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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 th 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: th 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, 1 (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. 2 (Queensbury ZBA meeting 10/15/03) 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 3 (Queensbury ZBA meeting 10/15/03) 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. 4 (Queensbury ZBA meeting 10/15/03) 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 5 (Queensbury ZBA meeting 10/15/03) 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). 6 (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. 7 (Queensbury ZBA meeting 10/15/03) 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 8 (Queensbury ZBA meeting 10/15/03) 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 9 (Queensbury ZBA meeting 10/15/03) 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 12 (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. 13 (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. 14 (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. 16 (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 17 (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? 18 (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? 19 (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 20 (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. 21 (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. 22 (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 24 (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 25 (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? 26 (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 27 (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. 28 (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 29 (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 30 (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. 31 (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. 32 (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? 33 (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. 34 (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. 35 (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. 36 (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. 37 (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. 38 (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? 39 (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? 40 (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” 41 (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). 42 (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 43 (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. 44 (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