the kind of thing, if you had come in, as my other Board members said, and said, could we do this, knowing the lay of the land and all of the shallowness of the water and all that sort of stuff, I certainly would have approved it, but having said that, I really think the Town has to do a number of things. I think we keep saying it, and nothing really happens, but, One, the Town should get equipment, if we’re going to have more docks built, to be able to determine easily, accurately, and readily, mean low water and mean high water. I mean, Mr. Salvador was trying to explain it to me earlier, as we stood outside, and I agree how it can be done, but we need something better than that stick that you showed me today, Mr. Frank, with the India ink all over it, showing that this is, I don’t know what it was, but I think we need something that one can go out there and readily determine where this thing is, and, two, I think, and I said it earlier, I think we have to get on top of checking properties being built in the Town. We are in a building boom right now, as evidenced by the fact that we had four meetings this month, three and a half, but I won’t go there. Four meetings this month, the Planning Board has got, what, four meetings this month, John? MR. STROUGH-Yes. MR. STONE-Yes. I mean, we’re really seeing a lot of activity, and I think we need the Staff to check these things out. We can’t let this thing go on, and I’m really saying this for the Town Board, hopefully they’ll read the minutes, and I’m really saying we have to have the Staff to do these things. I mean, we hired, and I’m rambling, forgive me. It’s my turn. We hired a Code Compliance Officer to go out and check the Code, and then we saddle him with being our Staff person and doing Staff notes for four meetings, and it’s very difficult to do his job, and I see your gestures, but I just think we have to somehow get to the Town and get some of these things done, because we really, when we hear the past tense, the applicant constructed, well, you saw what we did earlier tonight. We finally, by a four to three vote, but we finally said, enough is enough. Now I don’t know what’s going to happen there. It’s not our choice. Having said that, let me call for a motion to approve this variance. Does anybody want to take it? MR. ABBATE-I’ll take it. MOTION TO APPROVE AREA VARIANCE NO. 48-2002 DR. HOWARD WORTS, Introduced by Charles Abbate who moved for its adoption, seconded by Roy Urrico: 19 Woods Point Lane. The applicant has constructed a 20 by 40 foot boathouse/sundeck on a 48 foot dock. Applicant requests eight feet of relief from the maximum allowable 40 foot extension of a dock offshore from the mean low watermark, MLW, of the Docks and Moorings regulations, per Section 179-5-050-A(2). The benefit to the applicant, Dr. and Mrs. Worts would be allowed and permitted to keep the desired structure in the preferred location. Feasible alternatives. At this point I don’t believe there are any feasible alternatives, and any feasible alternatives, in my opinion, would be unjustified. Three, is this relief substantial relief to the Ordinance? Eight feet in addition to the 40 foot maximum allowed may be interpreted as minimal to moderate relative to the Ordinance (20%). The effects on the neighborhood or community? There will be minimal effects on the neighborhood and community, and I might also add that this adds to the beautification of the area. Is this difficulty self-created? The difficulty appears to be attributed to the work performed by the contractor, not the applicant/owner. The applicant claims the contractor stated when the dock was constructed in 1998, the dock extended only 40 feet offshore from the MLW mark. Mr. Chairman, in view of the fact that this is almost past tense in terms of four years, and in view of the conversation held by the members of the Zoning Board of Appeals, I would strongly urge that we have a motion approving Area Variance No. 48-2002. Duly adopted this 19 day of June, 2002, by the following vote: th AYES: Mr. Urrico, Mr. Bryant, Mr. Abbate, Mr. McNulty, Mr. McNulty, Mr. Hayes, Mr. Stone NOES: Mr. Himes DR. WORTS-Thank you. MR. STONE-There you go. MRS. WORTS-Thank you very much. AREA VARIANCE NO. 49-2002 TYPE II SUSAN WRIGHT PROPERTY OWNER: SAME AS ABOVE AGENT: VANDUSEN & STEVES LOCATION: 23 MAPLE DRIVE, HIDDEN HILLS SUBDIVISION ZONE; YEAR 1982 ZONING ORDINANCE: SFR-10 CURRENT ZONING: YEAR 2002 ZONING ORDINANCE: SR-20 APPLICANT PROPOSES CONSTRUCTION OF A 300 SQ. FT. PORCH AND SEEKS RELIEF FROM THE FRONT YARD SETBACK REQUIREMENTS IN THE PLANNING BOARD APPROVED SUBDIVISION HIDDEN HILLS AT WHICH TIME THE ZONING WAS SFR-10. TAX MAP NO. 302.17-3-6 LOT SIZE: 0.36 ACRES SECTION 179-4-30 44 (Queensbury ZBA Meeting 06/19/02) MATT STEVES, REPRESENTING APPLICANT, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 49-2002, Susan Wright, Meeting Date: June 19, 2002 “Project Location: 23 Maple Drive, Hidden Hills Subdivision Description of Proposed Project: Applicant proposes construction of a 300 sq. ft. porch. Relief Required: Applicant requests 4.4 feet of relief from the 30-foot minimum front setback requirement in the Planning Board approved subdivision Hidden Hills (at which time the zoning was SFR-10). 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 structure in the preferred location. 2. Feasible alternatives: Feasible alternatives might include reconfiguring the shape of the porch to achieve the desired size, but meet the required setback. 3. Is this relief substantial relative to the Ordinance?: 4.4 feet of relief from the 30-foot minimum front setback requirement may be interpreted as minimal to moderate relative to the Ordinance (14.7%). 4. Effects on the neighborhood or community: Minimal effects on the neighborhood may be anticipated as a result of this action. 5. Is this difficulty self-created? The difficulty is self-created. Parcel History (construction/site plan/variance, etc.): BP 89-501: 1989; construction of a single-family dwelling. Staff comments: Minimal effects on the neighborhood may be anticipated as a result of this action. The applicant could build the proposed porch minus the gazebo portion without a variance. However, less than half of the proposed gazebo encroaches on the 30-foot front setback, and one might consider the overall aesthetic appeal of the proposed porch is increased by the addition of the gazebo. SEQR Status: Type II” MR. STONE-Any County? MR. MC NULTY-No County. MR. STONE-This is SFR-1A now? MR. STEVES-Correct. MR. STONE-Which is still 30 feet, right? MR. STEVES-Correct. MR. STONE-So what’s the big deal, that it was then? It’s still 30 feet. MR. STEVES-Well, in any application where the lots are grandfathered by the zoning that was in place at the time the subdivision was approved, we were required to put that on. MR. STONE-Okay. MR. STEVES-Just so you know. MR. STONE-Now who are you? MR. STEVES-By the way, I am Matt Steves from VanDusen & Steves and I represent Susan Wright on this application. Pretty much Staff comments, sum it all up, this is a two story colonial house in Hidden Hills Drive, facing easterly toward the Northway on the back loop on Hidden Hills on Maple Drive, and they want to place a 300 square foot porch with a gazebo in the corner. It would greatly enhance the front appearance of the house. Right now all they have is in the breezeway or the mud, the breezeway between the house and the garage is a window there and there’s nothing there now, and the front doors, you can see (lost word) pointing to over there, there’s just a small concrete step. All the shrubbery will be moved forward, and planting all the way around this thing. It’s going to be a nice addition to the home. MR. STONE-I understand the porch, and as I drove around the neighborhood, there are lots of porches. I didn’t see any gazebos, and I don’t understand the gazebo. MR. STEVES-Okay. The people who live here, Susan Wright and Brad Collette, Brad is a contractor down in the Guilderland area, and he builds quite a few of them, and they drove around down there, saw about 25, 30 homes with them on there, and matching the existing home, and putting some cedar and some mahogany on the gazebo, it did really look sharp. So they wanted to do that, have a little sitting area out in the front. MR. STONE-And that large tree will go, though? MR. STEVES-That large tree will go, but they’re having another one replaced in front of the gazebo. They were hoping to be able to move that tree, but I don’t know if it’ll make it, so they’re going to be planting another one in front of it. MR. STONE-Okay. Any other questions, gentlemen? Any questions for Mr. Steves? 45 (Queensbury ZBA Meeting 06/19/02) MR. URRICO-There was some yellow striped tape in the back yard area. Do you know what that was there for? MR. STEVES-No, I do not. MR. FRANK-I know what that was for. They had seeded the back yard. They had covered it with straw. They just put that out there to let people know not to walk out on it. MR. URRICO-I was just wondering. MR. STEVES-I should have known that, since my house is almost immediately behind this one, but I’m never home enough to know whether. MR. STONE-I was going to say it, I knew you lived in that subdivision. Any other questions? MR. ABBATE-Would I be wrong if I were to suggest, it’s getting late, that this gazebo would be incongruous with the area? MR. STONE-I would agree. MR. ABBATE-Thank you. MR. STONE-I mean, I wrote, lots of porches, no gazebos, as I drove around. MR. STEVES-Well, maybe we’ll start a trend. MR. ABBATE-You know what, he may be right. MR. STONE-Well, except that I would suggest that, and this is just me, if you buy a home in a development like Hidden Hills, which is a lovely development, but they are very similar, then you know that they’re very similar, and you might want to stay with it, but that’s me. MR. STEVES-I think, as the Board has pointed out, as their concern looks at the gazebo, I think the benefit to the applicant against the detriment to the neighborhood, and I don’t see anybody here from the neighborhood that’s against it, and I’ve talked to probably eight neighbors there. They’re all in favor of it. MR. BRYANT-Can I just ask you one question? This is a hypothetical question. Since, as the Chairman pointed out, there really are no gazebos in the neighborhood, I didn’t see any gazebos. There’s a deck in the back with a pool. Wouldn’t it be nice to have a gazebo back there, just build the porch and you go home and we go home, and the end of story? MR. STEVES-Well, since it’s not my house, I wouldn’t want to make that determination. They’ve looked at a lot of colonials. MR. BRYANT-That’s why I’m suggesting it, because as the Chairman said, you drive around the neighborhood, you don’t see anything like that. A nice porch, and I’m sure it’s going to be nice, he’s a contractor, and they can put the gazebo in the back where they can sit and enjoy it, while somebody else is in the pool, sit on the deck. They’ve got plenty of room in the back. MR. STONE-Well, we’ll talk about it. I don’t hear any, as Mr. Steves said, he’s the agent with no power, I assume, to make any modifications. MR. STEVES-Well, I mean, if I have to I will, and I really, I understand the Board’s position on this, but I think the Board is here to act upon the benefit to the applicant compared to the detriment to the neighborhood. MR. STONE-With the minimum relief necessary. MR. STEVES-And I was about to get to that, with the minimum relief necessary, and like I said, they have driven around down in the Glenville area, Albany area, where he does a lot of building down there, and there’s a lot of homes of this style. MR. BRYANT-That’s Albany, that’s not Queensbury. MR. STEVES-Well, that might be the first one that happens in here. I’m not saying that, just because every house wasn’t built with a gazebo, I came in with an addition and not every house had an addition on it, you know, family’s needs change. They want to dress up the appearance of the house. They have three children. They want to stay here. I happen to think it would be a nice addition to this home. 46 (Queensbury ZBA Meeting 06/19/02) MR. BRYANT-I agree with you. Families do change and sometimes they need additions to accommodate their family, but this is, we’re not talking about that. We’re talking about a recreational area that is arbitrary. MR. STEVES-That’s your opinion. MR. BRYANT-Okay. MR. STEVES-I think their opinion and the opinion of all the neighbors is that it would be a great addition to this home. MR. STONE-Okay. MR. BRYANT-Do we have letters to that effect? MR. STONE-I don’t know. We’re going to open the public hearing and find out. MR. HAYES-Well, he’s a neighbor. MR. ABBATE-I’m sure we have people that are going to testify this evening. MR. STONE-Yes. MR. ABBATE-In favor of this. MR. STONE-I’m opening the public hearing. Anybody wishing to speak in favor of? In favor? PUBLIC HEARING OPENED JOHN SALVADOR MR. SALVADOR-On the subject of gazebos, I offer as an example of what was done in another community when an applicant had built the gazebo, had built the gazebo and was challenged that that was an allowable use, the Town of Bolton. Mr. Stone might even know about this. I think the LGA played a significant role in this complaint, but the applicant in that case was able to demonstrate that he could store a boat on his premises. He was allowed to do that. So he bought two short pontoon sections and dug them down and put them under the gazebo, and he had a boat in storage. So maybe there’s a solution here if they’re allowed to store a recreational vehicle like a boat on their property, they could avail themselves to this solution. Just a suggestion. MR. STONE-All right. Anybody else in favor? MATTHEW STEVES MR. STEVES-Yes. MR. STONE-Are you speaking as a neighbor or an agent. MR. STEVES-As a neighbor. MR. STONE-Go ahead, identify yourself. MR. STEVES-My name is Matthew Steves. I live at 4 Pleasant Lane, Lot 78, Hidden Hills subdivision, which is north, almost due north of this lot by about 100 feet, and my wife and I, Barbara Steves, are in 100% support of this application. MR. STONE-Thank you. Anybody opposed? Anybody opposed? Any correspondence? MR. MC NULTY-No correspondence. MR. STONE-So none of the neighbors, except Mr. Steves, have taken the time to say they like it? MR. MC NULTY-No. I might say I did speak with one of the neighbors, a couple of days ago. He was concerned. He did not like the idea of allowing the intrusion into the front setback, but he was totally opposed to showing up or writing a letter, or identifying himself. So, I’ll let you balance that. MR. STONE-Okay. I’ll close the public hearing. 47 (Queensbury ZBA Meeting 06/19/02) PUBLIC HEARING CLOSED MR. STONE-Anybody else have any further questions? If not, we’ll talk about it. I’ll start with Mr. McNulty. MR. MC NULTY-Gee, thanks. Boy, I don’t know. Obviously, you go down the criteria, and the benefit to the applicant is clear. The alternatives I think also are clear, take the gazebo off and the porch would comply. Is the relief substantial relative to the Ordinance? No, I don’t think so. Effects on the neighborhood or community, I guess is going to depend on whether you like gazebos or not. I think, personally, a front porch on this house would improve its appearance. So the porch portion I’ve got no question about. Is the difficulty self-created? Yes. That leaves me kind of in the middle. I think, I guess where I come down, I’m going to ignore the fact that it’s a gazebo because it’s getting into design and personal preferences, and I’m not sure that’s a fair choice for us to make. If I do that, then without the gazebo the porch would be compliant, and I don’t think I would approve a regular porch that extended into the setback. Therefore, I see no reason to approve one that’s got a gazebo that extends into the setback. So I’m going to be opposed. MR. STONE-Okay. Norm? MR. HIMES-Yes. Thank you. I feel that, before all this balancing and everything else, there needs to be something shown that would show that there’s a hardship that results because of the imposition of the zoning, and I don’t see that there’s any hardship resulting in this. I don’t see where there’s been any evidence given that anybody’s going to have a great impact on the necessities of life. So I’m against the application. MR. STONE-Okay. Chuck? MR. ABBATE-Thank you. I like Mr. McNulty’s position. I think it was well stated. We really shouldn’t get into the design, architectural design per se, if you will, but there were other stipulations. I could be influenced either way, but at this particular time, Mr. Chairman, I would not be in favor of the application. MR. STONE-Okay. Allan? MR. BRYANT-This whole zoning thing is really a balance between the desires of the applicant against the overall well being of the community. Staff was very even handed. In one place they say the alternative is to remove the gazebo and just build a porch, and the other place they say that the gazebo is going to add an overall aesthetic appeal to the porch. In my view, there’s plenty of room to build the gazebo, and it doesn’t have to be in the setback area, and I’ve got to agree with the rest of the Board members, I would be opposed to the application. MR. STONE-Roy? MR. URRICO-Yes. I agree with my fellow Board members. Mainly on the encroachment on the setback rather than the gazebo itself. As Chuck McNulty stated earlier, getting into the design of porches or gazebos I don’t think is something we should play around with, but getting into the setback, especially in this type of a subdivision, where granting relief to one would probably trigger a few more coming down the road, and I don’t think the justification or hardship has been demonstrated here. So I would be opposed to it. MR. STONE-Jaime? MR. HAYES-Well, I think that Chuck’s point about not getting into the architecture of a proposed structure is well taken. I think it’s well documented that you can’t legislate good taste, and I think it’s dangerous for us as Board members to impose, as Chuck pointed out, our own definition of what’s a good idea and what isn’t. Having said that, then, I think that if we examine this from the perspective of, would I grant 4.4 feet of relief from a 30 foot minimum front setback to build a structure in this particular circumstance, I think I would. I think that, on balance, the benefit to the applicant, which would be to permit to build a structure, would be greater in my mind than any negative impact on the neighborhood in this particular case. I think there has to be some credence to the fact that changing, while everything in Hidden Hills, well, not everything, but while a lot of these places have a similar look, the idea of some divergence is a positive, in my mind, to the plans. I mean, the reason why I also say that we should consider this just as a structure within 4.4 feet of relief is that, I could be wrong, but it appears to me that the applicant could just submit a plan for that relief, the 4.4 feet of relief, and as long as the structure was within that, including a gazebo, it would be permissible. So, in this particular case, have we, are we imposing our sense of what is tasteful or not tasteful on the applicant based on their submission. So, strictly viewing this thing from the perspective of 4.4 feet of relief from a 30 foot requirement, which is about 11%, I would, I think the test falls in favor of the applicant, and I would be in favor. MR. STONE-Well, I agree with the bulk of the Board, and it has nothing to do with the gazebo. We’ve got a uniform subdivision. As I said earlier, a very attractive subdivision, we have a lot of homes with porches on it, and as far as I know, we’ve granted no variances for front setback relief. We’ve granted a lot of back yard for swimming pools. I think there are more swimming pools per square house there than any place I know, 48 (Queensbury ZBA Meeting 06/19/02) but that’s fine, but we’ve granted those. They’re in the back. I’m concerned that if we grant relief from the front yard for a home, regardless of what’s there, and I certainly agree with Mr. McNulty and the other Board members, that while we have talked about the gazebo, because that is the object that is doing the encroaching, I’m assuming that the proposed porch on this diagram by Van Dusen & Steves, by the map of the survey by Van Dusen & Steves is within, outside the 30 feet? I don’t have that dimension on here. MR. STEVES-That’s correct. MR. BRYANT-It says the porch is eight feet. Is that correct? MR. STEVES-Yes, that’s correct. MR. STONE-What does the porch say? MR. BRYANT-The porch is eight feet. MR. STEVES-The proposed porch in your application is eight foot wide. MR. STONE-Is eight foot wide. So it would be 32 feet from the road? MR. STEVES-That’s correct. MR. STONE-Okay. MR. STEVES-And for the applicant’s benefit, too, I understand this Board, what Jaime has said is outside of the architectural, you know, preference of different people, the gazebo might still stay if they don’t grant the front setback. Instead of being off the corner of the porch, it would be just in line with the end of the porch. MR. STONE-And that would not bother me, personally, because it would be within where everybody else is. It’s a structure, and we have no control over the structures, absolutely. MR. STEVES-I understand, and I’m not trying to, you know, I’m not trying to defend the gazebo. I don’t have one, and I don’t have any intentions of building one. I’m just saying I don’t have any problem with it, and I just want to let the Board know if anybody did have a problem with the gazebo, we can still move it back and it will still be a gazebo. It just won’t be encroaching on the front setback. MR. STONE-No, I might be disturbed, personally, by the uniqueness of it, but, no, if they want to put a gazebo, but I don’t see granting relief into the front yard. That’s where I come out. MR. BRYANT-I think I made that point very clear that you have plenty of room to build a gazebo or whatever you want to build on the other parts of the property, and I don’t object to the gazebo. I just object to going into the setback. MR. STEVES-I understood that. MR. BRYANT-Because it’s into really required. You’ve got plenty of room. MR. STONE-So, having said that, I need a motion to deny. MR. ABBATE-I think Mr. McNulty should take it, since he started this. MR. STONE-Yes, you started it. Go. MR. MC NULTY-Okay. MOTION TO DENY AREA VARIANCE NO. 49-2002 SUSAN WRIGHT, Introduced by Charles McNulty who moved for its adoption, seconded by Allan Bryant: 23 Maple Drive, Hidden Hills Subdivision. Applicant’s proposing construction of a 300 square foot porch with a gazebo. Applicant requests 4.4 feet of relief from the 30 foot minimum front setback requirement in a Planning Board approved subdivision, Hidden Hills, which, at the time of construction, the zoning was SFR- 10. The benefit to the applicant would be that the applicant would be permitted to construct the desired structure in the preferred location and the preferred configuration. Feasible alternatives might include reconfiguring the shape of the porch to achieve the desired size and possibly including the gazebo, but still meet the required setback. Is the relief requested substantial relative to the Ordinance? 4.4 feet of relief from the 30 foot minimum setback can be interpreted as minimal to moderate. Effects on the neighborhood, minimal to moderate effects on the neighborhood, I believe, would result with the extension of the porch into the setback. Is the difficulty self-created? Yes, the difficulty is self-created. Given that there are 49 (Queensbury ZBA Meeting 06/19/02) alternatives that would still allow the applicant to build a porch on the front of their house, I move that we deny this application. Duly adopted this 19 day of June, 2002, by the following vote: th AYES: Mr. Abbate, Mr. Himes, Mr. McNulty, Mr. Urrico, Mr. Bryant, Mr. Stone NOES: Mr. Hayes MR. STEVES-Thank you. Now the hard part, not only is she my neighbor. She’s also my secretary. MR. STONE-Did you want to say something? MR. SALVADOR-Under other business. MR. STONE-I’m not sure we have that tonight. MR. SALVADOR-Yes, you do. MR. STONE-What do you want to say? MR. SALVADOR-I just have a few comments. This subject of the mean low water mark is more serious than I think a lot of people want to believe. The legislature established this elevation after a lot of, a series of 40 years of surveys between, there’s something called mean low, low, and mean low, high. Okay. The mean low is a mean between the low and the high low. It’s a mean, okay, and you strike the mean by making a survey of these elevations and get a mean, same with the high. Now when they establish it at 317.74, they’re getting down to the hundredth place, why not seven, five? Why not seven, three? It was seven, four. Now, when you’re dealing with significant numbers, that’s the level of accuracy, the hundredth place is the accuracy. That’s plus or minus an eighth of an inch. You don’t go out with a stick in the waves and you know, you’ve got a benchmark up at the north end of the lake, and then you’re trying to transfer that to the southern end of the lake, at barometric pressure to consider, wind velocity has an effect on the lake, and the lake has to have a natural slope to it to flow north. It can’t flow north unless the hydraulic head in the south is higher than in the north. It won’t move. MR. STONE-And the moon. MR. SALVADOR-Yes, whatever. It is not difficult. It is not expensive to establish benchmarks. Am I not correct? Okay. It’s something that should be done, and then there’s no guesswork. A builder, you put a benchmark there, a builder can get from the benchmark to what he’s doing. MR. BRYANT-So how do you do it? Explain the process. MR. SALVADOR-There are benchmarks all over the countryside. MR. STONE-Those little brown things, brass things? MR. SALVADOR-These guys know where they are. They’re on maps. No question. There’s one in our neighborhood they refer to all the time. No big deal. It’s an elevation that’s struck, and by the way, sea level changes. Sea level changes over the years. This is 317.74 above mean sea level. Sea level changes. Maybe in the Adirondacks here it’s not changing. The plates of the earth move relative to each other, fine points, but I’m saying down to the hundredth place they’ve said. That’s significant, and so we’re dealing with something more finite than just this kind of thing, you know, just put a stick in the water some place. That’s number one. Number Two, 317.74, I maintain, is the Town boundary. It’s the zoning district boundary. We’ve been through all this, haven’t we? MR. STONE-Yes, we have. MR. SALVADOR-We’ve been through all this, okay. Beyond 317.74, I don’t believe you have any jurisdiction. This is the Town of Bolton. You don’t have any jurisdiction there. That’s another long story, but I will bring that into focus as I, okay, and Mr. Stone has heard all of this before, correct? MR. STONE-I just want to make sure that if you show the diagram of my property, get the new tax map number on it. MR. SALVADOR-I should bring that. I laid this all out for a previous Board. Probably you weren’t on it. MR. HAYES-We were here for the Salvador line. I think that might have been my maiden voyage. MR. STONE-And he’s still here. 50 (Queensbury ZBA Meeting 06/19/02) MR. SALVADOR-Okay. I tried to make the point about these substandard lots, and how the Zoning Ordinance has taken care of that. I think maybe it’s been changed to 500 square foot hunting and fishing cabin. The new Ordinance is 500? I’m not sure. It was three, I think it’s been changed to five. There’s a reason for that. There’s a reason for that, and it’s there because you can’t, you can’t. The regulations cannot create a situation where you’re taking a person’s property. That’s a regulatory taking. That’s unconstitutional. So to protect the Town, yourselves, we dump this hunting and fishing cabin, whether it’s three or five hundred square feet, we dump that into the Ordinance, that’s an allowable use. I can’t even get a permit to build one. You’ve heard that story. Right? MR. ABBATE-I don’t dare to ask. MR. STONE-He’s building one. MR. SALVADOR-Mr. Stone, they denied me a permit. I have 1100 feet of shoreline. All of it’s underwater, but I couldn’t get a permit to build a 300 square foot hunting and fishing cabin. With regard to the 40 applications he still has to go through, is there any sense in doing anything? Are we wasting our time? I mean, are we going to hear the same scenario, that a long time has gone by, etc., etc.? I mean, God forbid he goes back and tells his boss he needs help. I had a boss once that if you give a man an assistant somebody isn’t working. Right? MR. STONE-Mr. Salvador, we have both under 500 and over 500, hunting and fishing cabins. MR. SALVADOR-Okay. All right. Mr. Stone, I think at a time before you were on this Board, Chairman of this Board, I heard you testify at a hearing for the application of the Mooring Post Marina. MR. STONE-If you say so. MR. SALVADOR-Yes, it’s in the minutes. MR. STONE-I’m sure it is if I did. MR. SALVADOR-They don’t expire, but anyway, your pitch, at that time, on this side of the aisle, your pitch was support your Zoning Administrator. That was your battle cry. You were telling the Board, support your Zoning Administrator, and you made the argument, and they did. They did do that. So I just don’t want you to forget that that was a position you took when you were on this side of the aisle. MR. STONE-Have I changed that position? MR. SALVADOR-Well, tonight it doesn’t like you’re supporting your Zoning Administrator in some of these instances. MR. STONE-Well, as I always say on my other job, the Assessor is always right until we say she’s wrong. MR. SALVADOR-All right. A lot of this dock permitting and boathouse and all that stuff on the lake, up to Lake George is, we have overlapping jurisdictions. We have conflicting requirements. We have, the old story between the Town of Queensbury and the Lake George Park Commission, and that’s where we’re having our trouble. I don’t know what the Lake George Park Commission is doing about this extension. They gave a permit for this work, I think. If they don’t they should have, and I can’t imagine them giving a permit beyond the 40 feet. You went ahead and gave a variance. We don’t know if they’re in noncompliance with the Park Commission. MR. STONE-Well, we do share agendas with them. MR. SALVADOR-No, that’s not enough. MR. STONE-I’m just saying that they know that we found that there was a concern. That’s all I’m getting at. MR. SALVADOR-They don’t find that you have a concern by getting a piece of paper like this. They don’t find that. MR. FRANK-They get the full application. MR. STONE-They do? MR. FRANK-We have to submit, I don’t know if it’s a Town policy or what, but we submit applications for whatever jurisdictions are affected. MR. STONE-Okay. 51 (Queensbury ZBA Meeting 06/19/02) MR. SALVADOR-Well, they aren’t even on the list here. So how could they have gotten? They’re not on. MR. FRANK-It’s support staff’s mistake. MR. SALVADOR-Yes, but maybe they didn’t get this one. MR. FRANK-There’s always that possibility. MR. STONE-So you’re asking Mr. Frank to look into that? MR. BRYANT-Maybe they got it in 1998. MR. SALVADOR-No. We sit here criticizing contractors, architects and engineers for sloppy work, and we’re guilty of that. That’s not fair. That’s really not fair. One last comment, judge, you, once a judge, always a judge, right? That’s what they say. I gagged when you complimented the tag team for the good work, dotting the I’s and crossing the T’s. Do you have any idea what it costs an applicant for that service? Do you have any idea? MR. ABBATE-None whatsoever. MR. SALVADOR-You’re talking thousands. The little guy can’t do that. He’s got to try to do it himself, and to get through this maze downstairs, you ought to try it some time. You ought to try it. The paper is incredible. MR. ABBATE-It almost borders on being unfair. MR. SALVADOR-Well, it’s burdensome, and is it really necessary? That’s the, I mean, is it necessary if you’re going to arrive at a point where you don’t have time to really do the work and so you approve an after the fact variance because there’s no sense, I mean, the whole castle’s going to cave. MR. STONE-Well, again, Mr. Salvador, I’d like to be anecdotal because I know what I went through 10 years ago, and not knowing the system I did hire a lawyer, and it was because, for that simple reason, I didn’t want to be wrong. MR. SALVADOR-Yes. My point is, a residential type development, I’m not talking about these big, you know, big box or something like that. I’m not talking about that, okay, where they need stacks and stacks of site plan approvals and variances and all that kind of stuff. I understand that’s complicated, but a simple residential type development should not require all that we go through, and what makes it that way is the Zoning Ordinance we have. You have no privileges in that Zoning Ordinance, absolutely none. Everything is conditioned on a site plan approval or something like that. That’s why the Planning Board is so busy. The Planning Board shouldn’t be busy the way they are. Dumping these site plans on them, site plans and in their conditional approvals, if they’re not careful, they’re granting variances, called waivers on their end. So anyway, you’ve heard enough. MR. STONE-Thank you. MR. ABBATE-Thank you, Mr. Salvador. MR. URRICO-Mr. Salvador, I’d just like to say that you’re as eloquent now as you were 13 hours ago when you spoke before the County Supervisor. MR. ABBATE-I have taken voluminous notes and I will be guided by your wisdom. On motion meeting was adjourned. RESPECTFULLY SUBMITTED, Lewis Stone, Chairman 52