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2002-09-18 (Queensbury ZBA Meeting 9/18/02) QUEENSBURY ZONING BOARD OF APPEALS FIRST REGULAR MEETING SEPTEMBER 18, 2002 7:00 P.M. MEMBERS PRESENT LEWIS STONE, CHAIRMAN CHARLES MC NULTY, SECRETARY NORMAN HIMES CHARLES ABBATE ALLAN BRYANT PAUL HAYES JOYCE HUNT, ALTERNATE MEMBERS ABSENT ROY URRICO ZONING ADMINISTRATOR-CRAIG BROWN STENOGRAPHER-MARIA GAGLIARDI MR. STONE-Before we hear the first item on the agenda tonight, I’m going to exercise a point of personal privilege, one that I know my Board, the thoughts that I’m going to make, that my Board thoroughly subscribes to, but I just thought it would be good for the public and for the record to have this there. On Friday, September 13, the Post Star had an editorial which applies to groups like the Zoning Board, Planning th Board, Boards of, Town Boards, and all that sort of thing, and it has to do with, as their editorial said, Avoiding Conflict Earns Trust, and I quote “In government the bottom line is trust. If our elected officials”, and I would add appointed officials, “don’t strive for it, if they don’t struggle with it, if they don’t make it a part of every action they take, then they lose it. When people enter government service, they agree to abide by certain standards of conduct and make certain personal sacrifices, all with one goal in mind, trust, and the way a public official earns trust is by avoiding the appearance of conflicts of interest, such as the appearance of a County Supervisor getting special treatment by virtue of his position in the government. It doesn’t matter whether this action is perfectly legal. It doesn’t even matter whether the action represents an actual conflict of interest. All that matters is perception. The test is simple. If a member of the public can perceive, just perceive, that an action might represent a conflict of interest, then the public official should refrain from taking that action.” And that is something that I believe my Board, I say my Board only because I’m the Chairman, this Board has assiduously concerned itself with in the past, and I know we will in the future. OLD BUSINESS: NOTICE OF APPEAL NO. 2-2002 HILLARY C. AND GILBERT J. POTTER APPELLANT IS APPEALING THE ZONING ADMINISTRATORS DECISION REGARDING CONSTRUCTION OF A FIFTH UNIT APARTMENT IN THE BASEMENT OF AN EXISTING 4-UNIT APARTMENT DWELLING. CROSS REFERENCE: UV 55-2002 WITHDRAWN BY APPLICANT LOCATION: 20 PATTON DRIVE ZONE: SFR-20 TAX MAP NO. 302.08-2-36 LOT SIZE: 1.39 ACRES SECTION: ARTICLE 13 A-F, 179-13-010 HILLARY & GILBERT POTTER, PRESENT MR. STONE-We did table it last month. Unfortunately, Mrs. Potter had babysitting problems, and it looks like they continue tonight. MRS. POTTER-No, no. This one has to come. The loud one is at home. MR. STONE-Okay. You don’t have to read the tabling. Read the note that was written by the Zoning Administrator and then Staff notes, and then go to Mrs. Potter. MR. MC NULTY-Yes. Okay. This is a letter that was written by Craig Brown, Zoning Administrator, addressed to Mr. and Mrs. Potter. He says, “I have reviewed your recent request letter, (undated, received on July 26, 2002) with regard to the addition of a fifth apartment to your existing four unit building. Further, I have reviewed the Town of Queensbury Zoning Ordinance and would offer the following information. The property in question; 20 Patton Drive, lies within a Single Family Residential (SFR) zoning district within the Town of Queensbury. The SFR zoning district is the most restrictive residential district in the Town. As such, the allowable uses therein are limited to single-family dwellings, schools, places of worship and seasonal produce stands. The current use of your property as a multifamily dwelling complex is considered a pre- existing non-conforming use and can be maintained but not expanded or enlarged. Your project, to add a fifth dwelling unit to your existing four unit building will require a Use Variance from the Town of 1 (Queensbury ZBA Meeting 9/18/02) Queensbury Zoning Board of Appeals. This determination is consistent with my previous position on this matter. Your submission of a Use Variance application (55A-2002) was, apparently, in response to the same. Should you have any questions or comments, please do not hesitate to contact this office.” STAFF INPUT Notes from Staff, Notice of Appeal No. 2-2002, Hillary C. and Gilbert J. Potter, Meeting Date: September 18, 2002 Project Location: 20 Patton Drive Description of Proposed Project: The applicant is appealing Zoning Administrator’s decision that a Use Variance is necessary to expand a non-conforming use. Information requested: Applicant is appealing to the Zoning Board of Appeals for a determination regarding the expansion of a non-conforming use. The applicant currently maintains a 4 unit apartment building in a Single Family Residential (SFR-1A) zoning district. Staff comments: As stated in the July 26, 2002 letter from the Zoning Administrator, the Town of Queensbury Zoning Ordinance does not offer multi-family uses as allowable uses in the SFR-1A zone. The addition of a 5 unit where 4 currently exists th shall be considered an expansion. The increase in the physical area dedicated to the non-conforming use shall be considered an expansion. Currently, there are four apartments contained within the first and second floors of the building. The applicant seeks to expand the living area into the basement with the fifth apartment.” MR. STONE-Okay. Let me, before we start, Mrs. Potter, I would like to read into the record a definition from Random House Webster’s Dictionary, which defines expansion as, “The act or process of expanding.” Expand, the verb itself, “To increase in extent, size, scope or volume”. And that is the definition that’s on the table, and that’s what we have to say whether the Zoning Administrator is correct in his interpretation, that what you want to do is, in fact, an increase in scope or volume. You’re on. Go. MRS. POTTER-Hillary C. Potter. I guess what we would like to see is an Area Variance rather than a Use Variance, and I did read, I think you gave me last time some information about what kind of a variance is needed and when, and it didn’t specifically say Use Variance. It said a variance. The Town Board will have to grant you a variance for this kind of thing since it is Single Family Residential. So, we would like to request to have an Area Variance, since we know that we have no chance at getting a Use Variance, since we withdrew our application last time. We do have about 1.4 acres, and it’s a good size lot for that neighborhood, in fact quite larger than any of our neighbors. I don’t think that, and we would not, actually, if it would impact the neighborhood, we would not be asking to do this. We really feel strongly that it will not impact our neighborhood in a negative way. I think that, you know, it’s really open to opinion, what the law states in this case, because it doesn’t specifically say a Use Variance. It just says a variance. So, I mean, may that is implied, somehow, but I would think that it could easily be implied that it is an Area Variance as well. MR. STONE-Well, let me call upon the Zoning Administrator, who is serving as our Staff this evening, to clarify that particular situation. MR. BROWN-Mrs. Potter is correct. It doesn’t explicitly state, and if you want to review the Section, it’s 179-13. It talks about nonconforming uses. I’m not sure the Subsection, D or E, it relates to. If you have a nonconforming use, with the exception of a Single Family Dwelling, that nonconforming use cannot be enlarged or expanded without a variance, is what’s stated, and my position is if you have a nonconforming use, you can only expand that use with a Use Variance. So it’s not an Area Variance issue. It’s a Use Variance issue. MR. STONE-Okay. So you’re saying that this is a current use. It is currently a nonconforming use, being an apartment building in a Single Family Residential One Acre zone, and since the use is being expanded with the addition of an apartment, your position is that the variance that is required is, in fact, a Use Variance. MR. BROWN-That’s correct. MR. STONE-Okay. Any questions of the applicant? Any questions of the Staff? I mean, keep in mind that, and I should have said this before, that an appeal to us, of the Zoning Administrator, is a very narrow issue. We have to determine whether we believe that the position taken by the Zoning Administrator is correct or not correct. If it’s correct, then your next step is to seek a Use Variance to do what you want to do. If we don’t agree with the Zoning Administrator, then we get into a situation where we still all agree we need a variance, and then we’re going to have to discuss what kind of variance that we think we’re going to need, and I guess if it’s not a Use Variance, therefore it would be an Area Variance. MR. ABBATE-Would you do me a favor and explain your position again, your interpretation again? I don’t want to give you my position yet. MRS. POTTER-That’s fine. MR. ABBATE-What was your position again, please? 2 (Queensbury ZBA Meeting 9/18/02) MRS. POTTER-Well, just from Craig reading that law, it does say that a variance is needed, but it doesn’t specifically say an Area or Use Variance. It doesn’t say what kind of a variance. So it seems like that could be the Board’s determination, to me. MR. ABBATE-And from what I hear, the Zoning Administrator agrees with you, on her interpretation? MRS. POTTER-Well, on that. MR. ABBATE-In that, it just says variance. MRS. POTTER-Just that one point. Yes. On just that one point. MR. ABBATE-On that one point, I understand that. I, quite frankly, believe that you may very well have an argument. MRS. POTTER-Good. MR. ABBATE-That’s it. MR. STONE-Anybody else have comments they want to raise? MR. POTTER-I’d like to make a point. My name’s Gilbert Potter the third, and the point that we’d like to make is that this house is not a single family residence. There is no doubt about it. If you look at it, it’s built as a quadrant, and to make it a single family residence was only a law, and this house was built before it was named single family residence, and that’s my point. MR. STONE-Well, we’ve already stated, this piece of property is nonconforming. It’s a nonconforming use. It can be there as long as you want to keep it a four apartment building. I mean, there’s no question about that, but it is an apartment building. It does have four apartments, but its use in that zone is nonconforming. It doesn’t mean it’s illegal. It doesn’t mean it’s pre-existing, it can be there. The question is, can you put an additional unit into a space not now being used. MR. ABBATE-I don’t agree. That’s not the question. The question right now, is this Zoning Administrator correct in demanding that they seek a Use Variance, and I say no. He’s not right. MR. HIMES-Absolutely. MR. ABBATE-They must seek a variance, but not necessarily a Use Variance. MR. STONE-Okay. Anybody else have a comment they want to make? If not, let’s just talk about it. Let’s start with, we’ll start with Chuck. MR. ABBATE-Me? Okay. You said it right initially. I think it’s a very narrow issue. The applicant has come, has requested to seek an additional apartment in the basement, and by your very definition of expansion, and the very narrow issue, in my opinion, is addressed in a letter from the Zoning Administrator to Hillary and Gilbert Potter, and he makes the statement, an unequivocal statement, that they require a Use Variance, period, and I believe that there may be some question as to requiring a Use Variance. I do believe you will require a variance, but I would challenge the fact that they will require a Use Variance, and that’s the narrow issue, in my opinion. MR. STONE-Okay. Allan? MR. BRYANT-I’m not really understanding what you’re saying, Mr. Abbate. I don’t understand what you’re saying, and I don’t understand what, my understanding of this appeal is based on the Zoning Administrator’s determination that putting a fifth apartment in the building, in an area that’s not currently used for living space, is considered an expansion of a nonconforming use, and therefore requires a Use Variance, and now you’re muddying the waters here. MR. ABBATE-No, I’m not. The narrow issue is this. The Zoning Administrator has stated unequivocally that you must have a Use Variance, and I say, no. You need a variance, but not necessarily a Use Variance, and that’s all we have to address, and nothing else. MR. BRYANT-No, but that’s not the issue. The issue here, and correct me, Mr. Chairman, if I’m wrong. The issue is relative to the definition of expansion. Is a fifth apartment in that building an expansion, and that’s what this whole appeal is relative to, and not relative to whether or not they need a variance or not. It’s relative to the definition provided by the Zoning Administrator to what expansion. MR. STONE-Well, it’s a two part. One, he has said it’s an expansion. I hear nothing from the applicant to deny, to argue against the fact that it’s an expansion. He further goes on, and you can jump in, but what I 3 (Queensbury ZBA Meeting 9/18/02) hear further is that what is in violation, if you will, nonconformity, is the use. Therefore, an expansion of the nonconformity requires, as a use, requires a Use Variance. That’s the other thing that you said. It definitely needs a variance, and the variance is a Use Variance, because of the expansion of the use. MR. HAYES-That’s Craig’s position. MR. STONE-That’s Craig’s position. MR. BROWN-That’s my position. That’s correct. MR. STONE-Yes. MR. BROWN-So you’re both correct. My rational was, is your line of thought, expansion of a nonconforming equals, and my ultimate decision was, correct, yes, you need a Use Variance. That’s the applicable, that’s the mechanism to get what you want in this case, a Use Variance. MR. BRYANT-Well, I want to ask you a question, then. How did you arrive at the position that because it was an expansion of a nonconforming use, that the only way to remedy the situation was a Use Variance? MR. BROWN-That’s, I would agree with the applicant, it’s not clear in the Ordinance. It doesn’t say to expand a nonconforming use you need a Use Variance. I think it’s a reasonable and logical next step, if you expand a nonconforming use, the only way to do it is with a Use Variance. MR. ABBATE-But you admit it’s not clear. MR. BROWN-It does not specifically say Use Variance. MR. ABBATE-Thank you. MR. STONE-Okay. We don’t want to argue with each other. MR. BRYANT-I want to still understand before I make a statement, and relative to, I mean, how could you then apply for an Area Variance? Or, I mean, that’s what we’re talking about. What’s the other alternative? So how would an Area Variance apply to this application? I don’t understand that? MR. ABBATE-Because the Ordinances are not clear, I think, if nothing else, we should err on the part of the applicant, and then require the applicant to come before this Board and seek an Area Variance because, only because the law is not clear. MR. MC NULTY-If they were to do that, though, what would they request in the way of relief? MR. ABBATE-That’s up to them. I’m not going to give them advice. MR. BRYANT-Yes, but, no, that’s the point, though. MR. MC NULTY-There’s no Area Variance requirement that they’re violating. MR. BRYANT-Exactly. What would they request? MR. MC NULTY-There’s no set relief. MR. BRYANT-I don’t understand. See, I understand what you’re saying relative to the Use Variance. MR. ABBATE-The relief that they would request would be an expansion of their current, a nonconforming use. MR. STONE-Al, are you done? Have you made your decision? I don’t mean to put you on the spot. MR. BRYANT-No, I want to understand the point that Mr. Abbate is making, and I think, the fact that it’s not described in the book, and I did read the book, and it doesn’t describe that logical progression that you described. It doesn’t describe that in the Ordinance, okay, and I understand that, and I understand what Mr. Abbate is saying. However, he’s not, it’s not a very convincing point, because I don’t understand what relief would they apply for? That being said, I’d have to concur with what the Zoning Administrator has said in his letter, relative to the expansion. The fact that you are expanding, even though you’re not expanding the building itself, you’re expanding into an area that’s not necessarily currently living space. That would change the use. So, in my view, he’s correct in that regard. Whether or not it requires a Use Variance, I’m still cloudy. MR. STONE-Okay. Joyce? 4 (Queensbury ZBA Meeting 9/18/02) MRS. HUNT-Yes. Well, I thought we were coming to discern whether the Use Variance should be granted or not, and I don’t. MR. STONE-No, no, no. That’s not what we’re doing here. MR. ABBATE-No, that’s not the issue. MR. HAYES-This is an appeal. MRS. HUNT-An appeal, but I mean, I don’t see where this comes in for a different variance. I agree with you, an Area Variance. I thought we were just supposed to look at what we had gone over the last time, and I would agree with Mr. Brown, that it is an increase in the use, and would concur with his opinion. MR. STONE-Okay. Jaime? MR. HAYES-I would agree as well, you know, without trying to muddy the clarity of the subject. I think if they were going to try and make an Area Variance argument, it would be that it’s a residential use is permitted, but this would be an over density. I don’t think that argument carries, myself. I think that Mr. Brown is correct, and my logic is that I think that in Part D, 179-13-010, Part D is missing a word there that should be Use Variance. It’s not there. So Mr. Brown had to make an interpretation, and I think he made the right one in this case. I looked through the rest of that section, and the very next section says an existing structure which violates only the area requirements of this Chapter may be enlarged or extended so long as such enlargement or extension does not violate the area requirements of this Chapter, and the logic is that I think this is a section that violates the use, if the continuation violates the use part of this thing, then it needs a Use Variance. If it violates the area requirements, then it needs to get an Area Variance. So I think in this particular case. MRS. POTTER-Am I allowed to speak? MR. STONE-No. Well, let us go through this discussion. MR. HAYES-So, while a word has been omitted, and in fairness to the applicant, I think that it certainly is an argument that could be made, but I think in this case, it clearly is the expansion of a nonconforming use that does require a Use Variance. There’s really no doubt in my mind. I think that’s what this section meant to describe or does describe, you know, through some interpretation. So, I’m agreeing with the Zoning Administrator. MR. STONE-Chuck? MR. MC NULTY-Okay. I basically agree that I think the Zoning Administrator is right, but I’d like to explain a little bit of my logic on this. I did some research, too, and looked at a couple of dictionaries. The Town Zoning Ordinance does have a definition of expansion. There’s three terms that are used in this section. One is expansion. One’s an enlargement, and one’s increase. The Ordinance, in its wisdom, it defines expansion and ignores enlargement and increase, but it says expansion is any growth of activity which requires the enlargement of facilities including buildings, parking spaces, storage yards or other facilities, and so on. It strikes me that that particular definition seems to lean towards expansion, physical expansion, and I might be willing to get the applicant the benefit of the doubt on that one. Looking at the Oxford American Dictionary, that says increase, which is used in D, Section D, means making greater in size, amount, or intensity, and I think certainly adding a fifth apartment is making it greater, at least in an amount and in an intensity. Looking at the different sections under 179-13-010, A pertains to single family dwellings, and we’ve already agreed this is not a single family dwelling. So I don’t think A applies. B talks about an expansion or increase not violating or increasing a setback noncompliance, and I think that also doesn’t apply in this case. Section C talks about creating unsafe conditions, and I don’t think we’re concerned with creating unsafe conditions. So I don’t think C applies either. Skipping D for a minute, E is a little difficult to understand, but I think what it’s saying is a physical expansion cannot violate the area requirements, and that also doesn’t apply because it’s not a physical exterior expansion that we’re talking about. F refers to the site plan approval process, which doesn’t involve this Board. That brings me back to D. It says nonconforming use cannot be increased without a variance, and we’ve already talked about the definition of increase, and the proposal is certainly making greater in amount and it’s making greater in intensity, and I think it meets two of the three criteria in that case. As far as what kind of variance is required, I think probably the author of the Ordinance assumed, which is a bad thing to do, that it was obvious, in talking about uses in that section, that variance meant Use Variance. With all that brings me back to, regrettably, I’d like to do something in favor of you, but I think the way the Ordinance is written, the Zoning Administrator is correct, a Use Variance is required. MR. STONE-Norm? MR. HIMES-Yes, thank you. I agree with the Zoning Administrator’s decision, basically because I don’t know what other kind of variance would be applicable, and the language, nonconforming use may be 5 (Queensbury ZBA Meeting 9/18/02) increased only by variance, I think that it’s reasonable to assume that the Use Variance is what is intended. That’s my thinking. So I support the Zoning Administrator’s decision. Thank you. MR. STONE-Well, I certainly agree with the bulk. Now, you’ve made an assumption, Mrs. Potter, that is not necessarily true, that you can’t get a Use Variance. That’s for us to listen to your arguments following the dictates, the rules that we have to do. MRS. POTTER-No. Not impossible, but near impossible in our situation. MR. STONE-Use Variances are very difficult. Yes, Use Variances are very difficult, but there is a test, and I’m sure you’ve been made aware that you started to apply for that using the test, and that’s the judgment that we have to bring to it. All we’re saying tonight, and certainly it looks as if we’re going to say the Zoning Administrator is correct. The Zoning Administrator has said that the use of this property is nonconforming, and that this expansion of this nonconforming use, and that’s the word that I think Mr. McNulty put it very well, any nonconforming use may be increased, and over the years this has been in our Code, and it’s been in the Code before this new revision. That’s the language. I think it’s, a reasonable person, at least my judgment, if you go from nonconforming use to variance, that the word “use” is a given, and I would like it not to be, but I also have the same problem that a number of the Board members have expressed, what kind of Area Variance would you even seek? I mean, it’s inside and it doesn’t get involved in any of the area requirements that we have. It’s the use that’s in violation. So, having said that, I’m going to make a motion. MOTION THAT THE ZONING BOARD OF APPEALS AGREES WITH THE DECISION OF THE ZONING ADMINISTRATOR THAT IN THE MATTER OF APPEAL NO. 2-2002 THAT THE ZONING ADMINISTRATOR’S DETERMINATION MADE JULY 31, 2002 IS, IN FACT, CORRECT, Introduced by Lewis Stone who moved for its adoption, seconded by Paul Hayes: Duly adopted this 18 day of September, 2002, by the following vote: th AYES: Mr. Hayes, Mrs. Hunt, Mr. Bryant, Mr. Himes, Mr. McNulty, Mr. Stone NOES: Mr. Abbate ABSENT: Mr. Urrico MR. STONE-So we’ll see you back, we trust. MRS. POTTER-Certainly not. AREA VARIANCE NO. 66-2002 TYPE II DORIS FARRAR OWNER: SAME AS ABOVE AGENT: VANDUSEN AND STEVES ZONE: SR-1A LOCATION: 1070 RIDGE ROAD APPLICANT PROPOSES A TWO-LOT SUBDIVISION OF PROPERTY WITH A PRE- EXISTING SINGLE-FAMILY DWELLING. RELIEF REQUESTED FROM MINIMUM LOT WIDTH REQUIREMENTS. ADIRONDACK PARK AGENCY WARREN COUNTY PLANNING 8/14/02 TAX MAP NO. 290.06-1-70 LOT SIZE: 4 ACRES SECTION 179-19-020 C MATT STEVES, REPRESENTING APPLICANT, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 66-2002, Doris Farrar, Meeting Date: August 28, 2002 “Project Location: 1070 Ridge Road Description of Proposed Project: Applicant proposes to subdivide a 4.03- acre parcel with a preexisting single-family dwelling into two lots (1.0 and 3.03-acres). Relief Required: Applicant requests 100 feet of relief for Lot One from the 300-foot minimum lot width requirement (twice the minimum lot width requirement of the SR-1A Zone) for a newly created lot fronting on a regional arterial road as per the Schedule of Area and Bulk Requirements for the SR-1A Zone, § 179-4-030, and Residential Lots Abutting Collector or Arterial Roads, § 179-19-020. Criteria for considering an Area Variance according to Chapter 267 of Town Law: 1. Benefit to the applicant: Applicant would be permitted to subdivide the parcel as proposed and sell existing house on Lot 1, while retaining Lot 2. 2. Feasible alternatives: Feasible alternatives include subdividing the parcel into two lots each with a minimum of 300 feet of road frontage or sharing a single driveway between the two lots as proposed (both alternatives would not require a variance). 3. Is this relief substantial relative to the Ordinance?: 100 feet of relief from the 300-foot minimum lot width requirement may be interpreted as minimal to moderate relative to the Ordinance (33.3%). 4. Effects on the neighborhood or community: Minimal to moderate 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.): AV 66-2002: tabled 08/28/02 due to failure by County to review application. Staff comments: Minimal to moderate impacts may be anticipated as a result of this action depending on where the future driveway is created on Lot 2 should this application be approved. Staff recommends any approval include a condition the future drive on Lot 2 be 6 (Queensbury ZBA Meeting 9/18/02) centered between the existing drive on Lot 1 and the existing drive on the neighboring parcel to the south. SEQR Status: Type II” MR. MC NULTY-“Warren County Planning Board Project Review and Referral Form September 12, 2002 Project Name: Farrar, Doris Owner: Doris Farrar ID Number: QBY-02-AV-66 County Project#: Sep02-28 Current Zoning: SR-1A Community: Queensbury Project Description: The applicant proposes a two-lot subdivision of property with a pre-existing single-family dwelling. Relief requested from minimum lot width requirements. Site Location: Ridge Road Tax Map Number(s): 290.06-1-70 Staff Notes: The applicant requests a variance for a two lot subdivision where the average lot width will not be met. The applicant proposes an average lot width of 150 ft. where 300 ft. is required. The parcel is in the SR-1A acre zone where one acre is the minimum, lot 1 is proposed to be one acre and lot #2 is proposed to be 3.03 acres. Lot #1 will contain a pre-existing home that does not meet the required setback from Ridge Road. It appears that any further subdivision of Lot #2 would require a similar variance for lot width. The drawing shows the proposed subdivision. Staff does not identify a impact on County Resources because adjoining lots are of similar size. Staff recommends NCI. County Planning Board Recommendation: No County Impact” Signed Thomas E. Haley, Warren County Planning Board 9/16/02. MR. STONE-Mr. Steves. MR. STEVES-Good evening. My name is Matt Steves with VanDusen and Steves, and I represent Doris Farrar in this application. Simply, it’s a two lot subdivision, as you can see before you, Lot 1 being of one acre, Lot 2 being of the remainder of the property, 3.03 acres. We were looking at this with Doris as to where to establish a two lot subdivision. She has moved and is trying to sell the house and retain the rest of the property, and looking at that, if we accommodated a 300 foot lot, it really doesn’t change the fact that the existing house being so close to the road, because it’s pre-existing before the required 75 foot setback, there would be no way to share a driveway, if you went with less, or if you gave it 300, you’re still going to have two driveways on this property, and we have no objection to moving the proposed driveway, at the time of subdivision, and at this Board to be stipulated that it be located, centered between the other two driveways. Like I said, if you create a 300 foot, you’re still going to have two driveways, and if you share a driveway, as you can see with the configuration of this house with the driveway being on the north side and the garage and the proximity of the house being so close to the road, it would be awful tough to share a driveway without having almost like an access road parallel to Ridge Road, just a few feet off the right of way line. So we look at this is that, either way, it’s going to have to have two driveways. MR. STONE-If both lots were conforming, as far as road frontage, and that’s the concern, I mean, Staff is concerned with the driveway location. Our prime concern, and the variance that we, you’re asking us to grant, is whether one lot, the lot to the north, can be 200 feet wide rather than 300 feet wide. MR. STEVES-Correct. MR. STONE-And that’s really the only question before us. I mean, we can put conditions on it that Staff is suggesting, but I’m wondering why Lot One can’t be 300 foot wide. I mean, you haven’t addressed that in your argument. I mean, this is a three acre lot. If you take off 30,000 square feet, it’s still going to be well over, it’s still going to be over two acres. MR. STEVES-Correct. The argument that I would make is that if you look at the existing house, if you’ve been over to that property, where we have shown the proposed division line is right where that house is using that property, and it makes a nice division line there, and whether or not you obtain 300 feet with that lot does not change the fact that you’re still going to have two driveways. No matter where you put them, you’re not going to be able to share a driveway. MR. STONE-I understand, but the Ordinance says because of the arterial nature of Ridge Road, that there should be 300 foot lots, recognizing that both are going to have driveways. I mean, the Ordinance certainly doesn’t think about one driveway, doesn’t think about locating in the center. It says, if you get 300 feet, you have enough room for a driveway, and a second driveway. MR. STEVES-And I don’t disagree. What I’m saying is that if you have 300 feet on that lot, the driveway location doesn’t change. MR. STONE-Correct. MR. STEVES-And the purpose of 300 feet on these arterials is to separate the driveway locations, so that they’re not right on top of each other or across from each other. We can accommodate that, no matter what size frontage we put on Lot One, and actually we have more of an ability, with Lot Two being larger in road frontage, to put the new driveway at a better location for site distance. MR. STONE-If you took, if I can believe your survey, of course I can, if we took 100 feet off, it appears to me it’s 430 feet, approximately, along the property line. Is that a correct reading? 7 (Queensbury ZBA Meeting 9/18/02) MR. BRYANT-Yes, that’s about right. MR. STEVES-That’s correct. MR. STONE-Well, I want the surveyor to tell me. So, you’re still going to have well over 300 feet as called for by the Code. I just don’t, I mean, one of the things, as you know, we have a balancing test. MR. STEVES-And I wholeheartedly agree, and I’m trying to make an argument, and I know your argument, and what I’m saying is that, does the benefit to the applicant outweigh the detriment to the neighborhood, and, either way, you have two driveways, and just like the one where we had, if you recall, it was on the corner of Meadowbrook and Cronin, where we had a three lot subdivision and we needed a variance for that, the existing house there, also on Meadowbrook Road, sat so close to the road, there was no way to share a driveway. The driveway is already there because of the pre-existing home, and with two lots, you’re going to have two driveways no matter how I configure that lot line. So the bottom line is does this variance effect the outcome of this parcel, as far as driveway, number of driveways or location of driveways. No, it does not. So the balancing act I’m looking at is, is that a detriment to the neighborhood? No, they’re still going to have two driveways, but is it a benefit to the applicant? Yes, it is. She can configure the existing house parcel in the area that is being used now as a lawn and that, you know, that’s where it is. MR. STONE-Yes, but the benefit to the, or the detriment to the community is destroying the sanctity, if you will, of the zoning code. I’m not saying, I’m only asking questions at this point in time. MR. STEVES-Understood. MR. STONE-I mean, the Code, in its infinite wisdom, calls for 300 feet. I may be, you know, totally off base, as far as everybody else is concerned, but it does call for 300 feet. You can make 300 feet. Certainly everybody would understand that for every 300 feet, there could be a driveway. I mean, that’s what the Code calls for. Every 300 feet, there could be a driveway. MR. STEVES-Mr. Stone, I agree, and I’ll also give you another scenario. You come back, and I take the lot the exact same way it is. I share a driveway, okay, somebody else buys the lot next door, still has room to subdivide it, and now they can put in another driveway. You’re still going to have two driveways. MR. BRYANT-See, I think that’s the issue. I think really what we’re looking at, okay, is you’ve got a 200 foot lot here, parcel, and then you’ve got another big lot that later on, looking into the crystal ball, we’re going to have two more lots at 200 feet. Okay, and you can point to this and say, well, look, this lot has only got 200 feet frontage. So, therefore, these two lots can get away with 200 feet of frontage. MR. STEVES-Yes, they can, because they’ll share a driveway. MR. STONE-Well, the driveway issue is not in the application. That is Staff notes interpretation of a possible alternative. The variance is to make Lot One be 200 feet rather than 300 feet, and that’s the only issue that’s on the table, in terms of a variance. MR. STEVES-Correct. MR. STONE-If we choose to condition granting this thing by saying, you’re never ever going to be able to do anything with the other lot, I’m not going there yet. We haven’t gotten there. MR. MC NULTY-I’m still puzzled about the benefit to the applicant. I hear one benefit because this is what the applicant wants to do, but, what is the game? Why not make two 300 foot lots? MR. STEVES-Because, okay, you’re going to have two driveways on this property, no matter what you do. MR. MC NULTY-Granted. MR. STEVES-This allows Lot Two, if somebody else purchases it, or down the road she wants to own this thing, and she wants to maintain it, but when she gets near retirement, she may want to take that driveway that’s in the middle of Lot Two, put a lot line down it, which both lots would then conform because they would be sharing a driveway, and have two lots for sale for future retirement plans. Either way, if I have two lots or three lots, it will end up out of this property and three is the maximum. You’re still going to have two driveways. That is the reasoning behind it. MR. STONE-Mr. Brown, we keep talking about sharing a driveway. Does that reduce, I mean, can we cite chapter and verse that if we have a 200 foot lot, two 200 foot lots and share a driveway, that’s legal? MR. ABBATE-Yes, but on a second hand, how can we possibly subject future property owners to possible civil litigation when it comes to sharing one driveway? 8 (Queensbury ZBA Meeting 9/18/02) MR. STEVES-Okay. If your Code, in this zone, it says minimum lot width of 150 feet. On an arterial feet, it says that you either, 150 feet is fine, if two lots share a driveway, or 300 feet if you don’t share a driveway. That’s right in your Code, and your Zoning Administrator can confirm that. MR. ABBATE-You’re looking at me. Not my Code. MR. STEVES-No, everybody’s Code. MR. ABBATE-I don’t believe in the infinite wisdom of the Code. MR. STEVES-The Town Code. I believe Mr. Brown can shed some light on that. MR. STONE-Craig, can you shed some light on that? MR. BROWN-Yes. There’s about 20 different things that just happened here, but I would agree with Mr. Steves that that is the way the Ordinance is written, 150 if you’re not on a regional arterial or collector road. If you are on one of those and you want to create a lot, you have to have double the frontage or share a driveway. MR. STONE-With what kind of total frontage? MR. BROWN-You can, you have to have the minimum 150. If you want to share a driveway, you have to have at least 150. Because that’s the minimum lot width in this zone. MR. STONE-Okay. MR. BROWN-If you want to have your own driveway, you have to have 300 feet. I don’t know if that answers the question or not. MR. STONE-Well, it’s not in the relief required. I mean, it doesn’t say that. MR. BROWN-That’s not a part of your review at this point. What the requirement is, 300 feet on an arterial road. MR. STONE-Correct. MR. BROWN-Or share a driveway, and in this case, the applicant’s not offering a shared driveway. So they’re seeking a variance to have something less than 300 feet. MR. STONE-But, if we were to grant, I guess the point, if we were to grant this variance to make Lot One be 200 feet wide, and then say, allow a second driveway on this 400 some, that in the future, this could be, you could get two lots in there with a shared driveway because they would be less than 300 each. MR. BROWN-I think that’s, yes, I think that’s probably, it sounds like that’s what the plan is. MR. STONE-Okay. Joyce, you look like you wanted to say something. MRS. HUNT-Yes. I’m wondering whether, if we grant the variance, we really are opening up the three lots, rather than two, I thought that by granting this variance, we’re really granting two variances, possibly, in the future. MR. MC NULTY-Could potentially. Potentially we’re allowing three lots in this area. MR. BROWN-Which is completely within the density. MR. STEVES-If I create 300 feet on Lot One, just so the Board understands, the Lot Two can still be subdivided into two lots. MR. STONE-That’s correct. MR. ABBATE-Okay. Now, I’d like to address that issue. You stated that the Lot Two can be subdivided into two lots. Right? MR. STEVES-Correct. MR. ABBATE-If Lot Two is subdivided into two lots, then what provisions would you have, in terms of access? MR. STEVES-You would have to share a driveway. 9 (Queensbury ZBA Meeting 9/18/02) MR. STONE-Those two lots would share a driveway. MR. HAYES-They’d have 150 feet of road frontage each, if they shared a driveway. MR. MC NULTY-Actually taking it to an extreme, you’ve got four acres here. If they created two lots, equal size, you could end up with a total of four lots in there with two shared driveways. MR. STEVES-Not enough, no, not enough frontage. MR. HAYES-You’d need 600 feet of road frontage to do that. MR. STONE-What have we got? Don’t we have 600 feet? MR. BRYANT-You have 600 feet. So he’s right. MR. STONE-You have 600. MR. STEVES-Technically, yes, if you really tried to work, you could end up with four lots. You’re correct. MR. MC NULTY-Not likely, but technically you could. MR. STEVES-Yes. MR. ABBATE-Jaime, I have a question for you, since you’re the expert in the area of construction, certainly more than I am. MR. HAYES-I’m not an expert. MR. ABBATE-Well, I think you are. You know more about it than I do. Is it normal to have shared driveways? Is that a normal procedure in construction? MR. HAYES-Well, I think, if you’re asking for my opinion? MR. ABBATE-Yes, I’m asking for your opinion. MR. HAYES-I think on the collector arterials, that the Code has two options, and that if a builder or a person wants to subdivide, that they’ve got to follow the Code, and this is a way that they can subdivide and still meet the Code, still be within the Code. MR. STEVES-That’s correct. MR. ABBATE-Thanks, Jaime. MR. STEVES-To answer your question, Chuck, that subdivision that we had done for Burlingame on the corner of Cronin and Meadowbrook, the two new lots that fronted on Cronin Road both had about 150 feet of frontage and they had to share a driveway, and we didn’t need a variance for that. You either have 300 feet or you share a driveway. That’s the current Code. MR. STONE-But, my concern is, I mean, it’s all well and good that if we have three lots, we have three lots, and they would conform to the Code. The question is why the variance? I mean, I’m still hung up on that. Why is there a need to make this lot substandard when it already has a house and a driveway on it? MR. STEVES-Because I see it real clear, but it’s as clear as mud to you guys, I guess. If I can throw this lot back to 150 feet, no matter where I put this lot line, do you agree or disagree with me that that driveway’s not going to change because of the proximity of the house to the road, and the driveway being on the north side? So if I pull it to 150 feet, I can put in the driveway and loop all the way around the back. What benefit is that to the applicant to have to drive all the way around the back of the house? I can make four lots out of this and make it very easy and not need a variance whatsoever. MR. HAYES-Or the neighborhood. MR. STEVES-Right, and the neighborhood, then, would have four houses, two driveways, shared, and that house, it doesn’t change the character of the neighborhood one iota to allow this to have its own driveway on less then 300 feet. If I make this have 300 feet, it still has the driveway where it is. If I make it 40 feet, it still has the driveway where it is. That’s what I’m getting at. What detriment to the neighborhood does this have? If I look into the future, this is a much better plan because now this other lot gets only split into two lots, instead of potentially four lots in this area of the road. Three would be the maximum, and those other two would have to share a driveway. 10 (Queensbury ZBA Meeting 9/18/02) MR. HAYES-So we’re ending up with two curb cuts total. MR. STEVES-Instead of, right, instead of potentially three. MR. STONE-All right. You’ve got a lot that has 232, and 199 is approximately 432, actually 432. Right? MR. STEVES-Correct. MR. STONE-I mean, one could almost say, well, we could divide that and get 150 for three, give them a variance for one of the lots, and slightly, not going to have as much, and we could still end up, I don’t know what we’d end up with. MR. STEVES-You’d still end up with two shared driveways. MR. STONE-Two shared driveways, yes. MR. STEVES-I guess my point is, no matter how we slice and dice this, you’re going to end up with two driveways on Ridge Road. So what difference does it make as far as the lot width? And I understand that it doesn’t meet the Code. That’s why I’m asking for the variance. MR. STONE-I know. MR. STEVES-But what effect is it going to have on this community or neighborhood if no matter what you do, two driveways are going to be on this property, that’s the bottom line. MR. ABBATE-That’s my question to you. What difference does it make whether you go with three or you request relief of 100? What difference does it make? MR. STEVES-Okay. That’s why I’m here, because I’m asking for it, and your weighing test is to see whether or not the benefit to the applicant, which would be to allow them to divide the property in the configuration she would like to, is more of a benefit to her than it is a detriment to the neighborhood. Now the neighborhood would be that you’d have two driveways now. You have two driveways now. You’d have two driveways later, no matter how you look at it, you’d have two driveways. MR. ABBATE-Okay. Let me go one step further. Let’s assume, for the sake of argument, you said I think I’ll withdraw this request and I’ll go with the 300 foot minimum lot. Then what happens? MR. STEVES-Then you’d have two driveways, one in the same, both basically in the exact same location that we’re proposing it. MR. ABBATE-So then why go through all this? MR. BRYANT-It’s very simple, okay. I understand what he’s trying to do. This second lot, actually, at this configuration makes it more attractive for future use. MR. STEVES-That’s correct. MR. BRYANT-Because now you have 400 feet of frontage, that you’re going to have a driveway in the middle, shared. They’re going to have 200 feet on each side, as opposed to 150 feet. So he’s making that Lot Number Two more attractive. The end result is the same. MR. STEVES-He couldn’t have said it any better. MR. BRYANT-But I understand exactly what you’re trying to do. MR. STONE-Okay. You’re saying that it would appear that the next step, and I’m not anticipating the future, that if we granted this request, that eventually, at some point, Lot Two would be divided into two, one and a half acre parcels. MR. STEVES-That’s her intention somewhere down the road. Now, if you look at this older farmhouse, just as Allan just said, and if you look at two lots that would be created with over 200 foot of frontage apiece, and that house, which is going to be tough to expand, is not really a large home because it doesn’t even fit the 75 foot setback, wouldn’t you rather have lots at 200 feet, much more road frontage, that you’re going to be able to build two nicer homes in there? That’s going to be the marketing strategy and the appeal of those two lots. That’s correct. MR. HAYES-As an end result. 11 (Queensbury ZBA Meeting 9/18/02) MR. STEVES-Yes, as an end result. What’s she going to do with it? Nothing at this time. She wants to be able to sell the existing smaller home. She’s moved to, I believe, it’s Granville or Cambridge, and she wants to be able to sell that home and then retain the property. So maybe some year down the road, when she’s thinking about retiring, she could sell it as is, or subdivide it and sell two lots. At this time, you’re not going to see it in front of the Planning Board next month. I can’t tell you any more than that. MR. ABBATE-You sold me. MR. STEVES-That’s my job. MR. STONE-Any other questions before I open the public hearing? Since we’ve still got to go there. Okay. Let me open the public hearing. Anybody wishing to speak in favor of this application? In favor of? Anybody opposed to this application? Opposed? PUBLIC HEARING OPENED JERRY BECKWITH MR. BECKWITH-My name is Jerry Beckwith. I live just south of this property about maybe an eighth of a mile, and my concern has been that we’re talking about the variance here of reducing this by 33 and a third percent, 100 foot, he says, but it’s still a, that’s a hell of a variance, I think, versus if it were 10, 50 feet or whatever. I just think that’s quite a bit of variance and stuff. My bigger concern is that, what happens to that property afterwards and stuff. That house is, I’ve lived there all my life. I’ve lived on Ridge Road right there for 20 years, and I’ve lived in the neighborhood all my life, and that house has deteriorated quite a bit since she’s had it, and my concern is she’s going to get rid of that, going to have that other two pieces of property that are going to be subdivided just like he said with 200 foot frontage lots, and it also now adjoins a six acre parcel that’s also up for sale. So I envision this whole thing coming together down the road, maybe not next month, but down the road coming together, and maybe subdividing this whole thing up, and that property that we’re talking about, the two 200 foot lots, or 150, whatever, that’s very wet land back there. Again, that’s not in front of the Board tonight, but there’s concerns there that myself and neighbors also have, and so I guess I’m just addressing the issue about the variance for the reduction in the size of the lot. To drop it by 33 and third percent, I think, is quite a bit. MR. STONE-I don’t want to put you on the spot, but I will. You heard Mr. Steves talk about the immediate effect, if we were to grant this variance. Do you have any comments about that? I mean, besides the fact that it’s a lot of variance, 100 feet on 300 foot requirement. Can you argue with what he’s talking about for these two lots? Anything you want to say? MR. BECKWITH-Those two. Like I say, now you’re talking about having two more lots in there, having, you know, that house and two more properties there sharing that driveway, that’s a concern. It’s a busy road. Like I say, it’s a busy corner, a dangerous corner. There’s been a lot of accidents there. I’ve seen more traffic, and I’m looking down the road, also, and I’m thinking that there’s six acres right next to it, and I’m going to see a division in there, subdivision and everything else, and I just think asking for a 33% reduction on the frontage on Ridge Road is quite a bit. MR. STONE-Okay. The only point that I’m trying to make, and again, is that if we don’t grant the variance, then you’ve got a lot which has approximately a little over two acres that still could be divided in two, particularly if it were combined with the six acres to the south that you’re talking about. I mean, I just want you to be aware that if we don’t do anything, if we deny the variance, some of the things that you’re concerned about would still come to pass. MR. BECKWITH-Yes, and we’ll face those tomorrow, I guess. MR. STONE-Okay. MR. ABBATE-I have one question. I just caught it as a passing moment. You mentioned the word wetlands. If this were approved, would it affect any wetlands? MR. HAYES-The Planning Board has to deal with that on a subdivision. Because I think the wetlands would get excluded from their density requirements, if they do a subdivision. They actually have to calculate that and comply with that. Is that right, Matt? MR. STEVES-That’s correct. MR. ABBATE-Okay. Thank you. MR. STONE-Thank you. Anybody else wishing to speak against? ELIZABETH MILLER 12 (Queensbury ZBA Meeting 9/18/02) MRS. MILLER-Elizabeth Miller. I live right across the street from the lot. My main concern is very similar to the gentleman before me. I’m just concerned about another driveway on that particular road on that particular corner. I noticed, in the last 20, 25 years that we’ve been there, the road has become very busy, and I’m just concerned about another driveway, and I realize that you could subdivide it and put two more driveways in, or whatever, in the lot next door, but I don’t know what you do about not subdividing a lot. I guess there’s nothing you can do. If you have a lot and you have the property, there’s no recourse. You can subdivide it if you want? Is that my understanding? MR. STONE-That’s correct. MRS. MILLER-Well, I guess. MR. STONE-You have to meet, if it requires site plan approval, you have to convince the Planning Board, but if it’s within the Code, you lose this step of talking to us. MRS. MILLER-Right. MR. STONE-Then you’ve got to talk to the Planning Board, and that may not even be necessary in some cases. They’re going to divide a lot, and that’s the question I asked the previous gentleman. I mean, if we grant the variance or we don’t grant the variance, what the applicant is saying, there will be a driveway there. MRS. MILLER-Right. MR. STONE-It may service two homes, and then that’s what Staff has asked us to do if we grant that, and I gather from Mr. Steves that they would be amenable to that. MRS. MILLER-Right. MR. STONE-But there would be a driveway. MRS. MILLER-So there’s no way. Am I to understand that there’s no way that you can prevent a person that owns a home on a lot from subdividing it if he has the property? Is that correct? MR. STONE-If he has enough space. MRS. MILLER-If he has enough space. MR. STONE-This is one acre zoning. Therefore, if he has four acres total, he can. MRS. MILLER-Because most of the houses on Ridge Road, at that particular area, are more than one acre, I’m assuming. MR. STONE-Yes, but we only restrict it to one. MRS. MILLER-Yes, well, just my opinion. Thanks. MR. STONE-Okay. Anybody else opposed? Any correspondence? MR. MC NULTY-We have two pieces of correspondence. We have a short note from Irene Rasmussen, and she says “Property is mostly wetland and not good for development. Definitely not 2 lots. Poor location on sharp curve. Percolation probably not great. Buffer zone should be retained between property and Stonehurst homes. Irene Rasmussen” And the other is a letter from Christopher Navitsky, Lake George Waterkeeper, and he says, “I have reviewed the file for the variance request for the above referenced applicant. I am forwarding this correspondence since I cannot attend the meeting due to a conflict but would like this to become part of the record. I would like to state my opposition to this variance request based on the following: 1. The requirement of Section 179-14-080.A2 states whether the benefit sought by the applicant can be achieved by some other method feasible for the applicant to pursue, other than an area variance. The applicant can achieve a 2-lot subdivision by subdividing the lot as per the requirements of Section 179-4-030. The applicant’s statement ‘Shared driveway or 300 foot width are not practical’ is not substantiated. 2. The requirement of Section 179-14-080.A.3 states whether the requested area variance is substantial. The variance request is for 33% relief from the ordinance and this is substantial. 3. The requirement of Section 179-14-080.A.5 states whether the alleged difficulty is self-created. The variance is self-created and can be developed to meet the referenced ordinance requirements. 4. An additional concern is the variance granted could be applied in the future to the newly created Lot 2 and therefore, three lots could be created from the original parcel whereas the zoning ordinance would allow only two. If the applicant would accept a condition that Lot 2 could never be subdivided in the future, this would eliminate our opposition to this request. Thank you for your consideration. Sincerely, Christopher Navitsky, PE Lake George Waterkeeper” 13 (Queensbury ZBA Meeting 9/18/02) MR. STONE-Would you read this again. I have a question. MR. MC NULTY-Okay. You want the whole thing read? MR. STONE-No, just read who wrote it and his letterhead. MR. MC NULTY-Okay. It’s from the Lake George Waterkeeper, signed by Christopher Navitsky, PE, Lake George Waterkeeper. MR. STONE-Thank you. Let me go there. MR. ABBATE-I’m raring to go. MR. STONE-I know you are, and certainly I support Mr. Navitsky in his efforts to protect Lake George, but this is not, this is in the Halfway Brook watershed. Is it not? This is not in the Adirondack Park and it’s not in the Lake George Park. Is that correct? MR. BROWN-That sounds correct. MR. ABBATE-Thank you. MR. BROWN-I don’t have the limits on here, but I’m sure that it’s not in the Adirondack Park. MR. STONE-Well, it’s way below 149. Nowhere near. MR. ABBATE-The Chairman is right, and I think also that that individual should be designated and stipulated as a lobbyist, and that’s exactly what he is, and I object to that individual interfering in the Town of Queensbury, in matters that have nothing to do with him. MR. STONE-So noted. I don’t understand why he took this, not the position. MR. ABBATE-No. MR. STONE-He can take the position. What I don’t understand, from his mandate. Anybody help me on this? MR. HAYES-No, I mean, I agree. We’re put in the position where we could have form letters sent by non- citizens of the community on every application. MR. ABBATE-Is he a resident of Queensbury? Let’s start with that. MR. HAYES-No. He acknowledged that he wasn’t at the last meeting. MR. ABBATE-He’s not a resident of Queensbury, and his position is watershed keeper? MR. STONE-Guys, no, he’s been given a title and a job, but that’s not the point. The point is we have the right to ignore it, and I just want to be sure that what he, that this particular piece of property is not involved in Lake George, not involved in the Adirondack Park, not in the Lake George Park. It’s in the Halfway Brook, flows to the Hudson. Is that correct, Mr. Steves? MR. STEVES-That’s correct. MR. ABBATE-And that is a clear cut intrusion on our sovereign rights. MR. STONE-Okay. Anything else? Let me close the public hearing. PUBLIC HEARING CLOSED MR. STONE-And, Mr. Steves, can you at least comment on those magical two words, or one word put together, that has come before this Board, namely wetlands? MR. STEVES-Yes. There is a drainage pattern that comes off the back of that subdivision. We’ve kind of sketched it out for Doris on the survey. It would accommodate still, no problem, two houses on the property. Yes, there are some wetlands. Yes, they’d have to be taken out of the consideration of density on those lots. There’s no question there but that is definitely a subdivision issue, and what we’re doing here is, as I stated before, you could have four lots. We have no problem with three lots, and one other statement, and I know the Board’s heard enough of me tonight, but the point is I would wholeheartedly understand the Board and the concerns of the driveways, if I was in here asking for a new lot with no house on it, saying, can 14 (Queensbury ZBA Meeting 9/18/02) I have 150 feet and put another driveway in, even though I could share a drive. In this case, it’s an existing house that sits real close to the road and already has a drive. It’s been there for 50 years or 60 years or however long, and as far as one comment from somebody that came up, the six acres next door, my client is not purchasing that to look for subdivision. So, I’m not saying that that can’t happen down the road, but if we were looking into buying that six acres to create a subdivision, we wouldn’t need this variance. MR. STONE-Okay. But there may be wetland considerations, which is, you know we ask questions, even though it’s not in our purview. MR. STEVES-And I will say that there is. MR. STONE-Okay. What are the lots behind? Are they a recognized subdivision? MR. STEVES-Yes. That’s a subdivision that’s known as Stonehurst, that was. MR. STONE-That’s Stonehurst? MR. STEVES-That’s correct. MR. STONE-Okay. MR. STEVES-That’s exactly what it is. MR. STONE-Okay. MR. ABBATE-One other comment, and I know you’re going to love this word, Mr. Chairman. I want to remark in that last letter. I forgot to mention the fact that he has no standing. Thank you. MR. STONE-Okay. Any other questions before we talk about it? Let me start with Jaime. MR. HAYES-Well, I think this is an Area Variance. I think the test for us should be relatively clear, that in essence we’re comparing or evaluating the benefit to the applicant versus the detriment to the neighborhood, through the five parts of the test, as provided by Town law and State law. In this particular case, I think that the benefit to the applicant is obvious, that they’re trying to design a subdivision that has maximum appeal to potential purchasers of the land in the future. I’m not sure, to abbreviate my remarks, that there is any negative impact on the neighborhood in result. I think that there could be a shared driveway, in this particular case. The Code calls for the possibility of a shared driveway. I’m not sure, in the end, that we would have anything other than two driveways on this piece of land without boundary lines in between it, as a result. So, is that same result greater than the benefit to the applicant designing and creating this subdivision in a way that makes the most sense, and I don’t think that it is. I think, in this particular case, the benefit to the applicant is clear, to me. I don’t think the relief is overly, you know, I think it’s moderate, in this particular case. The public has spoken and said that 33.3% is notable, and I think that it is, but it certainly isn’t overwhelming, in this particular case. I would not like to see the shared driveway that amounts to an access road, and I can envision and understand what Mr. Steves has put forward there. I don’t think that we want to create, by action, or by the direction of this Board, an action that would actually serve to be a detriment to the neighborhood. I think one shared driveway, as the Staff notes points out, properly placed in the middle of this lot, balanced between the next two driveways, would actually not have a big impact on Ridge Road, and I think we have to be very careful here in speculating, you know, bringing speculation into our balancing test about what might result. The Planning Board is going to be charged with their requirements in analyzing the subdivision, and they have numerous things that they consider, including wetlands. I think this is, we need to stick to our test, and I don’t think that, really, testimony that is against an owner subdividing a property in a way that meets the density requirements of the Town should really be weight in that balancing test. I think that, in my mind, that is not part of the consideration that I would make. I think this could be a legal subdivision, and I think we should leave that to the Planning Board from that point forward. So, on balance, as far as this application, I think that the feasible alternatives, that this, as a feasible alternative, is actually acceptable to me, and that the only thing that I, obviously, would go against the applicant, in my mind, is that the difficulty is self-created, because they’re putting together a plan that is to their choosing, and that’s certainly self-created, but outside of that, I would say, on balance, it falls in favor of the applicant. MR. STONE-Chuck? MR. MC NULTY-I’m going to come down on the other side of the issue. I don’t see the great benefit to the applicant, other than this is what the applicant would like to do, and when I look at this and compare it to the rest of Ridge Road, I guess what I’m looking at is anybody else that has 600 feet on a road like this might make the same kind of request. Gee, I’d like to make a small lot and a bigger lot. I don’t see anything really unique about this. If I grant this, I don’t see why I shouldn’t grant similar relief to anybody else coming in with this much road frontage that wants to do the same thing, and doing that is changing the zoning. I don’t 15 (Queensbury ZBA Meeting 9/18/02) see a special benefit to the applicant. I see a detriment to the neighborhood and if nothing else in establishing a precedent of allowing substandard lots on this road, and therefore I’m going to be opposed. MR. STONE-Norm? MR. HIMES-Yes, thank you. I agree, somewhat, with what Chuck has just said. I think that, in terms of what is being asked here, that we forgive the Lot One, where a lot of the talk has been done about Lot Two and I can’t say that I disagree with some of the proposals or likely developments that might take place at some future date. I look at everything going on on Lot Two as conjecture. One thing that isn’t conjecture is that we are creating a nonconforming situation here with Lot One. So, given that there can be ways to extend that frontage, without impacting Lot Two greatly, I would come down as opposed to this application. Thank you. MR. STONE-Chuck? MR. ABBATE-Yes, thank you. I agree with Jaime. I’d also like to say that I also believe that property owners have certain inherent rights, and if the request of the property owners are not devastating to the community, that should be a major consideration. Now, this applicant has requested something that, in my opinion, would not produce any undesirable change to the neighborhood, or any detriment to nearby properties. I think that the benefit to the applicant is not only achievable, but in my opinion is feasible, in that going along with my philosophy that property owners have certain inherent rights. Now, the relief that he is requesting, in my opinion, someone mentioned in the order of 33 and one third percent, well, we could play all kinds of numbers games, but I think the applicant is requesting minimal to achieve his ultimate objective. Now, the effects on the neighborhood, in my opinion, there does not appear to be any adverse effects or impact on the neighborhood. Now, in terms of the environmental conditions, of course, as you know, that very well may be addressed by the Planning Board. Now, I agree with Chuck and Norm in that, in all probability, this could be considered self-created, but, then again, we must take into consideration is the request of the property owner so outrageous that it will have a devastating adverse effect on the community, and in this case, I don’t think it will, and I will support the application. MR. STONE-Okay. Allan? MR. BRYANT-Well, when I came to the meeting tonight, I kind of knew what you were trying to accomplish, just from looking at your survey and looking at the property, and basically I’m in favor of the application, but Mr. Stone brought up something that I don’t know exactly how the Board can address in a motion, but it’s relative to the future division of Lot Number Two, and what’s to say that that driveway that currently exists on Lot Number One not, at some later date, be moved over to the line and then Lot Number Two be divided into three lots? And all you have to get is a variance for 20 feet of road frontage, is all you need to create the three lots. Which is a palatable request. So, I don’t know how it can be addressed, by motion, but I’m in favor of it, until the Chairman brought up that possibility. MR. STEVES-Okay. I would state that the applicant would gladly impose that that other lot could be subdivided into no more than two lots. MR. BRYANT-Yes. If that were entered into the motion, I’d be totally in favor of it. MR. STEVES-Not a problem. MR. STONE-Joyce? MRS. HUNT-Thank you. While it is a 33.3% relief, the effect is going to be the same, whether we have one driveway on 300 and one on the second section, or whether she moves the lot line. So, because there wouldn’t be any different effect from granting the variance, even though I find, I really feel we shouldn’t grant a variance unless it’s really needed, I don’t see any problem with this, and I would vote for it. MR. STONE-Well, I’m glad I raised a couple of points, because I’ve certainly been thinking about this. Obviously, I don’t like to create a nonconforming lot. I mean, we’re taking, the applicant wants to make a 200 foot lot, where 300 is called for. There’s certainly plenty of opportunity to do that, to make it 300, it still leaves 330 feet road frontage with a single driveway. You can still get the one driveway and the two lots, and they’re both going to be an acre and a half, approximately. Am I right, or they’re going to be an acre? MR. STEVES-That would be correct, an acre and a half. MR. STONE-An acre and a half, so all in all, it’s going to take off about an acre. Going to take off 20. MR. STEVES-Then they’d be about an acre. MR. STONE-Yes, about an acre. Both going to be conforming. So, when, our job is to grant minimum relief, and that’s the only place I’m hung up on. I mean, I don’t think that, with a stipulation that you make, 16 (Queensbury ZBA Meeting 9/18/02) that there’ll only be two lots in there and there’ll be a shared driveway. That’s fine, and I certainly applaud the willingness to do that, but the question comes up to me, and I’ve been talking about this in my own personal conversation with friends, about the fact that our job is to grant minimum relief. Our job is not to be a rubber stamp, and that’s where I’m troubled, because I feel, you come in and the applicant says, well, I want 100 feet variance, I don’t care whether it’s 33% or if it’s 50%, if I was in the retail business, markup or something, however you can go with it, one hundred over two hundred, how they do it, but the point is to make two lots, to give what you say you’re willing to agree to, we don’t have to grant a variance, and I don’t know why I should, and the more I talk, I’m probably going to say no. MR. STEVES-And I agree with the statement that it could be two lots, still, as stated before and a couple of the other Board members have also stated, is that we would believe that they would make better lots being larger lots. MR. STONE-Better in what way? MR. STEVES-Width of the lot, character of the neighborhood up there. MR. HAYES-Aesthetically. MR. STEVES-Aesthetically. There’s a smaller existing home that can’t be expanded because of the setback. MR. STONE-I’m not talking about the one that’s there. MR. STEVES-I’m trying to come back to that. That existing house cannot be expanded because of the way it sits completely, almost completely within the road setback. So, therefore, that house should be on a smaller lot and the two lots that may come into play here that could conform or could accommodate larger homes in that area, with a lot of frontage on Ridge Road would stay more in character with the neighborhood than creating them as one acre lots. MR. STONE-Okay. I happen to live in an area of Town where deconstruction is rampant, where houses are being torn down, and I guess the word is trophy houses are being built, and I guess that always could happen here. MR. STEVES-That could happen here, but you’re talking about Lake George. MR. STONE-I said I lived, now you’re going. MR. STEVES-Okay, you didn’t say Lake George. In the Lake George areas, in the Glen Lake areas, and all those areas, yes, you have people that are coming up. I’ve done hundreds of surveys for these people in recent years, that are willing to spend $300,000 and $400,000 and tear it down. MR. STONE-Right. MR. STEVES-I don’t think you’re going to find too many people that are going to buy this house, tear it down and build a bigger house. It’s an existing smaller farmhouse. The sale price I’m sure she’s putting on it is not an exorbitant amount, and I don’t think you’re ever going to see that in this area. I could be completely wrong, but I don’t think that’ll ever happen. MR. STONE-Well, having said that, as I say, I’m only troubled, I’m troubled by the fact that we’re granting a variance where it’s not really necessary. That’s how I look at it, but the Board seems to be in favor of granting this variance. So I will call for a motion to approve. MOTION TO APPROVE AREA VARIANCE NO. 66-2002 DORIS FARRAR, Introduced by Paul Hayes who moved for its adoption, seconded by Charles Abbate: 1070 Ridge Road. The applicant proposes subdividing 4.03 acres with a pre-existing single family dwelling into two lots of 1.0 and 3.03 acres respectively. The relief that the applicant requests, the applicant requests 100 feet of relief for the one lot from the 300 foot minimum lot width requirement, which is arrived at by twice the minimum lot width requirement of the SR-1A zone, for a newly created lot fronting on a regional arterial road as per Schedule of Area and Bulk Requirements for the SR-1A zone, Section 179-4-030, and residential lots abutting collector and arterial roads, Section 179-19-020. The benefit to the applicant, the applicant would be permitted to subdivide this parcel in a way that would present the newly created lot with the maximum aesthetic value or possibly sale value, those two being largely the same, into the future, while retaining the farmhouse or existing house on Lot One as it is there currently. Feasible alternatives. I believe, in this case, the feasible alternatives are an important part of this test. I believe that, in this particular case, while the applicant could subdivide this property in a way to comply with the Ordinance, there are actually two different ways that that could be done, that the net result, or the result on the neighborhood or community, would be the same, in my opinion. The lots are drawn on a map for us, but for anyone that drove by this parcel in the future, there would be two driveways, and there would be two driveways whether 17 (Queensbury ZBA Meeting 9/18/02) conforming lots under an alternative plan were created or not. The applicant has been willing to stipulate that the subdivision will only be two more lots on Lot Two, at a maximum, and I think that that would be mandated anyway, because if there’s any wetlands at all, I don’t think there’s going to be enough density to do that by Code. Is the relief substantial relative to the Ordinance? I think it’s certainly moderate, and the Board members have, appropriately in my mind, brought up the fact that 100 feet of relief is not a small amount, but I do not believe that it is significant enough to be a major element of the test, this balancing test. I think that 33.3% of relief, it’s moderate. I don’t think it’s the controlling part of the test in this particular case. The effects on the neighborhood or community. As I had already pointed out, I think that the affects, in this particular case, would be very minimal. I think that we will have the same number of driveways, the same number of houses that we would have had even if feasible alternatives were employed in this particular case. I think there is actually, the case could be made for the fact that, by doing the subdivision in this manner and granting the relief as we are proposing to do, that the lots that would be created actually may be more of a benefit, in aesthetic value and placement of homes, to the neighborhood. I think there actually could be an improvement by approving as it is applied for. Is the difficulty self-created? I think it is. As the other Board members and myself have pointed out, certainly the applicant is proposing a plan that is in her best interest, and therefore it’s self-created, but analyzing those five parts of the test, I think that, in this particular case, the benefit to the applicant exceeds any, or if any negative impact on the neighborhood, in my mind, and I would move for its approval. I would be in favor that the approval of the motion be contingent on the applicant agreeing that Lot Two will be subdivided into a maximum number of two lots, not three, with a shared driveway. Duly adopted this 18 day of September, 2002, by the following vote: th MR. STONE-Are you agreeable with the stipulation that there’s two lots with the shared driveway? MR. STEVES-Yes. MR. STONE-I mean, I know the shared driveway would be Code, but the two lots. MR. STEVES-That would be fine. MR. STONE-Okay. AYES: Mr. Abbate, Mr. Hayes, Mrs. Hunt, Mr. Bryant NOES: Mr. Himes, Mr. McNulty, Mr. Stone ABSENT: Mr. Urrico MR. STONE-There you go. MR. STEVES-Thank you. AREA VARIANCE NO. 72-2002 TYPE: UNLISTED PYRAMID CO. OF GLENS FALLS PROPERTY OWNER: SAME AGENT: JONATHAN LAPPER ZONE: ESC-25A LOCATION: AVIATION MALL, AVIATION ROAD APPLICANT PROPOSES TO SUBDIVIDE A 56.72 ACRE PARCEL INTO TWO PARCELS (48.36 AND 8.36 ACRES). THE APPLICANT SEEKS FRONT AND SIDE SETBACK RELIEF (BOTH SIDES) FOR THE LARGER PARENT PARCEL. FOR THE SMALLER PARCEL, THE APPLICANT SEEKS REAR AND SIDE SETBACK RELIEF (BOTH SIDES), RELIEF FROM THE PERMEABILITY REQUIREMENTS, AND MINIMUM ROAD FRONTAGE REQUIREMENTS OF THE ZONING ORDINANCE. CROSS REFERENCE: SP 21-2001, SB 14-2002, SP 44-2002 WARREN CO. PLANNING: 9/12/02 TAX MAP NO. 302.05-1-92.1, 92.4/98-1-5.21, 5.23 LOT SIZE: TOTAL IS 56.72 ACRES SECTION: 179-4-030, 090 JON LAPPER & BOB ORLANDO, REPRESENTING APPLICANT, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 72-2002, Pyramid Co. of Glens Falls, Meeting Date: September 18, 2002 “Project Location: Aviation Mall, Aviation Road Description of Proposed Project: Applicant proposes to subdivide a 56.52-acre parcel into two parcels (48.16 acres and 8.36 acres) to facilitate a new major tenant’s requirement. Relief Required: The applicant requests 40 feet of relief from the 40-foot minimum front setback requirement, and 30 feet of relief from the 30-foot minimum side setback requirement, for both sides, for the larger parent parcel. For the smaller parcel, the applicant requests 30 feet of relief from the 30-foot minimum side setback requirement, for both sides, 30 feet of relief from the 30- foot minimum rear setback requirement, and 11.9% of relief from the 14.5% permeability requirement of the Schedule of Area and Bulk Requirements for the ESC-25A Zone, § 179-4-030. Additionally, for the smaller parcel, the applicant requests 40 feet of relief from the 40-foot minimum road frontage requirement, § 179-4- 18 (Queensbury ZBA Meeting 9/18/02) 090 (A). Criteria for considering an Area Variance according to Chapter 267 of Town Law: 1. Benefit to the applicant: The applicant would be permitted to accommodate the new major tenant, which as part of their lease agreement, is requiring ownership of the department store building pad and its associated parking lot. 2. Feasible alternatives: Feasible alternatives seem to be limited. 3. Is this relief substantial relative to the Ordinance?: For the parent parcel, 40 feet of relief from the 40-foot minimum front setback requirement and 30 feet of relief from the 30-foot side setback requirement, for both sides, may be interpreted as substantial relative to the Ordinance. For the smaller parcel, 30 feet of relief from the 30- foot minimum rear setback requirement and 30 feet of relief from the 30-foot side setback requirement, for both sides, may be interpreted as substantial relative to the Ordinance. 11.9% less than the minimum allowable permeability requirement of 14.5% may be interpreted as moderate to substantial relative to the Ordinance (82%). 40 feet of relief from the 40-foot minimum road frontage requirement may be interpreted as substantial. 4. Effects on the neighborhood or community: Minimal effects on the neighborhood may be anticipated as a result of this action. 5. Is this difficulty self-created? The difficulty may be attributed to the preexisting conditions of the Aviation Mall. Parcel History (construction/site plan/variance, etc.): SB 14-2002: to be reviewed 09/24/02, preliminary and final subdivision of the 56.52-acre parcel into two parcels (48.16 acres and 8.36 acres). SP 21-2001: 07/16/02, 70,429 sq. ft. mall expansion for new department store tenant. Note: numerous other BP, SP, and Variances for this site, but unrelated to this application. Staff comments: Minimal effects may be anticipated as a result of this action due to the technical nature of the variances needed in order to accommodate the new major tenant’s requirement. Should this application be approved and the Planning Board approves the subdivision, the two parcels will be subject to a deeded reciprocal easement agreement, which allows free access over each parcel for employees, customers, and delivery trucks so that the site will appear and operate as one parcel. SEQR Status: Type: Unlisted” MR. MC NULTY-“Warren County Planning Board Project Review and Referral Form September 12, 2002 Project Name: Pyramid Co. of Glens Falls Owner: Pyramid Co. of Glens Falls ID Number: QBY-02-AV- 72 County Project#: Sep02-32 Current Zoning: ESC Community: Queensbury Project Description: The applicant seeks area variances for subdivision of new anchor tenant building and associated parking. Site Location: Aviation Mall, Aviation Road Tax Map Number(s): 98-1-5.21 98-1-5.23 Staff Notes: The applicant requests a variance for a two lot subdivision where the parcel does not meet the requirements of the ESC-25A. The applicant is requesting that the new tenant will own the building footprint pad and t he associated parking as 8.36 acres. The remaining parcel would be 48.16 acres. The zoning requires a minimum of 25 acres. In addition the applicant requests zero lot line setbacks between the mall and the new tenant. The two parcels will contain reciprocal deed agreements for access over each parcel as associated with the mall business. The drawing shows the proposed subdivision. Staff does not identify an impact on County resources. Staff recommends NCI. County Planning Board Recommendation: No County Impact” Signed Thomas E. Haley, Warren County Planning Board 9/16/02. MR. STONE-Mr. Lapper. MR. LAPPER-Good evening. For the record, I’m Jon Lapper, and I’m with Bob Orlando, the General Manager of Aviation Mall. As has been reported, we’ve been working with the Planning Board for many months to get this site right for this tenant, and the tenant has made requirements, and one is to not be a tenant. That they want to own their pad and this area that’s designated with the parking lot, but, in terms of this Board and in terms of this site, the granting of this variance, while it is crucial to closing the deal with this major anchor, it will be imperceptible for the Town or the residents because of the reciprocal easement agreement. The site will absolutely function as one site, but it’s very important to the future viability and success of the Mall that we make this deal, and that’s why we’re here. MR. STONE-Okay. So if I want to go to the movies, I can still park in that lot? MR. LAPPER-There will be absolutely no change. In fact, they want you to go to the movies, but they want you to stop and buy something on the way in, and that’s how the Mall works that it’s shared parking concept, that everyone comes and goes to the various stores. So, while the zero setback relief would ordinarily seem like it’s substantial, in the case of the reciprocal easement agreement, for anchor tenants to own their own pad and obviously a small card store wouldn’t be granted this kind of a request by Pyramid, but this is what you do for the big guys, and that’s why we’re here. MR. STONE-I just have a question, because it has something to do with something else that I’ve been involved in, not officially. Normally, and, Craig, you can answer this, in any kind of progression, Zoning Board comes first, then Planning Board. MR. LAPPER-Because if you don’t get your variance, you can’t go to the Planning Board. MR. STONE-That’s what I mean. MR. LAPPER-So what would happen here is that, we were working with the tenant. We had originally had the building approved closer to Sears, because that was the location that was preferred, and when it all came down and we were in negotiations, this tenant has very, very specific requirements, including the grade of the 19 (Queensbury ZBA Meeting 9/18/02) parking lot, and when it got to that level, and they changed some of their tenant requirements, so we had to move the building to this location, move it inside the Mall, so we’re actually getting rid of some of the stores, and that’s why Kleins is being relocated, which is on next week. So the site plan was done. We then had to come for the subdivision. It wasn’t part of the deal, as we got the site plan finalized. Then that came up, and that’s why we’re here. MR. STONE-No, I’m not chastising the applicant in this particular case. I’m only saying, as I say, another thing that is actually on the board tonight in another town that I’ve been involved in, and there is a progression, and normally you go here, then you go to the Planning Board. I just wanted to be sure that I wasn’t being wrong. MR. LAPPER-And hopefully they’ll make that hotel look pretty. MR. STONE-I didn’t say anything about the hotel. Do you want to equate this to something else that we have considered? You may if you want. MR. LAPPER-Yes. This is very similar to the Home Depot request, similar size store. Also, it didn’t have the road frontage because it had the reciprocal easement. So, very similar to that. MR. STONE-And Staples, too. MR. LAPPER-And Staples, yes. I’m not going into detail about the specific variances because I think a general explanation is all the Board needs on this, but obviously we’re here to answer any questions. MR. STONE-Allan? MR. BRYANT-Is this, the entire project, an existing building? There is a part of an addition. MR. LAPPER-Let me show you. The entire, this will be the new anchor tenant. This part of it is in the existing Mall. So that line will be gone. That’s the Bon Ton entrance right now, which is going to be relocated. So this section where my fingers are is now tenant space, which is going to have to be relocated. That will get demolished. The pad will be poured right there. So it’s a combination of completely new building and demolishing and replacing part of the existing one. MR. STONE-By the Bon Ton entrance, you mean the one that has Bon Ton over the door? MR. LAPPER-Correct. MR. STONE-Even though it’s about a mile and a half to get to the Bon Ton store. MR. LAPPER-Exactly. MR. STONE-We won’t go there. MR. LAPPER-Okay. MR. STONE-Any other questions? MR. BRYANT-The reason I asked is because in the application, you talk about a half a million square foot existing building, and an addition, a proposed addition of 73, 74,000 square feet, but as I look at this drawing, I can’t see. MR. LAPPER-Those are the net numbers, starting to finishing, but actually this building is 125,000 square feet. So what you’re pointing out is that that 75, if you added to it the 50,000 that’s being replaced, you’d get to the size of the new store. MR. BRYANT-The new portion of it is? MR. LAPPER-Approximately 75. MR. BRYANT-And that is towards the parking lot? MR. STONE-Toward Aviation. MR. BRYANT-Or is that actually in the Mall? MR. ORLANDO-Let’s see if I can do this a little better. Once again, this is the existing Mall, and this line here shows the front of the Mall as it is today. We are going to take 55,000 square feet of space inside the Mall and demolish it and redevelop it as part of this new department store, and this is 70,000 square feet of 20 (Queensbury ZBA Meeting 9/18/02) additional building that we had approved previously. So it’s 55 on the inside, 70,000 on the outside, and a building footprint of about 125,000 square feet. MR. HAYES-Cumulatively. MR. STONE-Cumulatively. MR. ORLANDO-Cumulatively. MR. BRYANT-I understand now. In the application, when you did the existing square footage, you did the whole building? MR. LAPPER-Exactly. MR. ORLANDO-Yes, right. MR. BRYANT-I see. Okay. MR. STONE-So this means the restaurant that was going to go in is not going to go in there. That we’ve talked about for a while. MR. ORLANDO-That particular restaurant is not going to be coming in, but. MR. STONE-Well, I meant the one where the Ground Round used to be. That space is going to go folded into this. MR. ORLANDO-You are correct about that. MR. ABBATE-Are we in the area of speculation? Can we speculate what’s going in there? MR. STONE-Go speculate. MR. ABBATE-Well, should I speculate? This is a mammoth project, and we look forward, at least I look forward, to what we call the balancing act, and I can’t perceive anything but positive results in the event that we approve this application. Based upon all I’ve heard, the organization that’s coming in is a nationwide organization, and it would certainly have a positive impact, in my opinion, on the Town of Queensbury. I was going to address the issue that Allan did, but he did it so eloquently, in terms of the square feet, but now I understand what it’s all about, but the parking, the Chairman raised an issue. The parking apparently will be public parking, shared parking. Correct? MR. LAPPER-There’s no fences, no lines. You would not be able to tell who owns the land. It’s just the parking spot. MR. ABBATE-Okay. All right. Thank you very much. MR. HAYES-I have one question. Why is the parking in gray, though? MR. LAPPER-Because that is the site that was subdivided, by the Planning Board, subject to this variance. MR. HAYES-Okay. MR. STONE-They’re going to own that. MR. LAPPER-Some of these national retailers want to own just the footprint. This particular one wants the footprint and the parking field in front of their store. MR. HAYES-So that’s the difference from Staples, then, because like Staples just wanted. MR. STONE-Right. MR. LAPPER-Exactly, but it doesn’t matter to Pyramid because they just want the store there, and the parking lot will be available to them. The Mall will be maintaining the parking lot. MR. STONE-And Home Depot didn’t want the parking lot, either. MR. LAPPER-That was complicated because of the mortgage, because of the existing financing on that, adding parcels. They probably would have taken it. 21 (Queensbury ZBA Meeting 9/18/02) MR. STONE-But as you said, this is, in the strictest sense, this is a very technical thing. They want to own the land, and since it’s a separate, standalone parcel, then they need all these variances just to make it happen. MR. LAPPER-Right, and to follow up on what Chuck said, because of this national tenant who we’re expecting will be announced within 30 days, there are other retailers in the market that like to be near this one. So Bob is busy talking to other nice tenants, and this really should substantially help the Mall. It’s really important. They’ve been working on this deal for a while, and we’re right there. MR. STONE-Well, we obviously wish Aviation Mall well. As I think it was said, it would be an asset to the community to have it be even a better Mall than it is now or be a very good Mall. Any other comments anyone wants to make before I open the public hearing? MR. HIMES-Just one. The permeability, the same thing, right? MR. LAPPER-The site, overall, complies with permeability. This particular site, of course, won’t, but it means the other one will more than comply because you’re taking away the square footage. So if you look at the site as one site, which it is, regardless of where you draw the line, it will comply. MR. HIMES-Okay. Thank you. MR. LAPPER-Thank you. MR. STONE-There won’t be any stormwater going anywhere. MR. LAPPER-The stormwater plan is separate. The stormwater, you know, that’s another thing under the reciprocal easement agreement. So, yes. MR. STONE-Chuck? MR. MC NULTY-Yes. I’ve got a question. This does not indicate that I’m opposed to this project. MR. LAPPER-I’m glad to hear that. MR. MC NULTY-A couple of issues that I want to raise, more for the record than anything. One, as you’ve indicated, this is tending to become more common, this kind of a request. That then leads me to, I guess the rhetorical question for Staff and whoever else. At what point do we, instead, change the zoning, instead of continuing to give variances for this kind of an issue? This’ll be the third, if I’m remembering right, of this type. MR. LAPPER-Actually the fourth, because the CVS on Main Street also was granted that relief. MR. MC NULTY-Okay. So we’re getting a number of these kinds of requests, with good reasons behind them, fully understood, but I’m wondering if, at some point it strikes me that this issue ought to go back to Town Board and maybe look at a revision for malls or whatever to allow this kind of a transaction rather than continuing to give variances, because if we keep giving variances, we’re changing the zoning. MR. ABBATE-Chuck, I agree 100%. You make a good point, and that’s why I say I question the infinite wisdom of our current zoning, particularly as it pertained to our first applicant. Good point, sir. Well made. MR. MC NULTY-The second that bothers me a little bit is I know in the past we’ve made points to various neighborhoods and whatever that we pay no attention to covenants, deed restrictions, or anything else. The Town doesn’t enforce them, and yet in this kind of a variance approval, we are relying on that kind of deed restriction or covenant or whatever form it happens to take, in saying to us that even though we’re granting zero setbacks for these properties, the two properties are going to be operated as one. It strikes me that there’s a little bit of conflict there, not enough that I’m going to object to this proposal on this basis, but it strikes me as it’s an issue that needs some discussion at some point. MR. STONE-Craig, would you comment on that? MR. BROWN-Which one do you want me to start with? MR. STONE-The last statement. Well, both. Should there be a generic, if you will, variance, like a generic EIS? MR. BROWN-I don’t think that four requests for footprint variances for commercial projects out of 12,000 parcels in the Town really, I don’t know, I don’t think it tips the scale to change the Ordinance, and you don’t have to rely on the deed restrictions and covenants and cross-easements. You can certainly make that a condition of your approval, a condition of the Town approval is that you have shared parking, and if that doesn’t happen, then we have teeth. Our approval, your approval has some teeth. We don’t have to say, 22 (Queensbury ZBA Meeting 9/18/02) well, it’s a deed restriction and we can’t enforce it. I don’t think there’s a problem relying on the deed because I have no doubt that both the Mall and the tenant want to have that. There’s no question that it’s not going to be there in my mind anyway, but you don’t have to rely on it. You can always add a condition. MR. LAPPER-We’re certainly comfortable with that condition, because that is absolutely the only way this would work, and that certainly makes sense to put that in the record. MR. STONE-Okay. All right. MR. HIMES-Mr. Chairman, I’d just like to say that I support what Chuck has said, and I think that in, not, again, this case, but things like this, we oftentimes, I don’t know how many of us here on the Board really have the expertise to predict or to evaluate some of these technical things which the Counselor was very good at explaining in detail when we did the Staples one, certainly to my satisfaction, but I don’t put a great deal of reliance on my evaluation of that being good in terms of the overall Town benefit in the long range. That’s all. Thank you. MR. STONE-The question that I raise when I see something like this, that, if we grant it, can I sleep at night, and I think I can because of what we’ve been told, but, having said that, let me open the public hearing. Anybody wishing to speak in favor of this application? In favor of? Anybody opposed to this application? Opposed? Any correspondence? MR. MC NULTY-No correspondence. PUBLIC HEARING OPENED NO COMMENT PUBLIC HEARING CLOSED MR. STONE-Anything else? Then let’s talk about it. Let’s start with Chuck, over here. MR. MC NULTY-I can see all kinds of justification for this. In this case I think the benefit to the applicant and to the community is fairly clear. I see no real detriment, given the fact that the two properties will continue to operate as one, and so I’m going to be in favor. MR. STONE-Norm? MR. HIMES-Yes, thank you. I agree with what Chuck has just said, and my only qualification would be that, well, I would say that everything about this is good, in my opinion, and my only reservation is I don’t think I have the technical expertise to see whether there might be anything wrong with it. I don’t think there is. So I am in favor of the application. Thank you. MR. STONE-Chuck? MR. ABBATE-Yes, thank you. I believe that there will be positive effects on the Town of Queensbury, economically and opportunities. May I interject a slight bit of humor here, Mr. Chairman? MR. STONE-Are you sure it’s humor? MR. ABBATE-Yes, it’s humor. MR. STONE-Okay. MR. ABBATE-I’m wondering if we could put a stipulation here that this new client coming in would have a senior citizens day. MR. LAPPER-Goes without saying. MR. ABBATE-Okay. That was the humor. All done. MR. STONE-That’s it? MR. ABBATE-That’s it. MR. STONE-Al? MR. BRYANT-Yes. Having gone through the Staples and the Home Depot thing, and now this, I’m in favor of the application, but I do agree with what Mr. McNulty said, and even though this only the fourth application out of 12,000 parcels or whatever, I think the Town needs to set guidelines for this type of 23 (Queensbury ZBA Meeting 9/18/02) subdivision, because that’s what it is, so that tenants, future tenants, can come into the Town and know that this is what the Town expects in this type of subdivision, and not leave it up to the attorneys and the mall owners and all these other people. So I would like to see some direction in that regard, changing the ordinance or making a special ordinance relative to this type of subdivision, but I’m in favor of it. MR. STONE-Joyce? MRS. HUNT-Well, since minimal effects would be anticipated, and certainly the benefits are substantial to the Mall and to the Town, but I would like to see that easement agreement be part of the motion, contingent, that they share the parking and access for customers, employees and delivery trucks. MR. STONE-Okay. Jaime? MR. HAYES-I agree with most of the other Board members in this particular case. I think that the benefit to the applicant is very clear. This new anchor tenant for a commercial operation is a positive, and the Mall certainly can use that, and I think the effects on the neighborhood or community are tied into that. I think that the Mall is one of the centerpieces of the commercial real estate in the Town of Queensbury, and in this particular case, it’s going to be a positive effect. It’s a well designed plan. They’ve moved it around. The Planning Board has examined it, to quite a degree, and I think that this will have a positive effect on the Mall and that commercial area. So, on balance, I think that, with the contingencies on the reciprocal agreements, which will make everybody comfortable, even though it’s not hard to understand why this wouldn’t work without them, in any way, but I’m in favor of the application. MR. STONE-Well, I certainly concur. I would ask Staff, because of the, I’ll use the word “concerns”, I don’t think it’s really concerns, of the Board, that we do get a legal opinion of some nature on this. We’ve been doing a lot of talking, this past week, about legal opinions and so on, and I think this is one where we might be reassured by the Town Attorney that this is something that’s being done, not just by our Board, and not just by the Town of Queensbury, but this is, in fact, a good way of going. I’m certainly in favor of it because, I mean, I agree, we’ve done it before, and it certainly seems logical that, I don’t purport to understand the machinations of big business and why I’ve got to have my space, but I guess they feel they have to have their space and in this litigious world we’re in, I guess there’s probably some justification. I don’t know, but having said that, I certainly would vote for it. MOTION THAT A REVIEW OF THE SHORT ENVIRONMENTAL ASSESSMENT FORM SHOWS THAT THERE ARE NO NEGATIVE IMPACTS CAUSED BY THIS PROJECT WHICH IS BASICALLY TECHNICAL IN NATURE, Introduced by Lewis Stone who moved for its adoption, seconded by Charles Abbate: Duly adopted this 18 day of September, 2002, by the following vote: th AYES: Mr. Abbate, Mr. Himes, Mr. McNulty, Mr. Hayes, Mrs. Hunt, Mr. Bryant, Mr. Stone NOES: NONE ABSENT: Mr. Urrico MOTION TO APPROVE AREA VARIANCE NO. 72-2002 PYRAMID CO. OF GLENS FALLS, Introduced by Charles Abbate who moved for its adoption, seconded by Joyce Hunt: Aviation Mall, Aviation Road. The applicant proposes to subdivide a 56.52 acre parcel into two parcels, 48.16 acres and 8.36 acres, to facilitate the new major tenant’s requirement. The relief that the applicant is seeking, the applicant requests 40 feet of relief from the 40 foot minimum front setback requirement and 30 feet of relief from the 30 foot minimum side setback requirement for both sides, for the larger parent parcel. For the smaller parcel, the applicant requests 30 feet of relief from the 30 foot minimum side setback requirements for both sides, 30 feet of relief from the 30 foot minimum rear setback requirements, and 11.9% of relief from the 14.5% permeable requirement of the Schedule of Area and Bulk Requirements for the ESC-25A zone, Section 179-4-030. Additionally, for the smaller parcel, the applicant requests 40 feet of relief from the 40-foot minimum road frontage requirement, Section 179-4-090 (A). The benefit to the applicant, the applicant would be permitted to accommodate the new major tenant, which as part of their lease agreement, is requiring ownership of the department store building pad and its associated parking lot. Feasible alternatives. The feasible alternatives seem to be extremely limited. Is this relief substantial relative to the Ordinance? For the parent parcel, 40 feet of relief from the 40-foot minimum front setback requirement and 30 feet of relief from the 30-foot side setback requirement, for both sides, may be interpreted as substantial relative to the Ordinance. However, we have discussed the situation which perhaps the Town should be re- addressing this issue. For the smaller parcel, 30 feet of relief from the 30-foot minimum rear setback requirement and 30 feet of relief from the 30-foot side setback requirement, for both sides, may be interpreted as substantial relative to the Ordinance. 11.9% less than the minimum allowable permeability requirement of 14.5% may be interpreted as moderate to substantial relative to the Ordinance (82%). 40 feet of relief from the 40-foot minimum road frontage requirement may be interpreted as substantial. What are 24 (Queensbury ZBA Meeting 9/18/02) the effects on the neighborhood or community? In my opinion, Mr. Chairman, there would be nothing but positive effects on the neighborhood and community as a result of any approval. Is this difficulty self- created? The difficulty may be attributable to the pre-existing conditions of the Aviation Mall, and I have a stipulation, Mr. Chairman. I would like to also stipulate that the applicant agrees that the parking will, in effect, be public parking, customers, employees and delivery trucks, and not reserved strictly for the anchor tenant. In view of that information, I respectfully request that Area Variance No. 72-2002 be approved. Duly adopted this 18 day of September, 2002, by the following vote: th AYES: Mrs. Hunt, Mr. Bryant, Mr. Abbate, Mr. Himes, Mr. McNulty, Mr. Hayes, Mr. Stone NOES: NONE ABSENT: Mr. Urrico MR. LAPPER-Thank you. AREA VARIANCE NO. 77-2002 TYPE II ROBIN INWALD PROPERTY OWNER: SAME AGENT: JONATHAN LAPPER ZONE: WR-1A, CEA LOCATION: CLEVERDALE ROAD APPLICANT PROPOSES TO CONVERT THE DOWNSTAIRS OF AN ALREADY EXISTING TWO-STORY BARN INTO A ONE-BEDROOM (2,182 SQ. FT.) SEASONAL APARTMENT AND SEEKS RELIEF FROM THE FOLLOWING REQUIREMENTS OF THE ZONING ORDINANCE: ONLY ONE SINGLE-FAMILY DWELLING IS ALLOWED ON EACH LOT IN THE WR ZONE. CROSS REFERENCE: BP 96-445 (REPLACE FOUND. UNDER BARN), BP 91-712 (DEMO OF COTTAGE) ADIRONDACK PARK AGENCY WARREN CO. PLANNING: 9/12/02 TAX MAP NO 227.17-1-12/12-3-26.21 LOT SIZE: 2.3 ACRES SECTION: 179-4-010 C6 JON LAPPER, REPRESENTING APPLICANT, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 77-2002, Robin Inwald, Meeting Date: September 18, 2002 “Project Location: Cleverdale Road Description of Proposed Project: Applicant proposes to convert the downstairs of an already existing two-story barn structure into a 2,182 sq. ft., one-bedroom, seasonal apartment. Relief Required: Applicant requests relief from the one single-family dwelling per lot requirement for Waterfront Residential Zones per § 179-4-010 (C6). Criteria for considering an Area Variance according to Chapter 267 of Town Law: 1. Benefit to the applicant: Applicant would be permitted to convert the existing barn into a seasonal single-family dwelling. 2. Feasible alternatives: Feasible alternatives include subdividing the parcel to allow for the proposed barn conversion to a seasonal dwelling; however, it appears as though some relief from the ordinance would be needed for a subdivision because of the location of the barn relative to the existing dwelling. 3. Is this relief substantial relative to the Ordinance?: An additional single-family dwelling in a residential zone where only one single-family dwelling per lot is allowed might be considered substantial relative to the Ordinance. 4. Effects on the neighborhood or community: Minimal to moderate effects may be anticipated as a result of this action. 5. Is this difficulty self-created? The difficulty may be interpreted as self created. Parcel History (construction/site plan/variance, etc.): BP 96-445: approved 07/19/96, replace foundation under barn. BP 91-712: approved 10/04/91, demolition of cottage. Staff comments: Minimal to moderate impacts may be anticipated as a result of this action. The applicant proposes the conversion would only be to a one- bedroom dwelling. However, the septic system design allows for the future expansion to three bedrooms, which would be a much greater impact than the project proposed. Consideration might be given to conditioning any approval to no further expansion. SEQR Status: Type II” MR. MC NULTY-“Warren County Planning Board Project Review and Referral Form September 12, 2002 Project Name: Inwald, Robin Owner: Robin Inwald ID Number: QBY-02-AV-77 County Project#: Sep02-31 Current Zoning: WR-1A Community: Queensbury Project Description: The applicant proposes to convert the downstairs of an already existing two-story barn structure into a one bedroom seasonal apartment. The applicant requests a variance for a secondary residence in the waterfront zone. Site Location: Cleverdale Road Tax Map Number(s): 227.17-1-12 Staff Notes: The applicant requests a variance for the conversion of an existing barn into a secondary residence. The parcel is 2.38 +/- acres in the WR-1A zone that allows for one principal structure per lot. The applicant has indicated that it would be too expensive to subdivide the parcel and awkward due to the location of the building. The proposed septic system would accommodate up to three bedrooms in the converted barn. The existing home has its own dedicated septic system to the front of the home. The drawing shows the buildings on the property. Staff recommends discussion requesting the applicant provide information about how the new home will be accessed and the future expansion from a proposed one bedroom to a three bedroom home. County Planning Board Recommendation: No County Impact with Stipulation The applicant provided information about access to the new home and future expansion from a one bedroom to a three bedroom home. The board recommends No County Impact with Stipulation that the applicant utilizes the existing curb cut.” Signed, Thomas E. Haley, Warren County Planning Board 9/16/02. 25 (Queensbury ZBA Meeting 9/18/02) MR. STONE-Mr. Lapper. MR. LAPPER-For the record, Jon Lapper. Very simply, Mrs. Inwald has 2.3 acres. So that one principal dwelling or building per lot is a density requirement, and here she has a whole host of options if she wanted to maximize the development of this parcel. It could be subdivided, and a very large house, as the Chairman mentioned before on another application, what’s going on on the lake. This, of course, isn’t a lake frontage lot, but it’s near the lake on Cleverdale. The 22% Floor Area coverage on a one acre piece or you could do 1.3 acres and still have a one acre piece, but that would allow a very large house, you know, six, seven, eight thousand square feet would still be within that 22%. So if somebody was trying to maximize the development, do the subdivision sell the parcel, and somebody could build a large home here. All she’s trying to do is to renovate the downstairs of the barn, interior renovations, so that she can have more bedrooms for when the family comes to visit in the summer. There are all sorts of what ifs here, like the County asked with the driveway. There’s no intention of doing anything separate, of making this a separate parcel. There’s no intention of a separate driveway. It’s just to use what’s there now and create more bedrooms. Another alternative would be that she could add on to the back of her house to add some bedrooms or a bedroom there, but again, that would be adding more building to the site. That would be more expensive because she’d be doing foundation and creating a new building, rather than just interior work, but from the neighbor’s perspective, that would be adding building mass, and all she’s trying to do is use the downstairs of this barn, which already exists. So I know that the Board is very sensitive to additional development on the lake, but here she’s got more than enough land to do the two principal buildings, 2.3 acres, and I believe this is a very minimal proposal that won’t have any negative impact on the neighborhood. MR. STONE-The first comment I wrote down here, it’s nice to see a conforming lot. We don’t have too many. MR. LAPPER-How rare. MR. STONE-How rare. The other thing is, you coin a word, or at least the applicant does, and I suspect you wrote it. Please define “seasonal”. It doesn’t exist in the Code. MR. LAPPER-I think all she’s, Craig, do you remember how we discussed that? MR. STONE-Is this going to be heated? MR. BROWN-The building code, and if I could, what we do for, the Town Board has taken the position that when somebody wants to have a holding tank septic system, those are only allowable for seasonal dwellings. MR. STONE-Correct. MR. BROWN-And the determination is made that a seasonal dwelling is one that’s only occupied for a limited time during the year, and there’s no permanent heating system in the house, so, you know, a wood stove, a fireplace doesn’t count as a permanent heating system. Electric heat, you know, fuel oil, gas heat, those types of systems are permanent heating systems. If this building does not contain one of those, it’s not classified as a permanent year round dwelling. It’s considered seasonal. MR. STONE-Does it contain heating? MR. LAPPER-I don’t have an intelligent answer, and unfortunately Robin’s in Philadelphia today. I think that what she intended was just that if her family comes to visit in the summer, and I guess for all the reasons why I think that, and hope the Board agrees, that this is a minimal application, I would probably like to withdraw that and just say that, give her the option of heating that, so that it would be three seasons. I just don’t know if that’s important to the Board. MR. HIMES-That’s what I would think. Why go to all this and limit it. MR. LAPPER-Right, why restrict it. MR. STONE-Yes, but I just want to be sure that we’re talking about a second dwelling, a complete dwelling, with heat, with bathroom facilities and all that. MR. LAPPER-I’m going to strike that word, because I think it’s smarter, if it’s okay with the Board. MR. STONE-Okay. Address, you talked about it. Can you, help me with why not subdivide? MR. LAPPER-Because she’s not trying to do much. She wants to get a bedroom so that when the brothers and cousins come to visit, there’s a place to put them. If she was looking to do a development deal, I mean, most people would be trying to subdivide to maximize the value, so they now, or at some time in the future, had something to sell, and she’s not trying to sell, and even if she were ever going to, if some future owner 26 (Queensbury ZBA Meeting 9/18/02) were going to subdivide, you’re never going to put a line between the house and the barn. I mean, that’s not going to happen. So the intention isn’t to create something to sell. MR. STONE-Why? Why can’t it, we gerrymander election districts. Why can’t we gerrymander a lot? MR. LAPPER-Simply, I guess, some day, if something was going to happen, I mean, what’s there is not incredibly valuable, somebody might come in and knock everything down and, you know, and build something new, but she’s just trying to work with what she’s got. MR. STONE-I ask that question knowing that if that was a suggestion that we went to, there would be some setback variances required. MR. LAPPER-Right. MR. STONE-I recognize that, but I just wanted to get it on the table. MR. LAPPER-Even looking at the location of the septic field, I mean, that’s in, it’s farthest from the lake. It doesn’t, it was put there to keep as many trees. I mean, there’s nothing else going on here. She doesn’t have any future plans to do anything else with this. It just wasn’t designed, because it if was going to be, it would be designed differently, if you were going to try and preserve. MR. BRYANT-Let me ask you a question. Unless my arithmetic is wrong, all of your square footages are incorrect on the application. MR. LAPPER-That’s possible. MR. BRYANT-But, you know, they’ve got 261 square feet for the footprint of the house, and I figure about 2600 or 2300. MR. LAPPER-Okay. I’m going to admit that my young associate did this while I was on a week vacation this summer. MR. BRYANT-You’ve got to tell them where the decimal point goes. MR. BROWN-There should be some revised. MR. LAPPER-I think that’s exactly what happened. The Town Planning Staff caught it, and when I got back, we submitted some, a revised floor area, or site data page. That’s what happened here. So you might not have the new one. So I have to apologize. MR. BROWN-You should have them all. MR. STONE-We got a bunch of. MR. ABBATE-I don’t think so. I could be wrong. I’ll double check, but I think I have. MR. STONE-I’ve got n/a, n/a, n/a. MR. LAPPER-I’m sorry, and the only issue there was that the building was pre-existing. MR. ABBATE-We don’t have it, Craig. MR. BRYANT-On the site development data and also on the FAR worksheet. MR. LAPPER-Yes. I think that we considered the setback and permeability. MR. BRYANT-It’s not important. All I want to know is, and it doesn’t really state in the application any place, she’s looking for another bedroom. How many bedrooms does she have in the main house? MR. LAPPER-Three. MR. BRYANT-Three. How many people are in that family? MR. LAPPER-She was talking to me today on the phone about the brother and the four cousins and another brother. MR. BRYANT-No, I mean with her, normally. 27 (Queensbury ZBA Meeting 9/18/02) MR. LAPPER-I think that she’s on her own, but when everyone comes for the summer, it’s the lake. So, the usual. MR. STONE-She doesn’t have lake access. MR. LAPPER-She doesn’t have lake access. Correct. Craig’s got it up on the board. MR. STONE-Yes. That’s the first time I really noticed it when he put it up on the board. I see, I do have a drawing here of that, but I didn’t appreciate it I guess, until I saw the yellow. MR. ABBATE-She has no intentions of subdividing, you said? MR. LAPPER-No. Is that correct? Of course that would be positive for Cleverdale. MR. LAPPER-Yes. I can’t tell you that some future owner, or her, in 20 years, might not. She has no intention, now, of doing it. MR. ABBATE-Make sure I understand this. What we see is what we really get. We’re just talking about a modification on the interior portion of that structure. Am I correct? MR. LAPPER-That’s exactly right. MR. ABBATE-And nothing else is going to change? MR. LAPPER-No, and the leach field will be added, underground. MR. HIMES-It’s pretty big for a one bedroom. MR. LAPPER-Staff pointed that out, and I wasn’t involved with Tom Nace in designing this. I presume it’s just a small septic tank, and it doesn’t cost a lot to put in the trench. So he probably just over-designed it. I mean, there’s nothing else to that. MR. HIMES-The inside. MR. LAPPER-No, I’m talking about the septic tank. MR. HIMES-No, the inside, the apartment or whatever you want to call it. MR. LAPPER-Yes, very. It’s a studio apartment. MR. HIMES-Well, it’s big for one bedroom. MR. BRYANT-That’s not, by any stretch of the imagination, a studio apartment. You never really lived in a studio apartment. MR. LAPPER-We have the drawings. MR. HIMES-I was just curious. It’s not really. MR. LAPPER-She talked about a studio for pottery type stuff and a living room, but it’s not. MR. HIMES-It’s got two bathrooms, for example. MR. LAPPER-Yes. MR. HIMES-Both with baths. MR. LAPPER-For visitors. MR. HIMES-But I mean, in the one place with one bedroom, and two bathrooms and one. MR. LAPPER-All I can say is that’s what she wants. There’s no hidden agenda. It’s just. MR. HIMES-I was just curious. MR. LAPPER-That’s what she had designed. MR. STONE-When did she buy this? 28 (Queensbury ZBA Meeting 9/18/02) MR. LAPPER-A long time ago. MR. STONE-Well, in ’89 it was owned by John McCall and Paul Arends. So, I don’t know what a long time is. MR. HIMES-I mean, it’s got a bathroom that’s accessed from the living room. The dining room and family room. AUDIENCE MEMBER-90. MR. STONE-90, was it that long ago? Okay. MR. LAPPER-It sounds like somebody may know more than me. MR. HIMES-Doesn’t that seem funny to anybody, the way you access the bathrooms? It’s just curious to me, but I wonder. MR. LAPPER-You’re right, it’s no studio. MR. HIMES-How this would be laid out to be a one bedroom apartment, as big as it is. It’s just a curious to me. I mean, it’s not my prerogative to say that somebody can’t have these things the way they are, but. MR. LAPPER-She hired a good designer, Howland Construction, to do this. I wasn’t at all involved in that, but this is exactly what she wants. MR. HIMES-I don’t expect you to answer some, I’m just making the comments. MR. STONE-Can you comment on the future expansion to three bedrooms, which Staff notes cautions us to think about? MR. LAPPER-What I would say is that this is what she’s asking for, and you can stipulate that there’ll be no additional expansion, and if somebody wanted to expand, they’d have to come back and talk to the Board. If she wanted three bedrooms, I would have come in and asked for three bedrooms, but she just said, this is what she wants to do. MR. STONE-Okay. MR. BRYANT-How would the Zoning Administrator, or anybody else, know, for that matter, at a later date? I mean, this is a fait accompli. Once the ground floor is done, you can do anything that you want in the building. MR. LAPPER-Well, I mean, the simple answer. MR. BRYANT-You’ve got two bathrooms, a giant family room. I mean, how do we know? MR. LAPPER-The simple answer is it would violate a condition, and mostly what happens is that your neighbors see that there’s trucks pulling up with lots of guys with hammers and somebody’s going to find out about it. MR. ABBATE-It doesn’t also include that it might reflect on the integrity and reputation of Counsel. MR. LAPPER-No. I am absolutely not aware of any plans other than this. You can tell I wasn’t intimately involved in the planning of this, but this is what she came in, we met with Craig, and this was her plan. MR. HIMES-I, again, would just like to say, and I recognize your position being without the applicant here and not having had maybe a lot of detailed discussion with the layout inside, but I would feel a lot more comfortable having the applicant explain what is going on with all this space, and why things are the way they are. This family room and all and the kitchen, it’s just got two words, “family room” and below it, kitchen. It just, I would feel (lost words). MR. LAPPER-I was surprised that she wasn’t going to be here. She’s out of town, and I told her that the Board might want to hear from her, and if that, I certainly, you know, she’d like to get it in this season, but it’s the Board’s prerogative if you’d like to hear her give you answers that I don’t have, then the answer is that we’ll table it and keep the public hearing open and I’ll bring her back next month. MR. ABBATE-Yes. I’d like to speak to the applicant direct, quite frankly, because I think he raises some very, Norm raises some very valid questions. 29 (Queensbury ZBA Meeting 9/18/02) MR. LAPPER-Sure. I don’t have the answers on design. So that’s absolutely your prerogative, and I asked her to be here. MR. STONE-All right. Well, are there any other comments before I open the public hearing? If the feeling, at least I hear two people who’d like to table it. MR. ABBATE-How do you feel about it? How do the rest of the Board members feel? MR. HAYES-I think it’s a great idea. MR. STONE-I think everybody would like to. MR. ABBATE-Just let me write it down as a great idea. MR. STONE-Okay. I’m going to open the public hearing. I don’t know if anybody’s here, but anybody who wishes to speak in favor of this application? In favor of? Anybody opposed to this application? Come forward, sir. PUBLIC HEARING OPENED STEVEN OWEN MR. OWEN-Good evening. My name is Steven Owen. My mother, and by the way, you should have three objectionable letters in the file. MR. STONE-Objectionable letters? You mean letters objecting. MR. OWEN-Well, I know that my mother, objectionable, that’s right. You never know how it’s going. I know that you do have them because my neighbors came to my house before I came here and they had very much concerns. MR. STONE-Okay. No, we’ll read them after. MR. OWEN-First of all, Mr. Lapper is a little bit confused in what Robin’s intentions are here, because she told me personally she has full intention of using this for a rentable because she wants to help with her cost for owning this place. So she told me she intends on renting this. That is her intention. She owns another house also alongside of this house. So, if she’s doing this for her family, she has a three bedroom cottage that she also owns over there that she could use for her family. MR. STONE-Could you point out which one it is? MR. OWEN-Her mother owns, she owns what I believe is this cottage here. Her mother owns this. My family and I, we own this. We also own this. Now I know that she rents this out now, and she personally told me that she intends on renting this, and we also own apartment complexes for one of our businesses. We’re also developers, and we’re also a management company. I own, literally, hundreds of apartments, and not one, one bedroom do I own is 2200 square feet. So it’s hard for me to believe that you’re building a one bedroom at 2200 square feet. One of my major concerns is several things. First of all, last week, I saw a couple of gentlemen standing outside of her wood frame barn there, and that had a lot of problems with Robin and entering through my driveway, which comes down along her property line, and into that wood barn is the only access easily accessible to that wood barn is through my driveway, and when we bought our house, back in the early 80’s, from Ralph Shonehair, and our house was built in 1845. So when we bought our house, Ralph had a lifetime usage of this barn, and Ralph is a very nice gentleman. So he used that barn, which he and Robin were continuously fighting over. MR. STONE-Sir, we don’t want to get into personalities. MR. OWEN-And he passed away. So when I came over there, and what the problem is, is that this leach field that they are proposing, that ground there, because I just ran a row of trees down there, is wet. So that entire leach field has to be above the existing ground level. So you’re talking 48 inches anyway, above that, which is going to create a severe water problem for our driveway and our property, and I have a feeling that this leach field would probably also perc and come out because there is no ground absorption there. So I know that it will have to all be built in sand. MR. STONE-That again, that’s a Planning Board issue, when the time comes for their discussion, not that we’re not interested, obviously, but it doesn’t come into our purview, in terms of a variance, although we ask questions about it sometimes. MR. OWEN-Well, it is strictly a one family usage, and that’s what we’re requesting it to remain. I don’t believe there’s an actual use or need for her to have this particular property, and I also know that all of our 30 (Queensbury ZBA Meeting 9/18/02) neighbors around us agree, Mr. Faulkner, who’s an attorney there, the that live right where the asterisk is now, also she came over. MR. STONE-We appreciate your comments about what you think they think. MR. OWEN-You have letters. MR. STONE-If we have letters, we’ll read them in. MR. OWEN-You do have letters. They both came to me and said that. MR. STONE-Okay. MR. OWEN-And they’re also concerned with how this leach field will be draining onto this property. MR. STONE-So your concern, just to summarize, you’re concerned that you have at least heard from the applicant that she intends to rent this thing, and that it’s a very large apartment for a one bedroom, per your experience. That’s basically what you’ve said. MR. OWEN-And I also know that leach field is going to create problems on our land. MR. STONE-Okay. MR. ABBATE-And again, Mr. Chairman, that’s why I support having the applicant here to ask these kinds of questions. MR. STONE-Absolutely. MR. ABBATE-Thank you. MR. STONE-All right. Anybody else wishing to speak in opposition? Would you read the correspondence in? MR. MC NULTY-Okay. We’ve got four letters. First one is from a Ronald L. Faulkner. He says, “Please be advised that my wife and I are property owners on Gunn Lane, and abut Ms. Inwald’s property. Ms. Inwald’s primary residence on the subject property is a very large year-round residence, more than adequate to meet the needs of her family. Additionally, Ms. Inwald has already created a music studio in the barn for the use of her children which is not at all offensive. However, to now wish to create a 2,182 sq. ft. apartment, whether seasonal or not, leads my wife and me to no other conclusion except that it is intended for commercial purposes. Soon to follow will be a request to the proper authorities for permission to construct a dock or boathouse to accommodate the tenant occupying the contemplated apartment. Ms. Inwald also owns a two story residence diagonally behind our property which she rents to others and which are contiguous to a row of seasonal camps owned by Harry Rucker which he also rents out by the season. WE DO NOT NEED FURTHER COMMERCIALIZATION or creation of the opportunity for further commercialization in our neighborhood! My wife spent the entire summer at Gunn Lane and not once did Ms. Inwald mention this plan to my wife or, as far as I can determine, to any of our neighbors, such as she did when she created the music studio. As so often happens, applications such as this are not brought on for hearings by the applicants during the summer months but rather when those entitled to have notice have returned to their winter homes and find the journey to attend a hearing a true hardship, if not impossible. I believe such to be the case here. I am scheduled to be in two different courts the evening this matter is scheduled for a hearing and my wife is reluctant to drive alone all the way from our home to Queensbury to perhaps arrive back at our home well after midnight (which has happened to us on two previous occasions). I therefore am respectfully asking that this letter serve as our voices at the hearing and be read into the record showing our strong disapproval of the application. Respectfully, ROLAND L. FAULKNER” Another letter signed by Leigh Phillips Beeman. She says, “I am a property owner to the south of the Inwald property, and I have several concerns regarding the application for substantial relief from Zoning Ordinance restrictions in the WR zone in this densely populated part of Cleverdale. My concerns are as follows: 1. The proposed seasonal apartment could be used as rental property. 2. Applicant has planned for a one-bedroom seasonal apartment, but according to NY State building code the proposed living room, office and dining room can also be considered bedrooms. 3. A second level might be added later. 4. Increased lake use is always an issue. That is why only one single family dwelling is allowed on each lot in this zone. Another family might mean another boat and I would not want to see another boat added to the docks already in place on the shore of this property. In order to protect the lake from overuse, The Lake George Association stands firmly in opposition to such “funnel development”. For the above reasons I oppose the granting of a variance for this project. Sincerely, Leigh Phillips Beeman Sunnyfields Lane Cleverdale, NY 12020” Another letter from Robert H. Yanney. His address is 34 Gunn Lane, Cleverdale. “As Gunn Lane property owners directly in front of the Inwald property, we feel that to convert a 2,182 sq. ft. area in a barn into a huge apartment with more square foot area than the average house around here, is a little much and raises many questions on its intended use. Ms. Inwald already has a rental cottage as well as a very large house on this property and 31 (Queensbury ZBA Meeting 9/18/02) therefore is not likely to need a 2,182 sq. ft. apartment for her own use. It is therefore expected that this apartment would likely be used for commercial/rental purposes. If this were to happen, then the need for use of dock space could then be a big problem since Ms. Inwald only has the use of a right-away dock that goes with her property and that dock is right next to ours. So there could be a problem with boat docking, etc. We were here all summer and Ms. Inwald never made mention of this to us. We didn’t hear about this until after she left for the summer, and with very short notice before the meeting. On Sept. 18, I’ll be at th home in Connecticut and won’t be able to attend the meeting. Therefore, for the record, we want to express our disapproval for this application. Sincerely, Robert H. Yanney” And we have a letter from Amelia Lupe Owen. She says, “I am objecting to this variance. This is a single family residence and should stay that way. We have enjoyed 29 years of single family living without rental problems and would like it to remain that way. We pay approximately $17,000 per year taxes and the only thing we get for this is peace and quiet. We expect it to remain. As far as the septic system, we do not want it to abut our property for obvious reasons. The area they want to put this septic system is in a very wet area and if it were to be raised 4 feet or more up, we would have major water problems along with the septic run off and smell. We would certainly hope the Town would not allow this. Ms. Inwald already has a rental cottage north of her existing home. This is a single family dwelling and should stay a single family without any options. Sincerely, Amelia Lupe Owen” MR. STONE-That’s it? MR. MC NULTY-That’s it. MR. STONE-All right. We have two or three alternatives. MR. LAPPER-Well, I think I should just make a couple of comments in response to those. MR. STONE-Go ahead. Well, I haven’t closed the public hearing because I want to present some options to the Board, but, go ahead. Let me temporarily close the public hearing, with the option of opening, so you can comment on what you’ve heard. PUBLIC HEARING CLOSED MR. LAPPER-I want to just make a couple of comments. Obviously, this is not a case, as usual, where I am completely up to speed on all the facts, but I met with Robin and we met with Craig. We had a pretty simple discussion. I spoke to her as recently as late this afternoon, when she told me her intention was to us it for the family. The gentleman from next door talked about the suitability for a leach field, and I’m looking at Tom Nace’s soil data which says mottling at 32 inches. So that would not mean a 48 inch mound. It might mean a foot, but, no big deal, it’s far from the lake, but in general, the only thing I want to leave the Board with, before we table it, is that even if her intention was to rent it, which I’m certainly not aware of, that this lot with 2.3 acres allows her a lot of development rights, and what I started with, before we heard the comments, the neighbors want to keep everything the way it is, and all neighbors want to keep everything the way it is, but she could put a large house on this property. If she owns a house next door, that I also wasn’t aware of, that she rents, I mean, if she rents it out, then it’s not available for her family. So that makes perfect sense, but in terms of single family use, isn’t effected by ownership or rental. It’s still the single family use. So this lot allows her the option to have two pretty good size houses on Cleverdale if that’s what she wanted to do. This is certainly not an application to maximize development, to maximize income, and I’d like to leave you with that, and I’ll bring her back next month, and she can answer your questions. MR. STONE-Well, that is an option before us. We can also, if the Board is so inclined, vote on it. I don’t know what the questions that the Board has, or whether they’re serious enough to, if they don’t get the proper answer they would deny it, or they can deny it now or they can approve it. I mean, I’m perfectly willing to table it. Does that seem to be the feeling, or is there strong feelings that they don’t like it or they do like it? Why don’t we just talk about it before we, so that, again, if we do table it, the applicant will know where we’re coming from, and we can go along that way. So, let me, since we’ve heard the whole thing and we have heard a lot from the public, let’s just start with Norm. MR. HIMES-Okay. Thank you. I think that, to be fair, that tabling it would be good. The applicant might be able to clear up some of the things that we’re wondering about, and add a little more information about the interior of the apartment, why it’s laid out like it is. Secondly, we have Mr. Owen, I think that was his name, who spoke previously. I don’t know if he’d qualify as an expert, having said that he has many apartments and so on and so forth. It sounds like he may be in the construction business and whatnot. So his comments about the leach field and this and that and the other, maybe those could be dealt with by the applicant, or I think Counselor was looking at some technical material there regarding the leach field, for example. So I think we, even though that is, again, not in our area to worry about, or do more than worry about, in connection with the application, I think that tabling this so that we get a lot more information would be my feeling. Thank you. MR. STONE-Okay. Chuck? 32 (Queensbury ZBA Meeting 9/18/02) MR. ABBATE-Yes, thank you. In fairness to the community, as well as to Counsel and his client, I just want to make sure that Counsel understands that we are well aware of the fact that we based our information on objective and reliable evidence, and we don’t base our decisions on speculative community fears, and I think the Second Department holds that findings correct. MR. LAPPER-Certainly. MR. STONE-So? MR. HIMES-Do you want to table it? MR. ABBATE-Yes, I’d go for a tabling. I think that’s fair to everybody. MR. STONE-Okay. Well, sometimes I try to table it you guys jump all over me. Allan? MR. BRYANT-Yes. I think, in fairness to the applicant, I think that it should be tabled. Because we should have, an individual should have the opportunity to express her ideas and her intentions to the Board. Frankly, though, when I look at the size of the apartment, and I look at some of the negative remarks, you know, from the neighbors, and I understand that the applicant can subdivide the property and do all kinds of things with it. Maybe that’s the direction that the applicant should take. Because, from the size of the apartment, it looks like it’s a lot bigger than a one bedroom apartment. So I’d like to hear from the applicant. MR. STONE-Joyce? MRS. HUNT-Yes. I agree. I would like to hear from the applicant. I am concerned, too, about the layout that could very easily be made into three bedrooms, but I would like to hear from the applicant. MR. STONE-Okay. Jaime? MR. HAYES-I agree. I mean, I think this is a very close issue. I think that Board members have identified that fact, and I’m not sure that theirs or my concerns are going to be overcome without full information on this particular matter. So I think we should hear from the applicant directly. MR. STONE-Okay. Chuck? MR. MC NULTY-I won’t object to tabling, but I’m not necessarily in favor of it either. My general reaction is, this is way too much. I see no justification for allowing a second dwelling on one piece of property, and in general, my feeling is the applicant could have been here or could have asked for a postponement if she knew she couldn’t be here. It was her choice not to be here, but, nevertheless, that being said, I won’t object to a tabling. MR. STONE-I’m kind of in the same boat that Chuck is. As I look at this thing, I know we have, in fact, we have an application that still, I don’t know if it sits on the table. It’s not on the table, but an applicant who came before us on another lake property, and when we discovered that he was renting part of that property, we promptly showed our displeasure about expanding a second building on the property, and, strangely enough, that person has never been back before this Board, and we never even voted it down. I’m concerned, one, let me just say it, the word, putting the word “seasonal” in, because this isn’t seasonal, and I don’t know if that was obfuscate or to confuse us, and I know you’ve taken it off the table, but I don’t like the fact that it was there. I’m also, here’s a person, and I’m talking out of both sides of my mouth, I know that everybody who has property on the lake isn’t rich. Some people have a great deal of difficulty meeting their obligations for this very valuable property because they’ve owned it for so many years, but when I see somebody with 2.35 acres, and a reason is given to incur a much greater financial expense, I don’t know what that means. Even if it were a subdivision, I don’t see it as greater financial. MR. LAPPER-Well, because you’d be building a new building. MR. STONE-No, I was thinking you could subdivide it somehow, but, I mean, I just look at that, and it raised my concern. MR. LAPPER-If you subdivided, these buildings would be on one lot, and there’d be a vacant parcel for a construction. I mean, there it’s too close together. MR. STONE-Okay. Anyway, having said that, I would make a motion. MOTION TO TABLE AREA VARIANCE NO. 77-2002 ROBIN INWALD, Introduced by Lewis Stone who moved for its adoption, seconded by Allan Bryant: 33 (Queensbury ZBA Meeting 9/18/02) Cleverdale Road. For no more than 62 days, so that the applicant can appear before us personally and answer the concerns expressed by the Board at this variance application hearing. This will be tabled until the second meeting in October, specifically October 23. rd Duly adopted this 18 day of September, 2002, by the following vote: th MR. BROWN-You know I always like to try and pick a date. You’ve got the public here. You’ve had some public comment. If we can pick a date, first meeting in October, second meeting in October, that gives the public some, because we don’t re-notify on a tabling. MR. LAPPER-Do you know what the dates are? MR. BROWN-The 16 and the 23. thrd MR. LAPPER-The 23. rd MR. BROWN-The second meeting in October. MR. STONE-Okay. So this will be tabled until the second meeting in October, specifically October 23. rd MR. BROWN-Okay. MR. STONE-And it will be first on the agenda, I guess the deadline hasn’t come yet. MR. BROWN-It would be old business. MR. STONE-Under old business, yes. MR. BROWN-Great. MR. LAPPER-I just want to apologize to the Board. You know that I’m usually better prepared and these issues didn’t come up in my discussions with her, and I just, frankly, don’t have the answers. MR. STONE-That’s why we have a Board of seven people who ask these, hopefully, tough questions. MR. BRYANT-Let me ask a question to Staff, Mr. Brown. What happens if the applicant can’t appear at that meeting? Are you saying that you’re not going to re-notify if they have to set another date? MR. BROWN-We’re not obligated to re-notify the public on a tabling motion unless it goes out beyond 62 days. I’m sure Mr. Lapper can compel the applicant to be here, and if not, Mr. Chairman can do that. MR. BRYANT-Well, there have been other times when an applicant, you know, even though it was tabled. MR. BROWN-You can certainly deny the application if they don’t show up. MR. STONE-We have the right to, I mean, if the person doesn’t show, we can deny the application. MR. LAPPER-I believe she’s a full-time resident, and she’s just out of town for a week. So I don’t think that’s any problem. MR. STONE-Somebody said she was going away for the winter. MR. LAPPER-Okay. Again, I don’t know anything about this. I’m sure the neighbor knows more than I. MR. STONE-Okay. AYES: Mr. Bryant, Mr. Abbate, Mr. Himes, Mr. McNulty, Mr. Hayes, Mrs. Hunt, Mr. Stone NOES: NONE ABSENT: Mr. Urrico MR. STONE-So October 23 we’ll expect to see her and you better prepare her, because there’s a lot of rd tough questions. MR. LAPPER-I hope she has good answers, and we’ll see. NOTICE OF APPEAL NO. 5-2002 W.W. MAILLE EXCAVATING (CONTRACT VENDEE) PROPERTY OWNER: HELEN A. SLEIGHT ESTATE AGENT: ROBERTS TOWING & 34 (Queensbury ZBA Meeting 9/18/02) RECOVERY SPECIALISTS ZONE: NC-10 LOCATION: 1 MILE WEST OF I-87, EXIT 19, AVIATION ROAD APPLICANT APPEALING 7/22/02 ZONING ADMINISTRATOR’S LETTER STATING TOWING AND RECOVERY BUSINESSES ARE NOT ALLOWABLE USES IN THE NC-10 ZONE AND A USE VARIANCE WOULD BE REQUIRED. CROSS REFERENCE: UV 3-90, SP 12-90, SP 18-96, SP 37-00 TAX MAP NO. 301.8-1-31/78-1-8.1 MARK MAILLE & AL CHASSE, REPRESENTING APPLICANT, PRESENT MR. MC NULTY-Do you want me to read Craig’s letter? MR. STONE-Yes, read Craig’s letter, and then the Staff Notes. MR. MC NULTY-Okay. This is a letter from Craig Brown, Zoning Administrator, addressed to Al Chasse, Roberts Towing and Recovery, dated July 22, 2002, “Dear Mr. Chasse: I have reviewed your letter regarding your proposed usage of a portion of the building and property at 333 Aviation Road. Based on my understanding of your proposed use and after a review of the historical record of approvals for the property, I would offer the following information. The property in question lies within a Neighborhood Commercial, (NC-10) zoning district. The records in the Town Assessors office indicate that the estate of Helen Sleight owns the property. Auto uses, such as a Towing and Recovery businesses are not allowable uses in the NC-10 zoning district. If you wish to operate your towing and recovery business from this location, you will first need to gain approval of a Use Variance from the Zoning Board of Appeals. No certificate of occupancy can be issued without this approval. In 1990, the Town of Queensbury Zoning Board of Appeals granted a Use Variance to a Mark W. Darius to allow the operation of an automotive general repair business. This approval was granted to Mr. Darius on January 17, 1990 with a condition that the “…Use Variance would terminate on the ceasing of Mr. Darius operation this particular business.” Please see the complete resolution, which I have attached for your reference. Should you have any questions, comments or additional information that might affect this determination, please do not hesitate to contact this office.” STAFF INPUT Notes from Staff, Notice of Appeal No. 5-2002, W.W. Maille Excavating (Contract Vendee), Meeting Date: September 18, 2002 “Description: The applicant is appealing the Zoning Administrator’s decision that a Use Variance is necessary to add a non-conforming use to the property. Information requested: Applicant is appealing to the Zoning Board of Appeals for a determination regarding the operation of a Towing and Recovery business on the subject property. The applicant currently operates a pre-existing non-conforming excavating business from the site. This is the only acknowledged use on this site at this time. The proposed use, Chasse Towing and Recovery is to be a heavy equipment towing and recovery business. Staff comments: The proposed use, Chasse Towing and Recovery, appears to be currently operating from the site. The property lies within a Neighborhood Commercial, (NC-10) zoning district. While a gasoline station, with or without auto repair could be established within the NC-10 zone, heavy equipment uses are only allowable in the Light Industrial zoning district. Although a previous use variance has been issued to this property, it was for the service and repair of passenger vehicles and the approval was terminated when the previous business left the property. Uses that are specifically allowed in a zoning district shall not be allowed outside of said district without a Use Variance.” MR. STONE-Sir? MR. HAYES-Just one second. I have one immediate question. As I read through the Staff notes, it said Chasse Towing. MR. MAILLE-It’s Roberts. MR. CHASSE-There’s no such company. MR. HAYES-There’s no such thing? All right. Mr. Chairman, Roberts Towing is a customer of mine in Glenmont. We do the vending there. So I think it would be appropriate if I recused myself from consideration of this case at this time. MR. STONE-Okay. Jim, would you want to sit in. Come forward, sir. Identify yourself. I have a statement and a couple of questions before you start, but who’s speaking, are both of you? MR. MAILLE-Yes. 35 (Queensbury ZBA Meeting 9/18/02) MR. STONE-State your name. MR. MAILLE-Mark Maille, owner of W.W. Maille Excavating. MR. STONE-Okay. MR. CHASSE-I’m Al Chasse, a representative for Roberts Towing and Recovery of Glenmont, Queensbury, actually. MR. STONE-Okay. I have a couple of questions, but first of all, a statement. This is an appeal of the Zoning Administrator’s decision. It is a very narrow issue. You may have been here earlier. It’s the same thing. We will be discussing whether or not we think the Zoning Administrator made the correct determination in this particular case. If we agree that he did, then you would be forced to seek a Use Variance, and that would be a separate hearing, at which time most of the materials that you’ve presented would be heard at that particular hearing. Most of them do not bear on this particular thing. The other thing is I want to be sure that Roberts Towing and Recovery is currently using, operating from that particular piece of property. I want to put you on notice that you are operating in violation of the Code of the Town of Queensbury. You have been notified that you need a Use Variance. You do not have one. Therefore, you are technically, legally in violation, and that’s just a statement of fact. Having said that, tell me what you want us to hear, and why you think his determination is wrong. MR. CHASSE-First of all, we’re not doing repairs of automobiles or cars. We move heavy equipment and we do repairs on heavy equipment, and we do towing of heavy equipment. All we’re doing is, we merged with Mark Maille and we are running a joint effort out of there, a venture out of there, for both of us to make a living. I went through procedures of calling the Town Board before we moved in there and asking them if it could be operated out of there. We were told it could, and then we had problems with the Building Inspector, and that’s where this all occurred. MR. STONE-In other words, you didn’t get a Certificate of Occupancy. MR. CHASSE-No. MR. STONE-Because the determination was made, certainly at least by July 22, that you were not an nd allowed use in that particular zone. That’s what Mr. Brown wrote on July 22. I don’t know what he said nd before that, but he wrote on July 22 that, and the point that is of particular interest to me, well, it’s still your nd nickel. You tell me why you think he’s wrong. MR. CHASSE-Well, Number One, we were told to stop operating by Mr. Hatin from the Town, from the Building Inspector. MR. STONE-Right. MR. CHASSE-I called Mr. Brown. Mr. Brown said he didn’t seem to think there was a problem there, but he would talk to Mr. Hatin, and then we continued on to operate, and the letter was sent to Glenmont the day after, a couple of days after, and then we were notified that we’re in violation. MR. STONE-And what day was this? MR. CHASSE-I don’t know, whatever the letter says there. MR. STONE-Okay, and this is now September 18, and you’ve just said, for the record, that you have th continued to operate. MR. CHASSE-Right. MR. STONE-Okay. I just want you to be aware that you’ve said that you continued to operate when you were told not to operate. Okay. The determination, as I read Mr. Brown’s letter, is fairly clear, and being a student of the English language, a Use Variance, and there’s a typo in his letter. So I’ll go back to the original motion made on the 17 day of January, 1990, and it says, this Use Variance which was granted to Mark W. th Darius to operate his auto repair business, this Use Variance would terminate on the ceasing of Mr. Darius operating this particular business. Now when did that happen? Mr. Maille, fill me in on that. MR. MAILLE-1993. MR. STONE-So, from ’93 on, that business, the variance ceased. There has been no Use Variance for that property since 1993. Approximately nine years. MR. MAILLE-Correct. That’s why I’m asking why do I need one now. 36 (Queensbury ZBA Meeting 9/18/02) MR. STONE-Because there is no Use Variance, and the determination by Mr. Brown, and that’s what we’re here, to say whether he’s right or wrong, is that yours is not an allowable use in that zone, and I think that’s fairly clear. MR. MAILLE-My use is the nonconforming use. MR. STONE-The towing business, the towing and recovery. MR. ABBATE-Towing and recovery. MR. MAILLE-It’s heavy equipment. MR. CHASSE-The whole thing, we’re not a recovery outfit. The recovery outfit does repossessions for banks and takes boats and cars. We don’t do that. That’s not, recovery is, if a tractor trailer goes over the side of a bank, then that’s the part that comes into recovery. Everybody is calling up and asking us if we grab boats and repossess boats and stuff. We don’t do that. That’s not part of our business. We move heavy equipment and heavy trucks. MR. ABBATE-If I may ask you this. I’d like you to go over this scenario again for me, because I think I missed something. You’ve been operating however you wish to describe your business, and then what generated all of this, and say it slow for me, please. What generated the Zoning Administrator to write this letter to you? How did this begin, start? MR. CHASSE-There was a complaint that we had hauled a garbage truck in there, which we never did. We don’t know anything about that, but anyway, Mr. Hatin came up there and Mark had put a new door up because the other one was falling down, and he told us that we were modifying the building, which we weren’t modifying the building. We were just replacing a door that was falling down, and he told us we had to, I wasn’t there at the time, but he told the guy that was working there that he had to cease working and to call him immediately, and when I called him, he told me to call Mr. Brown, and I called Mr. Brown, and Mr. Brown told me that he didn’t really see a problem with that, you know, what we were doing there, but he would check into it and get back to us. MR. ABBATE-Let me stop you for a second. You actually had a cease and desist order? MR. CHASSE-No, verbally. MR. ABBATE-Okay. MR. CHASSE-And then Mr. Brown told me that, I asked him, should I stop working, and he said, well, I don’t know yet. Let me find out, I’ll investigate into it, and we never got a cease and desist order. That was never put in place. MR. STONE-But you did get a letter dated July 22nd? MR. CHASSE-Yes, that we were in violation of code, and that’s when we merged with Mr. Maille on the joint venture. Because basically we’re doing what he does, except we’ve got tow trucks, besides tractor trailers, to move equipment and heavy equipment and stuff. MR. BRYANT-I want to ask you a question. Mr. Maille, you have an excavating business, so you use heavy equipment. MR. MAILLE-Right. MR. BRYANT-And do you store the heavy equipment there? MR. MAILLE-Yes. MR. BRYANT-Okay. Now for Staff, here’s the question. Now, as I look at it, and I look at the original Use Variance, the Darius variance had nothing to do with what they want to do now. Because you’re talking about going from an automobile place, and even though it ended in 1993, is not significant. The fact that he’s using it for a use that’s outside of the Neighborhood Commercial indicates that he needs a Use Variance. That’s one issue. Now, Mr. Maille is using it for the identical purpose. He’s storing heavy equipment, and this has been going on for a long time because I know the Maille’s sign has been up there for a long time, and why isn’t Mr. Maille in violation? MR. BROWN-Okay. I’m just keeping track of the questions. MR. BRYANT-That’s the main question. 37 (Queensbury ZBA Meeting 9/18/02) MR. BROWN-I would agree with you that the previous Use Variance doesn’t have anything to do with this application. MR. BRYANT-No. MR. BROWN-The previous Use Variance was issued for automotive repair, passenger vehicles. It didn’t make any reference to heavy equipment, sales, service, towing, recovery, storage, no reference to heavy equipment. As a matter of fact, it was specific to automotive repair. MR. BRYANT-Right. MR. BROWN-The other question is why is Mr. Maille’s use. MR. BRYANT-Why is his use not questioned? MR. BROWN-His use is a use that’s been on the property, and I would classify it, and I do classify it, a pre- existing, nonconforming use. It’s been there, and been continuously operated prior to the establishment of the Ordinance which proscribed it, which prohibited it, and he’s continued to operate. So he’s allowed to continue and maintain. He’s not allowed to expand or add nonconforming or non-allowable uses to the property without a Use Variance, and either way you slice it, a new use that comes in, Roberts Towing and Recovery, or adding another partner and another phase to Maille Excavating, albeit the towing and heavy equipment recovery, that’s an expansion. Either the new use is an expansion or the new partner with the new phase of operation is an expansion. MR. BRYANT-So you’re saying that the fact that they do towing expands the use? MR. BROWN-I think we’re talking about adding a new company, a new business to the property. That’s my understanding of the project. MR. ABBATE-Okay. Adding a new company. How long has, you’ve done several things, you made a statement which has changed a lot of things. You indicated that you are not really a towing and recovery specialist. MR. CHASSE-We are a towing and recovery specialist, but we do not, recovery is interpreted in a couple of different ways. Recovery is of, like a bank will have people recover vehicles for them. That’s repossession. We do not do that. MR. ABBATE-Okay. How long have you been in existence? Give me the day, the month, and the year. MR. CHASSE-In existence where? MR. ABBATE-Dealing with towing and recovery specialists? MR. CHASSE-Roberts? 30 years, I guess. MR. ABBATE-Do you mean to tell me that, make sure I get this straight, now. The Roberts towing and recovery specialists have been in operation for 30 years? MR. CHASSE-Glenmont, New York. MR. ABBATE-I mean here in Queensbury. MR. CHASSE-April. MR. ABBATE-April of the Year 2002? MR. CHASSE-2002. MR. ABBATE-Okay. That clears that up. So, in effect, the reason I’m hesitating is because, you know, we have a stand. We want to be fair to everybody. Because I was ready to jump on the bandwagon if you were in operation in Queensbury for 30 years, you know, you have the same rights as he does, but you’ve been here since 2002, and now I have to shift a little bit and say, you know, that really is a new operation, and the Zoning Administrator is really not a lot wrong. MR. CHASSE-Well, it depends on how you look at it. MR. ABBATE-Well, you know what, you have a good point. It depends on the way you look at it. Would you agree with me we should only address the facts? 38 (Queensbury ZBA Meeting 9/18/02) MR. CHASSE-Right. MR. ABBATE-Okay. Have you taken a close look at that section dealing with NC-10? We’re going to deal strictly with facts, not with emotion. Zoning classification NC-10. Is your business, Roberts Towing and Recovery Specialists, one of those businesses that are allowed to operate within NC-10? MR. CHASSE-I don’t really know, but. MR. ABBATE-But you have to know. You can’t appear before us unless you know. If you feel strong about it, if you don’t know, then you shouldn’t be before us, and you should do what the Zoning Administrator said. In other words, you should come before us and say, absolutely, we have every right to use our business within NC-10. MR. CHASSE-Well, I’m not a gas station or a, but I am a heavy equipment operator. MR. ABBATE-All right. Let’s make it simple. Is heavy equipment operation, your business, an allowable use in NC-10? MR. CHASSE-I believe it is, yes. MR. ABBATE-That’s fair enough. You have every right to believe that it is. I don’t object to that. I was just trying to get you to say that. You believe it does. Okay. Well, obviously, I’m going to give opportunities to other people. MR. UNDERWOOD-What percentage of the business is involved with moving heavy equipment right now? I’m talking about excavators and dozers and stuff like that? MR. CHASSE-Buses, excavators and dozers? 100%. MR. UNDERWOOD-So you’re not just hauling 18-wheeler trucks out of a ditch and stuff like that? MR. CHASSE-No, no. Right now we’ve got a truck in Vermont moving a bus. We’ve got one. MR. UNDERWOOD-Are you basically dispatching your vehicles, then, from the site? MR. CHASSE-Basically, right. MR. UNDERWOOD-You’re not bringing stuff back to the site per se? MR. CHASSE-Well, if we bring it back, it only stays there overnight or one or two days, at the most two days. MR. UNDERWOOD-Okay. MR. MAILLE-And it’s stored inside the building, everything. MR. UNDERWOOD-Yes. My impression is that, you know, your end of it as Maille has been there for years. I mean, your dump trucks are out there. Your heavy equipment’s been around for a long period of time, and I see that it’s the long term end of the business, and I would have to agree with Craig, that, you know, you’ve kind of added on to it by doing this, by bringing in other vehicles and stuff, but I don’t know if that’s something where they have to apply for a variance from us. MR. MAILLE-It’s just different equipment. Does it list on there which equipment I cannot have and have, as a company, that’s pre-existing at that location? MR. STONE-Well, there’s another word that came in there, listen to Mr. Brown, and we did discuss it earlier, expansion of a nonconforming use. You’re pre-existing, non-conforming. You’re legal, Maille Excavating, but by taking on this partnership that does some other things, you have expanded the scope of that use, and that’s all Mr. Brown is saying. You’ve expanded the scope, and to continue to do this, you need a Use Variance, which this Board is empowered, if you can make the case, to grant, but you can’t, at least in Mr. Brown’s opinion, you can’t continue to operate this expanded business, or the expanded portion of the business, without getting a Use Variance. I mean, that’s the question that we have to go. I mean, I’m looking here, and that’s fairly simple, but Neighborhood Commercial, you could have a convenience store. You can have a gallery. You can have a gas station. You can have an office. You can have personal service business. I guess that’s how the painting outfit upstairs. Do they exist? So that’s not there? The sign is still there. MR. MAILLE-You’re talking about our property? MR. STONE-Your property, yes. 39 (Queensbury ZBA Meeting 9/18/02) MR. MAILLE-33, yes. MR. STONE-There is a painting business up there? MR. MAILLE-Yes. MR. STONE-You didn’t know that, Mr. Brown? Big sign on the wall. MR. BROWN-The Town has not issued any Certificates of Occupancy for a painting business in that property. MR. STONE-Okay. Then we’ll continue to go on. Personal service business, restaurant, retail business, seasonal produce business. By the way, is that your seasonal produce business on the property there? MR. MAILLE-It’s not on my property. MR. STONE-It’s next door? I couldn’t tell. MR. MAILLE-Yes, it’s next door. MR. STONE-A place of worship, public assembly, public building or a school. Those are the things that you’re allowed to have in that zone, without, you’ve got to have site plan review, and basically Mr. Brown is saying this is expanded scope, and that’s what we have to decide. Any other questions? Any other comments? MR. ABBATE-Just a quick comment. This is your option, okay. This is important to you, and I understand this is important to you, and this is important to the Zoning Administrator as well, and we all, I’m sure, have made some sort of an opinion. I’m going to give you an option, in terms of where I stand, and why I stand. You can accept it or reject it, unless you don’t want me to say it. I spelled out, in very easy detail, addressing the narrow scope of why Mr. Brown is either right or wrong. If you want to hear it, it’s up to you. If you don’t want to hear it, that’s perfectly okay with me. MR. CHASSE-You listen to me, I listen to you. MR. ABBATE-Are you sure? MR. MAILLE-Yes. MR. ABBATE-Now I did this in the simplest terms. I re-wrote this about 12 times, okay. We have to take a look at this thing in three separate ways. One, we have to address your brief stating that you believe you should have it. Two, we have to take a look at what the Zoning Administrator had to say, and then, Three, we each have to come to an opinion, and I’ve come to a conclusion, based upon facts, okay. Now here’s what I basically say. I say that you are saying that the property is not subject to the Zoning Ordinance, the commercial use having existed prior to the enactment of the said laws, it has continued to the current date. That’s what you’ve said. Correct? Okay. That’s fine. Then you go one step further and you say that based upon the use of this property for approximately 70 years, which was commercial property, which is true, and a specific prior grant of a variance to Mr. Darius in 1990, this property is exempt. That’s what you say. MR. CHASSE-No. I didn’t say that. MR. STONE-No. They’re claiming that that. MR. CHASSE-I didn’t say anything about Mr. Darius because I never knew Mr. Darius. What I’m saying is that I’m going on the assumption that he’s legally there, and I’m basically doing the same thing that he’s doing. The only thing I have is a couple of tow trucks added to the tractor trailers and low boy trailers and machine removers. I don’t know what Mr. Darius did there. MR. STONE-I think what he’s saying, Chuck, is he thinks he can piggyback on a pre-existing, nonconforming. MR. ABBATE-Well, that’s what I’m saying, too. Perhaps I didn’t word it properly. You believe, let me try it this way. You believe that you don’t need a variance? MR. CHASSE-Well, I’m not saying I don’t believe I need a variance. I don’t understand why I would need a variance when it’s already a business. MR. ABBATE-You’re saying you don’t understand why you need a variance when. 40 (Queensbury ZBA Meeting 9/18/02) MR. CHASSE-When there’s a business of my type going on there. MR. ABBATE-Okay. All right. MR. CHASSE-I mean, what you’re saying, if I got rid of the tow trucks, I’d be in conformity with the variance. MR. BRYANT-Yes, but I think what the Zoning Administrator is saying, though, and correct me if I’m wrong, Zoning Administrator, he’s saying, you know, Mr. Maille is protected because he’s been there for 150,.000 years, but you’re a new entity. You’re a new guy coming into the block, and you want to do the same thing, but that, you’re not protected by what Mr. Maille has done. MR. ABBATE-Right. MR. BRYANT-You’re a new guy. You’ve got to start from scratch. MR. CHASSE-That’s why we merged with Mr. Maille. MR. BRYANT-Yes, but it’s a different company though, isn’t it? MR. CHASSE-Well, it’s Maille/Roberts now of Queensbury. MR. MAILLE-We’re together as a joint venture. MR. UNDERWOOD-I had a question for Craig, and that was just that, you know over at Miller Hill we had that towing operation over there behind Gambles, the one that’s currently for sale. MR. STONE-C & D, you mean. MR. UNDERWOOD-C & D. Is that NC-10 over there, too? MR. BROWN-That’s Highway Commercial, HC. MR. UNDERWOOD-That’s Highway Commercial. Yes. So that’s an allowable use in Highway Commercial? MR. BROWN-I’m not sure heavy is allowable in Highway Commercial, typically heavy equipment sales, service operations are restricted to the Light Industrial zone. MR. UNDERWOOD-Well, because, Northern Equipment used to be over there, you know, up until three years ago Northern Equipment was there, before they moved down on Corinth Road. They were right across the way there. They were kind of actually abutting that trailer park over there, too, but I think we’ve had, you know, I think that in the past history of the Town, we’ve seen that a lot of these places used to exist in the past, and they’ve been kind of surrounded by suburbia over the years, but I think that, you know, in some respects we have to think about, you know, what’s been there for long term, which is Maille, you know, which is heavy equipment, which is heavy machinery being moved and things like that. I don’t think there’s any doubt that you were right in your assumption that, you know, adding the towing and recovery business was an expansion of that, but at the same time, you know, if you guys came back to us to ask for a variance for that, you might, you know, present your case to us, I mean, the fact that you’ve had heavy equipment working there for all these years, you know, does give you some credence to what you want. MR. STONE-That’s what might happen. MR. UNDERWOOD-Right. MR. ABBATE-Did you have a legal merger? MR. MAILLE-Yes. MR. BRYANT-So now are there two companies there? Is it Mailles Excavating and Mailles and Roberts? MR. CHASSE-No, it’s Maille/Roberts Excavating. MR. BRYANT-So now there’s no more Mailles. MR. ABBATE-See, I didn’t have that information. MR. MAILLE-Yes, there’s still Mailles. 41 (Queensbury ZBA Meeting 9/18/02) MR. CHASSE-There’s still Mailles. MR. BRYANT-There is still Mailles? MR. CHASSE-Yes. MR. BRYANT-So you’re a second entity, basically? MR. CHASSE-Yes. If you look at it that way, yes. MR. STONE-Well, the question on the table, gentlemen, and I think we have belabored it enough, is, is, according to the Zoning Administrator, is this an expansion of a nonconforming use and therefore requires a Use Variance? MR. ABBATE-Let me ask the Staff a question before I go to that. Is a merger considered an expansion? Is a legal merger considered an expansion? MR. BROWN-I think any time you add a use to a piece of property that wasn’t there yesterday is an expansion. MR. ABBATE-Okay. I just want to make sure I get it on the record. MR. MAILLE-I have a question. So if I only have one machine, and I buy another machine, I expand it. MR. STONE-Don’t go there, or we might make that question. It depends upon the kind of equipment it is. MR. MAILLE-Heavy equipment. MR. STONE- If you bought a different truck. MR. MAILLE-I’ve had different equipment over the past 30 years. MR. STONE-I know. MR. UNDERWOOD-Technically speaking, if you had dump trucks and you bought your own tow truck to haul them back when they broke down, you could have your own tow truck on the site, probably. MR. ABBATE-That’s an interesting. MR. UNDERWOOD-I mean, technically, if it was yours. MR. STONE-I don’t think we want to go there, because that’s an issue beyond our pale at the moment. The question is, that’s before us, and I would like to, we don’t have to have a public hearing in this, do we? No, I didn’t think so. I would like to go around the table and hear what we have to say about the decision of the Zoning Administrator. Let me just start with Norm. Are you for or against it, and say why. MR. HIMES-Thank you. Well, I’d like to say at this point that this is a complicated case, in connection with some of the definitions we’ve got. Is it an expansion? Well, should we look at the number of employees before and after? Should we look at revenues? Should there be some basis, in this case, it’s not like the apartment thing that we had here before, where there was an obvious, some square footage is being used now that wasn’t being used before. It’s pretty clear cut. Here, I don’t feel we have this information. I’d like to have more. I look at the aspect that, as you implied, that if you were successful and grew, and added to your operations, be they bulldozers or what have you, would we jump in and try to stop that, or do you have to notify anybody? I don’t know whether you do or not. I wouldn’t think if you bought a few pieces more of heavy equipment. So, to keep from talking all night, I don’t have enough information to say whether or not this is increased use, now that we’ve heard what we’ve heard tonight. I did support, at the beginning of the conversations, what Craig had done at the beginning. It seemed to me, by the addition of another partner, formation, now, of a new company, I look at that, in the absence of other information, given the amount of activity and revenue and this, that and the other, I would say, yes, it’s obvious that it’s an increase in use, which, you know, the use is not permissible. So, after all that. MR. STONE-Would you vote to uphold the Zoning Administrator right now? MR. HIMES-I tend to think that I would, because it doesn’t close the door on what can happen. MR. STONE-That’s correct, it does not close the door. Okay. Chuck? MR. ABBATE-Yes. I agree with the comments of Jim and comments of Norm. Initially, when I read this thing, my initial reaction was, the Zoning Administrator is unequivocally, unshakably correct, but, you know, 42 (Queensbury ZBA Meeting 9/18/02) that’s the beauty of this thing. We all try to be honest and fair to the folks that come before us, and we want to hear what has to be said, and I am somewhat agreeing with Norm. I really wish I had more information, but at this time, I must say that I believe that, based on a narrow interpretation and perception of the Zoning Administrator’s letter to you, I think he’s correct, unless somebody can really prove me wrong. MR. STONE-Okay. Allan? MR. BRYANT-On the sole idea of whether or not it’s an expansion, I think there’s no doubt that it is an expansion, and in that regard, I think the Zoning Administrator is correct, but, and I would vote to uphold what he said, but, frankly, if I were in your shoes, I would have already applied for a Use Variance. The use is so close to what Maille’s is doing that, you know, I don’t understand, I understand what you’re trying to do, and I understand what you’re trying to say, but I don’t understand why we went through this process and why we just didn’t apply for a Use Variance and get this over with, because it would have been said and done. MR. STONE-Joyce? MRS. HUNT-Yes. I would like more information, but I do kind of agree with Craig Brown. I think that a Use Variance is needed. We’re going to have to go through two hearings, I guess, because. MR. STONE-Yes, we’re going to have to have another, we’re going to have to have a Use Variance application, if we support the position, and you’re saying you would. MRS. HUNT-I do support his position. MR. STONE-Okay. Jim? MR. UNDERWOOD-Yes. I would support Craig’s position. I think that at the same time you have to realize that if you come back to us and ask for a variance, and you make your case, you know, you may very well get it, because as Al pointed out, it’s pretty similar to what you already have there. I think someone would have to prove that, you know, it was extremely detrimental to the neighborhood, and it seems to me to be basically what you’ve been doing all along there. So I don’t see it as being that different than what you have. MR. STONE-Chuck? MR. MC NULTY-I would have to agree. I think, as Craig points out, either way you slice it, this is either a new operation that’s not allowed in the district or it’s an expansion. Adding a towing business to an excavating business is an expansion. It’s changing the nature of the business. So I’ll support the Zoning Administrator on this. However, contrary to what some of the other members have said, I have a different view here. This is a Use Variance we’re talking about, not an Area Variance. To grant a Use Variance, the applicant’s going to have to show that he can’t get reasonable financial return from that property using a conforming use, and while it’s still possible to be granted, I don’t think it’s going to be a cut and dried, easy case. There’s different criteria than Area Variance. MR. STONE-That’s correct, and I would, I certainly agree with everybody else, that we’re going to uphold the decision, and that for you to continue to operate in that thing, you’re going to need a Use Variance. Now, having said that, I would suggest that you certainly approach it with the criteria in mind that you have to show reasonable financial return, or that you can’t get it, and one way you might do that, and I’m only throwing it out. It may not fly, is that Mr. Maille, without your partnership, couldn’t continue in business. That may be an approach you want to look at, that your business, without the additional equipment, would, pre-existing, nonconforming, might not fly without the other business. Now, that doesn’t say that’s going to fall on a positive ear with us, but it’s a way to approach the very difficult test that we have to put a Use Variance to, but, having said that. MR. ABBATE-Mr. Chairman, could I make one more comment, for the benefit of the applicants? MR. STONE-Yes. MR. ABBATE-I strongly suggest and urge you, strongly, that whatever your next move is, if you’re going to go with a Use Variance, sit down with the Zoning Administrator and have him spell out for you the rigorous requirements of a Use Variance, so that if you come before us the next time, you will understand what we’re saying, because if you don’t research it out, the words that we’ll be using will boggle your mind. MR. MAILLE-Well, we did have a meeting with Craig about the Use Variance, or appealing his decision, which he said was an option, and that’s the option we took. MR. STONE-Okay. That’s fine. MR. MAILLE-Because you all said, our business is close to what’s there. 43 (Queensbury ZBA Meeting 9/18/02) MR. ABBATE-Well, we’re trying to be fair with you. That’s all. MR. STONE-And I want to apologize to anybody who came and has not spoken, and I the reason I did not open the public hearing in this particular case, and we do have some correspondence, is that it was my sense, listening to the Board, that we were going to uphold the Zoning Administrator, and therefore, if this business wants a Use Variance, they’re going to have to come back to us, at which time we will have public input, both orally and all the correspondence that’s currently in the file. Most of which that I read had to do with the Use Variance in the first place. It was an argument for granting a Use Variance, not for overturning the Zoning Administrator’s decision. Jim? MR. UNDERWOOD-Are you the owner of the building, or is it still under the ownership of the Trust there? That’s what I was wondering. VIRGINIA SLEIGHT MRS. SLEIGHT-Excuse me, gentlemen, if I can answer that question. I’m the Executrix’s Attorney. MR. STONE-Would you come up to the microphone and tell us that? Thank you for your input. MRS. SLEIGHT-I am an attorney, and I am also the Executrix. MR. STONE-And who are you? MRS. SLEIGHT-I’m Virginia M. Sleight, an attorney at law. MR. STONE-Okay. MRS. SLEIGHT-I am the Executrix of the Estate of Helen A. Sleight. We are the owners of record of the parcel of land in question. It is under a contract of installment land purchase, with W.W. Maille Excavating, and has been for many years. MR. STONE-It’s under a purchase arrangement? MRS. SLEIGHT-Yes. MR. STONE-So, any idea what the percentages are right now? I don’t know if it makes any difference, but let me ask a dumb question. MRS. SLEIGHT-Percentages what? MR. STONE-Percentage of ownership. MRS. SLEIGHT-The Estate of Helen A. Sleight owns the entire building, until such time as the contract is fully paid. Title does not pass to them. MR. STONE-Okay. Okay, not that I suggested that they own, maybe I was, they own 32% and you own 68%. MRS. SLEIGHT-No, the building is entirely owned by the Estate. MR. STONE-Okay. MR. HIMES-Could I ask the lady a question? In the records that we have here, there’s reference to the sale, the land sale. MRS. SLEIGHT-That’s correct. MR. HIMES-Also, I think in the record that you’ve put in, it was indicated that you’ve been trying to sell it for 11 years and have had no satisfactory bids for the property. It sounded like they were in the same contemporary. Could you clarify that? MRS. SLEIGHT-That is correct. I have actively been trying, both personally as the Executrix of the Estate, and having registered it with numerous real estate agents, to sell this entire parcel of land. MR. STONE-And you will be prepared to say that when we have the Use Variance? MRS. SLEIGHT-I most certainly will. 44 (Queensbury ZBA Meeting 9/18/02) MR. STONE-Because that we definitely need to have. MR. HIMES-Well, how can that be if there’s a contract for sale already in, since 1983, or something like that, with W.W. Maille? MRS. SLEIGHT-Because I own title to the property. There’s also another two acre parcel adjoining it which is entirely owned by the Estate, and which the Estate holds title to. I have no quarrel with W.W. Maille Excavating company, and I have been cooperating with them in trying to help them also find a buyer for their building. As soon as the Estate is paid, which would happen if the sale went through, the Estate would be more than pleased to issue a deed of record to the W.W. Maille Excavating company. MR. HIMES-Thank you. MR. ABBATE-And of course Counselor is well aware of the rigorous requirements of a Use Variance. MRS. SLEIGHT-Unfortunately, but I shall address those issues. MR. ABBATE-Please do. MR. STONE-All right. Good. Well, that’s what we will be very glad to hear that. All right. MR. BROWN-Mr. Chairman, could I just add a couple of things, and I’ll try and keep them brief, and I think they need to be said. The first one is, you made a good point about the criteria for the Use Variance. Not only do they have to show dollars and cents and all that information for all the allowable uses in the zone. They also have to show the dollars and cents proof for the existing nonconforming use in the property, and you made reference, well, if you can display that Mr. Maille can’t operate without Mr. Chasse’s co-existence, it may sound a little different, a different approach, but he certainly has to demonstrate that the existing, like I said, nonconforming use can’t operate on the property and return a reasonable return, and that’s why he needs to expand that pre-existing, nonconforming. MR. STONE-Kind of what I said. MR. BROWN-Right, and the other one is, my two cents on law, and that’s really probably all that it’s worth, is that since, and the only reason I say this is because it was made mention of earlier in the Board by a couple of members, about the operation of Roberts Towing and Recovery during the operation or the pursuit of the variance or the determination, while there’s an appeal pending. It’s been my position and my understanding of the law that while there’s an appeal pending a decision, there really, there’s no legal grounds for any enforcement action, and now that the appeal has been, or it’s imminent to have the appeal heard, there is no more pending litigation. There’s no more, we don’t have an appeal. MR. STONE-We have established that it’s illegal. MR. BROWN-We have established that it’s illegal. So, I mean, what they probably should do, and I think you’ve probably tried to tell them this, is to stop operating, so they’d have some legs to stand on when they come back before you asking for a Use Variance. MR. ABBATE-The Zoning Administrator is absolutely correct, and in fact, we have issued a cease and desist order. MR. BROWN-Well, I don’t know if you can issue a cease and desist order, or you should try. MR. ABBATE-No, I’m just saying in effect. MR. BROWN-But I just wanted to get out there that, you know, if need be, and I’m sure the applicants are willing to work with us and try and get this resolved one way or the other. If need be, we I think now can pursue a legal action, an enforcement action, I guess, rather than legal action, now that the appeal has been resolved. MR. STONE-Okay. MR. BROWN-And again, that’s my miniscule understanding of appeals. MR. STONE-And you’re telling the applicant and the lawyer for the Estate what you’ve just said and that’s okay. MR. BROWN-Just to get it on record. MR. STONE-Having said that, I make a motion. 45 (Queensbury ZBA Meeting 9/18/02) MOTION THAT WE DENY APPEAL NO. 5-2002 W.W. MAILLE EXCAVATING (CONTRACT VENDEE) AVIATION ROAD, AND IN DOING SO WE UPHOLD THE ZONING ADMINISTRATOR’S DETERMINATION AS STATED IN HIS MEMO TO AL CHASSE OF JULY 22, 2002, Introduced by Lewis Stone who moved for its adoption, seconded by Charles Abbate: Duly adopted this 18 day of September, 2002, by the following vote: th MR. BRYANT-I think you have to deny the appeal. MR. BROWN-I certainly don’t want to tell you how to make your motion, but you can either approve the appeal or deny the appeal. MR. ABBATE-Craig is right. Just merely say we deny the appeal. MR. STONE-Okay. AYES: Mr. Abbate, Mr. Himes, Mr. McNulty, Mr. Underwood, Mrs. Hunt, Mr. Bryant, Mr. Stone NOES: NONE ABSENT: Mr. Urrico MR. STONE-There you go, people. MR. CHASSE-Okay. Can I make a comment, a couple of questions, first? MR. STONE-Sure. MR. CHASSE-Number One, I respect your opinion, and Number Two, is there any way we can do this like tomorrow? MR. STONE-Well, no. The October meeting is closed. That was yesterday, two days ago. MR. CHASSE-But if I get all the forms in to. MR. STONE-It’ll be November. MR. CHASSE-November. Is there any way we can get a temporary? MR. STONE-You’d have to talk to Staff. We only sit here as laypeople making decisions on matters brought before us. We are not a court of law. We have no enforcement capabilities. We can’t enforce anything. MR. ABBATE-You should address that question to Counsel. I don’t think Counsel heard your comment, but you should address that to her. MR. STONE-But she’s not their counsel, necessarily. MR. ABBATE-You’re not? I’m sorry. MRS. SLEIGHT-I represent the Estate of Helen A. Sleight. MR. ABBATE-I’m sorry. MR. BROWN-I’d be happy to answer that right now. MR. CHASSE-Yes. MR. BROWN-If you guys want to have an answer. If somebody came in and say, hey, I want to build a garage, four feet from my property line, even though the requirements are 20 feet, I can’t issue a permit and say, you can go ahead and build it, but then you have to go get your variance. It’s a Use Variance now. It’s no different, though, the proposed use is not allowed. I can’t, I don’t have the ability, and I don’t think it’s fair to you to have somebody before you with an approval from the Town to be some place, while at the same time they’re asking for that approval. If is say, sure, go ahead while you’re getting your variance. MR. STONE-Well, it’s like I was referring to earlier, something going on in the Village of Lake George tonight, that is being done out of order, in my judgment, and we’ve done all that we can do, and we will next be available to you in November to discuss your Use Variance application, assuming that you submit one. MR. CHASSE-So, in other words, we have to stop operating tomorrow out of there? 46 (Queensbury ZBA Meeting 9/18/02) MR. STONE-That’s what Staff tells me you have to do. MR. BROWN-Well, I’d consult with your attorney, but we can’t, you don’t have an approval to be there, and the Board has just agreed that you need an approval to be there. MR. CHASSE-Right. MR. BROWN-So, do you want to come back before the Board continuing operation? That’s up to you, but we can, now that the appeal’s been heard, if we choose to, pursue an enforcement action and say, look, we’ve told you that you need a variance, you don’t have the variance, you need to stop. Here’s time to stop, but I don’t know if I have the answer you want to hear. I don’t have the power to give you that answer. MR. CHASSE-In other words, if we got the trucks out of there. MR. BROWN-This is the Board that can tell you you can be there. I can’t tell you you can be there. MR. CHASSE-But if we got the trucks out of there, we’d be perfectly legal. MR. BROWN-If Roberts Towing and Recovery stopped operating there tomorrow, you’d be in conformance. That’s correct. MR. CHASSE-Okay. MR. STONE-Okay. Do you guys want to discuss a couple of minutes? MR. ABBATE-Sure, why not. CORRECTION OF MINUTES July 17, 2002: NONE MOTION THAT WE APPROVE THE MINUTES OF THE JULY 17 ZONING BOARD OF TH APPEALS MEETING, Introduced by Lewis Stone who moved for its adoption, seconded by Charles Abbate: Duly adopted this 18 day of September, 2002, by the following vote: th AYES: Mr. Abbate, Mr. Hayes, Mr. McNulty, Mr. Stone NOES: NONE ABSTAINED: Mr. Himes, Mr. Bryant, Mrs. Hunt ABSENT: Mr. Urrico July 24, 2002: NONE MOTION THAT WE APPROVE THE MINUTES FOR THE QUEENSBURY ZONING BOARD OF APPEALS MEETING OF JULY 24, 2002, Introduced by Lewis Stone who moved for its adoption, seconded by Allan Bryant: Duly adopted this 18 day of September, 2002, by the following vote: th AYES: Mr. Bryant, Mr. Abbate, Mr. Himes, Mr. Hayes, Mr. McNulty, Mr. Stone NOES: NONE ABSTAINED: Mrs. Hunt ABSENT: Mr. Urrico August 21, 2002: NONE MOTION THAT WE APPROVE THE QUEENSBURY ZONING BOARD OF APPEALS MINUTES FOR THE AUGUST 21, 2002 MEETING, Introduced by Lewis Stone who moved for its adoption, seconded by Charles Abbate: 47 (Queensbury ZBA Meeting 9/18/02) Duly adopted this 18 day of September, 2002, by the following vote: th AYES: Mr. Abbate, Mr. Himes, Mr. Hayes, Mr. McNulty, Mr. Stone NOES: NONE ABSTAINED: Mrs. Hunt, Mr. Bryant ABSENT: Mr. Urrico August 28, 2002: NONE MOTION THAT WE APPROVE THE QUEENSBURY ZONING BOARD OF APPEALS MINUTES FOR THE AUGUST 28, 2002 MEETING, Introduced by Lewis Stone who moved for its adoption, seconded by Charles Abbate: Duly adopted this 18 day of September, 2002, by the following vote: th AYES: Mr. Abbate, Mr. Himes, Mr. Hayes, Mr. McNulty, Mr. Bryant, Mr. Stone NOES: NONE ABSTAINED: Mrs. Hunt ABSENT: Mr. Urrico MR. STONE-I move the meeting is adjourned. On motion meeting was adjourned. RESPECTFULLY SUBMITTED, Lewis Stone, Chairman 48