2003-10-15
(Queensbury ZBA meeting 10/15/03)
QUEENSBURY ZONING BOARD OF APPEALS
FIRST REGULAR MEETING
OCTOBER 15, 2003
7:00 P.M.
MEMBERS PRESENT
LEWIS STONE, CHAIRMAN
CHARLES MC NULTY, SECRETARY
PAUL HAYES
CHARLES ABBATE
ROY URRICO
ALLAN BRYANT
JAMES UNDERWOOD
ZONING ADMINISTRATOR-CRAIG BROWN
TOWN COUNSEL-MILLER, MANNIX,SCHACHNER, AND HAFNER-CATHI RADNER
STENOGRAPHER-SUE HEMINGWAY
AREA VARIANCE NO. 64-2001 SEQRA TYPE: II WILLIAM AND LINDA NIZOLEK
AGENT: WILLIAM MASON OWNER: WILLIAM & LINDA NIZOLEK ZONING: WR-1A,
CEA LOCATION: COTTAGE 25 ONEIDA DRIVE, CLEVERDALE APPLICANT
PROPOSES CONSTRUCTION OF A 768 SQ. FT. ADDITION. RELIEF REQUESTED FROM
SIDE AND REAR SETBACK REQUIREMENTS. ALSO, RELIEF REQUESTED FROM
FLOOR AREA RATIO REQUIREMENTS AS WELL AS FOR THE EXPANSION OF A
NONCONFORMING STRUCTURE. CROSS REFERENCE: SPR 41-2001, SPR 49-2003
ADIRONDACK PARK AGENCY WARREN COUNTY PLANNING SEPT. 12, 2001
(APPROVED) TAX MAP NO. 239.08-1-31 LOT SIZE: 0.05 ACRES SECTION: 179-16, 179-79
STEFANIE DI LALLO BITTER, REPRESENTING APPLICANT, PRESENT
MR. MC NULTY-First we had a tabling motion back on the 20 of March 2002, “MOTION TO
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TABLE AREA VARIANCE NO. 64-2001 WILLIAM & LINDA NIZOLEK, Introduced by
Lewis Stone who moved for its adoption, seconded by Paul Hayes:
Cottage #25, Oneida Drive, Takundewide. For such time as required for the Homeowners
Association Board of Directors to respond with a master plan as asked for by the Town of
Queensbury Planning Board. At that time, we would consider this application using the criteria
of the master plan to decide whether or not to grant this variance, for up to one year.
Duly adopted this 20 day of March, 2002, by the following vote:
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AYES: Mr. Hayes, Mr. McNulty, Mr. Himes, Mr. Underwood, Mr. Bryant, Mr. Urrico, Mr.
Stone
NOES: NONE”
STAFF INPUT
Notes from Staff, Area Variance No. 64-2001, William and Linda Nizolek, Meeting Date:
October 15, 2003 “Project Location: Cottage 25, Oneida Drive, Cleverdale Description of
Proposed Project: Applicant proposes construction of a 768 sf second story addition as well as
construction of a foundation/basement beneath the existing structure. Relief Required:
Applicant requests 2 feet of relief from the 10 foot minimum setback requirement as well as
relief for a total Floor Area Ratio of 67%. Maximum allowable Floor Area Ratio for this zone is
22%. Both requests for relief are sought from the requirements of the WR-1A zone, §179-16,
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(Queensbury ZBA meeting 10/15/03)
(new §179-4-30). Additionally, relief is requested for the expansion of a non-conforming
structure, per; §179-79, (new §179-13-10).
Parcel History (construction/site plan/variance, etc.):
AV91-2000 res. 10/25/00 2304 sf SFD Denied
Staff comments:
Although it is the opinion of staff that, procedurally, the common area shall not be considered
when calculating Floor Area Ratio, recognition of the existing lot sizes might be noted. Upon
this recognition, it may be reasonable to acknowledge an acceptable FAR, somewhat above the
allowable 22%, for these sites.
This application was tabled on September 26, 2001 with direction to the applicant to investigate
the construction of an “overall plan or master plan” for the Takundewide community.
Recently, the Planning Board finalized a Memorandum of Understanding, (MOU) regarding the
same. The completion of this document appears to satisfy the condition of the 2001 tabling.
Please see attached copy of the MOU.”
MR. MC NULTY-It was referred to Warren County back in 2001, and they had come back with
a recommendation to approve.
MR. STONE-Before I turn it over to the applicant, I just want to repeat my statement that I made
when the tape recorder wasn’t working, that any action tonight on this application is restricted
to this application only, and we will not be bound to future applications which may come
before this Board. I also have two questions of Staff. Craig, the applicant makes reference to
gravel driveways. Is the gravel driveway of sufficient size to be considered permeable under
our Ordinance?
MR. BROWN-Sufficient size gravel?
MR. STONE-Yes.
MR. BROWN-I don’t know. I haven’t inspected.
MR. STONE-Okay. Because technically gravel in Queensbury is not permeable.
MR. BROWN-Typically, the stone you find in driveways, the crushed stone that the stone dust
is considered impermeable because it compacts just like (lost words). Right. If you have a
sufficient (lost words).
MR. STONE-Okay. I just wanted that to be on the record. The other one, did we address, I just
don’t remember Mr. Nizolek back when the application came back to us? It was denied in 2000,
and.
MR. BROWN-This was a different application. That was an application for a complete tear
down.
MR. STONE-Tear down, okay.
MR. BROWN-Yes.
MR. STONE-So, obviously, by definition.
MR. BROWN-A new application.
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MRS. DI LALLO BITTER-Good evening. Stefanie DiLallo Bitter here on behalf of the applicant.
WILLIAM MASON
MR. MASON-I’m William Mason. I’m here for the applicant as well.
MRS. DI LALLO BITTER-As it has been explained, this application was submitted in 2001. The
applicant has a fairly small cottage of 768 square feet and (lost words) lot that’s 44 by 52.
They’re interested in constructing a structure that would be approximately 1500 square feet in
size. At this time, the request is for setback relief as well as floor area ratio. As Mr. Brown
noted in the Staff comments, it is our position that due to the fact that this property stands
adjacent to common properties that are approximately (lost words) in size, that the impact of
the set back of relief and floor area ratio would be insignificant due to the fact that that property
is (lost words).
MR. MASON-In description of the property, I don’t know if I brought this display and put it in
front of this Board before. I’m not certain of that, but what this does show, the green area on
there is all of the non-permeable, and as Mr. Stone pointed out, gravel driveways in the Town of
Queensbury are non-permeable, excuse me (lost words). The prints that include (lost words)
and just by glancing at it, you can see that the property is mostly permeable. So that issue, and
just to point out (lost words) gravel driveways, even though they are classified as non-
permeable.
MR. STONE-I only brought it up because.
MR. MASON-I know that, but they still are permeable as (lost words). I’m ready to answer any
questions.
MR. STONE-I think we have a couple of people that want to say something, but let me just ask
you a question. Is your understanding of the Memorandum of Understanding, will any
additional buildings be allowed on the property that we’re talking about, requested (lost words)
any new homes?
MRS. DI LALLO BITTER-In the common area or?
MR. STONE-Yes, in the common area.
MR. MASON-No new residential homes. I believe that was one of the stipulations.
MR. STONE-I was trying to find it, and I wasn’t coming up with quite those words, but.
MR. MASON-That is a Memorandum of Understanding, but that relates to this master plan.
MR. STONE-It’s in the master plan that I was looking.
MR. MASON-Number Five, if you look in.
MR. STONE-I’m sorry. That’s how I missed it. I see, it’s all one little line with (lost words),
thank you, good. Anything else? Chuck?
MR. ABBATE-Clear some things up for me if you don’t mind, please. The Year 2001, the
appellant argued, quote, that the zoning deficiencies would be less extreme if the applicant’s
share of the 18 acres commonly held by 32 association members were included in the
calculations. Now, based on the fact that the property has (lost words) from the 0.05 acres, does
your client now feel that the term “extreme” no longer applies? And if not, why?
MR. MASON-I don’t know why you’re saying that my client feels that way. He still feels, that
statement is true, but at 2/3rds of an acre per residential unit here at Takundewide. So, from a
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density standpoint, when you include all 21 acres in the 32 residential buildings, there are
2/3rds of an acre which is, we’ve shown in demonstrations that our neighbors had generally one
third of an acre with larger homes.
MR. ABBATE-So he no longer feels, that the term “extreme” no longer applies, as he stated in
the Year 2001? (Lost words). These are not my words. These are (lost words).
MR. MASON-I’m sorry. I need to look at what you’re.
MR. ABBATE-It’s the Warren County Planning Board Project Review and Referral Form, dated
9/13/01.
MR. MASON-What, the applicant argued that the zoning deficiencies would be less extreme,
yes. If, if the applicant shared the 18 acres commonly held were included. Yes, the applicant
still says that that’s true, they would be less extreme. In fact, there wouldn’t be, well, we’re still
in a Waterfront Residential One Acre zone. So two thirds of an acre per building lot is what you
would come to if you include the 18 acres.
MR. ABBATE-And you’re suggesting that our decision is going to be based upon the fact that
your client is going to be sharing, base our decision on the fact that your client and the other 31
association members will be sharing the 18 acres?
MR. MASON-No, I think that your decision would be based on this now, this document, which,
what that did was, what I was trying to do in the original application was put the figures in
front of this Board showing that if you included the 18 acres, face value, you’d come up with
two thirds of an acre per parcel. This Board was not satisfied with that, and the Zoning
Administrator rejected that argument and this Board rejected that argument. So, instead this
Board directed us to do a master plan with the Planning Board, and, in this, we were ordered to
include all of the 21 acres that make up Takundewide. So it’s a different way of looking at the
same thing. I don’t know why you would want to go back. You guys rejected that, our
arguments before.
MR. ABBATE-Documentation is extremely important. It gives us insight as to the past.
MR. MASON-Well, certainly, and my statement is correct. I believe it’s .05 acres that the
Nizolek’s own in the one little lot, and you don’t include the common property, and that is a
very tough thing to sell to this Board when you only look at the .05 acres, but when you look at
the property as a whole, then things like the septic, the setbacks, all of the other issues that come
into property density issues become addressed when the Planning Board unanimously (lost
words).
MR. ABBATE-So, help me, Counselor, on this, then your argument is that we should base on
decision on the total 18 acres?
MR. MASON-Twenty-one acres.
MR. ABBATE-Twenty-one acres. Is that your position?
MR. MASON-Yes. We’ve always felt that way.
MR. ABBATE-Okay. Now, let me ask this. Would it be unreasonable to interpret the following
statement as an agenda for further expansion of Takundewide, quote, in addition, the
homeowners fully expect that completion of this process will allow subsequent homeowners to
move far more quickly through the approval process and this is a quote directly taken from
Page One of Takundewide Homeowner’s Association letter to the Town Planning Board dated
August 18, 2003.
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MR. MASON-Well, certainly, by this Board’s direction, that was one of the issues that was
brought up. The fact that this application took three years, and we’re still running on it, it
makes it, that’s pretty (lost words) for a homeowner to build an addition such as this, and we’re
not saying that the floodgates are opening and everybody’s coming in for an expansion next
year or any year, in fact, we’ve done surveys, and for me to go back and figure out exactly what
they, tonight, to tell you what they, it would be difficult, but I know that there were no more
than three or four people that are more or less thinking about going ahead right now. There is
one that might be coming in this year, but again, this has been three years, actually it’s been four
years or five years since (lost words) was approved. So that’s not opening the floodgates.
MR. ABBATE-I see.
MRS. DI LALLO BITTER-I think maybe the interpretation of that statement could be the fact
that now that this master plan has been presented and the community as a whole has been
explained, that (lost words) but more information has been presented to the Board since this
2001 application was submitted.
MR. ABBATE-Okay. Fine. How would you react to this statement? Even though the 18
commonly held acres included in the entire association area is already overbuilt, under the
Ordinance, and due to concerns about the water quality and aesthetic impacts of Lake George
from lot crowding, staff recommends discussion. Overbuilt, even with the 18 commonly held
acres included, the entire association area is already overbuilt.
MR. MASON-I would respond to that, that’s what the staff felt.
MR. ABBATE-Well, that’s what the Warren County Planning Board Project Review and Referral
Form stated. Would you like to look at this again?
MR. MASON-No, I don’t need to. It’s overbuilt because we’re in a Waterfront Residential One
Acre zone. So, yes, it’s certainly overbuilt.
MR. ABBATE-(lost words) nonconforming, the house is nonconforming.
MR. MASON-Yes.
MR. ABBATE-Thank you.
MR. MASON-We’re not arguing that. We’re coming in with a property that is pre-existing
zoning. All of these parcels were built before it was zoned one acre. To say that it’s overbuilt,
you’d only be able to say that if you’re referring to the zoning.
MR. ABBATE-I’m not saying that. This is what the Warren County Planning Board is saying.
MR. MASON-(Lost words) County Planning Board because we’re in a Waterfront Residential
One Acre zone, but as I said, our neighbors have an average lot size, all of, I believe it’s 10 to the
north and 10 to the south that we’re saying, and it was one third of an acre average, and the
home sizes were much larger than the homes at Takundewide. So we’re not overbuilt, in fact,
we’re under built when you look at our neighborhood, and these are homes that are, we did
have a study in here that I have submitted for four applications, two to the north and two to the
south, that the Zoning Board had approved that were higher densities than what we’re
proposing (lost words) neighbors.
MR. ABBATE-Thank you very much.
MR. STONE-If I may just explain as I understand it, yes, this is overbuilt, per the one acre
zoning, but that’s not on the table, in the sense that this is a pre-existing development, and the
statement that he keeps saying, that they’re 32 units on 21 acres. That’s really all that statement
said, and (lost words). This goes back, as Mr. Mason has said, significantly in the past, but this
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development is recognized as nonconforming, but existing. That’s not the relief they’re seeking.
They were seeking relief because each individual home is on a lot slightly larger than the
footprint of the home, and the floor area ratio, obviously, is a concern, when you consider the
size of the lot, and that’s the, that’s one of the reasons they’re here.
MR. ABBATE-You understand, the reason I’m asking these questions, (lost words) is that
obviously these things pop up in front of me. I just had something like this, it may be
reasonable to acknowledge an acceptable floor area ratio somewhat above the allowable 22% for
these sites, and this is (lost words) I think he’s asking for 67%. These are not my statements.
This is part of the documentation that I’m reading.
MR. MASON-Yes, I believe that that is staff notes?
MR. ABBATE-Yes, that is correct.
MR. MASON-And that’s, again, the 67%, that is again not including the 18 acres. That’s what, I
believe, from this document, the master plan document, is an attempt to address all of those
issues that you’re speaking of.
MR. ABBATE-Okay. You feel they’ve already been addressed?
MR. MASON-Absolutely.
MR. ABBATE-Okay. Thank you.
MR. ABBATE-Thank you, Mr. Chairman.
MR. STONE-Anybody else want to question, statement?
MR. BRYANT-I have a question. Actually, I want to commend you for the work that you’ve
done with your planning, it’s comprehensive and thorough.
MR. MASON-Thank you.
MR. BRYANT-I have a question for Staff, relative to the first paragraph. I want to just
understand what you’re trying to say here. Are you basically saying that we shouldn’t include
the common area in the calculation of the floor area ratio, and then you’re saying in the second
sentence that we should find something closer to the allowable floor area ratio of 22%, which
it’s about 500 plus feet, basically, square feet, is that right?
MR. BROWN-Well, I don’t know the math.
MR. BRYANT-I’m trying to calculate that myself, and it looks like they’re requesting 678, and
allowed 508, they’re about 33 and a half percent. Is that correct?
MR. BROWN-Yes, if you say so. Like I said, I don’t have the numbers in front of me.
MR. MASON-Actually the lot, the postage stamp lot that the building is on is 2200 square feet,
(lost words) 22%, the total building size that’s allowed on that little lot is the 500 square feet.
MR. BRYANT-Five hundred square feet.
MR. MASON-We want to put a 1500 square foot home on that lot, and the reason we want to do
that, and we feel very comfortable, is because we include the 18 acres. When we include the 18
acres of land, then what we come up with typically they’re one thirty-second of it, and that is a
non-dividable 18 acres of common property. So it is tied to their property, and when we
include that, they could build a 5,335 square foot addition, and they’d have to go up six stories
to do that, and (lost words), and I’m (lost words).
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(Queensbury ZBA meeting 10/15/03)
MR. BRYANT-Okay. I understand. I was looking at (lost words). I see what you’re saying.
MR. ABBATE-Question for the Chairman. As a matter of procedure, when other Association
members come before this Board, not necessarily this organization, do we now include the
entire unit in our decision making process?
MR. STONE-No comment at this particular point in time. As I said, we’re dealing only with
this application, and that is for a future application, for us to consider.
MR. BROWN-(Lost words) I guess would start when they come and seek a building permit, you
know, from the Building Department. In regards to Mr. Bryant’s question, my first sentence
there basically says the reason they’re here for a variance is because you can’t count the
common lands as lands that they used to determine the 22%. You can’t do that. You use the lot
size, and the lot size in this case is, you know, 50 by 50, or whatever the size is, and the second
sentence says, once you recognize that these lots are so small, I think it’s a reasonable argument,
not to argue for the applicant or against, but I think it’s a reasonable argument to consider all
this un-buildable land is common land that’s shared by the 32 homes in there to use a portion of
that, a percentage, a thirty-second of it, when you do that floor area ratio calculation. What
number you land on, that’s something that you need to eye that.
MR. STONE-That’s the variance they’re seeking, and the number is immaterial in the sense that
they can’t meet 22%, even with the current Code. So are we willing to allow them whatever it
comes out to be by putting in this extra floor with approximately the same square footage as the
first floor, whatever that comes out to be, that’s almost an after the fact number that we can
calculate if we were the applicant. If you used all 21 acres, and you took his house.
MR. MASON-(Lost words) if we want to use it all, I know the numbers, I filled out the floor
area ratio worksheet using all 21 acres.
MR. STONE-Right. What’s the answer?
MRS. DI LALLO BITTER-Five thousand three hundred and thirty-five.
MR. STONE-And the house could be.
MR. BROWN-That’s using two thirds of an acre per house.
MR. HAYES-Right, the one thirty-second of the overall.
MR. BROWN-Right.
MR. STONE-Yes.
MR. MASON-Which would be ludicrous, and would get into a height restriction anyway.
Really, the building that we’re proposing to build is a (lost words).
MR. STONE-Well, that’s what I kind of said. The number is after the fact. It really doesn’t
mean anything.
MR. MASON-It can’t be any higher and you can be comfortable that we’re never going to get
near that 5,335 unless, I don’t know what, how that could.
MR. STONE-What if every house put a second story on. What would the number be?
MR. MASON-Five point five percent.
MR. STONE-Thirty-two homes times 18, 2,000, which is 60 some thousand square feet.
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MR. MASON-Yes, but every one of the (lost words) I believe that it would be the 5.5%. I have
that here on a submission July 25, 2001.
MR. STONE-Okay. All right.
MR. MASON-If everyone went to that, we would be at 5.5.
MR. STONE-Okay, of the property.
MR. MASON-There is the larger house as well. So that would change it just a little bit. It would
be 1536 times 31, about 2,000, roughly.
MR. STONE-Okay, but well within the 22% if we included the whole property.
MR. MASON-Yes.
MR. STONE-Okay. Anybody else have a comment?
MR. URRICO-Craig, how does this differ from a cluster development? How do you calculate
(lost words)?
MR. BROWN-There’s a lot of answers in that, but, yes, I mean, this is a pre-existing,
nonconforming by today’s requirements, pre-existing, nonconforming development. When you
calculate density for a cluster, you take the overall area, take out any unbuildable lands, end up
with a certain amount of land that’s considered buildable, divide that by the minimum lot size
and you come up with a maximum number of lots you can have. If that were to happen here,
they’d probably land on 20 or 21 units, if you did a density calculation that way, but again, it’s a
pre-existing, nonconforming. You’ve got a different set of factors you’re dealing with, to start
with.
MR. STONE-Any other questions? All right. I’ll open the public hearing. Anybody wishing to
speak in favor of the application? In favor of? Anybody opposed? Any correspondence?
MR. MC NULTY-I don’t find any correspondence in the file.
PUBLIC HEARING OPENED
NO COMMENT
PUBLIC HEARING CLOSED
MR. STONE-Let’s talk about it. Jaime, let’s start with you.
MR. HAYES-Well, you know, obviously, (lost words) we asked the applicant and their agent to
go to the Planning Board to resolve certain issues (lost words), everyone was concerned about
the additional expansion upwards and possibly outwards (lost words) consequence that was
undesirable, but the applicant has gone to the Planning Board. Personally, when I apply the
balancing test, I think it is reasonable to (lost words) effect on the neighborhood and the other
parts of that test, the other part of the property that’s involved. I mean (lost words) that was
used to essentially give these houses a footprint and then keep the area common (lost words)
that I don’t think it should be entirely controlling on that, to any future development or
expansion. They should have some impact, but it should not be entirely controlling. I think the
Planning Board agreed to that, essentially. So as I look at this particular case, I think the
applicant’s argument that (lost words). Also, in that consideration, that we look at this, have
the ability to examine each request on its own particular merits. I think you gentlemen did a
good job of explaining that that’s all that’s in front of us tonight. We are not approving future
applications tonight. We’re either approving or not approving the Nizoleks, and I think that
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that also gives this Board and the neighbors some degree of control and input into what
happens there at Takundewide in the future. Strictly applying the test that we’re charged with
in this particular case, is there an undesirable change that’s going to be produced in the
character of the neighborhood by the Nizoleks putting the second story addition on. I’ve been
up there. I don’t think so. I think that there’s a (lost words) impact on the views from the lake
by this. There’s already a height restriction that the Nizoleks are going to have to abide by
which has been approved by the Town Board. Can the benefit sought by the applicant be
achieved by some other method in this particular case, other than this variance? I don’t think
so, because they would have to go outside that small footprint to go wider. I could be wrong,
but it seems like you have very little land (lost words), maybe going up in this particular case
would be the only method they could achieve some additional square footage in the house. Is
the request substantial? I think it certainly is moderate, and meaningful, in the sense that we’re
being asked to go outside the traditional floor area analysis of the lot size, and saying (lost
words) common area, but it’s still, I think we’re still going to have to remember that by
definition it’s substantial, and I think that (lost words). Whether the (lost word) variance will
have an adverse effect or impact on the environmental conditions in the neighborhood or
district, I’m going to accept the judgment of the Planning Board, which, you know, (lost words)
that that’s not going to happen in this particular case, and I don’t think it will either. So, is the
difficulty self-created? I guess it’s self-created in the sense that they want their addition, but I
think it does have something to do with (lost words) designation of these lots being footprints
around the existing homes. So, in this particular case, (lost words) I’m comfortable, I certainly
would not be comfortable with anything more than that, and I should say that now. I think this
is as much as I would approve in this particular case, but on this application only, examining
the test that’s before us, I would be in favor.
MR. STONE-Chuck?
MR. MC NULTY-A number of thoughts. I would reject your argument that, just because some
of the neighbors (lost words) had a higher density, that justify higher density for Takundewide.
Obviously, the people that did the re-zoning looked at this area and said what should be there
(lost words) and they had to know something less than one acre existing (lost words). What
they’re saying is that for that particular part of the shoreline of Lake George, one acre is what
you should be shooting for. So just because somebody else’s (lost words) does not justify (lost
words). It would be nice, from my viewpoint, if this had been done as a (lost words) some kind
of a cluster development planning (lost words) that pre-dates the zoning, and I think (lost
words), good effort was put into the plan to take a look at, you know, where we might be
headed with this, and that satisfied a lot of the concerns I had a couple of years ago about
what’s going to happen (lost words) expansion. In some ways, I think approving something
like this, getting the Town to conform to the Homeowners Association, rather than getting the
Homeowners Association to conform to the Town because the other thing that could happen is
(lost words) good reason for the common areas being set aside as common areas. So, (lost
words) good planning effort (lost words) I think my conclusion is that this request now seems
reasonable, given the large common area that is not buildable, and I certainly have no problems
(lost words) setbacks that are requested, and so, on that basis, I’m going to be in favor.
MR. STONE-Jim?
MR. UNDERWOOD-Based on the information that you have provided to us, I would have
several comments that I would like to make, and I think a lot of them are pertinent, specifically,
to what we have in this instance, which is a very high density living situation in a very small
area. I think that, you know, it’s easy to rationalize that we can consider the other vacant land
that’s associated with the property that’s built upon at the present time, but I think that we have
to look at it in the context of what it is and where it is at the present time also. I know that
within the Town of Queensbury we have allowed high density development to go on in several
different places in Town, and even though well thought out and well planned, some of that has
not ended up very well, specifically I’m talking about the instance of Valente’s project down on
Bay Road there, you know, we just had a little problem with his septic system due to the large
number of people living in such a small area. It’s been brought to my attention this week that
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also Surrey Fields, which is right across the road from here, it’s a brand new project that just
recently was put in, has had a failure of several units over there with their septic systems also,
and I know that, driving down and looking at your place, and looking at those, your units are
much closer placed together than those are on any of those sites that were talked about, and I
think that we have to consider, you know, what the effect of the septic is going to be, you know,
in your case, you’re the furthest house back from the lake, and I think that’s in your favor, as far
as having any kind of a negative impact on the lake, but I think that still initially you brought
up the subject of, you know, what if everybody puts in a brand new house, and everybody puts
in a washing machine, and I think that even in your own substantiation of the facts regarding
the whole project here, you know, you even recommended that several of these sites should not
have washing machines placed inside them. I think that even if you look back at the past
historical record, back in the fifties or forties, whenever these houses were originally put in,
there was a common washing machine area that everyone shared together (lost words). In
looking through your documentation, your test pits that you dug indicate to me that you have
an awful lot of very fine silts and heavy clays that are underneath almost every single one of
these sites, including the one that we’re talking about here this evening, and I think that’s
something that we need to consider. I would be in favor of your project, if, you know, you
came up with some kind of plan where you clustered in your septic systems, and included
maybe five or six that run off to a roof leach field that could be possibly constructed over on
that holding area that you have behind, and I think that that, as a minimum, would be a
reasonable thing to ask for, because I think in the long term, your project alone is not going to
break the camel’s back, but I really fear that once we get down the road and we have three or
four of them side by side, then we have a failure occurring, it’s going to put the onus on all
those homeowners that have already spent the money to build their homes and, you know, this
is something that that the (lost words) association would have to come up with the money to
provide these homeowners, or you (lost words) together to figure this out, but I’m
uncomfortable with allowing anymore expansion up here, as I said before previously, without
some kind of consideration given that, and I think that there’s no way that you can have the
high density that you have up there right now and not have a long term impact at some point in
the future. So I would not be in favor.
MR. STONE-Chuck?
MR. ABBATE-Thank you. Well, I made my concerns, I’ve stated my concerns earlier to you
folks, and I concur wholeheartedly with my fellow Board member Jim. I’m going to yield, we
have a (lost words) yield to the Planning Board, I’m going to yield to the Warren County
Planning Board, and I’m going to state that I agree with them, that the entire Association is
already overbuilt, and based on some of the concerns that Jim set forth, I’m concerned that if we
set this precedent of taking into consideration the entire area of any association, we set a
dangerous precedent, and as such, Mr. Chairman, I am not in favor of the application.
MR. STONE-Allan?
MR. BRYANT-I think, as I stated before, I think you did a good job on the plan. It’s tough to
satisfy the Planning Board, but I am going to fall down on the side with Mr. Hayes. He went
through the criteria step by step, and I’m not going to do that. I know that Staff indicates that,
in calculating the floor area ratio, that you shouldn’t consider the common area. I agree with
that, but the other Board members have mentioned density, and I also agree, even though you
don’t meet the one acre criteria, that you’re maxed out, and I think some of the other
homeowners, when they come down the pike and they want to make extensions or additions,
it’s going to be very difficult to come before this Board, but right now, I don’t think, as Mr.
Underwood said, this project is going to break the camel’s back. So, as far as this project goes, I
would be in favor.
MR. STONE-Roy?
MR. URRICO-Yes. I’m also in favor of the project for the reasons that have been previously
stated, and I’d just also like to state that several years ago, (lost words) came forward, they were
10
(Queensbury ZBA meeting 10/15/03)
the unwitting victims of the third person in line. The two previous applications had gotten
approved. They happened to be (lost words), and I think they approved them without taking
the time to look (lost words) to put a plan together that actually helps to improve the character
of the neighborhood, which is one of the criteria that we look at, and as a result, I think there’s a
better association there, a better project, and it’s better for all concerned. I’d also like to say that,
in terms of the floor area ratio, and the common area, what would be considered or not
considered, common area is kind of hard to ignore. It’s there, and in my mind, it sets it apart
from other applications, and I think you’ve done a good job putting the plan together. A lot of
time and effort, and I’d be in favor of it.
MR. STONE-I, too, agree with the majority of the Board. We have put you through your paces,
we, the Planning Board and everyone else. I think that it shows that homeowners can
cooperate. I think the job done on this plan is a credit to your (lost word), a credit to you, Mr.
Mason, and anybody else who was involved. I think it’s a good plan. I think it addresses
many of my concerns, certainly the one that I expressed earlier, any more building on the
property, and they can’t build any more individual units. (lost words). I do want to comment
on a couple of things that are very specific to this as a basis for future considerations. This
property, I think has been noted, is about as far away from the lake, in terms of visibility, as any
property in Takundewide. That’s certainly to your credit. It will not interfere with your
visibility from the lake, something that we’re quite often concerned about. I like the fact that
also this project has, apparently according to your map, a tank and a septic drain field for itself,
and that seems to be not badly sized, as I read your drawings. Am I correct there?
MR. MASON-All of the cottages have their own (lost words) septic system, and this one does
have a 1,000 gallon tank (lost words) drain field that was (lost words).
MR. STONE-Yes, and certainly the plan does address future activities, in terms of septic and of
course a number of us have mentioned that’s a very important thing. I like the fact that the
master plan does have a series of impositions, if you will, on homeowners there, and we do
have self-regulation, will help to regulate it, but I mean, the (lost words) has said to itself, okay,
these are some of the things we have to agree with to help ourselves and help all of our
members. So, having said that, I think this application, and I’ll keep stressing it again, I don’t
want anybody to get the idea that we will react the same way with the next one, if there is a next
one, but this one, I could go along with, and having said that, I need a motion to approve.
MR. MASON-I’m going to ask a question. A lot of things (lost words) in particular (lost words)
the Planning Board approved the master plan (lost words). What we would like to do, if we
could, this is a very small building, we’re only going to save the floor system and part of the
exterior walls, it’s only a 768 square foot building, we would like to tear it down and put up a
new building. It would be a lot less.
MR. STONE-I wouldn’t go there. I would not go there, sir.
MR. MASON-It’s just a question. You opened the door.
MR. STONE-I understand. This is for the application as presented, and that’s what we’re going
to vote on, because if we go there, we’re going to get into one of the reasons it’s taken two years
to get this thing. Okay. I need a motion to approve the application as presented to us.
MOTION TO APPROVE AREA VARIANCE NO. 64-2001 AS PRESENTED BY
WILLIAM_AND LINDA NIZOLEK Introduced by Paul Hayes, seconded by Roy Urrico who
moved for its adoption, seconded by Roy Urrico:
The applicant has proposed a 768 sq. ft. second story addition as well as the construction of the
foundation basement of the existing structure. The applicant requests 2 feet of relief from the 10
ft. minimum setback requirement as well as relief for a total floor area ratio of 67 percent.
Maximum allowable floor area ratio for this zone is 22 percent. Both requests for relief are
sought from the requirements of the WR-1A zone, Section 179-16, (new Section 179-4-30).
11
(Queensbury ZBA meeting 10/15/03)
Additionally, relief is requested for the expansion of a nonconforming structure, per Section
179-79, (new Section 179-13-10). The balancing test for an area variance as according to Chapter
267 of Town Law; would this addition at Takundewide cause an undesirable change in the
character of the neighborhood? I do not believe that it will. I believe that the fact that the
addition could be complete area is restricted to an addition of part of an existing home, that
increasing the footprint of this building will not, in itself, in this particular case, cause a negative
change in the neighborhood. As the chairman pointed out that in this particular case, fairly
significant..will be away from the view from the lake, and I don’t believe that the additional
floor will have a negative impact on the view shed from the lake which could be different in a
home that is over the limits. The benefit sought by the applicant can be achieved by a method
feasible for the applicant who proposes this area variance. I think the test is possible given the
fact that the footprint for the property line, as demonstrated by the applicant, is immediately
surrounding the building and that the only method to increase square footage, in this particular
case is to go up and to ask that the floor area ratio that is being be associated with that
expansion. Is the area variance request substantial? I belief that is a mix in a sense that
certainly 67 percent floor area ratio is a percent that you would normally not see but the
applicant, in consideration of the this Board and to the Planning Board has asked the
calculations would meet our test and we take into account the additional land that is associated
with the Takundewide in regards to the common area which is in total, I believe, 21 acres, that
32 units in 21 acres. The max area is included, or at least viewed, in this particular case, for floor
area ratio that is significantly below the threshold or requirement of the Town is obtained. In
my viewpoint, somewhere in between there, would be where I would call, that I believe that
what is not the standard among the other areas considered. Would the proposed variance have
an adverse effect or impact on the physical or environmental conditions in the neighborhood or
district. I believe that is has been demonstrated, in this particular case, that no significant
adverse impact will happen on this property or as a result of this additional floor and to have
the approved septic plan that takes into account the additional square footage that is associated
with the house. I believe both requirements have been met. Is the difficulty self-created? I
believe the element of difficulty was created more by the unusual configuration of the property
since the house is in the common area. Due to these considerations, I would move for approval
for a 768 sq. ft second story addition and that any other plan would require a return to the
Zoning Board of Appeals.
Seconded by Roy Urrico
AYES: Mr. Bryant, Mr. McNulty, Mr. Hayes, Mr. Urrico, Mr. Stone
NOES: Mr. Underwood, Mr. Abbate
The application is APPROVED.
MR. STONE-There you go.
MR. MASON-Thank you very much.
AREA VARIANCE NO. 78-2003 SEQRA TYPE: II KEVIN ORDWAY OWNER: KEVIN
ORDWAY ZONING: UR-10 LOCATION: 373 AVIATION ROAD APPLICANT HAS
CONSTRUCTED A 21 FT. DIAMETER ABOVE-GROUND SWIMMING POOL AND SEEKS
RELIEF FROM THE SETBACK REQUIREMENTS. TAX MAP NO. 301.08-1-37 LOT SIZE:
0.258 ACRES SECTION: 179-5-20
KEVIN ORDWAY, PRESENT
STAFF INPUT
Notes from Staff, Area Variance No. 78-2003, Kevin Ordway, Meeting Date: October 15, 2003
“Project Location: 373 Aviation Road Description of Proposed Project: Applicant has
constructed a 21 ft diameter above ground pool and seeks relief from the accessory structure
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(Queensbury ZBA meeting 10/15/03)
setback requirements. Relief Required: Applicant seeks 4 feet of relief from the 20 foot
minimum rear setback requirement per §179-5-020.
Parcel History (construction/site plan/variance, etc.):
BP 2003-466 21 ft diameter above ground pool not yet issued.
BP 2003-467 350 sf pool deck not yet issued.
Staff comments:
Does the location of the pool present adverse impacts on the neighborhood?
Could the pool be constructed in a compliant location? Is relocation feasible?
Note: The applicant apparently completed construction unaware of the need for Building
Permits. When the applicant was notified and permits were filed, staff identified the need for
the relief sought in this application.”
MR. STONE-First of all, our sympathies for your friend’s loss, your friend’s death. We all
appreciate those who are fighting in Iraq and sorry that you had to lose him. Now, go ahead.
MR. ORDWAY-Kevin Ordway. I constructed this pool unaware of the need for a building
permit, simply because, when we constructed a family pool, when I lived up in Johnsburg, and
did not need a permit up there because it was not considered a permanent structure. I
apologize for that. When I found out, obviously, I filled out the proper paperwork and sent it
in. The deck that I built really, I don’t believe, comes into play because that is far enough away
from all the setback requirements. I did inquire into that, and was told unless it was connected
to the house or it goes completely around the pool, then it’s considered permanent, but the
person that I spoke with (lost words) was unaware of the size of it. Now that I’ve found out
that it’s under 120 square feet, I believe, you don’t need a permit.
MR. STONE-That’s a good question. Craig, do you want to comment on that?
MR. BROWN-Yes, anything less than 120 square feet, you do not need a building permit for,
that’s correct.
MR. STONE-And how big is it?
MR. ORDWAY-It’s roughly, it’s hard to tell because it’s kind of (lost words) around the pool,
but.
MR. STONE-That’s why we take math in school.
MR. ORDWAY-It’s roughly 350 square feet.
MR. STONE-Okay. I thought it was large when I looked at it myself. Anything else?
MR. ORDWAY-The placement of it. The reason that it’s placed where it’s placed is simply by
getting away from the back of my yard, I would be completely on top of the septic tank. As of
right now, I’m not over it. I’m just off from it, and if I went towards my neighbors, it’s a lot of
(lost words) systems (lost words) some of them are not even my trees, that are already up to the
surface, and I feared it could come up even more (lost words).
MR. STONE-Gentlemen?
MR. ABBATE-Mr. Ordway, I’m assuming that you accept full responsibility for what has
occurred?
MR. ORDWAY-Sure.
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(Queensbury ZBA meeting 10/15/03)
MR. ABBATE-Okay. Based on your testimony that I’ve read here, I’m convinced it was done in
good faith. I don’t suspect that you’re (lost words) or cause any kind of problems. I think it
was something that was done. We’re all human. We all make mistakes. As far as I’m
concerned, I believe that your request is a reasonable request. As you indicated, you have
several children. What you did with the surrounding portion of that pool, with the deck,
whatever it’s called there, I think improves that area, and, quite frankly, I would be in favor of
your application.
MR. STONE-Okay. Anybody else?
MR. BRYANT-Is there anything, where the deck is placed, to prevent you from moving the pool
back away from the set back?
MR. ORDWAY-I mean, the only way that it could come away from the set back would be on the
side that the deck is on now. Obviously the deck (lost words) concrete, the beams are in the
concrete, but also there was three trees in that area and also a row of lilacs to that side of the
pool, and that (lost words).
MR. STONE-Anything else? My only comment, so far, is I’m only, I won’t say troubled, when I
saw the deck I said, wow, that’s a big deck, and what that means, I don’t know yet, but I
thought it was a big deck. Anyway, no other comments, let me open the public hearing.
Anybody wishing to speak in favor of this application? In favor of? Anybody opposed to this
application? Opposed? Any correspondence?
MR. MC NULTY-No correspondence.
PUBLIC HEARING OPENED
NO COMMENT
PUBLIC HEARING CLOSED
MR. STONE-Let’s talk about it, since I don’t hear any other questions. Chuck, let’s start with
you.
MR. MC NULTY-Okay. Well, I think, obviously, there’s a benefit to the applicant being
allowed to leave his pool where he’s built it. The only possible objection that I can see is if it
bothered somebody in the apartments behind the property, and I gather that it does not bother
them since there’s nobody here complaining about it, and that tells me, one, that it’s probably
not bothering the current residents, and, two, probably would not bother any future residents in
the apartments. Given all that, I think the balance falls in favor of the applicant. I don’t think
there’s a detriment to the community. (Lost words) that the pool is (lost words). You can see it
if you drive slowly and look, somebody walking down the street might be able to see it (lost
words), but I don’t believe it’s objectionable. I’d be in favor.
MR. STONE-Jim?
MR. UNDERWOOD-Yes, I, too, would be in favor of the applicant’s request. I think that the
four feet of relief from the 20 feet setback is minimal, and I think your explanation (lost words)
pretty self-explanatory. So I’d be in favor.
MR. STONE-Chuck?
MR. ABBATE-Thank you. On balance, I would agree. I think it was done in good faith, and I
don’t think there was an agenda, as I indicated earlier, to try to deceive anyone. I think it was
just an honest mistake, which we all make. We’re all human, and there is a balance that we use
here, and as far as I’m concerned, the balance falls in favor of your application.
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(Queensbury ZBA meeting 10/15/03)
MR. STONE-Allan?
MR. BRYANT-I agree with Mr. Abbate somewhat when he says that there was no ill intent.
However, one of the criteria that I use when I look at an application where he’s already done
the building, I ask myself whether or not, had you come to us prior to starting your project,
would I have given you that extra four or five feet in setback, and my answer is no. So, I’m
going to fall on the negative side of this application.
MR. STONE-Roy?
MR. URRICO-Yes. I (lost words).
MR. STONE-Jaime?
MR. HAYES-I agree. It was an honest mistake. I’m in favor.
MR. STONE-I agree with the majority of the Board. I hear Mr. Bryant’s argument, and it’s one
that we all make from time to time. However, I’m going to come down on the other side. I
think four feet of relief, in this particular situation, considering what’s on the other side of the
fence, wouldn’t bother me a great deal. I do want to remind you, and through you anyone else,
that we really don’t like past tense verbs in the description of the project. Constructed is a bad
red flag as far as we’re concerned. In this particular case, I think, as a number of people have
said, you made an honest mistake, and I don’t think we’re dealing with a huge variance here.
On that basis, I will certainly go along with granting the variance and I need a motion to
approve.
MR. ABBATE-All right, Mr. Chairman, I’ll be happy to do it.
MOTION TO APPROVE AREA VARIANCE NO. 78-2003 KEVIN ORDWAY, Introduced by
Charles Abbate, seconded by Roy Urrico:
Mr. Ordway has already constructed a 21-foot diameter above-ground pool and seeks relief
from the accessory structures setback requirements. But on the balancing, the questions arise,
does the benefit to the applicant outweigh the detriment to the health, safety, and welfare of the
neighborhood or the community in granting the area variance. I do believe the requested 4 feet
is not an excessive amount of a variance and I do not believe that will have any type of
detriment to the area. Will this change or use, in the character of the neighborhood, or
determined by nearby properties would be created adversely? Not in my opinion. It probably
would improve the characteristics of the area. Whether the benefit sought by the applicant can
be achieved by some method, feasible for the applicant to pursue other than an area variance?
Not likely, I think it would cause a hardship, an unreasonable hardship to demand that the
applicant remove the pool and move it somewhere else. Is this area variance request
considered substantial? Not in my opinion. Will the proposed variance have an adverse effect?
No, as I stated earlier, I believe it would be impacted in a positive manner and would be an
improvement of the area. Was the difficulty self-created? I have to say it is self-created but it
was in good faith, on your part and there was no intent to deceive anyone.
Seconded by Mr. Urrico
Duly Adopted this 15 day of October, 2003, by the following vote:
th
AYES: Mr. Underwood, Mr. Hayes, Mr. McNulty, Mr. Urrico, Mr. Abbate, Mr. Stone
NOES: Mr. Bryant
The application is APPROVED.
15
(Queensbury ZBA meeting 10/15/03)
MR. STONE-There you go.
MRS. ORDWAY-Thank you.
NOTICE OF APPEAL 3-2003 SEQRA TYPE: UNLISTED SUSAN SALVO OWNER:
STEPHEN MILLER ZONING: WR-1A LOCATION: BIRDSALL ROAD APPELLANT IS
APPEALING A ZONING ADMINISTRATOR DETERMINATION WITH REGARDS TO
WHETHER OR NOT A BUILDING PERMIT IS REQUIRED FOR CONSTRUCTION OF A
DOCK. TAX MAP NO. 289.17-1-39 LOT SIZE: 0.34 ACRES SECTION: 179-16-50, 88-12
SUSAN SALVO, PRESENT
STAFF INPUT
Notes from Staff, Notice of Appeal No. 3-2003, Susan Salvo, Meeting Date: October 15, 2003
“Project Location: Birdsall Road Description of Proposed Project: Appellant is appealing a
determination from the Zoning Administrator regarding the requirement of a Building Permit
for the construction of a dock.
Staff comments:
Salvo is a nearby property (owner?) that was apparently granted permission (verbal?) to
establish a dock on the, now Miller, property by the previous owner of the Miller property.
Currently, Mr. Miller has indicated his position as not in favor of the dock.
Initially, Miller complained to the Town that a dock had been constructed on his property
without his permission. A review of the situation was performed and Miller was informed of
the Town position on the matter in a letter dated August 5, 2003 from Bruce Frank. Salvo was
informed, both directly through personal conversations and indirectly, by copy of the August 5
correspondence to Stephen Miller that the construction project, involving the reconstruction of
her dock, required a Building Permit.
Salvo position is that the dock work falls beneath the 75% rebuild threshold outlined in the
definition section of the Zoning Ordinance regarding dock repair vs. dock replacement. As
such, Salvo feels that no Building Permit is necessary based on the “repair” argument.
Salvo was informed that the Town position was that the amount of work performed was
considered replacement rather than repair. As such, it appeared as though the replacement
would require at a minimum, a Building Permit and possibly an Area Variance due to the
location of the dock relative to the property lines of Miller.
No building permit has been submitted; therefore no accurate determination relative to the
need for an Area Variance can be made. While Miller was informed that an Area Variance
would be necessary (August 5, 2003 letter from Bruce Frank) such a determination is subject to
change based on the submission of additional information (building permit plans) regarding the
dock construction.
This appears to become a “non-issue” for the Town if Miller does not grant permission for the
construction of the dock or a variance application. Private property right disputes are not an
issue open to discussion by the Board.”
MR. STONE-I’m confused. I’m not sure why you’re here. Can you enlighten us just a little bit?
MS. SALVO-As to why I’m here?
MR. STONE-Yes.
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(Queensbury ZBA meeting 10/15/03)
MRS. SALVO-My name is Susan Salvo. (Lost words) in Clifton Park, NY. We had placed a call
to the Building Department, my husband, and requested information about a building permit
and was informed that we would not need it for this repair because it was a repair to the dock,
and explained what we would be leaving on the dock. We did some of the repair, Sunday, and
stopped due to harassment, and had to come back to complete it later on. We do not live at that
home. That is a summer home, and I do not reside there. I had my son and some of his friends
helping to do the dock. After that, we were informed by some neighbors that the building
inspector had been to the dock and t hat they were looking for us. So I placed a call to the
Building Department and asked what the problem was and was informed at that time we had
not gotten a building permit. I informed them that we had called and were informed by their
own Department that we did not need a building permit for what we were doing. We were
repairing an existing dock. It had been in existence for over 20 years in that spot. We were not
extending it. We were not widening it. We were replacing boards, quite a few of them because
it was an old dock, that needed repair, and that needed to come out and finish our work. I was
told to cease the work immediately at that point, which it has been left and we need to finish
our work on that dock. I asked questions. I was not given very good answers, asked how much
was supposed to have remained on the dock and had to go find out that information. Now,
after placing the call and being told he didn’t need this permit, it was kind of confusing that the
people we were talking to did not know how much we were supposed to replace or didn’t
replace, but were stating that we replaced more than we were allowed. So, they did their
research, came back and said you could only replace up to up to 75% of the dock. I spent my
night (lost words) so I spent my night doing the math figures on our dock, going back to every
board and measuring them, since we still had them, and that we had removed from the dock as
well as all of the boards that were replacing those onto the dock, and my figures, which I have
turned in to your Building Department, showed that we have 31.17% of the dock, which is
under the required 75% of the dock. I came in. I brought in the pieces that still need to go on,
and said, this is what has to be returned to it. We have no steps. We don’t have a bracing on
there. You cannot put it on. We are not accepting your figures because we don’t use cubics for
wood. We use squares. My argument is wood is not done in squares. Wood is done in three
figures. You cannot go in and buy wood at two figures. You have to buy it at three, and, on top
of that, being a teacher, we teach our students in that high school, as you were speaking of
earlier, we teach them that surface area only is done in squares, not for the whole dock. You
would be dealing with the volume of the wood. The figures are done in that. I have the figures
to show that we are at 68.83% of replaced of the wood, and under the 75 which means that we
are not required to have had the permit, which we were originally told, from your own
Building Department.
MR. STONE-If I may ask a question, what did you tell the Building Department that you were
going to do?
MRS. SALVO-I think my husband should speak, because he was on the phone at that time.
MR. STONE-Okay.
TOM SALVO
MR. SALVO-I’m Tom Salvo. Same, 10 Apple Tree Lane, Clifton Park, and when I called, the
gentleman asked what parts I’m going to replace. I told him that all the top slats had to be
repaired, and he asked if the side beams had to be replaced. I said, well, yes, they had to also.
That was preventing the top from sticking down. There was nothing to nail into, and he pretty
much told me if we leave the existing poles that are in the bed of the lake, that would be fine.
That would fall under the building requirement.
MR. STONE-Okay. Mr. Brown, would you like to respond to? It’s your position that is being
appealed.
MR. BROWN-Sure. I believe the conversations that the applicants had (lost words) with Dave
Hatin, the Director of Building and Codes Department. So I don’t know the details about what
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(Queensbury ZBA meeting 10/15/03)
was discussed and what wasn’t. That’s not the conversation I had with Dave when I asked him
about the conversation was, but I don’t want to, I mean (lost words) I’m not going to get into
third party information.
MR. STONE-Okay, and it’s your contention, after physically observing the dock, I assume, that
a building permit was needed?
MR. BROWN-Absolutely.
MR. STONE-And you visually looked at it before you made this determination?
MR. BROWN-I looked at some photographs. That’s correct.
MR. STONE-Okay. Some visual.
MR. MC NULTY-Mr. Chairman, a couple of comments. One, I can understand your
frustrations. (lost words) different answers from different people at different times. (Lost
words) The other thing is the definition of (lost words) and Section 179-2-10, Dock Repair,
normal maintenance or replacement of up to 75% of the total dock area. It doesn’t say dock (lost
word). So it would seem logical to look at a dock and say, hey, the dock’s got pilings and posts
and everything else. The definition, nevertheless, says area. It doesn’t say volume.
MR. ABBATE-Good evening. How are you? Let me preface my remarks by saying that I’m
going to approach this factually. So it’s going to be impersonal. It has nothing to do with you
on a personal basis, but I believe once you answer these questions that I think are factual
questions, perhaps it will give me a better feel of the whole thing. So I can do one of two things.
I can go through all of my questions first, and then go back and have you answer them, or I can
just state my comments and wait until the end, or you can answer them at the present time.
Whatever you feel most comfortable with. First of all, I’d like to know, are you the property
owner?
MRS. SALVO-I have property ownership with my father and my sister.
MR. ABBATE-Okay. So you’re the property owner.
MRS. SALVO-Well, my father is here.
MR. ABBATE-Okay. All right, sir, nice to see you this evening.
MR. BROWN-Mr. Abbate, are you talking about the property where the dock is located, or the
neighboring property?
MR. ABBATE-I’m talking about where the dock is located.
MRS. SALVO-No, then we are not. We have boating and usage rights of that property.
MS. RADNER-But they’re deeded rights?
MRS. SALVO-Yes, they are.
MR. ABBATE-Did you take any action to alter the dock in question? Did you do anything at all
to it?
MRS. SALVO-In size or width? No, we did not.
MR. ABBATE-You made no modifications to it?
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(Queensbury ZBA meeting 10/15/03)
MRS. SALVO-We put new boards on, but we did not change the size or the shape of the
structure.
MR. ABBATE-And you indicated both you and your husband had some sort of liaison with the
folks from Town Hall?
MRS. SALVO-Yes.
MR. ABBATE-Okay. The dock that we’re currently referring to, is it on your property?
MRS. SALVO-If you’re talking about on my personal property, it’s deeded usage.
MR. ABBATE-Is it on the property where your building is located, your residence is located?
MRS. SALVO-No, it’s not. There is no boating on that property.
MR. ABBATE-And I’m going to assume, then, that you have some sort of documentation, some
sort of correspondence, something to indicate to us that the current property owner where your
dock is currently located has given you permission, authority to do this?
MRS. SALVO-To do repair on the dock?
MR. ABBATE-No, for the dock to even be there.
MRS. SALVO-The dock has been there for in excess of 20 years.
MR. ABBATE-Do you have some sort of documentation?
MRS. SALVO-To show that it’s been there for over 20 years?
MR. ABBATE-Okay. Let me start this way. The dock that we’re talking about is not on your
property.
MRS. SALVO-Right. It’s on (lost words) property.
MR. ABBATE-The dock that we’re talking about is on someone else’s property.
MRS. SALVO-Right.
MR. ABBATE-Okay. The person who owns that property, that is not your property, do you
have any kind of documentation which grants you authority, not only to have a dock on that
person’s property, but to make appropriate repairs?
MRS. SALVO-No. The dock has been there, as I say, longer than the time that he owned the
property.
MR. ABBATE-So you don’t have any documentation?
MRS. SALVO-No.
MR. ABBATE-Okay. Let me go to the next one, if you don’t mind, then. Have you had any
discussions with the current owner of the property in which your dock is located? Has there
been any kind of communication?
MRS. SALVO-Since the repair?
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(Queensbury ZBA meeting 10/15/03)
MR. ABBATE-No. Have you communicated with the person that owns the property where
your dock is located? Have you conducted any kind of liaison, had any kind of communication,
verbal, telephone, correspondence documentation?
MRS. SALVO-That’s what I’m asking, since the repair or prior to the repair?
MR. ABBATE-Prior and since the repair.
MRS. SALVO-The day of the repair, he is the person who had started harassing us on the
repair. Prior to the repair, yes, there was a lot of communication that he was familiar (lost
words) there were some problems with my son, I guess, but he was very familiar with my
house.
MR. ABBATE-I’m not interested in that. Now, having my questions, this is going to be my
position, okay, as far as the (lost words) concerned. It’s my position, based upon the
information that you gave me, that this is a civil matter, and we have no jurisdiction on it, the
Zoning Board of Appeals. Thank you.
MRS. SALVO-But my question is, this business of tearing it down because we don’t have a
permit.
MR. ABBATE-This is a civil matter.
MRS. SALVO-So we don’t have to cease the work? I mean, I’ve been told to cease the work.
MR. ABBATE-I don’t speak for the Board.
MR. STONE-I mean, you need a permit, you have to get a permit, and assuming you have
permission from the property owner to do anything to this dock, and that we don’ t know, you
probably need a side setback variance. Is that correct, Mr. Brown, as you understand it?
MR. BROWN-That’s the way it appears.
MR. STONE-That’s the way it appears. We have no survey. We have nothing to show where
this dock is, was, how close it is to the next property line.
MRS. SALVO-But we have less than the 75% built on the dock. So the permit should not have
been required, which is was, as stated from the beginning.
MR. STONE-Okay. That’s your position. So, Mr. Brown has stated in his opinion, as the
Zoning Administrator, that that required a building permit and possibly a variance. That’s
what you’re appealing.
MRS. SALVO-Right. We needed a building permit.
MR. STONE-All right. We heard your story. Let me just poll the Board, in terms of whether or
not we should uphold the Zoning Administrator.
MR. HAYES-Craig, Chuck brought up an interesting point about the actual Code itself. Is that
how you made your determination was because of the area? I mean, when you say 75%
replacement, obviously that’s a (lost word) number.
MR. BROWN-Yes. We had the discussion when the Salvo’s came in. Typically, when we issue
a building permit, it’s based on the square foot, the square footage of the structure. If you get a
building permit, it’s for a 2,000 square foot house, not for a 25,000 (lost word) square foot house.
It’s the square footage of the house. I think there is some merit in the volume calculation, when
you determine how much of the dock was repaired, replaced. You have to consider the entire
dock, and I’ll give you the example of a crib dock. If you’ve got a dock with several cribs, and
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(Queensbury ZBA meeting 10/15/03)
you only repaired the top decking, I don’t think you’re approaching, even though it’s the entire
square footage of the dock, I don’t think you’ve gotten to that 75% the volume, I think there’s
some merit to that, and I was kind of on the fence when I talked to them about it. I think there’s
some merit there. My position is, the definitions, dock repair and dock replacement, they’re in
there to determine whether a dock can be considered as a pre-existing use, where, basically, you
draw the line for the need for a variance, what can you maintain, what can you repair. There’s
no, these definitions aren’t there to say what needs a permit and what doesn’t need a permit. So
regardless of the 75% and 25%, if you do 10% of repair on the dock and it’s structural, you need
a building permit for it. It gets into the details of the work and not so much the volume, when
you’re talking about the need for a permit. In this case, construction work was done, structural
construction work was done, which requires a building permit.
MR. ABBATE-Question of Town Counsel. Okay. Here’s my question. Can we rule on this
application when it is obvious that the testimony this evening has made it quite clear that the
dock in question is on someone else’s property? In other words, can we approve a modification
of this dock on someone else’s property?
MR. STONE-We’re not approving an application to the dock.
MR. ABBATE-Can we address the issue?
MS. RADNER-Yes. I think you can address the issue, because of the fact that your Zoning
Ordinance specifically says that an aggrieved person has the right to (lost words) a
determination of the Zoning Board of Appeals, and because Mrs. Salvo owns the dock itself,
she’s clearly an aggrieved person within that definition. (Lost words) can you open it and make
a decision of ownership of that dock or the right to have it, whether or not (lost words) access
rights (lost words), no, that’s for another court, but you can decide whether or not (lost words)
determination is correct and (lost words).
MR. ABBATE-Thank you very much.
MR. BRYANT-Mr. Chairman, before you go on, something you just said about some of the
work being structural, my understanding from the testimony and what I read, that it was (lost
words). It was not the pilasters. It wasn’t anything else.
MR. BROWN-It wasn’t just the surface of the dock, no. I don’t think you had the photos in your
application, but, yes, it’s the.
MRS. SALVO-I have some if you would like to see them.
MR. STONE-Go ahead, Craig, answer.
MR. BROWN-I guess the structural portion of it, or what would be (lost words) the house
construction would be the floor joists. I don’t know if I should be calling the dock construction
(lost words) that’s my understanding.
MR. BRYANT-So is that considered structural in the definition?
MRS. SALVO-He’s talking about the four sides. He’s talking, can I show the pictures?
MR. BROWN-There is a public hearing scheduled, too. So
MR. STONE-On appeals?
MS. RADNER-Yes.
MR. STONE-Okay.
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(Queensbury ZBA meeting 10/15/03)
MRS. SALVO-These four sides were replaced.
MR. BRYANT-You don’t have any boards running, that hold up the (lost words)?
MRS. SALVO-They need to put those back. You can see them here. We’ve been stopped by the
Building Department.
MR. BRYANT-Okay. That’s what he’s talking about I think.
MRS. SALVO-That’s existing. We’re not putting new ones in, the existing, and the stairs. You
can see. We’ve been stopped from completing our work. The replacement he’s talking about is
right here.
MR. BRYANT-You’re talking about the beams that support the flooring, okay.
MRS. SALVO-That’s here. That’s existing.
MR. BRYANT-Okay, and that (lost words) the entire perimeter. Okay. I understand.
MRS. SALVO-He’s talking about the floor boards here.
MR. HAYES-Those are being replaced or not?
MRS. SALVO-They were replaced, the four outside boards, not the pieces going into the water,
not the stairs. We’re still waiting, you can see the indentation is waiting there, not the brace in
here. That’s all existing.
MR. STONE-But you intended to replace them?
MRS. SALVO-No, those are existing. We haven’t been allowed to put them back on.
MR. STONE-Not put them back on, as they were before.
MRS. SALVO-We had to stop, we were told, we did. We did stop. It’s actually not in a good
situation.
MR. STONE-You took the steps off. You want to put the same steps on.
MRS. SALVO-The steps are back. We brought them in and showed them that these are the
steps that are going on. He didn’t have time to go out and see them. They’re still sitting there.
They are existing.
MR. BRYANT-Let me just understand this, okay. You replaced this whole frame, plus all the
top pieces. That’s like 99% of the dock.
MRS. SALVO-No, it’s not.
MR. BRYANT-What else is left but the six sticks that hold it up?
MRS. SALVO-You have the stairs. You have the bracings.
MR. BRYANT-Yes, but the bracing you’re talking about two by fours that run along, I mean,
you’re not talking about a lot. Just from a visual perspective, I mean, it’s a good portion of the
dock.
MRS. SALVO-It still ends up being, mathematically, 68%.
MR. STONE-Most of that volume is air, though.
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(Queensbury ZBA meeting 10/15/03)
MRS. SALVO-No, we are talking about just the volume of the wood. Strictly wood. Did you
receive my mathematical figures on that?
MR. STONE-I’ve got them here somewhere.
MRS. SALVO-I could give you another copy.
MR. STONE-No. I just want to bring up a point. I need comment from both the lawyer and Mr.
Brown. The Code appears to be somewhat confusing to me. Under Definitions, Dock Repair,
normal maintenance or replacement of up to 75% of the total deck area, dock replacement,
replacement of a dock to an extent greater than 75%. I agree with that. Okay, but under C, 179-
5050, C3, a permit is not required for repairs to an existing dock, if such repairs do not alter its
size, shape or location. It seems to me, we have confusion.
MR. BROWN-That section you just referenced says a permit is not required for repairs. Well,
that falls in a repair definition, not a replacement definition.
MR. STONE-Okay. So you’re saying it is repairs. You’re allowed to do it but not if it’s over
75%. So we’re still dealing with 75%.
MR. BROWN-Yes, and without getting too far into the 75%, 25%, regardless of the amount of
the structural work done, a building permit is required. There’s no part of the Ordinance which
says if you only do this percentage of your dock as replacement, you don’t need a permit.
That’s not part of the (lost word).
MR. STONE-I’m not sure how you get that, Craig. It says a permit is not required for repairs.
MR. BROWN-For repairs, right.
MR. STONE-You’re saying repair doesn’t come into play because in your judgment it’s over
75%.
MR. BROWN-Replacement.
MR. STONE-Okay. That’s a reasonable interpretation.
MR. ABBATE-Did you change the size, shape or the location of the lot?
MRS. SALVO-No.
MR. ABBATE-You did not. Now, Mr. Chairman, she did not change the size, the shape or the
location of the lot.
MR. STONE-No, but the judgment, as explained, is the 75% is the determining factor, whether
it’s a repair or a replacement. If it’s a repair, you don’t need a permit. If it’s a replacement, you
do.
MR. URRICO-I thought I heard Craig say that 75% (lost words).
MRS. SALVO-But somewhere in the situation where they gave us approval, and they took it
back using the 75.
MR. STONE-You had a comment, from a staff member, based upon the information that you
provided over the phone. Hearsay in a sense.
MS. RADNER-Even if you have a repair, an approval, and it turned out that the approval was
given in error, (lost words) to revoke an approval.
23
(Queensbury ZBA meeting 10/15/03)
MR. UNDERWOOD-May I ask a question of the applicant. Have you owned the property
there, that’s your own personal property?
MRS. SALVO-The camp, my parents have owned it since 1977.
MR. UNDERWOOD-And I would assume that since 1977 (lost words).
MRS. SALVO-It was after that, but it was over 20 years ago.
MR. STONE-The question before us, Jim, is the determination by the Zoning Administrator that
this is replacement rather than repair. We’re not arguing that it’s been there for 25, 30, 50 years.
Is it a replacement or is it a repair. That’s really what we’re looking at.
MR. UNDERWOOD-I would ask Craig, then, given the fact that numerous crib filled docks
have (lost words) some get trashed by the ice in the springtime, when things change over, I
would imagine that over the years a significant number of docks have been improved, you
know, (lost words). To me it would be, I agree where you’re coming from, and I would support
the fact that you probably did need a building permit for this, but due to the fact that they were
told that what they were doing was basically a reconstruction of what was there on site, it
appears to me that this dock, the upright posts are in exactly the same place they’ve always
been. It seems to me that probably as they replaced the boards in the dock, the existing (lost
words), it’s a little bit of micromanagement if you’re going to manage every dock in the world,
throughout the community, and the Salvo’s were asking (lost words). I don’t think that they
were trying to build a crib dock or expand what was there. I think that we can be reasonable at
the same time. I think that there’s points where we have to be picqun, so to speak, and point
fingers at people who were doing things illegally, but in this case, I would think that, you know,
speaking as a lakefront property owner, if a board fell off my dock, I doubt I would go to the
Town to ask permission to fix it or replace some decking that had worn out. I think the vast
majority of property owners on the lake probably haven’t come in to the Town to improve their
docks.
MR. STONE-Okay. Again, I think we have identified the decision that was made, that it’s a
replacement rather than a repair. I’m told we have to have a public hearing. I really would like
to have a public hearing, because there may be someone who wishes to speak directly on the
subject. So let me open the public hearing. Anybody wishing to speak in defense of the Zoning
Administrator’s decision, determination?
MR. BROWN-It’s always confusing when you.
MR. STONE-I know.
MR. BROWN-What I would say is anybody in favor of the appellant’s position. Anybody in
favor of the Zoning Administrator’s decision.
MR. STONE-Okay.
MR. BROWN-It might be clearer for people in the public.
MR. STONE-Okay. Anybody in favor of the appellant’s position that the Zoning
Administrator’s decision, determination is wrong?
PUBLIC HEARING OPENED
BILL ANDREWS
MR. ANDREWS-My name is Bill Andrews. I’m the original owner of the property my daughter
now has. The answer to your question, the deeds that we all received when we purchased the
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(Queensbury ZBA meeting 10/15/03)
property states that we have boating rights on the beach. When I bought the property, I
requested of the owner at that time of the beach lot, if we could build a dock. He said no at that
point. Things changed later, shortly after his wife died. The dock that was visually on the
border of the property to the north was moved, and that was owned by Mr. Merritt, William
Merritt. He moved his dock. That was in 1982. When he moved his dock, I did request
whether I could build a dock or not. I did not get an answer. So I went ahead and built the
dock. I built it according to the State requirements. I called the State Department, and they
gave me the exact dimensions I could build the dock in.
MR. STONE-Sir, I don’t want to interrupt you, but you’re not addressing the issues that we’re
trying to talk about here. The Zoning Administrator’s determination. That’s the only issue on
the table.
MR. ANDREWS-All right. The issue is whether we’re replacing or repairing. The dock was
built in 1982. It was built according to what your Department stated I should do. That was put
in raw wood, which would last. I was told it would turn to steel. That was true, up to a point.
That point came about two years ago where it started to disintegrate. I’m 76 years old. I cannot
replace my own dock. I talked to my grandson about it, because my grandson was staying at
my cottage. He said, he calls me poppy, poppy, I will replace it just as soon as I can.
MR. STONE-Sir, may I, be careful of the words you use.
MR. ANDREWS-I used the wrong word.
MR. STONE-Be careful of the words.
MR. ANDREWS-He said I will take and replace the bad boards.
MR. STONE-That’s better.
MR. ANDREWS-I shouldn’t have said replacement. You’re right.
MRS. SALVO-He may have talked about replacement. We made the call first, to find out what
we can do.
MR. STONE-I’m sorry, Mrs. Salvo, this is a public hearing.
MR. ANDREWS-He was going to take care of the bad boards for me.
MR. STONE-Okay. Which is essentially what he did. If you take a look at the boards that we’re
taking off, they were bad, and somebody was going to get hurt.
MR. STONE-Okay. In your judgment, this was repair rather than replacement?
MR. ANDREWS-100% repair.
MR. STONE-That’s the only question on the table. Thank you.
MR. ANDREWS-You’re welcome. Anybody else wishing to speak on that same position?
Anybody opposite that? Anybody that says the Zoning Administrator’s decision is correct?
STEVE MILLER
MR. MILLER-Good evening, council members. Thanks. I’m Steve Miller, the property owner,
and I would just like to say that I witnessed most of this construction, and what I saw was
basically constructing a dock. It was not repair. As you can see in the pictures, it was replaced.
Even the vertical sticks in the, that go down into the water, and I would just like to read this
into the record. This, for the record, as a property owner, I had no knowledge that a dock was
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(Queensbury ZBA meeting 10/15/03)
going to be built on my property and did not give permission for such an activity. The dock
was built at the wishes of Mrs. Salvo, not myself. At the time of construction, the old dock was
entirely removed and a new dock was constructed. Referencing Code Compliance Officer
Bruce Frank’s letter, dated August 5, 2003, the construction of the dock requires a building
permit that required an Area Variance. A variance is required because the new dock does not
conform to today’s 20 foot setback requirement. I have a survey map right here I can show after
I read this. In addition, the new dock violates the number of docks per shoreline requirement.
At the time the dock was constructed, there was already an existing dock on the property.
There are actually two docks. So when the first dock was removed, there was a dock on the
property. It required at least 65 feet to have two docks on one lot. This lot’s only about 50 feet.
I do not want the dock on my property. I am not in favor of a variance for the setback
requirement or for the number of docks per shoreline requirement. I request that the dock be
removed from my property as soon as possible, or within the next two weeks, and I have a
survey map of the lot, which shows, is it okay if I come up?
MR. STONE-Sure.
MR. HAYES-Does this have to do with replacement or repair?
MR. STONE-In your judgment it’s replacement.
MR. MILLER-It’s replacement.
MR. STONE-And you didn’t give permission for that.
MR. MILLER-No, I was never consulted.
MR. STONE-Let me ask Counsel. If Mr. Miller’s saying he doesn’t give permission, should we
even be here?
MS. RADNER-That’s a decision for a court to make. You’re here for (lost words) only. You
agree with Craig’s determination, or is his determination wrong, and it’s up to them to fight it
out in court (lost words).
MR. BRYANT-May I ask Mr. Miller a question?
MR. STONE-Sure.
MR. BRYANT-How long have you owned that property?
MR. MILLER-About eight years.
MR. BRYANT-Eight years. The dock has always been there.
MR. MILLER-Yes.
MR. BRYANT-Is there a mention in your deed relative to that dock?
MR. MILLER-No, there is not. They have a right for boating, bathing, and recreation. There is
no deeded right for a dock for boat storage, for anything of that nature.
MR. STONE-Okay.
MR. MILLER-But just to repeat myself, I’m sorry if I am, I do agree with Staff’s, it is a re-build.
It is not a repair. It does require variances for setback and for too many docks on a lot.
MR. STONE-Yes, well, that’s an issue for next, after we make a determination. Okay. Anybody
else wishing to speak?
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(Queensbury ZBA meeting 10/15/03)
MR. MILLER-Thank you.
MR. STONE-From the public, on this subject? Any correspondence?
MR. MC NULTY-No correspondence.
MR. STONE-Let me close the public hearing.
PUBLIC HEARING CLOSED
MR. STONE-We have a very simple question on the table. Do we concur with the Zoning
Administrator’s determination that this was a replacement, and therefore needed a building
permit and possible variance, or do we agree with the applicant that this was, in fact, only a
repair and going to be of the same size and shape and did not require a building permit. Let’s
talk about it. I don’t know if there’s anything you want to add to this subject.
MRS. SALVO-Well, I will add that we have gone around the lake to find out why we are in this
position, and we have taken some pictures of 17 other camps that have removable docks, which
means within the rules of 75% or more because their whole dock is being put on every year, and
would be in this situation, and/or replacement of docks much more than we’re dealing with
with no building permits. So we’re sitting here questioning is this 75%. I have figures to show
that it’s under 75%, and yet.
MR. STONE-And you have presented those.
MRS. SALVO-And yet there’s, you know, there’s nothing around the area that would show us
that we have even done what most of the other camps have done.
MR. STONE-Thank you. Let’s talk about it. Jim, let’s start with you.
MR. UNDERWOOD-As I mentioned before, I think it’s reasonable to assume that any
waterfront property who owns a dock occasionally is going to have to repair their dock or
replace their dock, and it would seem that, in this instance here, the repairs on the dock were
intended to make the dock a safer dock that it’s 20 year old age would have basically come
down to. I guess I would have to support Craig’s admission that it’s a replacement because,
you know, a substantial amount of the dock was replaced, but at the same time, I think that we
have to be reasonable. When you come back to us, which I assume you will at some point in
time, that what you did replace on the dock was more than the 75%. I would have to guess that,
you know, having done all the decking and the side boards and leaving only the upright posts
there, I would find it hard to believe that those posts would account for 25% of the total surface
area of that dock. So, I guess I would support Craig.
MR. STONE-Chuck?
MR. ABBATE-Thank you. Let me just read you something I have down here. It deals with
perception. It says an awareness or understanding of the circumstances of any event is what
we, as humans, use to distinguish what we believe to be factual. Sometimes that gets us into a
lot of trouble. I could use the rule of law and say, I support the Zoning Administrator’s
determination, or I could circumvent the rule of law, and say, based on the circumstances you
have presented this evening, I think maybe you may have gotten a raw deal, but I can’t
circumvent the rule of law, and as such, I have to support the decision of the Zoning
Administrator.
MR. STONE-Allan?
MR. BRYANT-I think the basis of your argument is the calculation, in percentage, to determine
whether or not it’s a repair or replacement issue. From the standpoint, frankly, reading your
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(Queensbury ZBA meeting 10/15/03)
letters and all your documentation, I came into the hearing sympathetic with this, but I’ve seen
those pictures, and from a perspective standpoint, it appears that it is more than 75%. As far as
you referring to make calculations based on cubic inches and what have you, we had an issue
earlier relative to the floor area ratio, and imagine how complicated would be when you start to
figure out what the cubic inches of the concrete and the thickness of the windows and so forth
and so on. Building as a standard, blueprints are two dimensional, and the end product is three
dimensional, but all buildings standards are two dimensional. So, I’m going to have to go along
with the Zoning Administrator.
MR. STONE-Roy?
MR. URRICO-Yes. I have no doubt there were some misunderstandings along the way here,
maybe some miscommunication, and maybe even some bad communication, but I think in the
end the important thing is to get it right. I think that’s what the Zoning Administrator is trying
to do, and I look at all the evidence and testimony, and I still feel he made the right
determination. That’s where I stand on that.
MR. STONE-Jaime?
MR. HAYES-I think in this particular circumstance, I’d have to agree with Allan in particular,
they say that a picture says 1,000 words. I listened carefully to your mathematical arguments,
and I think myself and the rest of the Board certainly thought that they did have some merit,
but as I looked at those photographs, my impression was that that was a replacement. I mean,
what was there was not a little bit of the new and a lot of the old, it was pretty much the new,
and Craig pointed out, which I also thought was compelling, in that sometimes the structural
elements of a project have a greater weight in the scrutiny, as far as the Building Department is
concerned, I think that that’s logical, based on safety and other type of things, that their criteria
is that the structural elements are being replaced and it really needs a building permit, I think
that that does make sense. So I’m going to agree with Mr. Brown’s determination.
MR. STONE-Chuck?
MR. MC NULTY-Well, I wish I could disagree with the other members of the Board, because I
sympathize with you, but, if you look at the definition of dock repair and you look at the
surface area, I think that you’re replacing more than 75%. I think also, as Mr. Hayes has pointed
out, (lost words) looking through the Code, the emphasis on building permit seems (lost words)
structural elements involved (lost words). Given those two things, I think I’d have to agree
with the Zoning Administrator at this point and say that a building permit is required.
MR. STONE-I certainly agree with the Board. Any time we have an appeal, and we’ve done a
number of them, the third one this year, by number, we get a lot of rhetoric, and yet it’s a very
simple issue we’re talking about. Is the Zoning Administrator correct in his determination or is
he not correct in his determination, and everything else aside, the argument that he made, to
make a determination (lost words), under our Code is a replacement, not a repair, and he made
that determination, the correct application of that determination is that a building permit and
the possibility of a zoning variance, may be necessary. A building permit certainly is necessary.
The variance application may be necessary. I think it’s a very simple issue, and I, too, was
swayed by looking at the pictures. This is a straight dock. This is not a huge crib dock with all
kinds of underpinnings. It’s not a bunch of stakes going down to which are attached (lost
words) members, and some planking, and (lost words), in my judgment, more than 75% was
replaced, therefore it becomes a replacement . Therefore, I need a motion to, I probably could
make it. Why not.
MOTION TO UPHOLD THE ZONING ADMINISTRATOR’S DETERMINATION,
Introduced by Lewis Stone, seconded by Paul Hayes:
The determination by the Zoning Administrator regarding the requirement of a building permit
for the construction of a dock by Susan Salvo be upheld.
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(Queensbury ZBA meeting 10/15/03)
Seconded by Mr. Hayes.
Duly adopted this 15 day of October, 2003, by the following vote:
th
AYES: Mr. Urrico, Mr. Bryant, Mr. Abbate, Mr. Underwood, Mr. McNulty, Mr. Hayes, Mr.
Stone
NOES: NONE
MR. STONE-That’s it.
NEW BUSINESS:
AREA VARIANCE NO. 84-2003 SEQRA TYPE: UNLISTED NIGRO COMPANIES
AGENT: JONATHAN C. LAPPER, ESQ. & CURT SCHWARZ OWNER: NIGRO
COMPANIES ZONING: HC-MOD LOCATION: GLEN SQUARE PLAZA, GLEN ST.
APPLICANT PROPOSES CONSTRUCTION OF A 20,000 SF OUTDOOR DISPLAY YARD
ASSOCIATED WITH A TRACTOR SUPPLY STORE IN THE GLEN SQUARE PLAZA
WHERE THE FORMER ECKERD STORE ONCE WAS LOCATED. CONSTRUCTION OF
THE DISPLAY AREA APPLICANT PROPOSES AN OUTDOOR SALES AREA AND SEEKS
RELIEF FROM THE PARKING REQUIREMENTS. CROSS REFERENCE: SPR 47-2003
WARREN COUNTY PLANNING 10/8/03 TAX MAP NO. 302.06-1-25, 26, 24, 22, 23 LOT
SIZE: 6.33 ACRES SECTION: 179-4-40
JON LAPPER, REPRESENTING APPLICANT, PRESENT
STAFF INPUT
Notes from Staff, Area Variance No. 84-2003, Nigro Companies, Meeting Date: October 15, 2003
“Project Location: Glen Square Plaza, Glen St. Description of Proposed Project: Applicant
proposes construction of a 20,000 sf outdoor display yard associated with a Tractor Supply
store. Relief Required: Applicant requests relief from the Parking and Loading Requirements
§179-4-40. Specifically, the applicant proposes the removal of 40 parking spaces in favor of the
new 20,000 sf display area. The display area is considered to be a part of the retail use and
additional parking must be allocated for the expansion. 100 parking spaces are required for the
addition. The exact number of parking spaces to be provided on site has not yet been provided
by the applicant; therefore, an exact amount of relief cannot be determined.
Parcel History (construction/site plan/variance, etc.):
Several tenant changes and signage
permits have been issued for these properties. Site Plan Review 16-94 offered several
improvements to the site, specifically, the plaza parcel fronting Route 9. This application
includes several parcels on which the parking needs and locations of spaces are dependant.
Staff comments:
It appears as though the proposed “re-striping plan” allows for 587 parking spaces while 675
are required. Based on this re-striping plan, approximately 200 of the planned spaces to be
utilized by the plaza appear to be within a Niagara Mohawk right of way. Is there an
agreement with NiMo regarding the use of the right of way for parking purposes? The
Planning Board will review this project as a Site Plan Review matter.”
MR. MC NULTY-“Warren County Planning Board Project Review and Referral Form October
8, 2003 Project Name: Nigro Companies Owner: Nigro Companies ID Number: QBY-03-AV-
84 County Project#: Oct03-32 Current Zoning: HC-Mod Community: Queensbury Project
Description: Applicant proposes construction of a 20,000 sq. ft. outdoor display yard associated
with a Tractor Supply store in the Glen Square Plaza where the former Eckerd Store once was
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(Queensbury ZBA meeting 10/15/03)
located. Construction of the display area Applicant proposes an outdoor sales area and seeks
relief from the parking requirements. Site Location: Glen Square Plaza, Glen Street Tax Map
Number(s): 302.06-1-25, 26, 24 Staff Notes: Area Variance: The applicant proposes to utilize
20,000 sq. ft. of paved area for display of products sold by Tractor Supply Co. The area for
display will be located at the west side of the building. The space would require 140 parking
spaces where the applicant will be removing 40 existing parking spaces on the site. The site
with buildings requires 675 spaces where the applicant proposes 587. Staff encourages the
utilization of existing buildings and to accommodate uses within existing site if space allows
safety and convenience of the customer. Staff recommends approval. County Planning Board
Recommendation: The Planning Board recommends Approval encouraging the utilization of
existing site if space allows safety and convenience of the customer. Staff recommends
approval.” Signed by Bennet F. Driscoll, Warren County Planning Board 10/10/03.
MR. STONE-Mr. Lapper?
MR. LAPPER-Before we get started, I would ask Chuck to read my cover letter into the record.
I think it pretty much lays out the case.
MR. STONE-September 15?
th
MR. LAPPER-Yes.
MR. MC NULTY-Okay. This is a letter dated September 15 to Chairman Stone, signed by
th
Jonathan Lapper. It says, “On behalf of Nigro Companies, I am hereby submitting this request
for an area variance with regard to the proposed placement of Tractor Supply Co. in the Glen
Square Plaza. The applicant is proposing to have Tractor Supply Co lease the currently vacant
area of the plaza that was once leased by Eckerd Drugs. Tractor Supply Co., is one of the largest
suppliers of basic maintenance products to farm, ranch and rural customers. As part of this
application, we are including an outline of the categories of merchandise that will be sold at this
store. Tractor Supply Co will lease 20,000 square feet of interior selling space and 20,000 square
feet of fenced in outside space. However, the proposed placement of this outdoor area is on top
of the currently maintained side parking lot of the plaza. The fenced in area will consume 40 of
the plaza’s existing parking spaces. Due to the fact that at this time the plaza has the exact
amount of parking spaces that are required under the code, an area variance will be required for
relief under the parking requirements. Based upon our meeting and discussions with the Town
Zoning Administrator, the outdoor sales area is subject to the parking requirements; therefore it
requires 100 additional spaces. (20,000 x 5/1000). Therefore, 140 new spaces would be required.
However, because the Town’s regulations have changed since the site plan was approved, the
parking lot can be re-striped to the new 9’ x 18’ parking stall size. This increases the number of
spaces by 52, resulting in a variance request for 88 fewer spaces than required (140-52). Tractor
Supply Co. is not a large parking generator. We have included documentation of its typical per
hour parking demand which is a maximum of 50 cars and we are proposing to provide 112
spaces (200 required-88). Nigro Companies is confident that the plaza will have more than
sufficient parking if variance is granted. Please place this matter on the Zoning Board’s October
agenda. Together with this application we have also enclosed the application fee and the
survey map depicting the parking lot re-striping plan. Please contact me or my associate
Stefanie DiLallo Bitter if anything further is needed. Sincerely, Jonathan C. Lapper”
MR. LAPPER-Thank you. Good evening. For the record, Jon Lapper, Stefanie Bitter, and Steve
Power, Vice President of Nigro Companies. This is an important project for Nigro Companies.
We were here in ’94 doing the re-development of the Plaza. You’ll remember there used to be
the Carvel store out there, where there’s now Taco Bell. We re-did the bank. We re-did the
video store. We did a lot of landscaping and we integrated those parcels with the Plaza for
parking and access for the drive-thru of the Taco Bell, and it all works pretty well. However,
when we went through the shakedown in the drugstore chain, Eckerd’s been vacant for two
years, and this is a very important lease for this Plaza to fill it up. Even though Tractor Supply
Company is taking a lot of space, 40,000 square feet, they sell a lot of big items. So it doesn’t
have the same demand of customers and it doesn’t have the same parking demand, and we
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(Queensbury ZBA meeting 10/15/03)
tried to document that by getting correspondence from them. If Nigro Companies thought that
they were going to be jamming the Plaza and there wasn’t going to be enough room for
parking, they’d be creating problems for all their tenants, and that’s not the case here. As I
pointed out in the cover letter, the Town policy is never to require more parking than you
actually need. We re-calculated the re-striping to show that we could come a lot closer and ask
for less of a variance, but, I mean, in general, we don’t even think that we need the 112 spaces
because it’s just not that big a generator. In the Staff notes, Craig Brown asked about NiMo, and
that’s an important point. We submitted to the Town, we just got the Staff notes two days ago,
and we immediately got a copy of the NiMo lease agreement which has been in place for years.
So that, even though NiMo actually owns the land where a lot of the parking is, it’s under a
lease agreement that continues forever, unless, it renews annually is the right answer, but that’s
how the Plaza was approved, and it’s always been that way. So a lot of the spaces where that
dotted line are are actually within the NiMo right of way, but they have an agreement with
NiMo and that’s been submitted to the Planning Department. So we’re just asking you to
recognize the fact that the spaces are needed, that this is a national tenant that they sell a
combination of the kind of stuff that you get at like Falls Farm and Garden Store as well as stuff
that some of the garden part of the big box home improvement warehouses, and clothing and
other stuff as well. So, it’s something that would probably do very well in the community. It
would bring in a national tenant to finish out the Plaza, and we don’t feel that we’re creating a
traffic or a parking problem.
MR. ABBATE-Counselor, a question. Any reason why we didn’t get a copy of that letter, that
you sent to the Planning Board?
MR. LAPPER-Planning Department.
MR. STONE-Planning Department. We got it today.
MR. LAPPER-Yes. Stefanie sent it in yesterday when we saw the notes.
MR. BRYANT-Question about the parking. Do the businesses in the front of your property
draw any of that parking space? Probably Taco Bell and all that (lost words) too far out. What
about the video store?
MR. LAPPER-If you look at the map, this is Taco Bell. This is the bank, and this is the video
store. The area that we’re talking about where we’re removing the spaces is back here, and
these were virtually never used, even when Eckerd was there, and Eckerd would draw a lot
more people than a Tractor Supply Company, just because of the nature of the store. So it’s
really hidden around the back. So, I think that there were times, especially, you know, in the
last week, now that Long John Silvers is there, that some of the spaces right over here, right
behind Taco Bell, are probably used at various times of the day, especially lunch hour, but
nobody’s going to care, no one’s going to use any of the spaces over here, and in general, when
we look at shopping centers, and this is a 90,000 square foot shopping center, and it also has
Toys R Us which is an attached parking lot, and in general when you look at that, you look at
the shared parking concept that, the time of day that people are going to be coming to go to
Taco Bell is not the time of the day that’s the maximum for something like this kind of a use,
and that’s why it works.
MR. BRYANT-The Toys R Us lot is (lost words).
MR. LAPPER-Absolutely.
MR. ABBATE-But Taco Bell is on the extreme side.
MR. LAPPER-Yes.
MR. ABBATE-It’s almost a non-issue.
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(Queensbury ZBA meeting 10/15/03)
MR. LAPPER-Right, because people aren’t going to park here and walk to Taco Bell.
MR. STONE-We’ve got a new grocery store in there which is drawing a lot more traffic than the
Dollar Store or whatever else is there. Is that correct?
MR. LAPPER-Yes, but we comply with, I mean, in terms of the number of spaces on that part of
the Plaza is fully in compliance, and Tractor Supply is over on the end where it’s more remote.
I’ll let Steve address that, because they own lots of plazas all over the Capital District, and you
should talk about why you feel comfortable with the parking.
STEVE POWERS
MR. POWERS-Sure. Good evening. Steve Powers with Nigro Companies. We’ve had this
vacancy, as Jon said, for over two years. Actually it’s probably closer to over three years now
since Eckerd moved to Downtown Glens Falls. We’ve tried to get several different retailers in
there. We’ve had interest on, it’s a big space. So it was difficult to divide up because it’s so
deep. It’s 200 feet deep. We were fortunate enough to basically run across Tractor Supply.
They have over 460 stores now in about 30 states. They’re coming in to New York State in a big
way. There are about 15 stores in the State now, and they’re looking at quite a few more.
They’re going to Clifton Park, to Wilton, perhaps Glenmont, Catskill, pretty much all around
the Capital District area, and they really like Queensbury. They would like to be there. We
were fortunate enough to attract them, and I think the best part of what we’re looking for is
their fenced in area for their outside storage is in the back of the building, if you will, towards
Aviation Mall, well away from the road, well away from the visibility, and quite frankly, that’s
been a difficult process for us, that this stays far from the road, that it’s limited visibility.
MR. LAPPER-So other people wouldn’t like it, other tenants wouldn’t like it.
MR. POWERS-Yes. We’ve had several tenants that have said, well, that’s too far away from the
road. We want to have road frontage. We want to be right there, but Tractor Supply, this is of
interest to them. We do have an agreement with them, obviously pending municipal approval,
but I think that the, as Jon mentioned as well, the time of day or the time of the week of usage
for their best time is different from the food store. It’s different from Dollar Tree. It’s different a
very limited customer count in the building at any one time. I think they said at maximum
peak hour on a weekend is 50 customers.
MR. LAPPER-And we submitted that.
MR. POWERS-It’s very limited and not a parking intensive use that perhaps a bookstore, if we
were ever to attract somebody like that, or some other high intensity use would be different, but
we really think this fits well within this property.
MR. STONE-Can you, I know this is not site plan, and we’re not the Planning Board, but we are
citizens of Queensbury and we do have thoughts. Comment on Page Eight of your exhibit, (lost
words) is it going to look like that?
MR. POWERS-It’s a fenced in area for basically farm and ranch type enclosures, equipment. It’s
a farm and a rural gentleman farmer type store, I guess if you could call it that. They do sell
fence gates. They sell tractors, lawn tractors, lawn equipments, rakes, seasonal items.
MR. STONE-These telephone poles are for gentleman farmers?
MR. POWERS-I think those are fence posts, yes.
MR. LAPPER-It’s really very similar to what Lowe’s and Home Depot have in their outside
storage areas.
MR. STONE-I’m not sure that was a good comparison, Mr. Lapper.
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(Queensbury ZBA meeting 10/15/03)
MR. LAPPER-Well, let me put it this way. If they’re going to locate somewhere in Queensbury,
this is a pretty out of the way spot, behind the side of the building than a more visible
commercial location.
MR. STONE-I only suggest that, when you go to site plan review, that you be (lost words)
comments like this. It’s pretty severe looking, for the area that they propose to put it in, as far
as I’m concerned. If the Planning Board were going to ask for some shrubbery, it would not
surprise us, but we’ll look at that as a site plan issue.
MR. STONE-Okay. I understand.
MR. URRICO-I have a question. The Nigro property extends from basically Hollywood Video
to the Taco Bell? Does it include further up?
MR. LAPPER-They have a management agreement, so that they manage the Toys R Us building
and parking lot, but they don’t own it.
MR. URRICO-How will the striping be coordinated with the drive that sort of (lost words) out
onto Route 9?
MR. LAPPER-It does not include that. The drive would be north of what we show here.
MR. STONE-Where the traffic light is.
MR. LAPPER-Yes, it’s just north.
MR. URRICO-I guess I’m just a little concerned. I don’t know if this is our province, but that
parking lot traditionally has been tough to navigate, one of the tougher ones in the Town, in my
opinion, and I know some people enter from the rear on some of those establishments, even as
far down as the hot dog place, and I’m not sure how cars would find their way to that traffic
light. Even Taco Bell has signs.
MR. LAPPER-To show you that. The traffic light that you’re asking about is right here. So the
Toys R Us building is here, and (lost words) you come out to the right. Our parcels, if you will,
video, bank and restaurant, all have their own ingress and egress, which people may or may not
use, and if you want, there’s room for stacking here, but the only way, it’s tricky, I find is if
you’re at Toys R Us, and there’s a line of cars, you can’t come to the first one closer to the road,
you have to go to the back and get on line.
MR. URRICO-Right, but even Taco Bell has a sign, I think, if you’re exiting to head north on
Route 9.
MR. LAPPER-Yes, because when we were at site plan, we conceded because everyone was
concerned about left turns on a busy road, that this was one of those places that we put the
turning radian with curbing so that nobody could cheat. Like the Mobil station up by Burger
King says no left, but there’s no physical block, so people do what they want, and sometimes
they hit each other. Here, you can’t do that. So if you want to go left, you’re supposed to use
the light. That’s what that’s about, but the re-striping would all take place south of that
driveway. So it really wouldn’t affect the drive.
MR. URRICO-But if cars were coming out of, say they went to Taco Bell drive-thru and they
exited to the rear, past the light (lost words) heading over to that drive, they’re going to
encounter some cars.
MR. LAPPER-Everything that you see is already here.
MR. URRICO-It’s already there?
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(Queensbury ZBA meeting 10/15/03)
MR. LAPPER-Yes. We’re not changing any of the medians, but what the re-striping is that
you’ve got extra spaces, because (lost words). We don’t even know if it’s even necessary to re-
strip, but we wanted to ask for the smallest variance, probably the 10 by 20, the fewer spaces is
fine also, but we just wanted to make a better application, and that’s why we did that, but it
doesn’t change any of the medians, the islands, the drive aisles, it just changes the number of
spaces next to each other in a parking stack.
MR. MC NULTY-Just a comment more than anything, while we’re talking about parking
spaces. Personally, I’d rather be approving (lost words) for keeping the 10 by 20, or whatever
they are. I’m finding these parking spaces that we’re putting in now are a real pain, difficult to
park in. Apparently, you can see, in terms of compact cars, and SUV’s in there, I think they’re
having trouble, even some of the (lost words) in Northway Plaza now are (lost words). The
Post Office is a one way entrance.
MR. LAPPER-Well, the one thing, I guess what we could say on that is that we’ve demonstrated
that we can get 52 more spaces, and there’s a provision in the Code that says that if you can
show the parking that you have (lost words) the Planning Board can have the discretion to tell
you to build it or not to build it. So if you want, since we have to go to site plan anyway, you
could condition a variance, if you choose to grant the variance, to say that you could leave it to
the Planning Board to decide whether we should actually re-strip or leave the larger spaces, and
that’s okay either way with us, because we don’t think we need them.
MR. STONE-My personal opinion is I think we have over-parked in the Town, when you
consider the K-Mart and the Wal-Mart. We’ve got parking spaces that go vacant. Glens Falls
would love to have the parking spaces that we have.
MR. ABBATE-I just can’t restrain myself on this. I’m looking at this picture and International
Paper is closing in Corinth. (lost words).
MR. LAPPER-The lots are too small I think, for that.
MR. STONE-Any other questions? So basically the simple request is you would like less
parking than the Code calls for.
MR. LAPPER-Right.
MR. STONE-Okay. Let me open the public hearing. Anybody wishing to speak in favor of this
application? In favor of? Anybody opposed? Any correspondence?
MR. MC NULTY-No correspondence.
PUBLIC HEARING OPENED
NO COMMENT
PUBLIC HEARING CLOSED
MR. STONE-Let’s talk about it. We’ll start with Chuck Abbate.
MR. ABBATE-Thank you, Mr. Chairman. You folks put together a pretty neat little package. I
have no opposition to the application. However, a point has been made on the size of parking
spots, and based upon the fact that I feel somewhat aggrieved by small parking spots,
nonetheless, that will not deter me in supporting your application. Overall, Counselors, I think
you both did a pretty fine job in presenting this application.
MR. LAPPER-Thank you.
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(Queensbury ZBA meeting 10/15/03)
MR. STONE-Allan?
MR. BRYANT-I have a question before I comment. You said that the NiMo’s lease was renewed
annually?
MR. LAPPER-It self-renews unless either party asks to terminate it.
MR. BRYANT-How would that affect, suppose NiMo decided not to renew?
MR. LAPPER-We would no longer be in compliance with the parking requirements, and we’d
have a problem, but we don’t anticipate that, because there’s no reason. It’s been there for 20
something years, and there’s no reason. NiMo just uses the overhead lines. They don’t need it.
By example, we did something similar when we did the Staples across the street. We needed to
get fire truck access around the building, and we got a license agreement from NiMo to pave
part of their right of way to put that drive aisle in around the building. So it isn’t uncommon. It
takes NiMo about six months to process your request, but once they do, they’re pretty flexible.
MR. BRYANT-My comment, basically, I agree with Mr. Abbate. It’s a nice little package.
Frankly, I don’t see, I know that your 20,000 square feet adds a requirement for 140 parking
spaces, and I don’t see 140 people going to buy telephone poles. You do, though, I know it’s
referred to as the Tractor Company, but they do sell more than that, because I’ve been in the
stores. They do sell a lot of clothes and work clothes and other neat stuff. So I wouldn’t
emphasize the tractor sales.
MR. LAPPER-Maybe it’s not a good name. I don’t know.
MR. BRYANT-Well, anyway, I’m in favor of it.
MR. STONE-Roy?
MR. URRICO-Yes. I think this is a good project. I don’t think there’ll be an undesirable change
to the neighborhood or the character of it. I don’t see this benefit by the applicant being
achieved by any other method. I don’t see the variance being substantial, and I would actually
concur with my fellow Board members (lost words). I see the advantage of having some larger
spaces. I think the variance would not have an adverse physical or environmental impact, nor
do I think the difficulty is self-created. I’d be in favor of it.
MR. STONE-Jaime?
MR. HAYES-I essentially agree. I think that (lost words) argument that (lost words) commercial
building (lost words) maybe getting the store rented will improve the character of that
immediate area. I think the applicant’s argument that it could be difficult to attract a tenant that
far from the main road is also true, and I look at the overall plot plan, I think there’s an
adequate parking there. I, too, visited the site today, and it seems to me that if anything, it
might even remain in excess (lost words), and I also agree with Chuck’s argument. Personally, I
would be more compelled to approve relief based on the current 10 by 20 parking spaces versus
a squeeze to reduce the amount of relief. I don’t think the amount of relief being increased
slightly to have the proper parking spaces would change the balance of the test, in my opinion.
So I would be in favor of approving, based on a 10 by 20 foot thing, giving the Planning Board
discretion to modify that, I guess, (lost words).
MR. STONE-Is that the 140 number?
MR. LAPPER-Right. I think the 535 would be the number, without the 52. Let me check that.
It’s 587 minus 52.
MR. STONE-So that’s the 140.
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(Queensbury ZBA meeting 10/15/03)
MR. LAPPER-So 535 would be what there would be on site.
MR. STONE-Okay. All right. Chuck?
MR. MC NULTY-Okay. I agree with what’s been said. I’d be in favor also. Again, with the
larger spaces. I’d approve on that basis, and along that line, too, another thought comes along.
It’s not just getting bigger SUV’s or whatever parking, but we’re gaining an older population,
and I guess I’m getting older. My in-law’s are getting older, older than I am, but anyway, a lot
of people, as they get older, are having more trouble getting in and out of cars, and having to
wedge themselves between two cars in too narrow of parking spaces. So that’s a problem, too.
So, in any event, I’ll agree. (lost words) with the existing spaces that are there now, I don’t see
where there’s going to be any problem with parking. So, I’d be wholeheartedly in favor.
MR. STONE-Young Mr. Underwood.
MR. UNDERWOOD-I, too, would be in favor of the applicant’s request. (lost words).
MR. STONE-I also am not going to disagree with the Board, and the larger spaces, even though
I’m not in that category that Mr. McNulty talks about, the other thing I would ask of the Nigro
Companies, it’s my remembering, there’s more potholes in that parking lot from time to time.
MR. LAPPER-Not anymore is our answer. Those were fixed in the last two weeks.
MR. STONE-Okay. Good. I think this is a reasonable request, particularly when you look at the
survey you guys gave us. All that space back there that nobody’s ever seen.
MR. LAPPER-No reason to go there.
MR. STONE-And I, too, would be willing to go with the 140 with the larger thing. So, I need a
motion to approve it on the basis of the variance of 140.
MOTION TO APPROVE AREA VARIANCE NO. 84-2003, NIGRO COMPANIES, GLEN
SQUARE PLAZA, Introduced by Roy Urrico, Seconded by Paul Hayes:
The applicant proposes the construction of a 20,000 sq. ft. outdoor display yard associated with
a Tractor Supply store. The applicant duly requests relief from the parking and loading
requirements from Section 179-4-40, specifically the applicant is asking for 140 parking space
relief based upon the current code. In taking the test, the applicant will not be creating an
undesirable change to the character of the neighborhood or detriment to nearby properties. The
benefit sought by the applicant cannot be achieved by any other method and therefore it is
feasible for the applicant to pursue this variance. The area variance is not necessarily
substantial as far as the code is considered, much has been made about the size of the lot and its
current use and therefore we think that the amount of cars that will be utilizing the parking lots
won’t tax it in any way. This project will not have an adverse impact on the physical or
environmental conditions, neighborhood or district and this application is not self-created. The
approval is based upon the existing 10 ft by 20 ft. parking space and the relief of 140 spaces is
based upon the same.
Seconded by Mr. Hayes
Duly adopted this 15 day of October, 2003, by the following vote:
th
MR. STONE-Also put in there that we’re not holding the Planning Board to that, we’re granting
up to, relief of up to 140 spaces. They still have the option of saying, no, we want the smaller
spaces.
MR. LAPPER-That’s right, the more space, the smaller size.
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(Queensbury ZBA meeting 10/15/03)
MR. STONE-Right.
MR. LAPPER-That’s fine.
MR. BRYANT-Is that the correct number of spaces?
MR. LAPPER-Yes, it’s 140 less than the.
MR. HAYES-675 is required.
MR. STONE-Okay. Do I hear a second?
MR. HAYES-Second.
AYES: Mr. Underwood, Mr. Abbate, Mr. Bryant, Mr. McNulty, Mr. Hayes, Mr. Urrico, Mr.
Stone
NOES: NONE
MR. LAPPER-Thank you.
AREA VARIANCE NO. 81-2003 SEQRA TYPE: II HAROLD & PATRICIA TAYLOR
AGENT: PHILIP J. HAAKENSON PROPERTY OWNER: HAROLD & PATRICIA TAYLOR
ZONING: WR-1A LOCATION: 27 REARDON ROAD APPLICANT PROPOSES TO
REPAIR HOUSE FOUNDATION AND REPLACE EXISTING RETAINING WALL,
REMOVE EXISTING CONCRETE FLOOR ON PORCH AND REPLACE WITH A DECK
THAT WILL EXTEND AN ADDITIONAL 7 FEET. RELIEF SOUGHT FROM SHORELINE
AND SIDE SETBACK REQUIREMENTS. CROSS REFERENCE: BP 2003-616 TAX MAP
NO. 289.07-1-39 LOT SIZE: 0.24 AC SECTION: 179-4-030
PHIL HAAKENSON, REPRESENTING APPLICANT, PRESENT
STAFF INPUT
Notes from Staff, Area Variance No. 81-2003, Harold & Patricia Taylor, Meeting Date: October
15, 2003 “Project Location: 27 Reardon Road Description of Proposed Project: Applicant
proposes construction of a 168 sf deck expansion. Relief Required: Applicant requests 34 feet
of relief from the 50-foot minimum shoreline setback requirement and 11.14 feet of relief from
the 15-foot minimum side setback requirement of the WR-1A Zone, §179-4-030. Additionally,
the applicant seeks relief for the expansion of a non-conforming structure per §179-13-10.
Parcel History (construction/site plan/variance, etc.):
BP 2003-616 deck expansion not issued
BP 2003-617 foundation repair
Staff comments:
Does a deck at a 16 foot shoreline setback present an adverse impact or a condition that might
be interpreted as uncharacteristic of the neighborhood or community? While not directly on the
lake side of the home, there appears to be area available for more compliant construction.”
MR. STONE-No County?
MR. MC NULTY-No County.
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(Queensbury ZBA meeting 10/15/03)
MR. STONE-All right. For the purposes of full disclosure to the Board, when I was on site, Mr.
Taylor came on site. We held a quick discussion. I informed him that I was not permitted to
have ex parte communication on the subject matter. Go ahead, sir.
MR. HAAKENSON-I’m Phil Haakenson, working with Harold Taylor on this project. After our
observation of the earlier things, I have pictures, and I don’t know if I dare share them or not.
I’m going to take a chance on it. You also, I think, have on your record a letter faxed to you
from a neighbor.
MR. STONE-Okay. Well, we’ll read that in when we get to the public hearing.
MR. HAAKENSON-First of all, I’d like to just mention that as far as the project description is
concerned, the repair of the house foundation and the wall repair has been done under a regular
building permit, and inspected. So that the issue here is really just a matter of getting approval
for seven more feet coming out from the porch. The wall that you see in front of the porch is a
retaining wall that we re-built, so that’s new and adequate, thanks to support (lost words). The
porch portion on that that you see was concrete, and in the process of getting at the house
foundation, we had to take that up, and we’ve mentioned earlier, or I heard mention earlier
about some discrepancies within the Building Code office. One person told me when I take that
up I can’t put anything back down, but I think there’s other reason to believe otherwise. So
what we would like is to be able to take and not replace that with concrete, but replace that with
treated lumber and extend the seven feet, or 168 more feet. That will extend just two feet
beyond that retaining wall.
MR. STONE-Let me ask Staff a question. A retaining wall is construction, is it not?
MR. BROWN-Typically a retaining wall does not require a building permit.
MR. STONE-Does it require a variance?
MR. BROWN-No.
MR. STONE-No? So I can put a retaining wall right on the water?
MR. BROWN-No.
MR. STONE-Well, clarification please.
MR. BROWN-Any hard surfacing within 50 feet of the shoreline (lost words), usually a
retaining wall, sometimes a retaining wall falls into that classification, but specifically in the
shoreline regulations it talks about the construction of seawalls and the need for site plan
review. A seawall (lost words) retaining wall. It’s just a retaining wall. It’s not at the shoreline.
MR. STONE-I know, but it’s within the 50 feet.
MR. BROWN-Right, but I have discussed with Mr. Haakenson and determined that that was a
replacement of a wall that was already there (lost words).
MR. STONE-Okay. So this construction is legal at the moment. Thank you.
MR. BRYANT-Let me go one step further. Now, the porch is removed, as it’s shown on the
drawing. The porch is really not there. Just that retaining wall. Is that right? You took the
porch out. So in reality, we’re not only talking about the deck. We’re talking about the porch.
Because the porch itself is, it goes into the area of the setback. If you look at the drawings, the
porch is only 23 feet away from the shoreline. So, in reality, they’re 25, 27 feet into the setback.
So if he’s removed the porch, then in essence this variance should be not only for the deck but
also to replace the porch.
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(Queensbury ZBA meeting 10/15/03)
MR. STONE-It’s the closest (lost words) to the lake. The maximum relief. What he does with it
is really not the subject of a variance.
MR. BRYANT-Well, it is if it’s removed.
MR. HAAKENSON-The porch has not been removed.
MR. STONE-He wants to go within 16 feet of the lake with something.
MR. BROWN-I think, you know, based on that (lost words) the porch roof is still there, and it’s
still supported. It’s just a matter of what the actual deck surface is.
MR. BRYANT-So what you’re saying, basically, if this variance is denied, that he can go ahead
and put the porch there. That’s not correct.
MS. RADNER-I think what you’re getting at is if the Board were to say, okay, we’re not going to
allow the deck, but he wanted to continue the porch, would you still need relief for the porch,
and the answer is I believe yes, if the porch is within the setback (lost words).
MR. BROWN-(Lost words) since the porch roof structure is still there, we’re looking to replace
the actual deck portion of it, but that wouldn’t require an additional variance, but the extension
of it will.
MR. HAYES-You’re saying that the porch is a pre-existing structure.
MR. BROWN-Right. Yes. That’s correct.
MR. HAAKENSON-And that was also part of the foundation repair, coming under the house
and out the distance of the porch roof to support that.
MR. STONE-Okay. So just to clarify what Al is asking, we’re dealing with the relief of this
seven feet, essentially. I mean, for that seven feet, and where that brings us to the lake.
MR. BROWN-That’s correct.
MR. STONE-In your determination, the porch could be there without a variance.
MR. BRYANT-I kind of disagree with you, and I’ve got to tell you why.
MR. BROWN-Sure.
MR. BRYANT-Because if you look at these photographs, okay, particularly the one that shows
from the inside of the house looking out, that retaining wall, or whatever you want to call it,
extends beyond the roof of the house, beyond the roof of the porch.
MR. BROWN-Right.
MR. BRYANT-So in reality, even if that deck is denied, that whole area is a new area. Do you
understand what I’m saying? You’re not covered by the porch roof, per se.
MR. BROWN-Right, but I (lost word) the existing deck was at an elevation higher than this (lost
words).
MR. HAAKENSON-The existing deck is lower with taking the cement out, it’s about eight
inches below the door now.
MR. STONE-Yes, I can see that from the picture, yes, but this deck extension, that’s going just to
the edge of the retaining wall?
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(Queensbury ZBA meeting 10/15/03)
MR. HAAKENSON-Two feet over.
MR. STONE-Two feet over it. It’s going to be cantilevered out over it.
MR. HAAKENSON-Yes.
MR. STONE-Okay.
MR. HAYES-That’s where the retaining wall was though.
MR. HAAKENSON-That’s exactly where it was, and what we did, the existing retaining wall
was just concrete block set in the sand, and we dug down four additional feet and poured seven
yards of concrete in that trough, and then just poured the wall above that, so that, and the
reason we came around that wall toward the house again was to stabilize that retaining wall
further.
MR. BRYANT-But is it correct to assume that this front retaining wall didn’t exist?
MR. HAAKENSON-It did.
MR. BRYANT-It did?
MR. HAAKENSON-The one that you see in the picture existed exactly in the same location.
MR. BRYANT-So what was there between the porch and the retaining wall?
MR. HAAKENSON-Bushes. There was bushes along the front of the porch, and it dropped off
real quickly there. So it wasn’t good usable space there.
MR. STONE-But you want to go two feet over, as I look at this thing, two feet out.
MR. HAAKENSON-Just a cantilever over.
MR. MC NULTY-The deck is still seven feet, seven feet beyond where the porch is.
MR. STONE-Still, all we’re concerned about is the 16 feet. We only concern ourselves with the
closest point to the lake of horizontal construction, or vertical construction, other than this
retaining wall.
MR. MC NULTY-But should we deny that, then he’s going to be (lost words).
BUD TAYLOR
MR. TAYLOR-My name is Bud Taylor. I’m the owner of the property. As I said before, the
project got started out of a need. It wasn’t to enlarge the deck area. The camp itself actually
started sliding, and the interior foundations were starting to deteriorate. My wife and myself
are blessed because we have, all of our children live in Glens Falls, and all of our grandchildren
live locally also. So it’s not unusual for us to have 20 people at the lake on the weekend. The
old porch that was there, the seven foot porch, was just extremely narrow, and you just couldn’t
really get everyone on it. When you got time to have your hamburgers and hot dogs, you had
to kind of scatter all over, some up on top, some down on the bottom. So this would just make
a real pleasant atmosphere if we were able to extend that porch. If you look at the second
picture that we’ve showed you, essentially what we’re asking for is to just put a deck over the
top of that dirt. There’ll be no supporting structures other than the retaining wall itself.
MR. HAYES-So there won’t be legs sticking out for people to look at?
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(Queensbury ZBA meeting 10/15/03)
MR. TAYLOR-Nothing with legs, no.
MR. STONE-You raise a red flag to me, in something you just said, 20 people on a weekend.
How’s your septic system?
MR. TAYLOR-How’s my septic system? It’s been there for 40 years.
MR. STONE-That’s a big concern. Twenty people, a septic system is not designed for 20 people
on a weekend, I can guarantee it, and I don’t know if we can, if we grant this, we can put a
condition that we upgrade the septic system. We can decide this is new construction or
something. Any comments?
MR. BROWN-I think it’s pretty clear if it’s living space they’re required to update the septic
system.
MR. STONE-I know.
MR. BROWN-Is it a reasonable condition if they do the septic system for 158 square foot deck?
I don’t know.
MR. BRYANT-Whether you build the porch or not, they’re still going to have 20 feet, okay. So,
it’s a moot point.
MR. STONE-It’s not a moot point. It’s one of the concerns of any lake property, and I’m not
tarring Mr. Taylor. We know that a lot of rental properties, people cram as many people in as
they can, and a system that was designed 100 years ago, and hasn’t been looked at since.
MR. UNDERWOOD-When’s the last time you had it pumped out?
MR. TAYLOR-We are very aware. I can’t remember when it was pumped out. I bought the
property two years ago from my mother’s estate. She was, she’s lived there and owned the
property since 1942. That building was built around 1958 I think, and at the time that it was
built, it was just a camp, and in 1970 they added on to it to, to the building. So I can’t really
answer your question, but we are acutely aware of septic problems, and we’re always on top of
our kids to, we have a couple of no flush rules and so on, but we’re always on top of them, and
so far we’ve been there two years and it really hasn’t been a problem.
MR. UNDERWOOD-The other point I would make is, having lived on Glen Lake for 10 years
now, I’m quite aware of the fact that at some point in recent time (lost words) saw fit to bring in
some purple loosestrife and plant it along the front of your property here, a purple flower.
MR. TAYLOR-That’s really not true. The neighbor had some of those flowers and they kind of
just seeded over into that area. It’s nothing that I planted.
MR. STONE-Any other questions? I’ll open the public hearing. Anyone wishing to speak in
favor of? In favor of the application? Anybody opposed to the application? Opposed? Any
correspondence?
PUBLIC HEARING OPENED
MR. MC NULTY-We have a couple of pieces of correspondence, including the one the applicant
gave us tonight. That one is from Harold Harris. He says, “I am the owner at 29 Reardon Rd.
which is adjacent to 27 Reardon Rd. I have no objection to the proposed project to add a deck to
the front of the building at 27 Reardon Rd. Harold Harris” The other one is from a Dorothy
Smith. She indicates that her, she’s got two residences, but one of them is 25 Reardon Road, and
she says, “I am unable to attend the meeting for Harold and Patricia Taylor on Wed. Oct. 15. I
th
am their next door neighbor on the left, and I have no objections to any of the improvements
they are making to their property. It will not affect me at all. Respectfully, Dorothy T. Smith”
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(Queensbury ZBA meeting 10/15/03)
MR. STONE-Okay. That’s it?
MR. MC NULTY-That’s it.
MR. STONE-Then I’ll close the public hearing.
PUBLIC HEARING CLOSED
MR. STONE-Anybody have any further questions?
MR. BRYANT-I have a question. Staff comments indicates that there might be a prime location
for the deck. Have you considered putting the deck somewhere else?
MR. TAYLOR-Well, I think the only complaint would be from the back (lost words) the back of
the property.
(DISCUSSION)
MR. TAYLOR-It hasn’t been for a couple of selfish reasons. If we have the deck where we’re
proposing it, it’s right next to a kitchen area that’s inside of the camp, and it would just enlarge
the whole area and make it more enjoyable. I think the area that you’re talking about is a small
concrete deck that’s right near the camp at the top of, it’s farther up the hill and it’s really on a
steeper slope. It wouldn’t be real convenient for us.
MR. STONE-As I read the thing, you already have two decks.
MR. TAYLOR-There’s a deck, there’s a little concrete area I wouldn’t call a deck. I think it’s
what you’re describing, right up near the camp, and there’s a small deck down in the front. I
think it’s about 10 by 10, if I’m not mistaken.
MR. STONE-And that’s a wooden (lost words) like thing.
MR. TAYLOR-Right.
MR. STONE-On top of a slab.
MR. TAYLOR-Right. It’s not on a slab either.
MR. STONE-It’s not on a slab? Okay. You said, I thought you said, and I saw the (lost words).
Let’s talk about it. Al.
MR. BRYANT-It’s obvious the benefit to you building a deck. You have a large family and a
number of guests on the weekends and in the summer, and I can appreciate that. On your
application, when you were asked whether or not it was a substantial request, you said no.
Frankly, your porch alone, in my view, is a substantial request. The porch, as it existed, is
already 25 plus feet into the setback area. Now we have a situation where we want to extend
that porch another seven feet to add a deck into the setback area. There has to come a time
when we have to say no, and I think the request is substantial. Whether or not the Board wants
to entertain a reduced request, I don’t know, but my view is that the porch is sufficient. We’re
already 25 plus feet into the setback area, and I don’t think we should go any further. So my
position is no.
MR. STONE-Roy?
MR. URRICO-I’m in agreement with Mr. Bryant. I would like to see something that was a little
less than what you’re proposing. I think expanding the porch (lost words) into the setback area
(lost words).
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(Queensbury ZBA meeting 10/15/03)
MR. STONE-Jaime?
MR. HAYES-Well, what compelled me was the fact that (lost words). The difference in that
particular area, you may end up having some bushes or having a small area of treated lumber
there, is insignificant, versus the benefit to the applicant. Obviously going past the retaining
wall, you are increasing the (lost words) of that critical environmental area, but I’m certainly in
favor of granting the applicant some relief or (lost words) the area that’s immediately above the
retaining wall (lost words). I would be in favor of that.
MR. STONE-You’re in favor of not going beyond the retaining wall.
MR. HAYES-Right. So I guess that would be five feet decking.
MR. STONE-Right, rather than the seven feet.
MR. HAYES-Right.
MR. STONE-Okay. Chuck?
MR. BRYANT-I’m going to agree with Mr. Bryant. I understand the applicant’s desire for what
he’s proposing and the position (lost words). On the other hand, this is a relatively small lake. I
think we’ve got to be very careful about what we about being close to the shoreline, and at some
point we’ve got to say no, and you can accommodate the family members some other way (lost
words). I’ve got no problems replacing the porch to where it was before. Beyond that (lost
words) and I’m going to be opposed to any variance at all (lost words).
MR. STONE-Jim?
MR. UNDERWOOD-In looking at what you’ve done here with the retaining wall, I think it’s
obvious that (lost words), and I would much rather see you (lost words), and still make
adequate use of it for picnic purposes.
MR. STONE-You’re saying no, Jim?
MR. UNDERWOOD-Yes.
MR. STONE-Okay. Chuck?
MR. ABBATE-Thank you, Mr. Chairman. I have been noticeably silent on this application all
evening, and the reason for that is that I’m struggling. Would I, in your position, request the
same thing? Probably so, but I have a problem. You’re really requesting 16 feet of relief in one
area. However, that can be offset. I think Town Counsel made it quite clear. It’s not an all or
nothing situation. We could grant some relief. The application, as you’ve proposed, I don’t
think I could support, but I could support some relief. Thank you, Mr. Chairman.
MR. STONE-I agree with the majority of the Board. I mean, first of all we have a house which,
at its worst, is 20 feet too close to the lake, at it’s best is 12 feet too close to the lake, using the
survey that we have here. Putting in this deck to the retaining wall, and I respect Mr. Brown’s
position that the retaining wall can be there. I’m not happy with that, but I respect that, but I
really don’t think that we should add any, certainly not the two feet. I mean, we can’t grant that
application, as far as I’m concerned, but I can’t grant that, and I guess I would much rather see,
in that area of interest, the seven feet, or at least five feet, in terms of what Mr. Hayes and Mr.
Underwood have said. I think that should be soil rather than any kind of impervious area. So,
what we have is at least four people who have said absolutely no. Two people who have said
yes with five feet. There are five of us who have said no, and two of us who have said okay if
you only go to the edge of the retaining wall. Therefore, the ball, as they say, is in your court.
We can deny it or you can amend your application right here on the spot and say, and see what
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(Queensbury ZBA meeting 10/15/03)
the Board says, I heard two people, and I don’t want to put anybody on the spot, but two
people said they could go to the edge of the retaining wall. That’s as far as they could go. I
think there are a number of us, however, who feel that they would not even like that. They
would like that five feet between what we would consider the porch and the retaining wall,
they would like to see that soil rather than impervious material.
MR. HAAKENSON-If I could make just one comment.
MR. STONE-Sure. I hear what you’re saying. I respect your opinions on it. If I only go out to
the seven feet, I’m going to have to have a railing at the edge of that seven feet.
MR. STONE-You mean the five feet? Nobody wants you to go seven feet.
MR. HAAKENSON-Well, the original porch was seven feet, and I think I heard some
gentleman say here that they wouldn’t want to see me go beyond the original porch.
MR. STONE-Beyond the retaining wall.
MR. HAAKENSON-That’s fine. I would have no problem to amend the application to ask that
the deck go out to the retaining wall.
MR. STONE-Okay. So that’s your current, you will say go out to the edge of the retaining wall,
five feet?
MR. HAYES-Right, but I think he’s telling you, Mr. Taylor, that, based on his thing, he doesn’t
think that that would carry.
MR. STONE-I don’t know. Two people specifically said, you and Mr. Underwood both said
you were happy with that. Nobody else commented. Mr. Bryant, I think, wanted to go back to
the house and take everything out.
MR. ABBATE-And I said I would be willing to grant some relief.
MR. STONE-You are?
MR. ABBATE-Yes.
MR. STONE-Okay. So let’s go back again. Mr. Taylor is saying he would build to the retaining
wall that has been allowed by Mr. Brown.
MR. HAYES-Someone should just make a motion on that.
MR. STONE-Let’s make a motion on that.
MR. URRICO-What would the relief be on that?
MR. STONE-The relief would be.
MR. HAAKENSON-That would be 120 square feet instead of the 160.
MR. STONE-Yes, but the relief that we’re granting is the 16 feet from the lake. We’re granting
34 feet of relief. We’re talking granting 32, right, Craig, you’re? So, in other words, you’re
asking for 32 feet of relief to build out to the edge of the retaining wall. The size is immaterial.
It’s concern to you when you put the concrete in, but not to us.
MR. HAYES-He can’t go any closer to the lake than that, period.
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(Queensbury ZBA meeting 10/15/03)
MR. HAAKENSON-Yes, I understand that. What I don’t understand is the, when you include
the porch as part of the (lost words) to the lake. That’s existing structure.
MR. STONE-No, forget that. That’s inside the retaining wall. Mr. Brown, our Zoning
Administrator, has said the retaining wall can be built. The retaining wall is approximately 18
feet from the lake at its worst, at its closest. The motion would be to allow the deck to be built
to the edge of that retaining wall and not cantilevered out another two feet.
MR. HAAKENSON-Okay.
MR. STONE-All right. So let’s try a motion to that effect.
MOTION TO APPROVE AREA VARIANCE NO. 81-2003 HAROLD AND PATRICIA
TAYLOR, Introduced by James Underwood, seconded by Paul Hayes:
The applicant proposes construction of a deck addition on the front which would extend
approximately 5 feet out from the edge of that covered porch area. The construction would not
extend past the newly constructed retaining wall on the lake side. I would recommend that
prior to the building of this deck you excavate that out and put about 5 inches of pea-gravel
down there so that when water runs off so that it will able to filter through and down in and not
run off into the lake. Also, as a condition of this I would like to see some of kind of vegetation
barrier built between your property and the lake shore that would include some perennial
plants and maybe a couple of small trees that grow up because that I think that given the fact
the we have discussed your inadequate septic system onsite, any kind of vegetation is going to
be a plus for you for keeping things out of that lake. Relief of 32 ft. from the minimum 50 ft.
shoreline setback requirement and 11.4 feet of relief from the side setback. Additionally the
applicant seeks relief for the expansion of a nonconforming structure per Section 179-13-10. The
applicant has described that it would be to his benefit to have this area created down in front
which would benefit his large family that he has. As far as the impact upon the lake, the
environmental conditions of the lake would be improved with the addition of these prescribed
methods and with the pea-gravel and the vegetative area. Is the difficulty self-created? I would
suggest that it is self-created but due to the nonconforming pre-existing structure that’s there.
Seconded by Mr. Hayes.
Duly adopted this 15 day of October, 2003, by the following vote:
th
AYES: Mr. Abbate, Mr. Urrico, Mr. Underwood, Mr. Hayes, Mr. Stone
NOES: Mr. Bryant, Mr. McNulty
MR. STONE-So, five two in favor of the amended application. There you go, gentlemen. Thank
you for your cooperation.
MR. HAAKENSON-Thank you.
MR. STONE-We’re adjourned.
On motion meeting was adjourned.
RESPECTFULLY SUBMITTED,
Lewis Stone, Chairman
45