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2003-04-16 (Queensbury ZBA Meeting 4/16/03) QUEENSBURY ZONING BOARD OF APPEALS FIRST REGULAR MEETING APRIL 16, 2003 7:00 P.M. MEMBERS PRESENT LEWIS STONE, CHAIRMAN PAUL HAYES ROY URRICO CHARLES ABBATE JAMES UNDERWOOD, ALTERNATE JOYCE HUNT, ALTERNATE MEMBERS ABSENT CHARLES MC NULTY NORMAN HIMES ALLAN BRYANT CODE COMPLIANCE OFFICER-BRUCE FRANK AREA VARIANCE NO. 27-2003 SEQRA TYPE: TYPE II ACTION KENNETH & DIANA KAMBAR AGENT: DAVE ARMANDO PROPERTY OWNER: KENNETH & DIANA KAMBAR ZONING: WR-1A LOCATION: 27 HANNEFORD ROAD APPLICANT PROPOSES RECONSTRUCTION AND EXPANSION OF AN EXISTING 1,540 SQ. FT. SEASONAL DWELLING TO BECOME A 3,977 SQ. FT. SINGLE-FAMILY DWELLING WITH A 3-CAR ATTACHED GARAGE (EXISTING DETACHED GARAGE TO BE DEMOLISHED). APPLICANT SEEKS RELIEF FROM THE SIDE SETBACK REQUIREMENTS AND FOR THE EXPANSION OF A NONCONFORMING STRUCTURE. CROSS REF. BP 2001-659; BP 2002-143; BP 2002-466; AV 8-2002 WARREN COUNTY PLANNING 4/9/03 APA TAX MAP NO. 240.06-1-16 LOT SIZE: 0.44 ACRES SECTION: 179-4-030; 179-13-010 A, E DAVE ARMANDO, REPRESENTING APPLICANT, PRESENT; KENNETH KAMBAR, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 27-2003, Kenneth & Diana Kambar, Meeting Date: April 16, 2003 “Project Location: 27 Hanneford Road Description of Proposed Project: Applicant proposes reconstruction and expansion of an existing 1,540 sq. ft. seasonal dwelling to become a 3,977 sq. ft. single-family dwelling with a 3-car attached garage (existing detached garage to be demolished). Relief Required: Applicant requests 14.5 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, 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: The applicant would be permitted to convert the existing dwelling and construct the desired addition in the preferred location. 2. Feasible alternatives: Feasible alternatives seem to be limited due to the existing dwelling being 5.5 feet from the south property line. 3. Is this relief substantial relative to the ordinance?: 14.5 feet of relief from the 20-foot minimum side setback requirement may be interpreted as moderate to substantial relative to the ordinance (72.5%). 1,292 sq. ft. of relief from the 2,685 sq. ft. allowed by the enlargement of 50% of the existing 1,790 sq. ft. of floor area may be interpreted as moderate relative to the ordinance (48.1%). 4. Effects on the neighborhood or community: Minimal negative effects on the neighborhood may be anticipated as a result of this action. 5. Is this difficulty self-created? Some of the difficulty may be attributed to the location of the dwelling on the parcel. 1 (Queensbury ZBA Meeting 4/16/03) Parcel History (construction, site plan, variance, etc.): BP 2002-460: 06/24/02, three decks totaling 1049 sq. ft. BP 2002-143: 03/14/02, 235 sq. ft. dock. AV 8-2002: 02/27/02, side setback relief for 235 sq. ft. dock. BP 2001-659: 08/30/01, septic alteration. Staff comments: Minimal negative impacts may be anticipated as a result of this action. The only portion of the expansion requiring side setback relief is the second story of the current dwelling (with the exception of less than 4 sq. ft. of the 2-foot wide deck on the west side). Even though relief is required for the expansion of a nonconforming structure (greater than the 50% expansion allowed), the proposed Floor Area Ratio is less than the 22% allowed by code. SEQR Status: Type II” MR. MC NULTY-“Warren County Planning Board Project Review and Referral Form April 9, 2003 Project Name: Kambar, Kenneth & Diana Owner: Kenneth & Diana Kambar ID#: QBY- 03-AV-27 County Project#: Apr03-34 Current Zoning: WR-1A Community: Queensbury Project Description: Applicant proposes reconstruction of existing 1,144 sq. ft. seasonal dwelling to become a 3,977 sq. ft. year round residence. Existing second story attic space will be converted to a master bedroom and bathroom. Existing covered porch will be converted to a kitchen. Existing garage will be demolished. Seeks relief from side setback requirements, 20’ is required; 5.5’ is proposed. Site Location: 27 Hanneford Road Tax Map Number(s): 240.06-1-16 Staff notes: Area Variance: The applicant proposes to construct additions to an existing 1,144 sq. ft. seasonal dwelling to become a 3,977 sq. ft. year round residence. The additions include a 2 story addition over an existing building, 2 story deck, a 1 story addition and a 3 bay ndnd garage. The applicants will remove an existing garage. The new construction of the 2 story is nd proposed to be 5.5 ft. from the property line where 20 ft. is required. The 2 story addition is to nd be built on the existing frame of the building. The information submitted includes a stormwater plan for the new additions and garage area. The applicant has indicated that to remove the existing structure to rebuild would be too costly. Staff does not identify an impact on county resources. Staff recommends no county impact. County Planning Board Recommendation: No County Impact with Stipulation The County Planning Board recommends No County Impact with the Stipulation that the applicant provide confirmation that the septic is upgraded.” Signed Bennet F. Driscoll, Warren County Planning Board4/13/03. MR. KAMBAR-I agree with everything Mr. Underwood said. My name’s Ken Kambar. MR. STONE-Okay. MR. KAMBAR-This is Dave Armando. He’s my agent, and he’s overseeing the construction. Dave has had many years experience in construction, and also is currently a Code Enforcement Officer in Washington County. Dave is helping me out with doing all the figures. MR. STONE-That’s fine. As we start, I was concerned by what I deemed to be an attractive nuisance I found on the property, namely the deck, sitting there over nothing, with no railings, no tape, no nothing. Where anybody walking on that thing might find themselves plunging down toward Pilot Knob Road. MR. ARMANDO-Well, the decks at this time are currently under construction. We’ve got the main, upper deck, built. We’ve got a pair of stairs almost complete going down to the second level deck. That’s where we left off when the weather turned bad, back in December, and we’ve recently got back to the project. The decks are not in use at this time until we get the proper railings. MR. STONE-Well, I realize they’re not in use. MR. ARMANDO-Right. 2 (Queensbury ZBA Meeting 4/16/03) MR. STONE-And I wasn’t thinking for the Kambars. I was thinking people who might, unfortunately people do walk on other people’s properties and things like that. I mean we all had to go there, too, and it’s just a concern. MR. ARMANDO-Right. We’re in the process, now, of completing the stairs down the lower deck, and then we’re going to begin construction on the railing system for those decks. MR. STONE-Okay. How big is the garage on this property? I mean, I know we’re talking setback, but permit us. We go far a field sometimes. MR. ARMANDO-The current garage is 250 square feet, which will be demolished. The new garage will be 980 square feet approximately, or less. MR. STONE-And, Bruce, as an attached garage, it can be that big? MR. FRANK-The maximum size allowed is 900 square feet. I thought the plans called for 900 square feet and the workshop is what kicked it over, and correct me if I’m wrong. MR. KAMBAR-It’s a three bay garage, with an extension on the end, 24 by 40 total footprint. MR. STONE-With a, it appears to be a garage type door on the lakeside? MR. KAMBAR-Yes, for a snow blower or lawn mower, or things like that, tractor, a small garage type door. MR. STONE-Bruce, do you want to comment on that? That concerns me. MR. ABBATE-Now what is it now, 900 and how many feet did you say? MR. HAYES-Eighty. MR. ABBATE-Nine hundred and eighty? MR. STONE-It will be 980. MR. ABBATE-So you’re 80 square feet already over the maximum. MR. KAMBAR-Well, its 3 car garage and then the. MR. STONE-Yeah, but its 900 square feet is what you’re allowed for an attached garage. MR. KAMBAR-I’m going by what I was told to do. The extra is a workshop type of thing. MR. ABBATE-Is it part of the garage? MR. KAMBAR-Yeah, no its not part of the garage. MR. ABBATE-Is it attached to the garage? MR. KAMBAR-It’s all one building. MR. ABBATE-Then its 980 square feet. MR. KAMBAR-Okay. I think up to 960 is a 24’ x 40’. MR. STONE-Bruce. 3 (Queensbury ZBA Meeting 4/16/03) MR. FRANK-Well the floor plans show 29’ x 24’ approximately with a workshop on the end with a wall separating it with a door so I believe it. MR. STONE-But its got a garage, looking at the elevation it looks like there is a garage type door on the lakeside, the opposite side of regular garage. MR. FRANK-That could well be, but, I think we’ve gone over this before, you can put a garage door on any structure as long as you’re not parking a car in there, will that door accommodate a vehicle, that’s a question for the applicant. MR. KAMBAR-There will be a staircase in there to go upstairs. MR. STONE-Okay, I’m just . . . Another concern that I have and this has nothing about the work you’ve done inside the house and I appreciate that you’ve done a lot of work to check out the sturdiness of the house, unfortunately we have seen a number of houses who have come to us a number of properties getting relief in a variance for what they wanted to do putting in a second story and then finding out when they started with the work that the house can’t stand a second story, that it’s about to collapse and then the whole house comes down and we haven’t insisted that you have to come back to us, which in this particular case if we grant a variance I will ask that we put that into any approval motion that if you can’t do what you want to do then you’ve got to come back to us. All right, questions gentlemen. MR. ABBATE-If you don’t mind, actually the combination of questions and observations really. Observations first; I noticed that this is a 0.411 acre +/- is that correct? That’s what your plan says. MR. KAMBAR-Just under a half acre. MR. ABBATE-Just less than one half acre, okay fine. And also you are requesting over a 100% expansion of a non-conforming structure, is that correct? MR. KAMBAR-Correct. MR. ABBATE-And I notice that in your statement that you said, “So that year round residency would be possible”, are you suggesting that without this expansion of over 100% of a non- conforming structure that year round residency would not be possible? MR. KAMBAR-No I’m not saying that, but we’re coming from a property that’s in Washington County that’s an acre and a half and we have several out buildings and a three car garage and plenty of storage, a full basement which we won’t have here. We have three large vehicles, one is an old car, an antique car .. MR. ABBATE-That brings me to the second observation you’re seeking a three car garage on this non-conforming over 100% expansion and also included in your request is a workshop and I notice that you also indicated in your statement, “You concluded that there were no feasible alternatives”, are you suggesting that unless we approve your request in its entirety that there will be no way that you and your family could possibly reside year round? MR. KAMBAR-No we can live year round I’m sure, but we want to have it MR. ABBATE-I understand, but there are feasible alternatives. MR. KAMBAR-Well, we haven’t found any to work that out, MR. ABBATE-But if we came up with some feasible alternatives it would be satisfactory to you? MR. KAMBAR-I don’t know where I would put tractors and snow blowers and things like that. 4 (Queensbury ZBA Meeting 4/16/03) MR. ABBATE-And then, Bruce, I’m still not sure, I’d like it on the record 980 square feet would that be proper for that garage which includes a workshop. MR. FRANK-The garage is not 980 square feet, if you look at the floor plans the workshop on the end is what brings it up to that square footage you’re referring to. ….mention the door on the end, you couldn’t park a vehicle in there, there is a set of stairs that are there so it may have a door on the end but you can’t consider that part of the garage. MR. ABBATE-Okay clear this up for me, the maximum is 900 foot for a garage. MR. FRANK-That’s correct. MR. ABBATE-You mean to tell me that you can put on another additional 900 and make a small room so that a garage could not fit, it would be legal? MR. FRANK-I’m not sure about your question. MR. ABBATE-Okay, here’s my question, you’re saying right now to me, don’t get excited because its 900 square feet but he only has 80 square foot because there is an addition which doesn’t house a garage. Now let’s take an additional, in addition to the 900 sq. feet lets take an additional 900 sq. feet and make it small enough so that a vehicle could not be parked and that would be legal? Now we have 1800 sq. ft. ? MR. FRANK-You’re talking about additional living space other that where he’s going to park vehicles, store vehicles? MR. ABBATE-Yes. MR. FRANK-That would allowed by code. MR. ABBATE-Let me get this straight then, cause this is boggling my mind. If we have a 900 sq. ft. maximum on a garage and if the applicant decides to increase it to 1800 sq. ft. he could get by our codes by making sure that their little rooms is not capable of accommodating a vehicle and instead of 900 sq. ft. that calls for in the ordinance he has 1800 sq. ft. and that’s legal? MR. FRANK-Out of that hypothetical 900 sq. ft. you’re referring to would that accommodate an automobile? MR. ABBATE-No. MR. FRANK-Well then its not a garage. MR. ABBATE-So 1800 sq. ft. would be legal then, is what you’re saying. MR. FRANK-That would be 900 additional sq. ft. of living space. MR. ABBATE-It would be legal? MR. FRANK-If its not accommodating an automobile then its not a garage so it would be. MR. ABBATE-If its not accommodating an automobile he can make it 2700 sq. ft. MR. FRANK-Well that would be part of the house, I would say yes. MR. STONE-What he’s saying Chuck , just because its on the opposite side of the house its still not considered a garage. Is that what you’re saying Bruce? 5 (Queensbury ZBA Meeting 4/16/03) MR. FRANK-Correct, if he added the 900 sq. ft. garage on the other side of the workshop and that part was attached to the house, I mean, where a person plans on putting his garage makes no difference, the garage is a garage, regardless of where it is relative to the rest of the house. MR. HAYES-Theoretically it could be in the middle of the house. MR. STONE-Speaking of, I’m looking at this survey here and the site plan and it says proposed one story addition and I’m looking at the elevation and it looks like the whole thing is two story? MR. KAMBAR-Legally it could be considered two story because the ceiling height and the attic is such that there is a approximately a little less than 400 sq. ft. MR. STONE-So the whole house with the exception of this slanted portion is going to be two story, is that correct? MR. KAMBAR-Yes, except for that front 10 feet, which is now an enclosed porch. MR. HAYES-Did you check the floor area ratio numbers on this? MR. FRANK-Yes. MR. STONE-With two story all the way around? MR. KAMBAR-Its an unfinished .. MR. FRANK-Do you have a copy of the floor plans, they should have been included in your application? MR. STONE-Well I got a copy of the site plan which says proposed one story addition and I’m hearing it’s a two story addition. MR. ABBATE-Well that was my next question, but I’m glad you took it on because I don’t want Bruce to think I’m picking on him. MR. HAYES-How big is the lot? MR. ABBATE-The lot is 0.411 +/-, less than one half an acre. MR. STONE-About 20,000 . MR. ABBATE-I can figure it out. MR. STONE-The 3977 is that based upon footprint or based upon all of the second story. MR. KAMBAR-Yes, all, that includes the garage area also, its not all house. MR. STONE-Well I mean it’s the number we were provided, I just want to be sure that it in fact covers the second story. MR. KAMBAR-What’s the sq. footage of the house going to go from, the actual living portion of the house is going from 1540, well that’s the total with the garage, we’re adding 2437. MR. ABBATE-24 what 37? MR. KAMBAR-We’re adding 2437 including the garage, MR. ABBATE-So you’re adding 1540 sq. ft.? 6 (Queensbury ZBA Meeting 4/16/03) MR. STONE-That’s what he said. MR. ABBATE-To a non-conforming structure. MR. KAMBAR-Well the garage and the additional room are within the setbacks. MR. FRANK-I tripled-checked his numbers, if you look at his floor area ratio worksheet they add up to what he is proposing, slightly under 4000 sq. ft. MR. ABBATE-All right. MR. STONE-Any other questions of the Board before we open the public hearing. Okay, hearing none I’ll open the public hearing. Anyone wishing to speak in favor of this application, in favor of? Anyone opposed, opposed? Come forward. PUBLIC HEARING OPENED CHRIS NAVITSKY MR. NAVITSKY-My name is Chris Navitsky with the Lake George Waterkeeper program. I had reviewed the application I had faxed a comment letter and I can either summarize those or MR. STONE-Well, we’ll read it in unless you want to summarize it. It’ll be in the record. You’ve got five minutes. MR. NAVITSKY-Okay, I’ll go down through that, [letter read] MR. STONE-Thank you. I have one thing to say. Bruce has any determination been made about the adequacy of the septic system, has a variance been sought? MR. FRANK-The parcel history did include something that was not provided to me by our support staff. There was a septic variance back in 2001 according to the Zoning Administrator. This application, should you grant the relief that he is seeking will have to go before the Planning Board for Site Plan Review, these are all valid concerns. We discussed this today after we reviewed Chris’s letter and this will go out to the Town Engineer to review at the Site Plan level. So, I mean it’s a good point that he is bringing up, I mean it definitely will be considered at the Site Plan level. MR. STONE-That was the point that I was going to make, your points are well taken. But it is not a Zoning Board consideration and as Bruce says, if its in the record it will be noted and you certainly have a chance to talk to the Planning Board also. MR. NAVITSKY-Thank you, sorry if I was in the wrong, MR. STONE-No that’s fine, its perfectly fine to get it on the record as early and as often as possible, nothing wrong with that. Anybody else wishing to speak in opposition to this application, in opposition? Any correspondence besides .. MR. MCNULTY-Just the letter from the Waterkeeper, which he summarized which is what he said, nothing to really add. MR. STONE-Okay, Then you don’t have to read it, it’s in the record and you will acknowledge that in fact it is. Anybody else wishing to speak? Then we’ll close the pubic hearing. Anybody, further questions? All right, any comments? Come forward gentlemen, do you want to comment on anything that you’ve from Mr. Navitsky? Or anything else you want to comment on? 7 (Queensbury ZBA Meeting 4/16/03) MR. KAMBAR-Yes, I did consult with an engineer on the septic system when it was upgraded and you have, the town has in its records, and I have the records here that is was approved for the use for the size and everything. And also I had an engineer design a drainage plan which was not too long ago when there was a lot of snow on the property, although he has been there before, but, he said it would be field adjusted as necessary for installation. MR. STONE-Let me just ask Bruce, I assume that the public, the surrounding public, the neighbors were all notified and we know that everyone got a letter. MR. FRANK-As always everybody within 500 feet. MR. STONE-I know. MR. FRANK-I’ve got three for four calls for clarification of information from his neighbors so. MR. STONE-Okay, since nobody wanted to speak I just wanted to be sure that in fact they were notified. MR. KAMBAR-No this one neighbor here, as a matter of fact. MR. STONE-Well he hasn’t chosen to speak, I understand there is a neighbor here but that’s not on the record. Any other comments gentlemen? Well lets talk about it, lets start with Jim over here. MR. UNDERWOOD-Yes, I think certainly the applicant’s gone to a lot of trouble and it seems like you’ve put some time into what your plans are here, at the same time, I think that we need to consider where the location is, you know, up on the ridge there above the lake and I think that your, it may be pushing it a little bit with the expansion being so greatly in excess of the 50% that we normally grant, so I think that maybe, possibly, you could consider shrinking it down a little bit. I think that that addition of the workshop on the end is a great idea probably for you but it does make the house look substantially larger that what you had there prior to what you’re proposing in this so I’ll sit on the fence and wait and hear what everybody else has to say. MR. STONE-Okay, Joyce. MS. HUNT-Well I had some concerns about the garage also. I have to agree with my colleague here that calling it a garage and then you can add on it makes it, you could call it semantics but I think it’s a little more than that. So I’m concerned about that. I also would like, if we grant the variance, and the house cannot be built on the existing building that it would have to be moved, because it is very close to the. MR. STONE-Well, they’d have to come back for a variance for the whole building and we can condition it that way. I do have question before we, what’s above the garage? Because as Mr. Navitsky said you’ve got on the drawing you’ve got three bedrooms and that’s how we size septic systems. But there is a lot of space above the garage and you would stipulate that that always be storage space, without fixing up the septic system? MR. KAMBAR-Yes, storage space because there is no bathroom. MR. STONE-Chuck, I’m sorry Joyce were you finished, are you on the fence to? MS. HUNT-Yes, I am. MR. STONE-Chuck. MR. ABBATE-Well if I were in your position I would do exactly what you’re doing. Having said that I have great concern about a number of things. The first concern I have deals with an 8 (Queensbury ZBA Meeting 4/16/03) expansion of over 100% of a non-conforming structure which may or may not impact the quality of water, because I don’t know. My other concern is that there seems to be an implication in the documents you have forwarded to the Committee of the town that in order for you to maintain some year round residency it would be impossible if this Board did not grant you what you were requesting, and I’m having a problem with that. The second area that I’m having a problem with is your statement concluding that there are no feasible alternatives. There are always feasible alternatives in life. Some of which you may not like, but there are, but, I have an open mind. I’m on the fence. I’m willing to listen to what the other Board members have to say. MR. STONE-Roy? MR. URRICO-I’m going to take a crack at this. There are five criteria that we’re asked to solve here. The benefit to the applicant is obvious. You would be able to build your retirement home. As far as feasible alternatives, I think, I agree with Chuck. There are always alternatives, and I think in this case your one acre in a Waterfront Residential area, on a road that’s pretty tight, the houses are pretty close together. So feasible alternatives are something that should be considered. As far as the relief being substantial relative to the Ordinance, the one area that bothers me is the closeness, the proximity to the side where you’re requesting 14.5 feet of relief. Now, in a lot of cases, when people are seeking that relief, we’re basically just talking about a border, but in this case, there’s actually a frame house on the other side which is within 10 feet of that property line, and if you add the 10 feet to the 5.5, you’re still not within 20 feet, and that bothers me. We had an opportunity, here, to maybe mitigate that side setback and maybe not be as crowded as we are now, and that’s not being accomplished here. As far as effects on the neighborhood or community, again, I think there is an impact because, again, we had an opportunity to mitigate this situation, and I don’t think we’re doing that, and as far as this difficulty being self-created, I think it’s definitely self-created. So, as far as I can see, I would come down negative on this application. MR. STONE-Okay. Jaime? MR. HAYES-Well, I think everyone senses that it’s an aggressive proposal. Certainly the amount of expansion on the structure, on the outset, is aggressive in my opinion, but I’m in favor of the application narrowly, largely because, as I view it, the dimensional relief that you’re seeking is not any greater than is already there this particular time. I mean, the house is not going any closer. That would be an absolute deal killer for me, if it was, obviously. I was very interested to see what your neighbor to the south had to say. I mean, he certainly was probably the most impacted, and he’s not, he has chosen not to testify. So I’d have to say that that means something in this particular case. The other factor that weighed heavily on my mind is the fact that it does not exceed the floor area ratio. That’s a test that has been set up by the Town to determine, at some level, over development of a lot, of a lake parcel. It’s an objective standard. You’re not exceeding that at this particular time, with this expansion. So, it doesn’t appear like you’re trying to do too much with this lot, even though that, too, is close, but I just don’t, you know, as I look at the test, I just don’t see a negative effect on the neighborhood, you know, by this expansion. I’ll agree with Roy and the other Board members. It’s not exactly what I would like to see or what I would do, but I’m not sure a large negative impact on the neighborhood. In my mind, it kind of makes it slightly in favor, your favor, the test. So, I’ll be in favor of the application. MR. STONE-Well, I’m on the fence, but I can’t be, because eventually somebody’s got to get off the fence, I’m concerned, my prime concern is, well, septic is a concern, but that’s out of our hands and that will be taken care of, and I’m not, I have faith in the Town that will have an adequate septic system, and that’s, I don’t want to say it, but it’s a matter dear to my heart. I spend a lot of my time worrying about septic systems, but the thing that concerns me is that we’re going to take and add on to a wall, when I’m talking about the southern side of the house, but we’re going to add on to a wall by going up another ten, whatever it is, ten, twelve feet, so that we’re really going to have a wall five feet away or five and a half feet away from the neighbor’s property. Setback is a very important thing, particularly when it comes to lakefront 9 (Queensbury ZBA Meeting 4/16/03) property, and while this is on the other side of Pilot Knob Road, it’s still lakefront property, at least by zoning, if for nothing else, and I’m just concerned that when you start crowding houses in, and then going up, you get a visual problem. You get an effect on the neighbor, and we have to keep in mind that, while the neighbor who currently lives there has chosen not to speak, this is forever, this variance. The other concern I have is the bedroom situation. We’ve had a lot of discussion lately, I have, personally in my other dealings, about what constitutes a bedroom in the State of New York, and I see Mr. Lapper look at me. It’s a little confusing, and I hope that he would agree, and you’ve got this big open space above the garage that, if anything, we would want to limit, at least I would want you to limit, to agreement that no further bedrooms would be put in this house because that’s how we measure septic systems. Mr. Navitsky was very clear in his testimony, if you will, and I think we have to keep that in mind. I mean, obviously, we’re taking an existing house, the house which is in nonconformity, in terms of side setback. You haven’t come to us and said you want to be three and a half feet. That you wouldn’t have gotten from anybody here, I don’t think, but you have said you’d like to go up at four and a half feet. I guess I’m willing to allow that, as long as, Mr. Kambar, you agree that no further bedrooms would be constructed in this house. That you will get as much discussion, you’ll have as much discussion as necessary with the Town, in terms of the size of the septic system, to make sure that, in fact, you do not impact the lake. So, basically, I would, like Mr. Hayes, I would narrowly come down in favor of the applicant. I think the balancing test that Mr. Urrico so clearly put forth gets me to there, but barely. So, having said that, I would like, I would call for a motion to approve, with the caveats that, one, that there be no more bedrooms in the house, and that, two, if the existing structure cannot support a second story, and it must come down, that a new variance must be sought. Jaime, do you want to? MR. HAYES-Sure. MOTION TO APPROVE AREA VARIANCE NO. 27-2003 KENNETH & DIANA KAMBAR, Introduced by Paul Hayes who moved for its adoption, seconded by Lewis Stone: 27 Hanneford Road. The applicant proposes reconstruction and expansion of an existing 1,540 square foot seasonal dwelling to become a 3,977 square foot single family dwelling with a three car attached garage, that’s with the existing attached garage to be demolished. Specifically the relief the applicant is requesting is 14.5 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, and for the expansion of a nonconforming structure, Section 179-13-010, Parts A & E. The benefit to the applicant, the applicant would be permitted to construct a home as depicted in these plans for his year round dwelling. Feasible alternatives, I believe that while there are alternatives that are feasible, in this particular case, the fact that the house is already 5.5 feet from the property line, and he is seeking to expand that limits its relief or change of that, unless you’re going to demolish the whole house, and I can certainly understand why that’s not an ideal alternative. Is the relief substantial relative to the Ordinance? 14.5 feet of relief from the 20 foot minimum side setback requirement, I think it’s moderate in this particular case, because that’s pre-existing. That’s where you are now. If that was where you were proposing to build a new home or the expansion to, I would consider it to be more than substantial, fatal, but in this particular case, it’s already the dimensional relief that we’re with, and the other piece of relief is 1, 292 square feet of relief from the 2,685 square feet allowed enlargement, which is the 50% expansion of a nonconforming structure. It appears from the plans to me that you have moved that expansion away from the boundary and the relief area, and the plans seem well done. So I think that, while that’s very large, I think that goes against the applicant, the size of the relief that you’re requesting, compared to the rest of the test, I do not find it consequential. Effects of the neighborhood or community, I think they’re very minimal. You have no neighborhood opposition to your proposed application. It does comply with the Floor Area Ratio, and I think that, from the looks of the plan and stuff, it looks to me like it would probably be a compliment, in an overall sense, to the neighborhood. Is the difficulty self-created? I think that’s a split. I think that, you know, you’re choosing for a large expansion, but the house is already 5.5 feet of relief from the thing, which is essentially what’s triggering all the relief that you’re requesting outside of the expansion, size of the expansion. I make this motion with two contingencies. One is that the number of bedrooms that you use or occupy does not exceed the three that are 10 (Queensbury ZBA Meeting 4/16/03) currently part of your application, and the second thing is that if, on further examination, an expansion upward of the part of your development that is causing or is only 5.5 feet of relief does not support a second floor, i.e. a rebuild, a complete rebuild, then this relief would be terminated at that point. It’s contingent on that the current foundation and structure supports the addition upwards, not a new foundation and structure. With those two caveats or provisions, I move for the approval. Duly adopted this 16 day of April, 2003, by the following vote: th MR. STONE-Before we vote, I want to explain. I chose, because the votes that I counted were in favor of the variance, if we do not approve the motion, I will consider it a denial, and therefore, the applicant will have to make significant changes before you can appear again, seeking another variance. Is that okay, Bruce? MR. FRANK-I think that’s fine. You also ought to offer to the applicant, he can withdraw his application, since there’s not a full Board here. Do you want to make that offer to him, also? MR. STONE-We can do that. I mean, you heard what you heard. I heard, and I asked for a motion to approve. The lack of a second by those people who were sitting on the fence, you can read any way you want. I’ve never had that before. So you read it any way you want. If we do not approve the motion, and remember, we have to have four positive votes. Even though there are only six of us here, four of us most vote yes. If we don’t get a yes, I will consider it a denial. So, do you want us to take a vote? MR. FRANK-Mr. Chairman, can the applicant also request to table because you don’t have a full Board? MR. STONE-He can request to table, yes. We could table it and get a full Board. It still requires four votes. MR. KAMBAR-I probably would go in favor of a table, but I’ve been mulling in my mind what everyone is saying, and I’m trying to think of what is a feasible difference. MR. STONE-Okay. Well, the basic thing I heard from at least two members were your lack of offering any alternatives was not a positive in their mind. Chuck? MR. ABBATE-We can’t do that. The motion’s already on the table. You seconded it. MR. STONE-He can withdraw it. MR. ABBATE-Who can? MR. STONE-The man who made it. MR. ABBATE-Well, then I’ll have to go for a motion to disapprove, then. MR. STONE-Okay. We can do that, too, but I’m thinking we could take it off the table, if we tabled it, we could take it off the table. I believe. MR. ABBATE-I think we should vote on the motion. MR. STONE-I have no problem with voting on the motion. MR. ABBATE-Then let’s vote. MR. STONE-But he just requested for us to table it. 11 (Queensbury ZBA Meeting 4/16/03) MR. ABBATE-You can’t do that. The motion is already passed, and you seconded it. We have to vote. MR. STONE-We didn’t pass a motion. We made a motion, sir, which can be withdrawn by the maker and the second. MR. ABBATE-Then I will press, Mr. Chairman, for a motion to deny. MR. STONE-Well, we can ask for a table and you can turn that down, too. MR. ABBATE-We can? Then we take all the rules for the ZBA and we throw them out the window. MR. STONE-No. What rules? MR. ABBATE-Everybody should be treated fairly. There should be one standard for every applicant coming before us. MR. STONE-And I’m trying to make a standard. We can vote, and I have no problem voting, but the applicant, we always offer him the chance to withdraw a motion, an application, or ask to be tabled if t there’s severe questions. Jaime, do you? MR. HAYES-I think it’s the Chairman’s prerogative. Historically, it’s been the Chairman’s prerogative. MR. STONE-Yes. Welcome back, Lew. MR. HAYES-That’s right. I’m glad you’re there. MR. STONE-I’ll tell you what. Since the group is interested in alternatives, if we deny this motion, then you’ll have to make alternatives to get a variance. So I will call for a vote. MR. KAMBAR-Is there any possibility of asking a question, or is that not allowed? MR. STONE-Go ahead. Ask a question, but don’t challenge the member. You may ask a question. MR. KAMBAR-I’m not challenging. I’m just asking what specifically, so I can narrow it down a little more, that everyone is against. MR. ABBATE-Let me address that. I’m going to be very blunt about this. I don’t believe, your application, to me, insists that we approve your application, and without approval of your application, with everything that you’re requesting, there is no alternatives. It would be practically impossible to utilize this residence year round, and I find that offensive. There are always alternatives. MR. FRANK-Mr. Chairman, can I offer something? MR. STONE-Yes. MR. FRANK-I mean, there are alternatives. He could demolish this, start anew, build the same size home that he’s proposing, without any relief, in a compliant location, where there appears to be plenty of room. Is that feasible to, is that a feasible alternative? MR. STONE-Well, that is an alternative. MR. FRANK-It’s an alternative. Is it a feasible alternative? 12 (Queensbury ZBA Meeting 4/16/03) MR. STONE-That the applicant has. It’s a feasible alternative. That would be setback, significant setback on either side, I think, but that’s up to the applicant. That is an alternative. I think what Mr. Abbate is saying is that he is offended by what he deems an unwillingness to offer any alternatives. That’s the way I’d put it. MR. ABBATE-You’re right. Particularly when this is a nonconforming, he’s requesting 100% expansion of a nonconforming unit. Yes, you stated it quite well. Thank you. MR. STONE-Okay. Well, we’re going to vote, and we’ll see where it goes. AUDIENCE MEMBER-Mr. Chairman, would you accept comments from the peanut gallery for you to think about? MR. STONE-No. Go ahead, Bruce. MR. FRANK-So we’re voting on your motion, or Jaime’s motion to approve? MR. STONE-Jaime’s motion to approve. MR. FRANK-All right. AYES: Mr. Hayes, Mr. Stone NOES: Mr. Abbate, Mr. Urrico, Mr. Underwood, Mrs. Hunt ABSENT: Mr. Bryant, Mr. Himes, Mr. McNulty MR. STONE-The motion is defeated. Your variance is denied. Which means that, in order to do anything you have to come back before us, if you want to continue the project, you have to come before us with a significantly different application, and that’s in your eyes and our eyes when you come before us, and I can’t even, Staff may be able to give you some thoughts, but you have to come before us to get our approval to make a new application. Sorry. AREA VARIANCE NO. 29-2003 SEQRA TYPE: TYPE II ACTION PAUL KASSELMAN AGENT: JAMES W. MOONEY PROPERTY OWNER: PAUL KASSELMAN ZONING: WR-1A LOCATION: 25 WILD TURKEY LANE APPLICANT PROPOSES CONSTRUCTION OF A 252 SQ. FT. ROCK-FILLED CRIB DOCK TO ADJOIN EXISTING 729 SQ. FT. DOCK. RELIEF REQUESTED FROM SIZE AND WIDTH REQUIREMENTS FOR DOCKS. CROSS REFERENCE: BP 90-420 WARREN COUNTY PLANNING: 4/9/03 APA TAX MAP NO. 239.15-1-8 PARCEL SIZE: 1.19 ACRES SECTION: 179-5-50 (4,5) MR. STONE-Bruce, before we start, isn’t this three acre zoning? The agenda says one acre. MR. FRANK-I believe you’re correct, yes. MR. STONE-Well, does that invalidate this whole thing? MR. FRANK-In what way? MR. STONE-Well, how was it advertised? Was it advertised correctly? MR. FRANK-Well, I guess that was a typo or whatever you want to call it. I’m not sure, actually. I don’t have access to the GIS information. So I can’t. MR. STONE-Well, I know it’s three acre. Let’s put it that way. That whole area from Bay Road to the Lake George line is three acre, and tell me, I mean, as far as I’m concerned, it was incorrectly advertised, if, in fact, the advertising said one acre. 13 (Queensbury ZBA Meeting 4/16/03) MR. FRANK-Well, what you’re reading from is the advertisement, which says WR-1 Acre. So I guess it’s inaccurate. MR. ABBATE-But the applicant does have three acres? MR. UNDERWOOD-No, 1.19. MR. STONE-It says, it tells you the size. The size is 1. something acres. MR. UNDERWOOD-1.19. MR. STONE-And it’s definitely three acre zoning. MR. FRANK-What happened was the applicant, on his application, listed the zoning as WR-1 Acre, and the support staff probably took it right off the application. It wasn’t caught by anybody, so I guess it was advertised incorrectly. MR. STONE-Well, then I’m going to not listen to it, then. I’ll take the prerogative of not listening to it, until it gets advertised correctly for next month. I’m sorry for anybody who may have come, but as someone just said, we’ve got to do it right. This is how we do it right. Next application. AREA VARIANCE NO. 30-2003 SEQRA TYPE: TYPE II ACTION KEITH CAVAYERO AGENT: CURTIS D. DYBAS PROPERTY OWNER: KEITH CAVAYERO ZONING: MU LOCATION: 5 MAIN STREET APPLICANT PROPOSES TO REMOVE THE EXISTING DUMPSTER ENCLOSURE AND CONSTRUCT A 15 FT. BY 20 FT. ACCESSORY STORAGE BUILDING. RELEF REQUESTED FROM THE REQUIRED SEPARATION DISTANCE TO ANOTHER BUILDING AND SETBACK REQUIREMENTS. CROSS REFERENCE: BP 2002- 441; BP 99-684 WARREN COUNTY PLANNING 4/9/03 TAX MAP NO. 309.11-2-18.1 PARCEL SIZE: 1.01 ACRES SECTION: 179-4-030; 179-5-020(B3) CURT DYBAS, REPRESENTING APPLICANT, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 30-2003, Keith Cavayero, Meeting Date: April 16, 2003 “Project Location: 5 Main Street Description of Proposed Project: Applicant proposes to remove the existing dumpster enclosure and construct a 15-foot by 20-foot accessory storage building. Relief Required: Applicant requests 9.5 feet of relief from the 20-foot minimum side setback requirement and 3.5 feet of relief from the 50-foot minimum separation distance to another building requirement for accessory structures per §179-5-020 (B1 and 3), and for the area requirements of the MU Zone per §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 construct the desired structure in the preferred location. 2. Feasible alternatives: Feasible alternatives seem to be limited. 3. Is this relief substantial relative to the ordinance?: 9.5 feet of relief from the 20-foot minimum side setback requirement may be interpreted as moderate (47.5%), and 3.5 feet of relief from the 50-foot minimum separation distance may be interpreted as minimum (7%) both relative to the ordinance 4. Effects on the neighborhood or community: Minimal effects may be anticipated as a result of this action. 5. Is this difficulty self-created? Some of the difficulty may be attributed to the lack of compliant locations to construct a storage building, and the desire to utilize the area occupied by the unused enclosure. Parcel History (construction/site plan/variance, etc.): AV 51-1996: withdrawn 06/19/96, request to remove curbed islands at entrances. SB 8-96: 05/21/96, two lot subdivision. AV 23-1996: 04/17/96, zero lot line adjustment. 14 (Queensbury ZBA Meeting 4/16/03) Staff comments: Minimal impacts may be anticipated as a result of this action being the applicant proposes to utilize slightly less area with the storage building than is currently being occupied by the dumpster enclosure. The close proximity to the main building and the west drive lane does not allow for a compliant location to place the storage structure. However, rotating the storage structure 90° and placing it as proposed (relative to the side setback) would eliminate the need for relief from the minimum separation distance to another building requirement. SEQR Status: Type II” MR. MC NULTY-“Warren County Planning Board Project Review and Referral Form Project Name: Cavayero, Keith Owner: Keith Cavayero ID Number: QBY-03-AV-30 County Project#: Apr03-30 Current Zoning: MU Community: Queensbury Project Description: Applicant proposes to remove the existing dumpster enclosure and construct a 15 ft. by 20 ft. accessory storage building. Relief requested from setback requirements. Side yard: 20’ is required; 10’6” is proposed. Site Location: 5 Main Street Tax Map Number(s): 309.11-2-18.1 Staff Notes: Area Variance: The applicant proposes to remove an existing dumpster enclosure of 336 sq. ft. The applicant intends to build a 300 sq. ft. accessory shed. The existing dumpster area is 10 ft. from the property line and the new structure will be 10.6’ from the side property where 20’ is required. There is no change in permeable area because the structure will site on existing slab. Staff does not identify an impact on county resources. Staff recommends no county impact. County Planning Board Recommendation: No County Impact” Signed by Bennet F. Driscoll, Warren County Planning Board 4/13/03. MR. STONE-Mr. Dybas MR. DYBAS-Good evening. My name’s Curt Dybas, and I’m the agent for Keith Cavayero on this project. I think, as the project is read into the record, I think it’s quite clear what he’s proposing. MR. STONE-Okay. I’ve got a series of questions. Right now there’s three storage, three, quote, out buildings, on this property, all lined up in a row. There’s the one that wants to be taken out. There’s the compactor storage area, and then there’s a dumpster area toward Main Street. It just seems to me that, a lot of buildings for a relatively new building. That’s one question. Is the compactor being used, do you know? MR. DYBAS-I believe the compactor is being used by CVS. It’s their compactor, and to answer your question, if you note, there’s a property line that cuts through that dumpster, and this is a two lot subdivision, and the front most dumpster enclosure and the compactor are used by CVS. Dr. Cavayero, you know, he has minimal amount of paper product from his practice that he goes out and he’s never had to use the dumpster. MR. STONE-Is he the owner of the building, both sides? MR. DYBAS-No, he is the owner of the rear portion of the building. CVS owns the front portion. This building, if we walked back to that subdivision. MR. STONE-I know we had a zero lot line. MR. DYBAS-And the property line, per se, cuts through the building, similar to what you would do in a condominium, and CVS owns the front. MR. STONE-They own the front, though. MR. DYBAS-They own the property in the front, and he owns the property and the building in the rear. MR. STONE-I wasn’t aware of that. That takes away. I think they’re messy, but the interesting thing is, one of my concerns with the compactor is the fact that the doors, when I got there, were 15 (Queensbury ZBA Meeting 4/16/03) wide open, and it did not look very neat. In fact, it looked pretty messy to me, and that is on his property. It may be CVS’s, but it’s on his property. MR. DYBAS-You’re correct. It is on that, on his rear portion. MR. STONE-Okay. Questions, gentlemen? MR. ABBATE-I just have a comment. I noticed that the applicant, according to Staff notes, is going to be using slightly less area with the storage building than is currently being occupied with the dumpster enclosure. Is that accurate? MR. DYBAS-That is accurate. MR. ABBATE-Good. Thank you very much. MR. URRICO-In the Staff notes, they suggest rotating the storage structure 90 degrees. How do you feel about that? MR. DYBAS-The reason that is not rotated, and at the initial interview with Mr. Brown that I had, the rotation came up. There is an existing 15 by 20 foot six inch thick concrete slab that the dumpster was to rest on, and to answer your question why the enclosure is bigger is they put the posts in around this slab, and the idea is here to remove the fence and build this storage building on top of the existing slab, and not get into slab removal and all that. MR. STONE-Any other questions? Well, if not, let me open the public hearing. Anybody wishing to speak in favor of this application? In favor of? Anybody opposed? PUBLIC HEARING OPENED ROBERT HICKOK MR. HICKOK-I’m representing my mother, Mary Hickok. She resides at 1 Main Street, which adjoins this property. This doesn’t really pertain to the proposal that has been brought before you. It’s just that some of the things that were promised in the past to her, when this first went in to the planning stage, from the offset, originally there was a fence going the whole length of her property by the other owner. When this plan went through, my mother was assured that there would be a fence put in, to kind of cut the egress across her property. It slipped through my mother’s hands and she lost track of it. Now she has people constantly cutting back and forth across her property, throwing trash, and it’s upsetting her quite terribly, and she doesn’t really feel that he’s a good neighbor. Hasn’t been a good neighbor to her ever since he’s moved in. So she just wanted to say that, you know, she’s opposed to it just because of the fact that, you know, he hasn’t been honest with her. MR. STONE-Okay. Now, I’m told that the property immediately adjacent to her home is owned by CVS. Do you agree with that? MR. HICKOK-She owns the whole strip of property. MR. STONE-She owns the whole strip. I understand that, but is there no fence at all the whole length of that? MR. HICKOK-Originally it was his property until he sold it to CVS. Originally he’s the one that promised that there would be a fence down through there. He promised it to her. MR. STONE-Is that in writing anywhere? MR. HICKOK-No, it isn’t unfortunately she’s 80 years old, and he hoodwinked her. 16 (Queensbury ZBA Meeting 4/16/03) MR. ABBATE-Now who is “he”? You say “he” promised? MR. HICKOK-The guy that applied for this. MR. STONE-Mr. Cavayero. MR. ABBATE-Okay. Mr. Cavayero made the promise? MR. HICKOK-Well, actually, I think it was his architect showed her a plan where there was a fence down through the two properties. She went out and talked to the workers when they were out there and they said, yes, there was plans to put a fence down through there. There never has been a fence down through there, since the one that was. MR. ABBATE-There’s no fence at all? MR. HICKOK-None whatsoever. MR. STONE-The only suggestion I could make is, one, first of all, see Staff, and see if they can help you. If not, you have to take civil litigation. It’s about the only way to. MR. HICKOK-Well, it’s got to the point where she’s looking for doctors or dentists to buy the property or else she wants to put a six foot high basket weave fence down through there, to keep people from cutting across her property, so that she can have the use for herself. MR. STONE-But the important thing is that she, as a neighbor, is opposed to this, on the grounds? MR. HICKOK-On the grounds that he hasn’t been a good neighbor in the past. MR. STONE-Okay. That’s a perfectly legitimate statement. MR. ABBATE-Okay. MR. HICKOK-Thank you. MR. ABBATE-Thank you. MR. STONE-Anybody else wishing to speak in favor or against? Any correspondence? MR. UNDERWOOD-No. MR. STONE-All right. Let me close the public hearing. PUBLIC HEARING CLOSED MR. STONE-Any further? Mr. Dybas, do you want to? MR. DYBAS-I just want to, I want to go on record that I was not the architect that he mentioned. MR. STONE-I’m glad you wanted to say something. MR. ABBATE-That’s like sitting on the fence. MR. STONE-Any other questions? All right. Well, let’s talk about it, then. Let’s start with Joyce. All right. We’ll re-open the public hearing. There is a letter in the file, a short note. PUBLIC HEARING RE-OPENED 17 (Queensbury ZBA Meeting 4/16/03) MR. UNDERWOOD-It’s just a short one. This was a received telephone call from the applicant’s neighbor, Jane Wait, Crooked Tree Lane, on Wednesday, April 16, 2003 regarding the application. She has no objection to the proposed project. MR. HAYES-Is that in the right file? MR. UNDERWOOD-That’s in the wrong file. MR. STONE-That’s in the wrong file. Okay. I’ll close the public hearing again. PUBLIC HEARING CLOSED MR. STONE-Joyce? MRS. HUNT-Well, looking at the plan, I don’t have any objection. I mean, I can understand why they don’t want to rotate it when they have the concrete footing there, platform. I think it would be probably more attractive than a dumpster enclosure, and so I would be in favor of it. MR. STONE-Okay. Mr. Abbate? MR. ABBATE-Thank you. I believe that the applicant is probably doing a good thing by minimizing the area in which articles are being put in there, and according to Staff notes, it’s going to be slightly less than the current cubic feet. That’s correct, is it not? MR. DYBAS-That is correct. MR. ABBATE-No, any other issue, I think, as the Chairman quite put out, is probably an issue of civil litigation, which doesn’t fall within our purview. So, based upon this, I would be in favor of the application. MR. STONE-Roy? MR. URRICO-Yes. I basically agree with Chuck and Joyce. Although I would say that, based on the condition of the compactor, and some of the other items on that property, considering what the neighbor has to say, I think a message should be sent that they better take care of the property a little better than they have, but as far as this variance, I have no objection. MR. STONE-Jaime? MR. HAYES-I essentially agree. I think this is really a technical variance. This parcel, which I’m very familiar with, of course being somewhat in the neighborhood, is generally perceived to be an improvement in that corner, in that area, and everybody feels they need to keep that dumpster a little better or whatever, but I certainly think that Dr. Cavayero has got a history of having a quality development there and taking care of it pretty well. That’s generally perceived that way. So I think it’s basically an improvement to the neighborhood, and I think it’s viewed that way. So, I don’t think that the relief itself is substantial enough to trouble me. Again, I think it’s technical, in the sense that it’s because of where the property is located, you know, currently, and I think feasible alternatives are limited to the perimeter of the property for dumpster and other enclosures. Certainly CVS is a retail operation so they’re going to generate cardboard, corrugated waste as they take stuff out of boxes and put it on shelves. So it’s a natural byproduct of their business. So, on balance, I’m in favor of the application. MR. STONE-Jim? MR. UNDERWOOD-Yes. I would be in agreement with everyone else. I think that the enclosed building would be an improvement over the old dumpster. 18 (Queensbury ZBA Meeting 4/16/03) MR. STONE-Well, I certainly feel the same way. I just would like, in fact, I think it’ll be an improvement because one of the things that I noticed, in looking at the three current, one and a half on each property, and of course that’s always a problem, and that’s shame on us, because maybe we didn’t anticipate it when we gave the zero lot line variance, but the bottom’s of at least all three enclosures are not doing well, as a result of weathering and so on and so forth. So a more solid building is certainly going to be an improvement, in terms of what happens in the future. So, having said that, I will call for a motion to approve. MOTION TO APPROVE AREA VARIANCE NO. 30-2003 KEITH CAVAYERO, Introduced by Joyce Hunt who moved for its adoption, seconded by Charles Abbate: 5 Main Street. The applicant proposes to remove the existing dumpster enclosure and construct a 15 foot by 20 foot accessory storage building. The applicant requests 9.5 feet of relief from the 20 foot minimum side setback requirement and a 3.5 feet of relief from the 50 foot minimum separation distance to another building requirement for accessory structures per Section 179-5- 020, Sections B1 & 3, and for the area requirements of the MU zone, per Section 179-4-030. In view of what has been stated, I move that this variance be approved. Benefit to the applicant. The applicant would be permitted to construct the desired structure in the preferred location. Feasible alternatives. Feasible alternatives seem to be limited. Is this relief substantial relative to the Ordinance? 9.5 feet of relief from the 20 foot minimum side setback requirement may be interpreted as moderate (47.5%), and 3.5 feet of relief from the 50 foot minimum separation distance may be interpreted as minimum, (7%), both relative to the Ordinance. Effects on the neighborhood or community. Minimal effects may be anticipated as result of this action. Is this difficulty self-created? Some of the difficulty may be attributed to the lack of compliant locations to construct a storage building and a desire to utilize the area occupied by the unused enclosure. The proposed storage building is in approximately the same area as the dumpster enclosure, but will utilize slightly less area. I move that we approve Variance 30-2003. Duly adopted this 16 day of April, 2003, by the following vote: th AYES: Mr. Abbate, Mr. Urrico, Mr. Underwood, Mrs. Hunt, Mr. Hayes, Mr. Stone NOES: NONE ABSENT: Mr. Bryant, Mr. Himes, Mr. McNulty MR. STONE-There you go. MR. O'CONNOR-Mr. Chairman, with the indulgence of Mr. Schermerhorn, could I ask you to take Mr. O’Keefe’s variance next? MR. STONE-For what reason? MR. O'CONNOR-I’m trying to balance between two meetings, and one of which I’m the Chairman. MR. STONE-So it’s you, your convenience. MR. O'CONNOR-No, with his consent is what I’m saying. MR. STONE-With his consent. Mr. Lapper, Mr. Schermerhorn, do you agree that you consent? MR. SCHERMERHORN-Yes. MR. STONE-Okay. Before I call you, I want to make an additional comment to Mr. Kasselman, are you here? I just want, I believe it was Staff who wrote the notes up of the meeting where it said one acre. So it’s a Staff error, but nevertheless, it was advertised as one acre. Therefore the advertising is in error, and I apologize for that, but if it’s not advertised correctly, then there’s a 19 (Queensbury ZBA Meeting 4/16/03) flaw in the whole thing, as far as I’m concerned. You’ll be first on the agenda next month. Can we do that? Have you already set the agenda for next month? MR. FRANK-Well, it’s the first time it’s ever happened, that I’ve ever seen. So I’m not really sure how it works to be honest with you. MR. STONE-Well, let’s put it on first. I want it, let’s get it out of the way. MR. FRANK-Sure. MR. HAYES-It’s the Chairman’s prerogative I think. MR. STONE-Yes, put it on first, if the ice doesn’t get the current dock, the way things are going today. MR. MOONEY-Okay. Thank you. MR. STONE-Okay. Because of the generosity of Mr. Schermerhorn and Mr. Lapper, which has no bearing on what comes in their application, I will call Area Variance No. 28-2003. AREA VARIANCE NO. 28-2003 SEQRA TYPE: TYPE II ACTION MARY K. O’KEEFE AGENT: MICHAEL J. O’CONNOR OWNER: MARY K. O’KEEFE ZONING: WR-1A LOCATION: 169 MANNIS ROAD APPLICANT PROPOSES TO DEMOLISH EXISTING 906 SQ. FT. SINGLE-FAMILY DWELLING AND CONSTRUCT A NEW 3,300 SQ. FT. SINGLE-FAMILY DWELLING WITH TWO DEEDED RIGHTS-OF-WAY. RELIEF REQUESTED FROM ROAD FRONTAGE REQUIREMENTS. CROSS REFERENCE: BP 2000-080 TAX MAP NO. 289.18-1-1 LOT SIZE: 1.27 ACRES SECTION 179-4-090 MICHAEL O’CONNOR, REPRESENTING APPLICANT, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 28-2003, Mary K. O’Keefe, Meeting Date: April 16, 2003 “Project Location: 169 Mannis Road Description of Proposed Project: Applicant proposes to demolish an existing 906 sq. ft. single-family dwelling and construct a 3,300 sq. ft. single-family dwelling on a lot without frontage on a town road (lot has two deeded right-of-ways). Relief Required: Applicant requests 40 feet of relief from the 40-foot minimum road frontage requirement per §179-4-090(A). Criteria for considering an Area Variance according to Chapter 267 of Town Law: 1. Benefit to the applicant: Applicant would be permitted to construct the desired home on a parcel that does not front on a town road. 2. Feasible alternatives: Feasible alternatives seem to be limited. 3. Is this relief substantial relative to the ordinance?: 40 feet of relief from the 40-foot minimum required road frontage may be interpreted as substantial relative to the ordinance. 4. Effects on the neighborhood or community: Minimal effects on the neighborhood may be anticipated as a result of this action. 5. Is this difficulty self-created? The difficulty may be attributed to the pre-exiting, nonconforming lot. Parcel History (construction/site plan/variance, etc.): None. Staff comments: Minimal impacts may be anticipated as a result of this action. Should this application be approved, the parcel is accessed by two deeded right-of-ways. The right-of-way depicted on the plans is 10 feet wide. Even though there are no minimum requirements for private drives, staff recommends the drive width be increased to 15 feet, which would provide for better access of emergency vehicles. SEQR Status: Type II” MR. STONE-Any comments? MR. FRANK-Mr. Chairman, I need to make a correction to these Staff comments. The part where it says the right of way depicted on the plans is 10 feet wide, the plans actually call for, depicted a 10 foot wide stone drive. The day I did my site inspection, the day after we had the 12 inches of snow, there was no way to determine, I went back since that time, and discovered 20 (Queensbury ZBA Meeting 4/16/03) that it’s a paved drive. The paved surface is 11 feet wide, with about a foot of shoulder of crushed stone on either side of the narrowest place. So it’s approximately 13 feet wide, the actual drive aisle. MR. STONE-Okay. That’s the driveway going up the hill? MR. FRANK-Right. Just to clarify it. So you can kind of disregard the. MR. STONE-Before we start, Mr. O’Connor, I assume you’re the one speaking for this application? MR. O'CONNOR-Yes, Mr. Chairman. MR. STONE-I was concerned about the packet of information that I got, which showed no plans for the house itself. Now, I know that you’re not seeking relief there, but we get into lake property, I’d kind of like to know where the house was going to be located and what it was going to. MR. O'CONNOR-That hasn’t been fully determined yet. The landscaping plan hasn’t been determined. Basically what we have said throughout the whole process, is that the house will be in full compliance with all setback requirements. We will not be seeking a variance. MR. STONE-Okay. Thank you for putting that on the record. MR. O'CONNOR-Okay. MR. STONE-Go ahead. MR. O'CONNOR-Okay. Mr. Chairman, for the purpose of your record, I’m Michael O’Connor from the law firm of Little & O’Connor. I’m here to represent Mary O’Keefe and Dr. James O’Keefe. With me is their son James O’Keefe, their project manager Joe Orloff and their contractor Ron Taylor. What we have done is simply recognized that when we apply for a building permit, they’re going to ask us, do we have 40 feet of frontage on a road, and we’re going to answer no. It’s not something that the O’Keefe’s created. This lot was created back, I believe, in 1912, something like that. The map was actually filed in the County Clerk’s Office in 1915, and is called the Russell and the O’Connor subdivision, and it has to do with 50 foot lots all along that portion of Glen Lake. Since that date, this lot has not been on a Town road. I’m not even sure when Mannis Road, which is the nearest Town road, became a road, which runs up to the back of the lot. When the O’Keefe’s decided that they were going, they have a house on there now. It used to be owned by Louie Carusone. It’s fortunate, in the sense that they have a large lot, probably one of the larger lots on the lake. It’s 1.13 acres. It’s a good piece of property, and they decided that they wanted to remove the existing house that’s on there and build a year round home. They, like their adjoining owners, had only a 12 foot right of way, that goes through the gully there between Hughes’ property on the east and Minges on the west, that goes out to the lake, and then goes along the lake, and it’s not a very substantial road. They decided, some time ago, that they would improve that driveway, and they had a driveway built along the back of the property, along the back of Minges’ property, and it was then Blizma’s property. If you take a look at the survey map that was submitted, you’ll note their immediate owner, which is now Vittengl, which was Blizma, has a very small triangle piece of property on the corner of their lot. It would be the southwest corner of their lot. When they decided that they would do this construction, we said we should get a deeded right of way. This was a driveway that was built by a handshake some time ago. When we went to Vittengl, we could not obtain permission to have the driveway exist, or stay where it was. We, in fact, on the map as you see, have a jog around that little triangular piece. We made, the actual right of way, and I think Frank has partially addressed this, is 20 feet wide. It’s shown as 20 feet wide. It says 10 foot centerline. I’m not sure how it got interpreted otherwise. The driveway along the back of the property is 20 feet wide, pavement is 11 feet, maybe a couple of other feet for shoulders. It’s probably 13 feet or something like that at the narrowest point. The driveway, to 21 (Queensbury ZBA Meeting 4/16/03) get that, we went to Hughes, because they were not involved before, but we had to go over in their property in order to avoid the Vittengl’s property. MR. STONE-Hughes is the lake? MR. O'CONNOR-The pond. MR. STONE-Yes, Mud Pond, yes, Glen Lake. MR. O'CONNOR-They were very concerned that we not effect Mud Pond in any manner. So when we constructed it, we did it in a manner that we would not effect the pond. We couldn’t actually go closer. So, we now have two right of ways, deeded right of ways to this property, even though the property was created in the early 1900’s, and we wish to construct a fully compliant home on that property. MR. STONE-When you mean the deeded, the one right align the lake? That little shelf that exists there? MR. O'CONNOR-Yes, the 12 foot. MR. STONE-I had my car on there, further down the road, and I’ll never do it again. Because I wasn’t sure I was going to get out of there. MR. O'CONNOR-I’m not sure if that was in existence down by Mr. Underwood’s property before they opened up the back. That ridge runs all the way, it follows Fitzgerald Road and follows Mannis Road. MR. STONE-It goes both ways if you go. MR. O'CONNOR-Right, but years ago when they built the shopping center at the corner of Route 9, they took the ridge out. That’s how it opened up those lots to the back of Mannis, some of those lots. MR. STONE-Just out of curiosity, the little lot to the west, is that accessible down on the lake by any road? MR. O'CONNOR-Only by the 12 foot right of way. MR. STONE-That’s the only way to get there. Okay. MR. O'CONNOR-Yes. MR. STONE-That’s what I determined. MR. O'CONNOR-We think, we have an existing house, an existing lot, we think that we’re going to have no impact on anyone. If you look at the memo that I wrote on March 7, you will th see that I even question and I reserve my rights as to whether or not there is a need for a variance, but in order to get the building permit, we have submitted the application. I think that this condition is a pre-existing, nonconforming condition, the same as any other dimensional requirement that you have for a parcel. MR. STONE-How much road would have to be deeded to the Town, to extend Mannis Road up their driveway, to make it a Town road? I’m just curious. MR. O'CONNOR-I don’t think the Town will take a deeding less than 50 feet. MR. STONE-Okay. 22 (Queensbury ZBA Meeting 4/16/03) MR. O'CONNOR-And they have some restrictions on gradation. MR. STONE-Okay. MR. O'CONNOR-It can’t exceed 10% grade, I think, for a Town road. That’s the last time I did a subdivision. I don’t know if that’s changed or not changed, but I know 50 feet is correct. MR. STONE-Okay. I know they’ve plowed a hill on Assembly Point. MR. O'CONNOR-I live, if you come in, I live the other way. There are eight homes immediately off the other end of Fitzgerald Road. They’re on a private road, the same as this thing here. Most of the lake properties are like that, or a lot of them are, and of those, I consider, of those eight, there are four that are year round. Any questions? MR. STONE-Any questions of the applicant? MR. ABBATE-I have a comment, just to clear something up. I don’t believe Counsel was here when we heard the first application. I was rather strong in my opinion. That also dealt with a nonconforming lot. However, in that instance, and I want to make this clear, we’re talking about 0.4411 acres, and they requested to build a 3,977 square foot. I’m relieved, and I will perceive this application differently, because we’re talking about a 1.13 acre. Am I correct on that, Counsel? MR. O'CONNOR-Yes, you are. MR. ABBATE-We’re talking about a 1.13 acre, and the applicant is only requesting a 3300 square foot single family dwelling. So if my position seems to be inconsistent, the reason for that is we’re talking about two different types of eggs here. Thank you, Mr. Chairman. MR. O'CONNOR-The size of the dwelling is not part of the application. MR. STONE-This is going to be a year round home? MR. O'CONNOR-Yes, it is a year round home. MR. STONE-It’s going to be a year round home. So the owner is going to have to keep that driveway open for fire protection, if they want any. MR. O'CONNOR-Yes. MR. STONE-How does that work, Bruce? MR. FRANK-He plows the driveway. They go there and put the fire out. MR. STONE-Okay. As long as everybody understands there could be a problem since the Town is so good getting out right away. MR. O'CONNOR-I yell if they don’t. MR. STONE-Let me open the public hearing, if there’s no further questions. I’ll open the public hearing. Anybody wishing to speak in favor? In favor? Anybody opposed? Opposed? Any correspondence? MR. UNDERWOOD-No. PUBLIC HEARING OPENED NO COMMENT 23 (Queensbury ZBA Meeting 4/16/03) PUBLIC HEARING CLOSED MR. STONE-Any further questions? Well, let’s quickly talk about it. We’ll start with Chuck. MR. ABBATE-Okay. Thank you. I looked at the application, and I want to make it abundantly clear that, in spite of the fact that this is nonconforming, we’re nonetheless speaking about over an acre, a 1.13 acre, and the applicant, based on testimony of Counsel, is only requesting a 3,300 square foot single family dwelling. The application makes sense to me, based on the fact the amount of space that is available to the applicant, and, based upon that, my only concern would be the 40 feet of relief from the 40 foot minimum road, but Counsel has addressed that area, and also I do believe that Counsel indicated that access is deeded by the right of way. MR. O'CONNOR-Yes. MR. ABBATE-So I’m open-minded on this. Initially my feeling is that I have no adverse position concerning your application. MR. STONE-Okay. Roy? MR. URRICO-Yes. I’m in favor of it. The criteria that we are asked to weigh this against are all satisfied easily. The one in question, is the relief substantial relative to the Ordinance, but I think we’ve had a number of these situations where the property’s landlocked and access to the house is deeded, and I think this would be acceptable to me. MR. STONE-Jaime? MR. HAYES-I agree with the other Board members. I think this, again, is a technical variance. I agree with Counselor’s argument that, in my mind, this is grandfathered to a certain extent, and this lot was legally created, and the fact that it didn’t have the 40 foot on a public road then or now does not trouble me in this case. There’s two right of ways, which usually we only have one, but in this case there’s two, which is even more compelling. So I don’t think there’s any effect on the neighborhood at all by granting this relief. So I’m in favor. MR. STONE-Jim? MR. UNDERWOOD-Yes. Living in the neighborhood I know the history, the hassle that they went through to create that new right of way on the back side there. I won’t get into that, but I think that, you know, what was done was the minimal amount of road that could be created there without effecting Mud Pond, and I have no problem with the request. It’s inconsequential. MR. STONE-Joyce? MRS. HUNT-I have no problem with this application. I agree with my fellow Board members. MR. STONE-I certainly agree. The couple of comments I would like to make. I think Mr. Urrico made the comment that we’ve granted this in the past, and this is probably less, I’ll use the word “heinous”, because I just felt like using the word “heinous” tonight, less heinous than other ones, because there are two rights of way, and the fact that if someone didn’t know, you would think, the end of the road, you would think you were going up the driveway. I mean, you’ve got to think about it to think, this is not a road. I mean, it certainly seems like the right thing to do. The other thing I do welcome Mr. O’Connor’s assurance that whatever is built there, whatever plans, that they will be totally in compliance with current zoning, and will not require any variance. Am I putting words in your mouth, or is that what you said? MR. O'CONNOR-That is what I said, and that’s based upon our current review of everything. Of course, if we needed a variance, we’d come back to you for that particular variance. 24 (Queensbury ZBA Meeting 4/16/03) MR. STONE-Yes. MR. O'CONNOR-We don’t know that we will need any variance from you or from any other Board. MR. STONE-Okay. Having said that, I need a motion to approve. MOTION TO APPROVE AREA VARIANCE NO. 28-2003 MARY K. O’KEEFE, Introduced by James Underwood who moved for its adoption, seconded by Charles Abbate: 169 Mannis Road. The applicant proposes to demolish an existing 906 square foot single family dwelling and construct a 3300 square foot single family dwelling on a lot without frontage on a Town road. The lot has two deeded rights of way and specifically they’re requesting 40 feet of relief from the 40 foot minimum road frontage requirement of Section 179-4-090A. They would be permitted to construct the desired home on the parcel, and as we talked about and discussed, the feasible alternatives are limited due to the fact that it has two deeded rights of way across somebody else’s property. There wouldn’t be any effects on the neighborhood as far as negatively. It’s just basically attributed to the fact that it’s a pre-existing, nonconforming lot. So I move that we approve this. Duly adopted this 16 day of April, 2003, by the following vote: th AYES: Mr. Abbate, Mr. Urrico, Mr. Underwood, Mrs. Hunt, Mr. Hayes, Mr. Stone NOES: NONE ABSENT: Mr. Bryant, Mr. Himes, Mr. McNulty MR. O'CONNOR-We thank you very much. We thank you for accommodating us with the schedule. I would ask that you in the future, in one of your workshops, take a look at this. I don’t think you should be requiring people to come in for a variance if the lot is pre-existing, and the issue that you have is access. I don’t think it’s any different than if I came in here with a three quarter acre lot in a one acre zone. It’s a dimensional requirement that is pre-existing, and maybe ask Town Counsel’s opinion on that. MR. STONE-It’s a good point. I mean, certainly we get our marching orders from Staff. MR. O'CONNOR-They don’t listen to me. MR. FRANK-Would you like me to read from the General Exceptions Section of the Code? Mr. Chairman, since you brought it up, I might as well read it. Section 179-20-010, General Exception to Minimum Lot Requirements. “Any lot of record lawful existing and complying with the Town of Queensbury Zoning Ordinance on the day prior to the adoption of the October 1, 1988, amendment to the Town Zoning Ordinance that does not conform to this chapter as it exists on and after October 1, 1988 (‘nonconforming lot of record’), will be deemed as conforming to required area and/or minimum lot width requirements of this chapter.” There’s more of the Section I’d be glad to pass along. MR. STONE-Two lawyers, three opinions. MR. FRANK-But that is why you hear these type of variances. MR. STONE-No problem. We’re easy. AREA VARIANCE NO. 31-2003 SEQRA TYPE: TYPE II RICHARD SCHERMERHORN, JR. AGENT: J. LAPPER, ESQ. & T. NACE PE OWNER: RICHARD SCHERMERHORN, JR. ZONING: PO LOCATION: LOT 6, WILLOWBROOK DRIVE APPLICANT PROPOSES 25 (Queensbury ZBA Meeting 4/16/03) CONSTRUCTION OF AN 8,800 SQ. FT. PROFESSIONAL MEDICAL OFFICE. RELIEF REQUESTED FROM THE SHORELINE SETBACK AND PARKING REQUIREMENTS. CROSS REFERENCE: FW 4-2003, SPR 19-2003 WARREN COUNTY PLANNING TAX MAP NO.: 296.-12-1-24 (NOW SPLIT) LOT SIZE: 82.22 ACRES SECTION 179-4-070; 179-4- 040(B10) JON LAPPER & TOM NACE, REPRESENTING APPLICANT, PRESENT; RICH S., PRESENT STAFF INPUT Notes from Staff, Area Variance No. 31-2003, Richard Schermerhorn, Jr., Meeting Date: April 16, 2003 “Project Location: Lot 6, Willowbrook Drive Description of Proposed Project: Applicant proposes construction of an 8,800 sq. ft. professional medical office building. Relief Required: Applicant seeks 13.7 feet of relief from the 75-foot minimum shoreline setback requirement of the PO Zone, per §179-4-070, and for 9 parking spaces in addition to the 36 allowed for an 8,800 sq. ft. professional office, per §179-4-040(B10). Criteria for considering an Area Variance according to Chapter 267 of Town Law: 1. Benefit to the applicant: Applicant would be permitted to develop the site, which includes constructing the desired building in the preferred location. 2. Feasible alternatives: Feasible alternatives seem to be limited due to the size and shape of the parcel and to the location of the small farm pond, wetland, and small brook. 3. Is this relief substantial relative to the ordinance?: 13.7 feet of relief from the 75- foot minimum shoreline setback requirement and relief for 9 parking spaces in addition to the 36 allowed may both be interpreted as minimal to moderate relative to the ordinance (18.3% and 25% respectively). 4. Effects on the neighborhood or community: Minimal effects on the neighborhood may be anticipated as a result of this action. 5. Is this difficulty self-created? The difficulty may be attributed to the size and shape of the lot and to the location of the small farm pond, wetland, and small brook. Parcel History (construction/site plan/variance, etc.): SB 9-2000: 03/20/01, subdivide 81 acre parcel. SB 9-2000 Modification: 11/26/02, reduction of lots from 16 to 10 and reduce length of proposed town road. Staff comments: Minimal impacts may be anticipated as a result of this action. Should the application be approved, the building location should have little if any impact on the small farm pond, and the additional parking will only reduce the site permeability to 79.1%, (30% is the minimum requirement). SEQR Status: Type: II” MR. UNDERWOOD-“Warren County Planning Board Project Review and Referral Form April 9, 2003 Project Name: Schermerhorn, Jr., Richard Owner: Richard Schermerhorn, Jr. ID Number: QBY-03-AV-31 County Project#: Apr03-37 Current Zoning: PO Community: Queensbury Project Description: Applicant proposes construction of an 8,800 sq. ft. professional medical office. Relief requested from the shoreline setback and parking requirements. Shoreline setback: 75’ is required; 61.3’ is proposed. Site Location: Lot 6, Willowbrook Drive Tax Map Number(s): 296.-12-1-24 Staff Notes: Area Variance: The applicant proposes the construction of a 1 story 8,800 sq. ft. office building within the Baybrook Professional Office Park. The new building is proposed to be 61.3’ from the existing pond where 75’ is required. In addition the applicant proposes 46 parking spaces where 36 is the maximum, relief is requested for having 9 more than required. The plans indicate the area around the pond is to remain including existing trees. Staff does not identify an impact on county resources. Staff recommends no county impact. County Planning Board Recommendation: No County Impact” Signed by Bennet F. Driscoll, Warren County Planning Board 4/13/03. MR. STONE-Mr. Lapper. 26 (Queensbury ZBA Meeting 4/16/03) MR. LAPPER-Good evening. For the record, Jon Lapper with Rich Schermerhorn. I’m sure you all went and took a look at the site. As you saw, this is directly behind the lot where the day care building, the first building, was constructed. This is actually the fourth building that we’ve sought approval for. The large hospital building is nearing construction, and we also have approval for the next building just north of the hospital building on Bay Road, where Rich is going to put his office as well as a medical office downstairs. The leasing on this office park has been phenomenal. It’s just a good location and I think it’s a nice design. We’ve been to the Planning Board a couple of times to just tweak the site plan and make it look a little bit better, as Rich has gotten into the development. The reasons we’re here before you here tonight are really just practical considerations, as Staff pointed out, having to do with the shape and configuration of the lot. There were some wetlands in this whole subdivision, and this lot was carved up sort of in a way to stay away from those as much as possible, but just to fit the building nicely on the site. We’re asking for what we consider a minimal variance from that seasonal farm pond. I’ll ask Rich to explain to you just the practical issues. MR. SCHERMERHORN-Rich Schermerhorn, for the record. Where it says existing pond, right now it currently has water, but another couple of months it actually dries up, and it’s approximately about a foot, maybe 18 inches in depth, and if you look on the map, it says flagged areas of wetland boundary. Because this is an isolated piece, and it’s not connected to the flagged wetlands that DEC and Army Corps did, they consider it isolated, and actually there was a subdivision that Passarelli proposed maybe, I think it was six years ago, or seven years ago. That was approved, and it actually had on the map pond to be filled. They actually, they permitted him to fill it because it was an isolated, well, they called it a farm pond that was created. So we’re simply, you know, we’re holding our 100 feet from the delineated wetlands that Army Corps and DEC had done last summer. So we’re seeking the minimal relief there if possible, and the parking, I need the nine parking spots because the physician that I have it rented to, truthfully, said he could use the extra parking spots. Now I know we could certainly argue and just say that, you know, it’s approved. It’ll allow for the nine lots which I think is, 36, but truthfully we kind of, most of us probably know what happens sometimes when they get overloaded, they either park on the edge of the road or they squeeze in and they maybe park on the lawn sometimes. So I would just ask if, you know, if you could grant the nine extra certainly would be helpful, and certainly, with the nine, actually there’s three, three and like the little turnaround area. That’s something, a site plan issue, we’d have to get the DEC approval to encroach on the buffer zone, which, but no encroachment on the wetland, and it’s pretty common that we have to get permits from DEC to work within the buffer zone, whether it’s drainage or to extend the parking. So that’s about the extent of it. MR. STONE-Let me express a couple of concerns that I had when I looked at the property. One I know the Planning Board is obviously intimately aware of everything you’ve been doing and obviously they’ve put you through your paces and you have responded and all of that. I would have appreciated, just for me, and overall survey of the site, so that I know exactly where this thing was. Because, quite frankly, driving in there, with all of your construction equipment, all of the open space, I wasn’t sure where this particular thing was supposed to be. I note there were a lot of streams in there that at least when I was there were protected with black sheeting, but quite frankly, I didn’t know where this building was supposed to be. I was kind of concerned that work was going on on this lot without a variance, if, in fact, you needed a variance, and that was a concern to me. I just would have liked to have a better idea. MR. LAPPER-What’s going on is that Rich is doing, on his own, he’s doing extension of the sewer line, bringing sewer all the way up from Bay Road to this building and that’s the construction that’s going on now. You see all the manholes, the concrete manholes sitting on the ground that haven’t been installed. MR. STONE-On Bay Road. MR. LAPPER-No, but on Bay Road and coming in his entrance drive for the whole subdivision. MR. STONE-I can’t say that I noticed that. 27 (Queensbury ZBA Meeting 4/16/03) MR. LAPPER-Okay. That’s the construction that’s going on now. If you look on the right side of the map, there is that site map. You’re right, it’s not the entire subdivision, but it shows the day care building, the hospital building and the location of the proposed building. MR. STONE-Yes. You mean the little inset? MR. LAPPER-Yes. MR. STONE-Yes. I realize that, but that doesn’t show me, at least according to my uneducated eye, it doesn’t show me streams. It just doesn’t give me an overall feel. I mean, it’s a very extension project you have, and I’m not, the Planning Board, as I say, has done a good job, I gather, of making it a good project, but this is the first time you’ve come before us on this project, and I just think that we deserve an idea of knowing what’s going on. If you’ve heard us tonight, we can sometimes get very insistent in getting information, and Mr. Lapper knows that. I would have liked it. That’s all I’m saying, because I see all this water around, and I see the work being done, and one of the things this Board has been very concerned is people building when they don’t have a variance, when they need a variance. MR. SCHERMERHORN-Just to update you. I apologize you don’t have the current maps and the delineation maps. The work that is being done, Lew, I have all the DEC stream crossing permits and stuff. MR. STONE-I just would have liked to be able to go in there and say, oh, this is where it is in relationship to this. Because we have not had the opportunity, it is not our purview to get into subdivisions. That’s the Planning Board, and as I say, I’m sure they’ve done a good job. I just would have appreciated, I could lay it out better. First of all, whoever made a survey where north goes off to the, kitty corner to the right, (lost words) and where in the heck am I. That doesn’t tell me everything I need. It gives me an idea. I MR. SCHERMERHORN-Should I have to, and hopefully I won’t have to, but if I do have to come back for variances again, I’ll take it upon myself to make sure that I do bring in extra stuff. So I do apologize. MR. STONE-Well, can you talk to me about the clearing? I mean, because it says on here, trees to stay. MR. SCHERMERHORN-Yes. MR. STONE-I don’t see many good looking trees there staying. MR. SCHERMERHORN-Exactly. A lot of it is brush and I mean, they’re not what I consider. MR. STONE-Is that your decision, or is that the Town’s decision? MR. SCHERMERHORN-Well, we have the dotted 100 foot setback line from the wetlands, and there’s no reason to clear it back there, and it’s just, truthfully, we’re just leaving it because we couldn’t work out there anyway unless we got a permit for it. So they’re going to remain as it is. MR. STONE-So you’re clearing, in your mind, you’re clearing trees that you can legally clear? MR. SCHERMERHORN-No, actually, it says existing trees to remain. MR. STONE-I understand. MR. SCHERMERHORN-Legally I can’t clear those trees. 28 (Queensbury ZBA Meeting 4/16/03) MR. STONE-Okay. That goes on the wetlands. MR. SCHERMERHORN-Right. MR. STONE-But the other trees that you’ve taken off. MR. SCHERMERHORN-I haven’t taken any trees off on this lot. MR. STONE-I saw a huge stump sitting there. I don’t know. MR. SCHERMERHORN-That was from the stream which is just below this. That was part of where we did the stream crossing. MR. FRANK-Mr. Chairman I asked the applicant to remove a large stump that was too close to the stream in my determination, and with the spring rains coming, I asked him if he would get it away from the stream. I think he moved it on to the parcel that’s before you tonight. I don’t believe it came off that parcel. MR. STONE-Okay. That’s fine. That’s why we ask questions. MR. SCHERMERHORN-No, I understand. That was, just so you understand, that was a field there, and there was no clearing on that. The only clearing that I actually did was where the Glens Falls Hospital building is. There were trees that ran through there. MR. STONE-Okay. Anybody else questions? Okay. I’ll open the public hearing. Anybody wishing to speak in favor? Anybody opposed? Any correspondence? MR. UNDERWOOD-None. PUBLIC HEARING OPENED NO COMMENT PUBLIC HEARING CLOSED MR. STONE-Any other questions of the Board? MR. UNDERWOOD-I would just make the comment, you know, your pace of construction has kind of taken off at an exponential rate, and I think that part of what you’re doing is creating an impression within the community with many people that, you know, it’s to get it done as fast as possible, without any real regard for the aesthetics of what you’re doing out there. I think that your building that you’ve already put up, the one further to the south there, could use some substantial vegetation, more than the one or two trees that you have planted around there. I think that’s something that you need to start to consider. I think that what was envisioned on Bay Road was something substantial as far as landscaping goes, and I think that you’re creating the view with many people that, you know, you’re just trying to get this done as fast as possible and deal with that later on, and I think that, you know, it would go, be a feather in your cap if you want to continue at your pace that you have that you back off a little bit and consider what you’re doing, and it’s a concern with many people in the community and I think, you know, within the Department, too, here. MR. STONE-Well, I was going to ask Bruce. Is Community Development satisfied with the conformity to Planning Board restrictions that’s been going on, in terms of landscaping and things like this? MR. FRANK-Does the Town concur with what the Planning Board has approved? 29 (Queensbury ZBA Meeting 4/16/03) MR. STONE-No. Is the Town happy with Mr. Schemerhorn’s compliance with what the Planning Board has asked? I don’t know the answer. MR. FRANK-To what degree? Any specific thing you’re inquiring about? MR. STONE-Well, Mr. Underwood just talked about landscaping on Bay Road and things like that. Is that being done at an appropriate pace, as far as the Town is concerned? MR. FRANK-Well, I’m the one that inspects the sites. I inspected the day care site. As far as I know from my two superiors, they were satisfied with the landscaping. I can state that. MR. STONE-Are you satisfied, sir? MR. FRANK-I don’t think what I have to say makes any matter. MR. STONE-You’re our Staff person. MR. FRANK-I only go by what’s on the plans. MR. SCHERMERHORN-Mr. Stone, if I may. The day care center, I built for an individual and sold it. The landscaping was done as proposed and approved. I do agree with you, this has been discussed at the last several planning, every time I’ve gone in with a site plan, something with Bay Road, one of the discussions with Planning Staff is they asked that the trees that have been, that didn’t survive on Bay Road be replaced, and some of those trees that I’ve noticed, whoever they had do their plowing this winter, they actually knocked two of them right over. I own the office park. I don’t have plans on selling any more of the lots, but I, too, am concerned with the landscaping that is there, and I have made several comments in responses to Planning Staff, because they have asked me. The Glens Falls Hospital building that I’m doing, that is one that’s mine, and the landscaping for that one is four times significant, I mean, much greater than what was approved on the day care center. So, I think if you give me the opportunity, when I get done, you’ll see that I’ve taken care of it, and I will, anything I can do, it’s a hard thing to tell an owner of a property that, look, you know, the Town’s complaining, you need to clean it up, but I can influence the individual, and possibly even by donation from myself, provide maybe some trees for the ones that. MR. STONE-Okay. That’s fine, I mean, because the new Town Code that we’re all working under now talks about replacement. You just can’t put them in and forget them. I’m not saying you have. I mean, I’m just blue skying. MR. SCHERMERHORN-No, I understand your concerns. MR. LAPPER-I want to just elaborate for a second on that. Right now you’re looking at the Hospital building, which has been muddy in this horrible winter for construction, it’s all clear. If necessary, I’m going to put John Strough on and swear him in as a witness tonight. Because what’s happened is that, since the day care building was done, and the Town Code changed, there’s now extensive landscaping that is on the plans for the Hospital building and for the next building, including street trees, I think a minimum of 50 feet apart, which the Planning Board was very specific, the Code now talks about caliper of the trees, but back when Rich was younger and starting out, some of his projects were less well landscaped. I want to just cite as an example what he did on Meadowbrook Road at Hiland Springs was something, a residential facility there that the Planning Board wanted something special, and he did spend a lot of money and the trees are still young, but just extensive landscaping and the office park also has extensive landscaping, although you certainly can’t tell by looking at the day care building, but that’s not one of his. He’s concerned about his reputation, and this is going to look very nice when it’s done. 30 (Queensbury ZBA Meeting 4/16/03) MR. STONE-I mean, I just think what you’ve heard, I can’t speak for everybody else, but two of us have expressed concern, as citizens, not just Zoning Board members, as citizens of the Town of Queensbury. MR. LAPPER-The day care building is not adequately enough landscaped, but there’s no way you can get by the Planning Board with that today, and there’s no way Rich would be doing that on his buildings. MR. STONE-Okay. MR. UNDERWOOD-No, that explains it to me. MR. SCHERMERHORN-Yes, again, I sold the lot and they hired their own engineer, and I was contracted to build it, and they got their own landscaper. So, I had the concerns when I see the trees that were plowed over and the mulch is all over the lawn. It doesn’t look very attractive for the rest of my park. So I do agree with you. MR. STONE-For those of us who live on the east side of Town, Bay Road is our Northway. So we go by it all the time, and, you know, part of me says, I would have loved to have left it the way it was, and I understand that’s not realistic, and I wouldn’t impose that, but at least we want it to be attractive, as you perceive north from the center of whatever Quaker Road is, we think of it as. MR. FRANK-Mr. Chairman, for the record, the day care site, any trees that don’t survive, they’ve got to be replaced, because you have to maintain your site plan, regardless of who the owner is, and as far as my own personal opinion about any tree removal that’s ever taken place on the applicant’s property, he knows how I felt, because I spoke with him personally about it. So I don’t think I need to go on the record to state my own personal opinion. It’s not relevant. MR. STONE-I mean, obviously, one of this Board’s concerns, particularly when it gets involved with waterfront property, and you, I don’t know how long you were here tonight, but if you heard us, waterfront property, as Mr. Lapper knows, we’re very concerned about appearance, and that applies to land based properties, too. So, anyway, any other comments anybody wants to make? Let’s just quickly talk about it. Let’s start with Roy. MR. URRICO-I’m going to go right through the test, and certainly you would benefit from this application. I think there’s no doubt about that. Feasible alternatives would be not to expand the parking lot, and that certainly is one thing to do, but you still seem to be limited to the size and the shape of this parcel, as far as the small pond is concerned, and the wetlands, and the small brook, wherever that happens to be. I have trouble finding it, too. As far as relief substantial relative to the Ordinance, I would say that 13.7 feet of relief from 75 feet is not a lot, and I’m really not that bothered by the additional parking spaces, but I had written this down before Mr. Stone and Mr. Underwood spoke, but I would like to see some further protection in terms of the landscaping. Landscaping around the parking lot per the design guidelines of the new Code and also maybe somehow protect that pond a little bit more than it is, besides the existing trees. I just think the existing trees, to me, don’t represent an aesthetic appeal, but as far as the, that’ll be up to your discretion. There are no effects on the neighborhood, as far as I can tell, since this whole area is being developed into a nice, commercial office park development. I think it looks nice, and this difficulty may be self-created, but again, I think it’s due to the size shape and the proximity to the existing pond and wetlands and the brook, but I would be in favor of it. MR. STONE-Jaime? MR. HAYES-I generally agree with Roy. Certainly, 13.7 feet of relief from the 75 foot shoreline setback is minimal, in my opinion. I certainly appreciate the fact that Mr. Schermerhorn is willing to respect that pond, when, in fact, somehow it could have been permitted to be filled in. To me, that’s the right thing to do. He’s doing the right thing. He’s asking for the relief, but 31 (Queensbury ZBA Meeting 4/16/03) he’s far enough away from it that I‘m not troubled by that. As far as the parking relief, we all have had comments as far as over paving in Queensbury. Sometimes there’s been comments because of the Wal-Mart and other circumstances, but with this Board we’re granted the power to grant relief when some kind of benefit to the community can be, to the applicant can be provided without any detriment to the community, and certainly the developer and a potential tenant, whether it be a doctor or whomever, want to provide the adequate parking for older people in particular. I think that that’s something that we should respect and, outside of a good reason not to, I don’t see why wouldn’t be in favor of that. I think, I look at the plan, and the size of the parking lot does not appear to me to be detrimental. Further, we have commented here on the landscaping aspect of the project, but I think at times, you know, anybody that’s appeared in front of the Planning Board knows that they review those things very, very extensively, and in a sense, it’s not that we’re going past our charge, but it really is a Planning Board issue and they, some of those aspects of a plan dovetail, and we’re not privy to all those facts as they are, because that’s what they do. I mean, there’s lighting, there’s stormwater management, there’s all these things and that effects where other things go. So I think we have to be a little bit careful that we don’t acknowledge that, going before the Planning Board solves a lot of those issues or certainly addresses them in detail, and as far as effects on the neighborhood or community, I don’t think that the relief requested is going to have any negative impacts on the neighborhood or community. This overall office park has been approved by the Planning Board, after a substantial review, and this is just one of the parcels that’s in there. So I’m not really troubled by that, and is the difficulty self-created? I guess it is, being that they sited the building here, but it really has to do with that small farm pond, and I agree with the Staff notes, and the small brook, and this seems to be, when considered with the location of the wetlands, in this particular case, this seems to me to be the natural positioning of the building. So, I think, it’s not entirely self-created because the pond is there, and it’s just being dealt with properly in my mind. So, I’m in favor of the application. MR. STONE-Jim? MR. UNDERWOOD-Yes. I basically would be in agreement. I think that the relief from the shoreline of the creek there and the pond is going to be minimal to grant them 13.7 feet, and as far as the parking goes, I think that probably the Planning Board is going to adequately deal with your runoff and things like that. I don’t think that’s going to be a big deal either, and I apologize if I offended you with my comments, but I was more concerned about the place next door, knowing that’s not your purview, that’s their problem. So, thanks. MR. STONE-Joyce? MRS. HUNT-I agree with my fellow Board members. I have no problem with this variance. MR. STONE-Chuck? MR. ABBATE-I support Jaime’s statement without exception, and I, too, believe that the reputation of Mr. Schermerhorn and Counsel and the project, the ongoing project would be, on balance, in the best interest of the community. MR. STONE-Well, I agree. I mean, I came on pretty strong at the beginning, and I came on strong only because lack of knowledge, and any time you’re ignorant of something, we sometimes say things, not say things, but maybe go too far, but I would like to have seen, and of course I always could have gone down and gotten all the plans out, but when I went out yesterday, it was 85 degrees and I wasn’t prepared for driving around looking at properties and it was warm, but I do think, I mean, I know the Planning Board is making this a good project, and having said that, I think I’m sure you’ll be taking care of the property, and having said that I would ask a motion to approve. Mr. Abbate, I’m going to call on you. You haven’t done one. MR. ABBATE-All right. 32 (Queensbury ZBA Meeting 4/16/03) MOTION TO APPROVE AREA VARIANCE NO. 31-2003 RICHARD SCHEMERHORN, JR. Introduced by Charles Abbate who moved for its adoption, seconded by Roy Urrico: Lot 6, Willowbrook Drive. The applicant proposes construction of an 8,800 square foot professional medical office building. He is requesting 13.7 feet of relief from the 75 foot minimum shoreline setback requirements of the PO zone per Section 179-4-070, and for nine parking spaces in addition to the 36 allowed for an 8,800 square foot professional office, per Section 179-4-040(B10). The applicant would be permitted to develop the site, which includes constructing the desired building in the preferred location. Feasible alternatives appear to be limited due to the size and shape of the parcel and to the location of the small farm pond wetland and small brook. Is this relief substantial relative to the Ordinance? 13.7 feet of relief from the 75 foot minimum shoreline setback requirement and relief for nine parking spaces in addition to the 36 allowed may be both interpreted as minimal to moderate relative to the Ordinance, 18.3% and 25% respectively. Effects on the neighborhood or community. Minimal effects on the neighborhood may be anticipated as a result of this action and I do believe, Mr. Chairman, that a professional building would be beneficial to all of the folks residing in the Town of Queensbury. Is this difficulty self-created? The difficulty may be attributed to the size and shape of the lot and to the location of the small farm, pond, wetland and small brook, and I might add, Mr. Chairman, that the testimony of Mr. Schermerhorn acknowledging his responsibilities in terms of replacing any trees and the assurance of Counsel I think makes this motion, I make the motion that it be approved. By shoreline, I’d like to emphasize the fact I’m referring to small pond. Duly adopted this 16 day of April, 2003, by the following vote: th AYES: Mr. Abbate, Mr. Urrico, Mr. Underwood, Mrs. Hunt, Mr. Hayes, Mr. Stone NOES: NONE ABSENT: Mr. Bryant, Mr. Himes, Mr. McNulty MR. STONE-There you go, gentlemen. MR. SCHERMERHORN-Thank you. MR. STONE-Board, I’m going to ask your indulgence for about five or six minutes. Mr. Salvador has requested to speak to us for five minutes. You’ve got five, Mr. Salvador. JOHN SALVADOR, JR. MR. SALVADOR-On February 21 I addressed a letter to Mr. Stone, Chairman of your Board, st and I gave that letter significant distribution, hoping to raise some interest in this issue which I think is going to have to be settled some day. It deals with the definition of the shoreline and zoning district boundaries. You all got a copy of it. I think you’re familiar with it, and what I’m asking, I’m trying to find a way to bring this issue before the only Board empowered to clarify this situation. The Zoning Ordinance clearly states that, in the event that none of the above rules are applicable, and in the event that further clarification or definition is considered necessary or appropriate, the location of a district boundary shall be determined by the Zoning Board of Appeals. That was the purpose for my letter was to have you undertake this. MR. STONE-I understand, and to whom did you write this letter? I mean, who did you carbon on this letter? MR. SALVADOR-I carboned members of the Queensbury Town Board, members of the Queensbury Town Planning Board, members of this Board, Mr. Chris Round, Miss Helen Otte and Mr. Mike Swan. 33 (Queensbury ZBA Meeting 4/16/03) MR. STONE-Okay. I’m sure you’ve been in the workforce for enough years to know that quite often the most important person to whom you address a letter is the cc list. Because it is not really, and I don’t believe it’s in our purview because we follow the dictates of both the Community Development Department, and if I’m wrong, I’ll be willing to say it, and the Town, the Town tells us that the property, the Town line and the zoning line are one in the same. That’s what we’re told. MR. SALVADOR-Fine, and let me continue. By the way, you do not follow the dictates of the Planning Staff. You follow the dictates of the Town Board. The Town Board has empowered you to enforce this Ordinance, not the Staff. MR. STONE-Okay. MR. SALVADOR-As I am preparing myself for whatever will transpire here, I took occasion to purchase, from the Town Clerk, the most recent issue of the Zoning Ordinance. With the comes the zoning district map. This Ordinance makes no sense without this map. MR. STONE-Okay. MR. SALVADOR-Okay, and this map does not show zoning district boundaries. Not only that, the Town has the nerve, on this map, I spoke in open forum at the Town Board meeting last, with this map, and with copies of this similar to what I’m doing tonight, and I read through this, and if the Town is not responsible for any of this, who is? How can you put a disclaimer on a document that is your production and you expect, this is a very part of this, you expect this to be enforced. The Town expects this to be enforced. How can you put a disclaimer on it? It just doesn’t make any sense. MR. ABBATE-Can I respond to that? MR. STONE-Sure. MR. ABBATE-Okay. You’re right. However, what I would do, it says here specific questions regarding zoning of a property shown on this map should be directed to the Town of Queensbury Zoning Administrator, and I would hold him responsible for it. MR. SALVADOR-No, it says he’s not. It says he’s not. Further, let me just show you how, it’s well known that we hold title to some underwater land in Dunham’s Bay here, and yet, if you follow the code of this, this color coded, this map, we’re not in any zoning district. The color code on our land is not one of these colors. Either I’m color blind or I’m not being zoned. It does say under 179-3-020, Number Six, zoning district shall be construed to extend into the water to the boundaries of the Town line. MR. SALVADOR-And the Town line, it’s supposed to be on the zoning map, excuse me, on the tax maps that you use as the underlying, the County tax mapping service puts out the tax maps. The regulations, and I point them out in this letter, the regulations for the preparation of tax maps, on each section map shall be shown city, town village, school and special district boundaries with designations. It’s clear that in all cases you can designate a line. Because these are not scaled. The scale on these, you know. MR. ABBATE-They’re not to scale. MR. STONE-But it seems to me that you could petition the elected body, the Town Board, to pass an Ordinance stating exactly where this, we go by. MR. SALVADOR-There is no Ordinance needed. 34 (Queensbury ZBA Meeting 4/16/03) MR. STONE-Well, it’s in here. I don’t think it’s needed. I agree with you that zoning districts shall be construed to extend into the water to the boundaries of the Town line. The Town line is, I believe, defined as the end of the property in question, I believe, or maybe further. MR. SALVADOR-The property in, how far does the property in question go? MR. STONE-You know better than I do. MR. UNDERWOOD-On the second page it notes on there, it says that, a lake or body of water shall be construed to be such district boundaries unless otherwise noted. So, I mean, it’s the edge of the lake, is essentially what they’re saying. MR. SALVADOR-No, no. The implication is. MR. STONE-That’s where we’ve got a problem. MR. UNDERWOOD-Yes. MR. SALVADOR-You recall I brought an issue to this Board, okay, and you made a very narrow determination that in my particular case, the zoning district boundary extended to the Town boundary which was the north boundary of the great lot line shown on the map. You made that determination, and the Town, in drafting this, nodded to that determination. They nodded to it by saying zoning districts shall be construed to extend into the water, to the boundaries of the Town line. They have, but it’s not only my property. This is a general statement. It applies to all. MR. STONE-Yes. MR. SALVADOR-Okay. MR. UNDERWOOD-What is the occurrence on the Great Lakes with the International Joint Commission, I mean, like between Canada and the U.S.? It extends to the center line of the lake. Doesn’t it? I mean, it’s an imaginary line? MR. SALVADOR-Most generally navigable rivers, this is a navigable lake, okay, and it has a different standard, but generally, a navigable body of water, you pick the center line, it’s the deepest part, nobody’s, okay, and that’s very convenient, but in the case of Lake George, that’s not the way it’s done. That’s not the way that the municipal boundaries have been legislatedly determined. MR. STONE-We made a determination, I’m given this piece of paper, on March 15, 2000, with the following present, Mr. Bryant, who’s not here, Mr. McNally who’s not here. I’m the only one who was here. Mr. Abbate abstained from this particular one. Mr. Hayes and Mr. Himes were absent, that said, Motion that the Queensbury Zoning Board of Appeals, in reference to Appeal, concludes that the northern limit of the WR-1A zone in the Dunham’s Bay area is the Town boundary, and it’s fairly specific. This was given to the Town Board. MR. SALVADOR-Northern limit. There’s only one northern limit in Dunham’s Bay. The rest is east and west. Okay. MR. STONE-Yes. MR. SALVADOR-And it’s, I think that pertains to our property. I was the appellant. MR. STONE-That’s correct. You were the appellant. MR. SALVADOR-I was the appellant, okay, and that’s all it is right there. 35 (Queensbury ZBA Meeting 4/16/03) MR. STONE-Where else is this a question? I mean, I understand what you’re saying. The point is, we’re saying in the Code that zoning districts shall be construed to extend into the water to the boundaries of the Town line. MR. SALVADOR-Right. MR. STONE-I’m sure in the State of New York they know where the boundary of the Town of Queensbury is. I assume. I have to assume that. Otherwise, it’s chaos. MR. SALVADOR-All right. If the State of New York knows, why doesn’t the County know? Because the Town boundary is not on their tax map. That’s why it’s not on your zoning map. Because you’re using, this is the tax mapping services underlying program. This. MR. STONE-What is along the left side there? MR. SALVADOR-You have superimposed these Codes, but the line, the lines on here come from the tax mapping department. The parcel definitions. Every single parcel of land in Town is noted here, and you don’t have zoning district boundaries. MR. STONE-So, You’re saying you’re particular underwater portion is not color coded. MR. SALVADOR-That’s aside. I discovered that after I paid 10 bucks for this piece of paper, okay. That’s when I discovered that. Don’t you have a copy of this? MR. STONE-I have a copy of it. I can’t speak for the rest of the Board. MR. SALVADOR-By the way, this is different from the one that was on the wall downstairs. When I started sniffing around to purchase this, all of a sudden we got a new, didn’t we? We got a new print out. MR. FRANK-I think some changes were made to, corrections. MR. STONE-Well, and zoning is a living thing. MR. FRANK-I didn’t do it. MR. STONE-That’s good. Zoning is a living thing. MR. SALVADOR-You make changes with authorization. You don’t willy nilly change things. MR. STONE-Well, maybe it was reflecting actions by the Town Board who is empowered to make zoning changes. MR. UNDERWOOD-I have a question for you. MR. SALVADOR-Yes, but there’s a record of those changes. You don’t just scribble it on a piece of paper, okay, and that’s what they’ve done. MR. STONE-Jim? I’m sorry. MR. UNDERWOOD-I had a question for you. Your original property line that’s deeded under the water there, is that from the original survey of the property from 17 whenever? MR. SALVADOR-Yes. MR. UNDERWOOD-So was that prior to the raising of the level of the lake? MR. SALVADOR-Yes. 36 (Queensbury ZBA Meeting 4/16/03) MR. UNDERWOOD-And that’s what effected that? MR. SALVADOR-Yes, that’s correct. MR. UNDERWOOD-So, I’m trying to understand your point, because I know your concern about having paid taxes, you know, ad infinitum on there, but as far as development rights for that underwater property, that’s what you’re really concerned with, or? MR. SALVADOR-That issue is aside. I’m not talking about that tonight. I’m talking about the whole Town of Queensbury. MR. UNDERWOOD-But I would assume that the entire shoreline, then would be affected around the whole lake, you know, every community would have been affected by the raising of the waters when they built the dam. MR. SALVADOR-Exactly. You’re exactly right. I agree 100%. I can give you an example. In the Town of Lake George, we have two major subdivisions. I won’t call them subdivisions. I’ll call them developments, conversion of resorts to. MR. STONE-Timeshares. MR. SALVADOR-Working on timeshare, this sort of thing. One is using the mean low water mark for the measurement of their setbacks, okay, and the other one is using the mean high, and they’re practically next door to each other, and they’re both going to, one was involved in litigation. Mr. Stone is aware of that, and the other one is about to be, and you get in these meetings and you talk about, and you don’t know what you’re talking about. MR. STONE-All right, but what would you like us to do? That’s what I’m trying to figure out. MR. SALVADOR-I would like you to convene a hearing, whereby you people can, you have subpoena powers. Get the people here you need to testify, and make a determination as to where the Town boundary is, or the zoning district boundary. We don’t care, because they’re one in the same. We’ve established that. MR. UNDERWOOD-I would think you could establish the fact that the original survey boundary was, is now located under water and it’s been that way for 200 plus years now. MR. SALVADOR-No. There’s two different issues here. One, the one you talked about pertains to our property, but we’re the only one’s. Everyone else’s property. MR. STONE-You’ve determined that? MR. SALVADOR-Yes. MR. STONE-You’re the only one? MR. HAYES-That he knows of. MR. SALVADOR-Well, there’s one other, but they’re in the same area. MR. STONE-That one, yes, of course. MR. SALVADOR-Okay. The issue I bring up is the fact that this problem was recognized in the 1950’s, the issue of the water level being raised by the construction of the dams. Because the term “shoreline” as we used it, with a capital “S”, is a legal term, it’s a legal surveying term. Jonathan Lapper said this in Lake George meeting on Cresthaven. That was his point, shoreline is a legal term. I was in the back of the room clapping. Now, we tend to interchange 37 (Queensbury ZBA Meeting 4/16/03) “shoreline” with “lakefront”. They’re not the same. Shoreline is a legal term. It is a property boundary. It’s a line. That’s no width. We tend to talk about the shore area as a zone, mean high, mean low. Now, you had an application before you tonight that didn’t survive because of the three acre versus the one acre, but it’s a good case in point. You look in here, you must, on the map, you must define the mean low, you must locate it, and you must locate the mean high, because you’re zoning from both of them. You measure, they can’t get a permit to build a dock any more than 40 feet from the mean low. They’ve got to know where it is. Who’s issuing permits on that, for that 40 feet? How does he know whether or not he needs another variance? MR. STONE-Do you agree with the definition in the Code, for shoreline? MR. SALVADOR-No, I do not agree with that, the highlighted one, absolutely not. That’s an error. That does not agree with surveying principals. MR. STONE-Well, then I suggest that you go to the Town Board and you say, your zoning code is flawed. MR. SALVADOR-In an election year like this, go to the Town Board? Give me a break. MR. ABBATE-Of course, you can always subpoena the Town Board, Mr. Chairman. MR. STONE-Absolutely. MR. ABBATE-You know what frightens me about this whole thing? John, if I may call you John, he may have a point. MR. STONE-I’m not arguing that he doesn’t have a point. MR. SALVADOR-And what I’m saying is the Town Board, the Town Board has cascaded on to you, in the event none of are applicable, or in the event that further clarification or identification is considered necessary or appropriate, the location of a district boundary shall be determined by the Zoning Board of Appeals. MR. STONE-Okay. May I ask you, if you would give me, I will take responsibility, a definition of shoreline, because that’s certainly what we’re kind of talking about, a definition of shoreline, that you think meets the challenge of State law or whatever law it happens to be. MR. SALVADOR-I agree with State law. I’m not challenging State law. MR. STONE-No, no, no, but you’re challenging this. Give me a definition of. MR. SALVADOR-This is not State law. MR. STONE-I realize that, give me a definition that we could put in here, we could suggest to the Town Board. MR. HAYES-Officially adopt. MR. STONE-That they could adopt as the definition. MR. ABBATE-Good idea. MR. SALVADOR-Yes. MR. STONE-Whatever it is. MR. UNDERWOOD-In essence it would be whatever the level was raised to by the building (lost words) in 17. 38 (Queensbury ZBA Meeting 4/16/03) MR. STONE-Whatever it is, I don’t care. MR. UNDERWOOD-I mean, it’s been on the record ever since then. MR. STONE-I mean, practicality, as far as I’m concerned, the zoning code of Queensbury extends to wherever the County line is, and the Hudson River, for example. I mean, that’s a water body, and I don’t know where the County line is, but I know it’s out there somewhere, and we’re in the County. Therefore we must go to the County line. Therefore zoning must go to the County line to the Town line. Give us a definition. MR. SALVADOR-The problem here in Queensbury is that it’s not a County that you border. It is another Town. MR. STONE-Well, I understand. Give me a definition that your happy with, and I certainly will bring it up, as the Chairman of the Zoning Board, I will bring it up, if that solves the problem. MR. SALVADOR-Well, not that I’m happy. You have to be happy. MR. STONE-We’re happy. We’re happy. We made a determination three years ago. We’re happy that if we look at a horse and you say it’s a horse and we say it’s a horse, it’s got to be a horse. We’re happy. MR. SALVADOR-Yes. What you’re asking me to do, I cannot do because I don’t agree with your summation of it. I’m saying the determination you made with regard to our property at the southern end of Dunham’s Bay is different from the others. MR. STONE-Okay, but you’ve made three points, or maybe three. You’re saying, you want to know where Town boundary is in relationship to zoning and property lines and zoning boundaries, and all of that thing mixed up together. Give me a proposal, and I will. MR. UNDERWOOD-I have one more question for you. If, indeed, we determine where this boundary is, is your intent to make another determination about structures that are attached on that boundary that extend past that boundary line? Is that where we’re going with this? I mean, just out of curiosity. MR. SALVADOR-Yes. Because it has been, there’s another State law, and there are court cases to support it, that local government has no zoning powers beyond the mean low water mark of a navigable body of water. Okay. MR. STONE-Okay. MR. SALVADOR-Okay. That’s in the law. We know it. We just don’t pay any attention to it. MR. UNDERWOOD-But would the State have not implied over the years that we have a responsibility to maintain some kind of standards as to what gets done on the waterfronts? MR. SALVADOR-Yes, and the State is the Lake George Park Commission in this case. MR. UNDERWOOD-Right. MR. SALVADOR-They have, through their legislative grant of powers, and their regulatory program, you’ll notice how they weave through, from the mean low water mark on, that’s where they charge fees for the docks. That’s where they regulate docks. Okay. What you do they really don’t care too much about. They issue their own permits, and they are a State agency, and they have that right to do that. You don’t have a right to go beyond that mean low. 39 (Queensbury ZBA Meeting 4/16/03) MR. STONE-What you’re saying to us, we’re happy with what we have. There is no reason, at least I thought we were, we have no reason to raise the question. You have raised the questions to me, and I appreciate that, but you’ve raised them to people who should, if they want to, do something about it. You’ve put them on notice. MR. SALVADOR-Who have I put on notice? MR. STONE-The Town Board, the Community Development Department. MR. SALVADOR-Five minutes is all I get, Mr. Stone. MR. STONE-But that’s what carbons are for, if you’ll pardon the old carbon expression. That’s what they’re for. Did you tell the Planning Board? MR. SALVADOR-Sure. Let me final. It must be clear that the reason that our land is not the same as everyone else’s land is because there was an oversight, when the law was passed in 1963, establishing the mean low at 317.74, okay, there was an oversight that there was some land on the lake that had been conveyed out of State trust. MR. STONE-Right. MR. SALVADOR-Okay. There was an oversight. Ours happens to be it, but, in 1963, the State legislature established the mean low water mark of Lake George, because of all this confusion, and it was clear, the State is on one side, and local government is on the other. MR. STONE-All right, but is it your contention, as Jim asked you, is it your contention that we shouldn’t be able to say to you that you can’t put something out in the lake because the Town ends at the quote “shoreline”? MR. SALVADOR-At the mean low. MR. STONE-At the mean low. MR. SALVADOR-Between the mean high and the mean low, you’ve got jurisdiction, because that’s private property. That’s, the people own the fee in that land. MR. STONE-Okay. MR. SALVADOR-This is the point at Sun Castle. The Sun Castle. They own the fee to 317.74, and they needed that because they had a setback problem. So they wanted to get out as far into the lake to begin measuring their setback as possible, and so they used 317.7. MR. STONE-Did you tell them how to do that? MR. SALVADOR-Pardon me? MR. STONE-Did you tell them how to do that? MR. SALVADOR-No, they had a surveyor tell them how to do that. These guys own all this. MR. HAYES-We’ve already had one case where they did that, with that dock. MR. ABBATE-Yes, that’s right. That’s correct. MR. STONE-Right. MR. ABBATE-We’ve already addressed that issue. 40 (Queensbury ZBA Meeting 4/16/03) MR. HAYES-Yes, we had a case where that already happened once with a dock. MR. SALVADOR-I brought that, and I was ready to bring it up tonight. I haven’t seen the drawings. I don’t know, tonight, the application. MR. UNDERWOOD-So has someone been remiss, over the years, then, with the creation of all the boathouses and docks, greatly remiss? MR. SALVADOR-Perish the thought. MR. STONE-Well, John would argue that none of the boathouses that extend onto State land are legal. Is that what you were saying? MR. SALVADOR-Not without a licensed easement permit or otherwise. MR. UNDERWOOD-I would agree. MR. SALVADOR-Now, I didn’t bring it with me, but I had need to go beyond my property line, beyond where I owned the fee. I had need to do that. I got an easement. I got an easement from the State. I have permission to do it, and I got it with, local government played a role in that permit. MR. STONE-I mean, to me, sitting here, you know, you can talk all night. It’s very hard for us to really understand the whole thing. I mean, I’ll beg off because I don’t, to me, it sounds as if, as a Board member, if someone comes to me, with the exception of you, and says, where is the zone on the lake, I don’t have any problem in following our Code, in terms of where the dock goes, and if it comes up as it has, then we make a variance determination based upon mean low water, if that’s what we do, even though we recognize that the dock is quote, maybe illegal, because it’s on State land. Now, what about Glen Lake? Who owns the bottom of Glen Lake? MR. SALVADOR-Somebody. It’s not the State. MR. UNDERWOOD-All the landowners property extends, as far as I know, out to the center line of the lake. MR. SALVADOR-No. MR. UNDERWOOD-I don’t think so. MR. SALVADOR-At one time, at one time the State of New York conveyed its interest, the people’s interest, in the bed of Glen Lake as it was part of a huge tract of land, to somebody, and that somebody’s heirs own the bed of Glen Lake. MR. ABBATE-Who owns the water? MR. UNDERWOOD-The State. The State owns the water. MR. SALVADOR-Well, the State lays claim to those. MR. STONE-It’s unclear. MR. SALVADOR-Well, I’ll tell you who owns the water, who owns the bed. Because water is a mineral right. MR. ABBATE-The State owns the water. MR. SALVADOR-No, I have, on my land, I have the mineral rights. The only mineral rights I don’t have expressly stated in my land patents are the gold and silver. 41 (Queensbury ZBA Meeting 4/16/03) MR. ABBATE-You have the mineral rights? MR. SALVADOR-Yes. MR. ABBATE-You are, indeed, a financial giant. MR. STONE-I think we’re at an impasse, but give me some suggestions informally, John, and let me see if I can understand them better. Because, quite frankly, if something comes to us as a Board, I think we feel capable of. MR. ABBATE-We have guidelines that we’re going by. MR. STONE-Yes. We have guidelines. MR. ABBATE-And until those guidelines are modified, we have to stay within those guidelines, but I think submitting a formal letter to the Chairman. MR. SALVADOR-I’ve done that. MR. STONE-He’s done that. MR. SALVADOR-I’ve done that. MR. STONE-I’m just saying if he has some specific language of shoreline, I would love to see it. MR. SALVADOR-I’ve got it all, and I’ve presented it to you more than once. Well, as you go on and on granting these permits, this issue is going to come up all the time. The Zoning Ordinance measures height of boathouses from mean low, the Park Commission has a different height from mean low. You have a 40 foot limitation on a dock from mean low. You have a square footage measured from mean high. How the hell do you work? MR. ABBATE-This is an inside joke, but a recent court decision made it quite clear that people acting in good faith generally get what they want, and I think we act in good faith. MR. STONE-Yes. I think that’s what we do. MR. SALVADOR-Is that true? MR. STONE-We haven’t lost too many cases. We lost one. MR. ABBATE-I’m not so sure we lost it yet. MR. STONE-Thank you. Let’s adjourn. The meeting is adjourned. On motion meeting was adjourned RESPECTFULLY SUBMITTED, Lewis Stone, Chairman 42