2004-08-18
(Queensbury ZBA Meeting 8/18/04)
QUEENSBURY ZONING BOARD OF APPEALS
FIRST REGULAR MEETING
AUGUST 18, 2004
7:00 P.M.
MEMBERS PRESENT
LEWIS STONE, CHAIRMAN
CHARLES MC NULTY, SECRETARY
ROY URRICO
CHARLES ABBATE
JAMES UNDERWOOD
ALLAN BRYANT
LEO RIGBY, ALTERNATE
MEMBERS ABSENT
PAUL HAYES
ZONING ADMINISTRATOR-CRAIG BROWN
STENOGRAPHER-SUSAN HEMINGWAY
NEW BUSINESS:
NOTICE OF APPEAL NOT.AP 3-2004 SEQRA TYPE: UNLISTED JONATHAN C. LAPPER,
ESQ. FOR MIKE LUDWIG AGENT(S): J. LAPPER, ESQ. OWNER(S): MARVIN DOBERT
ZONING: MU LOCATION: 52 MAIN STREET APPILCANT IS APPEALING THE
ZONING ADMINISTRATOR’S JUNE 23, 2004 DETERMINATION THAT USE VARIANCE
NO. 52-1989 DOES NOT ALLOW FOR THE APPLICANT’S CURRENTLY PROPOSED USE.
CROSS REFERENCE: UV 44-2004, UV 52-1989 WARREN COUNTY PLANNING: N/A
ADIRONDACK PARK AGENCY: N/A LOT SIZE: 0.19 ACRES TAX MAP NO. 309.10-2-28
SECTION: 179-4-020
JON LAPPER, REPRESENTING APPLICANT, PRESENT
MR. STONE-Mr. Lapper, I’m going to throw you a curve right off the bat. I’m not sure why
we’re here. The applicant has accepted the determination of the Zoning Administrator, and we
are in the middle of deliberating that said application. Therefore, I think an appeal is untimely,
and I shall ask the Board whether they agree or disagree with me, but you may have a few
minutes to talk.
MR. LAPPER-Sure. I guess, as the Board is aware, we came into this process a little late. The
applicants were unrepresented, and they saw Stephanie appear before the Board and they felt
that they were, they know their business, they don’t know land use in Queensbury. They
approached Stephanie and asked if we could assist them in the process. One of the Board
members, at the last meeting when they presented themselves, Mr. Bryant had raised the
question, gee, in looking at the prior minutes, how come this wasn’t covered by the prior
variance that was previously granted by this Board some years ago, which is, you know, in our
argument an automotive service use. So when we pulled the minutes of that meeting, in order
to get up to speed on the matter, we looked at it and said, you know, we think that this was
covered by that prior determination, and therefore they wouldn’t require a variance, that it’s
essentially the same use under the Queensbury Code, automobile service, and there’s not a
distinction about leasing, fixing lease cars, or not fixing, but improving, servicing cars that come
in. So when we got involved, the Board had instructed the applicant to go and bolster their
arguments for the economic hardship, of course, and we’ve submitted documentation on that
prong, but at the same time, we’re hoping to get out of here earlier and quickly with a
successful appeal that that prior variance by this Board covers the use that’s proposed.
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(Queensbury ZBA Meeting 8/18/04)
STEPHANIE BITTER
MRS. BITTER-If I can just add something, Mr. Chairman. I’m Stephanie Bitter, for the record. I
was actually here at the May 26 meeting and actually had the opportunity to review the
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minutes prior to coming this evening, and during that meeting a couple of questions were
raised about some determinations that were made by the Zoning Administrator, and
specifically one of the Board members asked the applicants if they appealed those
determinations, and they said honestly we didn’t realize we had that right to do so, and Craig
had said I’m not sure, was a written determination provided, and they said, I don’t think so,
and so right after that meeting we requested that Craig make a written determination with
regards to his determination on the 1989 Use Variance.
MR. STONE-Does anybody have any comments on what I’ve said and what they said?
MR. BRYANT-I just want to understand, Mr. Lapper. You’re appealing the Zoning
Administrator’s determination. Now, what happens to the next application, which is
scheduled?
MR. LAPPER-Well, if the Board granted our first application, and said that the proposed use
falls within the use that was previously approved by the Board, that it was an automotive
service use, and that’s what they want to do in the building, then we wouldn’t need the
variance, and then we, there already would have been a Use Variance granted for that garage
type building to cover this use, and we can go home.
MR. BRYANT-Okay. That’s fine.
MR. STONE-Anybody else have any comments?
MR. ABBATE-Please. I, too, would like a little clarification as well. What is the argument that
you and the Zoning Administrator has at the present time?
MR. LAPPER-Well, it’s not an argument. It’s a philosophical discussion, nothing personal. We
read the 1989 determination. Obviously we weren’t involved at the time, neither was Craig,
and we read it and said, it looks to us like what was proposed by the applicants is permitted by
that Use Variance. So as a use it’s allowed now by Use Variance, and we asked him for a
determination, as Stephanie said, right after that May meeting, and he determined that, no, that
he thought that there was a distinction, and that that use covered servicing lease vehicles and so
we appealed that to you, for you to make a decision as to whether or not you agree with his
determination or our argument that the 1989 variance covers the proposed use.
MR. ABBATE-The Zoning Administrator’s stand is that?
MR. STONE-Well, I’m going to have it read, Chuck. It dawned on me that I didn’t read the
Staff notes, that we should do that. Would you read the Staff notes, in connection with this.
STAFF INPUT
Notes from Staff, Notice of Appeal Not.AP 3-2004, Jonathan C. Lapper, Esq., Meeting Date:
August 18, 2004 “Project Location: 52 Main Street Description of Proposed Project: The
appellant is appealing the determination rendered by the Zoning Administrator regarding the
allowable uses for the property.
Information requested:
Appellant is appealing to the Zoning Board of Appeals to determine whether or not the decision
made by the Zoning Administrator that an Auto Service Use is not allowable use within the
Mixed Use zone, which encompasses the property at 52 Main Street.
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(Queensbury ZBA Meeting 8/18/04)
Staff comments:
A review of the previous Use Variance, UV 52-1989, reveals that the granting of that approval
allowed the operation of an Auto Leasing Business and related usage. The testimony of the
applicant in 1989 that stated that the use was a “…facility to promote the leasing of automobiles
and to turn the automobiles around to perform first…” Presumably “the automobiles” refers to
the lease vehicles.
The “related usage” request was not clearly defined relative to the type(s) of related uses.
Lacking any specific “related usage” activities listed in the previous Use Variance approval, the
Zoning Administrator determination is that the “related usage” is limited to only those vehicles
that were part of the rental fleet. The application submitted by the applicant in 1989 does not
list specific uses nor describe Auto Repairs as being proposed for the property. The description
listed on the Short Environmental Assessment Form, submitted as part of the application,
indicates “Automobile Leasing Facility” as the proposed use for the property. The Sign Permit
issued to Super Saver Car Rentals did not advertise service and or repair to the general public.
Finding no indication that Auto Service/Repairs for the general public was granted with UV 52-
1989, no determination allowing such use can be made regarding that approval.”
MR. STONE-Comments? Since I’m sure you’ve got comments.
MRS. BITTER-Good evening, Stephanie Bitter, for the record. As it has been explained in the
minutes, we’re here identifying that the use that’s being proposed by Mike Ludwig and Brad
LaCross for T & B Racing would actually be a permitted use. As the Board may recall from the
May 26 meeting, what they’re requesting to do on this property is to operate a retail business,
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which would actually sell high performance auto parts, as well as be allowed to install these
auto parts on the cars in which the owners are buying them. In the 1989 Use Variance, that was
provided to Mr. Dobert as the minutes reflect. It gives no specification in the resolution. The
resolution is the top page that I’ve handed to you in the packet, in the resolution. However, on
the actual application, Number Ten, which is on the second page, it says that it’s for adding
automobile leasing and related usage. If you turn to the minutes, which are on the third page,
when asked by the Board to explain automobile leasing on the related use, Mr. Dobert had
identified that it’s designed just to be a sales facility to promote leasing of automobiles and to
turn the automobiles around to perform first on maintenance. The related usage that the things
are typically involved in a small garage. When the Board provided the Use Variance, they
specifically identified in their resolution there’s a two bay garage for the lift. To deny him this
use would be to deny a reasonable use for the property. In no way in the resolution do they say
that it’s only for lease vehicles, as Mr. Brown tries to provide such a limitation. In looking at
the Queensbury Code, there’s nothing in the actual Table 2 Summary of Allowed uses in
commercial districts which identify automobile leasing facilities, nor does it say service of
leased vehicles. The actual area in which it would be classified would be automobile sales and
services. That would be the classification which this Use Variance that was provided in 1989
would fall upon. Mr. Ludwig and Mr. LaCross are requesting such a use, automobile service.
That is essentially what they are requesting with the use that’s being proposed. In addition, Mr.
Brown identifies that there’s no indication that auto service and repairs were for the general
public. In response to that, the general public were the individuals that were leasing these
vehicles so what repairs were being done on these vehicles were, in fact, for the general public
for their usage.
MR. STONE-I have to admit, I find that last argument not substantial, in the sense that these
were owned vehicles, owned by the operator of the business. The public merely came in and
picked up a car and drove away and returned it.
MR. LAPPER-We don’t dispute that, but I guess if you just look in the broader sense and look at
the resolution from ’89, acknowledging that it’s a building with two bays, service is what was
approved. Service is what happened, and their facility isn’t to fix wrecks. It’s to install
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(Queensbury ZBA Meeting 8/18/04)
performance equipment on cars. So it’s just, it’s doing what the Board at the time said to use it
as a garage, and that’s all we’re saying, that the Board recognized that it was a garage then. It’s
the same building now, and the use was permitted to do service and that’s what they’re trying
to do, service, and that’s simply the argument.
MR. ABBATE-Do me a favor, Counselors, please, could you indicate in any of the
documentation provided to us this evening, including the one submitted to us by your
assistance counsel here, anything that states that automobile repairs will be included in the
process?
MR. BRYANT-It’s in the minutes.
MS. BITTER-Right. It’s identified on the application as related usage, in the minutes of the ’89
meeting, when explaining related usage. He explains how he’s going to turn the automobiles
around to perform first. The related uses are things that are typically involved in a small
garage.
MR. ABBATE-So you’re saying basically that the term “related usage” is equal to automobile
repairs and also equal to selling automobile parts?
MS. BITTER-The parts is not. The parts is a permitted use.
MR. ABBATE-Okay. Let me back up. So you’re stating that the term on Paragraph Ten,
“related usage” does, in fact, include automobile repairs?
MRS. BITTER-Yes.
MR. LAPPER-And that’s what was done on the site.
MR. URRICO-And the change now would be that there would be, the general public would be
able to bring their cars, automobiles, in for repairs?
MR. LAPPER-Yes. It’s not so much repairs as like to install a spoiler or wheels, I mean, just to
use an example.
MR. URRICO-Well, a typical garage might have somebody towing a car there for repair. Would
that be?
MR. LAPPER-No, because they’re not fixing broken cars. This is performance vehicles, if you
want to do something fancy to your sports car.
MR. URRICO-Also at the time there was indication there was some limited parking space, and
if more cars are brought there, then there are going to be some cars left outside.
MR. LAPPER-Well, there’s parking in the back, as well as in the front, and they’re fully aware of
the limitations. I mean, they can’t.
MR. URRICO-I guess my point is that in the motion that was made, they said it was
demonstrated there was no adverse affect on the neighborhood, no neighboring opposition, but
this could have some change, some affect on the neighborhood.
MR. LAPPER-Well, you saw what was read was that there were 10 lease vehicles, is what they
were using. So, I mean, could this site be overused if there were, you know, 15 or 20 cars
parked there? Sure, but the site can’t accommodate that.
MR. URRICO-But I guess I’m making the case that the Appeal is correct because the
interpretation that was rendered back then was for a different type of business than this would
be.
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(Queensbury ZBA Meeting 8/18/04)
MR. LAPPER-And I guess we’re just saying that essentially it’s to service automobiles, and
that’s what we’re talking about, and it differs from a wreck, a shop that does wreckage work
that fixes cars in accidents or junkers. It’s just installing this performance equipment.
MR. URRICO-But that seems to me to indicate more traffic coming in and out.
MR. LAPPER-I don’t know. It’s two guys. There’s only so much that they can do, in terms of,
it’s only two bays. It’s not a huge facility.
MRS. BITTER-They were both retail businesses in the sense that they were, leasing cars is
deemed a retail business just as much as the wholesale business, or the high performance.
MR. URRICO-But there would also be increased retail space, or more devoted to retail.
MRS. BITTER-The office is just what would be the retail portion of the high performance.
MR. URRICO-Would it have to market parts, or what would be available there?
MRS. BITTER-The high performance parts.
MR. URRICO-High performance after market or specialized, customized?
MR. STONE-I think we’re getting off the track.
MR. LAPPER-The applicant’s here and they can answer questions.
MR. STONE-Well, I know that, but this is an Appeal. This is not the application, and I would
like, and it may be that there is no support for my position, or not enough, and that’s fine, but I
would like to know if there is any support, or any interest in saying, moving that we don’t hear
this Appeal because, for a variety of reasons. Any comments on that?
MR. BRYANT-Well, Mr. Chairman, I think that this Appeal should be made prior to the original
application, you know, but under the circumstances, and based on what Mr. Lapper and
Stephanie have said, I don’t see any reason why we couldn’t conclude.
MR. STONE-Please do me a favor and refer to her as Mrs. Bitter.
MR. BRYANT-I do have a couple of questions. Referring to the 1989 minutes, I notice it’s
unfortunate that when they have a brief discussion of the Zoning Board members, that they
don’t actually transcribe that information. We do that now because of our wonderful staff and
you can always know what each of us said.
MR. LAPPER-It definitely wasn’t done as thoroughly in ’89 as it is now.
MR. BRYANT-Exactly.
MR. LAPPER-That’s clear.
MR. BRYANT-I want to touch on a couple of things that Mr. Dobert said, and questions that
were directed to him by Mr. Turner. He asked for Dobert to explain the related use aspect of
the thing, and Mr. Dobert says something that’s jumbled about maintenance, and then he goes
on to say that these are the things that are typically involved in a small garage, and that nature.
So then there was another question asked, if the related usage is going to go on outside of the
garage, and Dobert says, or go on inside the garage, and Dobert says yes. So just for my
clarification these parts are going to be installed in the bays, is that correct?
MRS. BITTER-That’s correct.
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(Queensbury ZBA Meeting 8/18/04)
MR. BRYANT-Okay. So you’re not going to have people out in the field?
MRS. BITTER-No.
MR. BRYANT-Out in the parking lot putting on whatever. He goes on to state that there’s no
body work, done no engine changes, nothing associated with junk automobiles. We have
everything, blah, blah, blah, and that’s going to remain the same, is that correct?
MRS. BITTER-That’s correct.
MR. BRYANT-Okay.
MR. ABBATE-Question. We heard Counselor’s. I’d like to hear from the Zoning
Administrator. I’d like to hear your position on this.
MR. BROWN-Well, I guess my position would be, I summed it up as best I could in the notes.
If you have a specific question I’d be happy to try and answer that.
MR. ABBATE-I would prefer you address, perhaps, some of the statements by Counsel this
evening.
MR. BROWN-Well, the only thing that I picked up on is, I think you had asked a specific
question, is there anything in the 1989 minutes that talk about auto repair. It’s a statement
offered by Mr. Dobert. It was never part of an approval, or condition of approval that was
issued with the Use Variance. They offered, yes, we’re going to do repairs, but the resolution
didn’t go on to specifically include those, and that’s a difficulty. There’s no question this is not
black and white. It was an interpretation that was made. It doesn’t say either way. If you
consider the philosophy, I’ll use Mr. Lapper’s word, of zoning, it’s, at least with the Town of
Queensbury zoning, it’s considered a proscriptive zoning. If it’s not in there, it’s not listed as a
use, it’s not allowed. If it’s not specifically called out, and with the Use Variance, Use Variances
are granted for specific uses, and if it’s not specifically called out in an approval, it’s not
allowed. Related uses, does that mean you can have an auto racetrack on the course? That’s an
auto use. Can you do auto design and development? Those are all auto related uses. I don’t
think that related usage statement was meant to be as broad as it is, or is trying to be
interpreted.
MR. LAPPER-And I guess if we could respond, the question is what was done in light of, as a
result of that variance, and those two bays were used to repair vehicles. So that, I mean, there’s
not a lot of verbiage, granted, in the 1989 minutes, but the question did come up, what does that
related use mean. It was obvious that it meant maintenance and repair, and whatever you do in
the two bay garage, that’s specifically what it says, and then in light of that, a leasing business
opened up, and someone was doing repairs in those two bays. Clearly the building is a repair
bay building.
MR. BRYANT-Well, in the proposal, actually, the wording says that there’s a two bay garage
with a lift, to deny him this use would be to deny reasonable use of the property.
MR. LAPPER-Right.
MR. BRYANT-I just want to ask Mr. Brown something, relative to your determination. Did you
review these minutes at all before you made the determination?
MR. BROWN-Yes, I did.
MR. BRYANT-You did?
MR. BROWN-Yes.
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(Queensbury ZBA Meeting 8/18/04)
MR. ABBATE-Can I make one other statement here, too?
MR. STONE-Yes.
MR. ABBATE-Counsel, this is to Counselors. Quote, Use Variances shall mean the
authorization by the Zoning Board of Appeals for the use of land for a purpose which is
otherwise not allowed or is prohibited by the applicable zoning regulations, unquote, and that
was a case dealing with auto, which I know you’re both familiar with. Therein lies my problem,
I guess.
MR. LAPPER-I don’t see what the conflict is. If auto service wasn’t a permitted use under the
Code, but it was under the variance, we’re just saying that variance should cover this use.
MR. ABBATE-Okay, good, and you know you’re right. It is philosophical because the Zoning
Administrator pointed out, as well as you did when you said it was philosophical, that there
was nothing in any of the documentation that specifically stated it, nor did it prohibit it. So
therein lies the problem. I think, am I right?
MR. LAPPER-I think what Mr. Bryant pointed to, that it says that it said that to deny the use for
the bay of the garage with the lift would deny you reasonable use of the property, right in the
resolution, looked pretty clear to us that garage use was the service use, but that’s what that,
that provision in the motion from ’89, that line is pretty clear that using the bays for service, and
that’s really what we’re looking towards, that sentence.
MR. STONE-Any other comments? I mean, the sense I get, since I’m not hearing many
questions, that we should proceed with the rest of the Appeal?
MR. ABBATE-You know, let me just throw this out for you. What’s in the best interest of
justice, not hearing the Appeal or hearing the Appeal? I mean, the parties are here. If we hear
the Appeal, what tremendous damage would we do the Town? That’s what I’m thinking. If we
don’t hear the Appeal, is there possibly an injustice? And I think I’d rather err on the side of
trying to be fair, quite frankly, although that wasn’t my position initially. I must state, as it is.
MR. STONE-That’s fine. I accept that. Okay, having said that, you’ve made your presentation.
We’ve read the Staff notes, we’ve read the Appeal, we’ve asked questions. So therefore the next
thing is to open a public hearing. I caution anyone who wants to speak, this is a very limited
issue. The question is, is the Zoning Administrator correct in saying that this is not an allowed
use, and that’s the only question on the table, and requires a Use Variance. I’m sorry. Thank
you, but that’s, it’s a very narrow issue, all the other things, if we uphold the Zoning
Administrator, we will hear immediately following, but this is a very narrow issue. So if you
want to speak, be aware that I will be very strict in my interpretation, as far as what you can
say. So, having said that, I will open the public hearing. Anybody wishing to speak on this
Appeal?
PUBLIC HEARING OPENED
DON DANIELS
MR. DANIELS-I’m Don Daniels, Queensbury. That garage, many years ago, had gas pumps
out there, and the site’s been cleaned up over the years, and they don’t have gas pumps now. I
think it is, or should be an allowed use. There’s probably 1,000 different kinds of automotive
kinds of businesses or uses for many properties that could have been in the multi-use
categories, but obviously you can’t put every single thing in there. Mr. Stone, you made some
mention of the extra traffic that there might possibly be there, but there is a traffic light, and
people can go out to Richardson Street and be right at the traffic light and make easy turns. I
don’t think the, they don’t have parking for 1,000 cars there. So there’s only two small bays in
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(Queensbury ZBA Meeting 8/18/04)
there, and I know from many years that I’ve been out in that area working, that there’s been
three or four different garages that I’m aware of that’s operated out of that site.
MR. STONE-Thank you. Anybody else wish to speak on this subject? Any correspondence at
all?
MR. MC NULTY-No correspondence.
MR. STONE-Well, let me close the public hearing.
PUBLIC HEARING CLOSED
MR. STONE-Let’s talk about it. Let’s start with Mr. Abbate.
MR. ABBATE-Okay. Thank you. Having heard both Counsels, having heard the Zoning
Administrator, and the gentleman who just spoke before us, what are the facts? Basically the
facts are that there are no facts. That the prohibition or the approval of such activity was not
included, in my opinion, on any of the documentation. So here we have an omission. What do
we do with an omission? If there is an omission which, if there is no documentation which
specifically states that you may not conduct this type of activity, then my choice would be, we
cannot support Counsel. If there is an omission of any type of prohibited activity relating to,
and I think this gentleman, I don’t know your last name, sir, but I think you stated it quite well.
Then I think we have to vote in favor of the applicant, but that’s just my opinion.
MR. STONE-So how would you vote?
MR. ABBATE-Based upon a lack of documentation, I would have to vote in favor of the
applicant.
MR. STONE-Yes for the Appeal?
MR. ABBATE-Yes.
MR. STONE-Okay. Al?
MR. BRYANT-Thank you, Mr. Chairman. I think, even though the minutes of the ’89 meeting
are not really included as part of the actual resolution, they’re telling, and there’s some pointed
questions that t the Board members at that time asked relative to the type of operation, and
where the work is going to take place, and that sort of thing, but I think the most important
statement in the, to me, in the resolution is a statement that I already read and that is that there
is a two bay garage with a lift. To deny him this use would be to deny reasonable use of the
property. I think in an implied sense, when they say garage and a lift, they mean some sort of
repair, and based on that, I would have to vote in favor of the Appellant. Although I’ve got to
also say that I understand how the Administrator came to that conclusion, and why he came to
that conclusion.
MR. STONE-Roy?
MR. URRICO-I think what we have here is where both sides are correct. I think both sides have
a case that could be made because there’s really not enough information to go by. Even the
motion to approve variance doesn’t have enough information. I mean, we’re basically trying to
read everybody’s mind that was on the Board then, and so there’s not enough information there
to go by, and I think if we rule in favor of the Appellant, we’re going to be left with the same
situation. We’re not going to clarify this, and I think it needs clarification, and I would vote to
deny it at this point so we can move on to the application.
MR. STONE-Leo?
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MR. RIGBY-I think what we’re looking at here is, you know, we’re looking at the Zoning
Administrator’s decision that this is a mixed use area, and a mixed use area does not permit
automobile servicing within that area, and that’s really the issue in my mind. What it was used
for before plays a part in it, and I think that’s what we’re all struggling with. It is a mixed use
zone, and it is automobile servicing. So, looking at it that way, I think I find it difficult to say
that, you know, to vote in favor of the Appeal. I think, you know, to approach it fairly, we need
to look at it from your second approach here, coming the second time around, which would be
the next item on the agenda which would be to say, okay, it is a mixed use area. We all agree
with that. We agree with the Zoning Administrator’s decision that automobile servicing isn’t
allowed in a mixed use area, and let’s approach it new again. So I think I would not be in favor
of the Appeal.
MR. STONE-Okay. Chuck?
MR. MC NULTY-Well, several thoughts. I guess to start with, like everybody else has kind of
indicated, we’re dealing with a less than perfect resolution from 1989, but that’s not necessarily
a showstopper. When you’ve got a State law that’s fuzzy, there’s a bill jacket you can go back
to, and that’s basically a collection of memos and comments and thoughts that the legislator that
proposed the bill had and kind of explains why he wrote the bill the way he did and why it
became law, and that’s kind of what we’re doing here. We’re looking at a resolution and
saying, well, what did they really mean. We’re looking at the minutes as the backup for that.
I’m looking at it from that context and looking especially at the third item of the four that we’re
supposed to consider when we consider a Use Variance that says the requested Use Variance, if
granted, will not alter the essential character of the neighborhood. Now, given that, in looking
at the 1989 minutes, it seems clear to me that the approval was granted on the basis that the
auto maintenance referenced was to support the rental operation and was to be, quote first
level, end quote, maintenance only, and while it can be argued that the first level maintenance is
essentially the same kind of work that is now proposed, their previous grant was predicated in
the context that the work would be done and assumed that the entire operation would not be
disruptive to the neighborhood, and as has already been mentioned, mentioned in the minutes
at that time, I think by the applicant, they discussed junk cars, body work, engine changes, and
they specifically excluded them as things that would happen. So I think they were looking at a
relatively quiet operation at that point. The current proposal strikes me as being different, in
that it will attract vehicle owners, rather than renters, and those owners will understandably
want to test the work on their cars, either before or immediately after they pay for them.
Performance parts lead to loud exhaust, squealing tires, sound systems, and I think that was
mentioned last time, they were talking about putting sound systems in, and I presume, since
we’re talking about performance, that that’s going to include some of the ones that have the
deep base, and that the deep base tones out of those sound systems carry long distances. They
go through walls, closed doors, and actually can sound louder at a distance than they do up
close. My experience has shown also that there’s a noticeable portion of people that install these
types of things in their vehicles, performance parts and deep base sound systems, exhibit total
disregard for the adverse effect their unrestrained use has on the people around them. That
leads me, then, to my conclusion that the proposed use is, indeed, different than the previously
approved use because of the context that it sets in, and so, at this point, I would support the
Zoning Administrator. Now this does not necessarily mean I would oppose a Use Variance
application, because I think there’s some mitigating things that can be done, perhaps, to solve
some of this, but I don’t think it’s the same kind of operation proposed now as to what was
proposed previously. So I’d support the Zoning Administrator.
MR. STONE-Mr. Underwood?
MR. UNDERWOOD-I would have to essentially agree with what Chuck said. I think the
addition of high performance parts, when you’re changing over and putting flow through, fast
flow mufflers on and other, adding to the performance of the vehicle, as he mentioned, you’re
going to be testing that vehicle. In previous testimony from the neighbors, there was concern
about, you know, the residential areas off of Richardson Street leading down the hill there, and I
think at the same time I would support the Zoning Administrator’s viewpoint, you know, that
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there was nothing specific about changing. I’m sure that in a rental business they probably
were doing oil changes in there and some minor, you know, changing light bulbs on cars and
things like that, but I don’t envision that, you know, since it wasn’t a continuous operation over
the years, that they ever intended to have it as full fledged business as proposed.
MR. STONE-Well, I think I agree with, I know I agree with the majority. I think that a full
discussion of the issue is necessary. This is a different type of operation. Obviously, we’re all
sitting here trying to figure out what these seven people were thinking at the time, and that was
the dilemma facing the Zoning Administrator. I think he did an admirable job of looking at the
thing, understanding that this variance was for a leasing business. A leasing business means
that the applicant owned the cars. There was no public involvement whatsoever. Everyone
who came in there was expecting to find a ready to go car and they drove away and they
returned, hopefully in working order. The public had no further involvement in this business,
with the exception of paying to lease the car and returning it. I think that the Zoning
Administrator, in this case, has interpreted, as well as any of us could. I think someone said
earlier that both sides are right, and I agree, there’s arguments to be made on both sides, but I
think, since we have the opportunity to support the Zoning Administrator in this particular
case, and then listen to the arguments for a Use Variance, that’s what I’m inclined to do.
Having said that, I need a motion to deny the Appeal.
MOTION TO SUPPORT THE ZONING ADMINISTRATOR IN THE NOTICE OF APPEAL
3-2004, JONATHAN C. LAPPER, ESQ. FOR MIKE LUDWIG, Introduced by Charles McNulty
who moved for its adoption, seconded by James Underwood:
The appellant is appealing the determination the Zoning Administrator made that the Use
Variance allowing auto rentals and related repairs in 1989 is the same as the currently proposed
Performance Parts installation service. The Zoning Administrator determined these two
functions are separate and the new application is not the same. I suggest that the Zoning
Administrator is correct, and I move that we support the Zoning Administrator and deny the
appeal.
Duly adopted this 18 day of August, 2004, by the following vote:
th
AYES: Mr. Urrico, Mr. Rigby, Mr. McNulty, Mr. Underwood, Mr. Stone
NOES: Mr. Abbate, Mr. Bryant
ABSENT: Mr. Hayes
MR. STONE-Sorry.
MR. LAPPER-Moving right along.
MR. STONE-Are you now representing the Use Variance?
MR. LAPPER-Yes.
MR. STONE-Okay, because it doesn’t say that on the agenda, and I just didn’t know if you
were.
MR. LAPPER-Yes, Stephanie submitted.
MR. STONE-Okay. I’m not denying it. I’m just looking at the latest agenda.
MR. LAPPER-It’s probably just a carryover from when it was originally on.
MR. STONE-Yes, probably.
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(Queensbury ZBA Meeting 8/18/04)
MR. LAPPER-We submitted an Agency form, along with additional information.
MR. STONE-Okay.
OLD BUSINESS:
USE VARIANCE NO. 44-2004 SEQRA TYPE: II MIKE LUDWIG AGENT(S): N/A
OWNER(S): 52 MAIN STREET WEST GF, LLC ZONING: MU LOCATION: 52 MAIN
STREET APPLICANT PROPOSES AN AUTOMOTIVE CUSTOMIZING/RETAIL SALES
BUSINESS, WHICH INCLUDES THE INSTALLATION OF PERFORMANCE PARTS AND
SIGN WORK, AND SEEKS RELIEF FROM THE ALLOWED USES IN THE MU ZONE.
CROSS REFERENCE: SPR 28-2004, UV 52-1989, BP 8816, NOT.AP WARREN COUNTY
PLANNING: MAY 12, 2004 ADIRONDACK PARK AGENCY: N/A LOT SIZE: 0.19 ACRES
TAX MAP NO. 309.10-2-28 SECTION: 179-4-020
JON LAPPER & STEPHANIE BITTER, REPRESENTING APPLICANT, PRESENT
MR. STONE-This application was tabled, and you’ll read the tabling motion.
MR. MC NULTY-I will do that. On Wednesday, May 26, 2004, we had a motion, “MOTION
TO TABLE USE VARIANCE NO. 44-2004 MIKE LUDWIG, Introduced by Lewis Stone who
moved for its adoption, seconded by Paul Hayes:
52 Main Street. For up to 62 days, to allow the applicants to provide, at a minimum, the
competent financial evidence to show that all uses cannot provide a reasonable return, and
comment on other areas of this test.
Duly adopted this 26 day of May, 2004, by the following vote:
th
AYES: Mr. Rigby, Mr. Underwood, Mrs. Hunt, Mr. McNulty, Mr. Hayes, Mr. Stone
NOES: Mr. Bryant”
STAFF INPUT
Notes from Staff, Use Variance No. 44-2004, Mike Ludwig, Meeting Date: August 18, 2004
“Project Location: 52 Main Street Description of Proposed Project: Applicant proposes an
automotive customizing / retail sales business, which includes the installation of performance
parts and sign work.
Relief Required:
Applicant requests relief from the permitted uses of the MU Zone, §179-4-
020.
Parcel History (construction/site plan/variance, etc.):
UV 44-2004: tabled 05/26/04, same as
current application, tabled due to a lack of competent financial evidence.
SP 28-2004: review to be in June pending the outcome of this application.
UV 52-1989: 05/24/89, request to allow an additional use, automotive leasing and related usage
to the existing heating, air conditioning and refrigeration sales use.
BP 88-016: 01/22/88, interior alterations.
Other BP’s for freestanding and wall signage.
Staff comments:
As noted in the May 26 staff notes, the applicant is proposing, in addition to the allowable
th
retail sales use, to use the existing lift in the garage bays for the installation of performance
automobile parts and automotive tuning. This part of the proposed business falls under the
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(Queensbury ZBA Meeting 8/18/04)
automotive service use, which is not an allowed use in the MU zone. As part of the applicant’s
demonstration to show the applicable zoning regulations and restrictions have caused an
unnecessary hardship in this case, the applicant in “Attachment 1” describes why the permitted
uses in the MU zone would not be suitable for the structure and site due to the size of the site
and the existing design and setup of the building (automotive bays with lift). The board tabled
the application on May 26 to allow the applicants to provide the necessary competent financial
th
evidence to show that all of the allowable uses of the MU zone cannot provide a reasonable
return. Even though the applicant has provided additional information (BBB Construction and
Robert Sears attachments), it still appears the applicant has failed to demonstrate, by competent
financial evidence, that a reasonable return cannot be realized with each and every permitted
use listed for the MU zone. In fact, the applicant is proposing a permitted use…retail sales.”
MR. STONE-Any County?
MR. MC NULTY-There was County, I think, back on the original one, and it was No County
Impact.
MR. STONE-Okay. Before I turn it over to you people, let me just explain to those in the room,
after having heard the previous argument about the 1989 decision, there has been a significant
change in the New York State law regarding Use Variances, as a result of a court decision. If
I’m saying anything wrong, Counselors, you know more than I do about it, but it’s a very
restrictive variance, and you will hear us talk about four items under the criteria that we must
use. In this particular case, each and every one of these must be answered yes by Board
members.
MR. LAPPER-I’m probably confused, but the standard in ’89 was unnecessary hardship, I
believe. Area Variances have changed significantly.
MR. STONE-No, Otto came in after that, I believe. Didn’t it?
MR. LAPPER-I think Otto was before ’89, but the standard that was quoted in the minutes was
unnecessary hardship. I think Otto explained unnecessary hardship in greater detail, but the
standard was the same.
MR. STONE-Okay. Then I misspoke, but the point is, as far as our work, it’s very different, very
restrictive, in terms of granting a Use Variance, but having said that, I won’t go any further. Go
ahead.
MRS. BITTER-I’m Stephanie Bitter, together with Jon Lapper. I’m here with the applicants,
Mike Ludwig and Brad LaCross. As you had indicated, the application was tabled on May 26,
th
and it was requested that the applicant present additional financial information. With that, we
responded with a letter from Robert Sears who is a real estate broker who has 14 years of
experience, who had identified in that letter that the subject property in his professional opinion
cannot yield a reasonable return with either a buyer or tenant in the current zone, due to the fact
that it would be impossible to recover the investment that would have to be encumbered to
convert the structure into a permitted use. As you’re aware, we’re talking about the mixed use
area. In addition, we also submitted documentation from BBB Construction, which identified
the conversions that would have to be made in order to have the structure have a permitted use,
under the Mixed Use zone. As you’re aware, and which we were discussing with the prior
application, the structure as it exists has a small 800 square foot area, and then it has two large
garage bays. The 800 square foot retail area is such a small portion of the entire structure that
exists, and the use that is being proposed will be described by the applicants in further detail,
but just to respond to Mr. Brown’s comment that they’re proposing a retail use, it’s in such a
small portion of the building, it just has to be stressed to the Board how small that portion is. In
relating to the test, if I could just go through the test real quickly, and then I’ll give the
applicants an opportunity to describe the use. Is a reasonable return possible if the land is used
as zoned? It’s our position, due to the financial information that we submitted by Bob Sears, as
well as BBB Construction that, no, it can’t be. Is the alleged hardship relating to this property
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(Queensbury ZBA Meeting 8/18/04)
unique? Yes. As I identified, the structure as it exists has two garage bays with lifts that is
probably 75% of the square footage of the structure. So that does have a hardship which is
unique. Will the requested Use Variance alter the essential character of the neighborhood? Our
position is no. It’s always been, and has been observed as a garage setting, and that’s what
we’re trying to use it as. Is the alleged hardship self-created? No, that structure was
constructed prior to that way in which the current Zoning Regulations are zoning the property
at this time. I’m going to turn it over to the applicants now to explain the use.
BRAD LA CROSS
MR. LA CROSS-I’m Brad LaCross. Basically what we do is we sell performance parts, exhaust
intakes, suspensions, wheels, anything that would basically customize a vehicle to someone’s
tastes. We are very adamant about our customers with taking these sorts of vehicles to the legal
areas to do these sorts of things, to test out their vehicles. I know that was addressed, you
know, people testing their vehicles. That’s the Number One thing we stress to our customers is
that you need to take this to a drag strip, a track. If you’re going to enhance the performance of
your vehicle, you know, you need to keep within the limits of the law. Nothing we’re doing,
we’re not installing stereo systems. We have no interest in stereo systems. We will never work
with stereo systems. So the issue of the loud base or anything like that will never become an
issue. In fact, I would say 90% of our existing customer base, before we moved into this
building, has no interest in stereo system. I don’t have a means of proving that, but the people
that are geared more towards performance aren’t the typical car people that you would see on
the road. They’re generally a customer base. I would say 25 to 30 years old. The majority of
vehicles we work on are a higher end vehicle. Granted we do get, you know, a few vehicles that
are, you know, not something that the people that do create a problem, but a majority of our
customer base are Subaru owners, Nissan owners, Audi owners, BMW owners. They’re people
that are enthusiasts. They’re people that already are, you know, they’re spending large
amounts of money and they’re already established in the community. They’re upstanding
citizens, and we gear our business in that direction. We try to weed out that sort of activity. I
don’t know if you have any specific questions as to what we do.
MR. ABBATE-I’m not so sure this question should be addressed to you, but rather your
attorney, but I’ll try you, and if your attorney does not want you to answer, I’ll address it to
him. Are you suggesting that if this application is not approved, that there is no way, under the
current circumstances that your company could expect to receive a reasonable return on your
investment?
MR. LAPPER-Well, let me just answer is this way. The property owner who is named in the
application, it’s really, it’s Mr. Dobert who has the hardship. They’re applying. They want to
lease the building, but it’s Mr. Dobert that really has the hardship, that his building can’t be
used for a permitted use because of the size of the site and the nature and design of the
building. So that is what we’re saying, that when you go through the MU zone, that it would
take a large, unjustifiable investment to turn this building, with the slab and the garage bays
and the hydraulic lift, into a permitted use, given the constraints of the size of the lot, the
parking, all that.
MR. ABBATE-Okay. Then how would you answer this? That the mere fact that the property
owner may suffer a reduction in the value of their property because of the zoning regulations or
the fact that another permitted use may allow the sale of the property for a better price or
permit a large profit does not justify the granting of a variance, on the grounds of unnecessary
hardship.
MR. LAPPER-This is not a case where it’s not being sold, it’s being leased to them. So it’s not a
profit issue. The building has sat vacant since the last use left. The building has been vacant
periodically over the years. I know from driving by it’s had a whole bunch of different uses, a
whole bunch of different tenants. There really is something wrong with that building in that
location. It’s close to the road. It’s a small parcel. It’s not conducive to having retail customers
pull up. You’ve got to park in the back. You can’t really see that, you know, that kind of thing.
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(Queensbury ZBA Meeting 8/18/04)
MR. ABBATE-Thank you very much.
MR. BRYANT-I just want to continue on his line of questioning. Has the applicant already
signed a lease with Mr. Dobert?
MR. LAPPER-Yes.
MR. BRYANT-They have, and is the lease contingent on the approval of this Use Variance?
MR. LAPPER-Well, what they have is a month to month lease, and, I mean, if they don’t get the
variance, they’ve got to go somewhere else.
MR. BRYANT-Could the owner be more specific about performance parts? What does he mean
by performance parts? What exactly are you talking about?
MR. LA CROSS-They would be aftermarket parts that you would put on your vehicle.
MR. BRYANT-What would you put them on the vehicle for, specifically? Does it make the
vehicle sound louder? Does it make it go faster?
MR. LA CROSS-Some of them would make the vehicle have better gas mileage. Some of them
would make the car more customized visually, like a set of wheels. You wouldn’t have the
same appearance as a factory vehicle. Some of the customer base are enthusiasts with auto
crossing or track racing and they would want to do suspension work to their vehicle, install a
set of springs or, you know, sway bars or something to make the car handle better.
MR. BRYANT-Because when I visualize a performance part, I think about race cars and
demolition derby, and, you know, all this sort of stuff, roll bars, I mean, all this.
MR. LA CROSS-No. You definitely wouldn’t want to wreck any of these vehicles. It’s people
that are interested in, some of the customers are a, you know, they want to show their cars. It’s
not very much, it’s something, you know, to make the vehicle unique to that customer.
MR. BRYANT-So what is the percentage of performance versus visual aesthetic improvements?
MR. LA CROSS-I would say probably 60% would be performance, in the mind of suspension or
horsepower increases to the vehicle. We don’t really get into too much body work. However,
we work with, you know, wheels. We might sell like a lightweight fiberglass hood or
something like that. Something that would make the vehicle lighter.
MIKE LUDWIG
MR. LUDWIG-If I could clarify something real quick. Mike Ludwig. We actually deal with no
body work. We outsource that to a gentleman in Argyle, where we send a vehicle out there and
he deals with the body work. We’re not having anything to do with auto body repair or
anything like that. I just thought I’d clarify that for you gentlemen.
MR. BRYANT-So you’re not going to paint anything and you’re not going to have fumes, or any
of that stuff?
MR. LA CROSS-Absolutely not. We’re not using any volatile organic chemicals, anything like
that. We’re not venting any chemicals into the place. We’re not even storing oil. Like I had
mentioned before, we’re not doing oil changes. We’re not, you know, holding toxic chemicals
on the property. That’s not in our interest. We do not want to be a service shop. We want to be
a performance shop. We’re interested in installing the parts that we sell, and actually if
somebody brings us other parts, we’re going to charge them more money because we know
what we sell. We have confidence in our products, you know, we’re into upgrading this car.
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(Queensbury ZBA Meeting 8/18/04)
We’re not servicing. It is a service. It’s going to fall under service work, but it’s not something
where I’m doing maintenance work. You’re not going to come to me to get your oil changed.
You’re going to come to me when you want to upgrade your suspension, your brakes, things
like that. We want to make the car handle better. We want it to be more appealing to not only
the owner but to the public.
MR. ABBATE-Did you already sign a lease?
MR. LA CROSS-We do have a lease with Mr. Dobert.
MR. ABBATE-You did sign a lease?
MR. LA CROSS-Yes.
MR. ABBATE-And when you signed this lease, were you aware of the fact that you were going
to have to request a Use Variance? Before you answer that now, the reason I bring that to your
attention is that the law is quite specific that a Use Variance cannot be granted where the
unnecessary hardship was created by the applicant. So be careful how you answer that.
MRS. BITTER-It was my understanding that Mr. Ludwig identified in the May 26 appearance
th
that he was, it was identified to him by the owner that the owner was under the impression that
the 1989 Use Variance would permit this use.
MR. ABBATE-Yes, you’re right, but see the Chairman, you know, I supported your application,
obviously, initially, but this is another case. The Chairman made it quite clear that you have to
specifically meet certain requirements. It’s not that, we have absolutely no discretion in this
matter, in that the Use Variance, if the unnecessary hardship, it appears to me, was created by
the applicant, the law prohibits us from issuing a variance.
MR. LAPPER-That’s an important point, and I want to be really clear on this. The hardship is
Mr. Dobert who is the owner of the building, these guys have an idea to propose a use that is
not a permitted use, but they believe is a compatible use with the building, and with the
neighborhood, because of the nature of the building with the garage bays, and it’s historical use.
The person with the hardship is the owner of the building who is having a hard time finding
somebody to lease it for any of the permitted uses such as a convenience store, just to give you
an example, because of the building and the lot, and that’s the party that has the hardship, not
these guys.
MR. STONE-This is one of the things that’s been troubling me, Mr. Lapper, and I had talked to
the Zoning Administrator. When we get into a situation like this, it’s almost like he said, she
said. I agree with you. The owner of the building is the man who has to meet the test.
Therefore, I wonder why your clients are forced to go through this when all they want to do is
rent the building to conduct their business, but the Use Variance is being really requested by
Mr. Dobert, and the last time he was here. He may be here tonight, I don’t recognize him, but
he came up and gave supporting material, but it seems to me that that’s the person who should
be in front of us and not these two gentlemen who are merely trying to start a business and
make a living.
MR. LAPPER-Your point is well taken, but I think that they’re the party that is responsible for
this in their agreement with the owner. Because they’re the ones that want to use the building.
If they had anticipated, on the front end, what this would entail legally, which certainly they’re
a couple of guys that know a lot about automotives. They don’t know a lot about land use.
MR. STONE-Right.
MR. LAPPER-They might have been able to negotiate a deal where it was Mr. Dobert’s
responsibility, but they’re here, as applicants, really making his case. So that’s something that
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(Queensbury ZBA Meeting 8/18/04)
they’ve agreed to do, but it’s his case that there’s a problem with the building that doesn’t make
it fit in the MU zone.
MR. ABBATE-But, you know, it’s on the record, and it chokes me to say this, but I think the
Chairman was right. You just made my case for me. In effect what you did say you agree with
the Chairman that the case is really not these gentlemen. I don’t have any problems with what
you’re trying to accomplish, believe me.
MR. LAPPER-They’re agents of the owner, and that’s how the forms are filled out, the Agency
form. They’re agents of the owner.
MR. ABBATE-Okay. If they’re going to be agents of the owner, then they have to assume the
complete responsibilities of the owner, and if they’re going to assume the complete
responsibilities of the owner, then they come under the Use Variance which cannot be granted
where the unnecessary hardship is created by the applicant, and you, in fact, when you signed
the lease, created it.
MR. LAPPER-No. This building was built before there was zoning. I mean, in terms of the
hardship, the hardship is that this building was built as a garage before a garage was not
permitted in the zone. That’s the hardship. It has to do with when the building was built. The
building was built and designed as a garage. It has two bays, and it’s not, these guys are just
trying to prove to you that what they’re proposing is not going to hurt the neighborhood and is
a reasonable variance.
MR. ABBATE-Okay. So let me ask you this, gentlemen. If this variance is not granted, okay,
will that create a hardship for you?
MR. LUDWIG-It will certainly create a hardship for us, but that’s not the case. I mean, I’m
sorry, Mike Ludwig. It will not only create a hardship for us. It will also create a hardship for
Mr. Dobert. I had recently spoken to Steven from the Fire Marshal’s Office there, and he
informed me that the building hadn’t been occupied legally for a year and a half. Come to find
out, the gentleman that was in Sign Craft did not have a Certificate of Occupancy. So I think
that, for a year and a half of the building not being legally occupied, certainly represents a
hardship for Mr. Dobert there.
MR. STONE-But by the same token, you have been occupying it for the purposes of fixing it up,
I’m told. I did have a conversation today with Mr. LaCross, very briefly, and he told me,
because I was there specifically to look at, to see if it was being used, because I had driven by
the other day and seen lights on, and I was told it is being used to fix up a building and receive
deliveries. I believe you said that.
MR. LA CROSS-No, I did not say that. We’re using the building right now to set it up in
preparation for the risk that we’re taking to, you know, to get this Use Variance. Seeing as that
we’re already renting the building, at our expense, we couldn’t possibly sit and, you know,
twiddle our thumbs until the Use Variance actually happened to set the building up. We
wanted to be prepared and ready, so that when we opened the doors, we can have the ball
rolling and get going with it.
MR. STONE-Has anything been delivered there? I did notice a Fed Ex box in the window.
MR. LA CROSS-To set up the building. A lot of the things are things I’m bringing over from,
you know, this is an existing business. The business is, it’s two years now that it’s been
established, and, you know, things need to be brought over. The tooling to prepare to do the
work on the vehicles, the parts to be sold. The inventory was already actually being in storage.
This was run, Mike and I had been separate before this, and I ran an Internet based business
from my home where I kept all the parts in storage at my house. So a lot of those things are
being brought over in preparation.
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(Queensbury ZBA Meeting 8/18/04)
MR. STONE-Okay. They’re your owner, you have ownership of the things you brought over?
MR. LA CROSS-Yes, everything is in my ownership.
MR. STONE-Okay, because taking delivery constitutes running a business, and you’re saying
you didn’t. That’s fine. I won’t go any further.
MR. URRICO-I have a question of Staff or Counsel. In 1989, was there such a thing as a Mixed
Use?
MR. BROWN-No, no, there was not.
MR. URRICO-Okay. What we have here is a Mixed Use zone, which means that either, several,
it’s a multiple use zone. So we’re not talking about an area that’s zoned residential being used
for a different use. We’re talking about a different use in a Mixed Use zone. I just wonder if
we’re judging this too harshly. We’re not talking about a different type of business entirely.
MR. BROWN-I guess what we’re talking about is a use that’s not listed in our Use tables.
They’re seeking to establish that use in the zone.
MR. STONE-And that’s the guideline that Craig has.
MR. URRICO-I understand that.
MR. LAPPER-Let me just give you some examples of what’s permitted in the Mixed Use zone, a
bank, a convenience store, a daycare center, a gallery, whatever that is, a gasoline station, office,
personal service business, professional office, restaurant, retail business, seasonal produce
business.
MR. BRYANT-We’ve already established that that’s not on the list.
MR. LAPPER-But those type of uses are the type of uses that, but Roy was pointing out.
MR. BRYANT-Those are the type of uses, but some of them, for that lot, would not be
reasonable.
MR. LAPPER-And that’s our point.
MR. URRICO-But under normal circumstances, would we be judging the business, the type of
business it is, if somebody is coming forward for a Use Variance, this full test is basically aimed
at a different use than what it’s zoned for, not a multiple use, and I think we’re talking about, I
don’t know, I guess I’m not. To substantiate their argument, they would have to justify why it
needs to change from one use to another. We’re not doing that here. We’re trying to
substantiate why it should be considered under a Mixed Use zone. We’re not asking, we’re not
changing the zone. We’re not changing the.
MR. MC NULTY-I think we are. The definition for a Mixed Use, if I remember correctly, says
basically it’s supposed to be a mixed residential and commercial use, and automotive repair is
not included in commercial use.
MR. URRICO-But gasoline stations are.
MR. BROWN-Right.
MR. LAPPER-Right.
MR. MC NULTY-I’ve got two or three things. One, thought, before I lose it, for the Board, we’re
talking about what they are, or will not do in this area. If we get to the point of drafting a
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(Queensbury ZBA Meeting 8/18/04)
resolution, we’re going to need to be real specific about what they cannot do, because this is a
Use Variance and it goes forever. So we don’t want to do an approval just for automotive
repair. Now, to try to muddy the water a little bit here, a couple of thoughts. They’re leasing, I
gather, what’s identified now as Lot 28. The proposal by BBB Builders talks about adding a
second story on the building and some kind of connector to the house next door. Is that house
next door on the same lot, or is that on Lot 27? It’s a question for whoever, because looking at
the 1989 Use Variance, that included what is now Lots 26, 27, and 28. The material that we got,
at least from Staff notes and what not, now kind of indicates that this request pertains strictly to
Lot 28.
MR. BROWN-That’s correct. The others are separate parcels.
MR. MC NULTY-Okay. Then saying that it’s not reasonable to connect the house to the
building strikes me as being off base on this one, because we’re talking about one lot. We’re not
counting the lot that’s got the house on it.
MR. BROWN-That’s correct.
MR. LAPPER-He’s trying to make the argument as to what it would take to make this conform
with zoning, and that this building, in and of itself, for what it is, that this is a very difficult
building to make it conform. He talked about a lot of aspects of the building, the slab, the work
that would be required because of the nature of the building itself, and we just keep going back
to the fact that it’s a garage and to turn this into a daycare center or a convenience store, that
that’s going to take a major investment out of a building and a lot that can’t accommodate it. I
agree with you that the analysis that includes the lot next door, he’s going beyond what he has
to do, but he’s saying that that’s what it would take to make this a conforming use. That there’s
not enough land.
MR. MC NULTY-I think, my view at least at this point would be should we try to approve this
Use Variance we’d be on shaky ground, because the financial evidence that we have here
pertains to two or three lots, not to the one under question, and it also strikes me that while we
can kind of look at things and say logic says okay, you probably couldn’t make that a
convenience store, or you couldn’t make it a bank. Probably because of parking limitations or
whatever, but I don’t see any financial evidence or specific information that says that in the
documentation right now.
MR. LAPPER-Well, even if you took out the part about the other lot, I mean, there’s plenty of
evidence here about what it would cost to renovate what’s there now, and just in terms of
finding someone to make that kind of financial commitment, the fact that the building has been
vacant, that no one’s come along, that Mr. Dobert’s been trying to rent it is part of our proof.
MR. STONE-Yes, this is one of the things that troubles me. I mean, the Use Variance criteria are
very specific, cannot realize a reasonable return substantial as shown by competent financial
evidence. Financial evidence is dollars and cents, what the business can hope to, I mean, what a
business, any use there can hope to make with the attendant taxes, with the cost of money, rent,
whatever, we get statements, and we’ve had these before, and we’ve chaffed before, and I’m not
knocking Mr. Sears and his judgment, but that’s what it is. It is judgment. It is not evidence.
The building thing, as Mr. McNulty has pointed out, is flawed. Again, it’s not numbers, in
terms of the business, the use that this property will be used for.
MR. LAPPER-I guess, in the big picture, Mr. Chairman, we could have gone through every use
and come up with a dollar number, and we can, if that’s necessary, to delay this, but everyone
knows what we’re talking about in terms of the structure itself. Concrete block on a slab, with a
hydraulic lift on a small lot, and what Mr. Sears is saying that this is not suitable for the uses in
the MU zone, and the builder is saying this is what it would take. You’d have to make a major
financial investment to make this into a conforming use. Can they be more specific? Yes, but I
guess we looked at this and said, gee, it’s pretty obvious what you’ve got here, in terms of the
type of building, and the lot.
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MR. STONE-Okay, but anecdotally, one of the most successful restaurants in New Jersey, when
we lived down there, was a garage, what was formally a garage, and they had a very upscale
clientele, very upscale menu. It was a restaurant. It was a garage to start with.
MR. LAPPER-And the problem here is parking, that on this lot, that a garage requires one spot
for every four seats, plus one for every two employees, or restaurant, excuse me, and that, you
don’t have enough land here. It’s a tight lot, and this is not the kind of use where you’ve got
people lining up.
MR. STONE-Okay. That’s a very good argument.
MR. LAPPER-They’re not going to have a lot of people lining up for a customized work, like,
you know, like going through Dunkin Donuts.
MR. STONE-And you have given us another piece of, quote, financial evidence, but not for
every use, and it may apply to a lot of these things. That may be an argument that can be made.
That there’s not enough parking to do some of these other things.
MR. LAPPER-I think Bob Sears alluded to that in his letter.
MR. STONE-He alluded to it, but that’s not.
MR. LUDWIG-You had actually told me that you had requested Bob Sears’ opinion and you
said if I could provide information from a gentlemen like that that would be acceptable proof,
and that’s what we’ve done, and now you’re telling me.
MR. STONE-Well, I don’t think we said it quite that way.
MR. LUDWIG-You had suggested that if we had gotten an opinion from Bob Sears that that
would be evidence to bolster our case.
MR. STONE-And it does.
MR. LUDWIG-Okay.
MR. STONE-It bolsters your case.
MR. ABBATE-When, and if you don’t agree with me, say so. When we talk about granting a
Use Variance, we’re talking about what’s known as uniqueness, a singular disadvantage. I have
yet to see some type of proof that this property, this particular property, suffers a singular
disadvantage through the operation of a zoning regulation before a variance can be allowed on
grounds of unnecessary hardship. So I haven’t seen any proof dealing with uniqueness, unless
it’s in front of me and I just can’t see it.
MR. LAPPER-I guess, in all honesty, Steph and I are trying to help out a couple of young guys
make their case, because they were before you without assistance, and if we were representing a
large franchise or something, which is more typical, we could, we would have gone through
every one and said, why won’t this work as a daycare, in great detail, why won’t this work as a
convenience store, why won’t this work as a bank, and I guess some of this stuff I think is
apparent because of the nature of the building, but if what you’re, if the message you’re
delivering is that we have to come back and do the math on every one of these, I mean, we
certainly can. What we attempted to do was to bring some math in that talked about renovating
this building, which is, you know, unheated, on a slab, isn’t going to comply with the building
code for any of these uses.
MR. ABBATE-You see, if it were up to me, and I had nothing, if I were not bound by certain
rules and regulations, I would say to you guys, let’s go for it. I’m all for it, and I’ll support you
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100%, but I can’t allow, on a personal basis, I can’t allow myself to think like that. I’m guided
by strict rules and regulations by the law, and I’m just trying to stay within the framework of
that law.
MR. LAPPER-Well, we’ve provided you with a per square foot construction cost for renovating
the building, which is hard to justify, based upon what you’ve got there, based upon the size of
the building and the lot, and if you’re telling us that you want more, we’ll get you more. It’s
just that, you know, these guys would like to get going, and they tried to answer the questions
that the Board asked the last time they were here.
MR. RIGBY-I just have a couple of questions. Craig, if we grant the variance on this, are we
granting a variance for all auto sales and service related activities, or are do we have to be
specific in our resolution, and will that limit what can be done at that site?
MR. BROWN-Well, I guess maybe Mr. McNulty tried to make that point earlier. Is if you’re
considering an approval of the Variance, you want to be very specific as to the types of uses that
you’re granting under the Use Variance, for the sole purpose of avoiding what happened in
1989 where the Use Variance was granted with related uses. It’s difficult to pin anything down
when you have an so forths and related uses and uses of the like. You have to be very specific
when you do that.
MR. RIGBY-And that would limit the future variance?
MR. BROWN-It would limit the future use of the property to those specific uses.
MR. RIGBY-Okay.
MR. MC NULTY-That was my point. If they say they’re not going to install sound systems, but
we don’t specifically say this does not include the installation of sound systems, then the next
guy that comes along could install sound systems, we would have given him permission.
MR. RIGBY-So we have to be very specific on what this property is used for, and only that, if
we’re going to grant the variance.
MR. MC NULTY-That would be my belief. Especially when considering the neighborhood in
saying something that would create a lot of noise wouldn’t, would essentially alter the nature of
the neighborhood.
MR. RIGBY-Which leads to my next question, too. My next question is, you know, we had
people here for the public hearing last time we went through this. Can we go over a little bit
again, and I don’t want to belabor this too long, but can we get a sense of what those people
said about the development of, or the variance use for that property.
MR. STONE-Well, it’s in the minutes.
MR. RIGBY-Yes.
MR. LAPPER-I think it was one gentleman who was concerned with people racing down the
street.
MR. STONE-That’s right.
MR. LAPPER-But, I mean, you’re not going to have people racing anyway.
MR. UNDERWOOD-What are your hours of operation? I don’t know if you specified that.
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MR. LA CROSS-We didn’t specify that, but typically it would be anywhere between eight in the
morning until seven o’clock at night, something like that. We’re not interested in working later
than that.
MR. UNDERWOOD-Because on the original variance, the hours of operation were limited from
eight to five p.m., Monday through Friday, and eight to twelve on Saturdays only.
MR. LA CROSS-We’d be open to limitations.
MR. LUDWIG-If we had to fit within those limitations, we certainly could do that.
MR. MC NULTY-Page 47, the public hearing opened.
MR. STONE-Right.
MR. BROWN-The public hearing was closed last time.
MR. STONE-Yes, we did close it. No, we’ll have to re-open it, in all probability, but there was
somebody, for you, Mr. Rigby, there was a man, Bruce Allen, who lived on Richardson Street,
who had some concerns with hazards on the road, and he was concerned that there would be
test drivings, if you will, if that’s such a word, test drives of people who came out of the thing
and obviously didn’t want to go out on Main Street and ran down Richardson Street. That was
his concern, and we had some notes, basically of that nature. There was nobody totally
supportive, as I remember.
MR. LA CROSS-As I recall there was one letter from a singular anonymous letter, which Mr.
Hayes had moved to have stricken from the record because of the contents of that letter. It was
anonymous and it was ridiculous.
MR. STONE-Yes, well, it’s in here. There was a note from, it said that the Fire Marshal got a
note, an anonymous note, is what I guess was.
MR. MC NULTY-Well, there’s two things here, and I’ll agree with what Mr. Hayes said last
time that it’s nice to have a name attached to things if you’re going to provide much credibility
for it, but at the same time, the fact that it’s mentioned, the first thing we had was the report, it’s
in here, report of complaint that said basically a lot of kids fixing cars and burning the tires,
corner of Main Street and Richardson Street, TB Racing, and then there was the anonymous
letter that I think essentially said the same thing, loud music, cars spinning tires, motor vehicles
being worked on late at night, sometimes past 11 p.m.
MR. STONE-And you said, in response, you said that’s not the kind of business you run.
MR. LUDWIG-Were there one or two letters?
MR. STONE-There were two.
MR. LUDWIG-There were two. We did not receive the second one. I had gotten a copy of the
anonymous letter. I was not aware that there was a second letter.
MR. MC NULTY-Well, I think the other one wasn’t a letter. It was a Fire Marshal or
somebody’s complaint.
MR. LUDWIG-Okay. I had spoken to Steven directly on a couple of occasions, and in response
to that one letter that you had received, the moment he drove into our parking lot he was
looking for black marks, tire marks, and there are none, and you were there today. I’m sure, I
don’t know if you were observing.
MR. STONE-I didn’t look for black marks.
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MR. LUDWIG-Well, I’d just like to testify to the ridiculousness of that correspondence.
MR. STONE-Okay. That was in response to a question, and that’s in the minutes, but if there’s
no more questions, I will let anyone speak.
MR. UNDERWOOD-I just had one question. Does Dobert own the adjacent lots, as you go
further along there?
MR. LUDWIG-He owns the one immediately next to the lot, and that is.
MR. MC NULTY-I think he also owns the next one east, too.
MR. BROWN-East.
MR. STONE-If you’re looking at the building from Main Street, to the left.
MR. LUDWIG-I don’t believe he owns the three lots. I believe he owns the house next to us and
the one in the building that we rent from him. As issued in my drawings, the lands are
separated out there.
MR. STONE-Anyway, let me re-open the public hearing for anybody who wishes to speak on
this subject.
PUBLIC HEARING RE-OPENED
DON DANIELS
MR. DANIELS-I had a question that I wanted to ask. I’m Don Daniels. One of the questions
that I was curious about, because in this multi-use, retail sales are allowed, and they will have a
store there, and I wonder how many of the people that buy these performance parts will
actually be just ordering them and buying them and taking them and doing work at their home,
or if everything is done at the garage there. That was my question.
MR. STONE-Okay. Sir, may I ask. Do you live near?
MR. DANIELS-I have six different properties within the 500 feet of that, and I got.
MR. STONE-Okay. So you were notified. You were one of the people notified.
MR. DANIELS-Yes. I was asked to come here and I came, rather than send letters.
MR. STONE-No, fine. Thank you. That’s fine. Anybody else wishing to speak on this subject?
Any new correspondence?
MR. MC NULTY-No new correspondence.
MR. STONE-Then I’ll close the public hearing.
PUBLIC HEARING CLOSED
MR. STONE-Any comments you want to make about what Mr. Daniels said? That’s the only
thing on the table.
MR. LA CROSS-Of course some customers will purchase the parts and install them themselves.
Other customers just don’t have the interest or the time to do it themselves, or it’s beyond the
reaches of, you know, you would need the mechanical aptitude to do that sort of thing. It’s a
mixed space.
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MR. STONE-Any other questions before we talk about it?
MR. URRICO-Yes. I have one more question. How long was that building vacant before you
folks occupied it? Do you know? Does anybody know?
MR. LA CROSS-There’s not been a legal occupant, as far as I know, for at least a year and a half.
MR. LAPPER-When did the sign guy leave?
MR. LA CROSS-It was a short period of time between the time where Carl had left Champion
Signs, and it was reoccupied, but that fact is is that the building has not been legally occupied
for a year and a half.
MR. LAPPER-I think that there was a period before the sign guy came in that it was vacant for a
while.
MR. STONE-Yes, but until two months before, according to Mr. Dobert, it was occupied. It may
have been, you’re right, an illegal occupancy, but it was occupied, and he obviously was taking
legal dollars for rent, I assume.
MR. LAPPER-It would be up to the tenant to be in compliance with zoning.
MR. STONE-I understand. Okay. Let’s talk about it. Al, let’s start with you.
MR. BRYANT-Thank you, Mr. Chairman. I want to touch on all four criteria briefly. The first,
the reasonable return issue. I agree with the Chairman somewhat where normally the type of
financial data that’s provided is very specific. I pay X number of dollars for rent. I pay X
number of dollars for insurance, taxes, whatever, and if I don’t do this, this is going to be the
end result, and normally that’s the type of application that we see. I think in this case, the
business is not operating. The data that you provided, indicating the renovation costs would be
around $500,000 for one of the permitted uses, and as I looked down the use of permitted uses,
the restaurant aspect, some of the retail, these are not really reasonable uses. So, on a fifth of an
acre, you’re going to spend $500,000 to put a produce stand. So in my view the data that you
provided is sufficient enough for me to make that determination. Item Number Two, relative to
the uniqueness to this property, in this sense I do disagree with Mr. Abbate. The uniqueness is
clear. The building has two bays and has a lift, and it’s been used traditionally as some sort of
garage, not necessarily an out and out repair shop, but it’s been used to do something with
vehicles. Even back when it was a heating thing, there was work being done in that garage.
The third point is relative to altering the character of the neighborhood, and frankly I pass that
site very often. The building is empty now. It’s generally empty. When the sign people were
there, they had their signs outside, doors were always open, and people coming and going. As
long as I can remember, for the 25 some odd years I’ve been in this area, it’s always been a
garage. So I don’t think that this type of operation is going to alter the character of the
neighborhood. I think not allowing this Use Variance may alter the character of the
neighborhood, simply because the neighborhood is going to deteriorate. The building is going
to remain empty for God knows how long before another tenant comes along who wants to do
something with it, but reasonably so, somebody is not going to want to invest half a million
dollars in a produce stand, and finally, the issue of self-creation, and I don’t think the tenants
here created this condition. I don’t think Mr. Dobert created this condition. It was a garage
before the zoning took affect, and it’s a condition that existed with the building, you know, for a
long time. That being said, I’m going to be in favor of the application with a lot of restrictions. I
want to be very specific about the type of equipment we’re going to install. The type of
equipment we’re not going to permit, including the sound systems, we’re not going to do major
engine overhauls. We’re not going to do body work and that sort of thing. It’s very specific,
very narrow use allowance.
MR. LAPPER-That’s totally acceptable.
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MR. BRYANT-And that’s my view, Mr. Chairman.
MR. STONE-Before I go to Roy, let me just make a comment. You’re using the number of
500,000, which is for the project that BBB Construction used, which seems to, as Mr. McNulty
pointed out, include the second story addition and a connection. I’m not sure, the only number
I see, I don’t see a number for just renovating the building. If you think you, I’m not arguing
with you, Allan, but I just, I don’t think the 500,000 is.
MR. BRYANT-Well, I think reasonably, having gone into the building, and seen the building,
the fact that, the way it’s constructed, no matter what they do with it, it’s going to require
substantial renovations.
MR. STONE-Okay. You think it’s too much, fine.
MR. BRYANT-For that size of a lot, the investment really doesn’t justify, you know.
MR. STONE-That’s fine.
MR. LAPPER-And the Mixed Use requires the two, the residential and the commercial use in
that zone, and that’s why, to make it into a residence as well as a business, to comply with that
zone that’s there, with the upstairs.
MR. STONE-Well, each property doesn’t have to be mixed.
MR. LAPPER-That’s what that zone is calling for along Main Street, that you’re suppose to
have, the design guidelines call for that. That you’re supposed to have residential upstairs.
That’s what the.
MR. STONE-Is that what he’s determining? Okay.
MR. URRICO-This is the Main Street plan we’re talking about.
MR. LAPPER-Yes, this is the Main Street plan.
MR. STONE-Okay.
MR. BROWN-Well, I guess the design guidelines promote that type of development. It’s not
required you have multiple uses on one property.
MR. STONE-Right. That’s a guide, you’re right. Okay. Roy?
MR. URRICO-Right. Well, I’m entirely in agreement with Allan Bryant on every point, and I
think, I’ll just say that I agree with him on all of those points, and I’d like to point out the Item
Number Four especially, the alleged hardship not being self-created. I think in the motion that
was approved in 1989, it was very specific. They were not specific about a lot of things, but they
were very specific about, we believe in answering the questions to support granting this
variance the applicant has demonstrated that he would have difficulty realizing a reasonable
return on the property as used. There is a two bay garage with a lift. To deny him this use
would be to deny reasonable of the property, and I don’t think that situation has changed. I
think we’re, you know, it’s 15 years later, and here we are with the same situation, and just
further, to elaborate, along that corridor, things have changed, and we see bigger gas stations, a
bigger convenience stores and other stores along the line which support the changeover from a
residential area to more of a commercial environment. I realize that doesn’t have anything to
do with the Use Variance itself, but it’s an observation that bears looking at as well, but I would
be in favor of the application, for the same reasons that Mr. Bryant had.
MR. STONE-Leo?
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MR. RIGBY-Yes. I’m in agreement as well. I think that both Allan and Roy hit on exactly what I
was going to say, too. One of the things that concerns me tonight is that I would hope that, you
know, this really does relate to Mr. Dobert, and, you know, as expected it if it were me, I think I
would be here tonight, and I’d be presenting my case as well, and making a stand for it, not just,
you know, two gentlemen that are going to rent the property, but I don’t think that really bears
on my decision here. I believe that the hardship is unique. I mean, the building was built
before the zoning was in place, and the building’s been, you know, a part of that problem for a
number of years. The character of the neighborhood, you know, if it’s going to alter the
character of the neighborhood, is a big question, and that is where we need to be very specific
on the nature of the variance that we’re granting, as Chuck had said. The character of the
neighborhood could be affected if this variance isn’t specific enough, and I guess we’ve got to
give a lot of thought to how specific we’re going to be and what we’re going to say and what
we’re not going to say, and we might want to discuss that a bit, too, before we actually make the
motion. Having said all that, if we’re specific enough on the variance.
MR. STONE-Well, go ahead and say some of the things you’d like to see in here, so we’re all
hearing it. I’m going to ask Chuck to do the same thing.
MR. RIGBY-Well, I think we’re going to have to think about this and discuss it a bit, because
you know, I think of it as the installation of performance parts, and the thing that comes to
mind is, okay, are we going to have three mechanics installing performance parts? If we have
three mechanics installing performance parts, now we’ve got a service garage, you know, so I
don’t know how to really be so specific that we’re going to allow you to operate in a way that is
not going to, it’s not going to allow this facility to be a repair center, and my concern is that if
we do that, and once we do that, what we’ve really done is we’ve granted a variance for auto
repair.
MR. LAPPER-We’ll take this specific one, because we’re not looking for general auto repair.
MR. STONE-I understand.
MR. RIGBY-Okay. So, I mean, that’s my concern, and I think we do need to be very, very
specific on the motion.
MR. STONE-Chuck?
MR. MC NULTY-Okay. I guess I basically fall about where the other members have so far.
Looking at the four items, it’s possible that we’re missing something that could be done there,
other than what’s proposed, that would provide a reasonable return, and as Counsel has
pointed out, I think if he had a deep pocket client, I’d be more inclined to say, let’s put it on
paper, but I think looking at it, and being reasonably logical about the thing, the chances of a
convenience store operating successfully there or a bank or anything else is not likely because of
the parking and the cost of having to renovate that building, even if you can save the walls and
everything. So I think we can probably grant that, but logic says that it’s not going to have an
economical return for anything that can’t adapt to the use that the building was built for at the
moment, even including tearing the thing down and building a house, which is one alternative,
but that would be probably a couple of hundred thousand dollars on the cheap side to
accomplish that. So we’ll give them that. The fact that the hardship is unique, yes, it probably
is for that particular piece of property because there’s not much else right there that’s like that
property. Jumping down to D, alleged hardship not self-created, I think we can agree there,
looking at the fact that really this test is being applied to the owner of the property and not to
the applicants that are sitting in front of us at this point. If it were applied to the applicants, we
could say, okay, they’re walking into it. They rented it, they could have rented some other
place. Yes, it’s self-created from their viewpoint, but not from Mr. Dobert’s viewpoint. Going
back to C, that the requested Use Variance, if granted, will not alter the essential character of the
neighborhood, that one bothers me a lot. I think, as has been pointed out, if we can be fairly
specific on a number of the things, and I was trying to think of the best way to do something
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like that without having to get into a huge amount of detail, and I’m not sure whether it would
work, but let me suggest some thoughts anyway in that direction. I think basically what we’re
concerned about mostly for the neighbors of this property is sound. We’re talking about
squealing tires. We’re talking about the potential of somebody somewhere down the line
installing high performance stereo systems with a gigantic bass speakers in them and that kind
of thing. Squealing tires is a little bit hard for any property owner to control, but I think partly
we’ve got to trust the applicants, that they will lean on their clients and tell them if they’re
squealing their tires, don’t come back. There’s not much that we can write in to do that. The
other thought I had was something that essentially said that the operation will not permit at
least loud noises to escape the limits of the property. Now that seems kind of extreme, but the
Department of Environmental Conservation has a regulation that says landfills and solid waste
facilities will not let odor cross the property boundaries, and they enforce it, and if they can say
you can’t let odor cross your property boundary, I think at times we can say you’re not allowed
to let sound cross your property boundaries either. I don’t know whether there’s some kind of
a generic thing we can do with that, rather than say you can’t do this and you can’t do that, and
what not, but anyway, with some kind of good restriction on the disruption to the
neighborhood, I’d be in nervously in favor.
MR. STONE-All right. Jim?
MR. UNDERWOOD-I’m going to have to disagree, I think, for some of the reasons that Chuck
mentioned. It’s a mixed use neighborhood here, and as we specifically said before, there’s no
allowance for automobile service facilities in those areas. I think that if you look at where all the
other automobile facilities are located in Town, there’s hardly any of them that are located in
neighborhoods as they once were all over Glens Falls in the good old days, so to speak. There’s
a reason for that, and again I think it’s the fumes. I think it’s the noise, and I think specifically,
if this does come to fruition here, if you guys get your way here with this place, which it looks
like it may very well, you know, in the old variance no engine changes were allowed, all right,
and that would mean no intake manifolds, because as soon as you start monkeying around with
intake manifolds, you’re going to be revving the motor up. You’re going to be trying to get the
computers, you know, graduated so they’re working properly, and there’s no way you’re not
going to make a lot of noise with high performance vehicles with flow through mufflers, and I
think it’s inappropriate in this zone. I think the other consideration is that Dobert does own the
other lot which is adjacent to it. He could consider combining those lots, and then he’d have a
salable piece of property that, you know, could build a convenience store or something to that
affect, if he really wants to change and unload this place. So, I would not be in favor of it.
MR. STONE-Okay. Chuck?
MR. ABBATE-Okay. Thank you. Those that have been here before know that, in most
instances, my line of argument has nothing to do with my position or my voting. Mr. Bryant’s
argument, in favor of the applicant was overwhelming, if I might. I looked for the fact that if
this application would be approved, what kind of collateral damage would there be, if you will.
So I read all the documentation, and I’m going to steal a line from Mr. Robert Sears, quote, and
he states this, as a result, it will not deteriorate the essentially character of the neighborhood,
but will improve the neighborhood by giving life to a vacant, rundown structure, unquote, and
so in view of Mr. Bryant’s overwhelming argument in favor of the applicant and Mr. Robert
Sears’ statement, I will support the application.
MR. STONE-Okay. First of all, let me do the same disclaimer that Mr. Abbate does. My job is
to illicit full discussion, and I’m very proud of this Board because we do take the time and we
do ask tough questions and we do do a lot of thinking. You’ve seen six people up here, those of
you who are not directly involved, really pouring their hearts out on how they feel on this
particular subject, and this is what we do meeting out and meeting in, and I’m very proud of
the guys. Having said that, I have a mixed thing. I was totally in favor of this thing, in the same
way that everybody else was with the limitations. Mr. Underwood made some cogent
comments. However, I think if we do limit this operation, and I’m hearing Counsel at least
nodding acquiescence to some pretty severe restrictions on the property, I can reluctantly,
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(Queensbury ZBA Meeting 8/18/04)
nervously, as Mr. McNulty said, go along with this. So I’m going to need a very specific
motion. We need SEQRA.
MR. BROWN-I wanted to make a comment, if you’d give me just a couple of seconds.
MR. STONE-Okay. Sure, go ahead.
MR. BROWN-When you’re done.
MR. STONE-No, I was just going to say, we need a very tight motion. Mr. Rigby has been
working on one, and I know we need the Short Form EIS, but go ahead.
MR. BROWN-Well, I guess my comments would be, I think anybody you ask, this Board,
Counsel and the applicants, the Use Variance test is a hard test. It’s hard to pass the test. It’s
supposed to be. Any time there’s a Zoning Ordinance in place, it’s been established with, it’s
been established based on some determinations that the Town Zoning, the Town Board, or in
this case the Town Board has made, as far as a vision for a certain district or a certain piece of
property or a certain community, and I think the Mixed Use zoning that’s been applied to the
Main Street corridor is pretty specific about what types of uses that the Town does and does not
want to see on those properties. Auto sales/service uses were specifically excluded from that
zone, for some of the reasons that have been discussed tonight, noise, traffic, odors, those types
of things. Those are just some of the arguments. I think the applicant has presented that they
can realize a return on the property with an allowable use, a retail use. Is it as big as they want?
Are they getting the return that they want? I would bet 90% of the businesses you go out there
and talk to aren’t getting the returns they want? Is it a return? Can they use the property for an
allowable use? I think they can, but if you’re comfortable that they’ve established the fact that
they cannot get a reasonable return from an allowable use, and it sounds like that’s the direction
you’re going, I just wanted to get that point on the record before you make that decision.
MR. STONE-I appreciate that.
MR. BROWN-Okay. Thank you.
MR. STONE-We do Short Form first, though, right?
MR. BROWN-Yes.
MR. STONE-Yes. Let me just move, before we actually get to the motion. A motion that a
review of the Short Environmental Assessment Form shows there are no negative impacts
caused by this project. Do I hear a second?
MR. BRYANT-Second.
MR. STONE-Sue?
MS. HEMINGWAY-Okay. Mr. Abbate?
MR. ABBATE-Yes.
MS. HEMINGWAY-Mr. Underwood?
MR. UNDERWOOD-No.
MS. HEMINGWAY-Mr. Urrico?
MR. URRICO-Yes.
MS. HEMINGWAY-Mr. McNulty?
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(Queensbury ZBA Meeting 8/18/04)
MR. MC NULTY-No.
MS. HEMINGWAY-Mr. Rigby?
MR. RIGBY-No.
MS. HEMINGWAY-Mr. Bryant?
MR. BRYANT-Yes.
MS. HEMINGWAY-Mr. Stone?
MR. STONE-No. I hate this negative, because we haven’t really examined it. Did that come out
to be four to three, negative?
MR. BROWN-Three/four, yes.
MR. STONE-Now what happens? I have no clue where we go. Do you need a Full EIS?
MR. BROWN-Well, I think you can go through the Short Form and maybe go through, by
answering those questions, maybe you can come up with the answers that, and maybe come to
a different position.
MR. STONE-Okay.
MR. ABBATE-That’s a good suggestion.
MR. STONE-That’s a good suggestion.
MR. BROWN-I would start there.
MR. STONE-Okay. Let me read the Short Form, since we have it, keeping in mind where we’ve
come down. “Does the Action exceed any Type I threshold in 6 NYCRR Part 617.4?”
MR. MC NULTY-Probably not.
MR. STONE-Do I hear anything? If you say yes, then you have to do a Full EAF.
MR. BROWN-Well, just to clarify, what you’re doing there is you’re going through the Short
Environmental Assessment Form to determine if there are any adverse impacts for this use.
MR. STONE-Correct.
MR. ABBATE-Right.
MR. BROWN-At the end of that Section, what you’re going to do is make a determination are
these impacts that you have identified, are they significant enough to cause the applicant to
prepare an EIS? There can be impacts, adverse impacts, that the applicant’s use is going to
propose, that don’t trigger a review, an environmental review. It’s a determination of
significance.
MR. STONE-Okay. Since we don’t normally go through this, because, the first question, A,
“Does action exceed any Type I threshold in 6 NYCRR Part 617.4?” I don’t know what those
are. I will frankly admit t that.
MR. LAPPER-We’d have to have the SEQRA Code here. I didn’t bring my copy.
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(Queensbury ZBA Meeting 8/18/04)
MR. RIGBY-As I go through and I try to do the motion here, I don’t know what the use is.
MR. STONE-Yes, that’s a good point.
MR. RIGBY-I’m trying to say what I’m going to limit them to, and I’ve got a list of things, but I
don’t really know.
MR. LAPPER-So, maybe we need to do that first before you can do the SEQRA, come up with
that narrow list of requirements.
MR. STONE-That might be a better way to do it.
MR. RIGBY-And then the other thing I struggle with is how do I grant a Use Variance if I don’t
know what the use is. So, I mean, I’m going in a circle here.
MR. ABBATE-Welcome to the Board, Leo.
MR. RIGBY-Yes.
MR. STONE-No, he makes a very good statement. Well, let me ask Counsel, how would you
define, just as a starting point, how would you define what it is that Mr. LaCross and Mr.
Ludwig want to do?
MR. LAPPER-We can give you a list of what they are permitted to do and what they’re not
permitted to do, if that would make the Board comfortable.
MR. STONE-That would certainly be a good start.
MR. LAPPER-Okay. So I guess generally we would describe it as automotive performance
enhancing equipment.
MR. BRYANT-Sale of?
MR. LAPPER-The sale and installation.
MR. BRYANT-The sale and installation of.
MR. LAPPER-And we can list that that would include wheels.
MR. STONE-Okay.
MR. LAPPER-Suspension equipment.
MR. STONE-Okay. No noise so far.
MR. LA CROSS-Well, we would also be doing intakes and exhausts. I would be, it would be
satisfactory if you had a decibel limit that you would not want us to exceed.
MR. STONE-We don’t have a decibel limit in the Town of Queensbury.
MR. BRYANT-I think that it’s a bad idea to list the things, because tomorrow they’re going to
invent the performance thing that’s not on the list, okay. All, there’s certain categories of things.
MR. LAPPER-How about if we said that the doors would have to be closed when they’re doing
service?
MR. BRYANT-This is what I say, okay. I say, Number One, no installation or sales of sound
equipment.
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(Queensbury ZBA Meeting 8/18/04)
MR. LAPPER-That’s fine.
MR. BRYANT-No general automobile repair.
MR. LAPPER-That’s fine.
MR. BRYANT-No body work.
MR. LAPPER-That’s fine.
MR. BRYANT-No installations outside of the building.
MR. LAPPER-Yes.
MR. BRYANT-No painting.
MR. LAPPER-Yes.
MR. BRYANT-No, since you’re not going to do painting, you’re not going to have flammables,
and toxins and all that other stuff there.
MR. LAPPER-Right.
MR. BRYANT-Something else? I mean, I would feel more comfortable with saying this is what
you can’t do.
MR. LAPPER-That’s fine.
MR. BRYANT-Because if tomorrow they invent something you put on your antenna for, to pick
up aliens, you know, we don’t want to exclude that.
MR. ABBATE-That’s an excellent point.
MR. STONE-No sound equipment.
MR. BRYANT-No sound, sound equipment relating to stereo.
MR. LAPPER-Yes, music.
MR. BRYANT-Radio.
MR. STONE-And you’re happy with that?
MR. LAPPER-Yes, they don’t do that.
MR. STONE-You don’t install them.
MR. RIGBY-What about muffler changes, carburetor adjustments?
MR. LA CROSS-Carburetors are a thing of the past.
MR. BRYANT-Yes, but I mean, you said they do something with exhausts, but he’s not going to
do general repair. So if somebody has a broken muffler, they’re not going to bring it to there.
MR. STONE-Okay, but if he does exhaust work and they run the engine, you need exhaust to
the outside.
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(Queensbury ZBA Meeting 8/18/04)
MR. BRYANT-That’s an issue relative to OSHA and.
MR. LAPPER-That’s right.
MR. STONE-No, that’s an environmental impact.
MR. LA CROSS-No, the garage is equipped with the allocations in the door for running the
automobile to the outside. Being it’s an automobile, it’s not anything that isn’t driving past the
road, I don’t see how it’s an environmental impact.
MR. UNDERWOOD-I think it’s very difficult to imagine that when you’re going to put high
performance parts on a car, and a manifold that it’s not going to sound like a NASCAR pit crew
at work down there.
MR. LA CROSS-It may sound like that, but it’s not going to sound like that in our building.
MR. UNDERWOOD-Yes, it’ll go right out the door through the openings where the exhaust has
been.
MR. LA CROSS-We’re not driving the vehicle within the building, though. We’re only
installing those parts. We’re not testing the parts on our property at all.
MR. STONE-Okay, but I think what Mr. Underwood said, let me just throw it out for a
question. They’re going to have to drive away. Okay. Right now they’re not there. They’re
going to have to drive away, and I bet, 95% of the people who buy your equipment are going to
chomp down on the accelerator, just to hear what it sounds like.
MR. LA CROSS-If we enforce that, and we say you cannot do this, due to our regulations with
the Town.
MR. BRYANT-Yes, but that’s not enforceable. That’s not a realistic request of the applicant.
MR. STONE-He can’t control what happens.
MR. BRYANT-He can’t control somebody once you get out of the door.
MR. LAPPER-When can you go more than 15 miles an hour on Main Street?
MR. STONE-Yes, but Al, if we allow this.
MR. BRYANT-First of all, he’s going to have to wait three hours to make the turn on Main
Street, because of the traffic.
MR. MC NULTY-And then you tromp on it to get out.
MR. STONE-Well, but if we allow this use, those are the things that can happen. They have no
control over it. I agree.
MR. BRYANT-But, you know, that can happen whether they put their shop there or not.
There’s going to be somebody who wants to exceed the speed limit or wants to turn the corner a
little fast, and I don’t think that the positioning of their shop is going to be the determining
factor.
MR. LA CROSS-If anything, our influence on them might reduce it, our influence in saying,
because we are, you know, looked up to within the automotive community with us saying,
don’t do this, this isn’t cool, perhaps that will actually cut down on what’s going on, you know.
It’s hard to believe, but this is actually our belief on it.
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(Queensbury ZBA Meeting 8/18/04)
MR. STONE-Okay. Well, going with your list, anybody else have any additions to the do not
list?
MR. RIGBY-I mean, I’ve got a bunch of them, yes. Carburetors you say are a thing of the past.
Somebody comes in maybe with a carburetor they want fixed. Are you going to fix it? I don’t
know. No auto repair. No oil changes. No transmission fluid changes. No, I mean, there’s a
zillion things that have to be in the no category. I mean, how do we, general service, what does
that mean?
MR. LAPPER-Well, no maintenance and repair. Just enhancing.
MR. ABBATE-Mr. Chairman, you know, what, even though I’m going to support t he
application, I think we are really on thin ice on this thing, really and truly. I want to support
your applications, I’ve already voted in favor of it.
MR. STONE-You haven’t voted. You’ve merely said.
MR. ABBATE-Well, you know, but I think we’re on very dangerous ground.
MR. STONE-Well, I think that’s what Mr. Underwood is trying to point out to us.
MR. LAPPER-Well, these are a couple of young, responsible kids. I mean, they’re not selling to
people with no money. They’re selling to people that want to put fancy things in nice cars.
MR. STONE-I would argue that it’s the application, not the people. That’s where we always try
to come down.
MR. LAPPER-Okay. Well, everything that’s been suggested as a condition is acceptable to the
applicants. They’re not trying to do any more than that.
MR. MC NULTY-Mr. Chairman, I think I’m at the point that I’m going to switch which way I’m
leaning.
MR. STONE-Well, I’m getting close here, too.
MR. RIGBY-And so am I.
MR. MC NULTY-From what Mr. Brown said and the points that Mr. Underwood’s made, and
I’ll agree with Mr. Abbate, I think we’re on shaky ground. I would really like to approve it for
the applicants, but at the same time, I think there’s way too much out there that we can’t control
and even though they will try to control, I’m not sure they can.
MR. LAPPER-Let me just suggest that somebody could come in to this site and say that general
automotive repair, that this building is suited for general automotive repair. I mean, in terms of
what you’ve got with that building and what you could have there, especially compared to the
uses, a gas station and what you could have in that zone, they’re talking about a very high end
specific use of putting new fancy equipment. It’s not changing oil, and somebody could
certainly come in and say, that building is suitable for general automotive repair, because that’s
a, it’s a two bay garage, and they’re not saying that.
MR. BRYANT-Mr. Chairman, this is going on for a long time. All this discussion doesn’t
change the fact that this building is a garage. It’s always been a garage. It’s got two bays. It’s
got a lift, okay. We had the opportunity, at this point, to restrict the use by this list here, and I
think we ought to take that opportunity.
MR. RIGBY-The reason why the zone was created in the first place was to restrict this type of
activity in that zone.
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(Queensbury ZBA Meeting 8/18/04)
MR. BRYANT-I understand that, but this unique property has a situation that it’s got a garage
in it, forever, since it was built, and that was before the zoning, before they decided on this
multi-use zone. The reality is is it really is a very short list of what they can do in that building,
and you can make the argument, yes, they haven’t tried hard enough, but watching that
building, driving by, day after day, and seeing it empty, and it was empty before the sign
people were there, okay. That’s what we have to look forward to is an empty spot on Main
Street with no activity, no improvement.
MR. STONE-But in argument against that, and listening to what Mr. Brown said, this could be
one of the first things that we do, in trying to meet the image, the guidelines of the new Main
Street.
MR. LAPPER-But this building is not going to do it.
MR. STONE-One building, but you’ve got to start somewhere. I’m just saying, it may be an
opportunity.
MR. LAPPER-On a tiny piece of land, also.
MR. STONE-Yes.
MR. BRYANT-You know, and if I recall correctly, I think the owner of the property said he was
in his 70’s, he wasn’t interested in putting all the money into the building, and maybe
somewhere down the road somebody in his 30’s might decide it’s worth it, but from an
economic standpoint, having commercial buildings myself, I don’t see that a good investment
property.
MR. URRICO-We would be granting a Use Variance with a very specific list, a very specific use,
basically, and so we’re not in danger of this carrying over to another applicant. If they do well,
they’re probably not going to be there too long. This case would have to be revisited in the
future. Chances are that would be when the major difference, the use would come about, but if
we say general, we’re talking about general repairs, I think that covers a lot of things we’ve
spoken about.
MR. BRYANT-General repairs and maintenance.
MR. URRICO-And maintenance. I think that covers almost 99% of what we’re talking about. It
would include the sound system. It would include the.
MR. STONE-You’ve included the sound system, yes, but there was a concern that if you put a
new manifold on, and you’re going to run the engine.
MR. LAPPER-But not race it.
MR. URRICO-I suspect there are people pulling into Cumberland Farms and Stewarts that
make more noise pulling out of the gas station than this may cause.
MR. LAPPER-These guys are technicians.
MR. ABBATE-Mr. Chairman, I have a proposal.
MR. STONE-Go ahead.
MR. ABBATE-Is it possible, because, you know, standard of fairness. Is it possible that we
could wait until later on this evening to hear the rest of this case so that the folks who are here
this evening, we can continue to march, so to speak? Because obviously we’re struggling with
this thing. Is that possible?
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(Queensbury ZBA Meeting 8/18/04)
MR. STONE-We can do that, but the applicant has to agree.
MR. ABBATE-Okay. Well, okay, I’m just, whatever you folks want to do.
MR. STONE-That’s reasonable.
MR. ABBATE-Because we see a lot of people here waiting. They want to go home.
MR. LA CROSS-We’ve been waiting for four months.
MR. ABBATE-I know. I understand.
MR. LA CROSS-And I understand you’re trying to accommodate everyone else. We’re looking
for accommodation, too.
MR. ABBATE-I know. I understand.
MR. STONE-We’re going on.
MR. MC NULTY-Yes. I think we should bite the bullet.
MR. STONE-Well, you’ve had a list. You still have it written down, I would assume?
MR. BRYANT-Mr. Urrico has it written, right here, for me.
MR. STONE-Okay. Would you read it again and see if what you would propose to put in as do
nots, if we granted this Use Variance.
MR. BRYANT-First of all, as do’s, I would say the use would be for the sales and installation of
performance products, and I would exclude the following things. No sound or stereo systems.
No general repairs or maintenance. No installations outside of the building. No painting, no
chemicals or toxins or flammables storage, and what else did you have, Leo?
MR. ABBATE-How about no motor upgrades?
MR. BRYANT-Well, we said no general repairs.
MR. ABBATE-Well, but be specific, no motor upgrades.
MR. LA CROSS-I would be opposed to no motor upgrades because that’s such.
MR. ABBATE-See, there we go.
MR. MC NULTY-Almost anything they do could be classified as a motor upgrade.
MR. ABBATE-Okay.
MR. LUDWIG-(Lost words) sell air intake which is a $25 pipe that replaces a filter and that
could be considered a motor upgrade. I just don’t want to, we’re already condemning our retail
business, which we’re trying to bolster with the installation.
MR. BRYANT-In the 1989 application, one of the things they stated very clearly was there
would be no rebuilding of engines. So that probably should be listed there, too.
MR. LAPPER-That’s fine.
MR. BRYANT-Basically that’s my list.
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(Queensbury ZBA Meeting 8/18/04)
MR. STONE-Okay. Leo, you were writing things down. Does that include what you have?
MR. RIGBY-I’ve got no muffler work.
MR. LA CROSS-We don’t do traditional exhaust type work. We would sell an aftermarket
exhaust system that would be a direct bolt on system, like you unbolt the old one, you bolt on a
new one.
MR. RIGBY-My difficulty with that would be that now we’ve opened it up so you can do
muffler work. Because you’re installing.
MR. LA CROSS-It’s not repair work. This is performance parts that we sell. We do not sell
Midas mufflers. We sell stainless steel, high performance, $375 exhaust system that.
MR. ABBATE-Can I raise one other issue? Was the Chairman right? Did you indicate that this
would cost $500,000 to, is that correct?
MR. LAPPER-Well, the way it was calculated by the builder, which included going to the
property next door, it was over $500,000, but it was $275 for the second story.
MR. ABBATE-Okay. You know, I’ll bet if you took your time, you would find a place in the
Town of Queensbury that would not require a Use Variance, for $500,000.
MR. RIGBY-Well, that’s the other thing that concerns me is that, you know, these are two guys
that are here because they’re renting the building.
MR. ABBATE-Sure.
MR. RIGBY-Mr. Dobert is the one who owns the building, as the Chairman said before. I would
think that he’d be the one that would want the variance.
MR. ABBATE-I agree with you 100%. I’m a firm believer that the applicant most affected
should be here to testify, and I’ve always said, if they’re not here, I vote no against it.
MR. RIGBY-And there’s a lot of other places in Queensbury that are available.
MR. ABBATE-I agree.
MR. LAPPER-He was here in May, though, at the last time this was on. He was here.
MR. BRYANT-The reality is, though, if you look at, you’ve got, the applicants are young.
They’re just starting out. They’ve been tinkering on the Internet for two years. They probably
get cheap rent because nobody else wants to rent that building. I mean, that’s the reality.
MR. LAPPER-And they’re going to fix it up. They’re going to make it look nice.
MR. RIGBY-On the other side, you look at the long term direction of Queensbury and where
that Main Street corridor is going.
MR. BRYANT-Yes, and the long term is basically when they outgrow that location, which could
be very soon, a couple of years.
MR. RIGBY-The variance goes along with the location.
MR. BRYANT-The variance belongs with the location, and it’s going to be very difficult to fill
that slot.
MR. RIGBY-I hear you. I’m struggling with all that, too.
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(Queensbury ZBA Meeting 8/18/04)
MR. BRYANT-And I won’t be on the Board then.
MR. STONE-I’ll tell you what we’re going to do. On the basis of the list that you have prepared,
and we’ll decide what motion we’re going to make, or we’ll make a motion and we’ll decide
how we’re going to vote on it. On the basis of the list that you’ve got, let me go through Part C
of the Short Environmental Assessment Form, which basically talks about adverse effects
associated with the following. Do you agree, Mr. Brown?
MR. BROWN-Well, I think you want to start at the top and do A first.
MR. STONE-Well, tell me what those are.
MR. BROWN-617 Part 4 is a listing of the Type I SEQRA Actions, and I’m comfortable, if
Counsel if comfortable, stipulating that, no, there’s not going to be any threshold exceeded here.
MR. STONE-Okay. I didn’t think so.
MR. BROWN-If you’re going to build a mall or have 50,000 parking spaces, that’s not a
problem.
MR. ABBATE-So that’s a no, right, Mr. Chairman?
MR. STONE-That’s a no. “Will Action receive coordinated review as provided for Unlisted
Actions in 6 NYCRR, Part 617.6?”
MR. LAPPER-No.
MR. STONE-No. You don’t need to go to the Planning Board?
MR. BROWN-They will need to go to the Planning Board, but you can both do your
independent reviews. I think it’s safe to do no on that one.
MR. STONE-All right. We’ll say no.
MR. ABBATE-That’s another no.
MR. STONE-Okay. Let me read the rest of them, and I want comments from people. “Could
Action result in any adverse effects associated with the following: C1. Existing air quality,
surface or groundwater quality or quantity, noise levels, existing traffic patterns, solid waste
production or disposal, potential for erosion, drainage or flooding problems? Explain briefly”
MR. LAPPER-There’s a significant adverse environmental impact.
MR. STONE-Could any action result in any adverse effects.
MR. BROWN-Right, and then later.
MR. STONE-Yes. I know, I hate the Form, because it’s very, I’m sure you guys hate it more
than we do, but it says any adverse. Any comments?
MR. MC NULTY-Noise levels.
MR. UNDERWOOD-Noise and air.
MR. STONE-Noise levels. Existing traffic patterns possibly.
MR. BRYANT-That’s going to be the same regardless.
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(Queensbury ZBA Meeting 8/18/04)
MR. UNDERWOOD-I said air also.
MR. STONE-Air also.
MR. UNDERWOOD-This is Main Street.
MR. STONE-Okay. We’ll write those down and then we’ll go on. All right. “C2. Aesthetic,
agricultural, archeological, historic or other natural or cultural resources; or community or
neighborhood character? Explain briefly”
MR. URRICO-No.
MR. BRYANT-No.
MR. STONE-All right. “C3. Vegetation or fauna, fish, shellfish or wildlife species, significant
habitats or threatened or endangered species? Explain briefly.”
MR. BRYANT-No.
MR. STONE-“C4. A community’s existing plans or goals as officially adopted or a change in
use or intensity of use of land or other natural resources? Explain briefly”
MR. UNDERWOOD-Yes.
MR. STONE-Yes.
MR. UNDERWOOD-It doesn’t fit the new Main Street guidelines.
MR. ABBATE-It doesn’t fit the new Main Street guidelines, is that what you said?
MR. STONE-Yes, that’s what we’re saying.
MR. ABBATE-Okay.
MR. STONE-“C5. Growth, subsequent development, or related activities likely to be induced
by the proposed action? Explain briefly.” No. It’s not going to increase development on that
particular parcel or the neighborhood. Okay. “C6. Long term, short term cumulative, or other
effects not identified in C1-C5? Explain briefly” I don’t think there are any.
MR. BRYANT-No.
MR. STONE-“C7. Other impacts (including changes in use of either quantity or type of energy)?
Explain briefly.” “D. Will the project have an impact on the environmental characteristics that
caused the establishment of a CEA?” No, there’s no CEA. “Is there or is there likely to be
controversy related to potential adverse environmental impacts?” Yes or no?
MR. BRYANT-No.
MR. STONE-No. I don’t think there’s been controversy, except on this Board. Okay. Now,
“Part III – Determination of Significance For each adverse effect identified above, determine
whether it is substantial large, important or otherwise significant. Each effect should be
assessed in connection with its (a) setting (i.e. urban or rural); (b) probability of occurring; (c)
duration; (d) irreversibility; (e) geographic scope; and (f) magnitude.” So read the ones that we
wrote down and are they going to be significant.
MR. MC NULTY-Okay. The first one was air quality.
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(Queensbury ZBA Meeting 8/18/04)
MR. STONE-If they’re not going to use paint and thinners and things like that, it probably
won’t be any more than having an idling automobile around. It’ll have an effect. Jim, do you
have any problem with that?
MR. UNDERWOOD-I don’t know.
MR. BRYANT-Well, on Main Street, have you ever been on Main Street at five o’clock?
MR. STONE-No, that’s what I’m saying.
MR. BRYANT-I mean, it’s a big traffic jam. So I don’t think that the one car that they’ve got
running in that bay is going to make that much difference.
MR. STONE-Okay. What have we got next?
MR. MC NULTY-Noise levels.
MR. STONE-Noise levels. Is that going to be significant? Not if they’re restricted the way Al is
proposing. I would think. Okay. What else?
MR. MC NULTY-C3. Change of plans. Change of community plans.
MR. STONE-Well, Counsel would argue one building is not going to be a significant change.
MR. URRICO-The general guidelines for Main Street, as I read it in the Code, says two to three
story structures, traditional Main Street appearance.
MR. UNDERWOOD-Like Downtown Glens Falls.
MR. STONE-Right, that’s what it’s supposed to be.
MR. URRICO-(Lost words) wood finish, parking located at rear, lighting is a low light levels,
traditional style fixtures. Then there’s accommodation for plantings, which we had really never
talked about.
MR. STONE-I have one question, Craig. Are we still talking three lanes, or are we now talking
five?
MR. BROWN-As far as I know, three.
MR. STONE-And where would it go on this property. Does anybody know?
MR. LAPPER-There’s no taking that’s, I mean, it should be five lanes, and there should be a
taking, but they’re only going to the property line. They’re not acquiring any property.
MR. STONE-I thought five was back on the table I had heard someplace.
MR. BROWN-I don’t think so. I think if there are any takings there, you’re talking minimal,
three to five feet on either side.
MR. STONE-Okay, just a question that I wanted on the table. Okay. So let me go back. We got
them all, didn’t we?
MR. MC NULTY-I think so.
MR. STONE-Okay.
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(Queensbury ZBA Meeting 8/18/04)
MOTION THAT A REVIEW OF THE SHORT ENVIRONMENTAL ASSESSMENT FORM
SHOWED THERE WERE NO SIGNIFICANT NEGATIVE IMPACTS CAUSED BY THIS
PROJECT, Introduced by Lewis Stone who moved for its adoption, seconded by Charles
Abbate:
Duly adopted this 18 day of August, 2004, by the following vote:
th
AYES: Mr. Bryant, Mr. Urrico, Mr. McNulty, Mr. Abbate, Mr. Stone
NOES: Mr. Underwood, Mr. Rigby
ABSENT: Mr. Hayes
MR. STONE-Okay. Now, and I’m not going to re-canvas the Board, unless people want me to.
I will ask for a motion, since we’ve got to get the motion written one way or the other, a motion
to approve, based upon the initial response, and, Al, would you work on it. Leo, you’ve
listened to him, so, go ahead, you start it.
MOTION TO APPROVE USE VARIANCE NO. 44-2004 MIKE LUDWIG, Introduced by
Allan Bryant who moved for its adoption, seconded by Roy Urrico:
52 Main Street. The applicant proposes an automotive customizing retail business which
includes the installation of performance parts and sign work. Reviewing the criteria, Item
Number One, that they cannot realize a reasonable return. I believe that the applicant has
provided adequate financial information that a reasonable return cannot be made on all
permitted uses. Item Number Two, the alleged hardship is unique. The fact that the building is
originally constructed as a garage with two bays and a lift, and has been traditionally used to do
something on vehicles in one way or another, makes that particular piece of property unique to
the other properties in the neighborhood. Will the requested variance alter the essential
character of the neighborhood? That building has basically been the same, prior to this zoning
taking effect. The applicants have expressed their interest in improving the appearance of the
building, the overall appearance of the building, and, four, the alleged hardship has not been
self-created. Again, the building was in existence in that form prior to this new zoning code.
This Use Variance is for the sales and installation of the performance parts sold at this
establishment. It does not include any of the following: No installation of sound stereo systems
or radio equipment. No general automotive repairs or maintenance. No installations will occur
outside of the building structure. No painting on site. No storage of chemicals, toxins or
flammables permitted in the building. No repair of damaged mufflers or exhaust systems.
With these exclusions, I move that we accept this variance.
Duly adopted this 18 day of August, 2004, by the following vote:
th
MR. BRYANT-I believe that the applicant has somewhat shown the size of the lot is not
substantial enough to use with the majority of the suggested uses in the zone.
MR. STONE-Would you do me a favor? There’s one word that troubles me somewhat.
Somewhat showed financial hardship. Can you either be willing to take it out or, I don’t like
the word “somewhat”, because we either found it or we didn’t.
MR. BRYANT-Well, I think that they didn’t show the traditional format.
MR. STONE-Well, then say that.
MR. BRYANT-Okay, but I think that they did demonstrate the size of the lot being 1/5 of an
th
acre, the construction of the building, the amount of money that it would take to renovate it for
one of the allowable uses, would be more than.
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(Queensbury ZBA Meeting 8/18/04)
MR. STONE-But they did not show, and I see Craig shaking his head, they did not show for
other uses comparable financial data.
MR. BROWN-Yes. I guess that would have been my, if you’re asking for questions on the
motion.
MR. STONE-Yes, go ahead.
MR. BROWN-You used the words they’ve shown that they could not use the majority of the
other uses. The test is each and every use. So I don’t know if you want to modify the
resolution.
MR. BRYANT-Sure. I’ll modify that paragraph to say that they.
MR. LAPPER-Bob Sears said it.
MR. BRYANT-They’ve provided adequate financial information relative to the majority of the
uses.
MR. STONE-That’s not going to work.
MR. MC NULTY-It’s got to be every use.
MR. BROWN-What the standard is, the test is each and every use in the permitted zone, not just
the uses that were listed on the commercial page. There’s a whole other list of uses from the
residential page that weren’t in part of the application, but the residential uses.
MR. LAPPER-And Bob Sears said it. It can’t be converted to a permitted use.
MR. BROWN-But the test is that they cannot use any of the uses, each and every use in the
zone. So I think to make a more bulletproof resolution.
MR. STONE-Yes, that’s what I’m trying to do.
MR. BRYANT-So go ahead, what’s your suggestion?
MR. URRICO-They’ve shown sufficient evidence to.
MR. STONE-A reasonable return cannot be made, on all permitted uses.
MR. URRICO-On all permitted uses. There you go.
MR. STONE-Yes. Craig is correct, you’ve got to be, that’s the test. You’re willing to accept the
data that was presented as evidence, but nevertheless it has to apply to everything. That’s all.
Okay.
AYES: Mr. Abbate, Mr. Bryant, Mr. Urrico
NOES: Mr. McNulty, Mr. Rigby, Mr. Underwood, Mr. Stone
ABSENT: Mr. Hayes
MR. LAPPER-Good night.
AREA VARIANCE NO. 66-2004 SEQRA TYPE: II ANDREW AND JANICE HOLDING
AGENT(S): N/A OWNER(S): ANDREW AND JANICE HOLDING ZONING: WR-1A
LOCATION: 48 DREAM LAKE ROAD APPLICANT PROPOSES TO DEMOLISH THE
EXISTING 586 SQ. FT. GARAGE AT 9.33 FEET IN HEIGHT, AND CONSTRUCT A 586 SQ.
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(Queensbury ZBA Meeting 8/18/04)
FT. GARAGE AT 16 FEET IN HEIGHT IN THE SAME FOOTPRINT. RELIEF REQUESTED
FROM THE FRONT AND SIDE SETBACK REQUIREMENTS. CROSS REFERENCE: BP 90-
100 WARREN COUNTY PLANNING: N/A ADIRONDACK PARK AGENCY N/A LOT
SIZE: 1.6 ACRES TAX MAP NO. 279.13-1-17 SECTION: 179-4-030
ANDREW & JANICE HOLDING, PRESENT
STAFF INPUT
Notes from Staff, Area Variance No. 66-2004, Andrew and Janice Holding, Meeting Date:
August 18, 2004 “Project Location: 48 Dream Lake Road Description of Proposed Project:
Applicant proposes to demolish the existing 586 sq. ft. garage at 9.33 feet in height, and
construct a 586 sq. ft. garage at 16 feet in height in the same footprint.
Relief Required:
The applicant is requesting 29 feet of relief from the 30-foot minimum front
setback requirement and 22 feet of relief from the 25-foot side setback requirement of the WR-
1A Zone, per §179-4-030.
Parcel History (construction/site plan/variance, etc.):
BP 90-100: 04/03/90, replacement of roof
and skylight addition to dwelling.
Staff comments:
The applicant desires to utilize the existing garage location to construct a new garage of the
same square footage. This would allow for the use of the existing approach from the driveway,
and would not require the removal of any additional vegetation, which includes numerous
mature trees.”
MR. MC NULTY-And there was no County.
MR. STONE-Okay. Mr. and Mrs. Holding I assume?
MRS. HOLDING-Yes. Good evening. I’m Janice Holding and this is my husband Andrew.
Together we own 48 Dream Lake Road. If you were able to visit the property, you saw that we
have a very dilapidated two car garage that is rotted in some spots and leaks in almost every
spot. We’d like to remove that garage and replace it with a more attractive structure of the
same square footage in the same location, a structure that would have better roof angles to
allow for better snow shed and drainage. The problem is that the existing structure is too close
to both the front and side property lines according to the current zoning regulations. So we
need your approval, through the granting of a zoning variance, to proceed with our plans.
Now you might wholeheartedly agree that a more functional and attractive structure would be
a benefit to the neighborhood. However, you might ask why we want to build it in the existing
spot, which, as you know, is very close to the property lines. The simple answer is that to move
it to another location would cause hardship, since the only way to build the garage in a location
that is compliant with the zoning regulations would require completely reconfiguring the
driveway, moving the septic drainage fields, and/or cutting down beautiful trees which we’re
really not willing to do. We bought the property last fall as a weekend getaway, but have
enjoyed the neighborhood and the community so much that we’ve decided to move up here.
As a weekend getaway the garage was less of an issue, but now that this will be our full-time
residence we need a garage that can withstand the elements. We’ve shared our plans with
every homeowner in the neighborhood, even beyond the 500 foot guidelines for notification,
and everyone we’ve discussed them with has been in favor of our proposed garage, including
the placement of it in the existing location. Two of our neighbors are actually here with us
tonight. The two that would be most impacted. Ms. Reardon lives across the street and would
have the garage as her view, and Mr. Yurgartis is our next door neighbor on the sideline that we
are too, you know, too close to currently. So we request that you grant us the appropriate
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variance so that we could proceed with our project, and I’d be happy to answer any questions,
but, do you have anything you want to add?
MR. HOLDING-Nothing.
MR. STONE-That was a very nice presentation.
MRS. HOLDING-Thank you.
MR. STONE-The only thing I would ask you, at this point in time, is comment on our guideline
that states, if approved, shall grant minimum variance necessary, and may impose reasonable
conditions, but minimum is our watch word. We’re supposed to be minimum. You’re asking
for almost the maximum you could have with the current location. Do you have any comments
about that?
MRS. HOLDING-The way that the garage is located now, it’s very close to the road. There is an
existing apron that we would like to take advantage of. So if it could be, we’re asking for the
minimum amount in using the existing footprint. We’re not asking for more than what is
currently there. To move it anywhere else, we’ve got non-permeable, the apron is non-
permeable, and we’d hate to lose that. We’d probably have to get rid of it. We’d have to move
the driveway. The next clear spot is where the septic drainage is, and then to move it around
even farther would require the trees to come down.
MR. STONE-Okay. Thank you.
MR. BRYANT-Can I ask a few questions?
MRS. HOLDING-Sure.
MR. BRYANT-This little map that you, survey map that you provided. When you say your
septic system, I mean, I don’t see anything marked here. The area between the house and the
driveway appears that the garage would fit.
MRS. HOLDING-That’s where the septic holding tank is, and it drains across the, cess pool,
okay, sorry, but there’s a tank there and then it goes across the driveway some to south of
where the current garage is. That’s where the drainage field is.
MR. BRYANT-Okay, and the possibility of putting that garage on the other side of the drive,
right directly behind the camp, is that not a possibility?
MRS. HOLDING-Well, that would require a tree to come down to make sure that we are at least
25 feet away from the sideline to the other neighbor.
MR. BRYANT-A tree?
MRS. HOLDING-There’s one big tree, and then there would be the line of trees, including some
of the big old pine trees that are.
MR. BRYANT-What are you going to use of the old garage, as far as foundation?
MRS. HOLDING-There is no foundation in that garage.
MR. BRYANT-That’s what I thought. So you’re not going to use, so it really doesn’t matter
where you put it.
MRS. HOLDING-Well, the apron is there, which is double wide of the existing driveway, and
it’s a clear spot.
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MR. BRYANT-One last question. In your little detail, it looks like you’ve got four peaks to the
house. You’re going to have a peak on each side of the house?
MRS. HOLDING-Yes. That’s the garage.
MR. BRYANT-Yes, of the new garage.
MRS. HOLDING-Yes.
MR. BRYANT-So you’re going to have a peak, basically, on all four sides?
MRS. HOLDING-Yes.
MR. BRYANT-Okay.
MR. ABBATE-Is your proposed new construction would be identical footprint, is that what I
heard you say earlier?
MRS. HOLDING-Yes, absolutely.
MR. ABBATE-Well, I personally think you’d be doing the Town of Queensbury a favor by
taking down a pink elephant, myself. I don’t mean to insult you.
MRS. HOLDING-No, absolutely.
MR. ABBATE-Is it unreasonable, and say so, because it doesn’t bother me, would it be
unreasonable for me to suggest that maybe the garage could be moved closer to the house
within the parameter of that driveway? Is that kind of unreasonable?
MRS. HOLDING-Well, that’s where the septic cess pool is now.
MR. ABBATE-So you can’t do that. Okay.
MR. STONE-Can you show us, one of us, where the septic is? And you have a regular septic
tank and a leach field?
MRS. HOLDING-Okay. The septic tank is here, and it runs over, for the drainage.
MR. STONE-Okay. So your leach field is back over in here?
MRS. HOLDING-Yes.
MR. STONE-Okay.
MRS. HOLDING-So here’s, the septic tank is here and it runs across to here.
MR. STONE-Okay.
MR. BRYANT-When you talk about a tree.
MRS. HOLDING-There’s a tree here, and then the line of trees is maybe about here. So there
would, we would lose probably six or seven trees that are at least this big around, to put it here,
because we’d have to be 25 feet from this side line here.
MR. BRYANT-How close to the septic tank is it? So it’s there. So what about between the septic
tank and the back of the driveway? Is that where your leach field is?
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MRS. HOLDING-But the leach field cuts across the driveway here. So we could not put it here.
There’s two big trees right here.
MR. ABBATE-Okay.
MRS. HOLDING-I’m not sure exactly where the leach field starts, but it might be ten, fifteen, I
don’t know.
MR. RIGBY-Okay. From where the garage is now?
MRS. HOLDING-Right, because you’ve got the apron here.
MR. STONE-Well, what you’re gathering, by the number of questions you’re getting, is what I
started off my comments, minimum relief. Obviously, a number of us feel that we’d like to see
some modification in your application. I think I’m speaking for a lot of us. That doesn’t mean
we won’t grant you what you want, but we’re, any other comments?
MR. URRICO-What do you mean by “apron”? What do you mean by the “apron”?
MR. STONE-Is there a concrete apron?
MRS. HOLDING-Yes. No, it’s not concrete. It’s the asphalt. So that if the asphalt widens, so
that when you turn into the drive, into the garage, that is asphalt.
MR. URRICO-You’re talking about the driveway off the paved road into the garage?
MRS. HOLDING-It’s not drawn correctly here. The driveway actually has asphalt that leads
into the garage, the width of the garage. So where that 1.0 is written, that’s all asphalt.
MR. STONE-Right, that’s asphalt.
MR. URRICO-So we’re talking about this area in here?
MRS. HOLDING-Yes.
MR. RIGBY-The driveway itself is gravel, I think, isn’t it? Or is it asphalt?
MRS. HOLDING-No, it’s paved.
MR. STONE-It is paved?
MR. RIGBY-It is paved? I didn’t realize it was.
MRS. HOLDING-A few places where it’s falling apart.
MR. STONE-Okay, because I looked at it, and I would have said it wasn’t. There was dirt on it.
MR. HOLDING-The area between Dream Lake Road and the garage itself is completely
deteriorated. So you will see stone, dirt, and puddles there. As you follow the driveway
around, it is paved.
MR. STONE-Okay. All right. You do realize, you’re going to live here how much of the year?
MRS. HOLDING-All of it.
MR. STONE-You know we do get snow.
MRS. HOLDING-Yes.
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MR. STONE-And it does get high.
MRS. HOLDING-I do realize that.
MR. STONE-Hard to get to the garage.
MRS. HOLDING-Well, that’s one of the reasons we would want to keep the location, to
minimize the amount of snow removal we would have to do to get our cars out to go to work,
because this is a public road. So the road is plowed, and to move, I mean, this is a 250 foot
driveway, give or take a few feet, and to move it back to the middle requires, we don’t even
own a snow plow yes, or a snow blower, so we’re going to have to get that, but.
MR. STONE-Has this been shown to the Highway Department? Do they comment, Craig?
MR. BROWN-They have not seen this.
MR. STONE-They have not seen it.
MRS. HOLDING-Which Department are you referring to?
MR. STONE-Highway, the guys who plow the road.
MRS. HOLDING-We’re actually, it’s a foot from the property line, but it’s much farther from
the road because the trees, and you can see it in the pictures.
MR. STONE-Yes. All right. Any other questions, comments, guys? All right. Let me open the
public hearing. Anybody wishing to speak on this subject?
PUBLIC HEARING OPENED
SANDY REARDON
MS. REARDON-I’m Sandy Reardon. I live at 55 Dream Lake Road. If I look out my front
windows, I look at this garage. I’ve lived there 14 and a half years. It hasn’t bothered me yet.
So, I mean, why not put it in the same place.
MR. STONE-But it’s going to be higher.
MS. REARDON-Yes. I can’t see the lake from my house anyway. So what difference does it
make.
MR. STONE-Okay.
MS. REARDON-And as far as being close to Mr. Yurgartis’ property, his house is set back down
on the leg. It’s just a dirt driveway going all the way down. So it’s not bothering anything on
that side. It doesn’t bother me.
MR. STONE-Okay.
MS. REARDON-On the other side of their house is an empty lot. So it really isn’t bothering
anybody to have it there. I plowed the snow over there this winter, after they bought it. I’ve
gone over with my snow blower. I didn’t have any problems.
MR. STONE-I was only thinking about their trudging out to the garage. It wasn’t a matter of
getting rid of the snow.
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MS. REARDON-I trudge to my garage, it’s no problem. It’s a detached garage. So I don’t see
what the problem would be.
MR. STONE-Okay. Thank you.
MS. REARDON-You’re welcome.
MR. STONE-Anybody else wishing to speak on the subject? Any correspondence?
MR. MC NULTY-One piece of correspondence. It’s a letter from Kathy and Jonathan Monroe,
they say that they’re at 22 Red House Lane, Lake George. They say, “We’d like to respond to
the notice we received regarding the variance application submitted by Jonathan and Janice
Holding of 48 Dream Lake Road. As residents of Dream Lake we have no objections to the
rebuilding of their garage. We can certainly understand Andrew and Janice’s desire to rebuild
the existing structure given its current condition. The new structure proposed will be an
upgrade to the neighborhood and should have minimal impact to the surroundings. Thank you
for your time. Sincerely, Kathy & Jonathan Monroe” That’s it.
MR. STONE-Okay. All right. Then I will close the public hearing.
PUBLIC HEARING CLOSED
MR. STONE-Any further questions from the Board? Roy, let’s start with you.
MR. URRICO-Okay. I just want to point out that the reason we ask whether there can be any
movement at all is because we’re charged with allowing minimal relief. So we have to ask those
questions and make sure that that is not possible, but having heard your responses, I believe
that when we look at the benefit that can be achieved, I don’t really see any other means. I
think, yes, maybe there’s room for a half a foot or a foot before we get involved with the septic
system, but I really think that would be, it really would be a token move, and I don’t think we
really need to do that for this applicant. I don’t see an undesirable change to the neighborhood.
The request is substantial, but in reality it’s no different than before, and before doesn’t seem to
have created any problems with neighbors, especially, and it really is sort of covered with the
tree covering, and I don’t think it’s obtrusive at all. I don’t see any adverse physical or
environmental affects, and the difficulty could be considered self-created. There might be a
little bit of movement there, but I don’t think it warrants denying this application. So I would
be in favor of it.
MR. STONE-Just a quick question. Why going to 16 feet?
MRS. HOLDING-We would like some storage.
MR. STONE-Leo?
MR. RIGBY-Just like Roy said, I guess, going through all the parameters, I agree with exactly
what he said. The thing that I would like to see is I would like to see a little bit more
information, first, before I vote on it. I’d like to know exactly where the septic is, I mean, if
there’s an opportunity possibly to move the garage back a little bit more back from the road.
That might be a good thing. There might be a requirement like Lew had said, with the
Highway Department. I don’t know if it’s a hindrance to the Highway Department with the
removal of snow where it is now. It is very close to the road. So I’d like to see a little more
information, first, if I could, maybe on a, you know, a layout of where the septic system is
specifically, before making a decision.
MR. STONE-Chuck?
MR. MC NULTY-I’m going to kind of come down where Leo is. I think, when I looked at it this
afternoon, it struck me that there was a couple of places out back which obviously would be
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more difficult for snow removal, but it struck me that there were a couple of opportunities
where it would be mainly brush that would have to be taken down. I suspect that one of them
probably is where you’re saying the drainage field is, but I think there’s at least one other,
looked like it was relatively level, it might be a place that a garage could be placed, without
having to remove a lot of big trees. I could be wrong, but absent more detail on where the
drainage field is and some measured distances there, I’m left trying to balance the benefit to the
applicant versus our charge to grant the minimum necessary, and I think, given the information
I have right now, I would probably fall on the side of denying the application.
MR. STONE-Jim?
MR. UNDERWOOD-Yes. I think if we were, if this were new construction, and there was
nothing on the side, I don’t think any of us would probably approve this, but I think because
you’re replacing what’s essentially been there for a long period of time, certainly you could
move the garage into the back yard, but then you’d be looking at the garage instead of what you
want to look at. So I don’t really see that this is any grand impact on the community there. I
think with the trees along the road it’s going to be pretty well sheltered, as it is at the present
time, and it’ll certainly look a lot nicer and be more functional for you.
MR. STONE-Chuck?
MR. ABBATE-Okay. Thank you. I agree with Jim. I think the application’s a reasonable
application. I don’t think they are asking for anything that’s outrageous. The new construction
is going to be on the footprint of the old construction. I’m going to assume that those
individuals that come before us have a degree of integrity and Mrs. Holding pointed out
basically where the septic system was, and as I look at this diagram, what devastating affect
would it have on the community if this garage would be taken down and then a new one put
up in the identical footprint? I don’t see where it would have any detriment, in any way, shape
or form, to the community. So, quite frankly, I find the request reasonable.
MR. STONE-Allan?
MR. BRYANT-Well, I agree somewhat with what Mr. McNulty said, and somewhat with what
Mr. Underwood said. When I looked at it today, it appeared to me that there would be a place
behind the house to put the garage without taking down trees, but, as Mr. Underwood said,
you know, there’s a garage in that place. We’re just replacing the same garage, just a little
higher. The neighbors who are going to be affected are in favor of the project. From that
standpoint, I’d vote in favor of it.
MR. STONE-Okay. Well, I feel the way Mr. Bryant does. I can agree with one side and I can
agree with the other, but I think my first comment when I looked at the property, could we
move it to make it more conforming. I think the telling factor, however, is that it is there. The
neighbor most affected has said that it doesn’t bother her if a new garage is put there. I agree
with Mr. Abbate, or one of the Board members, who said we wouldn’t allow you to build one
there if it were new, but replacing with a more attractive, more practical building, I think is
reasonable. So I would reluctantly, not reluctantly, I shouldn’t say that, but I would agree that
it’s a reasonable place to put it. Having said that, I need a motion to approve.
MOTION TO APPROVE AREA VARIANCE NO. 66-2004 ANDREW AND JANICE
HOLDING, Introduced by Roy Urrico who moved for its adoption, seconded by Allan Bryant:
48 Dream Lake Road. The applicant in this case proposes to demolish the existing 586 square
foot garage at 9.33 feet in height and construct a 586 square foot garage at 16 feet in height in the
same location. In doing so, the applicant is requesting 29 feet of relief from the 30 foot
minimum front setback requirement and 22 feet of relief from the 25 foot side setback
requirement of the WR-1A zone per 179-4-030. This application would benefit the applicant
because there are no real feasible means to construct it. There could be some movement but
based on the applicant’s testimony about where the leach field and the septic systems are
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located, or cess pool, as you said, there really isn’t much movement there. There would not be
an undesirable change in the neighborhood character or to nearby properties. Plus, we’re
removing what essentially is an eyesore and replacing it with a brand new garage. So the
change in character of the neighborhood would be a positive one, rather than a negative one.
The request is substantial, but in reality, as I stated earlier, it is no different than what was there
before with the previous garage. We don’t see any adverse physical or environmental effects,
and the difficulty is self-created by the applicant’s desire to have a new garage in this location,
and I move that we adopt.
Duly adopted this 18 day of August, 2004, by the following vote:
th
AYES: Mr. Abbate, Mr. Underwood, Mr. Urrico, Mr. Bryant, Mr. Stone
NOES: Mr. Rigby, Mr. McNulty
ABSENT: Mr. Hayes
MR. STONE-There you go.
MR. HOLDING-I am a contractor, and have been for 32 years. I deal with Boards all the time,
and I am impressed with this Board. Some people come in with an existing nonconforming
structure like this, it’s a no-brainer, but the time that you folks have put into the details is
commendable, and I wanted to leave you with that thought.
MR. STONE-Thank you very much.
AREA VARIANCE NO. 60-2004 SEQRA TYPE: II JOHN E. COON AGENT(S): N/A
OWNER(S): JOHN AND CYNTHIA COON ZONING: LC-10A LOCATION: 50
WOODCHUCK HILL APPLICANT PROPOSES A 2,159 SQ. FT. ADDITION, WHICH
INCLUDES A 900 SQ. FT. ATTACHED GARAGE, TO THE EXISTING 972 SQ. FT. SINGLE-
FAMILY DWELLING. RELIEF REQUESTED FROM THE FRONT AND SIDE SETBACK
REQUIREMENTS AND FROM THE CONTINUATION REQUIREMENTS. CROSS
REFERENCE: BP 2004-444 WARREN COUNTY PLANNING: N/A ADIRONDACK PARK
AGENCY: YES LOT SIZE: 10.34 ACRES TAX MAP NO. 252.00-1-58 SECTION: 179-4-030,
179-13-010 (A1, 2, E)
JOHN COON, PRESENT
STAFF INPUT
Notes from Staff, Area Variance No. 60-2004, John E. Coon, Meeting Date: August 18, 2004
“Project Location: 50 Woodchuck Hill Description of Proposed Project: Applicant proposes a
2,159 sq. ft. addition, which includes a 900 sq. ft. garage and two porches totaling 687 sq. ft., to
the existing 936 sq. ft. single-family dwelling.
Relief Required:
The applicant is requesting 74 feet of relief from the 100-foot minimum front
setback requirement and 25 feet of relief from the 100-foot minimum side setback requirement
of the LC-10A zone, per §179-4-030. Additionally, relief is required from the continuation
section of the code, per §179-13-010(A1, 2 and E).
Parcel History (construction/site plan/variance, etc.):
BP 2004-444: pending this application,
residential addition with attached garage.
Staff comments:
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(Queensbury ZBA Meeting 8/18/04)
The applicant proposes a 2,159 sq. ft. addition to the existing 936 sq. ft. dwelling. The 74 feet of
front setback relief requested from the 100-foot requirement is to the edge of the road where the
property begins (confirmed by Town of Queensbury Highway Superintendent Rick Missita).”
MR. MC NULTY-And no County.
MR. STONE-Okay. Gentlemen.
MR. COON-I’m John Coon, and this is Kevin Mulcahy from Northern Designs with me. We’ve
looked at the property, went through the property with the best sketches that we could, the
designs. We came up with the measurements that were the best for the house. The additions
we feel are necessary for the wife and I, with our grandchildren and the family when they come.
To make a long story short, we’d like to build the additions on the garage and get the variances
if we can. My wife was born and brought up on Woodchuck Hill. She was a Crandall. All the
property up in that area belonged to the family for many years. Kevin’s here to explain any
part of the dwelling. My brother-in-law is one of my neighbors. He’s here. Pete Carr is another
neighbor. He’s here.
MR. STONE-We’ll get to them.
MR. COON-Okay, but if you’ve got any questions, feel free.
MR. STONE-Schoolhouse Road is the old name for Woodchuck Hill?
MR. COON-Yes.
MR. STONE-And Chris Crandall re-named it, I understand?
MR. COON-No, I don’t believe so.
MR. STONE-I thought somebody said.
MR. COON-I believe 911 did.
MR. STONE-Because we have a Schoolhouse Road probably somewhere.
MR. COON-Yes.
MR. RIGBY-I have a question. The house that’s there right now is very close to the road. Why
not do this home, remove that existing structure and move this home back further, so that it’s
further back away from the road?
MR. COON-The feasibility to move a two-story structure?
MR. RIGBY-No, I don’t mean move the structure. It looks like this is almost a situation where
you’re tearing down an existing structure.
MR. COON-No, the existing structure will existing, and the additions will be put around the
existing structure.
MR. RIGBY-Okay.
MR. COON-This house was built when it was a one lane, horse-drawn road, and the road
actually dead end’s right up my property line. It basically stops there.
MR. RIGBY-Okay. So your intent then is to basically renovate and expand the existing
structure, is what you’re saying?
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MR. COON-The home itself has already been renovated. Now it’s to build on the living room,
the patio out back and the garage and the front porch, around the existing structure.
MR. RIGBY-Around the existing structure. Okay. Thank you.
KEVIN MULCAHY
MR. MULCAHY-Have you seen the existing structure?
MR. RIGBY-Yes, I have.
MR. MULCAHY-It’s stated as 936 square feet. That’s just the footprint of the building. So you
really have a two story structure there. So you’re at 1800 square feet, as far as the living area of
that structure.
MR. RIGBY-Okay.
MR. MULCAHY-Not 936, because the way it’s written up, it’s making it sound like we’ve got a
very big addition going on on a very small house, but we have an 1800 square foot house with a
936 square foot footprint, and the other additions, you’ve got a garage addition on the left,
which would be an attached garage, a family room addition on the right. The road is there
because that was deeded to the Town. The parcel across the street was part of that original
parcel before the road was given to the Town to access Chris Crandall’s property.
MR. RIGBY-So the structure that’s there now has been renovated, you’re saying? It’s already
been renovated?
MR. MULCAHY-On the inside.
MR. COON-On the interior.
MR. RIGBY-On the interior.
MR. COON-The interior has been done, not the exterior.
MR. RIGBY-Right, okay.
MR. COON-To the exterior, all the windows and doors and everything else has been.
MR. RIGBY-And was that done just recently?
MR. COON-Yes, within the last couple of years.
MR. RIGBY-Within the last couple of years.
MR. MULCAHY-So the plan would complete that, what you’re looking at now would be all re-
sided along with the additions being re-sided with that, which would be, I think, a significant
improvement in the appearance of the property and the structure.
MR. RIGBY-Okay. Thank you.
MR. ABBATE-Well, that addresses one of my questions, which you answered, because I was
under the impression, I said, my goodness, 936 square foot single family dwelling. I said, that’s
awfully small. They certainly deserve to go to 2159 square feet. Give them some elbow room,
but you explained it to me. It’s really 1800 and something square feet. So the footprint of the
building. So it’s really not a difference between 936 and 2159.
MR. MULCAHY-That’s correct.
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(Queensbury ZBA Meeting 8/18/04)
MR. ABBATE-Okay. So you answered my question. Thank you.
MR. BRYANT-The property, it’s about a 10 acre lot?
MR. COON-10.34, I believe it is.
MR. BRYANT-You mention in the application and you mentioned in your opening statements,
as far as the design of the addition, why does it have to be in that location? I mean, why can’t
the addition be on the back of the building?
MR. COON-Even if we put the addition towards the back, you’d only have so much footage
before you start inclining, inclining up the hill.
MR. BRYANT-Yes, but the incline is, the way I viewed it, okay, you have to walk a little while
before you get to that major incline.
MR. COON-Sixteen feet, and that’s what the addition for the back patio is going to be. The
enclosed porch is 16 foot. After that, you’ve got a good sized incline that goes up there.
MR. BRYANT-Okay, but I’m saying, and how big is the front addition?
MR. COON-The front addition is only a porch, is six foot, and that’s an existing porch, a small
porch, and the new porch is going to go in front of the existing part of the house now.
MR. MULCAHY-You have a six by six entry porch on there, okay. They’re just going across the
front, the same depth out, basically, like on a two story colonial you’d see a porch come out and
go across, that’s essentially. You’re not really getting any closer to the road than what’s already
there right now with the closed porch, as far as your setback.
MR. COON-And that was basically for appearance, is why we’re doing the porch and the
pillars.
MR. STONE-And the entrance, the entrance patio, whatever we want to call it, is going to be,
that’s still going to be where it is, and that’ll be no closer to the road, the rest of the construction
will be no closer to the road.
MR. MULCAHY-It will be further away, actually.
MR. STONE-Okay.
MR. MULCAHY-Nothing will come any closer than the closest point right now.
MR. STONE-Okay. Any other questions? Well, hearing none, let me open the public hearing.
Anybody wishing to speak for this application?
PUBLIC HEARING OPENED
CHRIS CRANDALL
MR. CRANDALL-Good evening. I’m Chris Crandall, from 63 Woodchuck Hill Road. I’m
John’s brother-in-law. I grew up in this house. This is my dad’s old farmhouse. I had heard
one of the gentlemen ask, you know, maybe this should be kind of a teardown and relocate the
house. Really inside if you look, you know, for a historical thing, this house has a real nice
stone foundation. It’s been there well over 100 years. Structurally the building is a very nice
building. The outside, you know, when they re-side it and stuff, it’ll look much nicer. I think
this project is a, it will be a blessing to the old farmhouse. It’ll make it look good. It’ll make it
more functional so that they can come down here and spend the winter with, have a two car
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garage and be able to get their vehicles inside. I’m the closest neighbor. One of the relief
setbacks is on my side. I don’t have a problem with it. None of the other neighbors can even
see this house from their property, from where their houses are. I think it’ll be a constructive
thing for the neighborhood. A good deal. Thank you.
MR. STONE-Thank you, Mr. Crandall. Anybody else wishing to speak on the subject?
EDWARD CARR
MR. CARR-Edward Carr, 8 Carr Lane. I’m the neighbor on the other side, and John’s done a
nice job cleaning up around the house, the last couple of years, and I think it’s going to be an
asset to the neighborhood, and I see no adverse effects on any of us. Thank you.
MR. STONE-Anybody else wishing to speak? There’s correspondence, but the two gentlemen
who corresponded are both?
MR. MC NULTY-Correct.
MR. STONE-Do we have to read your letters in, since you just told us where you stand?
They’re in the file anyway. Okay. I will close the public hearing.
PUBLIC HEARING CLOSED
MR. STONE-Any further questions on the Board’s part?
MR. BRYANT-The screened porch is in the back?
MR. COON-Yes, it will be.
MR. BRYANT-So the only thing that you’re, as far as the encroachment on the road, the front
setback, is that small porch that you’re putting on?
MR. COON-Well, actually, according to the variance, the garage plus the living room, will not
be.
MR. BRYANT-Yes, but it’s all in the same plane of the existing house?
MR. COON-Yes, it is. There’s nothing encroaching any more than what there is now.
MR. BRYANT-Except for the porch.
MR. COON-Actually the porch is existing, the small porch. We’re just making it wider. So it
will not come closer to the road at all.
MR. STONE-It’s going to be expanded left and right, Allan.
MR. BRYANT-I understand.
MR. COON-Yes.
MR. MULCAHY-So if you were to look at the left of the building and the right of the building,
you still can’t meet 100 foot setback, if they’re attached to the existing structure. So that would
be where the relief would be.
MR. STONE-Okay. Let’s talk about it. Let’s start with Leo.
MR. RIGBY-Well, I was out there yesterday or the day before and from what you’re proposing
here, I think it’s a definite benefit. There’s no question about that. It’s close to the road, but, I
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(Queensbury ZBA Meeting 8/18/04)
mean, obviously there’s nothing that we’re going to do about that. It’s really just an expansion
of what’s existing there already. So it’s a continuation of the relief. I think the benefit achieved
by the, there’s no real way you could achieve benefit, other than what you’re proposing here,
other than picking up the house and physically moving it back, which you’re not going to do.
It’s going to be a positive development for the neighborhood. Your neighbors have both
supported it. The request is substantial, and I think it’s beneficial. I don’t think it’s going to
have any adverse physical or environmental affects on the property, and the difficulty is
somewhat self-created because the home was built there, you know, more than 100 years ago,
so it’s a circumstance that exists that there’s not much you can do about. So overall, to
summarize, I’m in favor of it.
MR. STONE-Chuck?
MR. MC NULTY-Okay. I can basically agree. I think the point of the 100 foot setback in a
Conservation zone like this is to kind of hide the house, if you’re on a main drag. You’re
definitely not on a main drag, and I think obviously there’d be more damage done to the
landscape if you tried to move the whole thing back 100 feet than if you built where you were,
and the only thought I had is if it turned out that the existing structure was not stable or what
not when you got into it, then I’d hate to approve a whole new structure where this is now, but
you’ve already answered that. You’ve renovated the inside, so you know that what you’ve got
there now is structurally sound. So, given that, I think the benefit to the applicant is certainly
visible, and I think there’s some benefit to the general intent of the Conservation areas, in not
disturbing other parts of the property. So, I’ll be in favor.
MR. STONE-Jim?
MR. UNDERWOOD-I, too, am in favor of it. I think 100 years ago people were smart enough to
figure out that that was the place to put the house, and not up the hill where you would have
been blasting out rocks and I’m sure that when Chris digs the whole, he’s going to have a much
easier time than they probably did 100 years ago. The amount of relief that’s requested is
basically a reflection of the LC-10 zone. So, I mean, that’s something we can get around because
of the historic value of the home and it’ll keep the woods up in back as they are.
MR. STONE-Chuck?
MR. ABBATE-Thank you. I agree with everything that’s been said. I think that the applicant’s
application is a reasonable application. I like the idea that one of the neighbors indicated he
was raised there and it has some historical value. I think that’s important as well, and both the
neighbors who will be immediately impacted argued for, in favor of the applicant. So why in
the world would I say anything different? So I would support the application.
MR. STONE-Allan?
MR. BRYANT-I agree with the other Board members. I would also support the application.
MR. STONE-Roy?
MR. URRICO-Yes. I’ll make it unanimous, so far. In the interest of time, I agree with my fellow
Board members. I think this is a good project. I would approve it.
MR. STONE-This is a self-contained community up there. I think my wife has been there twice,
and we go by the road every, almost every day, if not two or three times a day. It’s a good
project, and I certainly wish Mr. Coon well. I think it will benefit, obviously, himself and his
family, and it will also benefit the community, because, as a number of people have said, the
hillside will stay, and I know that the family, and Mr. Coon is a member of the family, are good
stewards of the land, and I think that that’s what they’ve indicated in their application. So,
having said that, I need a motion to approve.
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(Queensbury ZBA Meeting 8/18/04)
MOTION TO APPROVE AREA VARIANCE NO. 60-2004 JOHN E. COON, Introduced by
Leo Rigby who moved for its adoption, seconded by Charles Abbate:
50 Woodchuck Hill. The applicant proposes a 2,159 square foot addition which includes a 900
square foot garage and two porches totaling 687 square feet, to the existing 936 square foot
single-family dwelling. The relief required. The applicant is requesting 74 feet of relief from the
100-foot minimum front setback requirement and 25 feet of relief from the 100-foot minimum
side setback requirement of the LC-10A zone, per Section 179-4-030. Additionally, relief is
required from the Continuation section of the Code per Section 179-13-010 (A1, 2 & E). In
looking at the application and looking at the benefits, and the Area Variance criteria, whether
the benefit can be achieved by other means feasible to the applicant. We don’t believe that the
benefit can be achieved by any other means due to the site where the home is placed right now.
Whether there’s an undesirable change in the neighborhood character or to nearby properties,
the proposed renovation to the home will improve the character of the property and should
improve the character of the neighborhood. Whether the request is substantial. The request is
significant, but not substantial, and again, it benefits the character of the neighborhood.
Whether the request will have adverse physical or environmental effects. From what we can
see, the request will have no adverse physical or environmental effects, and whether the alleged
difficulty is self-created, it is self-created to some extent in that the home was built more than
100 years ago, and there’s really no alternative, other than to either move the home or to
renovate the home. Moving the home is not a viable alternative. Having gone through that, I’d
like to make a motion to approve Area Variance 60-2004.
Duly adopted this 18 day of August, 2004, by the following vote:
th
AYES: Mr. Bryant, Mr. Urrico, Mr. McNulty, Mr. Underwood, Mr. Rigby, Mr. Abbate, Mr.
Stone
NOES: NONE
ABSENT: Mr. Hayes
MR. STONE-There you go.
MR. COON-Thank you very much.
AREA VARIANCE NO. 63-2004 SEQRA TYPE: II PHILIP J. HAAKENSON FOR
BRENNEISEN AGENT(S): PHILIP J. HAAKENSON OWNER(S): FRANK, JR. AND
ADRIANA BRENNEISEN ZONING: WR-1A LOCATION: 340 GLEN LAKE ROAD
APPLICANT PROPOSES TO CONSTRUCT A 6 FT. BY 10 FT. WALK-IN CLOSET
ADDITION. RELIEF REQUESTED FROM THE SIDE SETBACK REQUIREMENTS AND
THE CONTINUATION CODE. CROSS REFERENCE: SPR 55-2004, BP 2004-132, BP 97-719
WARREN COUNTY PLANNING: N/A ADIRONDACK PARK AGENCY: N/A LOT SIZE:
0.31 ACRES TAX MAP NO. 289.9-1-73 SECTION: 179-4-030, 179-13-010 (A1, E)
PHILLIP HAAKENSON, REPRESENTING APPLICANT, PRESENT
STAFF INPUT
Notes from Staff, Area Variance No. 63-2004, Philip J. Haakenson for Brenneisen, Meeting Date:
August 18, 2004 “Project Location: 340 Glen Lake Road Description of Proposed Project:
Applicant proposes a 60 sq. ft. walk-in closet addition.
Relief Required:
Applicant requests 6.57 feet of relief from the 20-foot minimum side setback
requirement, per §179-4-030 for the WR-1A Zone. Additionally, relief is needed from the
continuation section of the code, per §179-13-010(A1 and E). Even though the applicant has not
requested any relief from the 65% minimum permeability requirement, staff has determined
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(Queensbury ZBA Meeting 8/18/04)
approximately 2.15% of relief is required (net increase of impermeable area is approximately
0.22%), per §179-4-030 for the WR-1A Zone.
Parcel History (construction/site plan/variance, etc.):
BP 2004-132: pending this application,
60 sq. ft. residential addition.
BP 97-719: 12/10/97, 35 sq. ft. residential addition (kitchen extension).
UV 38-1991: 05/15/91, private crushed stone boat ramp for owner use only.
SP 12-91: 03/19/91, construction of a private boat ramp for owner use only.
Staff comments:
The applicant is proposing to construct a 60 sq. ft. walk-in closet addition, which results in the
need for side setback relief and relief from the continuation code requirements. Even though
the applicant has not specifically requested any relief from the permeability requirements, staff
has determined the expansion results in a net increase of approximately 0.22% impermeable
area (applicant calculated a 1% net increase). Even though the net increase is relatively small,
staff has calculated the proposed permeability to be approximately 62.85%, which requires
2.15% of relief from the 65% minimum requirement. The applicant calculated a proposed
permeability of 57%, which would require 8% of relief. However, the applicant incorrectly
calculated the total impermeable area on the parcel by including that portion of the driveway in
the town ROW and a dwelling footprint area larger than what actually exists.”
MR. STONE-No County?
MR. MC NULTY-No County.
MR. BROWN-Glen Lake, no County.
MR. STONE-Okay. Go.
MR. HAAKENSON-I’m Phil Haakenson. I don’t think I need to say too much, but answer any
questions you might have. The only point I’d like to make is that this closet is put in the only
bedroom on the main floor, and that’s important to the owners, that they can have a closet on
that main level.
MR. STONE-Any questions anybody?
MR. BRYANT-Would that be the only closet on the main level?
MR. HAAKENSON-Yes.
MR. BRYANT-There’s no closet in the bedroom now?
MR. HAAKENSON-There’s no other bedroom on the main level.
MR. BRYANT-Is there a closet existing in the bedroom now?
MR. HAAKENSON-No.
MR. BRYANT-So there’s no closet on the first floor.
MR. HAAKENSON-No.
MR. STONE-Anybody else?
MR. ABBATE-Looking at the diagram here, I see the retaining wall. Can I assume that the
retaining wall is on your property?
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(Queensbury ZBA Meeting 8/18/04)
MR. HAAKENSON-I don’t have the map in front of me.
MR. ABBATE-You don’t have it?
MR. HAAKENSON-I don’t have the map in front of me.
MR. ABBATE-Would you like to look at this?
MR. STONE-You mean toward the road?
MR. ABBATE-Yes.
MR. STONE-Yes, if you look at the map, definitely.
MR. ABBATE-Thank you. Really what I’m driving at is that it’s not going to impose on anyone
else’s property, am I correct?
MR. HAAKENSON-Yes, and the other point is that I’m actually two feet farther in from the
relief given earlier. So we’re not closer in any way.
MR. ABBATE-Okay. Thank you.
MR. STONE-Anybody else? Let me open the public hearing. Anybody wishing to speak on
this subject?
PUBLIC HEARING OPENED
MR. STONE-Any correspondence?
MR. MC NULTY-One piece of correspondence. A note from a Henry and Helen Sander. They
say, We’re next door neighbors of Mr. and Mrs. Brenneisen for 20 plus years, and they have
been good neighbors to each other and we do not have any objection to their getting permission
from the Town Board for side setback from our boundary lines or theirs. They need to have this
project done, added to their home.
MR. STONE-Okay. I’ll close the public hearing.
PUBLIC HEARING CLOSED
MR. STONE-Any further questions? Okay. Let’s start with Jim.
MR. UNDERWOOD-I think you have to look at the, put this in the context of what we’re
adding here, and I think the .22%, you know, decrease in the amount of permeable area is pretty
negligible. I think that the amount of relief, when we’re talking about granting them 2.15% of
relief on that is a reflection of what’s already been built on the property. This just a closet. It’s
not a major renovation to the property. It’s a pretty small request. I think that, as far as an
impact on the neighborhood, you know, from the road you’re barely going to be able to see it if
you’re flashing by in your car because it’s hidden behind the garage and you’re kind of looking
between the garage next door also. So I don’t really think that I would have a problem with
this.
MR. STONE-Okay. Chuck?
MR. ABBATE-Thank you. I think it’s a reasonable request. As Jim says, and I agree with him,
it’s a walk-in closet addition, and I can’t, for the life of me, see where this would have any type
of adverse impact on the area. I truly don’t. I would be in favor of the application.
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(Queensbury ZBA Meeting 8/18/04)
MR. STONE-Allen?
MR. BRYANT-Before I make a statement, Mr. Chairman, I just want to make sure I understand
what you said. You said there’s no closet on the first floor?
MR. HAAKENSON-I don’t remember any. I’ve only been in the house once. Frank is here.
MR. BRYANT-That bedroom has no closet at all?
FRANK BRENNEISEN
MR. BRENNEISEN-I moved into that house 30 years ago. It had no closets. My name is Frank
Brenneisen. I live at 340 Glen Lake Road, for the past 30 years. When I moved into that house,
there were no closets at all, and I’m not a carpenter. I’m a retired mechanic for 50 years, and I
had to build them myself. I built them inside. They took up room in all of the rooms that I did
put them in, and that one room never had a closet, but I have the closet there now, not in that
room, but in the other rooms upstairs, the bedrooms upstairs.
MR. BRYANT-It doesn’t have a closet in that room at all. Mr. Chairman, I’m going to go along
with the other members and say the request is reasonable and vote in favor of the application.
MR. STONE-Okay. Roy?
MR. URRICO-Yes. I agree. I would be in favor of it for the same reasons given.
MR. STONE-Leo?
MR. RIGBY-Yes, I’m in favor of it as well.
MR. STONE-Chuck?
MR. MC NULTY-I can agree. I think it’s a minor addition. Doesn’t extend beyond other
portions of the house, and the benefit to the applicant clearly outweighs any possible detriment.
So I’d be in favor.
MR. STONE-I certainly agree. I mean, it’s almost an internal construction, except it sticks out a
little bit, and the one affected neighbor doesn’t seem to have a problem. So, I certainly would
vote in favor. Having said that, I need a motion to approve.
MOTION TO APPROVE AREA VARIANCE NO. 63-2004 PHILLIP J. HAAKENSON FOR
BRENNEISEN, Introduced by James Underwood who moved for its adoption, seconded by Leo
Rigby:
340 Glen Lake Road. The applicant’s proposing a 60 square foot walk-in closet addition, and
the relief required, the applicant is requesting 6.57 feet of relief from the 20 foot minimum side
setback requirement per Section 179-4-030 for the WR-1A zone. Additionally, relief is needed
from the Continuation section of the Code per Section 179-13-010 (A1 & E). Even though the
applicant has not requested any relief from the 65% minimum permeability requirement, Staff
has determined approximately 2.15% of relief is required. The net increase of impermeable area
is approximately .22% per Section 179-4-030 for the WR-1A zone. The applicant would gain
needed closet space where none exists at the present time, and as mentioned before, this project
will not be visible because it’s partially hidden by the garage and will not extend any further
than the edge of the building, actually inset a little bit at that point. It’s rationalized that the
very small amount of impermeable area that’s going to be added is not going to have any
impact on Glen Lake and the Critical Environmental Area there. So I would move for its
approval.
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(Queensbury ZBA Meeting 8/18/04)
Duly adopted this 18 day of August, 2004, by the following vote:
th
AYES: Mr. McNulty, Mr. Urrico, Mr. Bryant, Mr. Abbate, Mr. Underwood, Mr. Rigby, Mr.
Stone
NOES: NONE
ABSENT: Mr. Hayes
MR. STONE-There you go, gentlemen.
MR. BRENNEISEN-Thank you very much.
MR. HAAKENSON-Thank you.
AREA VARIANCE NO. 68-2004 SEQRA TYPE: II DAVID AND LYNDA JOHNSON
AGENT(S): MC PHILLIPS, FITZGERALD, & CULLUM LLP OWNER(S): DAVID AND
LYNDA JOHNSON ZONING: WR-1A LOCATION: 347 CLEVERDALE ROAD
APPLICANT HAS CONSTRUCTED A 1,483 SQ. FT. ADDITION WHICH INCLUDES A 483
SQ. FT. COVERED PORCH. APPLICANT REQUESTS RELIEF FROM THE SIDE SETBACK
REQUIREMENTS AND THE CONTINUATION CODE. CROSS REFERENCE: AV 9-2002,
SPR 43-99, BP 99-709 WARREN COUNTY PLANNING: AUGUST 11, 2004 ADIRONDACK
PARK AGENCY YES LOT SIZE: 0.47 ACRES TAX MAP NO. 226.12-1-48 SECTION: 179-4-
030, 179-13-010 (A1, E)
JAMES CULLUM, REPRESENTING APPLICANT, PRESENT
MR. STONE-Point of order, Mr. Chairman, this is an old application.
MR. STONE-No, this is a new application.
MR. BRYANT-I know it’s presented as a new application.
MR. STONE-It is a new application.
MR. BRYANT-But reading the minutes, okay, I’m just asking a question. I’m not trying to cause
trouble. Wouldn’t this be an issue where we would vote to see how close it is to the old
application?
MR. STONE-No. This was, we denied this application. The Johnsons sued the Town, sued us,
in court. The initial court ruled in their favor. The Appellate Division overturned that decision,
and they still have a nonconforming house, and they were asked and told to submit a new
application.
MR. BRYANT-So this is not a rehearing?
MR. STONE-No.
MR. BRYANT-No. I’m confused about the difference at this point. It appears similar to the old
application.
MR. STONE-That may very well be, and you may rule that way, if you’re so inclined.
STAFF INPUT
Notes from Staff, Area Variance No. 68-2004, David and Lynda Johnson, Meeting Date: August
18, 2004 “Project Location: 347 Cleverdale Road Description of Proposed Project: Applicant
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has constructed a 1,035 sq. ft. addition, which includes 257 sq. ft. of covered porches. The
applicant proposes to remove the 5’ x 7’ covered porch on the south side of the structure.
Relief Required:
Applicant requests 8.08 feet of relief from the 20-foot minimum side setback
requirement, per §179-4-030 for the WR-1A Zone. Additionally, relief is needed from the
continuation section of the code, per §179-13-010(A1, A2 and E). Note: Relief from A2 is
approximately 174.5 sq. ft. in addition to the 809.5 sq. ft. expansion allowed for this project.
Parcel History (construction/site plan/variance, etc.):
AV 9-2002: denied 06/19/02, side setback
relief and relief for the expansion of a nonconforming structure for a 1,000 sq. ft. residential
addition.
AV 9-2002: tabled 03/27/02, side setback relief and relief for the expansion of a nonconforming
structure for a 1,000 sq. ft. residential addition.
AV 9-2002: tabled 02/27/02, side setback relief and relief for the expansion of a nonconforming
structure for a 1,000 sq. ft. residential addition.
BP 99-709: 11/22/99, 2,226 sq. ft. residential addition/renovation.
SP 43-99: 09/21/99, expansion in a CEA for a 1,000 sq. ft. residential addition.
Staff comments:
The applicant proposes to remove the 5’ x 7’ covered porch on the south side of the dwelling
resulting in a side setback of 11.92 feet, which requires 8.08 feet of relief from the 20-foot
minimum requirement. Originally, the applicant desired to keep the porch resulting in a
request for 13.13 feet of side setback relief. This request was denied on 06/19/02. For the current
application, additional relief is required from the continuation section of the code, per §179-13-
010(A1, A2 and E). The relief required from §179-13-010(A2) has been determined by staff to be
approximately 174.5 sq. ft. (the original dwelling footprint was approximately 1,619 sq. ft.
before the expansion; 50% of 1,619 sq. ft. equals 809.5 sq. ft.; 984 sq. ft. is the approximate
expansion minus the 5’ x 7’ covered porch proposed to be removed). In determining the
amount of relief required for the expansion, staff calculated the floor area utilizing the
dimensions specified on the floor plans submitted with the building permit application and
scaled dimensions from the “as built” survey. It appears as though the original area, listed on
the site development data sheet for the building footprint (1,226 sq. ft.) and the original porch
(86 sq. ft.) are incorrect when compared with the site plan submitted for BP 99-709.
Additionally, it appears that the 1,000 sq. ft. proposed addition listed on the site development
data sheet includes part of the 483 sq. ft. listed for the proposed porches. Staff has determined
the proposed area for the addition to be approximately 984 sq. ft., which does not include the 35
sq. ft. porch currently proposed to be removed.”
MR. MC NULTY-“Warren County Planning Board Project Review and Referral Form August
11, 2004 Project Name: Johnson, David and Lynda Owner: David and Lynda Johnson ID
Number: QBY-04-AV-68 County Project#: Aug04-23 Current Zoning: WR-1A Community:
Queensbury Project Description: Applicant has constructed a 1,483 sq. ft. addition, which
includes a 483 sq. ft. covered porch. Applicant requests relief from the side setback
requirements and the continuation code. Site Location: 347 Cleverdale Road Tax Map
Number(s): 226.12-1-48 Staff Notes: Area Variance: The applicant requests approval of a 1,483
sq. ft. addition to an existing dwelling. The addition is 11.92 ft. from the side property line
where 20 ft. is required. The applicant also proposes to remove an existing covered porch that
is in violation of the setback that is 6.92 ft. from the property line. The information submitted
indicates there was an architectural error when the setback line was inaccurate on the drawing.
Staff does not identify an impact on county resources based on the information submitted. Staff
recommends no county impact. County Planning Board Recommendation: No County
Impact” Signed by Bennet F. Driscoll 8/13/04”
MR. STONE-Okay. Gentlemen?
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MR. CULLUM-My name is James Cullum. I represent the Johnsons. This is David Johnson, to
my right, and next to me is his contractor, Wayne Williams. Before we start, I didn’t have the
opportunity to see Staff comments, but coincidentally, for the record, we did make some
changes to some of the measurements, and I don’t think we have any dispute about the net
effect of that, but we did take the original measurements for this application from the old
application, and this afternoon, in looking at them, I discovered some errors. I’ve made changes
in red, and I’d be glad to provide them to you. I don’t think it has a major consequence on what
we’re going to discuss here tonight, but it is for the record.
MR. STONE-Okay.
MR. CULLUM-Although most of you are fully familiar with this, I understand that, I must put
some things on the record, and also for the benefit of anyone who wasn’t here for the last
application. Let me tell you about the Johnsons. The Johnsons are long time residents of
Queensbury. They are not, as one could expect, someone who came to Lake George because
they liked Lake George and built a house there, for their own benefit, at the expense of the
Town and their neighbors. They lived in Bedford Close. They lived in Glen Lake. They’ve
lived in this area since 1989. Their contacts are here. Their friends are here. If I brought their
friends from the Town of Queensbury here this room wouldn’t be big enough, and I only bring
that up because I want to dispel any notion that you’ve got an outsider coming in here to do
something underhanded.
MR. STONE-Sir, I appreciate what you’re saying. We judge the application on the facts of the
application. The fact that Mr. Johnson is a good citizen is commendable, but it has absolutely
no bearing on our determination.
MR. CULLUM-And I appreciate that, Mr. Stone, but I know it’s just human nature, judging by
the record in the last proceeding, when you see somebody coming in after something is done, to
wonder what happened here, and I wanted to just clear that up.
MR. STONE-Okay.
MR. CULLUM-So, when the Johnson’s had the opportunity to buy a place on Lake George they
did so, and they wanted to increase the size of the residence. It’s a 1226, it was a 1226 square
foot place. They wanted to make it a little bigger. They didn’t want to create a grandiose place.
They just wanted something bigger. The first thing they did was go to their neighbors and talk
to them about it. They had some room in the front of the old residence to move towards the
lake. That would have not been good for their neighbors. Their neighbors are both, on each
side, in front of them, towards the water. If they moved their place out toward the lake,
somebody was going to get blocked off. So they talked to the neighbors. That part was not
considered a feasible way to approach this. Mr. Johnson then looked around for an architect, an
engineer, somebody to do some drawings for him and get this thing started. I can tell you this,
he hired someone who made a mistake, but it was an arms length transaction. That individual
is not related to him, he isn’t a friend of his, he’s not even an acquaintance of him. He was
somebody referred to him. That man made a mistake, and it was not something that Mr.
Johnson wanted, asked for or is happy was made. It was something totally out of his control,
and without his knowledge. So, he hired an individual. The man prepared a plot plan that
showed the setback line and showed the addition to be within the setback and therefore in
compliance. Based on that, the application went through the regular process, and it wasn’t like
this place was built and then they went for some type of approval. They went through site plan
review in 1999. They applied for a building permit. They got it. Inspections occurred all the
way along the way during the construction. At the end of the project, it was inspected again. A
Certificate of Occupancy was issued. At that point I believe Mr. Brown came to the site and
suspected that this place was too close to the line. He requested that the Johnsons get a survey,
which they did, and of course it’s way over the setback lines. That brought us to you. Now,
one other thing. During the construction of this place, Mr. Williams asked the Johnsons if they
wanted something over the side door. Would you like some kind of stoop or something, and
they said yes. So it was built. It was never on the original plans. We said the last time and we
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say again, we know that it was improper, and we had to apply for the variance for that. So,
that’s the way it happened. It wasn’t something, the Johnsons are not experts on zoning or
anything else. To them it just made commonsense, have a roof over the door, that’s fine. Let’s
do it. It would be nice. Not only that, you wouldn’t be able to see it from any place because it’s
still not out further than the garage and carport and shed which are nonconforming uses there.
So, that’s how that came about. Now, as I said, the building was constructed that way. When
we got to you, there was a mistake made here by us, a mistake in judgment, and that is, we’re
here tonight with that offering to remove that porch. Why didn’t we do that then? And I’ve
thought about that, and I remember the first night I was here. I wasn’t here the final night, but I
was here the first time when we went through this, and I remember being here thinking shall
we compromise this and take the porch off, or would that just be paying a tribute to
compromise for the sake of compromise? We honestly thought we were going to get this
variance, and that’s why we didn’t compromise at the time. We thought it would be a waste of
money, and in hindsight, we should have made the compromise. In any case, legally, there’s
the balancing test that you’ve all expressed several times that we’re aware of. You’ve got to
measure the benefit to the Johnsons against the detriment to the health, safety and welfare of
the community, and you’ve got the five criteria that you apply. It’s in the Zoning Ordinance.
It’s also in the Statute. I’d like to just run through them very quickly. The first one is whether
this project would change the character of the neighborhood or be a detriment to neighboring
properties, and it will not. I think the record from previous hearing, even though it was
opposed to it on the Board, would indicate that this was an improvement in the area. All of the
neighbors state the same thing, that it’s a benefit in the area. It’s improved the aesthetics
greatly, and the detriment is virtually non-existent. I understand that you could argue that
anytime you get close to a line, that’s a detriment, and I would ask you to consider the
circumstances in this case. Not only the character of Cleverdale, but this particular building.
There is a carport, a garage and a shed between the road and this porch. If you go by those
three structures, which are as close as four feet to the line, nonconforming uses, you can’t even
see this porch. You have to be at an angle to even look back there and see. You can’t see it from
the lake. It’s blocked out from the neighbor on that side, the Freeburns, who incidentally sent a
letter last time favoring the project. There are shrubs and trees planted between that side of the
house and the Freeburns. So there really is no detriment. The second test that you have to
consider would be whether there is a feasible alternative. Now, I mentioned the lake.
Conceivably, you could put a building, an addition on going towards the lake, and that’s, as I
understand it, most environmentalists and most people prefer to have the houses further away
from the lake than closer to it, and this accomplishes that, but more importantly, it doesn’t have
any effect on the neighbors by keeping it back where it is. With those other buildings there, the
logical way to do this, and the most feasible way, is to add on to the building to the side. So
there is no feasible alternative in that regard. The last time we were here, a feasible alternative
was mentioned as to removing the porch on the side of the building. That’s what we’re
proposing to do now. So, if that’s a feasible alternative, it’s on the table right now, albeit late.
Another consideration is whether this is a substantial request, and when you measure
something and you need eight feet, and you say, well, eight twentieths is whatever, 60%, or
whatever it is, 40%.
MR. STONE-Forty percent.
MR. CULLUM-It sounds like a lot, but under the circumstances here, and that’s, I think, what
you can do here is consider all of the circumstances. That eight feet doesn’t amount to much
when the building right next to it is only four feet from the line. So, substantial in percentage,
yes. Substantial in reality, no. The fourth criterion is whether there is an adverse effect on the
physical condition of the property or the environmental condition of the property, and there
isn’t any question that there’s no adverse effect on those elements. Finally, whether this is self-
created, and we can argue whether it’s self-created all night long. I’m willing to assume that
it’s self-created, even though it was innocently self-created, and I think that’s the key. So the
Johnsons didn’t create the situation. They’re stuck with changing it. Just, beside those issues, I
just want to address very briefly a couple of the other things that may enter your minds and I
don’t mean to speculate on what your intentions are, but some mention had been made about,
well, your case is against the architect, you know, you could sue the architect, and I don’t think
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that’s a responsible approach here. I don’t think promoting litigation, in this situation, is
anything that helps anybody. First of all, the Johnsons are in love with their property and they
put their heart and soul in the property. To say, okay, let’s tear it down and sue the architect, is
just not the way to do it, especially when this thing, it just craves for a variance. So, that idea I
think doesn’t have any merit. Also, I might say I don’t think it’s a remedy to them at all
anymore. At some point, and I can’t give you the precise details, but at some point during this
whole process, when we were going through the courts and so on, a Statute of Limitations
against the architect may have run, and about that point, I think we had had the favorable
decision from the Supreme Court. So it really wasn’t necessary to be starting a lawsuit against
the architect when we were ahead. So it’s not really something we can consider. I wanted to
add that, although some people can believe you could look at this and see that it’s too close to
the line, that is not the case with the Johnsons. They don’t know anything about zoning. I don’t
know if they knew, frankly, at the time, whether what the setback requirements were, but to
pass that responsibility on to them, I think is improper. They really didn’t know that this thing
was close to the line. Indeed, the Town had numerous inspections, and they didn’t see it,
during the course of this whole construction of the project. There’s nothing underhanded here.
The benefit to the community is clear. The Johnsons have, they’ve undergone a great hardship,
a great anxiety, expense in going through this. It’s not something they relish, I guarantee you.
I’m hoping that this proposal we’re making here through this reapplication, or new application,
of removing that porch, you will find satisfactory, and grant the variance.
MR. STONE-Thank you, sir. I have one question, as we start. I notice steps leading down from
the front porch towards the side yard. They don’t see to appear on any of the surveys that
we’ve been given. There were two steps or three steps and a couple of banisters leading right
towards it to the south.
DAVID JOHNSON
MR. JOHNSON-No, they’re not on there.
MR. STONE-But they’re there now.
MR. JOHNSON-Yes.
MR. STONE-And when did they appear?
MR. JOHNSON-They’ve always been there. They were there right from the beginning.
MR. STONE-Why did they never show on a survey?
MR. JOHNSON-I don’t know. The survey was done by Van Dusen and Steves, and they didn’t
include them. I don’t know if they considered that a building structure or what.
MR. STONE-Well, the Code does. I would think they should have been there. I mean, I noticed
them when I was out at the property the other day.
MR. CULLUM-Mr. Stone, is that the porch on the road side of the property?
MR. STONE-No, on the lake side.
MR. CULLUM-Okay.
MR. STONE-There seems to be. Have any of you other guys noticed it? There was a set of
stairs coming down to the south, to the neighbor to the south.
MR. JOHNSON-Yes, they’re there.
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MR. STONE-Okay, and they may be encroaching. That’s more my concern. They don’t show
up on these pictures. This is a side yard that you’ve provided, right?
MR. CULLUM-Yes, it is.
MR. STONE-They’re through here. They’re up here where the new porch addition is, the new
front porch.
MR. CULLUM-Yes. If you walk past that porch, you get to this.
MR. STONE-And I don’t know whether they encroach or not. They also may encroach.
MR. CULLUM-Well, we know the building does there, and that’s part of the variance here, but I
didn’t know about the steps. I’ve been working off of this map.
MR. STONE-Nothing we’re provided with shows that.
MR. ABBATE-Mr. Cullum, you have, and I mean this in all sincerity, you have presented one of
the finest arguments in favor of a client that I’ve heard in a long time, and I was impressed with
the fact that, as you look back on the notes and what have you, that perhaps in the best interest
of the clients as well as this Board and the Town that perhaps there should have been a
compromise in the first place, and I applaud you for acknowledging that, and I’m sure that it
was a very difficult thing to do, but we all learned a lesson. I think not only the applicant,
perhaps we did, too, and since the hour is getting late, I’d like to just quote what my
granddaddy used to tell me, and he said, son, he says you never doo doo on a crocodile until
after you cross the creek. Thank you, Mr. Chairman.
MR. STONE-That’s it?
MR. ABBATE-That’s it.
MR. STONE-Any other questions anybody has?
MR. RIGBY-I just want to understand the numbers a little bit, since I wasn’t part of the original
go through on this. The original square footage on the property you said was 1226 square feet?
MR. CULLUM-Yes.
MR. RIGBY-And the property now is how many square feet?
MR. CULLUM-Well, as I understand it, it’s 1,000 square feet, in addition to the 1226, plus that
back, the front porch, as Mr. Stone referred to it, which is another 218 feet in addition to the
porch that was there. So total, porch and new addition, would be 1218 square feet.
MR. RIGBY-So the total square footage is somewhere around 24, 2500 square feet?
MR. CULLUM-Yes. That’s right.
MR. RIGBY-Okay.
MR. STONE-This 1/28/02 copy of the survey by Van Dusen and Steves, is that the latest one?
MR. CULLUM-Yes. That’s the one that was done after Craig Brown requested him to do
something, after the work was done.
MR. STONE-Because it certainly doesn’t even approximate this one that you have under C.
MR. CULLUM-No.
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MR. STONE-That’s totally in error.
MR. CULLUM-And if you look at it, the first one, the plot plan that was erroneous, even the
location of the existing building is off. It’s not even centered right in the picture, in the plan.
MR. ABBATE-Yes, and that’s what caused a lot of the confusion. I suspect.
MR. CULLUM-Yes, that’s right.
MR. STONE-I mean, I certainly applaud the Johnson’s willingness to take off part of the
offending structure. I am concerned, however, since I have no dimensions to look at, with these
steps, as a minimum, and I haven’t even begun to consider whether or not this is sufficient
reduction in encroachment, because I think there’s more on those stairs, but that was just an
eyeball. I mean, I didn’t go measure it. Mr. Brown has not measured it. I don’t blame him.
MR. BROWN-I have not, and maybe I could offer a solution to that, if everybody’s amenable to
it. If you’re so inclined to grant the variance tonight, as requested, with the removal of the
porch, you could condition that the applicant provide information that those steps meet that
setback requirement. If they don’t, they’ll have to reappear before you to seek additional relief,
but I would guess, based on the angle of this house, unless those steps are six or eight feet wide,
they’re probably going to fall within the relief that you give them tonight, if you choose to do
that.
MR. STONE-I understand.
MR. BROWN-Or you could table them and have them come back with the information, but I
think it’s probably going to fit in this, I don’t know how big the steps are, but
MR. JOHNSON-I believe there’s four steps down to the ground.
MR. BROWN-Four, maybe if they’re a foot tread, that’s still four feet away from the.
WAYNE WILLIAMS
MR. WILLIAMS-Twelve inches.
MR. STONE-So that’s four more feet.
MR. BROWN-Yes, and so what that would do, at that closest point, 16 feet to the house, that
puts it at 12 or 11 feet, and you’re looking to give them the same distance to the back of the
house. So it looks like it would fit.
MR. CULLUM-Yes, Mr. Stone, when we take off the porch on the side, closer to the road, the
ones you have the picture of, that’s still going to be only 11.92 feet from the side line. So even
those steps are further away than that. I think is what you’re saying.
MR. BROWN-I would guess.
MR. CULLUM-Yes. The steps would be further away than that more narrow point, as you
approach the shed there.
MR. STONE-These pictures, I can’t reconcile them, in terms of, what am I looking at?
MR. CULLUM-Both pictures are that side porch that we’re going to remove.
MR. STONE-I thought what’s left on their porch is a very small little, do you guys see a big
porch there?
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MR. CULLUM-You know what you saw, I’ll bet it’s the drawing of the old porch.
MR. STONE-No, it’s these pictures.
MR. JOHNSON-That’s the original house.
MR. STONE-That’s the original house, that’s what I thought.
MR. JOHNSON-There was a porch on the side of the original house.
MR. CULLUM-Then we gave you the wrong photographs.
MR. STONE-See, we’re confused. No wonder why we’re confused.
MR. CULLUM-We have photographs of the new one which I would be glad to submit for the
record also.
MR. JOHNSON-The Town person came out and took pictures. Bruce Frank.
MR. STONE-Bruce would have taken pictures.
MR. JOHNSON-He took pictures from the street, from Freeburns, from the lakeside.
MR. BROWN-No, they’re right here. Unfortunately, none of them show, actually, these are
good for you. They don’t show the porch from any place. They’re not close to pictures of the
porch.
MR. STONE-What we have, I mean, I assume that this little “P” here is what we’re talking
about.
MR. CULLUM-That is correct.
MR. STONE-And that’s just a little cover and a landing.
MR. CULLUM-It’s roughly five feet.
MR. JOHNSON-It’s really just an extension of a roof with two posts.
MR. STONE-Right. Yes, well that’s what I saw. When I look at pictures, I’m trying to figure out
where we stand. Anybody else have any questions? I mean, obviously the stairs, to me, are a
question, and I don’t have an answer, obviously.
MR. URRICO-In addition to the removal, is there any sort of vegetation being put in there, any
sort of screening?
MR. JOHNSON-There’s a 10 foot, 12 foot cedar hedge that’s there already, from the lake. I
mean, there’s, you have those, have they seen those pictures?
MR. BROWN-They originally saw the photos, and I apologize. Usually we have a projector and
the camera up here, but I didn’t get to bring the stuff tonight. Bruce is on vacation, but
normally we would have, be able to show these photos.
MR. RIGBY-Mr. Chairman, again, this is new to me, so I’m still trying to get familiar with the
history. There was a building permit issued in 1999, and then there were three Area Variances
that were, two were tabled and one was denied. The construction that was done, was it all done
underneath the building permit that was issued in 1999?
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MR. CULLUM-Yes, that’s correct. It was all done before those tablings and denial took place.
MR. STONE-When was the building complete?
MR. CULLUM-2000.
MR. STONE-2000. Okay, but it was under Building Permit 99-709.
MR. CULLUM-That’s correct.
MR. STONE-And then we got into the history that you talked about, Mr. Cullum, and then it
came to us, and you know the history as well as we do. Does anybody else have any questions?
Let me open the public hearing. Anybody wishing to speak on the subject?
PUBLIC HEARING OPENED
BOB O’BRIEN
MR. O’BRIEN-My name is Bob O’Brien. My wife and I own the property just north of the
subject property, and we’ve been there for, we owned the property for over 30 years, and we’ve
been a year round resident there for over 20 years. In that period, I have seen, in the Kattskill
Bay area, a lot of development. A lot of it, most of it’s come through you people. Some has
been through probably the same period of time as I have. Some of that development has been
good. Some of it has been not so good. The Johnson property has definitely enhanced the
community of Cleverdale. It’s a lovely piece of property, and the Johnsons are excellent
neighbors, and just as a private citizen, when I look at what’s happened in this case, I’m
appalled. The fact that the error has caused all this problem, has caused three or four meetings,
has cost the Town expense, has cost the Johnsons expense, the error was, I’m sure, in good faith.
An architect submitted plans. It came through you people. The house was renovated, and
about the time that it was renovated and completed, the error was discovered. Now that’s not
the Johnson’s fault. It’s not your fault. It’s an error. It was compounded along the line. It has
been compounded ever since. We shouldn’t even be sitting here tonight, but aside from that,
that’s the Number One mystery in my mind, is why this ever developed the way it has. In
several of these cases that we heard before tonight, the subject always concerned setback.
Setbacks are a good thing, and you guys do a good thing making sure they’re proper, but as I
saw tonight, and as I firmly believe, setbacks are not something that cannot be moved, cannot
be changed. In this particular case, the setback requirements on the south side of their property,
the neighbor who owns that property, offers no complaint whatsoever, and if you looked from
Cleverdale Road towards the water, down that property line, you would see the addition that
the Johnsons built, including this porch in question, would all be inside the line that the
overbuildings, the garage and the shed, are on. They’re exempt, of course, because of their age,
but all this new construction is inside that. The setback requirement is not challenged at all by
the neighbor in question here, and even if that property is sold in the future, that neighbor has
two dwellings on that property, one directly on the lake, probably 20, 25 feet from the water.
The other one, right on Cleverdale Road. This porch is right in the middle of that. It’s probably
40 feet west of the building on the road, and probably 70 feet east of the building on the water.
Nobody who buys that property is going to challenge that. They’re going to keep the building
on the water. Nobody’s going to change that. They might renovate it, and they certainly won’t
tear down the building on the road. If they did that, they probably couldn’t build again on it.
The lot’s too small. So there again, I’m looking at this from, I’m trying to look at it from your
side, and I’m trying to look at it from Johnson’s side, and I’m trying to apply a little
commonsense, and commonsense tells me that, number one, the mistake here was an honest
mistake, not caused by the Johnson’s, and, number two, I think the setback here, I think you’re
just too concerned with it. If the setback was something that somebody wanted to put up a pig
farm next door to a private home, fine. There’s more serious problems up there than arguing
about a setback that you really can’t see. So I would conclude this by just saying I would hope
that you’d apply some commonsense, fair play, and I would hope you’d put closure on this
issue tonight, in favor of the Johnsons. Thank you.
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MR. STONE-Thank you. Anybody else wishing to speak? Any correspondence?
MR. MC NULTY-No correspondence.
MR. STONE-Then I’ll close the public hearing.
PUBLIC HEARING CLOSED
MR. STONE-Let me just make one statement in defense of what we do. This is what the Town
Fathers and the Town of Queensbury, the elected Town Board, has said is the Zoning Code for
the Town of Queensbury. It is, in a sense, our bible. You might say, why do you guys want to
do this? Well, we believe in the Town. We believe in our Zoning Code. We believe I
commonsense and logic and all those things, but this is the bible. This is what Mr. Brown has to
use, day in and day out, to answer questions from people who come forward and say, I would
like to build in your Town, what are the requirements. He stands ready, eight more hours a
day, to answer these questions, and whether you agree with setback or you don’t agree with
setback, that’s what our Zoning Code calls for, and it’s changed over the years. It has been
eased in some places, made more difficult, more restrictive, but this is what we go by, and we
have to do it. That’s what we’re here.
MR. ABBATE-Mr. Chairman, can I make also a comment on that, if I may, please. I just want to
have a little quote here. It says, quote, a Board of Zoning Board of Appeals reviews the general
rules laid down by the legislative body respecting the use of land. It has no power to set aside a
law on the grounds that the terms are arbitrary, unreasonable, and unconstitutional, unquote.
MR. STONE-Having got that off our chest. Do you have anything you want to add to this
thing?
MR. CULLUM-No, sir.
MR. STONE-Okay. Well, let’s talk about it. I mean, obviously most of us have been through
this thing. We hear your arguments. Let’s start with Jim.
MR. UNDERWOOD-I was not sitting on the evenings that you had discussed this, but I did, in
the past, make some commentary regarding what was going on. I would somewhat have to
agree with what you guys have proposed here, and I think that, you know, sitting in the
audience that evening, I was a little bit miffed, because I said to myself, you know, why are we
making these people, and I think it was more like you were concerned about tearing off the
actual part of the house that was offending out on the front lakeside there, and I had made the
suggestion about putting up some vegetation, you know, maybe a clump of birches or
something just over to the one side there to somewhat mitigate the view from the lake. I realize
that you’re set back substantially from the lake compared to your neighbors, and compared to
probably most of the homes out on Cleverdale, and at the same time I was somewhat in
agreement with you that, you know, the original buildings on the site, that ones that are much
more close to the property line, due, in effect, mitigate the porch that you have on the side
there. So I, frankly, didn’t really see that the very small size of the porch that you had on the
side there was going to be any grand, you know, negative on the lake or on the neighborhood,
per se. I think the fact that there’s a hedgerow along there that seems to be growing up higher
by the minute, that basically mitigates that problem on the side there. I would think that on the
front side there, you know, you’re missing, you need about three feet of relief, or something to
that affect, and I don’t know what affect those porch steps have on that. I’m sure they do offend
into the space, but I’m going to guess that those steps are going to have, again, a very minimal
effect on anybody or any net effect on the lake that’s going to be negative. I would make the
suggestion, you know, the one thing I’ve heard all along from your side is that, you know,
there’s no, the Johnson’s are totally, you know, not at fault for this, and things like that, and I
think that, to a degree, I mean, the one thing that I did ascertain from those initial meetings was,
I just sat there saying to myself why don’t these people just say, you know, we screwed up, you
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know, or somebody screwed up. We can accept the responsibility for that, and in lieu of doing
that, we’ll put these, you know, one clump of birches out there on that left hand side of the
porch. It’s not really going to affect your house. It’s not going to affect anyone at that point in
time, and, you know, we’ll agree that we were the ones that screwed up and, you know, to me it
was kind of like, where this went, you know, with going to the judge and getting it overturned,
and stuff like that, I think that, you know, we have a responsibility, too, when we see
something is wrong, to point it out, and I think that, you know, as you mentioned, that set
everything off on the wrong footing there, because it was like, you know, I think there was
some comment made as to, can’t we just pay a fine or something like that that evening too, and I
said, well, gee, that’s a pretty arrogant thing to say. What I would say is that, you know, I
would be comfortable if you planted a tree out in front of there, on that left hand side. I don’t
see any reason to tear your porch off on the side. I don’t think that solves any problem, and I
think that the Board, and everybody else, they’ve extracted their pound of flesh from you, per
se, here this evening. We can end this this evening here. I just want to hear you say, yes, we
were wrong, and we’ll put the tree up, and that’s good enough for me.
MR. STONE-Chuck?
MR. ABBATE-Thank you. I agree with Jim, and compliment the attorney. I think he was
forthcoming. I think it shows a lot of integrity on his part, and he did, and it’s very difficult to
acknowledge an error. Compromise is the name of the game. We compromise every day in our
life, whether we like it or not. I even compromise on this Board, although I have to chew it, but
nonetheless we have to compromise. I think Counsel is to be congratulated on his ability to
provide a fine argument on behalf of the clients. I think he acknowledged that we’re human
and we made some errors initially, and perhaps we shouldn’t have done it that way. Now, I
don’t think we should try to extract a pound of flesh. I think that’s inappropriate. I’m willing
to support the same argument that Jim made, in that perhaps planting of trees and what have
you might be a solution, then demanding a five by seven covered porch to be completely
removed, but I’m flexible, and I’m willing to listen to what the other Board members have to
say.
MR. STONE-Allan?
MR. BRYANT-I want to revisit the June 2002, because some of the things that I said during that
meeting really haven’t changed, although your application has changed. I agree that it was an
honest mistake. When you look at the property and you look at the structure, that that building
could have been in a compliant location. The only question that I had, back in June 2002, was
the porch not being on the original permit, and I thought that that should be the sacrifice for the
mistake, and rightly so. I mean, the neighbor did make a comment, we’re looking at a setback
that nobody can see, but the fact that nobody can see is not the question here. We understand
that the Johnson’s made a mistake. It’s not their fault. Even though, ultimately, they’re
responsible for the positioning of the house. The survey should have been taken before they
started the building process, but that notwithstanding, I’m still of the same opinion. We
understand it’s a bad situation, within reasonable to do any other type of renovation to the
house, and I think that the porch is a reasonable compromise, and I’d be willing to approve it,
as long as the porch is removed.
MR. STONE-Roy?
MR. URRICO-Yes, back in June of ’02 I was hoping there would be a compromise at that time. I
really pushed for it, and as a matter of fact I voted on the side of the Johnson’s, and I feel this is
a good compromise. In fact, I would probably be willing to listen to less. Jim’s suggestion
about some sort of a tree planting was one of my original, actually it was Jim’s original
suggestion, but I agreed with him on that then. I agree with him on that now. If the porch is
removed, that would be all the more better. That would be a drastic compromise, but I was just
looking for some sort of a compromise back then. So, as it stands now with what’s being
proposed, I would be in favor of it.
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MR. STONE-Leo?
MR. RIGBY-Well, it seems like everybody agrees that, you know, what happened was a
mistake. Again, I’m coming in to this new. So that’s probably a good thing, not a bad thing.
Looking at the house, I was out there. I mean, the house is a great house. I mean, it’s definitely,
I mean, I don’t know what it looked like before, but I know what it looks like now, and it really
does justice to the neighborhood. What we’re talking about here is about sacrifice, what has to
be sacrificed because a mistake was made. I really don’t know. I don’t know what the answer
to that is, and that’s for people that have been before me and who went through all this to
determine. I like the home. I think it’s, like I said, an improvement to the neighborhood, and
it’s really a matter of, you know, how do we, you know, for someone not following a process,
what do we need to exact in this situation. So those are just my general thoughts.
MR. STONE-Okay. Just before you get to it, Chuck. We’re not exacting anything at the
moment. The applicant has presented us a plan without the offending porch. That’s what
we’re considering. I mean, it’s nice to make all the comments we’re making, but they have
offered, and freedom of choice, to say we want to get a variance for the house without that
porch. That’s what we’re talking about.
MR. RIGBY-So, having said that then, I am in favor of the variance.
MR. STONE-Okay.
MR. MC NULTY-Okay. That was kind of the first thing I was going to say. My initial reaction,
after listening to some of the comments, my view is we’re not looking for something to evict or
illicit punishment here, and I don’t particularly like to go into something like this saying we’re
looking for a compromise either. It’s a beautiful house. I like the side porch that was put on. It
adds to the attractiveness of the house. Nevertheless, there’s a side setback there that the Town
Board approved for a reason, and the porch on the side of the house, and for that matter the
portion of the porch on the lakeside, is too close to the side setback. So I certainly would go
along with the proposal to remove the side porch that’s been made. Most of the time we tend to
say, if somebody comes in with something that’s already built, we look at it and say, would we
have approved that if they had come in before it was built, and in this case, on the porch that’s
on the side of the lake, I would probably say, no, I would have said build it differently, pull it
back from the side setback line to make it fit what’s required. However, going back to what was
said in the previous meetings that we had, it was pointed out that it would be a major structural
problem to take a piece off that porch on the side of the lake now, the way it’s been built. So I
think that’s a case where we’ve got to give to the benefit of the applicant in this case. It would
probably be unreasonable at this point at this point to ask that to be done. Having said all that,
and recognizing that the porch that’s on the lake side of the lake follows the side lines of the
house and therefore actually drifts away from the lot line a little bit at that point. So it’s, in a
way it improves the setback. I’d be inclined to go along with the request as it’s proposed.
MR. STONE-I just want to say a little bit about the whole process. Somebody made the
comment, I think it was Jim, we were looking for compromise. We sat here begging for
compromise.
MR. JOHNSON-Can I make one comment? Not to interrupt. When we went, and what set me
off, and I’ll admit to guilt on this, but what set me off, when we came to the Town looking for
compromise, and the comment that we got from the Town legal department was, you should
have built closer to the lake. That’s what I was not trying to accomplish from the get go, and
when I heard that, I knew the compromise, in my mind, wasn’t going to work. That was the
Town’s attitude, and that’s when I took the course of action that I took, because I didn’t want to
offend the O’Brien’s or the Freeburns by going, as we see on the lake, down right, as close as
people can go, as tall as they can go, and obstruct the view. That wasn’t my goal.
MR. STONE-No, I appreciate that, and, I mean, 50 feet we’re on the lake, 50 feet from the lake,
and you’re 86. You’re quite a ways.
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MR. JOHNSON-And I’m 36 feet closer, when we originally designed that house.
MR. STONE-Whoever said that to you, I can’t condone. I don’t know who it was, and I don’t
care.
MR. JOHNSON-Mr. Stone, that’s why it set me off when I heard it from the Town. It just, it
made no sense to me, and that’s when I got.
MR. STONE-Mrs. Johnson, did you want to say something?
LYNDA JOHNSON
MRS. JOHNSON-Mr. Stone, the second meeting I was here. Unfortunately, Mr. Cullum
couldn’t be here. Brad was here. Brad wasn’t as eloquent as Mr. Cullum. There were no
compromises offered. There was nothing said about, well, if you plant some trees there, there
was nothing offered. It was very antagonistic. I think you asked Mr. O’Brien, you jumped all
over him. You were in a bad, bad mood. Somebody said, my husband
MR. JOHNSON-A comment was made, I wasn’t here. I was in Hong Kong. I’m self-employed.
I have 12 people that work for me. Families that I feed based on my income.
MR. STONE-Okay.
MR. JOHNSON-I go to Hong Kong four times a year. If I don’t go, I don’t make any money. So
I put my personal.
MR. STONE-I’m sorry if you thought I was antagonistic. The whole Board wanted you to say
we’ll take the porch off.
MRS. JOHNSON-Sir, no, but somebody said, at that point, Mr. Johnson does not have his
priorities straight. Obviously his priorities aren’t straight, he’s not here this evening. It was
from the get go, we felt attacked. We just felt attacked.
MR. STONE-Well, first of all, I don’t want to go any further, but you have to understand that
when we see a building that is built without obtaining a variance first, we do get testy.
MR.CULLUM-I think Lynda is probably a meeting off from Mr. Underwood.
MR. JOHNSON-Mr. Underwood made the comments to plant trees.
MR. CULLUM-Yes, he made the first meeting, and Lynda wasn’t here for that.
MR. JOHNSON-I was.
MR. CULLUM-And I remember Mr. Underwood making that proposal, and later that night
when I got home, or the next day, I was kicking myself because we never got back to it for some
reason.
MR. STONE-Yes, it happens.
MR. CULLUM-And, you know, it was one of those things where we ended up saying, well, if
you want to fine Mr. Johnson, that was the wrong thing. We should have gotten back to the tree
thing right at that point.
MR. ABBATE-Counsel, as you know, and maybe you should advise your clients, that the
Zoning Board of Appeals, by its very nature of the compromise, is adversarial.
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MR. CULLUM-Yes.
MR. ABBATE-Not intentional, but it is adversarial.
MR. STONE-Anyway, let me make my statement. First of all, we were concerned when we
started this whole process by the fact that a nonconforming structure had been built, for
whatever reasons, and we got into it, and we found, well, that the architect had mislead you.
How about that. I’ll be as diplomatic as I can, and the fact that it was built already triggers a
feeling in the Board. We really don’t like it. Usually we just get around to lecturing the
applicant. This time we went a little further, but the point is, we felt that we were not being
listened to that night, I think, and if anybody objects to what I’m saying, say it, but I think we
thought we were not being listened to. We were trying to seek compromise. That’s one of the
things that we do. Having said that, the application before us, as I stated previously, is
reasonable, as far as I am concerned. You have offered to reduce the offending setback, in
whatever way. I’m not going to say what you want to do, but you’ve come to us with an
application which calls for eight, whatever the number of the relief is 8.08 feet of relief. I can
live with 8.08 feet of relief in this particular setting, forgetting the history of how we got there.
The only concern I have, and I think whoever makes a motion, I would like to say that we still
need to know where those steps are. We do need, I would almost say an as-built survey, since
we don’t seem to have a survey which is accurate. What do you think, Craig?
MR. BROWN-We do have a survey with some dimensions on it from the property line, if the
Board’s comfortable, and the applicant’s comfortable.
MR. STONE-But the steps aren’t there.
MR. BROWN-Let me finish, please. If the Board’s comfortable and the applicant’s comfortable,
I’d be willing to go and measure that. It’s pretty easy to do the math, do the subtraction and see
what the setbacks are.
MR. STONE-Yes, well, I’m saying, in the motion it could say, assuming this is within the relief
granted, fine. If it’s not, then we’ve got to talk about it again, but not now. I mean, we’ve got a
motion, an application before us, and obviously my observations, in a sense, are hearsay,
although some of us have noted it, I think, but it’s still hearsay. I saw something. You’ve said
that they’re there. So the question is where are they.
MR. MC NULTY-It’s the case, if we grant 8.08 feet of relief, if they’re within it, they’re okay. If
they exceed it, then they’re going to have to move the steps, or come back and ask for additional
relief.
MR. STONE-Yes, but the motion will indicate that you have to come back with an accurate
measurement of where those steps are. Anyway, having said that, I think there is a feeling on
the Board that we would approve this 8.08 feet of relief, and I need a motion to so state.
MR. ABBATE-Is that with the stipulation that the five by seven covered porch is removed?
MR. STONE-That is the application before us.
MR. ABBATE-Okay. All right. I just wanted to clear that up.
MR. STONE-I need a motion to approve the application before us.
MR. ABBATE-Okay. All right.
MR. STONE-Now we haven’t talked about the square footage, but I don’t think anybody is
concerned about that. So, just do what’s on Staff notes.
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MR. ABBATE-All right. Let me move a motion. Mr. Chairman and fellow Board members, I
move that we approve Area Variance No. 68-2004 David and Lynda Johnson, they reside at 347
Cleverdale Road. Meeting Date is August 18, 2004. The description of the proposed project,
Mr. and Mrs. Johnson have already constructed a 1,035 square foot addition, which includes 257
square feet of covered porches. The applicant proposes to remove the 5 by 7 foot covered porch
on the south side of the structure.
MR. STONE-I would say southeast side.
MR. ABBATE-Okay. Sure. May I modify that, please, for the record, and say southeast side of
the structure.
MR. STONE-Southeast corner, near the southeast corner.
MR. ABBATE-Near the southeast corner. Mr. and Mrs. Johnson are requesting 8.08 feet of relief
from the 20 foot minimum side setback requirement per Section 179-4-030 for the WR-1A zone.
In addition, they are also seeking relief from the Continuation section of the Code, per Section
179-13-010(A1, A2, and E). Note, relief from A2 is approximately 174.5 square feet, in addition
to the 809.5 square feet expansion allowed for this project. Now, taking the balancing act into
consideration, we have to determine whether or not this approval would result in an
undesirable change in the character of the neighborhood or be any kind of detriment to any
nearby properties if we granted permission. We have to determine whether the benefit sought
by the applicant can be achieved by some other method feasible for the applicant, other than the
Area Variance, and we have to also determine whether the requested Area Variance is
substantial or not, and, finally, whether the proposed variance will have an adverse effect or
impact on the physical or environmental conditions in the neighborhood or district, and the
final note is, I always have a problem with, whether the difficulty is self-created. I don’t believe,
Mr. Chairman, that if we approve this application, and the applicant agrees, as his request, to
remove the 5 x 7 covered porch on the southeast side area of the structure will result in any type
of detrimental impact on the environment, nor on the area, and so, based upon this, I move that
we approve, with the stipulation that the five by seven covered porch will be removed, we
approve Area Variance No. 68-2004.
MR. STONE-Please put in that note about the stairs. This assumes.
MR. BRYANT-Mr. Chairman, I object to that note, because frankly, they’re removing the porch
already. The stairs are insignificant.
MR. STONE-Only because the amount of relief is important. If we’re going to 8.08, that means
we care about the amount of relief.
MR. CULLUM-Can I ask a question? What about the stairs coming out of the side porch now?
What about those? If they have to remove the porch, and the stairs are considered part of the
building, how do they get out of the door?
MR. STONE-Just a concrete stoop, Craig?
MR. BROWN-Well, this is an elevated doorway. It’s probably three feet off the ground, or a
couple of feet.
MR. CULLUM-No, it’s maybe one or two steps. I can’t remember.
MR. BROWN-Okay. I thought it was taller than that. I would have to see what type of landing.
I mean, the building codes are going to require probably at least a three by three landing
outside the door. There’s got to be some room, and that would require some setback relief. It’s
a deck, just like the deck that’s there now, just smaller.
MR. STONE-What do we do?
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MR. BROWN-I don’t know. If they propose a three by three there, and you’re, I mean, we could
do the math and figure out what that setback is, but, or take the door out and not have a door.
MR. STONE-But what you’re talking about is just a step down without, they wouldn’t need
railings?
MR. BROWN-Sure. Anything that’s above, more than one step, requires a railing and a landing.
MR. STONE-It does?
MR. BROWN-Absolutely. Building Code requires those.
MR. ABBATE-Okay. Am I okay on this, or?
MR. STONE-We’re talking about the thing you’re talking about.
MR. BRYANT-Let me ask you a question. The setback with the porch in place, there’s stairs
now?
MR. JOHNSON-No, you step out onto a deck. I think there’s one more step.
MR. BRYANT-So what are we talking about?
MR. URRICO-Can we just make it 11 feet?
MR. BRYANT-No, I don’t think that’s enough. How many steps are we talking about?
MR. CULLUM-I believe it’s three steps down to the (lost words).
MRS. JOHNSON-I’m sorry. We come out the door right on to the porch, and then the steps on
the side, two steps on the side.
MR. STONE-So you’re heading toward Cleverdale Road, either way.
MRS. JOHNSON-Right.
MR. STONE-Okay. So you don’t come forward?
MRS. JOHNSON-No. The dogs lay on that porch.
MR. RIGBY-What’s the size of that porch?
MRS. JOHNSON-I thought it was five by six or four by six.
MR. JOHNSON-I don’t know if they’re including a roof overhang.
MR. CULLUM-Roughly five feet from the side of the house, I believe.
MRS. JOHNSON-I thought it was four that way and five this way. I mean, I take two steps. It’s
not five out this way, it’s four this way and five this way.
MR. CULLUM-I’ve got an answer for you.
MR. STONE-Yes, go ahead.
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MR. CULLUM-To leave the existing porch right where it is, because, I mean, if you had to put
something three feet in there, the thing is only five feet now, and surrounded by whatever
vegetation we have to put in there, including the vegetation mentioned by Mr. Underwood.
MR. BRYANT-Mr. Chairman, I knew we were going to go here, and that’s why I didn’t even
want to talk about the stairs. They’re already giving five feet on the porch. Let them put their
two steps there, and a story. What does two steps take? What are they, nine inches wide? Ten
inches wide? Two feet?
MR. STONE-It’s got to be the landing.
MR. BROWN-It’s got to be a landing and then steps from the landing.
MR. STONE-There’s building codes, now, that’s the problem.
MR. BROWN-You can’t step out a door onto stairs. You’ve got to do it through a landing and
then a stairs. That’s the Building Code.
MR. UNDERWOOD-A landing has to be at least four feet.
MR. BROWN-Is it four feet? Three feet, four feet. I don’t know the Building Code, but I know
there has to be a landing, and then if it’s more than eight inches above final grade, you have to
have steps.
MR. ABBATE-There’s no landing now, right?
MR. STONE-The whole porch is a landing.
MR. UNDERWOOD-You may as well just leave it as it is. It’s five feet instead of four feet.
MR. STONE-All right, guys, what’s your pleasure?
MR. ABBATE-Well, I made the motion.
MR. BROWN-Well, I think a difficulty that may arise out of this is the way it’s been advertised,
and posted, you know, legal advertising, newspaper, all the public notifications to the
neighborhood was to remove it. So if now you want to grant less relief, or grant more relief
closer to the property line, it should legally be re-advertised. You’re going to give them more
relief than they’ve asked for.
MR. CULLUM-But there was no objection when it was presented to the Board without removal,
two years ago.
MR. STONE-Yes, but this is another application.
MR. BROWN-Yes, that one has been decided on.
MR. STONE-Counselor, you don’t want us to break the law, do you?
MR. ABBATE-Wouldn’t my motion to remove the five by seven covered porch on the south
side, blah, blah, blah, cover that? Legally?
MR. STONE-Well, it would cover it, but then as they pointed out, and maybe they’ve got to get
a building permit to put in the steps and porch and have to come back and get more relief.
MR. BROWN-If they desire to still use the door in this location on the house, they would have
to have some sort of landing. I don’t know if there’s a way to move it or, I don’t know. I’m not
familiar with the structure at all.
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MR. STONE-But we could approve the request right now.
MR. BROWN-You could approve their request right now, and that would give them a door.
MR. STONE-And then they have a door hanging, and then they would have to go through the
building permit process. They’re going to have to do that anyway.
MR. BROWN-The building permit process?
MR. STONE-To build the steps, aren’t they?
MR. BROWN-I don’t know. There’s an exemption for structures less than 120 square feet.
MR. STONE-Well, who follows the code, you’re saying there’s a code, however.
MR. BROWN-Right.
MR. STONE-What if they just put two concrete blocks there? I’m not suggesting this, but just
two concrete blocks, they would be able to get down. The problem is it’s confounded by what
you’re saying, to use the thing. I mean, we’re asking them, they’ve come to us with an
application.
MR. BROWN-Correct.
MR. STONE-We can’t grant them more than they ask, or less than they.
MR. BROWN-You can, but it hasn’t been advertised that way, and I think you open yourself up
to a problem if you do that.
MR. STONE-Right.
MR. UNDERWOOD-Why don’t we do it, and then if indeed it passes that way, if there’s
anybody who actually complains and whines about it, we can come back. Right? I mean, why
not?
MR. BROWN-Well, I’m not going to suggest that you open yourselves to that.
MR. STONE-No, we can’t do that. We can approve the variance request. That leaves, that’ll
come off, and then they’ll say, we need something here.
MR. URRICO-But, Craig, we make adjustments to variances all the time. We don’t re-advertise
it.
MR. BROWN-Usually it’s not to give any more relief, though. If you’re going to grant less
relief, usually it’s a compromise on the applicant’s part. They move a house or move a garage
to require less relief, not move it closer to a property line, and that’s, in effect, what you’re
doing here is they’ve offered the line of the house. You’re offering, no, go ahead and move it
closer to the line. Just to boil it down.
MR. ABBATE-Yes, but if we stay within the confines of their request, then we should have no
problem. That was my notion.
MR. BROWN-Right, and I think you could certainly do that.
MR. CULLUM-But what’s your motion, what’ll happen, when they take the deck, the porch off,
what has to be done to make it livable. Suppose we have some type of a (lost words) where we
will modify our application, if we have to pay the cost of re-advertising or whatever.
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MR. STONE-Tabling it right now?
MR. CULLUM-And bring this back next month or something, and if nobody’s here to object, we
won’t have to go through this whole process again.
MR. URRICO-How much time do you need to have for advertisement?
MR. BROWN-The earliest would be next month’s meetings.
MRS. JOHNSON-Yes.
MR. STONE-Well, you’ve suggested it. What does your client say?
MR. JOHNSON-Fine. If nobody objects, then we leave the deck as is. If there is an objection,
we don’t want to be in a worse position than we are now, but we just want to.
MR. STONE-No, you wouldn’t be there.
MR. ABBATE-No, we don’t want to put you in that position, either.
MR. CULLUM-So I would propose that, that we modify our application, and leave the deck
where it is.
MR. STONE-Craig, you’re comfortable with that?
MR. BROWN-Yes. Do the advertisement again, but, yes, whatever they want to do.
MR. STONE-We can poll the Board, the question is, we can’t grant what they, well, do I hear
anybody objecting to?
MR. URRICO-No, I don’t think we are.
MR. BRYANT-Leaving the porch on?
MR. STONE-No, taking the porch, tabling it until they give us an application which says we
will take off most of the porch structure, and make sure that we have the landing steps there.
MR. URRICO-I don’t think that’s what he’s saying.
MR. MC NULTY-No, he was hoping to leave the whole porch.
MR. CULLUM-No, (lost words) leave it just the way it is, because you’re going to have to have
three feet to comply with the Code. There’s only five there now. So, I was suggesting that we
modify our application in accordance with Mr. Underwood’s suggestion, we leave it, put
vegetation around it.
MR. STONE-How do people feel about that? Well, we certainly can, you can modify your
application, and we can decide yes or no, when we get it.
MR. CULLUM-Well, you’re right to the point of deciding it now.
MR. STONE-Well, we are, and we could decide it now, except there’s no place to get out the
door.
MR. BRYANT-Take a poll of the Board on how they feel about it.
MR. STONE-Well, I’m doing it. Speak up.
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MR. BRYANT-I would vote against it.
MR. STONE-Tabling?
MR. BRYANT-No, I’d be in favor of tabling it, but if it came back with the porch, I would vote
against it.
MR. STONE-Okay. Roy?
MR. URRICO-I would be in favor of it. That’s where we were two years ago.
MR. STONE-Okay. Chuck?
MR. ABBATE-I’d be in favor of it.
MR. STONE-Jim?
MR. UNDERWOOD-I’m in favor of it.
MR. STONE-Leo?
MR. RIGBY-I’m in favor of it.
MR. STONE-Chuck?
MR. MC NULTY-I’d be opposed. We’d be back to the initial request that we were faced with
two years ago, and I was opposed to that at that time.
MR. STONE-And I guess I would like to see exactly what you have. I’m certainly agreeing that
we can take it off, but what it’s going to look like when we get all done, I don’t know. I think, as
Mr. McNulty says, we’ve been sitting here for two years, in a sense, and I don’t necessarily want
to go back to where we were two years ago, but, there may be, with the proper planting, and a
promise of survival, of course, the problem is we can’t go look at that and say, a tree died, and
you didn’t replace it, but that’s one of the things we’re trying to do in Town is to, when we, at
least the Planning Board is. How do they do that, Craig? How do they ensure that plantings
get maintained?
MR. JOHNSON-Look at my property. What you’re saying is that I’m not going to. The
property is spectacular. The flowers are beautiful. The grass is beautiful.
MR. STONE-Don’t take it personally.
MR. JOHNSON-No, I am.
MR. STONE-It’s just that we know, over the years. We’ve got you on record.
MR. JOHNSON-I won’t allow anything to die up there.
MR. CULLUM-That’s what I would propose, that we table this, in accordance with your poll
here. I know there’s not a unanimous, but I think if we come back here with something that
complies with what Mr. Underwood’s suggested, what Mr. Abbate thought was fair, too, that
maybe we could convince everybody to go along with it. If not, at least we know that we’re this
far along.
MR. STONE-All right.
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MOTION TO TABLE AREA VARIANCE NO. 68-2004 DAVID & LYNDA JOHNSON,
Introduced by Lewis Stone who moved for its adoption, seconded by Charles Abbate:
347 Cleverdale Road. For up to 62 days, so that the applicant can provide, as soon as possible, a
modified application covering the discussion this evening, and the potential for plantings to
cover the offending porch.
Duly adopted this 18 day of August, 2004, by the following vote:
th
AYES: Mr. Underwood, Mr. Bryant, Mr. Urrico, Mr. Rigby, Mr. McNulty, Mr. Abbate, Mr.
Stone
NOES: NONE
ABSENT: Mr. Hayes
MR. JOHNSON-At the expense of bothering you one step further. Can I come back here alone,
on the return date? I mean, without having everybody come here?
MR. STONE-Absolutely.
MR. ABBATE-Yes.
MR. CULLUM-Thank you for your time.
MR. STONE-One of the things I would ask, can you bring with you, even if you sketch it out, a
drawing that reflects what’s there.
MR. JOHNSON-Yes.
MR. STONE-Meeting is adjourned.
On motion meeting was adjourned.
RESPECTFULLY SUBMITTED,
Lewis Stone, Chairman
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