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2002-09-25 (Queensbury ZBA Meeting 9/25/02) QUEENSBURY ZONING BOARD OF APPEALS SECOND REGULAR MEETING SEPTEMBER 25, 2002 7:00 P.M. MEMBERS PRESENT LEWIS STONE, CHAIRMAN CHARLES MC NULTY ROY URRICO NORMAN HIMES ALLAN BRYANT CHARLES ABBATE JAMES UNDERWOOD, ALTERNATE MEMBERS ABSENT PAUL HAYES CODE COMPLIANCE OFFICER-BRUCE FRANK STENOGRAPHER-MARIA GAGLIARDI NEW BUSINESS: AREA VARIANCE NO. 73-2002 TYPE II PATRICK & CATHY HOWLAND PROPERTY OWNER: SAME ZONE: SFR-1A LOCATION: 1 SAWN ROAD APPLICANT HAS CONSTRUCTED A 12’ X 18’ SHED ON PROPERTY AND SEEKS RELIEF FROM THE FOLLOWING REQUIREMENTS OF THE ZONING ORDINANCE: SECOND ACCESSORY STRUCTURE ON PROPERTY. CROSS REFERENCE: BP 90-176 (BREEZEWAY) WARREN CO. PLANNING: 9/12/02 TAX MAP NO. 301.5-1-16 LOT SIZE: 0.47 ACRES SECTION 179-4- 030; 179-5-020 D PATRICK HOWLAND, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 73-2002, Patrick & Cathy Howland, Meeting Date: September 25, 2002 “Project Location: 1 Sawn Road Description of Proposed Project: Applicant has added an 11.8’ x 18.1’ storage shed to their parcel in addition to the one allowed. Relief Required: Applicant requests relief for a second storage shed, and for 13.6 sq. ft. of relief from the 200 sq. ft. maximum size requirement for storage sheds in an SFR zone, § 179-5-020(D). Criteria for considering an Area Variance according to Chapter 267 of Town Law: 1. Benefit to the applicant: The applicant would be permitted to keep the oversized, additional storage structure on their parcel. 2. Feasible alternatives: Feasible alternatives may include removing the smaller storage shed from the parcel. 3. Is this relief substantial relative to the Ordinance?: Relief for an additional storage shed may be considered substantial relative to the Ordinance (100%), and 13.6 sq. ft. of relief from the 200 sq ft. maximum size requirement may be considered minimal relative to the Ordinance (6.8%). 4. Effects on the neighborhood or community: Minimal 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 91-170: issued 04/10/91, septic alteration. BP 90-716: issued 10/16/90, breezeway addition. Staff comments: Minimal impacts may be anticipated as a result of this action. The applicant claims that the shed was added to eliminate a yard clutter problem. The applicant claims the neighbors are in support of this application and are pleased the yard clutter problem is now rectified. SEQR Status: Type II” MR. MC NULTY-“Warren County Planning Board Project Review and Referral Form September 12, 2002 Project Name: Howland, Patrick and Cathleen Owner: Patrick and Cathleen Howland ID Number: QBY- 02-AV-73 County Project#: Sept02-30 Current Zoning: SFR-1A Community: Queensbury Project Description: The applicant proposes putting a pre-built, 12 x 18 shed on their property. They already have a pre-built, 8 x 12 shed on the lot. Seeks area variance for 1) set back relief from the road, 2) over 200 sq. ft., 3) second shed. Site Location: 1 Sawn Road Tax Map Number(s): 301.5-1-16 Staff Notes: The applicant requests a variance to locate a second shed on the property. The zone allows for one shed on the property where the applicant proposes two. The applicant has indicated the need for the 126 sq. ft. shed is to store kayaks. The drawing indicates the location of the shed on the property. Staff does not find 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-Sir, introduce yourself, speak right into the microphone in front of you. Speak right into it, because they’re wonderful mic’s, but they need to be close. 1 (Queensbury ZBA Meeting 9/25/02) MR. HOWLAND-Okay. I’m Pat Howland, the property owner, and, well, let me just say that when I started this project, I didn’t, by any means, mean to defy the Queensbury Ordinance, Queensbury zoning rules by going ahead with that shed. There was a whole bunch of miscommunications and misunderstandings with the dealer and myself, and I thought I was just going to need a building permit for the over, well, when I put my last shed in it was 100 square feet. So here we are now, and what I have laying around my yard was eight kayaks and a canoe I had to get inside, and an 18 foot long shed was the minimum length to get those boats in, and I do have signatures from all my neighbors, in favor of the shed being there. MR. STONE-Is there a note that they signed? MR. HOWLAND-Yes. MR. STONE-You can give this to the Secretary and he can read it in later, when we get there. MR. HOWLAND-Okay, and if I can answer any questions, I don’t know what more that I’m supposed to, that you want me to do. MR. STONE-Okay. I have a question. Staff says the neighbors are in support and are pleased that the yard clutter problem is now rectified. I guess I didn’t want to see it before because right now I counted, and this is a very brief count, two boats and a trailer, cinder blocks, a wheel barrel, a rim, a third trailer, a tool chest, and it looks like a tarp covered ATV. MR. HOWLAND-It’s a riding lawnmower, and the boats are already in the garage, in the shed. So the shed is almost full now. MR. STONE-The two boats that were out? MR. HOWLAND-No, the eight kayaks and. MR. STONE-Yes, but you still have two boats on the property? MR. HOWLAND-Yes. MR. STONE-And what was there before that was even more clutter? MR. HOWLAND-I had the canoes laying out under the trees, and in the winter I had to stack them up and put blue tarps over them. MR. STONE-Okay. MR. HOWLAND-And now the lawnmower will go in there and the wheel barrel, and anything I can get off my lawn, and the other, the small shed is eight by twelve, and that’s full of deck chairs and pool stuff. It’s just, I’ve got an enormous amount of junk MR. STONE-To me, there are feasible alternatives other than removing the smaller shed. It seems to me that if you have that many kayaks, you could rent storage space so that they don’t sit on your property. MR. HOWLAND-Yes. That’s kind of expensive, renting storage. MR. STONE-But it is a feasible alternative. I just want you to agree that it’s a feasible alternative. Chuck? MR. ABBATE-Just clear up three areas for me, please, sir. There’s a request for a variance that says we would like to put a pre-built 12 x 18 shed. That’s asking for permission. MR. HOWLAND-That’s. MR. ABBATE-All right, but you have already constructed it. MR. HOWLAND-I have, and I apologize for that. It was a misunderstanding. That wasn’t supposed to be delivered until after I got through with all this variance. MR. ABBATE-Okay. Question Two. On Page Two of Three, place of worship. Why is that indicated on your report? MR. HOWLAND-I didn’t know it was. MR. ABBATE-Well, it is. Place of worship, it also says produce stand, 100 square feet. I’m not sure how that falls into this. 2 (Queensbury ZBA Meeting 9/25/02) MR. HOWLAND-I don’t either. MR. ABBATE-Well, then it shouldn’t have been submitted. Page Two of Three, I read everything I get. MR. STONE-Those are allowed uses, I think. MR. ABBATE-Because I’ve never seen this before. MR. HOWLAND-Is that on mine? MR. ABBATE-Here it is, right there, with your site plan. So, in other words, there is no place of worship on the property? MR. HOWLAND-No. MR. ABBATE-And there is no produce stand? Okay. I just wanted to get that clarified, because it was confusing. MR. HOWLAND-Yes. I was getting a little confused there myself. MR. ABBATE-Okay. The Chairman made an excellent point there. The shed has already been constructed. Correct? MR. HOWLAND-It was built. It was just delivered already built. MR. ABBATE-Delivered already, and it’s already on the property constructed? MR. HOWLAND-Yes. MR. ABBATE-Okay. So this request here, you would like to put a pre-built, 12 x 18 shed is something that went by the wayside here, so to speak? MR. HOWLAND-Yes. MR. ABBATE-Okay, and you feel that, as an alternative to renting, how many canoes, kayaks did you say, eight? MR. HOWLAND-Eight kayaks, a canoe, and MR. ABBATE-What would that cost for rental, just out of curiosity? MR. HOWLAND-Well, I think a small shed is like $80 a month. MR. ABBATE-A month. I see. Okay. Thanks for that. I appreciate that. MR. HOWLAND-And, you know, I think the shed makes the property look nicer than the clutter. MR. BRYANT-What do you have in the small shed? MR. HOWLAND-Like deck chairs and pool supplies. MR. BRYANT-And is something you can’t fit in the larger shed? MR. HOWLAND-And the thing that you spread, grass seed spreader, and, you know, all kinds of junk like that. I’m sure you’ve got a lot of stuff, too. MR. BRYANT-Yes, I do, but I fit it in my garage. MR. HOWLAND-Yes, well, my wife was getting so she couldn’t open her car door, and we have a one car garage. MR. URRICO-Mr. Howland, you said there were some misunderstandings regarding how this thing transpired. Would you just? MR. HOWLAND-Yes. I thought I was only supposed to have a building permit for the size shed, and I had come to apply for a variance for the road setback relief. Then I found out I had some other problems which was the second shed and the oversized by 13 feet. 3 (Queensbury ZBA Meeting 9/25/02) MR. URRICO-And what stage of the process did you? MR. HOWLAND-After I put my deposit on the, after I put my money on the shed. MR. URRICO-And they delivered it without? MR. HOWLAND-They delivered it about three weeks later, or he said it was going to be six to eight weeks to get it, but apparently he found one somewhere that matched what we were looking for. MR. STONE-Let me just ask a question, Bruce. Is this something, is this a new, this thing that Mr. Abbate was talking about, is that a new piece of paper, or does that come from the applicant? MR. FRANK-Our support staff provided that to Mr. Howland. What happens is sometimes that the applicant doesn’t have a survey map, our support staff tries to help them out, and this is an example. This was drawn off some GIS software we have in our intranet. MR. STONE-And then the applicant drew in the property? MR. FRANK-That’s correct, and the additional information came up because it happened to be on that screen. MR. STONE-Okay. MR. FRANK-Yes. I just used that plot plan for my diagram. MR. STONE-Any other questions? MR. BRYANT-Yes. I just, I want to ask you a kind of dumb question. How many people in your family, just out of curiosity? MR. HOWLAND-There’s four. MR. BRYANT-Why do we have eight kayaks, just out of curiosity? MR. HOWLAND-Well, you’ve got to have two for flat water, and I think we have four for white water. There’s a double two man, and there’s my granddaughter’s, and then the canoe, and some of that is. MR. BRYANT-Is there some kind of rack that? MR. HOWLAND-Yes, it’s all racked up. MR. BRYANT-It’s all racked, and even though they’re racked, you still can’t fit the other stuff from the other stuff from the other shed in that shed, is what you’re saying? MR. HOWLAND-It would be like, you open the door and you wouldn’t be able to walk in there. MR. ABBATE-If it’s racked, can you put a piece of canvas over it for the winter months? Where’s our expert on kayaking? Can’t you do that, or am I missing something? MR. UNDERWOOD-Yes. I have about twice as many boats as that at my house. So, you know. MR. BRYANT-Where do you keep them? MR. UNDERWOOD-I have an outdoor rack. Some of them I put under my deck, you know, so, the ones that I don’t want the sun to get on, but it is kind of nice to be able to put them out of the weather because the UV really does limit the lifespan on those. MR HOWLAND-And plus security, you know, you don’t want to come home some day and something’s gone. MR. ABBATE-Yes. MR. STONE-I guess the thing that troubles me, and I’m mixed feeling at the moment. Would I like see one shed bigger even than the one you have, or two sheds, and that’s where, it seems to me that you do have a lot of things that need to be protected from the weather, and you’ve got a nice, fairly large piece of property. So it wouldn’t, I don’t think it would trouble me to have a shed even bigger. I mean, you’d have to seek a variance. We’d have to grant that, but I think I’d prefer that to two, because two opens a lot more concerns, in terms of granting a variance. I mean, it’s 100%. It says you’re allowed one and we’re going to say two. I would much rather say, well, it’s 50% larger than the Code calls for, and could site it back on the lot 4 (Queensbury ZBA Meeting 9/25/02) somewhere where, because I am concerned that you are going to have boats on the, you’re still going to have those boats on trailers. They’re not going in there. MR. HOWLAND-No. That one big boat is sold. It’s going to be gone. So I’ll just have a little aluminum boat. MR. STONE-Wasn’t there a trailer way in the back or something, too? MR. HOWLAND-Yes. That had a snow mobile on it. MR. STONE-He who dies with the most toys wins? MR. HOWLAND-No. MR. STONE-That’s not derogatory. It’s just a statement that I’ve heard. It sounds great. I’m jealous. MR. HOWLAND-It’s a 1989 snow mobile that somebody gave, my brother gave me, and believe me, I’m not a big spender when it comes to, and I’ve got a 14 foot aluminum boat, and plus, you know, the kayaks. That’s what we do most of. MR. STONE-All right. Any other questions? Go ahead, Norm. MR. HIMES-Not speaking from the practicality, but did you consider adding on to the garage? That would probably need, might need, an Area Variance (lost word) the size that you need, but. MR. HOWLAND-Yes, it would have, if I added on to the garage, it was going to bring me too close to my neighbor’s property line. MR. HIMES-Not much closer than that shed that’s there, but, anyway, I was curious. MR. STONE-Speaking of that garage, what is that thing on the side, that staked fence around? MR. HOWLAND-That’s the propane tank. MR. STONE-That’s the propane, okay. I didn’t go that far around. Okay. Any other questions? All right. Let me open the public hearing. Anybody wishing to speak in favor of this application? In favor of? All right. Anybody opposed to the application? All right. Anybody opposed to the application? Any correspondence? PUBLIC HEARING OPENED MR. MC NULTY-This is the only correspondence is the statement that the applicant just handed me. It says, “To Whom It May Concern: As neighbors of Patrick and Cathleen Howland, we do not object to their installation of an additional storage shed of approximately 12 x 18 feet on their property at 1 Sawn Rd.” And it’s signed by seven people, Emma E. Howard at 11 Sawn Rd., Judith Bren at 11 Sawn Rd., Linda Pacyna, 10 Baker Rd.; Kim Nelson, 16 Baker Rd.; Phyllis Merlow, Stewart Rd.; Bruce Vanderzyden, 10 Little Rd., and James Stockwell at 8 Sawn Rd. MR. STONE-Anything else? MR. MC NULTY-That’s it. MR. STONE-All right. Let me close the public hearing. PUBLIC HEARING CLOSED MR. STONE-Chuck, let’s start with you, Chuck Abbate. MR. ABBATE-Okay. All right. Thank you. I understand, Mr. Howland, what you’re saying, and I can appreciate, because I only have a one car garage as well. What concerns me, basically, and this doesn’t mean that I may not support your application, but it concerns me that there was a miscommunication in the beginning about this, and I would suggest that you tear the shed down that was already constructed and send it back to the manufacturer and request that he provide you with a larger shed. I think that’s a hardship. I think that would be an unreasonable request from my point of view. Fair and balanced, I guess. What’s fair and balanced. Your neighbors don’t object. You’re fortunate in that you are able to have the amenities that you’ve indicated to us that you have, the eight kayaks, etc., etc.. Do we deprive you of that privilege? I don’t think so. I don’t like the idea that there was a miscommunication initially, because the hairs on the back of my head always go up, but do we punish the applicant, and in my opinion, no. So I would reluctantly be in support of your application. 5 (Queensbury ZBA Meeting 9/25/02) MR. STONE-Let me ask a question of Staff that you raised in my mind. If these were on a rack outside, if these kayaks were set on a rack like he’s had before, where does that come under the zoning? MR. FRANK-I don’t believe it’s governed because it’s not a structure by Building and Codes standards, New York State Building and Codes. MR. STONE-Okay. So it could be there and it could be covered with a tarp. MR. FRANK-And not be in violation of the Ordinance? MR. STONE-Yes. MR. FRANK-I believe so. MR. STONE-Okay. Jim, you’re next. MR. UNDERWOOD-Yes. I’m going to err on the side of the applicant. I think, you know, you have a pretty small garage, as has been pointed out. The second shed is a bit of a stretch, you know, asking for a second one. The only thing I can really think of doing is, you know, the smaller shed you have, you could move it over in back of the garage so it doesn’t really look like there’s a second shed on the property. It would look more like there’s a small addition off the back of the garage, and I think that certainly the size of the new shed would be probably smaller than if you had added on a whole other bay on your garage and gone that route, too. So, despite the fact that it’s an extra shed, I’m going to go with the applicant. MR. STONE-Let me ask a question. Mr. Underwood made a suggestion. Is that something that, if we were to grant the other one, you might consider putting the smaller shed directly behind the garage? MR. HOWLAND-I can do that, yes. Definitely. MR. STONE-So that it’s right, almost touching it? MR. HOWLAND-Absolutely. MR. STONE-Okay. Norman? MR. HOWLAND-I could match it up with the stain, and you wouldn’t know it was there. MR. STONE-Norm? MR. HIMES-Yes. Thank you. I agree, somewhat, with what Jim has suggested. Other than that, I might point out that, in my opinion, that what you’ve got, being on that bend in the road there, is that your back yard is as visible from the road at least as your front yard, and so you come around an attractive looking house from the front, and you turn the corner, and it’s a different story. MR. HOWLAND-Right. I have like, no back. MR. HIMES-There’s a white pine there of fairly good size. What I would say is an alternative, say to what Jim has suggested, with the smaller shed, is to just, if there were like some, a little hedgerow around that part of the property, that would shield all that stuff you’ve got in there from view, say it was six feet high or something like that, and then I could go along with it, but I would yield to what Jim has said, if necessary, but I think the whole thing is really the unsightliness and a hedge would be a better alternative, in my opinion. MR. HOWLAND-Well, my whole object is to make the property look nice. That’s really what that’s all about, and I thought the shed was a nice looking shed, and if I can get that. MR. HIMES-Well, you could have this hedge, but an access, a cut in it to be able to access the shed from the road, of course, but that’s all I had. Thank you. MR. STONE-Okay. Chuck McNulty? MR. MC NULTY-Okay. I’m going to be the odd man out, I think. Somebody’s got to be the stinker in the process. I’ll be it on this one. Two or three thoughts. One, I can understand a neighbor’s viewpoint. Half the mess is better than a whole mess, but there really shouldn’t be a mess at all on a residential lot. Frankly, I think that the kind of collection you’ve got belongs on a bigger lot somewhere, maybe where there’s room and permission for a barn or whatever, and notes that I scribbled down quickly here, whether it’s kayaks that you’ve got or horses or cows, or whatever you like to collect, there are certain lots that you’re not supposed to have those kinds of things on, and on that basis, I can’t see any difference between someone that wanted to keep horses or somebody that wants to keep a warehouse worth of kayaks. I think there’s just too much 6 (Queensbury ZBA Meeting 9/25/02) stuff on that property. If the loose boats were confined and were inside and all the other loose stuff was inside, I might be willing to consider the oversized shed, if the other one either was removed or basically disappeared behind the garage, but with the situation the way it is, I’m going to be opposed. MR. STONE-Roy? MR. URRICO-Yes. I’m going to take this down the test that we have, the five criteria, and as far as the benefit to the applicant, obviously you would be able to keep your kayaks contained in this oversized additional storage structure. The feasible alternatives, there are some feasible alternatives, and whether you can’t utilize them or at this point it’s impossible to utilize them, that’s your decision, but there are feasible alternatives, so, in the benefit I think you come out ahead, but on the feasible alternatives, I think there’s a negative there. As far as the relief substantial relative to the Ordinance, this is a tough one. On one hand, you’re asking for 100% relief, getting the second shed. On the other hand, the amount of relief from the maximum size requirement is very minimal. So there’s a plus and minus there, as far as I’m concerned. On the effect on the neighborhood or community, here’s where I come out on your side, Mr. Howland, as far as the minimal effects may be anticipated as a result of this action. Not only that, but you could have stayed outside. You didn’t have to go and store your kayaks and by doing so, I think the neighborhood benefits. So I think you come out ahead on that one, and as far as the difficulty being self-created, yes, it was self-created. So, here I have two on the plus side, two on the minus side, and the third one, I’m coming right back to the relief substantial relative to the Ordinance. I guess I’m weighing, is the relief severe, as opposed to the minimalness of the size requirement, and I guess in this case, the tie goes to the kayaker, as far as I’m concerned. So I would be in favor of it. MR. STONE-Al? MR. BRYANT-I think I’m going to side, this time, with Mr. McNulty. As a Board, we are charged with providing the least amount of relief that the situation necessitates. So, in my view, this is one of these arguments of necessity versus convenience. The fact that you have a lot of stuff and you need a lot of storage is really a matter of convenience rather than necessity. We’re not talking about a bedroom for your sixth child. We’re talking about a place to put eight kayaks. So, with that in mind, I’m going to come on the negative side of the application. MR. STONE-Okay. Before I speak, you’ve heard a couple of suggestions. I think one your were ready to adopt, putting the smaller shed, if we were to grant you the second shed, putting the second one directly behind the garage, so that it looks more like an extension of the garage. Is that correct? MR. HOWLAND-Yes. MR. STONE-I’m like the rest of the Board. I mean, right now we’re fairly even divided, in terms of our opinion. The concern is, obviously, the test, as Mr. Urrico specifically went through, the benefit to the applicant is obvious. I mean, we always know that one. Certainly, we know that it’s self-created. So now we’re one and one. The relief substantial to the Ordinance is an interesting one that no one has seemed to talk about. There is no area relief necessary if we don’t grant you the second shed. So it’s kind of a, the fact that there are two here, a kind of difference. In other words, we’re sort of saying, well, if we give you a second shed, it’s going to have to be the one that requires the further variance, and that sometimes confuses things a little bit, confounds things a little bit. There are feasible alternatives. Certainly clearly there are feasible alternatives. You could store the kayaks outside separately on a rack, as you did before, with the tarp on it. Certainly you could find storage for these things, for the seasons that they’re not being used. I know there’s an expense, but nevertheless it’s a feasible alternative. The effects on the neighborhood, I think a couple of members have said, it’s a corner lot, and if you approach it from Stewart, down Sawn, wow, don’t see any problems at all, particularly if this first shed is behind the garage. Then you turn the corner, and quite frankly you’re hit with a great deal of clutter, and even though you put the shed in, or unfortunately I saw it on Monday, and you’re saying the other one of the boats is away in that shed now, and you’re saying that some of the other things are going away in there, we hope. I guess on balance I would reluctantly say, if you’re willing to move the first shed so that it doesn’t appear, and do your best to keep the yard as neat as possible, I would reluctantly say that I would approve a variance. Having said that, I guess I want a motion to approve. Who wants to go? MR. ABBATE-I’ll take it. I don’t mind doing it. MR. HOWLAND-Well, that was my initial goal, to make the property look nice. MR. STONE-Well, we’re going to make sure, we’ll put that in the, won’t we, Mr. Abbate? MR. ABBATE-Yes. You want another stipulation. I already have one. All right. We’ll make it nice and clean. All right. 7 (Queensbury ZBA Meeting 9/25/02) MOTION TO APPROVE 73-2002 PATRICK & CATHY HOWLAND, Introduced by Charles Abbate who moved for its adoption, seconded by Roy Urrico: 1 Sawn Road. Mr. Howland has requested and has added an 11.8 foot by 18.1 foot storage shed to their parcel, in addition to the one allowed. Mr. Howland requests relief for a second storage shed and for 13.6 square feet of relief from the 200 square foot maximum size requirement for storage sheds in an SFR zone, 179-5-020D. Benefit to the applicant. Mr. and Mrs. Howland would be permitted to keep the oversized additional storage structure on their parcel. Feasible alternatives. Well, based on the conversation this evening, it’s my opinion that there really are no feasible alternatives, as the shed is already constructed and in place. Three, is this relief substantial relief relative to the Ordinance? Relief for an additional storage shed may be considered, and probably is considered, substantial, relative to the Ordinance, 100%, and a 13.6 square foot relief from the 200 square foot maximum size requirement may be considered minimal relative to the Ordinance, 6.8%. The effects on the neighborhood or community. There appears to be minimal effects anticipated as a result of this already constructed building, and there is a letter of support. Is this difficulty self-created? Based on Mr. Howland’s comments that there is a miscommunication between himself and the Town, I believe in my opinion that this somewhat mitigates this difficulty being self-created. It is self-created, but I think there might be mitigating circumstances concerning that. Now, there are two stipulations. One stipulation is that you move the small shed next to the back of the garage, and the second stipulation is that Mr. and Mrs. Howland take this approval with the condition that they make every effort that is humanly possible to make the yard as presentable as possible and a credit to the community, and based on that, I move that Area Variance No. 73-2002 be approved. Duly adopted this 25 day of September, 2002, by the following vote: th MR. STONE-I know that that second condition is going to be hard to enforce, and it’s more the good faith of the applicant that we’re requesting, rather than a hard and fast that we’re not going to come driving by every day and say, you left something out, but the good faith that you’re willing to say that, in good faith, you’re willing to do the best that you can. MR. HOWLAND-Absolutely. That was the whole reason for the beginning of all this. MR. STONE-Okay. That’s really what we’re asking for I think here. AYES: Mr. Urrico, Mr. Abbate, Mr. Himes, Mr. Underwood, Mr. Stone NOES: Mr. Bryant, Mr. McNulty MR. STONE-There you go. MR. HOWLAND-Thank you. AREA VARIANCE NO. 74-2002 TYPE II LOIS CLARK PROPERTY OWNER: SAME AGENT: ROBERT CLARK ZONE: WR-1A, CEA LOCATION: 159 PILOT KNOB ROAD APPLICANT HAS CONSTRUTED A 10 FT. BY 10 FT. DECK ON THE SOUTHWEST CORNER OF THE HOUSE AND SEEKS RELIEF FROM THE SIDE SETBACK REQUIREMENTS OF THE ZONING ORDINANCE. CROSS REFERENCE: BP 97-721 (REPLACE SHED) ADIRONDACK PARK AGENCY WARREN CO. PLANNING: 9/12/02 TAX MAP NO. 227.14-1- 22/18-1-22 LOT SIZE: 0.24 ACRES SECTION 179-4-030 ROBERT CLARK, REPRESENTING APPLICANT, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 74-2002, Lois Clark, Meeting Date: September 25, 2002 “Project Location: 159 Pilot Knob Road Description of Proposed Project: Applicant has constructed a 10-foot by 10-foot deck on the southwest corner of the dwelling. Relief Required: Applicant requests 8 feet of relief from the 20-foot minimum side setback requirement of the Schedule of Area and Bulk Requirements for the WR-1A Zone, § 179-4-030. Criteria for considering an Area Variance according to Chapter 267 of Town Law: 1. Benefit to the applicant: Applicant would be permitted to keep the deck as built. 2. Feasible alternatives: Feasible alternatives may include relocating the deck to a compliant location between the dwelling and the shore; however, the deck would then be highly visible from the lake. 3. Is this relief substantial relative to the Ordinance?: 8 feet of relief from the 20-foot minimum sideline setback requirement may be interpreted as moderate relative to the Ordinance (40%). 4. Effects on the neighborhood or community: Minimal effects on the neighborhood may be anticipated as a result of this action. 5. Is this difficulty self-created? The difficulty may be interpreted as self-created. Parcel History (construction/site plan/variance, etc.): BP 97-721: issued 12/03/97, replace shed with a 200 sq. ft. shed. Staff comments: Minimal impacts may be anticipated as a result of this action. The applicant claims he thought the side setbacks for his property were 12 feet. The violation was discovered after the owner of the adjacent property registered a complaint. The applicant could relocate the deck to a compliant location 8 (Queensbury ZBA Meeting 9/25/02) between the dwelling and the shoreline; however, the current noncompliant location of the deck is screened well from a lake perspective by mature evergreen trees. Relocating the deck to the compliant location would greatly increase its visibility from a lake perspective. SEQR Status: Type II” MR. MC NULTY-“Warren County Planning Board Project Review and Referral Form September 12, 2002 Project Name: Clark, Lois Owner: Lois Clark ID Number: QBY-02-AV-74 County Project#: Sep02-27 Current Zoning: Residential Community: Queensbury Project Description: The applicant proposes a 9’11” x 9’11” deck off the south west corner of the house. Applicant seeks area variance from side yard setback. Site Location: Pilot Knob Road Tax Map Number(s): 18-1-22 Staff Notes: The applicant requests a variance for the construction of a 100 sq. ft. deck off of an existing home. The applicant proposes the deck to be located 12.6’ from the side property line where 20 ft. is required. The drawing shows the location of the deck. 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-Okay. Sir? MR. CLARK-My name is Robert Clark. I am the applicant’s husband. I certainly want to start by saying that I was in the wrong, and I was unaware of that. I believed, at the time, that the setbacks were 12 feet, and, you know, that is my mistake. I won’t try to deny that, but by placing the deck where I did, I thought that it was the best place possible to not be visible from the lake, and I don’t know, we live at the house year round. We just needed a place to go out and have a cup of coffee, and, you know, our house is, we have a log cabin that we try to keep in earth tone colors so that it blends in as best as possible. We plan on doing the same thing if we were allowed to keep the deck. If you decide not to, I certainly can take it down and I will relocate it around the other side of the house that is a compliant area, but I think that that will be much more detrimental to the neighborhood, well, not detrimental necessarily, but certainly more visible to anybody that is riding in their boat on the lake, and, other than that, I really don’t have a lot. MR. STONE-Okay. Any questions? MR. ABBATE-Kind of humorous thing. Your wife Lois, any connection? I don’t feel good this evening. I had to put that in there. MR. CLARK-I will certainly have to tell her about that when I get home. MR. MC NULTY-I’ve got a question. You said you thought the setback was 12 feet. Now does that mean that this was put up without a building permit? MR. CLARK-It’s the size where it wasn’t required to have a building permit. MR. MC NULTY-Okay. MR. STONE-So you didn’t come by the Building Department at all? MR. CLARK-No, I did not. MR. STONE-Okay. You are aware they’re a full service agency, and they would have given you all the help in the world. MR. CLARK-Well, certainly, I won’t do any changes again without doing that first. MR. BRYANT-I have a question for Staff actually. I’m looking at the application, and, you know, like the setback requirements, the site development data, I mean, none of that data is filled out. How did that application, I mean, applications that come in that are not complete should be rejected, until they are complete. I don’t know what the existing setback is. I mean, I see it on this map, but all that information should be filled out. MR. FRANK-There were only two items missing on the site development data sheet on the upper portion and two on the lower. MR. BRYANT-Well, the existing, the existing setbacks in all three areas, and the proposed setback would reflect the difference. MR. FRANK-Well, that’s a fair question, and the applications are supposed to be reviewed. MR. BRYANT-I know it’s not you personally. I’m just saying, generally speaking, if an application is not complete, with all the proper data, it should be either made complete or rejected. 9 (Queensbury ZBA Meeting 9/25/02) MR. FRANK-That’s correct, and in this case, to be honest with you, we had a light agenda this month, and to take the chance of denying this because it wasn’t complete, even though once I spoke with the applicant and I told him, hey, you’re missing some information, then we worked on it together, filled it out. I didn’t want to carry it over to the next month. If we had, we’d have had way more than we could handle this month coming up. So, you’re right. We can turn down an application if it’s not complete. MR. BRYANT-One other question, relative to the application, and I guess the map that you drew, this was drawn as a result of the application? MR. CLARK-Yes. MR. BRYANT-Okay. Because it says a proposed deck, and it’s actually an existing deck. That’s all. MR. HIMES-A question, sir. The fence between yours and the property to the south I guess it is, is that yours or the neighbors’? MR. CLARK-The neighbors’. MR. HIMES-It’s the neighbors’, and in connection with your deck, I can see you’d want to walk straight out from the interior of the house. MR. CLARK-Right. MR. HIMES-It’s kind of elevated there, but that kind of puts you right pretty much at the top of that fence. Was there any consideration of putting the deck a little lower? MR. CLARK-Well, to be able to walk down the walk to the stairs to the water, you needed a certain amount of head room. So I put the deck as low as a I could so that you could still walk underneath it. MR. HIMES-Thank you. MR. STONE-Any other questions? I have a question about the dock, only because when I was visiting the site, it was different. Do you know where the 100 feet line is from low water mark or the high? MR. CLARK-I do not. MR. STONE-How far out does that dock go, do you know? MR. CLARK-I do not know that either. It was constructed when we got the property. MR. STONE-It was there when you got the property? MR. CLARK-Yes. MR. STONE-Okay. Any other questions? If not, let me open the public hearing. Anybody wishing to speak in favor of this application? In favor of? Anybody opposed? Come forward, gentlemen. PUBLIC HEARING OPENED MARTIN AUFFREDOU MR. AUFFREDOU-Mr. Chairman, I had submitted a letter to Staff yesterday. I wonder if they were distributed to you? MR. STONE-No, they were not. Thank you, Mr. Auffredou. Do you want to read this in? MR. ABBATE-Staff already has all of this? MR. AUFFREDOU-Staff? No. What was handed out to you, by Mr. Walker and by (lost word) Staff has my letter. MR. ABBATE-Okay. I’m going to object to this, Mr. Chairman. MR. STONE-Well, he’s going to read it, he can read it in. MR. ABBATE-Yes, but, it was quite earlier that we all agreed, as well as the Zoning Administrator, that we will not accept, at the very last minute, additional documentation without having the opportunity to thoroughly review it. So I object. 10 (Queensbury ZBA Meeting 9/25/02) MR. STONE-Okay, but I will ask, these are the applicants. They can read, this is public. You’ve got five minutes, gentlemen. MR. AUFFREDOU-We’re not the applicants. MR. STONE-No, you’ve got five minutes. You’re not the applicant. So you’ve got to summarize, you can summarize this in five minutes. MR. BRYANT-But I think what Mr. Abbate is saying, okay, is now we’ve got a 15 page letter here that we have to. MR. STONE-That is true, and we can ignore it individually, and your time hasn’t started yet, obviously. MR. BRYANT-Yes, but reading it into the minutes is different than. MR. STONE-No, he’s not going to read it in. MR. BRYANT-Than absorbing it, okay. MR. STONE-Okay. That’s a good point. MR. MC NULTY-But there’s no good way for the public to present information to you ahead of the public hearing. This isn’t the applicant supplying information. This is public comment. MR. BRYANT-I’m aware of that. MR. STONE-They could, but they could put it in as a letter. MR. BRYANT-They could have sent it to the Town. MR. STONE-But we would not have heard it anyway. MR. AUFFREDOU-And we did put it in as a letter. It was sent to Staff yesterday. They had it. MR. STONE-Okay. I am perfectly willing, I mean, I hear my Board, and I hear the concern. You are responding in opposition to this application, and you have five minutes to make your presentation. WILLIAM WALKER MR. WALKER-My name’s William Walker. I’m the property owner just to the south. By the way, I just got this application on Saturday. So, this is as soon as we could get information to you. As you can see by the copy of the survey map that I handed you, we have a very unique situation here. Both houses are grandfathered in, much closer to the property line, both my house, which is identified here as Walker, and the Clark’s house, the subject property of this hearing identified as Clark. I’m only 11 feet off the property line, and Mr. Clark, his self-serving map notwithstanding, is only 13.24 feet off the property line, even though he says on that map that he’s 17 feet. This is a 1990 survey. It was recorded, and is a matter of public record in the Warren County Clerk’s Office, and I paid the surveyors to come back out in August of 2000, before I built that fence that was just referred to, and had them reconfirm these distances. I’m 11 feet off the property line. They’re 13 up by the road, and mark it out also. They put a series of wooden stakes down. The Clark map also shows that their deck as built is, is 12 and a half feet off the property line, but it actually scales to nine feet off the property line. Those survey stakes that were put up in August of 2000 were all pulled out, by the way, and although I didn’t see anyone specifically do it, Mrs. Clark apologized to me that her children had pulled them all out. So there’s $700 worth of surveying that got thrown out the window, and it would have marked exactly where the line is, so the Clark’s map would have been correct instead of off by three or four feet. Now this survey changes the application, and it substantially changes the Staff analysis. It’s sort of good that we have an actual structure here that we’re talking about, as opposed to just a theoretical one, because instead of just theory, I can tell you what the experience is with it. The problem here is we have a cumulative effect of my house being grandfathered in too close to the line. They’re already too close to the line, and we have a set of unique acoustics where a normal conversation on this new deck projects in the manner that I have this little yellow line. It goes right into these three X’s are three bedroom windows on my house. We’re not talking about a boom box blasting. We’re talking about people talking at a normal level. The first two, the two closest bedrooms, have no air conditioning, and on hot summer nights, those windows have to stay open, and it’s impossible to sleep in those rooms until the Clark’s have finished their conversation out there. I’ve marked in pink where their existing porch is, where they used to sit out all the time and talk and have their coffee, and the circumstances there are not the same. The acoustics do not carry those conversations into our bedroom windows and they’re not a problem at all. I would also expect that if they moved the deck out where it’s actually allowed, that the sound would dissipate out and not cause the same sort of problems. Another problem with the Staff analysis is this survey shows their property is 15,052 square feet. The floor area worksheet that Staff worked up had a number about 1,000 feet, more than 1,000 feet less than that. This 11 (Queensbury ZBA Meeting 9/25/02) indicates that there’s actually 330 feet that they could build, and this is not an either/or situation. It’s not, the deck is over on the side, or it’s going to be over in front. If you allow this application, and approve it, the deck will exist on the side, and they can still build another couple hundred feet towards the lake. There’s nothing to prevent that whatsoever. Mr. Frank did comment to me that this is a very insubstantial deck, as far as you requiring them to take it down. Mr. Frank said to me it would take, he felt, about a half hour to take it down. Mr. Clark is a Carpenter, and he certainly could accomplish this. It would not be a great hardship on the applicant, but it certainly is a tremendous hardship on his very close neighbor, when we can’t sleep in our bedrooms at night, because of the particular location of this new deck, and my attorney has a comment also. MR. AUFFREDOU-Mr. Chairman, I’ll be brief. Martin Auffredou, on behalf of Mr. Walker here. You have the letter. I’m not going to repeat or rehash the letter. I’ll just make a few brief points. The Staff analysis, when they talk about effects on neighborhood or community, there’s a piece that’s missing. 267B says it’s not only the effects on the neighborhood or the community, but it’s also whether there will be a detriment to the nearby properties. Now maybe that’s the same thing, but the detriment to the nearby property, you don’t get any more nearby than this gentleman. There’s clearly a detriment to him as he has spelled out here this evening. I think that Staff correctly points out that there are feasible alternatives. From my view, there’s nothing worse than asking a Zoning Board for an after the fact variance. What you have to do is you have to sort of pretend that this deck isn’t there. You have to say, what would we do if this wasn’t there. MR. STONE-That’s five. I’ll give you another minute. MR. AUFFREDOU-Thank you. I appreciate that, but the fact of the matter is is that it is there. So it’s a very difficult procedural process for you to go through. The only thing that may be more difficult is an after the fact Use Variance, but you have an after the fact Area Variance. There are clearly feasible alternatives. The feasible alternative is to put a deck along the lakeside portion of the house that is compliant, that complies with the Code. It does not require a variance. In my view, case closed. If there is a feasible alternative which does not require a variance, the case is over. They must comply with that. You cannot grant a variance. That’s what the law says. Remember, also, self-created hardship here. It’s clear it’s self- created. I think the applicant even acknowledges that. That standard is in the law. It’s not determinative in an Area Variance situation, but it can’t be ignored, and in this instance I think, combined with the fact that you have a substantial variance requested, there are feasible alternatives, and there is an obvious detriment to Mr. Walker, self-created hardship has to trigger a denial. Thank you. MR. ABBATE-Mr. Chairman, there’s also an obvious detriment to this Board. I see Counsel refers to Robbins versus Seife, and, quite frankly, it’s unfair to me and to the rest of the Board, I have not had an opportunity to review this case. MR. BRYANT-That’s, I wanted to ask the Counselor specifically that. Do you have copies of those rulings? MR. AUFFREDOU-I don’t have them with me, no. MR. BRYANT-Okay, you know, this comes up before the Board every meeting we have, where the applicant has a clear alternative that doesn’t require a variance, and this Counselor is citing cases where that, you know. MR. STONE-This is the public speaking. MR. BRYANT-I understand that. MR. STONE-And the public made a statement they’re willing to stand behind, this paper notwithstanding. MR. BRYANT-He makes reference to certain legal cases. MR. STONE-Not in his presentation. MR. BRYANT-Not in his presentation, but in this piece of paper. MR. STONE-You have a perfect right to ignore that, as far as I’m concerned. MR. BRYANT-He did make a reference to this court case in his presentation two seconds ago. MR. AUFFREDOU-I guess I’m a little troubled. Why are you so opposed to hearing from us? MR. BRYANT-I’m not opposed to hearing it, but what I would like, now that we have this information, to see what these cases actually say, if they apply. MR. MC NULTY-I think, though, that that’s where our option of tabling comes in, because this is the public responding to an application. They didn’t have the application information at the time Staff created it. They first had to see the public announcement of this coming up. So they haven’t had probably as much time as 12 (Queensbury ZBA Meeting 9/25/02) we have had to see the application and digest it. I think the point’s being made that maybe we need more time to consider some of the points that they have presented. MR. WALKER-I did offer Mr. Frank the survey information on the, I believe it was the 12 of September th that we spoke, and he said, no, no, no, just bring it to the public hearing and give it to the Board. MR. STONE-Obviously, there is concern on the part of some Board members, not shared, quite frankly, by the Chairman, but that’s okay. That’s why we’re here, all seven of us. I mean, we have had many situations where the public comes before us and in many cases has made even longer statements than this. This was a perfectly, I think the applicant, the public in this case, Mr. Auffredou and Mr. Walker, presented a very succinct reading of their concerns in a very unemotional way, on a subject that’s obviously very emotional, and I want to congratulate them on that, and they didn’t get into personalities, and I am very appreciative of that. I don’t think this is any different than any other public presentation. We hear what they say. The fact that it’s being represented by Counsel doesn’t make any difference. I mean, Mr. Walker felt, and I’m speaking, if I’m speaking wrong, let me know, but Mr. Walker felt that he would be better represented by having Counsel with him. That’s okay. MR. ABBATE-You don’t feel that we are at a disadvantage when Counsel cites precedents and we have not had an opportunity to review? MR. STONE-We have a right to rule on this application, on this variance the way we have ruled on every other variance over the months and the years that we’ve been here, as long as we are not arbitrary and capricious, as long as we let the public and the applicant know why we did what we did. Norm? MR. HIMES-Maybe this is just a technical point, whether it’ll help to clear it up or not, I don’t know, but what we’ve got here I think are statements which are saying that what we’ve been looking at in the Staff notes are not accurate, that the information presented in our Staff notes are not what the situation is, and we also have part of the application, as Allan pointed out, which is incomplete. I’m wondering simply if that might be a technicality or enough of a one where we might say, all right, let’s get what the facts are, what are the measurements, get the application completed like it’s supposed to be, and then, I mean I could vote on the thing now, but I’m just wondering, as a technicality, should we do that? MR. STONE-We certainly can do that. That’s the prerogative of the Board to table it, so that we all have a chance to read the letter, and if we feel we have to. MR. HIMES-I don’t mean the letter, unless this stuff about the lines and the distance. MR. STONE-Well, all of the information that’s been presented. MR. HIMES-As Mr. Walker pointed out. MR. URRICO-Mr. Walker, can I just ask? You have two objections, from what I can tell. One being that the measurements that are represented here are incorrect or are not as accurate as they can be, but the second objection really is that you, under any circumstances, you don’t want to see a deck there, you want to see it in a compliant location that would require no variance? MR. WALKER-Exactly, and that that really would be a minimal imposition on the applicant. MR. URRICO-That’s basically where you’re coming from, that’s where your argument is? MR. WALKER-That’s right, and it is very buildable towards the lake, just as buildable as it is on the south side. MR. BRYANT-I have two issues. MR. STONE-Sure, go. MR. BRYANT-Mr. Walker, there are some trees and a fence there. When you talk, you’re talking strictly about noise, the trees, they don’t absorb any of the noise. Do you have clear sight from your windows to the deck? MR. WALKER-Yes. There are no trees. In fact, this deck is above the fence. The fence is six feet tall, and this deck starts about two feet above the fence, and there are no trees whatsoever from this deck towards the bedroom windows. MR. BRYANT-Okay. I just want, Mr. Chairman, I’m not objecting to the presentation during the public hearing. What I’m concerned about is the fact that the Counselor has stated precedence, relative to this type of application that directly affects this application, what he’s saying. Now as a Board, now that’s being brought to light at this point, and as a Board, if we vote on this application without actually knowing if that 13 (Queensbury ZBA Meeting 9/25/02) precedent is, you know, true to fact and really applies, then don’t we leave ourselves open to a challenge by Mr. Walker at a later date because that precedent would, is there. MR. STONE-Yes, that’s possible, but we have had many citations read to us by applicants that we have not checked, and it’s not our job to check. Our job is to do a balancing test of the detriment, the benefit to the applicant versus the detriment to the community or neighborhood, and neighborhood. MR. ABBATE-But how can you do a balancing test if you don’t understand the information being presented to you? MR. BRYANT-And not only that, let me just add one thing to that, because if what he’s saying in his presentation is correct, then this is not a question of a balancing test. This is a question, because when you talk about arbitrary and capricious, we would be granting that type of variance simply because he has a place to put the deck in a compliant location that doesn’t require a variance. MR. STONE-That’s grounds for denying the variance. MR. ABBATE-Your argument is sound. I have nothing against your argument. What I’m objecting to is your procedure. That’s what I’m objecting to. I don’t like individuals coming up the very last minute saying, well, we’re right. You may very well be, and here are the precedents, without having an opportunity to review that. MR. AUFFREDOU-I completely appreciate that, and as an attorney who represents a number of municipalities and Zoning Boards and Planning Boards, I know clearly where you’re coming from. MR. ABBATE-Thank you. MR. AUFFREDOU-And other boards have expressed that. We sort of put this in at the last minute, obviously. It went in yesterday. I did not ask Staff to make copies to get to you. I kind of assumed that maybe that would happen, but maybe that was a bad assumption on my part. My view is, is that, again, under a plain reading of the statute, and I agree with the Chairman, you do a balancing act, but as part of that balancing act, you must consider those criteria. One of the criteria is do you have a feasible alternative, which would not, which would alleviate the variance, and I think even Staff acknowledges that they do, and that’s my point. MR. STONE-Yes, and the other point that you didn’t make, and I will make is that we are supposed to grant minimal relief, minimum relief, which, obviously in the case of the last one, one versus two, it’s kind of hard to be minimal, but it was not three. MR. AUFFREDOU-I also think that there is a factual question here, as to the extent of the relief begin requested. MR. STONE-I appreciate that. All right. Anybody else wishing to speak in opposition? You can come back if you want. Let me see if there’s anybody else. Anybody wishing to speak in opposition? Is there any correspondence? MR. MC NULTY-No correspondence, other than the letter from the attorney. MR. STONE-Okay. Do you have anything new to add, gentlemen? I didn’t mean to chase you away, since I thought maybe there would be somebody else? MR. AUFFREDOU-No. We appreciate the time. MR. STONE-Okay. Well, I mean, I hear the feelings of the Board. Let’s go through the thing. Tell me where you stand and we can decide what we possibly will do. I am open to any suggestions. Let me start with Allan. MR. FRANK-Mr. Chairman, before you begin, I’d like to make a comment. When an applicant supplies an application such as this with a hand drawn plot plan, not a survey, I can only do so much when I go to the site to check for accurateness. So I did make a measurement from the closest point to the fence, and at that time I determined it was actually approximately 12 and a half feet, but after talking with Mr. Walker, he said that the fence is set back anywhere from a foot to six inches, so that’s why what you see down here is pretty much based on what I could determine, and I did let Mr. Clark know that you could very well require an as built survey of him to find out exactly what the relief is, and so again, if it’s going to be more than what he’s asking for, I think you have a pretty good idea the relationship of the deck to the fence. MR. STONE-We have a number of alternatives. One, we could request, as a condition of even voting on the variance, that we have a survey as built right now, so that we know what kind of relief that we would have to grant, because it is built. We have that option, and then we certainly have the right, even after we require an 14 (Queensbury ZBA Meeting 9/25/02) as built survey, we could vote it down. We could deny the variance. So, we could be, we could do a number of things, but let me close the public hearing. PUBLIC HEARING CLOSED MR. STONE-As I said, Allan, let’s talk about it. What do you, give me your thoughts on the application and any courses of action that you might think you’d like to do. My thoughts on the action at this point is I would like to digest some of what Mr. Walker and his attorney have brought to us tonight. Specifically, the paragraph in the letter relative to the two court cases, and I just want to say that, first off, coming to the meeting tonight after looking at the property, I, in the back of my mind, I did question why Staff would say that, in the feasible alternative paragraph, that there is the feasible alternative, however, the deck would be highly visible from the lake, and I understand that, but based on the map, and looking at the property, I mean, there’s some 70 feet to the lake, and, you know, I don’t know that that’s really a valid conclusion, and to tell you quite frankly, I don’t know how I’d vote, but I just want to hear what everybody else says. MR. STONE-Okay, but you would not be adverse to tabling it? MR. BRYANT-I would prefer, actually, to table it. MR. STONE-Okay. Roy? MR. URRICO-Yes, there are some similarities between this application and the previous application, in that it was already constructed and we’re looking at after the fact, but in my opinion, there are also some differences, big difference. Whereas like the earlier application, the applicant would receive the benefit of granting this application, and I believe there are some definite negatives to this. Obviously the feasible alternatives, there are some, and as far as the difficulty being self-created, yes it was self-created. I think the applicant, any applicant, need to know what the rules are, what the law asks for, but to me the two critical elements here is whether the relief is substantial relative to the Ordinance and the effects on the neighborhood or community, and even on the face of it, I’m not sure, in fact I’m positive, I would have liked to have seen this deck, eight feet of relief being granted. To me, 40% is still on the moderate side. I don’t think I would have been in favor of it. If it was eight feet, and certainly if it’s even closer, I don’t think I would be in favor of it there, but to me, the major element besides that is the effects on the neighborhood or community, and obviously we’ve heard from a neighbor in this case, whereas in the previous application the neighbors were generally in support of it. This one we only heard from one neighbor, but I think his point is well founded. It could have a ripple effect, and I think that’s something we have to really guard against. So I would be against the application. MR. STONE-Jim? MR. UNDERWOOD-Yes. I have several questions I would like to ask. In looking at the two parcels here, I think that one thing we have to keep in mind is that on these lake lots that are so very shallow and narrow, that, you know, you are in close proximity to your nearest neighbor, and looking at the sheet that was provided by the Walkers, I see on here that the lot in question here where the deck has been created is, you know, there’s something written on there from Reagan to Betty L. Walker, and then I see on the Walker’s lot that, you know, they own the one contiguous. So I don’t know if this is a family thing or whether the family is involved on both sides of the line here. At the same time, I think that we have to keep in mind the size of this deck. It’s a very small deck that’s being created. I don’t know if there was an access point. Was there a door there with stairs going down? I assume that’s what was there previous to this, and my question is this, and I would put this to you. If you put a very large deck which obviously could be built off the front because you’d have a 50 foot setback from the water. You could put a 20 foot wide deck all the way across the front of that place if you wanted to and party down every night out there, and no one could do anything about it. When I hear somebody saying that they’re bothered by, you know, people talking, voices in the night, I mean, people sit out on their decks in the summertime and when you’re in close proximity to each other, I think it’s something you have to accept. I mean, you might want to go to bed early. The other people might want to stay up late. You can respect each other by being a little more quiet. MR. CLARK-Mr. Walker doesn’t even live at the property next door that he’s talking about. It’s a summer home that he comes and visits. MR. UNDERWOOD-So, my question would be that, you know, I think that this is something that could be worked out or resolved between you. I don’t see that this is a huge deck that has massive parties going on out there until all hours of the evening. I assume that that’s not the case, and I think that, you know, you, as neighbors, need to get along, and I think that, you know, we could create another deck that’s a feasible alternative off the front of here, but you know, maybe that’ll happen in the future, and there’s really no complaint if a larger deck is created off the front of there, since it’s legal to have it there, but I really think that we’re making mountains out of molehills here, as far as the effect on the neighborhood. MR. STONE-Chuck? 15 (Queensbury ZBA Meeting 9/25/02) MR. MC NULTY-Well, I guess two separate thoughts. One, where I’m at on the application as it stands at the moment, we’ve got basically two non-conforming properties here. We’ve got two buildings that are closer to the lot line than would be allowed today if they were built. Therefore, it strikes me that any negative impact that shows up has to weigh heavily and balance, at least the way I figure things, and we’ve obviously got a neighbor that’s objecting. We’ve also got a real viable alternative in that there’s adequate, more than adequate space to build a conforming deck on this home. So, at the moment I’m coming down that I would be opposed to the variance. On the second issue of information, I think those are questions out there, and if any of the Board members would like to have time to research some of the points that have been brought up and possibly ask somebody to verify the distances involved, I think we should give them that time. I think we need to understand, though, that the applicant has a chance to provide us information early on. The public gets, at best, usually, what, about a two week warning ahead from the advertisement in the paper, and that advertisement and all procedures guide the public to plan on presenting their comments at the public hearing at the Board meeting. There’s basically nothing that says to the public, hurry up, look at this and get your information in early, and I think periodically we’re going to have points brought up by the public at these meetings that are going to need pursuit, and I think that we’ve just got to plan that when that happens, the answer is a tabling until the next meeting so that we have time to research that information. So, A, I’d be opposed at the moment, but, B, I’m also very much in favor of tabling for the purpose of digesting the new information and getting additional information. MR. STONE-Norm? MR. HIMES-Yes. Thank you. There are several points here that have a bearing on this matter, which have been discussed, but I think that, without getting into all that, I look at it from the standpoint that if this application had come in and you hadn’t built the thing, I don’t think I would have approved it, when you have an alternative which would not require a variance. So simply in short of that, notwithstanding all the other things that might have some bearing, I would not have approved the application, and therefore I don’t support it now, and unless required for technical or legal reasons, I don’t think that it’s necessary to table the application, in my opinion. Thank you. MR. STONE-Thank you. Chuck? MR. ABBATE-Yes, thank you. Mr. Walker is well served by his Counsel, no question in my mind. The argument is well founded, and it’s obvious to me that this Board has been influenced by Mr. Walker’s Counsel’s letter, well qualified letter, well put together letter, requesting it not be approved. However, Counsel’s entire argument states that we must, quote, that the application must be denied. Based upon this and the fact that I lack suitable information concerning the case he refers to, Mr. Chairman, I strongly recommend that we table this application. MR. STONE-Okay. I’ve heard every comment, and let me tell you where I stand on the application, forgetting the other ramifications, and I think we can discuss those some time at another point. This is a straight application for a variance, an as built variance, and we, I and many of us on this Board, when we’re faced with an as-built thing, we ask the question that Mr. Himes very clearly spoke, would we have granted the variance if you had come with clean hands, and in my case the answer is I would not have, and therefore, since it’s built, with all the other arguments, and I do appreciate the neighbors taking the time and incurring the expense to bring counsel with them, and making a good argument, as Mr. Abbate notes, the point is it’s a very simple thing in my mind. It is not a variance that I would grant under any circumstances. There are, if we go down the list, the applicant benefits, there are a number of feasible alternatives, and while I appreciate the comments about protecting the lake view, I really, to me, I don’t think it makes that much difference. First of all, trees are a temporary thing. You can’t assure me that the trees that you say shield it from the lake are going to be there forever. You can’t do it even if you wanted to. We have certainly heard the relief is certainly at least 40%. It’s at least eight foot. We have heard conflicting testimony that it’s closer to the line than the statement made in Staff notes. We certainly know that at least one neighbor, the most affected neighbor, and obviously a difficult situation, as I alluded to in thanking Mr. Walker and his Counsel for keeping it into the facts, keeping their presentation to the facts, obviously it’s a, there’s going to be an affect on the immediate neighbor, and therefore that’s certainly to the neighborhood, and it is certainly self-created. So, on two things for me, it fails to convince me that I should grant this variance, and since I have four people who are willing to say we’re not going to grant the variance, I would like a motion to deny. Mr. McNulty? MR. MC NULTY-Okay. MOTION TO DENY AREA VARIANCE NO. 74-2002 LOIS CLARK, Introduced by Charles McNulty who moved for its adoption, seconded by Norman Himes: 159 Pilot Knob Road. The applicant has constructed a 10 by 10 foot deck on the southwest corner of their dwelling. The applicant requests eight feet of relief from the 20-foot minimum side setback requirement of the Schedule of Area and Bulk Requirements for the WR-1A zone, Section 179-4-030. In considering this variance, we’ve considered the benefit to the applicant, which would be that the applicant would be able to keep the deck as built in the location he prefers. The feasible alternatives, there are feasible alternatives. 16 (Queensbury ZBA Meeting 9/25/02) There is an adequate compliant location on the lake side of the home where the deck could be placed with no variances required. Is the relief substantial relative to the Ordinance? Eight feet from twenty feet is forty percent, and especially considering we’ve had some indication that perhaps the relief needed may be even greater than that, I would judge that the relief is at least moderate in this case. Effects on the neighborhood or community. While there might be minimal effects to the people traveling down the road and people on the lake, nevertheless, we have seen that there definitely is a negative effect for the next door neighbor that’s most affected, and there also may be some negative effects in that case of establishing a precedent of allowing a deck in a noncompliant location when there is adequate compliance locations available, and is the difficulty self-created? The difficulty, in my view, definitely is self-created, since this was an optional construction that was elected to be done by the applicant. For those reasons, I move that we deny this application. Duly adopted this 25 day of September, 2002, by the following vote: th AYES: Mr. Himes, Mr. McNulty, Mr. Urrico, Mr. Bryant, Mr. Stone NOES: Mr. Underwood, Mr. Abbate MR. STONE-I’m sorry. MR. CLARK-That’s okay. MR. STONE-Just before we get to the next one, let me just talk a little bit about philosophy, because obviously there is concern on the part of Board members. Just because we had a lawyer presenting the opposition, it was still opposition, as we have in any case. It just may be more authoritative with the ability to cite references that maybe the ordinary citizen can’t, but I don’t think it’s really that much different. MR. ABBATE-Well, let me respond to that, because I think it does. When you have an attorney who submits a letter for to this Board and says that we have no option but to deny the application, and he makes reference to a court case, precedence, we have a duty and an obligation to check that out, before any type of vote is taken. That goes to credibility of the entire statement. MR. STONE-But if you read the paragraph, it says that we resubmit that since the applicant has an alternative that would require no variance, the application must be denied. That’s a person talking, happens to be a lawyer. He cites some cases where this must have been the situation, but I could get up there, as a layperson, and say, you’ve got to deny this thing because. I mean, I don’t think it’s much different. I really don’t, but we can talk about it at a further time. Maybe we should schedule a workshop and we can talk about a number of these things, but, next on the agenda is Area Variance No. 75-2002, the applicant Joseph & Jill Barone. AREA VARIANCE NO. 75-2002 TYPE II JOSEPH & JILL BARONE PROPERTY OWNER: SAME AGENT: JAMES MOONEY ZONE: WR-1A, CEA LOCATION: 5 HANNEFORD ROAD APPLICANT PROPOSES CONSTRUCTION OF AN 896 SQ. FT. RESIDENTIAL ADDITION ONTO THE EXISTING DWELLING. RELIEF IS REQUESTED FROM THE FRONT SETBACK REQUIREMENTS AND FROM THE REQUIREMENTS FOR THE EXPANSION OF A NONCONFORMING STRUCTURE. CROSS REFERENCE: BP 2002-603 (SEPTIC ALT.) ADIRONDACK PARK AGENCY WARREN CO. PLANNING: 9/12/02 TAX MAP NO. 240.06-1-27/20-1-22 LOT SIZE: 0.88 ACRES SECTION 179-4-030; 179-13-010 JAMES MOONEY, REPRESENTING APPLICANT, PRESENT; JILL BARONE, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 75-2002, Joseph & Jill Barone, Meeting Date: September 25, 2002 “Project Location: 5 Hanneford Road Description of Proposed Project: Applicant proposes construction of a 992 sq. ft. residential addition. Relief Required: Applicant requests 19.3 and 6.7 feet of relief from the 30-foot minimum front setback requirement (parcel fronts on State Route 9L and Hanneford Road) of the Schedule of Area and Bulk Requirements for the WR-1A Zone, § 179-4-030, requirement of Lots Bounded by Two Roads § 179-4-100, and for the expansion of a nonconforming structure, § 179-13-010 (A,E). Criteria for considering an Area Variance according to Chapter 267 of Town Law: 1. Benefit to the applicant: Applicant would be permitted to construct the desired addition in the preferred location. 2. Feasible alternatives: Feasible alternatives may include an expansion requiring less setback relief. 3. Is this relief substantial relative to the Ordinance?: 19.3 and 6.7 feet of relief from the 30-foot minimum requirement for both front setbacks may be interpreted as moderate to substantial, relative to the ordinance. Expanding a 1,405 sq. ft. dwelling by 992 sq. ft. may be interpreted as a moderate, relative to the ordinance. 4. Effects on the neighborhood or community: Moderate effects on the neighborhood may be anticipated as a result of this action. 5. Is this difficulty self-created? The difficulty may be interpreted as self created; however, some of the difficulty may be attributed to the location of the dwelling on the parcel. Parcel History (construction/site plan/variance, etc.): BP 2002-603: issued 07/15/02, septic alteration. Staff comments: Moderate impacts may be anticipated as a result of this action. The applicant could construct an addition, of the proposed size, that would require less relief from the setback requirements. 17 (Queensbury ZBA Meeting 9/25/02) However, due to the structure’s proximity to State Route 9L and Hanneford Road, the expansion, even if redesigned to minimize needed relief, will result in a much larger and taller structure in a highly visible location. SEQR Status: Type II” MR. MC NULTY-“Warren County Planning Board Project Review and Referral Form September 12, 2002 Project Name: Barone, Joseph & Jill Owner: Joseph & Jill Barone ID Number: QBY-02-AV-75 County Project#: Sep02-26 Current Zoning: WR-1 Community: Queensbury Project Description: The applicant proposes a single dwelling addition. The extension will generate additional living space. The existing home has setbacks that are not in compliance now – the new structure will not extend past existing setbacks. Site Location: 5 Hannaford Road Tax Map Number(s): 20-1-22 Staff Notes: The applicant requests a variance for the construction of a 448 sq. ft. addition to an existing dwelling. The addition will be two story with a total of 896 sq. ft. of living space. The addition will be 26 ft. in height where the existing home height is 19 ft. The parcel is 0.88 acres and the addition does not exceed the floor area ratio or height requirements. The existing structure is a non compliance structure in regards to the setbacks. The applicant indicates that the addition will be no closer than the existing home. The applicant proposes the addition to be 23.3 ft. to the front setback of Route 9L where 30 ft. is required. The addition is to expand the existing living room area and upstairs closet space, no new bedrooms are proposed. The plans show the addition location. Staff does not identify any impact on county resources. Staff recommends NCI. County Planning Board Recommendation: No County Impact” Signed by Thomas E. Haley, Warren County Planning Board 9/16/02. MR. STONE-Okay. You’re on. MR. MOONEY-I’m James Mooney, representing Mrs. Barone. MRS. BARONE-I’m Jill Barone at 5 Hanneford Road. MR. STONE-Okay. Do you have anything you want to add? MR. MOONEY-On the Staff notes, the existing dwelling was at 1405. Did you see that? MR. MC NULTY-Yes, it said 1405 square feet. MR. MOONEY-And there was a mistake made. It’s actually 925. MR. STONE-Nine twenty-five for the addition? MR. MOONEY-No, the existing. MR. HIMES-Yes. I was going to ask that question, too. I noticed on your application a significant difference between. MR. MOONEY-And I talked to Bruce prior to the meeting. He agrees, Bruce? MR. FRANK-I agree that it’s a technical nature. What is down here is the accurate amount of square footage of the building footprint and the garage. The garage, as you saw when you went to the site, is on the other side of the road. MR. STONE-Correct. MR. FRANK-So, in fairness to the applicant, definitely you could subtract the footprint of the garage from what the dwelling is going to have the addition added on to. MR. STONE-But it’s still roughly 100% increase in the size of the residence? MR. FRANK-Correct. MR. STONE-I mean, it’s still well over the 50%. MR. FRANK-From what he needs for relief, that’s correct. MR. STONE-Yes. MR. BRYANT-I want to ask a question about the actual application and your site drawing here. You’re showing your distance from the existing house as being 3.1 feet from Hanneford Road? MR. MOONEY-That’s correct. MR. BRYANT-And there’s a 30 foot setback there? 18 (Queensbury ZBA Meeting 9/25/02) MR. FRANK-That road is a road by use, and the setback is to the road bed. There’s not a right of way greater than the width of the road bed. MR. BRYANT-That’s not considered a front setback? MR. FRANK-It is. Both of those, Hanneford and 9L would be his. MR. BRYANT-That being the case, then doesn’t he require a 30 foot setback? MR. FRANK-Are you talking on the Hanneford Road side? MR. BRYANT-Yes. MR. FRANK-Well, he only needs a 30 foot setback where the new construction is going to be, not for the existing dwelling, and that 30 foot setback begins at the road bed. There’s not a 50 foot right of way here. This is a road by use. So what he has on his site plan map is accurate. MR. STONE-So in other words, we’re not requiring relief for the existing house. We’re requiring relief for the addition, which is much further away from the road. MR. FRANK-That’s correct. MR. STONE-It still needs substantial relief. MR. FRANK-But it’s not what the existing is. It’s what’s proposed, the new construction. That’s what he’s seeking relief for. MR. URRICO-Mr. Chairman, I don’t know that Mr. Mooney had a chance to finish his remarks. MR. STONE-I’m sorry. MR. MOONEY-In other words, this existing house has been there. It’s not something we built and we’re having. MR. STONE-Correct. MR. MOONEY-Okay. Not like the previous. MR. STONE-We know that. MR. MOONEY-And we don’t have kayaks. We have a baby. It’s different. No matter what they do with this addition, it’s going to require a variance, because of the size of the lot, and in accordance with the plans, I don’t know if you’ve reviewed those or not, this is the only viable way to place the addition to expand the home with stairways and whatever to accommodate their needs. They did, they’ve also gone through, as the application said, an engineered new septic system to accommodate the new addition. When they approached me on this idea of doing the addition, I said that’s the first thing you should do to accommodate the Town, and then plan your addition, and they did that. So that’s done. So now we’re here for the variance for the addition. MR. STONE-Okay. Is that it? All right. Any questions, gentlemen? I guess the one question I would ask, there is a lot of land across the street, and we’re starting with a small house, albeit a house that’s there, but was there any consideration given to moving the whole house across the road and building there? MR. MOONEY-I think the problem across that way, it’s very wet. It’s very low, swampy. Have you been up there? MR. STONE-Yes. I think that’s what my feeling was. You can speak for yourself. MRS. BARONE-Yes. During the summer and fall, it’s very wet over there when you go to walk in the grass. We’ve got a stream that goes right across the yard, and we also have a pond that builds up. When it rains, I come home from work and half the yard’s been an inch or two under water. MR. STONE-Okay. Any other questions? Not hearing any, I will, I asked my basic question. Let me open the public hearing. Anybody wishing to speak in favor of this application? In favor of? Please come forward. PUBLIC HEARING OPENED 19 (Queensbury ZBA Meeting 9/25/02) BARBARA LYNN MRS. LYNN-My name’s Barbara Lynn, and I live in the house directly north of the property, and we have no problem with the addition going there. We’re sure that they will do it tastefully and it’ll be, well, from what I’ve seen so far of what they’re planning on doing, I have no problem with it at all. MR. STONE-Okay. You’re in the house that the stream goes under? MRS. LYNN-No, it’s under their house. MR. STONE-Is it theirs? I know it goes under one of those there. It’s under yours. MRS. LYNN-It’s under their house. MR. STONE-Yes, I know that. MRS. LYNN-But, no, we’re in the red just north. MR. STONE-Okay. MRS. LYNN-So actually it would be coming out towards our property, and we have no problem with it. MR. STONE-Okay. Thank you. MRS. LYNN-You’re welcome. MR. STONE-Anybody else wishing to speak in favor? Anybody opposed? Opposed? Any correspondence? MR. MC NULTY-No correspondence. MR. STONE-Then let me close the public hearing. PUBLIC HEARING CLOSED MR. STONE-Any further questions? If not, let’s talk about it. Let’s start with Roy, we’ll start with you. MR. URRICO-First of all, I want to compliment you for not building the addition first. MRS. BARONE-I thought I had that in my favor. MR. URRICO-Taking the criteria once again, I think definitely the applicant would be benefiting from an addition, quite obviously. There do not seem to be feasible alternatives, as far as I can tell. As far as the relief substantial to the Ordinance, I guess in this case, because of the road by use, it really sort of warps the numbers to an extent, and I don’t have a problem with the numbers. I don’t have a problem with the expansion, and as far as the effects on the neighborhood or community, we heard from a neighbor, I think that’s strongly in your favor, and in a sense this is self-created, but I think the other parts of the test balance in your favor, and I would be in favor of it. MR. STONE-Jim? MR. UNDERWOOD-Yes. I, too, am in favor of this. I think that you have a pretty minimal structure there. The fact that you have that lane behind there that sees a minimum amount of traffic every day, the setbacks that we would grant from that I don’t think are a problem at all, and I think that 9L out in front is down below you. So there’s not going to be any problem as far as that goes, either. I think that you’ve put a lot of forethought into your plan, you know, dealing with the septic ahead of time, to kind of get you through that hoop real quick, too. So I’d be in favor of it. MR. STONE-Chuck? MR. MC NULTY-Last thing first. I think I’m also in favor. It’s a small house now. I can understand the need to want to expand. It’s a small lot. We do need to be careful in that general area because there’s lots of small lots and lots of grandiose building plans, but that being said, I think in this case, while it may be a little more visible, with the additional height and size, I don’t think it’s going to be objectionable. I think it’s a reasonable proposal, and the only real alternative I can see that we could suggest is sell the place and buy something somewhere else, which is kind of extreme. So in this case, with what’s proposed, I think it fits with the neighborhood and I’d be in favor. MR. STONE-Norm? 20 (Queensbury ZBA Meeting 9/25/02) MR. HIMES-Yes, thank you. I agree with what Chuck has just said. It is a very small house, and with the addition it’s still not going to be very big. The geography of the lot, I think, lends itself to this kind of construction. Ridge Road really is down below, and, all in all, I think that there’s no harm done to the Code or the community for going along with this, even though we are giving greatly in excess of even the 50% increase, which is a kind of a double whammy for nonconforming structure additions. So, in short, I would be in favor of the application. Thank you. MR. STONE-Chuck? MR. ABBATE-Yes. Thank you. Your application, in my opinion, shows good faith. You come before this Board requesting permission to do something. I think your request is reasonable. I don’t really see any feasible alternatives, quite frankly, and I think your new addition will serve you quite well, and I would be in favor of supporting your application. MR. STONE-Allan? MR. BRYANT-I’m also in favor of the application. I think that the relief is substantial, but the configuration of the lot, you really have no place else to put the addition, of consequence. So I’d be in favor of it. MR. STONE-Okay. I, too, bottom line, am in favor of it. I had a number of questions that I posed to myself when I saw the property. There is some concern that Hanneford is a very narrow road, but by the same token, please don’t tell me it’s become a speedway. I hope that cars aren’t going through there too fast, because it is very narrow. The fact that your neighbor to the, your immediately affected neighbor is in favor of this, has no problems with it, certainly is, one of the comments I wrote down, what do the neighbors think. So at least we heard from one neighbor, and I appreciate her coming out to give you support, because we don’t always get supporting neighbors. We always get the other kind. So, having said all that, I think when we do any balancing test on this thing, certainly the benefit to the applicant far outweighs the amount of relief that’s granted. I mean, it’s a small house and to put any addition on it, it’s very easy. You wouldn’t even want to spend the money to do less than 50%, I wouldn’t think. So, therefore, the fact that it’s going to be 100%, approximately, doesn’t trouble me. The setback, I don’t know where you put anything on that lot without requiring some kind of variance, and in one sense, while it’s self-created, you bought a house and you want to make it bigger, and you want to do it because the family’s getting larger, certainly doesn’t weigh strongly against granting this thing. So, having said that, I would like a motion to approve. MR. URRICO-I’ll take it, Mr. Chairman. MOTION TO APPROVE AREA VARIANCE NO. 75-2002 JOSEPH & JILL BARONE, Introduced by Roy Urrico who moved for its adoption, seconded by Allan Bryant: 5 Hanneford Road. The applicant proposes construction of a 992 square foot residential addition. The benefit to the applicant is that they would be permitted to construct the desired addition in this location. The feasible alternatives are limited in this case, and it seems that the applicants have chosen the most proper location. The relief is substantial relative to the Ordinance in a general sense, but for this road, it is not, given that this is a road by use, and the limited size of the road sort of throws the numbers off to a certain extent, but this addition is a moderate addition and certainly will fulfill the needs that they need. I think the effects of the neighborhood are minimal, if any at all, and the difficulty, although self-created, is self-created for a very good reason. I move that we approve this variance. The expansion is well in excess of 50%, therefore requiring the variance, but again, the 50% represents a well used dimension that I think will properly expand the house without causing undue harm to the variance. Duly adopted this 25 day of September, 2002, by the following vote: th AYES: Mr. Bryant, Mr. Abbate, Mr. Himes, Mr. McNulty, Mr. Underwood, Mr. Urrico, Mr. Stone NOES: NONE MR. STONE-There you go. MR. MOONEY-Thank you. MRS. BARONE-Thank you. MR. STONE-Make sure you get a building permit, if that’s all you need. Don’t do it without it. NOTICE OF APPEAL NO. 4-2002 COBY MC DONALD (CONTRACT VENDEE) PROPERTY OWNER: DONALD MAHAR AGENT: MICHAEL J. O’CONNOR ZONE: LI LOCATION: NORTH SIDE OF LUZERNE ROAD APPELLANT IS APPEALING ZONING ADMINISTRATOR’S LETTER DATED 7/5/02 THAT STATES RETAIL IS NOT AN 21 (Queensbury ZBA Meeting 9/25/02) ALLOWABLE USE WITHIN THE LI DISTRICT. CROSS REFERENCE: BP 94-068 (ROOF OVER MOBILE HOME) TAX MAP NO. 308.12-1-4, 5 MICHAEL O’CONNOR, REPRESENTING APPLICANT, PRESENT MR. STONE-Mr. O’Connor, you’re going to make a presentation based upon your letter? MR. O'CONNOR-Yes, I am. MR. STONE-Okay. STAFF INPUT Notes from Staff, Notice of Appeal No. 4-2002, Coby McDonald (Contract Vendee), Meeting Date: September 25, 2002 “Project Location: North side of Luzerne Road Description: The applicant is appealing the decision by the Zoning Administrator that retail uses are not allowable uses in the Light Industrial zone. Information requested: Applicant is appealing to the Zoning Board of Appeals for “Definition of Construction Company and Light Manufacturing – Display of product and limited sales. Staff comments: Staff agrees with the appellant on the issue of defining the proposed Landscaping and Lawn Maintenance business as a Construction Company. The elements and operation of such a business;….”where machinery, equipment, supplies and materials are stored and maintained for use or installation at another location,” as defined is a Construction Company. Such a definition includes a landscaping business. As the project was presented to Staff, the appellant sought to establish, in addition to the Landscaping Business, a retail operation (Nursery) offering items for sale to the general public. While such items may be similar or identical to those items used by the landscaping business, “the offering, for a fee, of goods, services and merchandise to the general public…” constitutes a Retail Business, which is not a listed allowable use in the Light Industrial district. Staff recognizes that the definition of Light Industry allows for a “showroom” for the display of the manufactured product. A small, retail area, limited by physical size rather than percentage of sales, has been offered to the appellant as a compatible accessory use. Such a retail area must be clearly subordinate to the principal use of the property. No sizes for such an accessory area have been discussed, nor should they be at this time. No site plan issues or land uses other than “Is retail allowable on this property” have been raised by the appeal and need not be discussed.” MR. STONE-Mr. O’Connor. MR. O'CONNOR-Mr. Chairman, gentlemen of the Board, I’m Michael O’Connor from the law firm of Little & O’Connor, representing the applicant, Coby McDonald, and also with us is Don Mahar, who is the owner of the property, and Mr. and Mrs. McDonald, the parents of the applicant who have some interest in what we’re doing here. I guess I would begin by saying sometimes you ask too many questions, but Coby McDonald, when he decided to purchase the Mahar property, wanted to be sure, with belts and suspenders, that when he went there and did things, he would not have a problem down the road, and that’s basically why we’re here. This is not an as built application. This is somebody who is trying to be sure that what he proposes is something that’s acceptable to the Town. I’ve gone through the Ordinance a number of times. This has been going on since some time in June, trying to come to some understanding of the Ordinance as it is. Probably only twice before did I ever run into the same type thing, and those two instances have been cured. I can remember when the K of C went to go up on Route 9. There’s no permission or there’s no permitted place for a fraternal organization, for them or the Elks Club. There also, when Singleton’s came to move up here, as a funeral home, there was no permitted place for a funeral home. We’re almost similar, but I’ve found, even since we’ve done all this, even a little bit more information. There doesn’t appear to be any place that clearly you can do a landscaping business which has as part of the business the operation of a nursery, notwithstanding that you’ve got Podnorski’s. You’ve got Meads. You’ve got a number of other places within the Town that basically do that. The type of business that we’re talking about is probably directed and probably most applicable to a Light Industrial zone. Right now, Mr. McDonald has three trucks, trailers, and mowing equipment, landscaping equipment. That fits in the industrial zone, but as part of that, and to make the business healthy, he also wants to be able to sell his product to the public. You look at the Light Industrial zone, and the initial reaction, and I think the incorrect reaction from the Town Staff is it doesn’t permit retail sales. It does, and probably the clearest thing is, if you look at the, if you’ve gotten one of those things that Staff now prints out on every property, that tells you what the permitted uses are in a Light Industrial zone, or if you look at the Code section, and the pages aren’t numbered in the book that I’ve got for Light Industrial, but it’s the table, Table Three, Summary of Allowed Uses in Industrial Zones. MR. ABBATE-We have that, Mike. MR. STONE-Yes, we have it. MR. O'CONNOR-One thing which I think, and it is more in preparation for this than anything that comes to mind, what we’re looking for is your guidance, is that one of the permitted uses in there is building supply, lumber yard. Not something that we’ve focused on before. If you look at the definition of Building Supply/Lumber Yard, it says a business with or without a building or structure, which means you can have 22 (Queensbury ZBA Meeting 9/25/02) outside storage, utilized for the storage of building and construction materials, and equipment for sale, either retail or wholesale. We know that whatever we’re going to do here needs to go in for site plan review, and what I ran into with the difficulty with some discussions I had with Craig Brown is we can’t tell you that this square footage is going to be used only for the nursery business. If we put bulk storage of aggregate, bark mulch, whatever this type business uses, and we have it there for our off site customers, but John Doe comes along and says I want a yard of that, do we then say that that’s retail space, or do we say it’s nursery space? When we do site plan, and I think I attached a small copy of a map to the application, what we are talking about doing, and this is not for site plan approval or site plan purposes, you see in the upper right hand corner we’re talking about yard storage and materials. That’s where we put our bulk material. That’s also probably where we would put our palletized material, the palletized material that you see at Lowe’s, that you see over at Curtis, that you see at all the building yards. We’re using it in a landscape business. We’re selling it to the public. I think probably we’re going to come out of this thing saying that everything that we’re looking for, and we’re trying to make sure that we don’t have a problem, is probably permitted under the building supply and lumber yard storage area. We’re talking about flowers. We’re talking about sod. We’re talking about shrubs, and then we’ll have an area where we’re going to store our equipment, and perhaps we’ll have a future greenhouse. I don’t think there’s any limitation in the Ordinance that says because the new definition of Light Industrial says that you can have a showroom for display of manufactured product, that you’re actually limited to that, if you fall in some other category, even if it’s retail. You take a look at Light Industrial uses, and you’re familiar with them, Logger’s Equipment. That’s Light Industrial. It’s on the Corinth Road. They’re whole yard is display for sale, on a retail basis, equipment. That’s a permitted use. That’s a retail sales use in a Light Industrial zone. Take a look at West Side Auto. Basically it’s a junk yard, if that’s the proper terminology, but if you look along the whole front of that, they’ve got displayed for sale, for retail, autos. They also sell to anybody that comes in. You’ve got a fender that’s missing, or you’ve got a rearview mirror that’s missing or something like that, you can go in and buy it, if you can identify it and they’ve got it in their yard. Arrowhead Equipment. Arrowhead Equipment has been before this Board. They have for sale, for retail, all the plows that they. I don’t know what else that they have. I think they have other lift gates, other type of equipment there also. So I don’t think Staff is correct in saying you can’t have retail sales in an industrial zone unless it’s in a defined showroom of some size, and I’m really not sure how they got off that. Duke Concrete. Duke Concrete, I don’t know the percentage of sales, contractor versus retail, but when I’ve looked for yard brick or something like that, I’ve gone over, I’ve walked through their outside display area. I’ve picked out the brick that I wanted to go around my garden and loaded it into a pickup truck and took it, and I’m a retail customer. That’s a permitted use in Light Industrial, and Mandigo’s is the same thing. I’ve got probably 20 different operations. Taylor Welding. Now Taylor Welding is inside, but you can go in and buy. I went in last weekend and bought an outfit for helium balloons. That’s retail. So, for Staff to say that retail is not permitted in light industry, in the Light Industrial zone, I think requires maybe something more than just that blank statement. It requires an analysis, and what I’m asking for is your interpretation that the sale of landscaping materials, whether they be in bulk or they be in bags, shrubbery, is actually permitted in a Light Industrial zone. I get that interpretation, then I’ll go for site plan review. I don’t think anything, if you took a look at the map, and I don’t know, I don’t think we submitted an actual survey of the map or the property. I don’t remember. Do you? MR. STONE-We have this. MR. O'CONNOR-Okay, and take a look at the zoning around it, and the parcels around it. This’ll fit in well. This won’t have a negative impact. I don’t think we’re going to have a problem with site plan review, but site plan review requires you to do engineering, drainage, all those type things, which are expensive, and I didn’t want to undertake that, in fact I couldn’t undertake it until Staff said, okay, go ahead, you can submit a site plan review application, because as I understand it, the way we’re operating is that if they think you might need a variance, you can’t go for site plan review. MR. STONE-Are you through? I’ve got, go ahead, you guys start. MR. O'CONNOR-Yes, Mr. Bryant? MR. BRYANT-Okay. In your letter, you cite Podnorski and you cite Garden Time, I think. MR. O’CONNOR-Yes. MR. BRYANT-When you say retail, are you talking about a Podnorski kind of operation or are you talking about a Garden Time? Because you’re really talking about Podnorski has, you know, a couple of guys come and buy whatever trees. Garden Time has got a steady flow of customers. It’s a different, retail. That’s Question Number One. Question Number Two relates to that. The percentage of retail sales versus your contracting stuff. I mean, what kind of balance are you going to have there, retail sales is going to be a very small portion of his business, and that’s what I’m hearing. MR. O'CONNOR-Probably, but we can’t tell you how the business is going to grow, and after he makes the investment in that property, he doesn’t want to be told that because he’s lucky and he got this particular part of the business operating, that he’s in violation. I don’t think the Ordinance, if you look at the building, if 23 (Queensbury ZBA Meeting 9/25/02) you look at the definition under Building Supply and Lumber Yard, as long as we’re talking construction materials, there’s no limitation. There’s no required percentage, and it says retail or wholesale. MR. ABBATE-Are you done, Mike? I’m sorry. MR. O'CONNOR-Yes. MR. ABBATE-Okay. Thanks. MR. STONE-Mr. O’Connor, please. MR. ABBATE-Yes, Mr. O’Connor. That’s correct. I would like to commend Counsel on a well prepared brief. Now, the critical comment in Counsel’s letter, in my opinion, is when he states, I would think that the interpretation is more appropriate. To me that’s critical, and if you, indeed, take a look at Section, I’ve made some fast notes, Section Five of Table Three, it clearly allows retail sales. I don’t see where there’s any prohibition to that, and Counsel has provided numerous examples of basically what’s going on in the Town of Queensbury today, and if I’m wrong, correct me, the principal function of your business is going to be landscaping? COBY MC DONALD MR. MC DONALD-Yes. MR. ABBATE-Yes, okay. Thank you, because if you had said no, I was in big trouble. Let me tell you. MR. STONE-And who said that? Just put your name on tape. MR. MC DONALD-Coby McDonald. MR. ABBATE-Mr. McDonald. Okay. Mr. McDonald says yes. If the principal function of your business is going to be landscaping, I really can’t see, at least initially, where any type of retail sales would overwhelm, percentage wise, your primary business. It just wouldn’t make sense to me. So I think that the argument is well founded, and quite frankly, I’m inclined to support the application. MR. O'CONNOR-My application, just so I’m clear and I don’t get people worried about precedent, is simply for landscaping nursery combination as being permitted in an LI zone. You may want to come back and look if there’s another type of product and it doesn’t happen to fall, I think almost everything he sells falls in the building supply/lumber yard definition, construction materials. MR. STONE-And to me, that’s the telling argument, and I certainly buy that as I read it, personally. I mean, it’s allowed, building supply is allowed, as you’ve quoted, a business with blah, blah, blah, blah, retail or wholesale, and I certainly have, it seems to me that that certainly should be allowed in this LI zone. The only question I had, and I’m going to ask it, I’m asking them out of order, you mentioned a number of landscaping people, a number of nurseries. Were they all pre-existing Ordinance? I mean, I don’t have any idea and it really doesn’t make a difference. I’m just curious. MR. O’CONNOR-Meads has been there since I was in law school. MR. ABBATE-Which is how long ago, sir? MR. O'CONNOR-It was in the Sixties. So, and we adopted a Zoning Ordinance in 1967. I graduated ’67. I lived probably a quarter of a mile down from Mead’s, and that was there then, but, I would say this. They have, and I have no objection to it, and I don’t mean to cause problems, they’ve built buildings. They’ve expanded different things in there, and nobody has come in and said, you’re expanding a non-conforming use. That’s been recognized. Podnorski’s used to be Didio’s. I don’t think it was the same type of operation that it is now. Somebody might be more familiar with that operation than I am. MR. STONE-I was just curious more than, it doesn’t bear on. MR. O’CONNOR-Okay. MR. ABBATE-Let me just address a comment. Nobody has said, etc., etc. To me, there is an implication there that those operations are condoned by the Town. I don’t see anything else that says it isn’t. MR. O'CONNOR-I’m not saying it’s not. MR. ABBATE-No, this is my statement MR. O'CONNOR-Okay. I sometimes volunteer things, but I’m not volunteering there. 24 (Queensbury ZBA Meeting 9/25/02) MR. ABBATE-Do you want me to re-state it? MR. O'CONNOR-You’re all great people. No, I understood it. MR. ABBATE-Okay. Thank you. MR. URRICO-I have a couple of points, or a couple of questions, actually. In our new zoning code, we seem to interchange light manufacturing with light industrial. Under Definition it’s referred to as Light Manufacturing. Under the Code itself it’s referred to as Light Industrial, and then under the Parking Requirements we again go back to Light Manufacturing. So, just for the sake of consistency, I think that that needs to be addressed at some point. I also have a question. The nursery that we’re talking about here under Light Industrial refers to landscaping? Is that the type of nursery we’re talking about, or are we talking about nursery school? MR. O'CONNOR-No. This is landscaping nursery. MR. URRICO-Okay. MR. O'CONNOR-And the only place, nurseries appear to be allowed in Highway Commercial, per se, or there’s a couple, I marked where they were. Nursery is allowed in a mixed use, pure nursery, but he couldn’t bring his construction equipment there, because that’s not part of a nursery, per se. It’s allowed in a mixed use. It’s allowed in a Highway Commercial, and it’s allowed in a Highway Commercial Moderate. MR. URRICO-I guess my point was going to be that under the Parking Requirements, it seems to say that for a nursery that one car per 300 square feet of sales area, plus one per two employees, plus one per company vehicle, there seems to be an allowance here for sales, right here, you know, under parking requirements, and it seems that, in addition to mentioning showroom, under Light Manufacturing , I think there is room here for this type of use under Light Industrial as it is, and I’m not sure why we’re determining what we are. MR. STONE-Well, this is one of the things that we do, as we all know. It’s an appeal, and Mr. O’Connor is even going further. He is really asking for assistance. I mean, he’s appealing, at the same time saying, guys, help me, I don’t understand why I even need the appeal because it would seem that it’s allowed. MR. URRICO-I’m supporting Mr. O’Connor’s. MR. STONE-Well, I think most of us seem to be, and I don’t want to belabor this too much more. MR. O'CONNOR-I actually thought Craig Brown was going to write a letter. He didn’t write a new letter today? MR. FRANK-In his defense, at the very end of the day, I was in the field most of the day. He caught me at the very end of the day. He told me you did request that. He was going to, and he briefly told me what his position was, and pretty much it’s reflecting what he said in his Staff notes. So, I don’t know exactly what you wanted him to address, and if his Staff notes don’t address that, I’m sorry for that, but, again, that was his doing, not mine. MR. O'CONNOR-Okay. MR. STONE-Well, I see what you wrote on your appeal. You want a definition of Construction Company/Light Manufacturing – Display of products and limited sale. More specifically, I think you’re requesting do we think a retail part of a nursery business should be allowed in the Light Industrial zone. MR. O'CONNOR-Is a variance required? MR. STONE-Is a variance required. Okay. MR. O'CONNOR-That’s the bottom line. MR. STONE-Okay. So the question, the motion that we should make is if we don’t think it’s necessary, is the at we do not feel that a variance is required for a retail operation as part of a nursery/landscaping. That’s what you would like to have? MR. O'CONNOR-Yes. MR. STONE-Okay. Let’s talk about it, guys, because we don’t need a public hearing for this. Let’s go down the line. Because I’m sensing that we don’t need to go too much further. Maybe we do, but let’s start with, we’ll start with Chuck. No, start with Jim. I’m sorry. Jim’s first. 25 (Queensbury ZBA Meeting 9/25/02) MR. UNDERWOOD-Yes. I would have to agree. I think that there’s no really need for a variance for this thing. I think that, you know, you have to assume that there’s associative uses involved with any of the current businesses that are operating, landscaping firms within our community at the present time. I think that what you’re proposing here is an accessory to your business which would be primarily landscaping, but I certainly don’t have a problem with a few trees and things that are sold on the side. Certainly we have these things scattered all throughout our Town. There doesn’t seem to be any down in that area. So you’ll probably do fine, you know. People won’t have to drive clear across Town to go buy a tree now. I would agree that, you know, you don’t need a variance here. MR. STONE-Chuck? MR. MC NULTY-Okay. I basically am in agreement. When I first looked at this, it struck me that this one’s a real quandary, because half of the proposed business is allowed in certain districts. The other half of the proposed business is allowed in different districts, and yet the two halves make sense to be together. I think Counsel’s pointed out a lot of good examples where we seem to have this kind of a mix in existence. I think also that the point made for the building and lumber supply type operations is a good parallel, and that’s clearly allowed in this kind of a district, and absent any better definition or guidance in the Ordinance, I’m inclined to agree with the appellant that this type of thing should be allowed, on the principle that the retail business is supportive in a part of the off-site landscaping business. It’s a combination business. So I would, as long as I’m not just saying retail business is allowed in a Light Industrial, I’m saying it’s allowed in conjunction with the portion of the business that is specifically allowed in the Light Industrial, I’d be in favor. MR. STONE-Okay. Norm? MR. HIMES-Yes, thank you. I agree, too, with what has been said, and I would point specifically to an item on that Table Three summary of allowed uses in industrial districts, Item Number Sixteen, it says, heavy equipment storage/sales/service. Sales. So, that’s all I have to say, that I agree with the applicant. Thank you. MR. STONE-Okay. Chuck? MR. ABBATE-Okay. Thank you. Just so that we make it clear, Counsel, I’m going to address the very narrow issue of Mr. McDonald’s landscaping business, and the question is, is a variance required for retail sales in a Light Industrial zone with Mr. McDonald’s business, and my answer to that is, no. He is entitled to have limited retail sales, and I would support the application. MR. STONE-Allan? MR. BRYANT-Well, I think Mr. Himes took the wind out of my sails here. I was going to point out that in Item Number Sixteen they use the word “Sales”, which is a retail application, and you pointed out, with the lumber yard and what else do you do with the lumber but sell it. So, that would be an applicable use, but I have to agree with all the other Board members that I think the Zoning Administrator was incorrect in this, in his. MR. O'CONNOR-In defense of them, I don’t know if they’re just incorrect or unsure how to go, and they were happy to have me make the application to the Board. MR. BRYANT-Okay. So, I stand corrected. It’s unsure. MR. O'CONNOR-No, it’s strictly, it’s not necessarily a confrontational in the appeal. MR. STONE-It’s definitely not confrontational. MR. O'CONNOR-But Mr. McDonald did not want to make this investment and then come back and say, oops, we didn’t know. MR. STONE-Roy? MR. URRICO-I’m in agreement. I think, in this particular instance, that a variance is not needed. MR. STONE-And I certainly concur. I’ve been reading here, as people have been talking. You’re willing to stipulate to this letter as what we say we don’t need a variance for, which is a terribly convoluted sentence. I mean, you basically say, on Page Two, as part and parcel of this operation from Day One, he would have retail sales of those products that he gathers for use in his own landscape business, which would probably put him in the nursery category. You’re willing to stand behind that statement, and we would say that you do not need a variance to do that. MR. ABBATE-What paragraph is that, Mr. Chairman? 26 (Queensbury ZBA Meeting 9/25/02) MR. STONE-That’s the second paragraph on Page Two. I hate to make you look at your own words, Mr. O’Connor, but I’ve got to find a way to limit this, as we’re all trying to do, I think. MR. O'CONNOR-As usual, I like to keep all my options open. Why did you have to read that paragraph? MR. STONE-Because that’s my job. MR. O'CONNOR-Okay. I have no problem by that paragraph. Implicit in that paragraph is that, you know, there are some things that compliment one another. I’m not saying that some day or another he might not have some birdfeeders there that go with the flowers that he’s selling, on a limited basis. I’m not talking about a Garden Time gift shop, but there are some incidentals, which isn’t going to bother anybody. I don’t think anybody’s going to run down the road and tell us that we can’t do it. I say that openly. MR. ABBATE-Well, let’s clear it up, then. Would bird cages fall into, under nursery category? MR. STONE-Bird cages? Feeders, I think. MR. ABBATE-Feeders, birdfeeders? MR. O'CONNOR-They might, you know, or sprinklers. If he sells a lawn to somebody and somebody wants a sprinkler system. MR. ABBATE-Do you want to add these words to your list? MR. O'CONNOR-I think we’re talking about a general premise here that a typical nursery operation does not require a variance in the Light Industrial zone when it is operated in conjunction with a landscape business. MR. ABBATE-And leave it at that. MR. STONE-I was going to try to help you, because, Chucks, I was going to ask you because you made a very good statement, and I was trying to help you, but, go ahead and do it how you want. MR. ABBATE-Make a motion based on how I feel, or based on logic? MR. STONE-Well, on their request, and logic. MR. ABBATE-Okay. All right. No problem. Let me put my papers back together here. Okay. I’ll give it a go. Mr. Chairman, I’m going to be addressing the application for an Appeal from the Zoning Administrator’s decision by Mr. Coby McDonald and his Counsel, Mr. O’Connor. Apparently, this was a question that was agreed to in an amicable way, which was approved to come before this Board to make some type of a decision, an interpretation is probably more correct. Based upon the information that was presented to us this evening, by Counsel, it appears to me, and based upon what little research that I have done here, it would appear to me that Mr. McDonald’s business does not really require a special type of variance to have retail sales pertaining to the type of business that he is in, which is landscaping, and, based upon that, Mr. Chairman, I believe that Mr. McDonald’s position and his Counsel’s position are correct, and that no type of variance is required. MR. O’CONNOR-In an LI zone. MR. ABBATE-In an LI zone. Thank you, Counselor. I appreciate that. In an LI zone. MR. BRYANT-I think you’ll want to add, I mean, you talk about landscaping business, but he also, he talks about lawn maintenance and a nursery. So, I mean, you know, I want to be a little bit more. MR. ABBATE-Specific? MR. BRYANT-Specific about those applications. MR. ABBATE-Okay. The retail sales should be directly related to the type of business and function that Mr. McDonald is involved in, which is landscaping. MR. BRYANT-But, no, the application, he specifically states, landscaping, lawn maintenance and nursery, and I think those things, relative to the type of business, should be specific in the motion. MR. ABBATE-Okay. I don’t really object. Show that, point that out to me, where you made that statement. I have no problems with that. MR. BRYANT-Right here, landscaping and lawn maintenance, under Staff comments, and also later on he talks about (lost words). 27 (Queensbury ZBA Meeting 9/25/02) MR. ABBATE-I’ll put it in there. I think you’re right. MR. BRYANT-Because Mr. O’Connor made the point about the birdfeeders, when you talk about nursery or lawn maintenance, you may want to have a birdfeeder. MR. ABBATE-Okay. Let me include this, that I would agree that, at the present time, no variance is required for the landscaping and lawn maintenance business as a construction company, and I would also agree that included in this would be a retail operation, which dealt specifically with nursery items, offering items for sale to the general public. MR. O'CONNOR-That’s fine. MR. STONE-Okay, would you, Maria, when you type that, that last part is the motion. I think we got it down to a point, I think, where it’s fairly succinct, and you’ve said that the applicant, as the appellant, you can agree with that basic last statement that he made? MR. O'CONNOR-That’s satisfactory. Yes. MOTION FOR NOTICE OF APPEAL NO. 4-2002 COBY MC DONALD (CONTRACT VENDEE) THAT, AT THE PRESENT TIME, NO VARIANCE IS REQUIRED FOR THE LANDSCAPING AND LAWN MAINTENANCE BUSINESS AS A CONSTRUCTION COMPANY, AND I WOULD ALSO AGREE THAT INCLUDED IN THIS WOULD BE A RETAIL OPERATION, WHICH DEALT SPECIFICALLY WITH NURSERY ITEMS, OFFERING ITEMS FOR SALE TO THE GENERAL PUBLIC, Introduced by Charles Abbate who moved for its adoption, seconded by Allan Bryant: Duly adopted this 25 day of September, 2002, by the following vote: th AYES: Mr. Bryant, Mr. Abbate, Mr. Himes, Mr. McNulty, Mr. Underwood, Mr. Urrico, Mr. Stone NOES: NONE MR. STONE-Okay. MR. O'CONNOR-If we come back here in the next five years and say we talked about this, stay on the Board, guys. MR. ABBATE-You will not see the same faces in the next five years. AREA VARIANCE NO. 76-2002 TYPE II JAMES J. GRANDE PROPERTY OWNER: SAME AGENT: MICHAEL J. O’CONNOR ZONE: WR-3A, CEA LOCATION: 3222 RT. 9L APPLICANT PROPOSES CONSTRUCTION OF GARAGE WITH ATTACHED 382 SQ. FT. COTTAGE IN LIEU OF EXISTING COTTAGE; COTTAGE WILL THEN BE IN COMPLIANCE WITH SETBACKS; GARAGE IS FULLY IN COMPLIANCE. SEEKING RELIEF FROM THE FOLLOWING REQUIREMENTS OF THE ZONING ORDINANCE: SECOND DWELLING UNIT LESS THAN REQUIRED 800 SQUARE FEET. CROSS REFERENCE: AV 43-02, AV 27-02 ADIRONDACK PARK AGENCY WARREN CO. PLANNING: 9/12/02 TAX MAP NO. 239.18-1-48/2-1-8 LOT SIZE: 3.27 ACRES SECTION: 179-4-010 C6; 179-5-090 MICHAEL O’CONNOR, REPRESENTING APPLICANT, PRESENT; JAMES GRANDE, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 76-2002, James J. Grande, Meeting Date: September 25, 2002 “Project Location: 3222 Rt. 9L Description of Proposed Project: Applicant proposes construction of an 892 sq. ft. 3-car garage with an attached 382 sq. ft. dwelling, which will replace an existing 400 sq. ft. pre-existing nonconforming cottage (to be removed upon approval of this application). Relief Required: Applicant requests relief from the requirement allowing one single-family dwelling per lot in areas zoned for single- family dwelling, § 179-4-010 (C6), and 418 sq. ft. of relief from the 800 sq. ft. minimum floor area requirement for a single-family dwelling, § 179-5-090. Criteria for considering an Area Variance according to Chapter 267 of Town Law: 1. Benefit to the applicant: Applicant would be permitted to construct the desired structure in the preferred location. 2. Feasible alternatives: Feasible alternatives include constructing a garage within the allowable 900 sq. ft. and 16-foot maximum height requirement, and through repairs, bring the existing cabin up-to-date. 3. Is this relief substantial relative to the Ordinance?: An additional single-family dwelling could be considered substantial relative to the Ordinance (100%). 418 sq. ft. of relief from the 800 sq. ft. minimum requirement could be considered moderate relative to the Ordinance (52.2%). 4. Effects on the neighborhood or community: Minimal to moderate effects 28 (Queensbury ZBA Meeting 9/25/02) may be anticipated as a result of this action. 5. Is this difficulty self-created? The difficulty may be interpreted as self created, as there are other feasible alternatives. Parcel History (construction/site plan/variance, etc.): AV 27-02: tabled 04/17/02, relief from the size and height requirements for an unattached garage. AV 43-02: withdrawn 06/13/02, relief for a second dwelling unit and from the minimum floor area requirements for the proposed dwelling. Staff comments: Minimal to moderate impacts may be anticipated as a result of this action. The applicant could construct a compliant garage and through repairs, bring the existing cabin up-to-date. However, the applicant proposes to remove the existing cabin, which does not meet the current side setback requirements, and construct the garage/dwelling in a compliant location. Even though it is the policy of the Zoning Department to attempt to bring nonconforming conditions into conformity with the current Zoning Ordinance whenever possible, consideration might be given to the following: if the application is denied, the applicant still plans on building a large detached garage, resulting in a third building on the property and potentially can recondition the nonconforming cabin. If the application is approved, the applicant will demolish the nonconforming cabin and build the desired garage/dwelling in a compliant location, resulting in one less building on the property. Should the application be approved, consideration might be given to a condition the applicant install sufficient landscaping to screen the new building from the neighboring parcel. SEQR Status: Type II” MR. MC NULTY-“Warren County Planning Board Project Review and Referral Form September 12, 2002 Project Name: Grande, James J. Owner: James J. Grande ID Number: QBY-02-AV-76 County Project#: Sep02-29 Current Zoning: WR-3A Community: Queensbury Project Description: The applicant proposes the construction of a garage with attached cottage in lieu of existing cottage; cottage will then be in compliance with setbacks; garage is fully in compliance. Site Location: 3222, Rt. 9L, Lake George Tax Map Number(s): 239.18-1-48 Staff Notes: The applicant requests an area variance for the construction of an 892 sq. ft. garage with the 382 sq. ft. of living space attached. The additional living space in a separate unit on the lot is considered a secondary residence. The applicant proposed a similar application for a 988 +/- sq. ft. garage with a rec/living area on the second floor. The proposal is for the living area and garage area to be 1- story as shown on the drawing. The applicant has provided additional information that indicates that the property deed noted that there were two “dwelling units” on the parcel with the restriction that it not be used for rental. The project has changed from the original proposal for a two story garage with living space. The original guest cottage was 400 +/- sq. ft. where as the proposed is 382 sq. ft. The proposal is consistent with the existing conditions on the site. Staff recommends NCI. County Planning Board Recommendation: No County Impact” Signed by Thomas E. Haley, Warren County Planning Board 9/16/02. MR. STONE-Gentlemen. First of all, welcome back, Mr. Grande. MR. GRANDE-Thank you. MR. STONE-Nice to see that you have pleasant company with you. Mr. O’Connor, what did you wish to tell us? MR. O'CONNOR-Okay. Mr. Chairman, members of the Board, for the purpose of your record, I’m Michael O’Connor from the law firm of Little & O’Connor, and with me at the table is Mr. Grande. Mrs. Grande is here in the audience. You’ve heard this application, or some version of this application, before. I did submit a, I think a narrative letter dated August 15, which I believe is part of the package, I assume, that th you have reviewed that. I really won’t try to go over it point by point. I think what I would say is that this property is unique, and I looked at the minutes before, and I don’t know if somehow some focus got off into different avenues, and not necessarily, to me, to the substance of the application, and I might be wrong in my interpretation of that, but there were some issues. One issue had to do with what did the County Planning Board mean by some type of resolution that they had that said send it back to conform with local ordinance. I looked at your minutes. I’ve even talked to the County Planning Board Chairman and said that doesn’t really give anybody any guidance, and you ought to get away from that, unless you can tell me, succinctly, what it means, and he couldn’t tell me it meant either. So, we did go back to the County Planning Board. We presented it, actually didn’t present it. They had no questions. It wasn’t a discussion item, and they said it had No County Impact, and it really doesn’t. I don’t think it has any impact on anyone what we’re applying for. We, in fact, are making the property more compliant, not necessarily totally compliant, but we are making it more compliant, in the sense that that we are now complying with the setbacks. The garage has been changed significantly. So that the garage, or the garage portion of it, is compliant. The garage can be built right where we propose it without a variance. The only issue is, can we substitute the freestanding, what it called second dwelling because it has cooking facilities in it, can we attach that to the end of the garage. That’s really the only issue. Part of your discussion before was whether or not this would turn out to be a rental unit. Well, I think if you talk the size of it, 382 feet, I don’t envision that being a very attractive rental unit in any circumstance, being with the proximity that it is to their main house, I think it would make it questionable, but I think Mr. Bryant pointed out before, and I don’t know if we agreed on the interpretation, the restrictive covenants that benefit this property, and I presume the adjoining properties, says it can’t be rented. Accessory buildings, which this is, can be occupied only by one family, its servants, and non-paying guests. So, at most, we’re probably making this even, not more noncompliant, but it’s not a second residence that can be rented out, based upon the restrictive covenant. So this property is unique. It’s unique in the sense that it already has, in existence, what we’re talking about. This is not somebody coming in saying I want to build a mother-in-law apartment, brand new, on a virgin piece of property. This already is there. It is 29 (Queensbury ZBA Meeting 9/25/02) also unique in that it has its own control, that it can’t be used for rental purposes, which is one of the big concerns around the lake. Do we end up with a second family on the same parcel? This is a fairly large parcel. It’s 3.5 acres of land. It has adequate septic. I really don’t know what impact that we have at all by doing it. I don’t think you set a precedent that somebody else is going to be able to come in here and hold up and waive around and say, you did it for Grande, now you’ve got do it for me, because the property is as unique as it is. Staff suggested some screening. We have no objection to that. We intended to landscape the area when we remove the cabin anyway, but we have no problem. I don’t know if I necessarily agree with that. As I always do, I have reservations as to too many conditions and too many, you know, this is their principal residence. Residences from one to another, typically, even if they’re, if this were being attached to the house, I guess the only issue was, would be, that you could have the 382 square feet, but you couldn’t have a second kitchen in it, or you couldn’t have a second standalone eating area, I guess. You wouldn’t be looking for screening to that. MR. STONE-Well, I think he was talking screening to the neighboring property. MR. O'CONNOR-Yes. MR. STONE-Not to his house. MR. O'CONNOR-No. Even to the neighboring property. I built two single family homes next to each other. MR. STONE-I understand. MR. O'CONNOR-Typically, I’ve not seen requirements for screening between two residences. We’re agreeable to it. Some reasonable screening, and (lost word) modification of it, we think that we’ve cleared any questions on the size of it, the height of it. The second variance, the first variance, I think, is a paper variance, because we already have the existing second residence as defined by the New York State Building and Construction Code, or our Ordinance. The second variance is even unique, because we aren’t asking to go beyond the dimensional requirement. We’re asking to be allowed to stay beneath a dimensional requirement, because that’s what we already have. Our existing building is 382 square feet. We’re not asking to expand it. We’re saying, let us build it, but because the Ordinance says that if this is considered a freestanding building, it must be 800 square feet, we have to ask for the variance. MR. STONE-This apartment is going to be on the same level as the garage floor now? MR. GRANDE-That’s correct. MR. STONE-Compared to being upstairs before. MR. GRANDE-That’s correct. MR. O’CONNOR-We have a floor plan. MR. STONE-Yes, I know you do. I just wanted to confirm that that’s what I was reading. That’s all. MR. GRANDE-Yes. The floor will be level right through into the cabin. MR. O'CONNOR-Identify yourself. MR. GRANDE-My name is James Grande. I’m the owner of the property. MR. STONE-Any questions of the applicant? MR. BRYANT-I have a couple of questions, actually. I’m trying to remember the last application. Was the apartment upstairs? MR. STONE-Yes. MR. BRYANT-What’s this little L-Shaped thing across from the bathroom? Is that a countertop, or is that a stove? What is that? MR. GRANDE-That’s the kitchen counter. That’s the kitchen counter, and there’ll be a refrigerator on one end and a stove on the other end of the counter. MR. STONE-In other words, there’ll obviously be an entrance to the bedroom there, too, I gather. MR. O'CONNOR-Out the back of it, yes. That’s why it’s open from the back. 30 (Queensbury ZBA Meeting 9/25/02) MR. STONE-Yes. No, when Mr. Grande talked about the refrigerator, is that built in to the “L”? MR. GRANDE-Yes, it’s built in to the “L”. MR. STONE-Okay. MR. GRANDE-I would think that the refrigerator will go next to the doorway, and the range would go toward the living room, the living area of the thing. MR. O’CONNOR-Is the refrigerator under the counter? MR. GRANDE-No. I plan to use, or I would probably use the existing appliances that are in the other building. They’re relatively new. MR. STONE-Okay. MR. BRYANT-The last application, the garage, I mean, how does the square footage of this footprint compare to the last application? MR. GRANDE-They’re exactly, of the cottage or of the whole application? MR. BRYANT-The whole thing, because I think originally wasn’t the garage? MR. GRANDE-Originally, on the first application, we were over the height. We had a separate garage with a recreation room. We were over the height requirement and we were over the area requirement, and after the discussions here, we changed that. We made the area requirement correct, but we still were over the height requirement, because we had to cabin on the second floor. The area of the cabin on the second plan was net area. It’s exactly the same size as this one, you know, within a few feet. Now this time we’ve taken the plan and made the garage fully compliant, height, area, whatever, and we’re just taking the guest cabin and sliding it about 18 feet to the west and putting it on the end of it. That’s how this works. Of course it’s not the same building, but it’s the same exact. MR. STONE-You’re not going to glue it. You’re going to tear it down and? MR. GRANDE-That’s right. It’s the same exact structure, it’s just going to be moved 18 feet to the west. MR. O'CONNOR-It’s not going to be moved. Figuratively, it’s going to be moved, but it’s going to be new construction that would comply with today’s codes. MR. BRYANT-The only thing I’m asking is if the original, I don’t have the original paperwork. I know it was two stories, but would the footprint. MR. GRANDE-The footprint of the first application in my memory was around 1,000 square feet. This footprint is going to be slightly bigger than that, because the cabin is on the first floor. The garage is totally compliant, and the cabin will be addition to that. That’s the way I remember the first application. MR. O'CONNOR-Thank you. MR. STONE-And that’s going to ensure that it’ll be directly behind the house, and not visible from anywhere. MR. GRANDE-Well, it even takes it from where it is and makes it more behind the house. MR. STONE-Right. MR. O'CONNOR-It’s as shown on the plot plan. There is a plot plan that shows the structure. MR. STONE-Yes, it’s right here. MR. O'CONNOR-Which moves it away from the side line, moves this cabin portion, or this second dwelling, away from the adjoining property, Matthews, and moves it more toward the center of the property. MR. ABBATE-If you compare this application with your previous one, it’s my opinion that Mr. Grande has made some positive changes, based upon height, etc., etc. that we earlier discussed, and going over our previous notes, I noticed that. MR. HIMES-So we have, you’ve got the 892 square foot garage now, and in addition 382 square feet. Maybe, I’d like to refer to something else in the deed here, that you might read and take inference in one or more ways. In Item Number Four, it says no temporary structure, trailer, tent, shack, garage, barn, or outbuilding 31 (Queensbury ZBA Meeting 9/25/02) shall at any time be used as a residence, temporary or permanently, upon the premises. I guess we’ve got a garage, and part of that construction is probably going to be these living quarters, and I don’t know how far one would have to stretch their imagination to think that maybe this Item Number Four was put in there because it was intended that things were to stay as they were. MR. GRANDE-Doesn’t it say temporary? MR. STONE-It says temporary structure. MR. GRANDE-It says temporary. That means that if we were to build some kind of a tent or something, we couldn’t have a residence in the tent or a trailer, I think that’s what that says. MR. HIMES-Well, maybe you do. I look at it as temporary structure, and then separately trailer or separately. MR. O'CONNOR-I would agree with your interpretation from an English point of view, structural, grammatical point of view. The temporary has to do with structure, and then it goes on to list other categories, but if you look at it, it says “or outbuildings shall be used at any time as a residence”. Some place in the 1930’s they put this outbuilding on this property as a residence. That’s why we’re here, and there’s a rule of law that you can stand by that if this is dimensional type requirement and it’s not in force for two years, the statute of limitations runs out. MR. HIMES-So you’d say. MR. O'CONNOR-I think, I have not looked at the abstract of title to say when these restrictions first came into place. I can’t necessarily tell you that, but I do know that for the last, this deed that I’m reading from is in 1984, and since 1984, there has been an outbuilding used as a residence. MR. HIMES-Yes, but I’m not arguing that part. What I’m saying is, could it be, looking for your advice on this. MR. O'CONNOR-Okay. The garage is not being used as a residence. MR. HIMES-But the garage and this are the same structure, isn’t it? MR. O'CONNOR-I would argue that the garage portion is not the residence. MR. ABBATE-And there’s nothing worse, and I’ve experienced this, than to be relegated to an outhouse, trust me. MR. STONE-All right. Any other comments, questions? We still have to have a public hearing here. MR. URRICO-How will the proposed addition be used? MR. GRANDE-It will be used for my guests, and for myself, if I happen to come there in the fall, and I don’t want to heat up the main house and stay, I could just stay overnight in the guest cabin. It would, you know, it would heat up much quicker. In the fall, I go stay in Saratoga, and lots of times we come on weekends, but, you know, you have to come up four hours in advance and turn the heat up, because we heat it to like 60 all winter. So, I mean, I would probably stay there myself occasionally and my guests. MR. STONE-Any other questions? All right. Let me open the public hearing, and we’ll get back to it. MR. O'CONNOR-I also have a letter from a Robert McCormack, who I think may have written something once before with the prior application. MR. STONE-Do we have any correspondence? MR. MC NULTY-There’s no current correspondence. MR. STONE-There isn’t. MR. O'CONNOR-This is correspondence in favor of the application. MR. STONE-Okay. Bring it up and we’ll read it in. MR. ABBATE-Do you have this one as well? I got this in the mail. Do we have this? MR. STONE-Which one was that? MR. ABBATE-This is from Robert Foulke. I thought it was strange. 32 (Queensbury ZBA Meeting 9/25/02) MR. STONE-I didn’t get it. MR. ABBATE-Here, give this to the Chairman. MR. STONE-If I did, I didn’t see it. That doesn’t mean I didn’t get it. Well, this is the original. MR. ABBATE-I received this about two days ago. MR. STONE-We’ll read it in. Okay. MR. GRANDE-There was another letter from Nancy and David Hyman, also, that was sent. He supported this project. MR. STONE-And I know John Matthews called me the other day and I suggested if he was still concerned, and he said he was, with the second residence, to reiterate, because I said the other file was gone, but apparently he did not do it. MR. GRANDE-Mrs. Matthews is here. MR. STONE-I’m sorry, Mrs. Matthews. Excuse me. Forgive me, because I know Mr. Matthews. I thought he said he couldn’t be here. He was having eye surgery today. All right. Let me open the public hearing. Anybody wishing to speak in favor of this application? In favor of? Anybody opposed? Would you read the correspondence. PUBLIC HEARING OPENED MR. MC NULTY-Okay. We have two pieces of correspondence. One is from Robert J. McCormack, and he says, “To Whom It May Concern: We own the property directly south of the Grandes’ on Dark Bay in Lake George. The project that they are proposing seems completely appropriate to us and they have our full support. The Grandes are good neighbors, show great pride of ownership in their home and appear to be thinking of all parties’ interests in their actions.” And the other letter we got is from a Robert Foulke. “As a year round neighbor directly across Dark Bay (Lot 2-1-6.7) for thirty years, I support the application of James J. Grande for Area Variance No. 76-2002. Mr. Grande’s proposal does not add any living space for guests that does not already exist, and that has been grandfathered for many years. In addition, moving that guest space farther from the east property line, as well removing a tool shed that will no longer be necessary, actually improves the property’s compliance with the aesthetic requirements for lakeshore properties. Existing deed restrictions prevent the use of the guest house as rental property. I regard the addition of a garage as a necessity for year-round residents, not only for convenience, but to permit plowing of driveways. Mr. Grande keeps his property in excellent condition, and I am sure that this proposal will further improve it. Sincerely, Robert Foulke” MR. STONE-Anything else? MR. MC NULTY-That’s it. MR. STONE-Let me close the public hearing. PUBLIC HEARING CLOSED MR. STONE-Any comments you want to make, Mr. O’Connor, to those scandalous letters? MR. O'CONNOR-No, thank you. MR. STONE-Okay. Any other questions? Well, let’s talk about it. We’ll start with Chuck McNulty. MR. MC NULTY-Okay. This strikes me as a reasonable proposal. While allowing a second dwelling on a piece of property I normally would oppose, in this case, as it’s been pointed out, this has been the case for a number of years on this property. The proposal is a modest one. Basically, the building will be in compliance, except for fact that it’s, we’ve got the second dwelling and the second dwelling is smaller than what it would be allowed if it were a dwelling on a, a new dwelling on a piece of property, but in this case, as the applicant’s pointed out, it’s basically moving the function of an existing cottage over so that it is at least in compliance with setback. It removes, as Staff has pointed out, a third building from the property, of what otherwise would be there, and even disallowing the fact that the applicant has come back, a couple, three times, and made modifications trying to meet the desires of the Board. I think looking at this, even as the first application, it strikes me that it is reasonable, and I’d be in favor. MR. STONE-Okay. Norm? 33 (Queensbury ZBA Meeting 9/25/02) MR. HIMES-Yes. Thank you. I’d just like to say that if it were patience and persistence and willingness to compromised that were the only measures of whether something should be approved or not, we would have had a very short discussion about this tonight, I think, now, seriously, I think, I agree with what Chuck has just said, and that even though we may be substituting one situation for another in some people’s eyes, in terms of looking at the Code as not being great, I think, overall this is the best solution to the matter of correcting one thing and not doing too much damage in another way. So I’m in favor of the application. Thank you. MR. STONE-Mr. Abbate. MR. ABBATE-Yes, thank you. Mr. Grande has not only been persistent, but he has made some very positive changes in my opinion, indicating to me a willingness to work with the Town of Queensbury, but I would like to add this. I think also that the Zoning Administrator and Counsel should be congratulated, because they’ve come before this Board in an amicable manner, asking for, and I like his statement, an interpretation, which I think is working within the framework of standard of fairness, and I congratulate the both of them. MR. STONE-That’s in the previous application. MR. ABBATE-Well, it doesn’t make any difference. MR. STONE-Okay. MR. ABBATE-I forgot to mention that. MR. O'CONNOR-Thank you. MR. STONE-Al? MR. BRYANT-I, since you mentioned me in your presentation, I’m going to tell you where my mindset has been from the original application, okay. Originally, you came before us with, and I’m going off of memory because I don’t have all the paperwork. We had an application with a garage, and it had a recreation room, and we were going to get rid of the cottage thing, and the only, I think the biggest objection to it was the size and the height, and then we came back with a new application, which is the one that we have the minutes for, that were provided us, and went off the deep end because now all of a sudden it did have the kitchen and it had everything that living quarters which it didn’t have in the original application, but Mr. Grande did make an improvement in the size of the garage and the size of the area, and of course you came back with the third application, which corrected the height issue. It didn’t change the kitchen issue, but it did correct the height issue, and of course I read the Zoning Staff comments relative to this whole thing, and it sounds like let’s make a deal. We’re going to get rid of one thing that’s not compliant, and all of a sudden we’re going to be almost compliant. To make a long story short, I think I’m going to be in favor of it this time. MR. STONE-Roy? MR. URRICO-Yes. I think we’ve come a long way from the first application. I know it’s been a long excruciating process, probably, from your standpoint, but I think we have a better plan. I’m in favor of it. MR. STONE-Jim? MR. UNDERWOOD-Yes, I’d be in agreement with everyone else. I don’t think there’s any intent to create a second dwelling. As you specified, it’s not something allowable by the covenants, and I think it’s a big change from what you originally came in with. So I’d be in favor of it. MR. STONE-Well, I certainly agree with the Board. I mean, it’s been a long process, and I thank Mr. Grande for his willingness to work with the ZBA, and certainly for his patience, but I do think we have a good project now. I think we have one that, as a couple of people have said, reduces some of the nonconformity. It has a garage that’s in there. I think it’s going to be a much more conducive use of the property. I think it’s a great thing. I think, by all of the measures in the test it works in favor of the applicant. I mean, yes, it’s self-created, but I think as one of the letters quoted, you’ve got to have a garage if you’re going to come up here at all in the winter. It’s very hard not to have something, and you don’t want to be, it’s a long hill and it’s a tough thing. Having said that, I need a motion to approve, and keep in mind that what we’re doing is we’re confirming a technical nonconformity which has been the case for a number of years, for the second residence, and it basically is a technical thing because it’s there and it can stay there. The other thing is that we have to recognize that this apartment will be for Lilliputians. It will be half the size that it’s supposed to be in the Town of Queensbury when Mr. Grande is willing to do that, and it’s not going to be any hardship to anybody who uses it. So we need that two part. MR. BRYANT-If I were Mr. Grande’s guests, I wouldn’t want to stay in the garage. It’s an awfully small apartment. 34 (Queensbury ZBA Meeting 9/25/02) MR. STONE-Well, would you do the motion, then. MOTION TO APPROVE AREA VARIANCE NO. 76-2002 JAMES J. GRANDE, Introduced by Allan Bryant who moved for its adoption, seconded by Charles Abbate: 3222 State Rt. 9L. The applicant proposes construction of an 892 square foot three car garage with an attached 382 square foot dwelling which will replace an existing 400 square foot pre-existing, nonconforming cottage which will definitely be removed upon approval of the application. The relief requested, the applicant requests relief from the requirement allowing one single family dwelling per lot in the areas zoned for single family dwellings, Section 179-4-010C(6), and 418 square feet of relief from the 800 square foot minimum Floor Area requirement for a single family dwelling, Section 179-5-090. The benefit to the applicant. The applicant would be permitted to construct the desired structure in the preferred location. The feasible alternatives. Feasible alternative includes constructing a garage within the allowable 900 square feet, which this garage is within the 900 square feet, I think this actually applies to the original application, and a 16 foot maximum height requirement, and thorough repairs bringing existing cabin up to date. Another feasible alternative is eliminating the cabin, but I guess that’s not too feasible. Is this relief substantial relative to the Ordinance? An additional single-family dwelling could be considered substantial relative to the Ordinance, 100%. However, keep in mind that there is an additional single-family dwelling which pre-exists on the lot currently. So we’re only replacing one with the other. The effects on the neighborhood or community are minimal, and is the difficulty self-created? This difficulty may be interpreted as self-created. However, under the circumstances, the applicant is attempting to bring his current property into better compliance, and therefore I move that we approve this application. Duly adopted this 25 day of September, 2002, by the following vote: th MR. URRICO-Would it hurt to mention the covenant that restricts the property as a rental? MR. STONE-We have no control over it. MR. ABBATE-We have no control over it, right. MR. URRICO-Okay. MR. STONE-So, I mean, it’s nice, but, it’s been mentioned, it’s certainly in the minutes. I wouldn’t put it in the motion. AYES: Mr. Abbate, Mr. Himes, Mr. McNulty, Mr. Underwood, Mr. Urrico, Mr. Bryant, Mr. Stone NOES: NONE MR. STONE-There you go, Mr. Grande. MR. GRANDE-Thank you very much. MR. O'CONNOR-Thank you. I think you probably would enjoy the variance that I got the other night from the Town of Bolton. The first floor of that garage is 2,030 square feet. The second floor of that garage is 2100 square feet. MR. ABBATE-A 4,000 foot garage? MR. O'CONNOR-Yes, and it’s very well done. MR. STONE-Where, up the hill? MR. O'CONNOR-No, no. I’m not going to tell you. MR. STONE-I don’t care. MR. O'CONNOR-But I mean, I have a real problem with the Town of Queensbury restricting garages to 900 square feet. If I could have 30% density of my building, I don’t understand whether I call it a garage or I call it a nine bedroom house, and I’ve argued this. The other point I’ll make, just because I always like talking, you know all that stuff that you were handed? MR. ABBATE-Yes, that I objected to. MR. O'CONNOR-Well, I don’t know whether you objected or didn’t object, but the term there is still factual. MR. ABBATE-Correct. 35 (Queensbury ZBA Meeting 9/25/02) MR. O'CONNOR-It says feasible alternative. All that case law says is that if there is a feasible alternative, then you are compelled to rule. It’s still your decision. You’re the quasi-judicial Board. You determine whether it’s feasible. MR. STONE-That’s what I tried to say. MR. O'CONNOR-I mean, the guy could have argued that this is the only entrance out of the house and it would cost me X dollars, I don’t know, to wrap another entrance out of that house. I mean, he could have argued a lot of different things to make it sound more feasible for whatever he was doing. The law he cites is correct. I could cite the same law every time I come up here, but it’s a question of fact as to whether or not the application falls on all fours in that application. MR. ABBATE-Yes, but we can’t determine fact, Counselor, unless we understand the case, and have access to the case that he’s referring to. MR. O'CONNOR-No. You’re charged with understanding the law. MR. ABBATE-Well, that’s why I objected. MR. O'CONNOR-Well, I object to your objection, because you’re charged, sitting in that chair, with knowing the law of zoning. MR. ABBATE-He handed it to us at the beginning of the meeting. That’s why that should never have been introduced. MR. STONE-Well, let’s not go there. MR. O'CONNOR-That’s a procedural issue as to, and I think Chuck’s comment is correct. The public is told to come to the public hearing and give the information. You can’t yell at the guy for giving you the information. MR. STONE-Right. MR. O'CONNOR-You can say, hey, wait a minute, I want to table this so I can consider it. MR. ABBATE-That’s exactly right. MR. O'CONNOR-But I think the other, you had enough on the table to say, we shouldn’t even table it. MR. STONE-And that’s what we did. MR. ABBATE-That’s exactly right. MR. STONE-Yes, and that’s what I sensed and that’s why we did what we did. MR. O'CONNOR-Yes, but the case law that was cited is all, it’s not incorrect, but it’s not conclusive. MR. STONE-I agree. Okay. I’m going to adjourn the meeting, gentlemen. On motion meeting was adjourned. RESPECTFULLY SUBMITTED, Lewis Stone, Chairman 36