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2003-02-19 (Queensbury ZBA Meeting 2/19/03) QUEENSBURY ZONING BOARD OF APPEALS FIRST REGULAR MEETING FEBRUARY 19, 2003 7:00 P.M. MEMBERS PRESENT PAUL HAYES, ACTING CHAIRMAN CHARLES MC NULTY, SECRETARY NORMAN HIMES CHARLES ABBATE ROY URRICO ALLAN BRYANT JOYCE HUNT, ALTERNATE MEMBERS ABSENT LEWIS STONE CODE COMPLIANCE OFFICER-BRUCE FRANK TOWN COUNSEL-MILLER, MANNIX, SCHACHNER & HAFNER-CATHI RADNER AREA VARIANCE NO. 4-2003 CHARLES MACKEY PROPERTY OWNER: SAME AS ABOVE AGENT: DENNIS MAC ELROY ZONE: WR-3A LOCATION: 15 WILD TURKEY LANE APPLICANT PROPOSES A 190.7 SQ. FT. ADDITION TO EXISTING “L” SHAPED DOCK TO CREATE AN “F” SHAPED DOCK; TOTAL 862.1 SQ. FT. RELIEF REQUESTED FROM THE 700 SQ. FT. MAXIMUM DOCK SURFACE AREA. ADIRONDACK PARK AGENCY WARREN COUNTY PLANNING: 1/8/03 TAX MAP NO. 239.15-1-6 LOT SIZE: 1.31 ACRES SECTION: 179-5-050 A.5 DENNIS MAC ELROY, REPRESENTING APPLICANT, PRESENT, CHRIS MACKEY, PRESENT MR. MC NULTY-Tabling motion for Area Variance No. 4-2003, on Wednesday, January 22, 2003, “MOTION TO TABLE AREA VARIANCE NO. 4-2003 CHARLES MACKEY, Introduced by Lewis Stone who moved for its adoption, seconded by Charles Abbate: 15 Wild Turkey Lane. For up to 62 days, so that the applicant can appear before the Board and answer questions relating to the number of boats that will be docked, future plans for the property, namely a second dock, and will the dock be covered, and any other reasonable expectations that we could come up with. Duly adopted this 22 day of January, 2003, by the following vote: nd AYES: Mr. Abbate, Mr. Bryant, Mr. Hayes, Mr. Himes, Mr. McNulty, Mr. Urrico, Mr. Stone NOES: NONE” STAFF INPUT Notes from Staff, Area Variance No. 4-2003, Charles Mackey, Meeting Date: February 19, 2003 “Project Location: 15 Wild Turkey Lane Description of Proposed Project: Applicant proposes a 190.7 sq. ft. addition to an existing “L” shaped dock to create an “F” shaped dock; total of 862.1 sq. ft. Relief Required: Applicant requests 162.1 sq. ft. of relief from the maximum allowable 700 sq. ft. for docks of the Docks and Moorings regulations per § 179-5-050(A5). 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: 162.1 sq. ft. in addition to the 700-sq. ft. maximum 1 (Queensbury ZBA Meeting 2/19/03) allowed may be interpreted as minimal to moderate (23.2%). 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? Some of the difficulty may be attributed to the shallow water depth along the shore of this section of the lake. Parcel History (construction/site plan/variance, etc.): AV 4-2003: tabled 01/22/03, to allow the owner to appear before the board to address their concerns. BP 2000-256: 05/12/00, 3094 sq. ft. residential alteration and 684 sq. ft. addition. BP 2000-257: 05/08/00, 815 sq. ft. detached garage. BP 2000- 258: 05/02/00, septic alteration. SP 46-99 Modification: 02/08/00, eliminate the attached garage/storage structure and the connecting entry foyer. The new plan adds a detached garage located as an extension of the parking pad previously approved and a covered porch. BP 99- 611: 10/04/99, resurfacing existing dock. SP 46-99: 09/23/99, 3094 sq. ft. residential alteration and 684 sq. ft. addition plus an attached garage. AV 78-1999: 08/25/99, shoreline setback relief and relief from maximum height requirements for residential addition and alteration. Staff comments: Minimal impacts may be anticipated as a result of this action. The shallow water depth along the shore of this section of the lake necessitates a long section of dock before adequate depths are reached for mooring. Additionally, the size of the proposed dock would not be out of character with other docks in the area. SEQR Status: Type II” MR. MC NULTY-And we read the County in last time. MR. HAYES-Good evening. Would you identify yourselves for the record, please. MR. MAC ELROY-Yes. I’m Dennis MacElroy from Environmental Design, agent for the applicant. Chris Mackey is sitting to my right, who is able, obviously, to be here this evening to address any of the concerns. What I’d like to start to do is summarize what the application is and basically what had evolved last time, and then respond to any questions you have regarding that addition and Chris will be able to respond as well. The application is for the addition of a pier to an existing L-shaped dock. The square footage of the existing structure from the mean high water mark, as Queensbury measures, is approximately 671 square feet. The addition of that pier would add approximately 191 square feet. So the total being, now, 863, plus or minus square feet, which exceeds the 700. As we explained the reason or the desire to have this additional pier, which would allow greater stability in the docking of the vessel, Chris’ boat, at that “L” shaped, existing “L” shaped, on the inside, the additional pier would allow a four point tie off for the boat and would provide additional stability at that location. It is a northern exposed dock, and at times with the north wind it gets pretty severe. The “L” shaped is a preferable design, “L” or an “F”, in that location because it provides at least some protection, although the easterly side of that dock really becomes unusable on a permanent basis, just because of that potential of the north winds that would have an effect on, again, the stability and the security of tying off to that side of the dock. Having that additional pier provides not only the additional the ability to put that boat within the slip, but putting the second boat on the inside of that new pier, providing both a more protected area. Again, one of the differences between Queensbury regulations and the Park Commission regulations is the point of measurement, to calculate the area. By going from the mean low water mark, which is indicated on the plan, we’re out an additional 21 feet from that mean high water mark, which is necessary because of the localized condition or the shallow area. We need to get out a little ways just to be able to have a usable depth for docking of boats in that area. Again, just to state what the characteristics of the lot and the qualifications of the property are for docks. According to the Queensbury regulations, there’s 204 feet of frontage on the shoreline, which, by regulation, that property can support two “L”, “T”, or “F” shaped docks, as well as two moorings. So what the applicant would like to see is the ability to place that additional pier creating an “F” shaped configuration, which again would allow for greater protection for his boats. MR. HAYES-Thank you. Are there any questions for the applicant at this time? MR. ABBATE-Thank you. Good evening Mr. MacElroy and Mr. Mackey. I reviewed the 1/22/03 ZBA meeting referring to your application, and I have about five points and then I have another issue here. So let me go over these please, and if anything that I’m saying is incorrect, 2 (Queensbury ZBA Meeting 2/19/03) please stop me and correct it. At our last meeting, Mr. MacElroy acknowledged that the 21 feet does not create a problem for the applicant. Two, Mr. MacElroy also states that the applicant has no plans for addition of boats beyond the two the applicant currently has, and, Three, Mr. MacElroy also had a recognition of the fact that an approval would be expansion of a nonconforming dock, and, Four, that the applicant would not make dock spaces available to anyone other than the current two boats, and, Five, that the applicant has not sustained any damage to the applicant’s boats with the current configuration. MR. MAC ELROY-I didn’t indicate that there wasn’t. I didn’t know of any. MR. ABBATE-Okay. I’ll rephrase that, did not know of any damage. MR. MACKEY-There’s been considerable damage. MR. ABBATE-There has been considerable? All right. That’s fine. That’s why we’re here to answer these questions. Now, that helps me out considerably. MR. MACKEY-On two different instances. One, there was $9,000 worth of damage, and one there was $4,000 worth of damage. MR. ABBATE-That’s substantial, and that has a bearing on at least the way that I’m looking at this thing. That’s considerable, and that is not only an inconvenience, but it’s a financial hardship as well. Now, I’d like to address one other issue because there was a statement that was made by the public, and that statement directly impacted your application. It was directed at your application. So let me just make this statement here, and then if there’s anything you disagree with, please let me know. During the public hearing, at the 1/22/03 ZBA meeting, a statement was made as follows, quote “My opposition is not so much to the project itself but rather to the way Staff has framed the project. I think it is incumbent upon Staff to frame the project properly”. This is my response. Since this statement reflected directly on your request, I became uneasy about any perception the public may have that Staff notes predispositions a case prior to the actual hearing, and corrective action must be taken by Staff to dispel the perception that Staff notes prompt the direction in which this Board proceeds. It does not. Now, having said that, Mr. Mackey, I am willing to listen to what you, as well as others, have to say before I come to any kind of a conclusion, and I do appreciate the fact that you brought to my attention that there was substantial damage. Thank you. MR. HAYES-Is there any response? MR. ABBATE-None? Was that good? MR. MAC ELROY-Well, none other than that correction of the fact that there has been damage done. I was, you also indicated that I’ve said that the owner wouldn’t have any more than two boats. I mean, you’ve reviewed those minutes. My response may have been that he has two boats, and I didn’t know of any desire to have more boats. MR. ABBATE-That’s fine. MR. MAC ELROY-Okay. MR. ABBATE-Well then I can ask the applicant, do you plan on having more than two boats? MR. MACKEY-Not at this time. Absolutely not. MR. ABBATE-Thank you very much. MR. MACKEY-The only other use there would ever be would be a transient visitor in that outside spot, but not for full time storage. It’s so rough there. 3 (Queensbury ZBA Meeting 2/19/03) MR. ABBATE-Guests, you’re referring to? No rental or anything? Okay. Thank you, Mr. Chairman. MR. HAYES-Are there any other questions for the applicant at this time? MR. HIMES-Yes, Jaime. Could you describe the circumstances on the damage to the boats, just give us an idea of what happened to your? MR. MACKEY-Yes. It was, both instances were at times of wind, wind and waves on the lake, and it was all cosmetic and rub rail related. There were two, one instance was with a Boston Whaler, a small boat. The waves were so bad the boat was being hurled higher than the tops of the dock posts. It was on the easterly side of the dock, so bad that you couldn’t even get the lines off to move it, and finally the lines broke and the boat blew off and up on the rocks. That was instance one. Instance two was with a much more expensive boat on the inside of the “L”. Again, wind related, and I travel extensively during the week, and again, multiple days of heavy wind, it broke a couple of lines and, again, cosmetic and rub rail damage. MR. HIMES-Okay. So it appears, then, the aspect of the construction you’re speaking about might have prevented one or both of those? MR. MACKEY-Well, I think it definitely would have prevented damage to the more expensive boat on the inside of the “L”, because the boat would have been tied on four sides. Had the Boston Whaler been on the inside of the most inner dock, it certainly, you know, wouldn’t have, you know, blown away and gone up on the rocks, but that boat would not have still been tied on four sides. So it is extremely shallow on the inside side of where the proposed pier is. So it probably would have minimized the damage to the smaller boat. MR. HIMES-Thank you. MR. HAYES-Any other questions? I have a question. I spoke at the last meeting. I thought that the relief requested paled by comparison to another dock, and we haven’t talked about that tonight yet. I would prefer to grant relief, personally, you know, speaking for myself, of course. What is your commitments or intentions as far the second dock? MR. MACKEY-To be honest with you, at the moment, I’m a single guy. I’m a single parent. So I really don’t, you know, have any need for anymore docking than I currently have at the moment. I can’t even honestly see in the foreseeable future the need, you know, for extra dockage, you know, nearly as significant as what would exist by adding this pier. MR. HAYES-Well, my trouble, I guess, I certainly can appreciate your intention, but my trouble would be is that if we granted this relief, theoretically tomorrow, you could have an application in for another dock, and we would have essentially allowed, enabled both to happen, and that, I’m not sure that would be something that I would be in favor of, and that’s my concern at this time. So I would need more, personally, I would like to hear more, you know, commitment to not having another dock, if you, in fact, want this dock the way you want it. MR. MACKEY-No more docks, period? Is that what? MR. HAYES-I think, if we’re going to grant relief on this dock, and the possibility exists that you could, tomorrow, go out and create another dock which could solve these problems as well, then the rationale behind this dock, and expansion of this dock solving your problems, to me, would be gone. MR. BRYANT-Can I address that with a question to Staff? If we granted the relief, the applicant would still be entitled to a second dock. Is that correct? MR. FRANK-By Code he has enough frontage. 4 (Queensbury ZBA Meeting 2/19/03) MR. BRYANT-So I think, technically, we could only really restrict the size of the second dock as it relates to relief. So for example, if you’re going to grant them 100 feet of relief, he could only have a 600 foot dock instead of. MR. HAYES-I’m not saying that’s not a good suggestion, but we’re certainly empowered to have the reasonable condition be that he forego the right to another dock. I’m not saying that’s what we should do. That certainly is a good idea, the possibility, the total amount of deck, or dock space is cumulatively doesn’t exceed the Code. I don’t have any problem with that. I guess my concern, Allan, is that if we grant this relief immediately, that he could come on for another full sized dock tomorrow. MR. BRYANT-And I agree with you, but I also want to point out that I don’t think that we can restrict, if he’s entitled to a second dock, I don’t think that we can restrict him from having that dock. That’s his right under Code, and I don’t think that that’s a reasonable request, okay. That’s the only point that I’m making. MR. HAYES-I understand. MR. HIMES-Could I add to that, what you guys are speaking of, just ask a question of Staff. I don’t think the answer is in the Code or the book I have, the fact that the existing dock is nonconforming, would that have any bearing at all on the application for an additional dock? MR. FRANK-To clear this up, there is no problem with this dock. I think you were speaking, before the meeting, about the application for Kelly that was pulled because of a technicality. That dock is nonconforming. This, there’s no nonconforming issues with this dock. MR. HIMES-Well, I thought this was. MR. HAYES-Chuck brought that up in his initial comments, but it was not, it’s going to become nonconforming by the relief, essentially, that he’s asking for, but he’s asking for relief that’s got to be below the minimum. MR. FRANK-That’s correct, but the other application that was pulled was nonconforming. MR. HAYES-So he’s below the minimum, or the maximum square footage now. MR. FRANK-That’s correct. MR. HAYES-Okay. MR. MACKEY-You know, just one thing that I’d ask you all to keep in mind, as we go forward and talk about this, is the fact that this is an extremely shallow area of the lake. The first at least 15 feet of any dock that you put in are virtually unusable. At the water line, the water is probably an inch or two, and fifteen feet out, I’m only up to my knees in water. So, you know, to not at least take that into consideration as it relates to usable dockage, you know, I think would, you know, not be everyone understanding all the facts, you know, as it relates to this area of the lake. MR. BRYANT-I just want to add something to that, excuse me, relative to something I said at the last meetings, I think it’s the first 21 feet or something that we’re talking about in the depth of the water, and if you take that 21 feet of dock away, assuming the lake swelled and all of a sudden you had a sufficient depth at that point for whatever, if you take that 21 feet away, this new dock still exceeds the maximum size. MR. MAC ELROY-Fractionally, yes. It goes to 720, as opposed to the 700. That’s an important point, though, I think that Chris is trying to clarify is that the mean low water mark being at a location, this is a localized condition. I don’t know that it exists three docks down or even the next dock, but in this particular instance, there is a shallow area where the dock was placed. It 5 (Queensbury ZBA Meeting 2/19/03) requires you to get out to that point. I think that’s perhaps one of the reasons why the Park Commission uses that as a measuring point. I think, you know, in all reality, using the inside of this new pier would be somewhat questionable, you know, until it was in and, you know, you could really look at it. The boat that’s going in there is a 15 foot Boston Whaler, and, you know, it’s got an eight inch draft. Anything bigger than that isn’t going to go in there. You couldn’t put a stern drive boat or anything like that in there. MR. URRICO-When you’re talking about inside, are you talking about inside the “F” or between the new dock will be and the current shoreline? MR. MACKEY-That’s what I’m talking about, yes. It’s amazing how the water line drops off. About 10 feet in from the inside of the outer pier it drops off dramatically, but to that point, it’s extremely shallow. You go from almost nothing to over your head. MR. URRICO-So you would be using the inside of the “F”, and then what else for the second boat? MR. HAYES-The main part of the. MR. MACKEY-Well, I’d be using the slip that was created for the main boat, and I’m going to, if you grant the approval for this, use the inside of the newly created pier to put this 15 foot Boston Whaler, but I think that at certain times of the year, it would be sitting on the bottom, which really isn’t a big deal with a boat like that, because, you know, it’s an outboard and the engine’s tilted up, but you could never pull a stern drive boat in there, even with the engine fully tilted. MR. BRYANT-Looking at that photograph, it’s quite obvious that it’s almost impossible to even get a boat in that “U” area because even though it is deep, right there where the dock is, to get into that “U” area, it’s still very, very shallow. MR. MACKEY-Absolutely. Absolutely. MR. BRYANT-It’s on a restricted use anyway. MR. ABBATE-Did the rest of the Board members see that picture? I think you really should take a look at it. Because I think it plays an important role. MR. HAYES-Are there any other questions for the applicant at this time? If not, I’ll open the public hearing. Is there anyone here to speak in favor of the application? Anyone opposed? PUBLIC HEARING OPENED JOHN SALVADOR MR. SALVADOR-Good evening. My name is John Salvador. The quotation that Mr. Abbate read earlier was of myself. I made that quote, and I think I may have said I may think that that was mischaracterized. After hearing Mr. Mackey this evening, I’m convinced it’s mischaracterized. Mr. Mackey said that he would maybe have, on an occasional basis, a transient boat docked there. The Town Code, on Page 24, if you have yours with you. It refers to a Class B Marina. Class B Marina is a dock, wharf or mooring made available for use by any person as a berthing place for one motorized vessel or one non-motorized vessel, not registered to the owner of the property regardless of remuneration or profit. There’s nothing here about length of time. As long as it’s made available and it’s used in this manner, it’s a Class B Marina, and I think we have put to rest, in the discussions before the Town Board, the fact that Class B Marinas are, in fact, commercial activity. So the mischaracterization here is the fact that you 6 (Queensbury ZBA Meeting 2/19/03) would be, defacto, approving a commercial use in a residential zone. That’s a Use Variance, not an Area Variance. That’s the Town Code. MS. RADNER-May I? MR. HAYES-Certainly. MS. RADNER-I think you need the rest of the Code. Part One underneath that reads, Except the use of residential or association docks, wharfs or moorings by the owner of the facility, the owner’s family, or the owner’s gratuitous guests or such use by a person or part of the single family residential rental of a residence or a residential unit which includes the use of a dock, wharf or mooring. Then there’s another three exceptions to the general rule. MR. SALVADOR-Yes, indeed. The use of a residential or association dock. I’m familiar with association docks, and that, an association dock, as a member of an association, you have one dock. One dock. How you use that dock is sometimes a function of the limitations that the association puts on you, but in any case, we are not allowed, by the Park Commission rules, to allow that dock to be used by anyone unless that person has a contract to rent our facility which that dock goes with. So, whatever you have, if someone’s using your unit, then they get the use of the dock, but we’re not at liberty to let someone, we’re not at liberty for us to stay resident in our unit and sublet, use, favor whatever have you, the dock. That’s not allowed. We have to have a contract to show that that person that’s using the dock has also the contractual use of the facility. There is no definition here, I believe, I’ve looked so many times, of a residential dock in this Code. It does not exist. In any case, I maintain that what you have here is the potential, as long as there’s some incidence of use, and the Park Commission regulations and our regulations do not define the incidence, the time, occasional, whatever it is, and it doesn’t make any difference if any money changes hands. The very fact that it’s available for use, it’s available for use, that constitutes a Class B Marina. MR. MC NULTY-How does that differ from any other dock on the lake? I have a 10 foot dock and I’ve got one boat and I berth it on one side of the dock. Then my other side’s potentially available for use by somebody else. MR. SALVADOR-Yes. MR. MC NULTY-So what you’re saying is all docks on the lake are potentially Class B Marinas? MR. BRYANT-There is a definition in the Code for a Private Dock. MR. SALVADOR-A residential dock. MR. BRYANT-Yes, a private dock. MR. SALVADOR-A residential dock, I said. This said residential dock. There’s, all docks on the lake are private unless they’re owned by some entity of the government, municipality. We’re in a commercial business. We’ve got many docks, but they are very private. We own them. What we do with them is quite another thing. MR. BRYANT-Well, according to the definition in the Code, relative to a private dock, it specifically relates to, it accommodates up to three vessels, owned by the property owner. So, isn’t this what we’re talking about? MR. SALVADOR-It accommodates, but, fine, but it doesn’t mean that a private docking facility cannot also be a Class B Marina. MR. BRYANT-Yes, but the reverse is true, too, all private docks don’t necessarily have to be a Class B Marina. 7 (Queensbury ZBA Meeting 2/19/03) MR. SALVADOR-It depends on the use. It depends on the use. Mr. Mackey stated this evening that that’s how the use would be. He stated that it would be an occasional transient, it’s hard to, I mean, we’ve been in the boat business on Lake George for some 30 years, and we know the difficulties of someone that just, you know, transient, what you might refer to as a transient, somebody stops by for the day. Can you imagine the difficulty of putting your boat in the water for a day, going around, and then, that doesn’t work. It doesn’t work. So anyway, it’s our Code. It’s what it says. Available, but for use by any person as a berthing place for one motorized vessel, and if you make it available, then it’s a Class B Marina. If you choose not to make it available, that’s something else. Don’t make it available. MR. HAYES-Thank you. MR. SALVADOR-There are, there’s something else. I had a bunch of things I wanted to say tonight, but the Lake George Park Commission has a very, very detailed, involved registration program for boats and docks. This is our form for what we call a commercial dock. Commercial dock, that we pay, and the reason they have to specify is they have a two tier system. A residential dock, so to speak, pays one fee and a commercial dock pays another fee. So they must be spelled out, so that the Commission collects the correct fee. I presume Mr. Mackey registers his dock, somewhere. I have to presume that. I think they’ve registered all docks on the lake. In any case, this form asks for an identification number, and they’re very clever. They just say requested only, but it is required by law. When you pay a State agency a fee, you pay against an identification number. If you choose to have that number your Social Security Number, that’s your business, but we know that we have a Federal ID and that’s, many times it’s on demand. You can’t do business without it. So a commercial dock is, this is what leads to the commercial dock is the identification number, and they’re all registered with the Park Commission, and I don’t know how this is registered, and I don’t know how the Commission may register it in the future, but, in any case, I think as far as our Code goes you have a Class B Marina on your hands, and it would require an Area Variance. In addition to that, it would require a Special Use Permit, that the Code now requires. More importantly, I was prepared, tonight, to talk about, and it would take quite a long time, and I don’t think you really want to hear it, but there is real significance to the mapping, on this map, of the mean low water mark. There is real significance to the Park Commission’s determination of usable dock. Notice the Park Commission usable dock starts in an area of the mean low water mark. There’s a good reason for it. The Park Commission is a State agency. They have no authority on the land that is within the Town boundary, and the Town boundary goes to the mean low water mark. That’s a very, very significant line on this map. That’s, I thought I saw it here. Yes. It’s mapped here. That mean low water mark is not only the zoning district boundary, it is the Town boundary, and that’s why the Park Commission stays on the lake side and the Town should be staying on the land side of that line. Frankly, you don’t have any jurisdiction beyond it. That’s been established in law, and we shouldn’t be issuing zoning permits, we shouldn’t be issuing building permits, beyond that line. So, in any case, this project is, it’s all coming into focus now with the Special Use Permits, the mapping of these lines, jurisdictional boundaries, etc. It’s a very involved and difficult thing, and it’s going to take a session of sitting down and really understanding. To that end, the Code does say that, you will recall that I brought an appeal to this Board, in the Year 2000, concerning the zoning district boundary, and we got that established on our property, if you recall, and since then, this Code has been reworked since then, and this Code now has a sentence in here that was never in here before, before I brought this Appeal, and on Page 41, Section 179-3-020(a)(6) now says zoning districts shall be construed to extend into the water to the boundaries of the Town line, and they extend into the water to the boundaries of the Town line and only the Town line. They don’t extend beyond that. Further, Paragraph B says, in the event that none of the above rules are applicable or 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. I think it’s extremely appropriate in this case, and in all of the cases that are going to come up on the Lake. I think it’s extremely appropriate, but you see the complexity of the subject. It is not an easy subject. 8 (Queensbury ZBA Meeting 2/19/03) MR. BRYANT-Can I ask the Town Attorney, how does she view this information that Mr. Salvador is bringing? MS. RADNER-You folks are the Zoning Board of Appeals. You have no purview over site plan reviews or special use permits. You are here for a very limited task. The applicant is here requesting relief in the form of an Area Variance. You have a specific limitation on the maximum number of dock space and your job’s fairly simple, to determine whether or not to allow a variance that will allow him to expand beyond the allowable dock space set forth in the Zoning Ordinance. I disagree with Mr. Salvador’s definition of a Class B Marina. I think that the Number One exception set forth under Class B Marina is specifically designed to accommodate that sort of transitional use. If a person has a dock and their neighbor from the other side of the lake wants to come over and dock their boat while they have sandwiches together on the dock, I don’t think that makes it a Class B Marina because there’s that occasional gratuitous use of a dock space, and I think it was the recognition of the reality of people enjoying and using their homes and their docks that prompted putting that exception in the Code. Does that answer your question? MR. BRYANT-It answers part of it, but another part of the question relates to his discussion of the mean low water mark as being the Town, the boundaries of the Town, and thereby, how does that relate to us and that dock, this dock, which is outside of that boundary? MS. RADNER-The, you’re putting me on the spot without letting me have a chance to do my homework first. MR. BRYANT-No, this is just for a point of information. MS. RADNER-Yes. There is State jurisdictional waters and there is Lake George Park Commission waters, and there’s also our Town Code, though, and the two of them overlap and coincide. Lake George Park Commission will come in and tell you if a dock doesn’t meet their regulations. In terms of the zone, though, we’ve divided the entire Town, including parts that are in the water, into zones, and we have not stopped the Town boundary at the mean high water mark for all purposes. MR. ABBATE-But I think, would you not agree, Ms. Town Attorney, that it is. MS. RADNER-Cathi. MR. ABBATE-Cathi, that it is the function of the Board of Zoning Appeals to listen to and consider all evidence that may bear upon the issue and its decision. MS. RADNER-Absolutely. MR. ABBATE-So, comments from the public, Mr. Salvador, whether we agree with him or not, are appropriate, and we have to consider his comments. Thank you. MS. RADNER-Absolutely. MR. SALVADOR-I would like to rebut, if I may. There’s no question, if a boat has a place on the lake, it has a place on the lake. It has a permanent home on the lake, a dock, a mooring, some place like that, and it wants to travel across the lake and visit somebody and there’s a place to dock there, no problem. It’s the boat that is put on the lake, that doesn’t have a home, that finds a home at a dock like this, that’s the concern. That’s the concern, and that’s what the Class B Marina is all about. That person visits. It’s not likely they’re going to be there for a day, an afternoon, a drink. That’s not likely, and if they stay longer, they may even bring a vehicle, and they may even have to use a toilet, and these kinds of things and that’s what the Class B Marina is all about. You’ve got to meet certain standards. 9 (Queensbury ZBA Meeting 2/19/03) MR. HAYES-Okay, Mr. Salvador. I guess, I said at the beginning that I would limit the comments to five minutes, and we need to move on with the facts of this particular Area Variance. MR. SALVADOR-Thank you. MR. HAYES-And certainly Mr. Salvador’s comments should be included in our thought process. Would you like to come back up, Mr. Mackey. Are there any other questions for the applicant at this time? I guess, is there anyone else that would like to oppose the application? If not, I’ll close the public hearing. PUBLIC HEARING CLOSED MR. HAYES-Are there any other questions for the applicant at this time? MR. BRYANT-Yes, I have a question. MR. HAYES-Certainly. MR. BRYANT-Would you just clear up the transient issue, what you meant by that? Do you just mean a visitor from across the lake, is that what we’re talking about? MR. MACKEY-Absolutely. MR. BRYANT-We’re not talking about renting the dock for a week to a guy from Jersey or something? MR. MACKEY-Absolutely not. MR. BRYANT-Okay. All right. MR. HAYES-Are there any other questions for the applicant at this time? If not, I’ll begin by polling the Board. I’ll start with Roy. MR. URRICO-I’m going to take it down our list of criteria which we use to measure the application. I feel the benefit to the applicant would certainly be appropriate in this instance. I think, in my mind, the applicant has proved that there is a need for this and on the item, benefit to the applicant, I think he has shown that. As far as feasible alternatives, I do think they’re limited. I don’t think you have much of a choice there, other than not to extend the dock, which, of course, is a choice that you’re making. As far as the relief being substantial to the Ordinance, I’m bothered a little bit by this, but I feel you have made some adjustments here that at least I can live with. I don’t think there’ll be an effect on the neighborhood or community. There are some other docks of similar length, but not exactly the same, and as far as this difficulty is self-created, but I think it’s appropriate in this area, in this instance, and I would be in favor of the application. MR. HAYES-Thank you. Joyce? MRS. HUNT-I would agree with everything that’s been said. I think the other comment that the Staff made, there’d be minimal impacts as a result of the action. So I would grant the variance. MR. HAYES-Thank you. Allan? MR. BRYANT-Roy has already gone through the criteria. So I won’t do that. I am troubled by the fact that even without the 21 feet you still are, your dock is still larger than the allowable size, albeit it 20 square feet or whatever it is, but after looking at the aerial photograph and, you know, listening to your presentation, I would be in favor of the application. I would like to see some sort of condition relative to a future dock, maybe deduct the 200 square feet or the 160 10 (Queensbury ZBA Meeting 2/19/03) some odd square feet from the ability to build, you know, from the future dock, something of that nature, but other than that, I’m in favor of it. MR. HAYES-Thank you. Chuck? MR. ABBATE-Thank you. I certainly agree with what Roy had to say and Allan had to say. I was impressed with the fact, and I’m somewhat embarrassed with the fact that I did not know that there has been, in two instances, some substantial to some of your boats. I was certainly not aware of that, and I don’t know how we would have found that out, but I, nonetheless, was not aware of that, and if I were to place myself in your position, I would be concerned as well. I can’t deny that. I’m concerned with the fact that you’re requesting 102.1 square foot, but I listened to your argument, I listened to what other folks have had to say, I would probably, I’m still on the fence, be inclined to support your application, but I’m not sure at this point, but I’m inclined to do that. MR. HAYES-Thank you. Norm? MR. HIMES-Yes. Thank you. I, in short, tend to support this application, mainly on the basis that I think that the description of the damages and the necessity not only to protect the property involved but perhaps even the passengers of any of the crafts that are trying to negotiate the area, and whether it might turn sour after you’re out on the lake for a while, something like that, and that’s the only additional comment but this one thing that I wish that I had more knowledge so that I might be able to feel how to apply the comments made by Mr. Salvador to this application or to others also, because I think he has substance to what he’s said, and it isn’t the first time the matter of the district boundary, high water mark or whatever it is, all that going on, but I don’t know or don’t feel, from what I heard, that I can use that in any way to diminish my feeling for your application having merit on the basis of your statements. So I would support it. Thank you. MR. HAYES-Chuck? MR. MC NULTY-I’m generally in agreement with the rest of the Board. I think there’s logical reason for this request, to protect boats from damage. Certainly additional use possibility that’s raised, especially as you expand the dock or add extra docks, is a general concern, but I don’t think it is something that we can deal with here. If something becomes a Class B Marina, there are procedures out there for getting Class B Marina permits, and I think that’s where we’ve got to leave that concern, is hope that when the time comes somebody enforces it, and so on. So even if this applicant should, right after he gets a variance for this work, put in a second dock, that still doesn’t legally allow him to rent out dock spaces without getting the proper permits. So I’m going to trust that that system will work. Looking in the particular request, as I said, I think it’s reasonable. It would be nice if the square footage was smaller, but there’s no practical way of reducing that, and putting in this additional pier. So I’m going to be in favor. MR. HAYES-Thank you. I think I’m in general agreement with the rest of the Board members. I think that Mr. Mackey has presented, you know, some reasons, some valid reasons why this is a unique circumstance and provide some of the rationale behind granting some of the relief in this particular case. Allan has kind of pulled the reins in on me on this one, but I still feel that I would be a little reluctant in approving the additional relief without that possibly being deducted from what you could do in the future on the other dock, and I think that’s an entirely reasonable condition, being that the total dockage would not exceed what you’d be permitted by Code now. So I’m certainly in favor of the application if that is a condition that’s imposed. I don’t think there’s any real large effects on the neighborhood or community, unless we didn’t have such a condition, and the fact that you could end up with five or six boats, potential moorings, on this site, and we’d actually be allowing you to create an additional one with this amount of relief, and is the difficulty self-created? Not entirely. Certainly that you’ve demonstrated with the aerial photo that it’s shallow in this particular lake, and you’re certainly not the cause of that. So, I don’t think that it is. Other Board members have commented on Mr. Salvador’s comments, and I certainly think that they’re germane and we’ll have to deal with 11 (Queensbury ZBA Meeting 2/19/03) those at some point. We have dealt with that on previous occasions on the Board. Many years ago I can remember the Salvador line and some important discussions about that. So we do take into account what Mr. Salvador has to say, but, on balance, I’m in favor of the application with the condition that the total square footage does not, in the future, exceed what would be allowable by Code for two docks, if a second dock is constructed. Having said that, it looks like we’re headed toward a motion for approval. Would someone like to make that. Mr. Himes? MR. HIMES-Yes, thank you. MOTION TO APPROVE AREA VARIANCE NO. 4-2003 CHARLES MACKEY, Introduced by Norman Himes who moved for its adoption, seconded by Allan Bryant: 15 Wild Turkey Lane. Applicant proposes a 190.7 square foot addition to an existing “L” Shaped dock to create an “F” Shaped dock, a total of 862.1 square feet. Applicant requests 162.1 square feet of relief from the maximum allowable 700 square feet for docks, of the Docks and Moorings regulation per 179-5-050(A5). The benefit to the applicant, the applicant would be permitted to construct the desired structure in the preferred location, thus providing needed additional security to his boats and perhaps to the users and passengers in bad weather conditions. Feasible alternatives appear to be limited, and, personally, I can’t think of any, except doing without it entirely. Is the relief substantial to the Ordinance? 162.1 square feet in addition to the 700 square foot maximum allowed may be interpreted as minimal to moderate. Effects on the neighborhood or community, minimal effects on the neighborhood may be anticipated as a result of this action, as there are similar structures in that area. Is the difficulty self-created? Much of the difficulty in connection with this application, especially for the existing dimensions is attributed to the shallow water in the area which require a lengthy dock in order to use a boat of any kind over modest size. We would request that the approval be conditioned that no additional docks will be constructed that will result in the total square footage of the two docks exceeding what is allowable in the Code at that time. Duly adopted this 19 day of February, 2003, by the following vote: th MR. HIMES-We would request that the approval be conditioned that no additional docks will be constructed that will result in the total square footage of the two docks exceeding what is allowable in the Code at the time.. MR. HAYES-In other words 1400 square feet. MR. HIMES-So we take the present or the future? MS. RADNER-As he worded it, it would change if the future Zoning Ordinance further restricted the allowable square footage. As he worded it, it would depend on what Zoning Ordinance was in effect when a second dock was put in. MR. HAYES-We could rely on the Town’s wisdom to be passing changes to the Code that they thought were appropriate. MR. HIMES-Yes. Is that all right? I’m all done. AYES: Mr. Abbate, Mr. Bryant, Mr. Himes, Mrs. Hunt, Mr. McNulty, Mr. Urrico, Mr. Hayes NOES: NONE ABSENT: Mr. Stone MR. HAYES-The motion is carried. MR. MAC ELROY-Thank you very much. 12 (Queensbury ZBA Meeting 2/19/03) MR. MACKEY-Thank you very much. Thanks. MR. HAYES-Congratulations. NEW BUSINESS: SIGN VARIANCE NO. 7-2003 TYPE: UNLISTED SAXTON SIGN CORP. FOR CHARTER ONE BANK PROPERTY OWNER: GLEN STREET LLC ZONE: HC-INT LOCATION: 677 GLEN STREET APPLICANT PROPOSES ADDING A 2 FT. BY 8 FT. DOUBLE-FACED SIGN TO THE EXISTING 48 SQ. FT. FREESTANDING SIGN OF PRICE CHOPPER. SEEKS RELIEF FROM SETBACK REQUIREMENTS. WARREN COUNTY PLANNING 2/13/2003 TAX MAP NO. 302.10-1-7 LOT SIZE: 18.86 ACRES SECTION 140-6 (B2a) PAT BONNIE, REPRESENTING APPLICANT, PRESENT STAFF INPUT Notes from Staff, Sign Variance No. 7-2003, Saxton Sign Corp., for Charter One Bank, Meeting Date: February 19, 2003 “Project Location: 677 Glen Street Description of Proposed Project: Applicant proposes the addition of a 2-foot by 8-foot double-faced sign to the existing 48 sq. ft. freestanding sign of Price Chopper. Relief Required: Applicant requests 8 feet of relief from the 25-foot minimum setback requirement for a 64 sq. ft. freestanding sign, per § 140-6(B2a) of the Signs Code. However, an investigation revealed the existing sign is currently set back 20 feet from the front property line (30 feet from the road). Therefore, 5 feet of relief is required should this application be approved. Criteria for considering a Sign Variance according to Chapter 267 of Town Law: 1. Benefit to the applicant: Applicant would be permitted to place the desired sign on the existing freestanding sign structure of Price Chopper. 2. Feasible alternatives: Feasible alternatives seem to be limited. 3. Is this relief substantial relative to the Ordinance?: 5 feet of relief from the 25-foot minimum setback requirement for a 64 sq. ft. freestanding sign may be interpreted as minimal to moderate 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 existing location of the freestanding sign structure. Parcel History (construction/site plan/variance, etc.): Sign Permit 2003-17: 01/23/03; 16 sq. ft. temporary freestanding sign for Charter One Bank. Sign Permit 2002-979: 12/03/02, 16 sq. ft. temporary freestanding sign for Charter One Bank. Sign Permit 2002-827: 11/01/02, 24 sq. ft. wall sign for Charter One Bank. BP 2002-817: 10/15/02, commercial interior alterations for Charter One Bank. Sign Permit 98-3207: 05/22/98, 48 sq. ft. freestanding sign for Price Chopper. Staff comments: Minimal impacts may be anticipated as a result of this action. Even though additional room is available to relocate the freestanding sign back 5 feet to allow for the desired increase in signage without the need for relief, the additional costs associated with relocating the structure and reconfiguring the landscaping might be considered imprudent. SEQR Status: Type: Unlisted” MR. MC NULTY-“Warren County Planning Board Project Review and Referral Form February 13, 2003 Project Name: Saxton Sign Corp. - Charter One Bank Owner: Glen Street LLC ID Number: QBY-03-SV-7 County Project#: Feb03-32 Current Zoning: HC-Int. Community: Queensbury Project Description: Applicant proposes adding a 2 ft. by 8 ft. double-faced sign to the existing 48 sq. ft. freestanding sign of Price Chopper. Seeks relief from setback requirements. Sign setback requirement is 25’. 17’ is existing, 17’ is proposed. Site Location: 677 Glen Street Tax Map Number(s): 302.10-1-7 Staff Notes: Sign Variance: The applicant proposes to add a 2’ x 8’ Charter One Sign to the existing Price Chopper sign on Route 9. The Price Chopper sign is 48 sq. ft. and 17’ from the front property line. The applicant is requesting setback relief on a pre-existing sign at 17’ where 25’ is required. Staff does not identify an impact on county resources based on this is an existing sign and relief is requested only for setback. Staff recommends no county impact. County Planning Board Recommendation: The board was unable to come to a consensus on the proposed project. By statute, a “no-action” by 13 (Queensbury ZBA Meeting 2/19/03) the County Planning Board becomes a default recommendation of approval after thirty (30) days.” MR. HAYES-Hello. Please identify yourself. MR. BONNIE-Hi. I’m Pat Bonnie from Saxton Signs, and we did finally get our survey back from C.T. Male. It’s actually 5.3, the relief, instead of 5. We’ve got new blueprints, and there’s four main reasons why we think we should get this variance. First of all, going northbound, the sign, if we go five foot back, would be hard to see, because the trees block it, and second of all, for that same reason, Price Chopper doesn’t want us to move the sign back because they won’t be able to see their sign, and it’s not self-inflicted because Price Chopper used up all the square footage when they put their sign up, and as far as the hardship goes, there were two other banks that were in there prior to this, and they both moved out, due to lack of business. MR. HAYES-Is there anything else you’d like to add to your application? MR. BONNIE-No, that’s it. MR. HAYES-Okay. Thank you. MR. FRANK-Mr. Chairman, before we continue, the applicant said that he had the property resurveyed to show the actual relief needed? MR. BONNIE-Yes. Would you like to see that? MR. FRANK-Yes. Could you submit that to the Board and to myself? MR. BONNIE-Sure. I have two copies with me. MR. FRANK-I was told they were going to do this, but they didn’t know if they’d get the survey done in time. MR. HAYES-Well, it’s always nice if we have them. MR. FRANK-Sure, that’s what I told them. MR. HAYES-If you can check the accuracy of the relief so that we’re correct on that, Bruce, that would be great. We’ll proceed with any questions that the Board has for the applicant. MR. ABBATE-Yes. If I may. MR. BONNIE-I have 12 copies if you want me to pass them out to everybody. MR. HAYES-Certainly. MR. ABBATE-Thank you. MR. HIMES-Thanks. MR. ABBATE-This helps me with my question, then. Should I proceed, Mr. Chairman? MR. HAYES-Certainly. MR. ABBATE-Okay. Good. Thank you. This really helps me out because this addresses the question I was going to ask you. What you’re basically saying is that the sign that is, and it’s evidenced by the fact that you presented these photographs, that Price Chopper just simply took all the space available and there’s really no space left for Charter One Bank, and all you’re 14 (Queensbury ZBA Meeting 2/19/03) attempting to do is just take a little portion of that and advertise for Charter One, or have advertisement for Charter One Bank. It’s as simple as that. MR. BONNIE-Yes. MR. ABBATE-And you feel that your request, based upon the very limited amount of space that you’re requesting, is valid, and legitimate. Thank you. MR. URRICO-I have a question for Staff. The sign that’s currently there, is it in an approved location? MR. FRANK-Yes, that’s correct. It would only need to be set back 15 feet for the size. It’s only 48 square feet. MR. HAYES-Any other questions? MR. BRYANT-By adding the 16 feet, you need 25? MR. HAYES-He’s got to be either 25 feet back or have a smaller sign, total, right. Norm? MR. HIMES-Yes. Thank you. Being a conservative, the space that you have, and then the lettering within the space, is small. In other words, you could almost double, it seems to me, even though it may not have the aesthetics, since the balance and so forth, it’s kind of a pretty sign, I think, but actually the name, Charter One Bank, certainly could be much more magnified, or magnified, let’s say, from what it presently is, which therefore, might accomplish much to the same end. Do you have any comment on that? Is it feasible? MR. BONNIE-Yes. We have specs that we have to go by. They come from Ohio for Charter One Bank, and for this particular size and square footage, this is what they want us to do. MR. HIMES-Yes, and that they might also expect that we hive specs. MR. BONNIE-Right, but that’s why we did propose this. MR. HIMES-Yes, but I’m just saying that I think that given the modest increase in size, as compared to just expanding the, I can’t think of the word, what’s written in there, to more fill up the space that you have available, I challenge that that might come awfully close to accomplishing what the application is trying to do. Thank you. That’s all I have. MR. HAYES-Are there any other questions for the applicant? MR. ABBATE-One. I think I know what you’re saying. What you’re basically saying is that Charter One has specs, specifics in advertisement of their Charter One Bank, and you have to comply with their requirements? MR. BONNIE-That’s right. MR. ABBATE-Okay. Thank you, and anything other than what they specified, there would be some question as to whether or not it would be approved by them? MR. BONNIE-Correct. MR. ABBATE-Okay. Thank you. MR. HAYES-Are there any other questions for the applicant? If not, I’ll open the public hearing. Is there anyone here in favor of the application? Anyone opposed? 15 (Queensbury ZBA Meeting 2/19/03) PUBLIC HEARING OPENED NO COMMENT PUBLIC HEARING CLOSED MR. HAYES-We’ll start with Joyce. MRS. HUNT-We’ll I’ll go through the criteria. The benefit to the applicant, the applicant would be permitted to place the desired sign on the existing freestanding sign structure of Price Chopper. Feasible alternatives. Feasible alternatives seem to be limited. Is this relief substantial relative to the Ordinance? 5.3 feet of relief from the 25-foot minimum setback requirement for a 64 sq. ft. freestanding sign may be interpreted as minimal to moderate relative to the ordinance. Effects on the neighborhood or community? Minimal effects on the neighborhood may be anticipated as a result of this action. Is this difficulty self-created? The difficulty may be attributed to the existing location of the freestanding sign structure, and as I’m looking at this picture, I can see the point about moving it back. You would not be able to see it from the north with those trees. I would be in favor of the variance. MR. HAYES-Thank you, Joyce. Allan? MR. BRYANT-I think it’s a reasonable request. We’re only talking about 5.3 feet of relief. I just have one question. You made this little chart here on July of ’02. It’s February. How come it took you so long to get here? MR. BONNIE-I’m not sure. We had to go to Queensbury. MR. BRYANT-I’m only, I understand. MR. BONNIE-Okay. MR. BRYANT-It’s a reasonable request, and I saw the banner up there. You’ve got a temporary banner. That’s basically what you’re looking at, right? MR. BONNIE-Yes. MR. BRYANT-I’d be in favor of the application. MR. BONNIE-The temporary banner is the same size as the new sign. MR. BRYANT-I figured as much. I didn’t want to step in the snow to measure it, but it looked like it was two by eight, but I’d be in favor of it. MR. HAYES-Thank you. Chuck? MR. ABBATE-Thank you. I think this is a no-brainer. Quite frankly, if I were in your position, I always try and place myself in the applicant’s position, I would be requesting the identical same thing, and I think that the Town of Queensbury, I do believe, that they wish to support businesses in the community, and the approval of this application is not going to make or break anything in the Town, and quite frankly, I’m in support. I would support your application. MR. HAYES-Thank you, Chuck. Norm? MR. HIMES-Yes, thank you. I am opposed to the application, for the reasons that I think that better use can be made out of the space that’s available there now, and I also think, in connection with the impact, in relation to the previous history, the businesses, I think these are business decisions. Price Chopper wants to take up 85% of the space and being practical about it, well, these are things that have to be worked out between the two businesses and I don’t 16 (Queensbury ZBA Meeting 2/19/03) know that the Town has to be, as much as I might like to, if situations were different, to enable someone to make a buck, but in this particular case, I don’t think that it’s warranted, and the Code should prevail. Thank you. MR. HAYES-Thank you. Chuck? MR. MC NULTY-Well, long story short, I’m going to be in favor. I think it’s a reasonable request. While it would be possible to move the sign back, I think, as Staff notes indicated, cost wise, it wouldn’t make sense. The same thing applies to replacing the Price Chopper sign with a smaller sign to allow additional square footage, and in that particular location, I don’t think it’s going to be objectionable. So I’ll be in favor. MR. HAYES-Thank you. Roy? MR. URRICO-Yes. I also am in favor of it, for many of the reasons stated already. MR. HAYES-I’m essentially in agreement with the rest of the Board. I think that the relief requested is fairly minimal. As Norm pointed out, sometimes feasible alternatives in this case can be a little bit complicated between businessmen, but I think that, I don’t think there will be any real negative effects on the neighborhood or surrounding community. I shop at Price Chopper, and for the amount of activity there, I think the signage that’s there now is actually pretty minimal. It’s almost understated, really. So I’m in favor of the application. Having said that. MR. ABBATE-Okay. I’ll take it. MOTION THAT THERE IS NO SUBSTANTIAL ENVIRONMENTAL IMPACTS THAT WILL OCCUR AS A RESULT OF THIS ACTION, Introduced by Paul Hayes who moved for its adoption, seconded by Norman Himes: Duly adopted this 19 day of February, 2003, by the following vote: th AYES: Mr. Bryant, Mr. Abbate, Mr. Himes, Mrs. Hunt, Mr. McNulty, Mr. Urrico, Mr. Hayes NOES: NONE MOTION TO APPROVE SIGN VARIANCE NO. 7-2003 SAXTON SIGN CORP. FOR CHARTER ONE BANK, Introduced by Charles Abbate who moved for its adoption, seconded by Roy Urrico: 677 Glen Street. The applicant proposes the addition of a two foot by eight foot double faced sign to the existing forty-eight square foot freestanding sign of Price Chopper. The applicant requests 5.3 feet of relief from the twenty-five foot minimum setback requirements for a sixty- four square foot freestanding sign per Section 140-6b2(a) of the Sign’s Code. However, an investigation revealed the existing sign is currently setback twenty feet from the property line, thirty feet above the road. Therefore five feet of relief is required should this application be approved. The benefit to the applicant. The applicant will be permitted to place the desired sign on the existing freestanding sign structure of Price Chopper. Feasible alternatives. Feasible alternatives seem to be limited. Is this relief substantial relief to the Ordinance? Five feet of relief, or 5.3 feet of relief from the twenty-five foot minimum setback requirements for a sixty-four square foot freestanding sign may be interpreted as minimal to moderate relative to the Ordinance. The effects on the neighborhood or community, minimal effects on the neighborhood may be anticipated as a result of this action. Is this difficulty self-created? The difficulty may be attributed to the existing location of the freestanding sign structure. I certainly will agree with Staff notes that the additional cost associated with relocating the structure and reconfiguring the landscape might be considered imprudent. 17 (Queensbury ZBA Meeting 2/19/03) Duly adopted this 19 day of February, 2003, by the following vote: th MR. HIMES-Mr. Chairman, would it be allowable or advisable, if the Board here agrees, that there be a condition that Bank One departs the premises that the sign requirements go back into effect? Would anybody agree to that? MR. BRYANT-I don’t understand the question. MR. HIMES-In other words, if Charter One leaves and another occupant comes in, that the existing Code be brought back, the site has to come back to Code. MR. ABBATE-It was my motion, and I hope Norm still loves me in the morning, but I won’t entertain his request. MR. HIMES-All right. Forget it. MR. HAYES-All right. AYES: Mr. Abbate, Mr. Bryant, Mr. McNulty, Mrs. Hunt, Mr. Urrico, Mr. Hayes NOES: Mr. Himes ABSENT: Mr. Stone MR. HAYES-The motion is carried. Thank you. MR. BONNIE-Thank you very much. AREA VARIANCE NO. 14-2003 TYPE: UNLISTED DENISE BUHER, PT AGENT: RICHARD JONES, ARCHITECT AND JONATHAN C. LAPPER, ESQ. PROPERTY OWNER: BAY ASSOCIATES C/O FRANK DE SANTIS, ESQ. ZONE: PO LOCATION: NORTHWEST CORNER OF BLIND ROCK ROAD AND HUNTERBROOK LANE, CROSSROADS PARK SUBDIVISION, PARCEL 5 APPLICANT PROPOSES CONSTRUCTION OF A 3,717 SQ. FT. PROFESSIONAL OFFICE ON A VACANT PARCEL. RELIEF REQUESTED FROM DRIVEWAY SPACING STANDARDS. CROSS REF. SPR 12- 2003 WARREN COUNTY PLANNING 2/13/2003 TAX MAP NO. 289.15-1-2 LOT SIZE: 0.95 ACRES SECTION 179-19-010 PARAGRAPH C JON LAPPER & DICK JONES, REPRESENTING APPLICANT, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 14-2003, Denise Buher, PT, Meeting Date: February 19, 2003 “Project Location: Northwest corner of Blind Rock Road and Hunterbrook Lane, Crossroads Park Subdivision, Parcel 5 Description of Proposed Project: Applicant proposes construction of a 3,717 sq. ft. professional office on a vacant parcel. Relief Required: Applicant requests 20.5 feet of relief from the 48-foot minimum driveway spacing standard for a lot in a PO Zone (60% of the minimum lot width requirement). Criteria for considering an Area Variance according to Chapter 267 of Town Law: 1. Benefit to the applicant: Applicant would be permitted to locate the access drive in the preferable location. 2. Feasible alternatives: Feasible alternatives seem to be limited due to the proximity of Blind Rock Road and the applicant’s desire to screen the parking area with the building. 3. Is this relief substantial relative to the Ordinance?: 20.5 feet of relief from the 48-foot minimum requirement may be interpreted as moderate relative to the Ordinance (42.7%). 4. Effects on the neighborhood or community: Minimal effects on the neighborhood may be anticipated as a result of this action. 5. Is this difficulty self-created? The difficulty may be attributed to the applicant’s desire to keep the access drive away from the intersection of Blind Rock Road and Hunter Brook Lane, and to screen the parking area from Blind Rock Road with the building. 18 (Queensbury ZBA Meeting 2/19/03) Parcel History (construction/site plan/variance, etc.): SP 12-2003: to be reviewed 02/25/03, pending this application. Staff comments: Minimal impacts may be anticipated as a result of this action. The proposed location of the access drive seems to be the most logical location for the site. A shared drive with the Credit Union would not be advisable being that drive is an “exit only” for the drive through lane. SEQR Status: Type: Unlisted” MR. MC NULTY-“Warren County Planning Board Project Review and Referral Form February 13, 2003 Project Name: Buher, Denise Owner: Bay Associates c/o Frank DeSantis, Esq. ID Number: QBY-03-AV-14 County Project#: Feb03-28 Current Zoning: PO Community: Queensbury Project Description: Applicant proposes construction of a 3,717 sq. ft. professional office on a vacant parcel. Relief requested from driveway spacing standards. Site Location: northwest corner of Blind Rock Road Tax Map Number(s): 289.15-1-2 Staff Notes: Area Variance: The applicant proposes to construct a 3,717 sq. ft. professional office building at the corner of Hunter Brook Lane and Blind Rock Road. The applicant proposes an access drive on Hunter Brook Lane that is 27 +/- ft. from the adjoining property access where 150 ft. separation distance is required. Staff does not identify an impact on county resources. Staff recommends no county impact. County Planning Board Recommendation: No County Impact” MR. BRYANT-The Staff notes on both 14 and then the one that follows. MR. HAYES-Apparently they were switched by Staff. MR. BRYANT-They were? MR. HAYES-Yes, to balance our agenda. MR. BRYANT-Are we balanced? MR. HAYES-I hope so. MR. ABBATE-Okay. So we’re addressing 14, Mr. Chairman? MR. HAYES-14-2003. MR. ABBATE-Okay. MR. MC NULTY-Mr. Chairman, I’m going to recuse myself from this application, but also I note that, according to Staff notes, this was referred to County, and I don’t find any indication in the folder of any response from County. MR. LAPPER-I was at County, and they approved this. It should be in the file. MR. FRANK-It should be. I have it here also. MR. MC NULTY-Okay. I may not be finding it. MR. FRANK-Actually the variance was No County Impact. MR. HAYES-Okay. Thank you. MR. LAPPER-Good evening. MR. FRANK-Mr. Chairman, for the record, this was advertised correctly for the public hearing. My Staff notes had the wrong date because of the switch, but the agenda shows that it was correctly advertised. MR. HAYES-So we can go forward. 19 (Queensbury ZBA Meeting 2/19/03) MR. FRANK-That’s correct. MR. HAYES-Okay. Great. MR. LAPPER-Thank you. For the record, Jon Lapper and Dick Jones, the project architect. I want to just make some general comments, and then Dick will walk you through the site plan. In general, we think that this is the smartest way to lay out the site, in terms of the impact on traffic and the visual impact of developing this site. I’m sure you’re all familiar with the site, which is right behind me and in front of you across the street. Just to give you a little background on this subdivision, this was an interesting subdivision that was designed by the original owner and then subsequently the residential building lots were purchased by Schermerhorn Construction and developed. The lots in front are the office lots, which were not a successful development to date. They’re sitting over and just kind of growing over with saplings. So, unfortunately, when you drive by, you see the rear of the apartment buildings and these vacant office lots next to the two office buildings. Dick has designed, but I hope the Board will think as an attractive building on this lot. It’s a prominent lot because it’s the first lot off of Blind Rock and it’s certainly visible from Town Hall, and it’s certainly visible from the intersection of Haviland and Bay and Blind Rock. So by, he designed this, and the reason we’re asking for the variance, obviously the site could accommodate the driveway on the other side near Blind Rock which would have a greater distance from the driveway at the Credit Union, but we just don’t think that that’s the right way to design the site. First of all, in terms of traffic, you’ve got, the potential for an accident is much greater at the intersection with Blind Rock because that’s a high speed, one of the cut through roads that people take to get between Route 9 and Bay Road. So to move the intersection away from that, or to move the driveway away from that intersection it seems to be a smart move, in terms of traffic design. Also, the policy of the Town, to have the separation distance from the driveway, is, in general, a good policy, but here, the Credit Union, I live near Town Hall as well and am at Town Hall all the time, and I very rarely see anybody in that parking lot. It’s a small building, and it’s just not utilized too often. So, in terms of the amount of traffic that uses that, and obviously when Dick put in the application, Denise’s physical therapy office isn’t a high traffic use either. It’s only, I think, a 3700 square foot building. So not a big facility. Moreover, the visibility is unblocked at all. So if you were exiting the Credit Union and either entering or exiting this site, although the driveways are not a greater distance apart, there’s nothing to block the visibility. You can clearly see if somebody is coming. So there shouldn’t be an accident. People aren’t driving quickly on that road. You’re near Blind Rock. So you just got onto this road. So the general policy reason for why you’d have the separation, in terms of traffic safety, I think here they’re not really needed. Then beyond that, the way Dick designed it, we could have the building in the back and the parking in front, and then we could put the driveway anywhere we want, in the middle of the site, but then when you’re looking from Town Hall looking from Bay Road, you’d be looking at a parking lot. Here you’re going to be looking at the building, and it’s from Blind Rock, you’re only going to see the building. So we just think that this minimizes impacts and is the nicest way to develop the site, even though we need this variance for the driveway. So, with that said, I’ll ask Dick to give you the details. MR. JONES-Good evening. What I’ll do is give you a quick idea of what we’re proposing. Blind Rock Road to the bottom, Hunter Brook Lane to the side, to the right side. This is the existing Credit Union location. There’s a wood stockade fence that runs along the west property perimeter of the existing property line and the apartments sit over here. This is the approximate entry drive for the Church on the opposite side, on the east side of Hunter Brook Lane. In looking at the site and the way to develop it, we realize that we could not bring a drive out onto Blind Rock Road. This is a, as Jon said, a high speed, 45 mile an hour zone, and the sight lines in this general area, it’s not bad here, at the intersection, and as you come this way it gets worse toward the curve in the road. In trying to locate the access point for the driveway, for the parking on site, we were looking to try to get the building to the front corner. We want to make, this is actually the elevation, the south elevation, toward Blind Rock, and the major physical therapy space is behind this glass, and we’re looking out, which is the best view off of the site. In placing the building at this location, we have signage on the front corner, which basically allows people going by to identify the building. They would then come in onto 20 (Queensbury ZBA Meeting 2/19/03) Hunter Brook Lane and we have our access point on the back side with the parking directly behind and adjacent to the entry door at the rear of the building. This would be the public access point. At this point, we would also have some signage just identifying the building. The building itself, being a physical therapy office, is a little bit unique, in that we need more handicap parking than normally are attributed to the parking requirements either in the State Building Code or the Town of Queensbury zoning. So basically we’re planning on four handicapped spaces and we wanted them as close as possible to the entrance. So by putting them on the back side, we’re able to screen the parking from both Blind Rock and the majority of Hunter Brook Lane with the building and then the landscaping that’s in place. As I said, the existing drive from the Bank comes around this side. They have some limited landscaping in this general area. There’s an easement, a drainage easement, with a swale coming down through between these two parcels, and then these two parcels as well. There’s a bunch of storm collection devices, and then there’s some major piping systems here on the back side. We felt that this was the most appropriate location. It allowed us to basically take and shed everything on site to the rear area for our retention and basically infiltration of stormwater here on the back corner, similar to what they did here at the Credit Union. There’s an infiltration area here on the back corner. It also allowed us to do the expanses of lawn on the front side, and basically, as Jon said, we’re looking at a single story structure. It has a partial basement which’ll be used for the mechanical systems. We wanted to do something that had pitched roofs and lent itself to the residential character of this neighborhood. The apartments are basically two story with wood framed roofs. The Credit Union is a single story pitched roof, wood framed roof building as well, and the old Metropolitan building, the insurance building and now the Church is also a single story wood framed, wood pitched roof. So we were trying to carry that theme through and lend it to the residential character to the west and the professional office type uses that were being proposed. That’s basically what we’re proposing, and I’d be happy to answer any questions. MR. HAYES-Does anybody have any questions for the applicant? MR. ABBATE-As usual, Mr. Chairman, both these gentlemen are very thorough. MR. HAYES-No questions, Chuck? MR. ABBATE-No, I don’t have any questions. MR. HAYES-That’s not usual. MR. ABBATE-I know. MR. HAYES-If there’s no more questions for the applicant, I will open the public hearing. Is there anyone here that wishes to speak in favor of the application? Anyone opposed? PUBLIC HEARING OPENED JAMES UNDERWOOD, ALTERNATE MR. UNDERWOOD-There’s one bit of correspondence. It’s from the BRB Group, which is J. Michael O’Connor, and they said they have no objection. I assume they own the property on the other side of the road there. Right? MR. LAPPER-Yes. MR. HAYES-Okay. I will close the public hearing. PUBLIC HEARING CLOSED MR. HAYES-Time to poll the Board. I believe this time we’ll start with Allan. 21 (Queensbury ZBA Meeting 2/19/03) MR. BRYANT-Frankly, I’m disappointed. There’s no green, Mr. Jones. You know the last couple you’ve come in here and you haven’t had any green up there on the board, and I know that it’s here, but, actually, you know, as always, this is a well thought out plan. I couldn’t see dumping the traffic onto Blind Rock Road. It was hard for me to get out this Hunter Brook Lane today, and I’m an old guy and I drive slow, and, you know, but, no, the design is well thought out, and I really have no problems with it, other than the fact there’s no green up there on the board, but I’m in favor of it. MR. HAYES-Thank you. Chuck? MR. ABBATE-Thank you. I, too, felt that it was thought out. The presentations by Counsel and yourself answered all of the questions. I think there is a need for this type of facility in the Town of Queensbury, and I think, in the final analysis, it will serve well the community, and as such, I will be in support of the application. MR. HAYES-Thank you. Norm? MR. HIMES-Yes, thank you. I agree with what’s already been said. I think, looking at the criteria, it’s a win/win situation for the community. It’s nice to have a good business there and something that’s been undertaken as well as you’re doing. So I’m in favor of the project. Thank you. MR. HAYES-Jim? MS. RADNER-Before we proceed any further tonight, and maybe Mr. Lapper can shed a little bit of light on this, but looking at this application, I see that there’s a cross reference to site plan review, and I don’t believe that that’s been completed yet. Before this Board should act, there should be SEQRA review of the entire project, not just one part or the other part. MR. LAPPER-I disagree because it’s not a Type I Action, so there doesn’t have to be coordinated review. MS. RADNER-Well, it’s listed as Unlisted. Which means that there needs to be SEQRA review, and if we blithely go ahead and just consider the driveway spacing without considering the entire project, I think we’re guilty of segmentation of the project. MR. LAPPER-I disagree because if you, unless you have a Type I Action, you don’t have to have coordinated review for SEQRA. You can have independent review by independent boards, and there’s nothing here that triggers a Type I threshold. MR. ABBATE-Well, now. MR. HAYES-All right. So, Cathi, you’re saying that you think we shouldn’t be proceeding? MS. RADNER-I think there should be coordinated review. That the SEQRA review of this project needs to include the entire project, and while I respect Jon’s opinion, I’m not sure I agree with it. MR. LAPPER-Well, I guess I completely disagree with Cathi. I work with her all the time. I know she’s learning about SEQRA, but she’s just wrong on this one. These, if you don’t hit a Type I threshold, I didn’t bring my SEQRA reg’s, but that’s parking for 150 spaces, building over 100 feet in height, you don’t have to have coordinated review, and frequently projects are before the Planning Board and the Zoning Board and unless it reaches the threshold where you have to have a coordinated review, each Board can do an independent review of what it has before it and it’s not segmentation, but where we were in the presentation was the Board was going through the review. So I guess I would ask that we can finish that and then get on, and Cathi and I can debate it, but my job is to make sure that if there’s an approval, it withstands scrutiny, and I’m completely comfortable that, as the Board has done in many cases where 22 (Queensbury ZBA Meeting 2/19/03) there’s been a corresponding application before the Planning Board for site plan review, every application is not coordinated between the Planning Board and the Zoning Board, and that’s because they’re not Type I actions, and this one is not a Type I action. MR. ABBATE-And, Mr. Chairman, may I make a comment on this? Just a reminder that the Board of Appeals is not bound to follow advice it may receive from a Planning Board or any other municipal agency. Thank you. MR. HAYES-Okay. Let’s proceed with our poll as we were. MR. ABBATE-Am I next? MR. HAYES-You are next. MR. ABBATE-I am next. The poll. Okay. Wait a minute. I went through it. MR. HIMES-And I went through. MR. HAYES-We’re up to Jim. MR. UNDERWOOD-I would be in agreement with my fellow Board members. I think it makes more sense to put the access where you propose it. As you’ve mentioned before, Blind Rock Road is a zoo in the morning with the ACC students and people that are trying to get in to see Denise and the operation there, it makes sense to put it where you’ve proposed it. I think it’s a good fit for the neighborhood, too. MR. HAYES-Thank you. Roy? MR. URRICO-Well, since nobody has gone through the criteria, I will take my five minutes to do so. I believe this would be beneficial to the applicant. It’s also a sign of growth. I think that an existing business needs to expand, and I think that’s a good sign that you’re staying in the Town of Queensbury. The feasible alternatives, as you pointed out, are somewhat limited, putting extra traffic onto Blind Rock at that junction would not be preferable to the way you’ve planned it. The relief is substantial, I feel, when it relates to the Ordinance, but in this case, I think it’s justified. As far as effects on the neighborhood or community, I think it’s good that we’re seeing some commercial entity going into a location where it was supposed to go in, and I think it’ll fill that property up pretty nicely, and as far as the difficulty being self-created, yes, it is self-created, but again, it goes back to, I think this is the best use of the property. So I’d be in favor of it. MR. HAYES-Thank you. Joyce? MRS. HUNT-Well, I agree with the comments that have been made, and I often ride past that area, and, as you say, traffic is very heavy during the morning and the evening. So I think this makes much more sense than having people exiting to Blind Rock Road. I’d be in favor. MR. HAYES-Thank you. I essentially agree with the rest of the Board members. An Area Variance is a balancing test, from what I’ve heard, and what I see myself, the only thing on the other side of the balancing is the rule itself, and that’s the power of this Board to grant minor relief or relief from a rule of the zoning code, and I think in this case it’s very warranted. It certainly seems to be the best idea to lay this building out as it has been laid out. I think the Board is unanimous in its belief that having the exit or entrance on Blind Rock Road would be a negative result and possibly have negative impacts on the immediate traffic and neighborhood. So, I think this plan is one that we’re all in favor of and I think when you compare and balance all things I think that I’m in favor of it. Before we get to a motion, though, this is an Unlisted action which means I believe we do have to go through the Short Environmental Assessment form. Are we on track with that? 23 (Queensbury ZBA Meeting 2/19/03) MR. FRANK-I believe so. MS. RADNER-It remains my position that the best view here would have been to do a coordinated review and have the Planning Board either give up Lead Agency status or do a SEQRA review. If you’re going to proceed with the SEQRA review, I think the SEQRA review needs to take into consideration full impacts of the project, not merely the driveways, and I would then encourage the Planning Board to likewise do a full consideration of the project when they do a SEQRA review. MR. HAYES-But you do feel comfortable, as far as proceeding, that, I guess it’s at the applicant’s risk, in the sense that if it doesn’t hold up, and. MS. RADNER-That’s very true, and I stand by my analysis. I don’t see where a Type I is, or that the coordinated review is limited to Type I actions. So I’ll respectfully disagree with Mr. Lapper on that. MR. BRYANT-Okay. Can I ask a question in that regard? MR. HAYES-Certainly. MR. BRYANT-Now, the coordination would take place at the office in the level of Zoning Administrator, wouldn’t it? MS. RADNER-Typically, yes. Typically, the Zoning Administrator notices that a project is going to be proceeding on two or sometimes even three fronts, and will make a suggestion regarding which body, be it Town Board, Zoning Board or Planning Board, should take Lead Agency status. That agency then considers the entire scope of the project and issues the SEQRA declaration for the entire project, and that hasn’t happened here, and I’m just concerned that if we just break it apart and we only look at driveways here and we only look at a building in a month at Planning Board level, then we haven’t really considered the full environmental impacts of this project. MR. ABBATE-Well, why did we wait until the last minute? Surely you have access to the Staff notes. Surely you have access to the Zoning Administrator, and I think that there would have been ample opportunity for you to send a memorandum stating your position. MS. RADNER-Actually it works the opposite. They have access to me. I’m not given your Staff notes in advance. I haven’t seen them before this evening. I was asked to come here this evening because the Zoning Administrator was concerned that you had some questions regarding certain aspects of your role here and that some of the cases that might come up for discussion tonight might also impact cases that were in litigation, and that is why he asked me to be here tonight, but he didn’t key me in and warn me about (lost words). MR. ABBATE-I don’t even know what you’re talking about. MR. BRYANT-Before you go on, I just want to go back to my question again. Is it safe, on our part, to assume, then, that the Zoning Administrator did look at this and it’s his interpretation that we can proceed and therefore it was put on the agenda? MS. RADNER-I have no idea. MR. FRANK-Well, I am privy to that. We have a plan review meeting where everything that goes before the Planning Board and the Zoning Board is reviewed by the Zoning Administrator and the rest of Staff. So nothing was said at that time. MR. BRYANT-So basically that answers my question. So, I respect your opinion, okay, but obviously the Town officials who are responsible for disseminating this information have 24 (Queensbury ZBA Meeting 2/19/03) already made the determination that this is the way to proceed, and therefore, we should probably just go on. MS. RADNER-I can give you my best legal advice, and you can accept it, reject it, or ignore it. MR. BRYANT-I understand that, and we appreciate it. MR. ABBATE-I wish you were here every meeting, Cathi. MR. HAYES-Yes, which would be a good thing, but the down side of this is that if, at some point in the future, it was determined that that type of SEQRA review was, in fact, warranted, then it would void the application and the applicant would have to come back and do this again, essentially, and the applicant has said that they feel that they’re on solid ground, and if that’s, in fact, the case, they’ll have to come back and make the application again. I mean, so I guess there’s no, from our perspective, Bruce, correct me if I’m wrong, there’s not a major down side with at least making it a, without making a determination. MS. RADNER-Let the record reflect that Mr. Lapper nodded. MR. HIMES-Can you condition it, the approval? MR. LAPPER-I don’t think you need to. MR. HIMES-On the basis of Planning Board. MR. HAYES-We really can’t make a condition, because if it’s determined that that level of review is required, there wouldn’t be a recognized motion or variance or anything. There’s no condition because there wouldn’t be, in fact, a variance. MR. ABBATE-Absolutely right, Mr. Chairman. MR. LAPPER-I just want a couple of things on the record on this issue. I want to just point out that certainly this Board, I’ve been before this Board on many projects that have a site plan and a variance where there wasn’t coordinated review. Sometimes, like on a Home Depot, there has been coordinated review. Beyond that, I mean, I don’t have a problem with what Cathi said, that if you’re going to do a SEQRA review, which you have to do, that you should contemplate the whole site plan. So I guess, just for the record, I want to point out that Dick walked you through the site plan, in terms of the stormwater, the building location, site design, we didn’t talk about, so it’s, we’re, I want to point out that it’s a permitted use in the zone, that it’s compatible with the office uses, of the office buildings that are there, one of which is now used as a church, that it provides buffering for the residential use, and the site plan, the full site plan, was submitted to this Board as part of your packet, which you’ve seen. I want to point out that there’s a landscaping plan that the Code also requires. So, just in terms of how this is designed, how this is buffered, with the landscaping, with the grading, that that’s all in there. So in order for you to make a determination that there won’t be a significant environmental negative impact, which I think it’s easy to say here, based upon the factors that I’ve mentioned and the factors that the Board mentioned, but that needs to be on the record if you’re going to do a SEQRA review for the whole thing, and the Planning Board will. MR. BRYANT-You see, Mr. Lapper, you have, for example, you do have a stormwater management report and so on, but generally speaking, we’re not necessarily qualified to discuss that. That’s not our purview. MR. HAYES-He’s covering this both ways, and that’s probably good for us, too, in the sense that we’ll do, I’m going to recommend to the Board that we do our Short Environmental Assessment form considering the whole project, and hopefully we’re not going to end up with a loophole here that becomes a problem for us. 25 (Queensbury ZBA Meeting 2/19/03) MR. ABBATE-Yes, absolutely. MR. HAYES-Being that we didn’t consider the overall project. Maybe that’ll. MR. BRYANT-Yes, but I don’t know that. MR. ABBATE-He’s right. MR. BRYANT-He’s right, but I don’t know that we necessarily. MR. HAYES-It’s not our area of expertise, but we can at least say that we considered it. MR. ABBATE-Correct. No harm can be done by considering it. MR. BRYANT-Well, I disagree with that. MR. HAYES-Being that this is an Unlisted action, I’m going to review the Short Environmental Assessment form for the proposed project in this particular case. “Will the action receive coordinated review as provided for Unlisted actions in 6NYCRR Part 617.6?” MS. RADNER-We’ve decided no, that the Planning Board is going to be seeing it, but it won’t get coordinated review. MR. HAYES-Thank you. You’ve earned your pay for tonight. MOTION THAT NO SUBSTANTIAL NEGATIVE ENVIRONMENTAL IMPACTS WILL RESULT AS A RESULT OF THIS APPLICATION, Introduced by Paul Hayes who moved for its adoption, seconded by Charles Abbate: Duly adopted this 19 day of February, 2003, by the following vote: th AYES: Mr. Abbate, Mr. Bryant, Mr. Himes, Mrs. Hunt, Mr. Urrico, Mr. Underwood, Mr. Hayes NOES: NONE ABSENT: Mr. Stone MR. HAYES-Okay. Having reviewed the poll of the Board, I believe that I would request a motion for approval. Would anyone like to take that up. Chuck? MR. ABBATE-Okay. I’ll do it. MOTION TO APPROVE AREA VARIANCE NO. 14-2003 DENISE BUHER, PT, Introduced by Charles Abbate who moved for its adoption, seconded by Allan Bryant: Parcel 5, Crossroads Park Subdivision. The applicant proposes construction of a 3,717 square foot professional office on a vacant parcel. The applicant requests 20.5 feet of relief from the 48 foot minimum driveway spacing standard for a lot in the PO zone, which is 60% of the minimum lot width requirement. Benefit to the applicant. The applicant will be permitted to locate the access drive in a preferable location. Feasible alternatives. Feasible alternatives seem to be limited due to the proximity of Blind Rock Road and the applicant’s desire to screen the parking area with the building. Is this relief substantial relief to the Ordinance? 20.5 feet of relief from the 48 foot minimum requirement may be interpreted as moderate relative to the Ordinance, 42.7%. Effects on the neighborhood. Minimal effects on the neighborhood may be anticipated as a result of this action. Is this difficulty self-created? The difficulty may be attributed to the applicant’s desire to keep the access drive away from the intersection of Blind Rock Road and Hunterbrook Lane and to screen the parking area from Blind Rock Road with 26 (Queensbury ZBA Meeting 2/19/03) the building, and Staff notes state that minimum impacts may be anticipated as a result of this action, and in view of that, Mr. Chairman, I move that we approve Area Variance No. 14-2003. Duly adopted this 19 day of February, 2003, by the following vote: th AYES: Mr. Bryant, Mr. Abbate, Mr. Himes, Mrs. Hunt, Mr. Urrico, Mr. Underwood, Mr. Hayes NOES: NONE ABSENT: Mr. Stone MR. LAPPER-Thank you. I will call Cathi later in the week so we can debate this. MR. ABBATE-Will you let us know what the results are? MR. HAYES-Send us a memo. MR. LAPPER-Thank you. AREA VARIANCE NO. 10-2003 TYPE II RICHARD SELKOW AGENT: FRANK DE NARDO PROPERTY OWNER: RICHARD SELKOW ZONE: WR-1A, CEA LOCATION: 158 LAKE PARKWAY, ASSEMBLY POINT APPLICANT PROPOSES TO DEMOLISH EXISTING 926 SQ. FT. SUNDECK AND CONSTRUCT A NEW 926 SQ. FT. SUNDECK. RELIEF REQUESTED FROM THE 2O-FOOT MINIMUM SIDE SETBACK REQUIREMENT AND THE 14-FOOT MAXIMUM HEIGHT REQUIREMENT. CROSS REF. SPR 11-2003 ADIRONDACK PARK AGENCY WARREN COUNTY PLANNING 2/13/2003 TAX MAP NO. 226.15-1-5 LOT SIZE: 0.35 ACRES SECTION 179-5-050(A6) MR. HAYES-And there’s no one here. MR. ABBATE-I don’t think he’s here. MR. ABBATE-Mr. Salvador, would you like to speak on behalf of Mr. Selkow? MR. HAYES-Next, I will repeat, to make sure that there is no, that we can get on the record properly, next on tonight’s agenda is Area Variance No. 10-2003, applicant is Richard Selkow. Is there anyone here representing Mr. Selkow or Mr. Selkow himself? MR. FRANK-Frank DeNardo is the agent. I haven’t seen him here tonight. MR. HAYES-Okay. Well, how does the Board feel about this? What would you like to do? MR. ABBATE-Have you received any notification, maybe he’s ill or something like that? MR. FRANK-None that I know of. MR. BRYANT-Why don’t you table it. MR. URRICO-Can we table it? MR. MC NULTY-This is one of the applications that was moved at one point, apparently originally was scheduled for the 26? th MRS. HUNT-Yes. MR. BRYANT-Yes. MR. MC NULTY-Is it possible there was a miscommunication based on that? 27 (Queensbury ZBA Meeting 2/19/03) MR. BRYANT-I would suggest, Mr. Chairman, or recommend or move that we table it. MR. HAYES-I would accept that. MR. FRANK-Well, actually, just to clarify something, they were going to appear before the Planning Board next week. So they had to be on the first Zoning Board to get the relief. So there was no miscommunication. There shouldn’t have been, because, the way this was orchestrated, they would appear before you tonight and then appear before the Planning Board next week. MR. ABBATE-Are you suggesting we proceed with a vote? MR. FRANK-No. I’m just saying to you that I don’t think that was part of the mix up from the previous. MR. HIMES-What are the options, Jaime? You started to give us options. MR. HAYES-Well, we have the option to proceed with the application and make a motion and go a direction, or we can table this. I think I’ll agree that, in this particular case, usually in these circumstances, the first time we accept an excuse or confusion, and then the second time, we don’t. MR. FRANK-Mr. Chairman, just for the record, next week there’s only going to be three applicants because of the problem with the Castaway Marina application, which I described to you earlier. So I don’t know, would it be okay, I don’t know about as far as the public notification. MS. RADNER-I would recommend that you open the public hearing this evening, if there’s anybody here who wants to speak to this application, to give them the opportunity to be heard, and then you could just hold the public hearing open. MR. HAYES-I think that’s a good recommendation and I’ll do exactly that. In regards to Area Variance No. 10-2003, I will open the public hearing and keep it open. Is there anyone that would like to speak in regards to this application? PUBLIC HEARING OPENED MR. HAYES- No one’s here so I’ll assume that there isn’t any, but I’ll keep the public hearing open. MOTION TO TABLE AREA VARIANCE NO. 10-2003 RICHARD SELKOW, Introduced by Paul Hayes who moved for its adoption, seconded by Allan Bryant: 158 Lake Parkway, Assembly Point. Until next week’s meeting, February 26, 2003. Duly adopted this 19 day of February, 2003, by the following vote: th MR. HAYES-Are we going to be able to meet the criteria for advertising, etc.? MS. RADNER-You’ve already advertised it, and by opening the public hearing tonight, you’ve satisfied those public issues. MR. HAYES-Okay. I kept it open. AYES: Mr. Bryant, Mr. Abbate, Mr. Himes, Mrs. Hunt, Mr. McNulty, Mr. Urrico, Mr. Hayes NOES: NONE 28 (Queensbury ZBA Meeting 2/19/03) MR. HAYES-I don’t think we have any minutes to do tonight, do we? I don’t see any minutes. MR. HIMES-What’s this Kelly Carte thing? MR. HAYES-Is that tonight? MS. RADNER-That one was taken off. MR. ABBATE-It was rescheduled. MR. HAYES-It’s not on the agenda. MR. BRYANT-There’s a note with the package that said she requested a rescheduling. There’s a note that came with our package. MR. HAYES-Okay. MR. BRYANT-Kelly something or other. MR. HAYES-Kelly Carte. Right. That’s fine. MR. ABBATE-Mr. Chairman, I have a question before we move the meeting. MR. HAYES-Certainly. MR. ABBATE-Cathi, I didn’t quite understand. I hate to put you under the gun, but I didn’t quite understand why you were here this evening. You gave an explanation I didn’t follow. MS. RADNER-I’m not sure if it’s confusion on your Planning staff’s part or if there was worry on their part that there was confusion here, but they thought you might need guidance tonight because of the overlapping issues between marina permits, site plan review, and those sorts of issues. They were also concerned that some questions had come up at the last meeting regarding feasible alternatives, and that you might need some guidance regarding what is and what isn’t a feasible alternative. I think probably the fact that two of the applications that were on the agenda ended up being stricken may be why some of those issues didn’t come up. MR. BRYANT-Well, let’s address that issue, because that was my issue relative to feasible alternatives. MS. RADNER-There you go. MR. BRYANT-Okay, and I think it was brought about not, it wasn’t, it really is based on how the project is described, and I understand that when we relate to feasible alternatives, directly related to what can be physically done to accommodate the structure, whether it’s location or size, and so forth and so on. The way the application was presented, and I don’t remember the application MS. RADNER-Let’s just speak generically, because then we don’t have to worry about speaking about any applications without the person being here. MR. BRYANT-The application was presented more as, the individual’s desire to build a specific structure was presented more to the question of him having a lot of stuff that he wanted to store, okay, and thereby the comments were made relative to that feasible alternative, but I would like to hear what your discussion is, you know, related to this whole feasible alternative thing. 29 (Queensbury ZBA Meeting 2/19/03) MS. RADNER-Again, speaking generically, what you’re mandated, under the Zoning Ordinance, and under State law, is to consider feasible alternatives that can get the relief without granting the Area Variance. So for example, if somebody wants to build a porch to the left side of their house, and you say to them, well, why don’t you build it to the rear of your house because you could do that without relief, and they can then explain to you, well, that’s where my septic tank is or the cost of doing that would be prohibitive, then you might determine that that wasn’t a feasible alternative. An example was earlier tonight when you had a sign, and you determined that it wasn’t feasible to move a sign 10 feet versus granting a small area of relief from the Sign Ordinance. There is an economic element to what is feasible, and in each case it’s going to be a little bit different. It may be that it’s possible for an applicant to get storage space some other way, and if he can do it and achieve his goals, without violating your Ordinance, then you would be within your sound discretion to deny the relief. I don’t think it was you, Bruce, I think it was George also raised the question of the way the Statute is worded at the end of the feasible alternatives, there’s this little tag on that says other than an Area Variance, and so the question was, if there is, is it an alternative to grant 10 feet instead of granting 20 feet, and arguably, no, because that still requires an Area Variance, but there’s also an area of law that says that your duty as the Zoning Board is to grant the minimum relief necessary. So if a person can’t build an addition on their house without getting some relief from side yard setbacks, for example, that doesn’t then give them carte blanche to build the Taj Mahal and violate it to the extent of within a foot of the property line. If you feel that you could accomplish his goals by granting him only five feet of relief even though he’s requested twenty feet of relief, that would be within your purview, as the Zoning Board of Appeals. Does that answer the question? MR. HIMES-Could I ask you? Does it answer? MR. BRYANT-Well, it answers the question somewhat, but, still, my point was, based on the way the application was presented, I’m not only talking about the Staff notes. I’m talking about the actual application. It was clear that, even though he wanted to build an oversized structure, that was not what he was requesting. He was requesting an area big enough to store his stuff. Okay, and so therefore, in my mind, as I look at it, and even though, I understand the Code and I understand what this says, okay, and what you’ve just said, but in my mind, building a compliant structure is a feasible alternative if you want to store your stuff. Now, if you want to build a structure that’s oversized, then naturally that’s not a feasible alternative. Do you follow what I’m saying? MS. RADNER-Yes, and I think you’re doing the right thing. You’re doing a balancing test saying, does the goal that the applicant wants to achieve outweigh, in my mind, his need to violate our Zoning Ordinance and build this oversized structure, and it sounds to me like, and again, I don’t know anything about this individual application, and I wasn’t here for the review of it, but that’s a perfectly rationale criteria. To you that’s a self-created hardship. They could create a structure that meets the Ordinance, that is compliant, and to you building a compliant structure might be a feasible alternative, and I think that that’s the right balancing test to make. MR. BRYANT-In order, in order, to set some level of consistency, I know there are five criteria that we review. I look at one additional, which meets those five criteria, and that’s whether it’s an application based on need, you know, the lot is nonconforming, the building is pre-existing, etc., etc., etc. or is this an application of desire for pure convenience? Because in reality, when an individual wants to build a structure, because for sheer convenience, and not because of need, okay, then what we do is we then set a precedent, and it has a detrimental effect to the neighborhood by allowing the structure to be built, because in essence, the ZBA is writing, rewriting the zoning law, and therefore it should be in the best interest of the Town and the people of the Town to reject that type of application, and that was the whole basis for my argument, that, yes, it’s not a real criteria, but it is when you look at it in terms of detrimental to the neighborhood. MS. RADNER-And it’s not a clear black and white answer. I mean, if a person could build a compliant house that’s just not going to fit the needs of his family and his situation, and you 30 (Queensbury ZBA Meeting 2/19/03) weigh the entire thing and consider all the facts of that application, your analysis was right on the money. You’ve just got to consider each one and the facts presented and the comments made by the public and the explanation given by the applicant, and it sounds to me like you’ve got the right (lost words). MR. ABBATE-Hypothetically, let me ask you this. We’ll talk generically. An individual has a home constructed, and at the completion of the home, he comes before the Zoning Board of Appeals because it has been determined that he has now, he has exceeded by 15 feet, 10 feet, 15 feet over the line. What, in your opinion, would be a feasible alternative? Speaking hypothetically, of course. MS. RADNER-Hypothetically, speaking hypothetically, an applicant is supposed to, they are charged with presenting you with accurate information and coming to you with an application ahead of time that let’s you know what relief they seek, and if an application is presented to you after the fact, you should consider all the things you would have considered if that application had been brought to you properly in the first place. Now there may be situations where it’s a minimal violation, and you feel that it was an honest mistake, and you feel that even though there might have been a feasible alternative before this non-compliant structure was issued, you nonetheless feel that the cost and expense of removing the structure is outweighed by the cost and expense of granting the relief, then, within your discretion you could grant the relief. On the other hand, if you find that the applicant misapprehended where his property line was and he’s built a house now that, you know, is right on his neighbor’s property line and he could build the same structure 20 feet over and not violate the Town Code and you would be within your purview to tell him, tear your house down. You don’t really have the power to tell him tear your house down, but you have the power to deny the relief, and the end result’s going to be that they might have to tear their house down. MR. ABBATE-And the second part of my question is this, and I agree with what you’ve said, everything that you’ve said. So I would then surmise that based on unusual sets of circumstances, we are not strictly bound to the guidelines as present by Staff notes, benefit to the applicant, feasible alternatives, because there may be extenuating circumstances which may go beyond the five criteria, considering an Area Variance. MS. RADNER-You should never substitute Staff’s consideration of the project for your own. You are the folks that are bound to consider the criteria, apply the criteria and make the determination, and Staff can give you their guidance, but as much as I said about legal advice, you can accept it, reject it, ignore it. You can find that they misapprehended the facts. You can find that there are additional factors to consider. Sorry. MR. FRANK-And I’d like to make a comment, too, and a lot of the stuff is correct, which I do agree with it. The Staff notes are provided as a benefit for something for you to use as a guideline to review. It may not necessarily be, in your opinion, accurate for that particular application, but all you really need to do is if you don’t agree with it, you can make the comment I don’t agree with Staff’s opinion on this one criteria, and go on. I just don’t think it’s necessary to want to debate the Staff’s notes on any one of the criteria because, like what was stated, they’re only there for your benefit, and it’s not me telling you this is the way you should vote because this is the way the professional Staff view’s a certain application. MR. ABBATE-That wasn’t the direction I was going in. MR. FRANK-That was for Mr. Bryant. MR. ABBATE-Okay. The direction I was going in was this, that the Board is not restricted, is not confined, I’d rather say, to the benefits outlined, one, two, three, four, five, because there may be extenuating circumstances which allows this Board to think for themselves. Would you agree with that? 31 (Queensbury ZBA Meeting 2/19/03) MS. RADNER-Well, no. I think you’ve got a pretty clear mandate, under the Zoning Ordinance, and those are the criteria you need to consider for an Area Variance. It’s slightly different than the criteria for a Use Variance, and you basically need to consider those criteria, and other criteria like, you know, you’re going to hurt the applicant’s feelings, they just don’t come into play. You consider what’s your charge. MR. ABBATE-No, no, no. I agree with you. We have to consider these five things, but, it’s quite clear that we have the option of taking into consideration such things as personal knowledge of the individuals on the Zoning Board of Appeals, etc., etc., and that’s not covered in one through five. MS. RADNER-But that’s relevant to your consideration of these issues. For example, when you’re considering whether a proposed variance will have an adverse effect on the environment or the neighborhood, if you happen to know that the intersection in question is over-traveled, overstressed, and can’t support this application, that’s part of your balancing. That’s part of your criteria. MR. ABBATE-And I agree. So we can bring into these five options here, these five criteria, other mitigating circumstances. MS. RADNER-Absolutely. MR. ABBATE-Thank you very much. Case closed. MR. URRICO-Bruce, as long as you brought it up, regarding the use of phrases like substantial relative to the Ordinance or moderate, do you have a set criteria, set percentage that you use to determine that? MR. ABBATE-I do, and I’ll be glad to share that with you, and I looked at it for a long time. I got opinions from other Staff members. I mean, it’s somewhat subjective, and if you look at a curve, a bell curve, that’s what I did. I tried to take the most scientific approach, and I’ll show you just where my cut offs are, and I’ll be glad to supply that to the Board, and I always give the percentage, you notice, when I say moderate or substantial or whatever, but I do, I try to stick to the same criteria when I make that determination, every time. I’m not trying to be wishy washy. That’s not my place, and I will share that with you. I’ll be glad to give that to you. As soon as I make it up. MR. URRICO-As soon as you make it up. MR. ABBATE-I like that. I hope you attend more of these, Cathi. I’m serious, and maybe we should recognize the wonderful work that our zoning enforcement officer, Mr. Frank, has been doing as well as our, as a matter of record, and also extend a welcome to Cathi, our Town Attorney, hoping she’ll appear every meeting. MR. HAYES-All right. Mr. Salvador, do you have a brief remark that you need to make? MR. SALVADOR-A couple. Just talking about feasible alternatives, Mr. Mackey could have taken a short course in rope tying. MR. MC NULTY-He didn’t say it came loose. He said it broke. MR. SALVADOR-In any case, referring to the Zoning Ordinance again, and that section on Zoning District Boundaries and Paragraph B, where they talk about, in the event that none of the above rules are applicable or in the event that further clarification or definition is considered necessary or appropriate, the location of the district boundary shall be determined by the Zoning Board of Appeals. I would like to ask you to do this. I’m wondering what is the mechanism. I wouldn’t be appealing anybody’s determination, or should I ask the Zoning 32 (Queensbury ZBA Meeting 2/19/03) Administrator to make a determination in this regard, if I don’t like it, appeal it, or come directly to the? MS. RADNER-I, obviously, can’t give you legal advice. I’m here to answer the Board’s questions. MR. SALVADOR-This is procedural. It’s not legal. It’s a procedural thing. MS. RADNER-Procedurally, what generally happens is that if a determination is made, if there’s a disagreement regarding where a boundary is then the affected property owner would appeal that determination and ZBA would have ultimate authority, just as with any other appeal. MR. SALVADOR-I believe that it’s appropriate that the Zoning Board of Appeals address the issue of the location of the district boundary. Now how do I get that issue before this Board? That’s all I’m asking. MR. BRYANT-Do you know what the key is? You notice what the key is, you can tell she’s an attorney. She said the affected property owner, the affected property owner. Very good. MR. SALVADOR-This is a flaw. This is something that has got to be straightened out in the Zoning Ordinance. MR. HAYES-Didn’t we do that a long time ago? MR. SALVADOR-With regard, you ducked it a long time ago. MR. HAYES-That was my rookie year. I remember that, but. MR. SALVADOR-Yes, you ducked it because you issued a determination with regard to our property only, okay, and that’s why Number Six came in here. That wasn’t in here before. MR. HAYES-I think at this point, then, the best thing to do is, if you’re asking us to make a determination. MR. SALVADOR-No, I’m not asking for a determination. I’m asking for the procedure that I can bring this issue to this Board. Eventually it’s got to come to the Zoning Board of Appeals. It says here. MR. HAYES-I think you need to ask us to make a determination, and we’re going to ask the Zoning Administrator to provide us with information. I mean, all you have to do is say I am asking for a determination. MR. SALVADOR-What do I do, write a letter to the Chairman? MR. HAYES-I think you’re on the record now. MR. SALVADOR-Well. MR. ABBATE-John, I’d write a letter. If you want to make it official, I would write a letter to the Zoning Administrator, and spell it out, give copies to us. MR. SALVADOR-Or the Chairman of the ZBA. MR. ABBATE-No, I’d go right to the Zoning Administrator. Would you agree, Mr. Chairman? MR. HAYES-I’d say it’s going to effectively amount to the same thing. So, I think either way would force resolution or a determination. I mean, if you request it of this Board, then we’re 33 (Queensbury ZBA Meeting 2/19/03) going to request it of the Zoning Administrator, you know, to make a determination or at least provide us with the facts to do so. MR. SALVADOR-Well, I think you have to conduct a hearing. You have to gather evidence. You have to weigh evidence. In this regard, in this regard, this Board has subpoena powers. You have got to subpoena the experts. You’ve got to hear from the experts on this, and that’s the thing you have to satisfy your. MR. HAYES-Well, you need to write a letter to Lew and say I’m requesting a determination. MR. SALVADOR-Yes. I would like to go directly to the Chairman of the ZBA. I think it kind of looks like in here, I’ll copy Mr. Round. MR. ABBATE-Do it. MR. HAYES-I’m sure you will. Thank you, Mr. Salvador. MR. SALVADOR-Thank you. MR. HAYES-If there’s no other further business before this Board, I’ll adjourn the meeting. MR. BRYANT-Weren’t you going to do minutes of the meeting? MR. HAYES-I don’t think we had any that we needed to do tonight. MR. BRYANT-Okay. On motion meeting was adjourned. RESPECTFULLY SUBMITTED, Paul Hayes, Acting Chairman 34