Loading...
2004-08-25 (Queensbury ZBA Meeting 8/25/04) QUEENSBURY ZONING BOARD OF APPEALS SECOND REGULAR MEETING AUGUST 25, 2004 7:00 P.M. MEMBERS PRESENT LEWIS STONE, CHAIRMAN CHARLES MC NULTY, SECRETARY PAUL HAYES ROY URRICO JOYCE HUNT CHARLES ABBATE JAMES UNDERWOOD MEMBERS ABSENT ALLAN BRYANT ZONING ADMINISTRATOR-CRAIG BROWN CODE COMPLIANCE OFFICER-BRUCE FRANK STENOGRAPHER-SUE HEMINGWAY OLD BUSINESS: AREA VARIANCE NO. 57-2004 SEQRA TYPE: II AUSTIN J. MC CARROLL AGENT(S): N/A OWNER(S): AUSTIN J. MC CARROLL ZONING: WR-1A LOCATION: 25 SULLIVAN ROAD APPLICANT PROPOSES CONSTRUCTION OF A 2,701 SQ. FT. TWO- STORY SINGLE-FAMILY DWELLING TO BE ATTACHED TO THE EXISTING 810 SQ. FT. TWO-STORY GARAGE. ALSO THE APPLICANT PROPOSES TO CONVERT THE EXISTING DWELLING TO AN OVERSIZED 1,875 SQ. FT. ACCESSORY STRUCTURE (KITCHEN TO BE REMOVED). RELIEF REQUESTED FROM THE SIDE SETBACK REQUIREMENTS AND FOR AN OVERSIZED ACCESSORY STRUCTURE. CROSS REFERENCE: BP 98-728 2 CAR DETACHED GARAGE WARREN COUNTY PLANNING: N/A ADIRONDACK PARK AGENCY: N/A LOT SIZE: 1 ACRE TAX MAP NO. 289.09-1-17 SECTION: 179-4-30, 179-5-020 D AUSTIN MC CARROLL, PRESENT MR. STONE-Just read the tabling motion. MR. MC NULTY-Okay. We’ve got a tabling motion, “MOTION TO TABLE AREA VARIANCE NO. 57-2004 AUSTIN J. MC CARROLL, Introduced by Lewis Stone who moved for its adoption, seconded by Paul Hayes: 25 Sullivan Road. For up to 62 days, so that the applicant has the opportunity to consider the comments made by the Board that express concern that the requested accessory structure is too large. The Board did, however, apparently agree that they had no problem with the four foot side setback relief for the new construction. Duly adopted this 28 day of July, 2004, by the following vote: th AYES: Mr. Urrico, Mr. McNulty, Mrs. Hunt, Mr. Abbate, Mr. Hayes, Mr. Stone NOES: NONE 1 (Queensbury ZBA Meeting 8/25/04) ABSENT: Mr. Underwood” STAFF INPUT Notes from Staff, Area Variance No. 57-2004, Austin J. McCarroll, Meeting Date: August 25, 2004 “Project Location: 25 Sullivan Road Description of Proposed Project: Applicant proposes to construct a 2,701 sq. ft. single-family dwelling attached to the existing 810 sq. ft. garage. Additionally, the applicant proposes to convert the existing 1,325 sq. ft. dwelling into an oversized accessory structure by removing the kitchen. Relief Required: Applicant requests 4 feet of relief from the 25-foot minimum side setback requirement, per §179-4-030 for the WR-1A Zone. Additionally, the applicant requires 825 sq. ft. of relief from the 500 sq. ft. maximum size requirement for an accessory structure, per §179-5- 020(D). Parcel History (construction/site plan/variance, etc.): AV 57-2004: tabled 07/28/04, same as current application. BP 98-728: 01/25/99, 810 sq. ft. 2-car detached garage. Staff comments: The applicant proposes to construct a new single-family dwelling attached to the existing detached garage, and to convert the existing log cabin into an accessory structure by removing the kitchen. During the July 28 ZBA meeting, staff noted the applicant had not requested any th relief for the proposed oversized accessory structure even though it was required, and the board expressed concern over the structure being converted back to a dwelling should the owner or one of his heirs sell the property in the future. To address this concern, the applicant proposes to agree to a condition that in the event the property should leave the possession of his family, the log cabin will have to be demolished as part of the sale, which will legally be recorded in the deed. Should the board approve this application, proof of the change in the deed must be submitted with the building permit application, and proof of the kitchen removal must be verified before the CO is issued for the new dwelling.” MR. STONE-Okay, sir. Come forward. Introduce yourself and anything more you want to say on your behalf. MR. MC CARROLL-My name is Austin McCarroll. Good evening, Mr. Chairman, members of the Board, Staff. Staff did a good job on the minutes, the minutes of the meeting the last time, and after the meeting, the next day I talked to Bruce Frank and we discussed it, and he said that your biggest concern is what would happen after I’m gone, and, as you can see, that’s not too far away. So I said, well, what if we put something in writing in the deed or something that says that it would be taken down after the property was sold. I talked to Mr. Stone after that, and then I believe you had a meeting with Craig and Staff. MR. STONE-We discussed with you what you were asking of me. I made no comment, just so the Board, I didn’t agree or disagree. MR. MC CARROLL-Okay. I got the wording from my lawyer and sent it in to an e-mail to Craig, and I think you people have a copy of that. MR. STONE-Would you like us to read that in, or do you want to read it? MR. MC CARROLL-Could you read it in? MR. MC NULTY-Sure. This is an e-mail from Mr. McCarroll to Craig Brown. “Craig, per our discussion, the following is the information I received from my Lawyer, creating a formal 2 (Queensbury ZBA Meeting 8/25/04) restriction on the property as an alternative to changing the building structure, we propose that we sign a “restrictive covenant”, which would then be recorded in the county clerk’s office. It would say in substance that as condition to any sale of the property to any non-family member, the cabin would have to be demolished. Since the covenant would be a matter of public record, the town would have the assurance that any new owner would have to address the situation. Craig, if you need additional please call. If okay, please consider my application for the next meeting. Thank you. Austin McCarroll.” MR. STONE-Thank you. MR. MC CARROLL-I did, after the meeting, go on line, got a copy of all your rules and regulations, codes, etc., read through them. Had a bunch of my past friends from where I worked before go through them all, and we all feel that this is the direction to go. The useful life of the cabin may be another 20 years. I looked at the roof and things. So I know that the requirement for, if I was just to tear everything down, build a new house, Bruce said last time 9500 square feet, the cabin plus my new house, is a little over 4,000 square feet. So I think I’m way under that. Although they’re not attached physically, I’m way under the square feet. As I said in the past meeting, you all looked at the meeting minutes, we did try to do that, build it on top of the existing cabin, but that didn’t work. So, I’m open to any questions. MR. STONE-Well, let me tell you my concern. I mean, first of all, the basic concern that most of us expressed is a second residence, quote unquote, on one parcel, which is not allowed by Code. Secondly, even if it were considered an accessory building, it is way oversized for an allowable building. Your conversation, your proposal to me, on the telephone and subsequently to Mr. Frank and Mr. Brown, I heard it as when you depart the building would come down. I am concerned by the statement in your thing to any non-family member. That could be 100 years. MR. MC CARROLL-How about immediate family? MR. STONE-Well, I mean, that’s what my concern is. MR. MC CARROLL-Okay. That’s what my lawyer gave me. MR. STONE-We understand what lawyers do. I mean, obviously he’s trying to benefit you to the largest extent possible, and that’s fine. MR. MC CARROLL-What about, you don’t have to say (lost words) those words, I’m not a lawyer, but why not say when the property is sold? MR. STONE-Well, that’s what we’re here for, to talk about it. My concern is that I understood, and my assumption when I talked with you, and I thought you kind of indicated at the meeting a little bit about you wanted to keep it up as long as you were alive. MR. MC CARROLL-Right. MR. STONE-And that’s where I was kind of listening, and then when I read this, I get concerned. That’s all. I don’t know what the rest of the Board, but certainly if anybody has any comments. MR. URRICO-I’m curious if the Town Attorneys have had a chance to look at it, and how do they feel about? MR. BROWN-They have not had a chance to look at this one in particular, but generally speaking, they would suggest that we kind of shy away from covenants and restrictions. Can the Town be named as a party, you know, subject to that covenant? Sure. Is it easily enforceable by the Town? No, it’s not. We don’t track sales. They’re not required to come and, you know, tell us they’ve sold the property. So administratively it’s difficult to do something like that, but I suppose it’s possible. Is that the answer you’re looking for? 3 (Queensbury ZBA Meeting 8/25/04) MR. STONE-Normally we could argue, and I’m just speaking broadly, that any good title company, upon transfer of the property, should note this restriction, but we also know that recently we had a transfer of property where the title company didn’t notice at all and we had to go back and revisit the whole issue here, and if it weren’t for who knows what else, we probably wouldn’t even have ever known about it. So It is a concern. MR. MC CARROLL-I asked that same question to my lawyer. Once it’s filed, you know, you can’t sell the property with that in there, if you file that. So she was pretty sure that it would work. MR. STONE-Well, that’s fine, but we’re not sure, I guess. Any other comments, questions, concerns? MR. MC NULTY-Well, let me kick in my negative view to start with, so we know where we’re coming from, my own view, and I’ve got a reputation for being the negative person on this Board. I might say that, too. I’ve thought a lot about this, and what it would look like, and what choices are available, and reflected back, too, to the issue we had on Main Street a meeting or two ago, where we started to get into some convoluted restrictions to see if we could pass something, and this strikes me as not that bad, but still the same kind of thing. My inclination, in spite of some of the support that I’ve heard from some of your neighbors, and I’ve talked to some of them between meetings, but my inclination is to say, enlarge the log cabin, or make the new house large enough to accommodate everybody, and either tear the log cabin down or reduce it to the 500 square feet that’s allowed for an accessory building, and right now that’s where I’m coming from, and as I say, I speak for myself, not for the rest of the Board. MR. STONE-Of course, we all do. Anybody else have any thoughts? MR. UNDERWOOD-The only thought I had was I was trying to come up with similar decisions that we’ve dealt with in regards to other buildings on property. The only one I could come up with was that one we had on Cleverdale where the woman had that historic barn out there that she was going to use for a library or something to that effect, and I don’t really know what the history of this building is, whether this is one of the LaFond brothers built ones or, you know, how old it is. Maybe you could give us some background on that. MR. MC CARROLL-That I don’t know, what the historical. In 1993 I purchased it. It’s a real old type lot constructions with the pins and etc. If you’re looking at things in the neighborhood that are similar to this, and your decisions. I looked around and, four or five years ago you approved building a place right on the water in St. Mary’s Bay, attached to an existing cabin with a breezeway. It’s no where’s near the size of the property I have. It’s got a large three car garage that I can see, and I don’t know, permeability, I think, percentage wise, 100% better than that one, and square foot wise, 100% better than that one, and then I drive around looking at other ones that you recently approved on the lake and that’s what I started doing is to have problems with mine, now, how did these other ones get through. I asked Bruce to look into St. Mary’s Bay. Bruce, you were on vacation. I guess you didn’t get a chance to do that. MR. UNDERWOOD-Living on the lake, I am familiar with that house over there, and that was a very small camp that was enlarged greatly with a huge addition on it, and they did, as he said, they did connect it with a breezeway, to accomplish that one. I think one of the other concerns here is that, you know, if you compare the size of this lot with all the other ones back on Sullivan Road and on the back roads in there, this is a one acre lot. Almost all the other ones are much smaller. So I don’t know if that has any bearing on it, but I think we have to be concerned with setting a precedent, you know, if we are going to allow this, where does it all end, because I mean, anybody can call any building of historic significance to their family, I think it might be a, we might be a little bit more swayed had this been in your family for generations or something like that, but I think, you know, the fact that you’ve only owned it since ’93 does bear on it somewhat, too. 4 (Queensbury ZBA Meeting 8/25/04) MR. MC CARROLL-You’re right. The houses they built right next to me are on a lot that are only 60 wide, and they’re, you know, right on top of each other. One they built I think three years ago, and then you come to a wide lot which is mine, which is 180 wide, and nothing is right on top of me. Like behind me there’s nothing. To the left of me there’s nothing for miles, and miles and miles. You can see it right there. Nothing’s there. You can see the small little lots that are around there, and I’m probably 1,000 foot from the lake. MR. STONE-Well, I don’t want to mislead you. You’re in a Waterfront, WR-1A zone. This is not a WR-1A zone problem. This is a problem of two, an oversized accessory building on a lot containing a home. It could be anywhere in the Town, and that’s our problem, and that’s one of our charges. The benefit to the applicant versus the welfare or detriment to the community, and this is one where we’re very specific in the Code, and it says one building, one residence, one residence type building, per lot. Whether it’s a small lot or a big lot, and it has nothing to do with Waterfront. I mean, you’re in that zone, but that’s not the problem. MR. MC CARROLL-There’s no foundation under that cabin now. That probably doesn’t matter. Right? MR. STONE-We’ve got a lot of homes on lakes that have no foundation under them. MR. MC CARROLL-I had a point, but it just went out of my head. MR. STONE-Okay. Well, Craig, what I’m saying is correct, right? I mean, in terms of Town situation? MR. BROWN-The reason for the variance is because it’s an oversized accessory structure. MR. STONE-It would be anywhere. MR. BROWN-It would be anywhere. Right, not just this zoning district. That’s correct. MR. STONE-Yes. Okay. Do you have anything else, Mr. McCarroll? I guess we left the public hearing open eventually. MR. MC CARROLL-That was the other point. You just brought it to my mind. It was open to a public hearing the last time. You advertised it, I asked Bruce, in the paper. It went to everybody. You sent letters to everybody. Not one person came out against it. A few people came here and spoke in favor of it. There’s no letters against it, and when I read the minutes and you said you had concerns of the Town and the people, and when it went out for advertising, it went out as 1800 square feet, instead of 1300. The porch is not an enclosed porch. It’s open. That’s 250. So it’s really a 1,000 square foot structure. So my concern is where’s the concern of the people in the Town, if it went out there and nothing got in to you people. MR. ABBATE-Can I say something, Mr. Chairman? MR. STONE-Sure, go ahead. MR. ABBATE-Because I think you have a right to know where we’re coming from and what have you. The last time that we met, I made a statement, I’d like to quote it if I might, and I said that I believed that Mr. and Mrs. McCarroll have honorable intentions, and I think you were both acting in good faith, unquote, and I do believe that. Letting you know where I come from. This is a quagmire. If I vote based on emotions, okay, I am not sure that I would be meeting my duties and obligations when the ZBA considers an Area Variance, and we are required by law to engage in what’s called a balancing test, and this balancing test weighs not only the benefit to the applicant, but the benefit perhaps to the Town or against the Town to the detriment to the health, safety, and welfare of the neighborhood. Now, having said that, let’s, for the sake of argument, we all voted on emotion, and we granted you your variance. What is to say that other folks who came before us who, based upon the same situation that you have, could not 5 (Queensbury ZBA Meeting 8/25/04) point to this test this evening and say, well, gee willikers, we have a camp, a housing, a log house, whatever the case might be, that we consider is extremely important to us, then we have no balancing test. We have no standard of fairness. From my point of view, I have to stay within my framework, my mind framework, a standard of fairness, and the standard of fairness, if I were to vote on this, would be basically to say no, not because I think you have dishonorable intentions, not at all. I think it’s setting not only a bad precedent, but I’m not sure, logically, if you came before us, and said, gee, I’d like to build two homes, I would say, yes. I would say absolutely no. In effect, that’s what we’re looking at, and that’s how I’m perceiving this. Thank you, Mr. Chairman. I hope I made myself clear on this. MR. STONE-Thank you. Well, you’ll get a chance to do it again. Because I’m still going to, just for the purposes of, if you’re through, I’ll open the public hearing, re-open the public hearing, so that if anybody has shown up that wants to say anything, we’ll listen. MR. MC CARROLL-I didn’t think it was open to a public hearing. MR. STONE-Well, I can re-open it. MR. MC CARROLL-Okay. I read over the Code, and the part that you’re referring to, if I was in your shoes, which I’m not, refers to garages and sheds, and garages be allowed 900 square feet, and sheds 500, and you read the intent of it, like I was telling Mr. Stone, I used to write these in my previous job and stuff. It’s an arbitrary number you pick out just for people like you to come up and make judgments on and try to do it on a case by case basis, and I don’t think my request for, I always say 1,075 feet versus what it says 500 is out of line because it’s existing. I read this Code as if a person’s out there and wants to build a shed, your Code allows them to build it up to 500 square feet, and there’s cases where you have to go in front of the Board, like my case, and say, well, this person’s got an existing structure, and it’s 1,000 feet. Do we approve it or not approve it? That’s where I’m coming from. MR. ABBATE-Mr. McCarroll, may I ask a question? Help me out on these figures, because I don’t have them in front of me. If my memory serves me correctly, if we were to approve your application, would that not amount to several structures close to 5,000 square feet? MR. MC CARROLL-We’re two structures. MR. ABBATE-Yes, in other words, if I’m not mistaken, you want to do 2701, or something like that. MR. MC CARROLL-Two structures which will be a little over 4,000, versus what you require, 9,000. MR. STONE-No, that’s not a requirement. That’s what, in the Waterfront zone, you can put on a one acre lot. You can put 22% Floor Area Ratio. That’s a limit. MR. MC CARROLL-I’m sorry. That’s what I meant. MR. ABBATE-See, you currently have 1375 square feet. MR. MC CARROLL-Right. MR. ABBATE-Okay. I think you want to bring it up to close to 4,000 or so. MR. MC CARROLL-Right. MR. ABBATE-Well, that’s almost 400%. That’s certainly in excess of 300% increase. MR. MC CARROLL-I’m sorry. I’m comparing the four to the nine, and you’re comparing it to five. 6 (Queensbury ZBA Meeting 8/25/04) MR. ABBATE-If I were in your position, I’d do everything I could as well. MR. MC CARROLL-What I’m saying is if I were to build a new home. MR. ABBATE-I understand. MR. MC CARROLL-I could go up to 9,000 square feet. MR. STONE-In one structure. MR. ABBATE-One structure. MR. MC CARROLL-Well, just like the gentleman in St. Mary’s Bay did, he built a little approach to his existing structure. MR. STONE-But it is connected. That was part of the variance. It is connected. MR. MC CARROLL-And at the last meeting you said I had to share a common wall. MR. STONE-I’m not going there. I don’t know that, but, anyway, we’ll talk more after, unless you have more to say now. I would like to open the public hearing for anybody that wants to speak. All right. Let me re-open the public hearing. Anybody wishing to speak on this subject? Any new correspondence? MR. MC NULTY-No other correspondence. PUBLIC HEARING RE-OPENED NO COMMENT PUBLIC HEARING CLOSED MR. STONE-If you have nothing more, let’s talk about it. MR. URRICO-I have a couple of questions. The log cabin, just refresh my memory. Is there a bathroom in there? MR. MC CARROLL-There’s a bathroom, yes. MR. URRICO-Is there a kitchen? MR. MC CARROLL-So called kitchen, yes. MR. URRICO-And are there sleeping quarters? MR. MC CARROLL-Yes. MR. URRICO-Thank you. MR. MC CARROLL-You’re welcome. MR. URRICO-I have a question for Staff. That property behind there, is that RR-3A? MR. BROWN-We can check on that. MR. URRICO-Okay. 7 (Queensbury ZBA Meeting 8/25/04) MR. STONE-You mean up to the north? MR. URRICO-Yes, to the north. MR. UNDERWOOD-Sullivan’s Woods, yes. MR. ABBATE-Sullivan’s Woods. MR. URRICO-Because somebody had mentioned it was forever wild, but I see it as an RR-3A. MR. BROWN-I think Bruce is checking on that now. MR. URRICO-Are you currently using this home year round, the log cabin? MR. MC CARROLL-I’m currently living in Schenectady. We put the Schenectady property up for sale two weeks ago, and as we speak, people are going through it. I’m going to move up here as soon as we sell the Schenectady property which is, I hope, a couple of weeks. My intention was to live in the log cabin while the house was being built. MR. STONE-But it is a year round structure? MR. MC CARROLL-Yes, it’s winterized. MR. STONE-Okay. MR. MC CARROLL-I consider it, but. MR. STONE-Do we have an answer to that question so we can go on? What’s the answer? MR. URRICO-It’s an RR-3A. MR. BROWN-Rural Residential, right. MR. STONE-So it’s buildable. MR. BROWN-It looks to be, it has frontage on a Town road. So there’s a possibility to develop the property. Sure. MR. STONE-Yes. Okay. All right. Let’s talk about it. Chuck, let’s start with you. MR. MC NULTY-Okay. Well, I’ve kind of explained where I’m at. I think I’m still there. When I look at this, it’s an oversized structure. One approach is one that’s been mentioned by another member of the Board already, would be, would I approve this if this were all totally new construction, and the answer is no. Certainly if somebody was coming in with something new I would say no. It strikes me that this is one of those where the justification for doing it is basically I want to, and I think it’s up to the applicant to make a choice. The side setback on the proposed new house is a little bit different, in that he’s unable to fit the house that he wants beside the garage without having that side setback relief, but in this case, just keeping the old structure as well, I think, is just an extra thing that is certainly, I can see the benefit to the applicant, but I think the detriment to the overall community and to the Town zoning rules, I just don’t see sufficient justification for saying this is a justifiable thing that should be excused from the Town zoning rules. As I say, I think it leaves it where the applicant’s got multiple choices. Find a way to expand the log cabin. If he needs that extra space, build it into the new home, and either demolish the log cabin or reduce it in size to a compliant size. So I would be in favor of the side setback. I’m going to be opposed to the oversized accessory structure. MR. STONE-Jim? 8 (Queensbury ZBA Meeting 8/25/04) MR. UNDERWOOD-As far as the relief that’s requested here this evening, the four feet of relief from the 25 foot minimum side setback requirement, I don’t really have a problem with that. I think that’s minimal, what they’re requesting. As far as the structure goes, I can understand the sentimental value of maintaining this cabin. I don’t know if it was considered, taking the two additions on either side off. I don’t know what that would do to your square footage, if that would bring you down more in the range of something that could possibly be saved, and I don’t know what the internal structure arrangements are in there, as far as doing that either, but I think that, you know, we’re stuck with the Code that we have, and despite the fact that it would be nice to save this place because it does have some charm and character, it’s not just your average teardown that you see over here on the lake, I think that we sort of have to tow the line here, as Chuck said, and to allow essentially two homes to be built on this lot would be setting a precedent, and I think we would open ourselves up to having other people request the same thing. So, regretful, I’ll have to say, I would imagine that we would probably allow you to live in it while you were building the other one. I don’t think there would be a problem with that, but upon, you know, issuance of the CO for the other one, you’d have to tear this one down. Sorry. MR. STONE-Chuck? MR. ABBATE-Okay. Thank you. I would have to agree with both my Board members. I don’t have a problem with the relief that you’re requesting, but I do have a problem with setting a precedence on this. I think there may be a feasible alternative either to expand one thing or another or demolish one thing, but there is a feasible alternative. I think that’s realistic, and based on that, Mr. Chairman, I could not support the application. MR. STONE-Thank you. Joyce? MRS. HUNT-Yes. I’m going to go the way I did the last time. I don’t have any problem with the four feet setback, but I do have a problem with the size of the structure. As Mr. McNulty said, if it were a new structure, we would probably say no, and I don’t think that there’s a justification for allowing two buildings that size, two houses on the same piece of property. So I would be against retaining the log cabin. MR. STONE-Roy? MR. URRICO-Yes. I really want to say yes, but in the end it comes down to we’re either going to end up with an oversized accessory structure or two residences on that property, one or the other or maybe both, and I think, in using the balancing test, I think we have to weigh how this affects the entire community, and there’s property surrounding it that could be developed down the road. We don’t know. We don’t know what the future’s going to bring, but certainly there is more development on property that we never anticipated before, already, and I just think the precedent that this might set would be something that we’d probably look back on and regret down the road, and I just cannot support it at this time. MR. STONE-Jaime? MR. HAYES-Unfortunately I essentially agree. Our charge here with the Board is to grant minimum relief, when and where circumstances warrant it and there’s no dramatic impact on the neighborhood or community, and the problem with your application, as I see it, is it’s hard to get past the first part of that. It’s just a lot of relief. It’s just, the size of the building and what’ll remain, what will remain on the parcel makes the rest of the analysis kind of unimportant, because I think the rest of the Board, as I, feel that that’s pretty close. I mean, you’ve provided us with some really clean hand reasons why you want to do this, and I think people have accepted that, and even appreciate it, but in this particular case, the relief that you’re requesting just doesn’t allow us to go to the next step. I mean, this idea taken to another step, or on a precedent basis, someone could come into Lake George, sell their place on Long Island for a million dollars and come to a place on Lake George and take a 2,000 square foot camp and say, well, that’s going to be my overflow or that’s going to be my accessory building 9 (Queensbury ZBA Meeting 8/25/04) and I’m going to build this house. You can see the kind of situation that would put the Board or the Town in, if that escalated. I mean, your reasons certainly are good, and like Jim pointed out, the log cabin is nice, but if this went on a slippery slope forward where people were taking bigger and bigger homes and saying, that’s going to be an accessory structure and this is going to be my house, you can imagine the position the Town and the Board would be in. It just wouldn’t be a feasible situation in this particular case. So, reluctantly, I can’t support the application as is. I’ve said before, and I would say again at this particular point, that you’ve pointed out that you could have a 500 square foot accessory structure. That’s what he could have in this particular case, and if there’s some area of that cabin that you can come back to the Board, could you get some relief from us? I don’t know. I would say, speaking for myself, that if it was something over 500 feet, but not what it is now, I would certainly entertain that. You may end up with 600 square feet or something. I don’t know if this Board is saying you can’t have anything. Again, I’m speaking for myself, but in this particular case, the amount of relief is too much. MR. STONE-Well, I certainly agree with the rest of the Board. I mean, this is a tough decision. This is why a lot of people don’t sit on this Board. It’s difficult. We have to contemplate the Zoning Code of the Town of Queensbury, decided upon by the elected Town Board. They’re the people who ultimately approve the Zoning Code. In this particular case, I think we have to, I understand the idea of having two large structures on the same property. I think as Mr. Hayes says, maybe if you can find a way to make it smaller, I can’t give you a number. Obviously, if you made it 500 square feet and you didn’t have a kitchen and you didn’t, obviously, it fits the Code, but we’re not there, and our job is not to sit here and slice your house up. It’s a tough decision. It’s not personal. I think we all agree, we totally understand what you’re trying to do, and we probably all would do it if we had that situation, but we do have the Code. We do have to defend the Code. I’ve said before, and it’s a good opportunity to say it for everybody in the room. A variance is not a God given right. It is a balancing test. I think Mr. Abbate put it very well. We have a balancing test we have to go through, and in this case, none of us can make it balance in your favor, and that’s basically where we are. Now, having said that, I believe the Board is willing to grant you four feet of setback relief for the new home, but since it’s a joint situation, you can withdraw that part of the application that says you want to keep the home, the old home, or we can deny the whole thing, with a caveat that if you came back just for the house we would probably, no prejudice. Craig, you’re rolling your eyes. When you roll your eyes, I always look. MR. BROWN-I think it’s a coin toss. I think if you wanted to approve the setback for the variance for the house and not give them any relief for the cabin, I think you could do that. MR. STONE-Do it in a positive motion? MR. BROWN-I think you could. He has the alternative to withdraw that section, that portion of the relief, makes it a little cleaner. MR. STONE-That’s what I’m saying, yes. MR. BROWN-But if you don’t grant the relief for it, then it becomes an enforcement action. We will require him to remove it, or size it down to 500. MR. STONE-Okay. So it’s up to you. You can say take the log cabin off the application, or we can approve the side setback, and at the same time at the same time, the same thing, say we are not granting relief for a second structure of whatever the size, 1300 and some square feet. It’s your call. What would you like us to do. MR. MC CARROLL-I’ve got a couple of questions, first. MR. STONE-Sure. 10 (Queensbury ZBA Meeting 8/25/04) MR. MC CARROLL-When you, Mr. McNulty said if it came in as new construction, you wouldn’t approve it. What does that mean? MR. MC NULTY-Well, I think one of the things that we look at, to try to sort our own heads out when we’re looking at something like this, if you were coming in with a vacant lot, if that were a vacant lot, and you said you wanted to build the new home that you’re proposing to the left side of the garage, and you wanted to build another structure the size of the log cabin to the right, I would definitely say, no, no way. MR. MC CARROLL-All right. That was unclear. Last time we met, the feeling, if you read the minutes, the feeling of the Board was we don’t trust you, we trust you, but if someone was going to sell the property and, you know, and that’s the way, the feeling I got from the Board, it’s reversed, which is sad, in my mind. I went out and got the covenant wording and stuff, and now you change your mind and say no way can you have a structure. Last time you said, well, maybe if you could get it down to 1,000 feet, 900 feet. I don’t know if you’re including the porch or not, since it’s not even enclosed, screened. I’d like to see you give me a number of square feet. Would 900 feet be approved? MR. STONE-I can’t poll the Board. I don’t want to put people in a situation of considering something that is not really on the table. MR. MC CARROLL-The reason I’m asking this, this started way back in February, when we went to the Staff and asked what do I have to do, and all you’ve got to do is take the kitchen out, you’ll be all right. MR. STONE-I don’t know who told you that. MR. MC CARROLL-I came all the way down this road, several months later, and now you keep reversing, reversing, reversing. MR. STONE-We’re not reversing ourselves. We said we would like, we understand your situation. We would like to be helpful, but we feel that with the size of the property that you’re asking, we cannot grant that relief, and that’s all we can say. MR. MC CARROLL-Okay. One of my friends is on one of the other Town Boards, and he said, look around, look at who else has accessory structures that the Board has approved recently, use that as a bargaining tool. I started to do that, and you have approved them before, and now you’re saying I’m a detriment to the community, and I take offense to that. MR. STONE-Sir, you may take offense. I can assure you that was not what I heard from these six other people and myself. MR. MC CARROLL-I’ll read the minutes. I think you should do what you want to do. Take a vote on approving. MR. STONE-On your application that you submitted? MR. MC CARROLL-Right. MR. STONE-Okay. All right. I need a motion, therefore, to approve the request for side setback relief, and saying we cannot, at this time, grant relief for the other part of the plan. You’re saying we can do it that way? I’m not totally comfortable with that. MR. BROWN-It’s not the easiest and cleanest way to do it, but I suppose you can if you’re comfortable with doing that. You can deny it and that would require the applicant to come back with a single application for just the house, but you have him here in front of you. You have the facts in front of you. 11 (Queensbury ZBA Meeting 8/25/04) MR. STONE-Okay. MR. ABBATE-I’d like to make a suggestion. It’s just my opinion, but I think it would be cleaner, if you will, all the way around, if we act on the actual application, and based upon how the application turns out, if it’s disapproved, the individual can come back with perhaps an alternative or something, but if we start co-mingling things, I think we might find ourselves. MR. HAYES-The only problem with that, though, is, as Craig pointed out, we’re actually clogging our own agenda by doing that. MR. ABBATE-Okay. I’m flexible. MR. HAYES-We can approve the portions of the relief that we’re going to approve and if we don’t approve portions. MR. ABBATE-Okay. MRS. HUNT-Can we split the request into two motions? MR. STONE-No. MR. BROWN-No, I think you want to keep it as one motion. It’s one application, one motion. MR. STONE-Okay. In connection with Area Variance No. 57-2004, the Board agrees to provide side setback relief for the new construction. Jaime, do you want to try it? MR. HAYES-Okay. MOTION TO APPROVE AREA VARIANCE NO. 57-2004 AUSTIN MC CARROLL, Introduced by Paul Hayes who moved for its adoption, seconded by Charles Abbate: 25 Sullivan Road. Originally the applicant has proposed to construct a 2,701 square foot single family dwelling attached to an existing 810 square foot garage. He proposed, additionally, to convert an existing 1,325 square foot dwelling into an oversized accessory structure by removing the kitchen. The second portion of what the applicant proposed the Board has decided to not be in favor of. The relief that the applicant has requested or the relief that we are approving at this time is four feet of relief from the twenty-five foot minimum side setback requirement, per Section 179-4-030 for the WR-1A zone. We are not approving relief from the maximum size requirement for an accessory structure that the applicant has requested. The reasons for approving this variance for the four feet of side setback relief basically is it’s minimal relief. The applicant is proposing this structure on a large one acre lot. The total square footage of his house does not approach the limits prescribed by the Town Code and I don’t feel that there will be any negative impacts to the neighborhood or community by granting the four feet of relief. As I said, this is a large piece of property, and I think the home that’s been proposed to us would be a nice addition and a nice home. So I think it’s really that simple. There’s no negative impact, and it really is minimal relief in this particular case. Based on that fact, I don’t believe that the four feet of relief will cause an undesirable change in the neighborhood or character of nearby properties. I don’t believe that the request for four feet is substantial. I think in this case it’s minimal. I don’t see any adverse physical or environmental change that would be incurred by allowing the applicant to build his home four feet closer to the side setback than would be normally allowed. Is the difficulty self-created? Only to the extent that the applicant is trying to construct this home and attach it to his already existing garage, in this particular case. So, while it is self-created, I think that, on balance, considering all the criteria associated with our test, that four feet of relief is favorable to the applicant. In terms of allowing for the retention of the existing log cabin as an accessory structure, I believe that the balance of the test does not pass, in this particular case. Other Board members have pointed out that the applicant can achieve his need for an accessory structure by other means, including reducing the cabin down to the legal size. I believe that the possibility of allowing an 12 (Queensbury ZBA Meeting 8/25/04) accessory structure of this size to be retained on the property could, in fact, promote an undesirable change in the neighborhood and character to nearby properties, in the sense that there’ll be two living quarters on one piece, in this particular case, and we’d be potentially setting a precedent for further furthering that situation. Is the relief requested substantial? Certainly more than double the allowable square footage for an accessory structure. It’s 1325 where 500 is allowed. So it certainly would have to be considered very substantial. Whether the request will have an adverse physical or environmental effect. I think this is pretty minimal. I think the log cabin is attractive. I don’t think there’s anything, per se, by leaving this, that will cause a physical or environmental problem in that neighborhood. I really don’t think I can say that in this particular case, but certainly the last part of our test, whether the alleged difficulty is self-created, it is self-created, in the fact that the applicant is now constructing a new home on this property, which is understandable, but it is his choice, and the desire to leave the accessory structure, to the extent that he desires to, is definitely a self-created scenario, in this particular case. Unfortunately, I think that most of the test falls against the applicant, in regards to the accessory structure, and saying one last time that my motion does not include approving the relief requested for accessory structures per Section 179-5-020 D. Duly adopted this 25 day of August, 2004, by the following vote: th AYES: Mr. Underwood, Mrs. Hunt, Mr. Urrico, Mr. McNulty, Mr. Hayes, Mr. Abbate, Mr. Stone NOES: NONE ABSENT: Mr. Bryant MR. STONE-Sorry, sir. NEW BUSINESS: NOTICE OF APPEAL NOT.AP 4-2004 SEQRA TYPE: UNLISTED CAFFRY AND FLOWER FOR MICHAEL KELLY AGENT(S): CAFFRY AND FLOWER OWNER(S): JOSEPH RIITANO ZONING: WR-1A, CEA LOCATION: 16 SUNSET LANE APPLICANT IS APPEALING DECISIONS MADE BY THE ZONING ADMINISTRATOR IN HIS MAY 17, 2004 LETTER TO JOSEPH RIITANO REGARDING THE RENOVATION OF THE RIITANO DWELLING AT 16 SUNSET LANE ON ASSEMBLY POINT. CROSS REFERENCE: AV 29-2004, AV 89-2003, AV 56-2002 WARREN COUNTY PLANNING N/A ADIRONDACK PARK AGENCY N/A LOT SIZE: 0.17 ACRES TAX MAP NO. 226.19-1-9 SECTION: N/A JOHN CAFFRY, REPRESENTING APPLICANT, PRESENT MR. MC NULTY-Maybe a summary of the initial application and the first page the. MR. STONE-Yes. We’ll let Mr. Caffry tell as much as he wants to when gets going. MR. MC NULTY-A summary of the issues, this is an Appeal from decisions made by Craig Brown, the Zoning Administrator of the Town of Queensbury, regarding the Riitano property located at 16 Sunset Lane on Assembly Point. That beyond the front porch addition and its associated roof overhang, that the unimproved construction has taken place since October of 2002 does not constitute an expansion of a nonconforming structure, and that beyond the front porch addition and its associated roof overhang, that the new and unimproved roof system does not violate front and both side setback requirements, and that the unimproved construction does not require site plan approval by the Town Planning Board, and specifically that compliance with the Ordinance requires only those actions outlined in Mr. Brown’s letter to Riitano dated May 17, 2004. A summary of the grounds of Appeal. One, the roof structure, independent of the unimproved front porch and associated roof overhang constitutes an expansion of a nonconforming structure and violates the Zoning Code Section 179-13-10A(1), 13 (Queensbury ZBA Meeting 8/25/04) and Section 179-13-10E and as a result of these violations violates Section 179-13-10F. Two, the new unimproved roof structure, independent from the unimproved front porch and associated roof overhang violates front and both side setback requirements, and, three, the second floor created by the new unimproved roof system should be included in the Floor Area Ratio calculation and as such it causes a violation of the Floor Area Ratio maximum allowed. The Town should require that enforcement include the removal of the roof system and reconstruction in accordance with roof system envisioned in Building Permit 2002-866, issued on 10/25/02, which resembled the original roof structure. STAFF INPUT Notes from Staff, Notice of Appeal Not.Ap 4-2004, Caffry and Flower for Michael Kelly, Meeting Date: August 25, 2004 “Project Location: 16 Sunset Lane Description of Proposed Project: The appellant is appealing the determination rendered by the Zoning Administrator regarding the structure at 16 Sunset Lane. Information requested: Appellant is appealing to the Zoning Board of Appeals to determine whether or not the decision made by the Zoning Administrator that the change in the roof line of the structure which includes unfinished attic space does not constitute an expansion of the structure is correct. Staff comments: The Riitano proposal, roof alteration with the addition of unfinished attic space, does not constitute an expansion of the structure. If in the future Riitano wishes to convert the unfinished attic space into finished living space, such a conversion will be considered an expansion and the applicable reviews will be necessary. I suggest that the case law submitted by counsel for the Appellant is not on point in that the referenced matter was for the replacement of structures associated with a non residential, non- conforming use. As referenced in the decision rendered, the proposal “would have the effect of increasing the nonconforming use of the property.” Riitano is a conforming use and attic space does not constitute the expansion of the use in this case. Attached please find two (2) supplemental submissions.” MR. STONE-Okay. Mr. Caffry, Mr. Kelly, I assume. MR. CAFFRY-Yes. We’re here again. For the record, I’m John Caffry, from Caffry and Flower, representing Mr. Kelly who’s the adjacent owner. MR. STONE-Mr. Caffry, because these are always these difficult, this is an Appeal from a decision. We will tolerate, when we get to public hearing, if there is one, no comment about anything to do with the house, merely the determination by the Zoning Administrator. That’s the only question that’s on the table. MR. CAFFRY-Correct. We are the appellant, in that sense, we’re the applicant here. We filed three basic documents, the Appeal of which Mr. McNulty just read the introduction dated June 10, a letter from me dated August 17, and a supplement to the Appeal from Mr. Kelly which th has the date of June 29 on it, but was actually filed, I think, mid-August. We’re starting to feel, th I think, like Bill Murray in the movie “Groundhog Day”, where he wakes up every morning and it’s still February 2 and he’s still in Poxantony, Pennsylvania. This is, I think, the third time nd I’ve been here. Mr. Kelly and many of you have been here four or five times on this same application. As you’ll recall, Mr. Riitano was denied permission to add a second floor by this Board. He then got a permit for a modified one story house with a low roof that was essentially the same height as the existing structure. That was fine. We had no objection to that. He then went ahead and built a much larger structure with a much taller roof and a very large space above the first floor. There’s been some debate as to whether or not that’s a second floor, 14 (Queensbury ZBA Meeting 8/25/04) whether it counts for the Floor Area Ratio or not, but he’s twice been denied variances by this Board to keep the project as it is, or just to keep it with minor modifications, and as far as we can tell, the Board has never really answered the question of whether or not the second floor is a second floor, whether it’s an expansion or not, and once Mr. Brown issued a letter saying that he didn’t think it was, we felt that was the proper vehicle to get that question before this Board. So we’ve appealed that May 17 letter that would have allowed that large upstairs area, th whatever you want to call it, to remain in place. Our main goal here, of Mr. Kelly, is to get the removal of the second floor, and restore the original low roofline, in keeping with what was there originally, in keeping with what was in the approved building permit, and we think that’s in keeping with the intention of the Floor Area Ratio rule, which is to avoid overcrowding of lake area neighborhoods that have small lots with oversized buildings. We think there’s basically four basic grounds for the appeal that the second floor is floor space and violates the Floor Area Ratio, that the second floor is an expansion of the pre-existing structure, a vertical expansion, that violates the setbacks, and that is an illegal expansion without a variance. So therefore the roof must come down. Essentially the bulk of the building within the setback violation area, is now larger than it once was. That’s an enlargement of the building, and it should come down. We also think that, overall, there’s been a greater than 50% expansion of the Gross Floor Area, and finally that the Code is clear that to expand a residence within 500 feet of Lake George you need site plan review. That’s never been done. Meanwhile, Mr. Brown has never sent this project to the Planning Board. Mr. Kelly has also filed another regarding a subsequent letter by Mr. Brown regarding the so called garages under the house. That’s not on your agenda tonight. I assume it’ll come up at a later month, but whether or not the garage area, the basement area counts for the Floor Area Ratio, it looks like we’ll probably be back here on that. We’re also, just so you know, likely to appeal the Temporary Certificate of Occupancy that was issued by Mr. Hatin, that has been allowing the Riitanos to occupy this structure this summer. Going through the main grounds for appeal, nobody has questioned that the building as it exists now violated the prior setbacks, and Mr. Kelly’s two filings document that, and we’ll go through it again, but they’re anywhere from five to ten feet or so in violation of the setbacks on three sides. On at least two sides, the ends of the building if you will, the structure is now much taller than it originally was. It’s been vertically expanded within the setback zone. We believe that that is a violation of the Code. Section 179-13-010 says a nonconforming structure or use, in this case we’re talking about a structure, can be continued, but it can’t be enlarged, except a single family dwelling can be enlarged, if the setback provisions are met. Well, this building obviously does not meet the setback provisions. So it shouldn’t be enlarged at all without an Area Variance. We believe, and we think that this Board has previously decided, that a vertical expansion constitutes an enlargement, even if it doesn’t get any closer to the side yard line or the front yard line. If you have an existing violation of the setbacks, and you go higher with that violation, then that is an enlargement or an expansion of the building. The Board previously had a case involving the Mooring Post Marina several years ago. I’m not sure if any of you were on the Board back then, but in that case, it went up to the Appellate Division, and the Court upheld this Board’s decision when it said expanding a building vertically, by making it taller, violates the restriction against expanding a nonconforming structure or use, and the Court upheld that decision. Now Mr. Brown has argued, well, that was a nonresidential, nonconforming use, and that’s true in that case, but what the Code says is, it’s the same whether you’re expanding a nonconforming structure or a nonconforming use. So I don’t think that distinction matters. What’s clear is if you expand vertically, if you make the structure taller, that’s considered an enlargement of the structure, and 179-13-010 prohibits enlargement of the structure and in the case of the dwelling, it prohibits enlargement of the structure unless all the setbacks are met. In this case, nobody debates that the setbacks were violated by the original structure. So that, in order to expand that you would need an Area Variance. This Board has repeatedly denied Area Variances for this project. The next two grounds are that no enlargement or rebuilding shall exceed 50% of the Gross Floor Area. By adding that upper area, whatever you want to call it, you have basically doubled the size of the building, and whether or not that counts under the Floor Area Ratio it is part of, essentially what they’re calling here, the Gross Floor Area, which is somewhat a different term than the Floor Area Ratio. The building, the term Building Square Footage residential referred to the area and the square feet within the exterior walls of the dwelling, and it doesn’t say whether it’s an attic unfinished, not finished or not. If it’s a floor, it should count there. Lastly, again, 15 (Queensbury ZBA Meeting 8/25/04) there’s the requirement under 179-13-010F, that Site Plan approval by the Planning Board is required for an enlargement, and that’s never been done. So, we think it’s very clear that this is an enlargement of the building and that it violates the Code. With regard to the Floor Area Ratio question, I’ll go back over that again. I know we’ve done this before. This is fully enclosed. It’s certainly usable space. It may not be finished. I don’t know. I don’t know that anybody’s been up there. All you have to do is go up and throw down a cot or a sleeping bag and it becomes a bedroom. It does have a full stairway, and it covers the entire existing 1300 square foot second floor. We don’t think there’s any exception in the Code for living space, when you’re defining the Floor Area Ratio. It’s just not in there. So we think this second floor, whether it’s an attic or not, it’s still got a floor, it’s got windows, it’s got stairs, and it is a floor area, and it should count towards that definition, and if so, it violates the Floor Area Ratio rule, but if you don’t want to get into that question, you don’t have to, because we think the roof clearly, by expanding the building upward, violates your rule against expansion within the setback areas. I think there’s a lot of other arguments involved in this, a lot of details that are set forth in papers we’ve filed, and I assume you’ve got them and read them and I won’t repeat them all here. I’d just ask Mr. Kelly if he has anything he needs to add beyond what I discussed there, and then I’ll conclude it. MR. STONE-Okay. MICHAEL KELLY MR. KELLY-Thank you, John. I just have a couple of things to say. My name’s Michael Kelly, and I own property that fully borders the north property line of 16 Sunset Lane. Mr. Chairman, may I bring up a picture? MR. STONE-Surely. Absolutely. MR. KELLY-I apologize. I don’t have many copies. My first comment is that, not only is their new roof higher than the old roof by a significant amount, in my opinion, but the house now rests on a foundation which is, itself, higher than the original foundation, which is visible in those pictures. So it’s kind of been a double whammy since the inception of the project, and at this point it’s pragmatically, you know, not reasonable to expect everything to be taken down to the foundation line, but certainly the top of the roof, I think, should be subject to the Ordinance. One other comment. At the April 28 hearing, the Zoning Administrator replied to Mr. th Riitano’s agent regarding the fact that the front porch, which was built in violation, was actually within the building line, and he made that argument that that should be okay because the front porch did not encroach any further into the setbacks than the building line. Mr. Brown replied, yes, I agree, he’s referring to the front porch. Yes, I agree, it’s definitely within the building line. However, it’s new construction, and any new construction needs to meet the setback. So if you want to put a front porch on the house, on the front of this house, it would have to step back into the setback line. You could certainly do that by keeping it in line with the house, it doesn’t automatically give that setback. So it’s my interpretation that the Zoning Administrator has not applied his statement here equally to all parts of the house. Finally, I’ll just make one other quick comment. Although I didn’t solicit any mail from any of the neighbors or anything, I do know that a Mr. Polner submitted some correspondence and I just wanted to say that he owns the property immediately to the west of the Riitano property. Thank you. MR. CAFFRY-In connection with the last application, Mr. Stone said, well, we’re here to defend the Code, and that’s what we’re asking you to do. This structure was built illegally, there’s no question about that, or we have to keep coming back and coming back, and we hope that finally the Board will be able to set some parameters on what should be done here. One reason we keep coming back is that, procedurally, it comes to you for variances. You deny it, three times now, but that doesn’t really give you the opportunity. You say what should be done, which is kind of what happened with the application you just denied earlier tonight. We think now that Mr. Brown has made some written determinations and we’ve appealed them, that gives the Board the opportunity to finally set some parameters on what should be allowed here and what should not be, because unfortunately when it goes back to Mr. Brown, he seems to be bending 16 (Queensbury ZBA Meeting 8/25/04) over backwards to find ways to allow this structure to remain in place. We think he’s really not reading the whole Code when he does it, he’s selectively picking the parts that let it stay there, and we hope the Board’s going to defend the Code. We’re asking specifically that you overturn his decision that’s all that’s needed to do to bring the building into conformance is to remove the porch, and also we’re asking that you specifically order removal of the roof and order that any new roof be limited to the same height as the former roof, as it was approved in the prior building permit. There are other issues that aren’t really before the Board tonight, such as the question of whether or not the garages in the basement are legal, whether not they violate the Floor Area Ratio, things like that. The permeability issue has not yet been resolved, we don’t think. There’s been some letters back and forth just saying yes, we’ll comply to that, but it hasn’t really finally been worked out, and again, we ask the Board to enforce the Code and bring this building back down to its original height and remove the illegal vertical expansion, and could I just ask Mr. Kelly to explain what the document is he just filed, and then we’ll be done. MR. KELLY-That is a copy of one of the panels from the building permit, I believe it’s BP 2002- 866, which was approved in October of 2002, and that clearly depicts what was originally approved for the house, specifically, with respect to the roof, and if you compare that to the pictures, that proposed roof really quite closely matches the roof that pre-existed on the house. MR. CAFFRY-Does the Board have any questions for us? MR. STONE-Well, I have a basic question. As you correctly stated, we have always denied that which has come before us. That’s our job, to look at a variance application and to deny it. We are not an enforcement agency. We are an appellant agency, and we have denied the application. So as far as we’re concerned, the matter is, in one sense, is not on the table. We have denied it, but, having said that, I would like to indulge in some hypotheticals, just a little bit. If we agree with the Zoning Administrator, we deny your Appeal, I’d like to know what would happen. If we agree with your Appeal, what’s going to happen, because I don’t believe we can tell the Town to enforce, I don’t believe. MR. BROWN-That’s correct, Mr. Stone. The Zoning Board cannot order the removal of anything. Yes. MR. STONE-That’s what I’m getting at, right. MR. CAFFRY-But you can reverse Mr. Brown’s interpretation, and say you interpreted it wrongly, and here’s how you should have interpreted it, and then he, in effect. MR. STONE-No, we can merely say he’s wrong. MR. CAFFRY-But you can say why. MR. STONE-And that would give you grounds to do what? MR. CAFFRY-Presumably, then, Mr. Brown will take that at his direction, in his next attempt at enforcement. If you say it was not proper to allow the second floor to remain, because it violates the Floor Area Ratio, or because it violates, it was a vertical expansion within the setback violation area, then presumably that will be part of his next enforcement action with Mr. Riitano. They’ve been going back and forth with letters, saying Mr. Brown, or on occasion saying this is what you need to do to come into compliance. Once you have interpreted the Code in the context of this Appeal, then that’s binding on him in his next round of correspondence with Mr. Riitano. You cannot force him to haul Mr. Riitano into court or anything, if he didn’t do that, we would have the option of hauling both Mr. Brown and Mr. Riitano into court, ourselves, in a private right of action. We hope it doesn’t come to that, but you asked the question. MR. STONE-Well, that’s why I asked the question. Part of me says that’s what. 17 (Queensbury ZBA Meeting 8/25/04) MR. CAFFRY-You cannot, you can interpret the Ordinance in the context that’s been presented to you and tell him whether he’s right or wrong, tell him why he was wrong. If he doesn’t act on that, we hope he will act on it, but if he doesn’t, we would have the right to take him in to court, and get, directly, really, compliance against Mr. Riitano, but we hope Mr. Brown would take the direction from the Board at that time, because in the past the Board has not been in position to even do that much. MR. STONE-Okay. MR. MC NULTY-In the meantime, or in the middle there, too, wouldn’t that allow Mr. Riitano to come back in and, say we agreed with the Appellant and said Mr. Brown was wrong and that the second floor should be included as an expansion and Floor Area Ratio. That still leaves Mr. Riitano the option of coming back for a variance for that? MR. KELLY-I think it may, although neither of the two previous hearings precluded the expansion that we’re claiming from the requests. I’d also add that I think that the abilities of the Zoning Board, as laid out in Town Law, and I apologize, I don’t know the exact number, but I think it’s something like Section 262, I think it allows for the Board to take any action that is otherwise defined to be the responsibility of the Zoning Enforcement Officer. MR. BROWN-No, I don’t believe that’s correct at all. MR. STONE-I don’t believe that’s true. Our job is very clearly an appellant job, whether it’s, as I say in my opening statement, whether it’s an application, which is a decision by the Zoning Administrator that you need a variance, and therefore they’re requesting, a variance is, in itself, an Appeal, or an Appeal from a written determination by, and we can say we agree or we disagree. Mr. Caffry recently came before us, and we agreed with his argument on this very narrow issue, I mean, a narrow Appeal. I mean, as far as I’m concerned, we could say he’s wrong or we could say he’s right, and we’re done with it, and as I understand it, we have no further jobs. Go ahead, Chuck. MR. ABBATE-May I? For the record, I want to make sure that I’m clear on this, and I’d be happy if someone could clear it up for me. To the best of my recollection, did we not previously deny, on at least two, or perhaps even three instances, these variances, if I’m not mistaken? MR. STONE-Yes. We have always denied. We have never approved any. MR. ABBATE-Right. Okay. Now, I have a question. May I ask a question, Mr. Chairman? MR. STONE-Please. MR. ABBATE-Okay. This is a question for anyone, either the appellant or Staff to answer, or members of the Board. This is my question. Is a vertical expansion considered an expansion? That’s my question. MR. CAFFRY-I’ll start. MR. STONE-Go ahead. Keep in mind that this house is no higher than 28 feet. We all agree with that? MR. CAFFRY-We agree that that is, I’m not sure where that’s measured from, but that’s the number that Mr. Kelly has give. MR. STONE-Okay. MR. ABBATE-That wasn’t even part of my question. 18 (Queensbury ZBA Meeting 8/25/04) MR. CAFFRY-Right, but it is an expansion, and you’ve got to remember that it violates the setbacks to start with. So, can you repeat your question, please. MR. ABBATE-No. I don’t want the statistics, any legal terminology. I just want a simple answer to a very simple question because I’m a very simple person. Is a vertical expansion considered an expansion? MR. CAFFRY-My opinion is yes, and I’ve always held that opinion, but in a number of, and I’ve been doing these cases for 20 years now, and you don’t always see that spelled out in the Code or in the Ordinance, and that’s why I was pleased to find the prior case where this Board, in the Mooring Post Marina case, also said yes. MR. ABBATE-Maybe the Staff would want to approach it. MR. BROWN-Yes, and as you might expect, the reason we’re here tonight is because Mr. Caffry and Mr. Kelly and I don’t agree, so I’m going to take the other side of that issue. I think it’s going to depend on what the vertical expansion is. If it’s a complete second story addition with the second floor living space, sure, it’s an expansion. In this case, it’s a change in the roofline which happens to include some unfinished living space that doesn’t constitute an expansion, and that’s why we’re here tonight. MR. STONE-That’s your basic position. MR. BROWN-Right. MR. ABBATE-Well, that was the question. MR. STONE-I mean, we know the side setback, there are some questions, but you’ve been working on that. We know that. MR. BROWN-I’m sorry, the question? MR. STONE-The side, the small violations, in terms of side setback. MR. BROWN-Correct, with the new, the porch on the front. MR. STONE-Right, and the side and the back. MR. BROWN-Right. MR. HAYES-Where is that at, I mean, just so we are clear? MR. STONE-Well, I was going to get there. MR. HAYES-Okay. MR. KELLY-Mr. Chairman, the definition of expansion in the Ordinance has no reference to the proposed use of that expansion. Expansion is defined as any growth or activity which requires the enlargement of facilities including buildings, parking spaces, storage yards, or any other facilities which are required to accommodate such growth, and then, further on, well, it clearly says any growth, and there’s no qualifier in there saying that “any” only constitutes growth with relative to expansion of living space. Expansion is expansion, and in 179-13-010, it says, in no case shall any increase or expansion violate or increase noncompliance with the minimum setback requirements of the shoreline restrictions. So, expansion is expansion, and vertical expansion, I think, is expansion, and I think if you say, if you agree with my Appeal, then Mr. Riitano maybe could come back again, and I would hope that, if he came back and requested three more setback reliefs and a Floor Area Ratio relief, and I’ll add that there’s still a 19 (Queensbury ZBA Meeting 8/25/04) permeability issue, that you would, again, for the fourth time, deny it. So, I guess I’m hoping that your supposition of what may happen after this doesn’t influence your decision. MR. STONE-No, no, it doesn’t. I’m just saying, would it make any difference, in terms of the future, if we say yes or no, that’s all, my only question. I’m just trying to figure that out. MR. CAFFRY-And, frankly, Mr. Kelly has asked Mr. Brown to be part of the discussions, after, you know, Mr. Riitano gets voted down by this Board, Mr. Kelly asked Mr. Brown, could we be part of the discussions about where to go from here, and Mr. Brown always says, no, it’s enforcement, we can’t talk to you, which may be technically correct, but you can always have negotiations. We would be glad to talk to Mr. Riitano and Mr. Brown and try and work out what’s acceptable to us, and all that, but so far that’s been rebuffed. MR. ABBATE-Are you talking about compromise, Counselor? MR. CAFFRY-Well, I think Mr. Kelly already said that. We think that, for instance, the cellar height’s been expanded vertically, and that’s another violation, but he’s said, you know, it’s probably impractical to remove that foundation. So we want the roof down to what the roof’s supposed to be. MR. ABBATE-Okay, but you’re talking about compromise. MR. CAFFRY-Yes. MR. ABBATE-Thank you. MR. CAFFRY-Of course usually it’s not your job to vote compromise. You have to interpret the Code. MR. STONE-Yes, but it would be great to make it go away. MR. ABBATE-Yes, I’ll go with make it go away. MR. STONE-Now, the one thing I have to, this is an aside, for four of us on this Board, you are being very helpful in future work that we have to do, to talk attorney about definitions and the like, because there are problems in the Code in Definitions. MR. CAFFRY-Yes. When you get around to definitions of Floor Space and Floor Area and all that, yes, you’ve got some work to do. MR. STONE-Yes, we do. MR. CAFFRY-Along with other definitions that aren’t pertinent here tonight. MR. STONE-I agree, and we’d use any help you want to give us, aside from that, but we’re going on at this point. MR. URRICO-I have one question for Staff. What’s the difference, or what does the Town say is the difference between unfinished and finished living space? MR. BROWN-I think in that case you’d have to refer to what the New York State Building Code considers habitable space, and there’s certain parameters it has to qualify for habitable space. It’s got to be finished, heated. It’s got to be, you know, certain requirements have to be met. The walls have to be paintable, the floor has to be sweepable, or whatever the Building Code requirements are. I’m not completely familiar with them, but I certainly know that a plywood floor and stud walls is not considered finished living space. 20 (Queensbury ZBA Meeting 8/25/04) MR. CAFFRY-Our point, though, is that, if you look in your Code, it doesn’t matter whether it’s finished or unfinished. When you’re talking about the Gross Floor Area and things like that, it doesn’t use those terms. They’re terms Mr. Brown may like, but they’re not in your Code. MR. STONE-Well, you know, I don’t disagree with you. I thought the Floor Area Ratio was very clear, and the more we get into it over the past couple of years, there are questions, and we’re going to fix that. I hope, and as I say, we appreciate any help that anybody wants to give us. I’m really trying to figure out, I’m really serious when I say, I mean, we could say that you make a good argument, let’s say, for the purposes of argument, you make a good argument, and that the Zoning Administrator erred in a couple of places, one, two, three, or four. I don’t know what happens after that. We can say we agree, and then we walk away. On the other hand, we can say that the Zoning Administrator is correct in his determination, in his written determination, and we walk away. It really depends upon what happens between the Zoning Administrator and Mr. Kelly and Mr. Caffry, and I’m just wondering, are any of you guys confused the way I am, in terms of what we can do? MR. MC NULTY-Well, I think that there’s something. For instance, if we looked at the Floor Area Ratio thing and concluded that Mr. Caffry’s correct, that a vertical expansion is an expansion and that floor area should be counted. Then that says something has to be done with that roof structure, and then it goes back, I guess, to the question of whether Mr. Riitano wants to pull the roof off and lower it, so it’s no longer an expansion, or if he wants to come in and ask for a variance, at that point, but I think that’s where it goes. If we don’t support the Zoning Administrator, then there’s going to be some things that Mr. Riitano’s going to be in violation of, and he’s going to have to be back before us, hoping he can get a variance, or otherwise he’s going to have to do some more deconstruction. MR. KELLY-Mr. Chairman, I think the Zoning Administrator is legally obligated to enforce the Ordinance, and if you agree with us on this Appeal, I think he’s legally obligated either to enforce that outcome, or to allow yet another go around with relief requests, but either way, I think, I know what I’ll do in either case, and that is to keep pursuing this. MR. ABBATE-Can I expand on Chuck’s comments here, please? MR. STONE-Sure, go ahead. MR. ABBATE-Let me tell you where I’m at on this thing. There is no doubt in my mind that there has been a vertical expansion. Okay. The Zoning Administrator does not deny that, and neither does the Appellant. A vertical expansion, in my mind, is as he indicated, the appellant, growth. In other words, did the actions of Mr. Riitano, by vertically expanding this structure, result in growth, and growth, as he indicated, is a non-qualifier. In my opinion, he did, and so it’s a very simple question. Does a vertical expansion constitute an expansion. Was there, in fact, growth? Did the actions of Mr. Riitano result in growth as a result of vertical expansion of this structure. And the answer, I believe, based on the overwhelming documentation, is yes. Thank you. MR. HAYES-One thing here that may simplify things or may not, but I think what may be the best thing for us to do is just strictly set aside the implications of our actions, okay, and go just strictly to the Appeal. MR. ABBATE-I think you’re right, Jaime. MR. STONE-Well, what is the Appeal? I mean, are we dealing, how many things are we appealing? I’m looking at Staff notes. There’s a decision that the change in the roofline. MR. URRICO-To me I think it’s pretty simple. The Appeal is based on the Zoning Administrator’s decision, and I think that’s what it is. 21 (Queensbury ZBA Meeting 8/25/04) MR. BROWN-I think the, when you talk about the expansion of a building and the expansion of the floor area of the building, I think if you used the definition in the Code, building floor area, that’s a pretty clear definition of how you calculate that. It references just what I mentioned to you before, it has to qualify as living space, based on New York State Building Code, and I think any time you talk about growth or activity or expansion, I think any time it’s unclear, you have to go back to what’s the intent, what’s the intent of growth? What’s the important type of growth we’re going to be talking about here? Is it bigger roof growth or is more floor area that’s going to allow an expansion of that use? Is that the intent that you want to capture with growth? So, in this case, when you expand a roofline to include unfinished attic space, it doesn’t meet the intent of expanding the use or the activity of the property. MR. ABBATE-However, if I heard this right, there are a set of stairs as well as windows in that attic space. Am I not correct? MR. CAFFRY-Correct. MR. ABBATE-And it’s very simple, in my mind, to state that that’s living space. When you have windows, that’s living space. MR. BROWN-Well, it’s very clear in the Town of Queensbury Zoning Code it does not qualify as living area. It does not qualify as living space. MR. KELLY-It does qualify as gross floor area, though, and the Ordinance says that expansion of a nonconforming structure will happen if you’re enlargement, again, any enlargement and, quote, any growth, exceeds an aggregate of 50% of the gross floor area. This has nothing to do with living space, and can I just follow up with. MR. BROWN-Again, it doesn’t qualify as floor area. MR. KELLY-While we’re talking about intent, I think the intent of the Code, Article Thirteen, Nonconforming Uses and Structures and Lots, my interpretation, and the court and the Mooring Post appeal said that this article exists to reduce and ultimately eliminate nonconforming houses, and so this thing is bigger, in a nonconforming way, and it’s been made even more permanent than it was before. MR. ABBATE-Okay. He read it wrong. That denial was based on the fact that the proper structure information was erroneous that was submitted. That’s what that Supreme Court decision was based upon. MR. STONE-Okay, but let me just read the definition, because we’re both talking around this thing. Building Floor Area Total, definition on Page 17911, under Definitions, 179-2-010, Floor Area Total, the combined area of, A, all floors of the primary structure, and covered porches, as measured from outside walls, including the basement when at least three feet in height of one wall that’s exposed, and the space meets the requirements for living space as described in Section 711 and 12 of the New York State Building Code. It’s not an or, it’s an and. MR. CAFFRY-I know, but can I respond to a couple of things? MR. STONE-Sure. MR. CAFFRY-On that one point in particular, the Code says all floors of the primary structure and covered porches as measured from outside walls, and then it goes on to discuss basements, and it says outside walls, and then it goes on to discuss basements and there’s no more commas. The entire phrase about three feet of height and one wall is exposed and the space meets the requirements of living space, as described in Section 711 and 712. This discussion of 711 and 712 of the State Building Code only applies to the basement. It doesn’t apply to the upper stories, and I think Mr. Brown is reading your Code wrong. Secondly, and I hate to bring up the dictionary debate we had in the paintball case. 22 (Queensbury ZBA Meeting 8/25/04) MR. STONE-We’re going to fix that one. I can tell you that right now. MR. CAFFRY-Section 711 and 712 of the New York State Building Code no longer exists. The New York State Building Code has been radically amended. You can’t even find 711 and 712 anymore. I don’t even think it’s called the State Building Code anymore. It’s got an entirely different name. I don’t know what equivalent definitions are in there, but those definitions are not before us here. We’ve tried like heck to find them. We haven’t found them, and while regardless the State Building Code only applies when you’re looking at the basement. We’re talking about the second story. It is a floor. It’s got stairs, windows. If it looks like a duck, quacks like a duck, it’s a duck. My second point is with intent. We have another issue here, and it’s not just the floor area ratio, and that’s, again, the one about the setbacks, and the vertical expansion within the setbacks, which has nothing to do with the definition of Floor Area, and you talk about the intent. The intent of setbacks is to keep buildings from crowding, to protect air, space, light, views, all those things to keep buildings from pressing out, right up against the boundaries, so you don’t have Assembly Point looking like Downtown Glens Falls, and allowing a vertical expansion that violates the setbacks is contrary to that intent. So that’s an entirely separate argument from the one about Floor Area Ratio. Mr. Brown keeps trying to mishmash the two together, and they’re really very different. MR. HAYES-But, John, let me just ask you a question. Tonight, okay, we’re really talking about just whether the roof, I mean, that isn’t really part of your Appeal. MR. CAFFRY-Yes, it is. Yes, it is. MR. STONE-That’s part of it. That’s what I’m trying to get to. MR. CAFFRY-There’s the Floor Area Ratio, there’s the vertical expansion that violates the setbacks, there’s the 50% Gross Floor Area expansion, and lastly whether or not it should go to the Planning Board. So there’s really four different grounds there, all of which have a separate set of criteria to be applied, and a separate set of definitions, just to make your job more complicated. MR. STONE-And, that’s what I’m, I mean, it seems to me that one of the things, there’s enough questions that it’s very hard to sit here and, we can say he’s wrong, and that’s fine, but I would prefer that we say that we charge him, and you, to a meeting and discuss it, you know, quietly and privately and come up with a, something to come back to him. We can charge him with saying, we want discussion to take place. I mean, if we agree that even one of the things is wrong, I mean, like the roofline, some of the people, I don’t want to go chapter and verse on every one of these things because you have written extensively and we might miss something if we try to make a motion, I would merely like to say, and I mean, I’ve heard enough, in my own mind, that I think discussion is needed. MR. KELLY-Mr. Chairman, I would respond to that by saying that the Zoning Administrator, on more than one occasion, made it very clear to me that there was no place for my participation in that, and that’s fine, but I think he would enter into any sort of mediation with a prejudice mind. Further, I would say that I am so adamant about this roof because it was illegally constructed, it violates, in my opinion, many aspects of the Ordinance. I don’t want to compromise on the roof. The roof is there illegally, and I’m hoping that you agree with me, and what happens after that, I don’t know, but I guess I would prefer that you made a decision. MR. STONE-I’m not saying we don’t make a decision. I’m saying I don’t know what we can say. We can say the Zoning Administrator is wrong in saying that the roof is an expansion, or is not an expansion. MR. ABBATE-Yes, you know, and I think we owe the Appellant, I think we owe him a decision. 23 (Queensbury ZBA Meeting 8/25/04) MR. STONE-Yes. I’m only trying to figure out what the decision is, Chuck. I’m not adverse to making one. MR. ABBATE-Well, I think it’s clear. Is a vertical expansion, does it constitute an expansion, and does it constitute growth? Does it violate 179-13-010, I think that’s what you said, something like that. MR. STONE-There are other issues, though. MR. ABBATE-But we can focus in on that. MR. BROWN-Mr. Chairman, could I just make a point for the record? MR. STONE-Sure, please. MR. BROWN-Mr. Kelly made mention that he didn’t feel welcome by me with regards to the discussions on this matter. I guess for accuracy for the record, what I informed Mr. Kelly of was that I would not entertain any discussion with him regarding the enforcement actions against Mr. Riitano, that the Town was pursuing against Mr. Riitano. It’s completely improper to do that. I informed him, I offered him whatever decisions, or determinations he requested. I just did not feel it was my position to allow him in with the deliberations, as far as the enforcement goes, and that’s clearly where he’s not welcome. MR. STONE-If we said you were wrong, and we said, one, two, three, four things. What happens after that, from your standpoint? MR. BROWN-Well, I guess I would be faced with deciding, you know, what to do next, whether it would be to inform Mr. Riitano of, you need to do this enforcement action, whether it’s removal or here’s an option, you can go back to the Zoning Board. I don’t know. There’s probably three or four different routes to take, a combination of the two. MR. STONE-But you would not entertain Mr. Kelly and Mr. Caffry being involved in that? MR. BROWN-Well, I think what we’re doing here is we want to have Mr. Riitano, and we want to have everybody in the Town play by the Town of Queensbury rules. You don’t want to have them play by the Mr. Kelly rules. I don’t want him making the rules on what Mr. Riitano has to do. MR. STONE-I understand. No. MR. BROWN-I would not welcome him on any decision on what Mr. Riitano would have to do next. No, that’s not reasonable. I think the majority of the points raised by the Appellant and Counsel hinge on the fact of is this floor area. Does the floor area count in Floor Area Ratio? Does the floor area count as an expansion? Does the floor area count in the gross expansion, does the floor area count as an increase in the gross floor area? If it doesn’t qualify as floor area, it doesn’t fit into any of those arguments, and my position is it doesn’t count as floor area, based on the Zoning Code. MR. KELLY-May I just follow up and reiterate that the east and west vertical walls of the outside of the house are both themselves nonconforming, and they both expanded upwards, and that has nothing to do with what we consider the floor area. So my contention is that expansion of a nonconforming structure has existed for, is existing now for two reasons. One is that there was expansion, there was enlargement that exceeded an aggregate of 50% of the Gross Floor Area, and I don’t think we can argue gross versus living. It says Gross Floor Area, and secondly, because all setback provisions of this chapter have not been met for the new construction. This is, I don’t think this is Mike Kelly’s rules. This is so completely black and white to me that it’s unbelievable that we’re sitting here talking about it. 24 (Queensbury ZBA Meeting 8/25/04) MR. HAYES-What about the, I mean, putting the living space argument aside for now, because that affects three of the four things. The idea about the associated roof overhang, you know, the dimensional noncompliance, what’s your position on that? MR. BROWN-Well, I think the associated roof overhang, I don’t know if you guys have had a chance to visit the site, but those things have been removed. MR. HAYES-They have been? MR. BROWN-The front porch, the overhang, the concrete deck area. Those things have all been removed. MR. KELLY-I would add that no activity was taken, no action was taken for 10 weeks after the April 20. th MR. STONE-We’re not going there. We’re not going there. MR. KELLY-Okay. All right. MR. STONE-And we’re not being negative. We’re just not going there. MR. URRICO-Mr. Chairman, I feel like a hamster on a wheel. We’re going round and round on this. MR. ABBATE-I do, as well. MR. URRICO-We either have to fish or cut bait here, I think. MR. STONE-That’s what I’m trying to get. MR. ABBATE-I’d like to go with Jaime’s recommendation. MR. HAYES-Yes, but I understand what Lew’s trying to do, too. MR. ABBATE-Well, so do I. MR. HAYES-There’s still four elements here to deal with. MR. ABBATE-I know. MR. CAFFRY-Can I suggest maybe we open the public hearing or whatever. MR. ABBATE-Okay. MR. STONE-Okay. MR. CAFFRY-Give us a rest. MR. STONE-Okay. Let me open the public hearing. Anybody wishing to speak to the Appeal? That’s all we’re talking about. PUBLIC HEARING OPENED STEPHANIE BITTER MRS. BITTER-Good evening, Chairman, members of the Board. My name’s Stephanie Bitter. Jon Lapper asked me to attend this evening to identify to the Board that he, individually, has been asked by Mr. Riitano to represent his interests. We would just ask the Board that if there’s 25 (Queensbury ZBA Meeting 8/25/04) any inclination to grant this Appeal to understand that Mr. Riitano is the real party in interest with regards to this Appeal, and we request that the public hearing be tabled as well as this Appeal, so that Mr. Riitano would have the opportunity to provide a written response to the Appeal, and the opportunity to be heard. As has been identified in this, this building has been constructed. The CO has actually been issued on August 24. Mr. Riitano is of the th understanding that he was within accordance of the building permit that was issued. So at this point it would be our request to table. MR. STONE-Thank you. Anybody else wishing to speak on the Appeal? Any correspondence? MR. MC NULTY-Yes. There is some correspondence. Three items. MR. STONE-Are they on point? MR. MC NULTY-I haven’t looked at them, so I can’t tell you. They’re fairly brief, for the most part here. One piece that we were handed tonight from Betsy Malman, says, “I’m writing to you in favor of my neighbor, Joe Riitano. Unfortunately, his house plans did not meet with your approval when he tried to get his CO several months ago. Ever since the beginning of the summer, he has worked extremely hard to fix what had to be fixed so his house would comply with the zoning laws. I think he did an outstanding job on renovating a deteriorating older home (although I had no objection to his original plans). His home has improved the entire neighborhood and most likely has increased the value of all our homes in Shore Colony. Joe’s house is an asset to our community. Betsy Malman” We have another handwritten note from a Diane Nagengast at 5 Honeysuckle Lane, it’s got in parenthesis, adjoining lot to Mr. Riitano. Despite being denied unanimously on three separate occasions, all members of the Board, he still has not obtained the variances required for the house already built. I’m not sure this one, either, goes to point on the Appeal. MR. STONE-Okay. MR. MC NULTY-And let me look at this last one. Well, this one gets a little bit closer. MR. STONE-Okay. MR. MC NULTY-This is from Sheldon Polner. He says, “I submit this letter in full support of Michael Kelly’s Zoning Administrator’s Appeal (“Appeal”). In a letter dated May 17, 2004, Craig Brown (“Mr. Brown”), Zoning Administrator of the Town of Queensbury informed Joseph Riitano (“Riitano”), the applicant, that the roof structure on his dwelling, located at 16 Sunset Lane on Assembly Point, that the roof structure may remain on the dwelling without alteration. Thereafter, in a letter dated May 24, 2004, Mr. Brown informed Michael Kelly (“Kelly”), of his May 17, 2004 letter to Riitano, permitting the roof to remain, unaltered, despite violating the Town of Queensbury Code (“Code”). Mr. Kelly appeals from these letter rulings. As fully articulated in Mr. Kelly’s Appeal, the second floor of Riitano’s dwelling should be considered living space, which would violate the Code’s floor area ratio limit. In addition, as currently built, the Riitano dwelling violates side setback limits, articulated in the Code. Therefore, Mr. Kelly’s Appeal should be granted, and Riitano ordered to remove the nonconforming portions of the structure. Thank you for your prompt attention to this matter. Sincerely yours, Sheldon Polner” MR. STONE-Okay. Anybody else wishing to speak on the Appeal? All right. Let me close the public hearing. PUBLIC HEARING CLOSED MR. STONE-Gentlemen. I mean, the reason I’m raising these points is only for full disclosure. Because I just want everybody to understand. I think you’ve made some pretty good points and we’ll talk about them when we get there, but what else do you? 26 (Queensbury ZBA Meeting 8/25/04) MR. CAFFRY-I just want to say we oppose the request to table the application, or the Appeal. We understand that Mr. Riitano has an interest in this, obviously, but I don’t know where Mr. Lapper is. However, he’s a partner in an extremely large law firm, Ms. Bitter is here. She is an attorney admitted to practice in courts in New York. I’ve seen her appear before this Board before. Their firm has been aware of this Appeal for weeks, and now they show up and say they need time to submit a written response. I just don’t think there’s a need to table this. MR. STONE-Okay. Can you, for the purposes of helping us to see, can you list the points of contention succinctly? I think it would be nice to capture them. MR. CAFFRY-I think they’re pretty succinctly listed in Page 1 of the original June 10 Appeal th document. MR. ABBATE-Is that the Summary of Grounds of Appeal? MR. CAFFRY-Summary of Grounds of Appeal. It’s not quite everything, but it’s a good start. The roof structure, even after removal of the front porch and its overhang, which has already happened, is expansion of a nonconforming structure, because it violates the front and side setbacks. It’s an expansion within the setback violation area. So, Number One and Two on that Page are really the first grounds for Appeal. That has nothing to do with living space or Floor Area Ratio. MR. STONE-Right. MR. CAFFRY-Number Three on that page is the Floor Area Ratio rule that we think the second floor, the attic, whatever you want to call it, it has a floor. It has stairs. It has windows. We think that that counts under the Floor Area Ratio causes the structure to violate the Floor Area Ratio rule. The next ground, and I’m not sure where it is in writing, but I know it’s been put in writing various places, Number Three, is that it violates the part of Section 179-13-010, which prohibits expansion of a residence by more than 50% of its gross floor area, and fourth ground is the requirement for structures within 500 feet of the lake that any expansion must go to the Planning Board. Aside from whether or not it needs a variance, it must go to the Planning Board. So those are the four grounds for Appeal, and certainly the first three, if you find in our favor on any of the first three, then that renders the roof structure, as it currently exists, illegal. MR. STONE-Okay. Just one what basis do you say it’s within 500 feet of the lake? MR. CAFFRY-Looking at the map, the zoning map, and scaling it off. I think Mr. Brown’s agreed with that point before. MR. STONE-Would you agree with that, Mr. Brown? MR. KELLY-Yes, he has. MR. BROWN-I don’t know. I’m not sure if we sent the Area Variances to the County or not. If we did not send the Area Variances to the County for a referral, then it’s not within 500 feet of the lake. MR. CAFFRY-If you look at the map he has up there right now, it’s pretty obviously within 500 feet of the lake. MR. STONE-I’m not sure. I don’t know. Having ridden my bike there, I don’t know if that’s a tenth of a mile down the hill or not. MR. CAFFRY-I’ve measured it. 27 (Queensbury ZBA Meeting 8/25/04) MR. STONE-You’ve measured it. Okay. All right. So the four things you’re talking about, and if we would agree with any of the points that you’ve made, then it would constitute support of the Appeal. MR. CAFFRY-Correct. I think we’d prefer that you rule on all of them, just for clarify. MR. STONE-Well, we will, but I just wanted it for a point, so when I start asking people and if we’re ready, I would like to start with Jim, absent further questions. Go ahead, Jim. MR. UNDERWOOD-What do you want to know first? MR. STONE-I want to know where you would come down on this Appeal. MR. UNDERWOOD-Okay. I think it’s clear that this expansion that’s occurred vertically was in violation from what was originally intended. I mean, we have original plans. I think that when we originally heard, heard for the original variances that what was built here, what’s presently there, was what we were basically going to deny, and so it was withdrawn at that point in time. Consequently, after that, a new set of plans were submitted to us. These are those plans. Those plans were not filed in any way shape or means. What was essentially done was the building was constructed as the original plans originally submitted to us that were withdrawn. I think that there has been some movement on the part of the Riitanos, as far as, you know, removing the porch, removing the cement pads on either side of the house, at that point in time, and I think that we make it quite clear in our previous denials that what was built, what’s presently existing there, as far as the attic space, like it’s essentially called attic space at this point in time, by the Zoning Administrator, still is in violation of what we originally had approved. I think that the original Shore Colony guidelines, we suggested that those were deviated from, and that was part of our original denial at the time, and I think that at this point in time, this vertical expansion would still be in violation, and you can call it unfinished attic space. It may very well end up being unfinished attic space, but as pointed out by the Appellant here this evening, that space up there is, has been a substantial vertical expansion compared to what was originally envisioned by the neighbors and approved by the Town. So, at this point in time, I would have to uphold the Appeal. MR. STONE-Okay. Chuck? MR. ABBATE-Okay. Thank you. I would agree with Jim. I would just like to add a couple of things. Roy indicated earlier that he felt like a mouse in a wheel continuously turning. It appears to me that in several instances over the past five years, individuals have attempted to wear us down, and I think it’s time that the Board makes decisions one way or another. In this particular case, I believe that a vertical expansion constitutes an expansion, a violation of 179- 13-010. It’s growth. It’s as simple as that. Couple that with stairs as well as a window, it would be very difficult to deny that it certainly could be used as living space. The Appellant has submitted, in my opinion, overwhelming documentary evidence which suggests that, in fact, the original plans submitted to the Town have far exceeded, there has been an expansion, way beyond that which was approved. Granted, Mr. Riitano has indeed compromised by removing certain aspects of the building, but this is the fourth or fifth time, I think the fourth time that this issue has come before us, and in this case here, I think I have to support the Appellant. MR. STONE-Joyce? MRS. HUNT-Thank you. I have to agree with the two previous Board members. What bothers me is that this expansion, if it’s unfinished, it’s not counted. If it’s finished, it’s counted, and there’s a lot of difficulty monitoring what people do inside their own homes. It could very easily be finished and the Town wouldn’t know about it. So I consider this an expansion of more than 50%, and I would go with the Appellant. MR. STONE-Roy? 28 (Queensbury ZBA Meeting 8/25/04) MR. URRICO-Yes. I’m going to come down the other way. I’m against the Appeal, and I believe that enforcement action needs to be determined by the Zoning Administrator. I believe that, if there is any violation, if they need a variance and the variance hasn’t been gotten, then I think it’s up to the Zoning Administrator to enforce that, and for him to determine whether such an action needs to take place. So I’m confident that if it’s needed he will do so, and so I would be against the Appeal and in support of the Zoning Administrator. MR. STONE-Okay. Jaime? MR. HAYES-I think I agree, in this particular case. I sympathize with Mr. Kelly. He’s been very civil, thorough with his documentation of this thing. I voted against the variances originally, and I stand by that. As far as this Appeal is concerned, however, Mr. Brown is charged with reading the Code and using the definitions that are presented or are available to him, and I think, based on what I’ve read, that the New York State Building Code does not define that area as a livable area, it should not be included in the calculations that are associated with the things that are contemplated in this Appeal. I certainly think that, you know, the roof, in a sense, I understand why Mr. Kelly opposes the roof. It certainly is higher than what the other one was. There’s no question about that, but unfortunately Mr. Brown is not in the position to interpret what neighbors may want or what they even should be entitled to in this particular case. He’s charged with determining whether relief is needed, relief is required, based on the definitions that are in front of him. As Roy pointed out, I just don’t think that in this particular case he erred in what he defined as livable space, or what he felt the Code defined as livable space. So I am in favor of Mr. Brown and against the Appeal. MR. STONE-Mr. McNulty? MR. MC NULTY-This is one of those that you end up being torn on. I certainly understand where Mr. Brown’s coming from now, trying to reach a conclusion on this, and certainly Mr. Riitano’s made an attempt to fix some of the problems that people saw, but ruling strictly on the Appeal, as you mentioned earlier, there’s places to fix these definitions, and certainly is one of them. Looking at the rest of the portion that you read about building Floor Area Ratio, if you read that whole section, it says that it excludes open decks, docks, and covered docks that are in the water, and one storage shed that’s 100 square feet or less, but then it goes on to say additional storage sheds are included. Detached storage buildings over 100 square feet should also be included in the Floor Area Ratio, and detached garages should be included in the Floor Area Ratio. Now, all those strike me as storage space. So, when I look at that second floor, and we call it attic storage space, these other definitions don’t necessarily talk about a house, but they imply that storage spaces should be included in the Floor Area Ratio calculations. So, when I look at what’s being asked here, was there a vertical expansion, I’ve got to say, yes, there was. The roof certainly expanded upwards, and so I think the Appellant’s got point there. It strikes me that given interpretation of this building floor area, that probably that floor area should be included in the total calculation for Floor Area Ratio, and I think also the Appellant is probably correctly reading the Code pertaining to new construction and setbacks. I think it’s a case that if Mr. Riitano had raised the height of his roof only to the point where it would meet the setback and left the ends of that roof at the lower level, then he would have been home free on the setback, but in this case, he increased the vertical height of the wall that is in the setback, and so that then becomes an increase in the nonconformance. It doesn’t meet the setback, and I think it calls for a variance. So consequently, I am going to be upholding the Appellant. MR. STONE-This is one that’s been very frustrating to me. I go by it every day, sometimes two or three times a day. I have seen what I call the lack of progress. We have denied this thing, once, twice, three times. As far as we’re concerned, nothing should have happened when we denied it, and I get very frustrated by the fact that things did happen, and then after they happened it’s taken forever, and ever, and ever. I have been on record, publicly, privately, as terms of enforcement. I think, and this is not a condemnation of the two gentlemen sitting here. It’s merely the fact that we have 12, 13, 14,000 properties in the Town of Queensbury, and it’s very difficult to get to every one of them, but I think enforcement is something we need to do a better job of, and that’s part of my frustration. I think the Appellant makes some very good 29 (Queensbury ZBA Meeting 8/25/04) points, and I think there are enough points raised that I would like to move to support the Appellant, but with the provision that some discussion takes place, and I’m not, I don’t want to talk about the enforcement, but how can we rectify, how can we come to an agreement, so that when we do go, if we have to do enforcement, that people agree, in terms of what it is we’re talking about. I think that’s one of the problems as I see it. You raise a number of points, good points, but the reason I kept pushing was I’m trying to find a next step, if you will. I mean, we can say we agree, but I would like to find some way to give a next step, but having said that, I need a motion to support the Appeal. Do you have anything you want to say, Craig? Chuck, do you want to try it? MR. ABBATE-Okay, and I’m open to all kinds of suggestions. MR. STONE-And you’ll get them. MR. ABBATE-And I’m sure I’ll get them. MOTION TO UPHOLD NOTICE OF APPEAL NO. 4-2004 CAFFRY AND FLOWER FOR MICHAEL KELLY, Introduced by Charles Abbate who moved for its adoption, seconded by Charles McNulty: 16 Sunset Lane. This appeal of the Zoning Administrator’s decision, the Appellant is appealing the determination rendered by him regarding the structure at 16 Sunset Lane. This evening Counsel has presented, in my opinion, overwhelming documentary evidence and has stated, given testimony, that in fact vertical expansion does constitute an expansion. It constitutes growth. The Appellant has also, in several other instances, based his appeal on, one, that the roof structure, independent of the unapproved front porch, and associated roof overhang constitutes expansion of a nonconforming structure, and violates the Zoning Codes Section 179- 13-010.A.1 and 179-13-010.E, and as a result of these violations violates 179-13-010.F. That was the basis of the Number One, Summary of Grounds of Appeals. Number Two, he also indicates that the new unapproved roof structure, independent from the unapproved front porch and associated roof overhang violates front and both side setbacks, and he also stipulates that, Three, the second floor created by the new unapproved roof system should be included in the Floor Area Ratio calculation, and as such, it causes a violation of the Floor Area Ratio maximum allowed. Based on the documentation that was submitted and the verbal testimony before this Board this evening, Mr. Chairman and fellow Board members, I move that we approve the Appellant’s position that the Zoning Administrator did, in fact, err. Let me further add that the Appellant has also submitted documentation dated June 10, 2004, in which there was Exhibit A, B, and C, which is, in fact, a matter of record, as part of his original argument. Duly adopted this 25 day of August, 2004, by the following vote: th MR. STONE-May 24 is the only written determination? th MR. CAFFRY-So far that we know of. MR. STONE-Where he said the second story is unfinished attic space and as such does not constitute an expansion of the structure. That’s really the one issue that he has written. Is that correct, Mr. Brown? MR. BROWN-I believe that’s the basis for their Appeal, that letter, that determination. MR. STONE-Okay. So would you refer to that somehow. MR. CAFFRY-Well, there’s also the one dated May 17, Item Four discusses various options th under the Floor Area Ratio. It implies. MR. STONE-Where is that? 30 (Queensbury ZBA Meeting 8/25/04) MR. CAFFRY-That’s Exhibit B to our original petition. MR. STONE-Okay. MR. CAFFRY-It discusses that if you omit the garage, that might allow the roof to remain. So there’s further discussion in that May 17 letter from Mr. Brown also, if you’re looking for his th written references. MR. STONE-Okay. I just wanted to make sure. MR. ABBATE-Okay. Do you want me to place into the record, then, this letter dated May 17, th from Mr. Brown, Zoning Administrator to? MR. CAFFRY-It’s in the record. MR. ABBATE-It’s in the record? MR. CAFFRY-You might just want to, it’s Exhibits B & C. MR. ABBATE-All right. Let me do it this way, if it’s okay, and I’ll be happy to modify it. Let me further add that the Appellant has also submitted documentation dated June 10, 2004, in which there was Exhibit A, B & C, which is, in fact, a matter of record, as part of his original argument. MR. STONE-Okay. AYES: Mrs. Hunt, Mr. Underwood, Mr. Abbate, Mr. McNulty, Mr. Stone NOES: Mr. Hayes, Mr. Urrico ABSENT: Mr. Bryant MR. CAFFRY-Thank you. MR. KELLY-Thank you. AREA VARIANCE NO. 62-2004 SEQRA TYPE: II D’ELLA AUTO GROUP AGENT(S): VMJR COMPANIES OWNER(S): D’ELLA AUTO GROUP ZONING: HC-INT. LOCATION: 293 QUAKER ROAD APPLICANT PROPOSES TO CONSTRUCT A 1,775 SQ. FT. BUILDING ADDITION, AND HAS EXPANDED THE ON-SITE PARKING AREA BY PLACING 21,750 SQ. FT. OF CRUSHED STONE ON THE PROPERTY. APPLICANT SEEKS RELIEF FROM THE FRONT SETBACK AND PERMEABILITY REQUIREMENTS. CROSS REFERENCE: SPR 57-2004 WARREN COUNTY PLANNING: AUGUST 11, 2004 ADIRONDACK PARK AGENCY: N/A LOT SIZE: 4.97 ACRES TAX MAP NO. 296.20-1-5 SECTION: 179-4-030 VIC MACRI, REPRESENTING APPLICANT, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 62-2004, D’Ella Auto Group, Meeting Date: August 25, 2004 “Project Location: 293 Quaker Road Description of Proposed Project: Applicant proposes to construct a 1,775 sq. ft. building addition, and has expanded the on site parking area by placing 21,750 sq. ft. of crushed stone on the property. Applicant seeks relief from the front setback and permeability requirements. Relief Required: Applicant requests 46.79 feet of relief from the 50-foot minimum front 31 (Queensbury ZBA Meeting 8/25/04) setback requirement of the Highway Commercial, Intensive (HC-Int) zone. Additionally, the applicant seeks relief from the permeability requirements of the HC-Int zone for the additional parking areas that have been created on the site. The applicant seeks relief to maintain a 23.8% permeable site in contrast to the 30% minimum requirement. Parcel History (construction/site plan/variance, etc.): None applicable Recently the neighboring parcel, also D’Ella expanded with an addition to the main service building. The expansion required setback relief. Staff comments: The proposed showroom expansion is planned in an area currently utilized for parking and access aisles. What effect would this variance have on the health, safety and welfare of the community? Does the applicant have permission from Niagara Mohawk to occupy NIMO lands with their use? Typically, NIMO will grant an access easement to cross NIMO lands, however, occupation of NIMO lands, especially where high voltage transmission lines are located, is uncommon. It would appear as though there are alternative areas for the construction that would require little or no relief from the setback requirements. Removal of required greenspace in favor of more parking/display area may present a significant adverse impact on the physical or environment conditions in the neighborhood. It would appear as though the use has already expanded well beyond the limits of the applicants property and the current request to further develop lands with impermeable surfaces immediately adjacent to State regulated wetlands could also present adverse stormwater runoff impacts.” MR. MC NULTY-“Warren County Planning Board Project Review and Referral Form August 11, 2004 Project Name: D’Ella Auto Group Owner: D’Ella Auto Group ID Number: QBY-04- AV-62 County Project#: Aug04-21 Current Zoning: HC-Int. Community: Queensbury Project Description: Applicant is proposing to construct a 1,775 sq. ft. building addition, and has expanded the on-site parking area by placing 21,750 sq. ft. of crushed stone on the property. Applicant seeks relief from the front setback permeability requirements. Project Location: 293 Quaker Road Tax Map Number(s): 295.20-1-5 Staff Notes: Area Variance: The applicant proposes to construct 1,775 sq. ft. addition to an existing building and to request approval of an increase in gravel area to the rear of the property that is within 50 ft. of a regulated wetland. The information submitted indicates the addition would be 3.21 ft. from the front property line where 50’ is required. The new addition would be over existing paved surface. The information also indicates the addition is 125 ft. from Quaker Road due to Niagara Mohawk Power easement. The information does not indicate if there is an existing easement between Della and NiMo to use paved surface in front of proposed addition, if there is not access around the proposed addition limited (3 ft.). Staff does not identify an impact on county resources based on the information submitted. Staff recommends no county impact. Warren County Planning Board Recommendation: No County Impact” Signed by Bennet F. Driscoll, Warren County Planning Board August 13, 2004. MR. STONE-Sir. MR. MACRI-My name is Vic Macri, and I’m with VMJR Companies, and I am representing the D’Ella Auto Group. I think everybody has a copy of the map in front of you. I’ll try to give you a walk through of what’s really happening. We are only dealing with the existing property known as the D’Ella Pontiac Buick Cadillac dealership. The discussion regarding setback, we would be expanding the existing showroom by 25 feet. Currently the existing showroom is 28.21 feet from the property line. There is, and it should be noted, 120 feet from the property line to Quaker Road. In respect to the permeability issue, there was an expansion of the hard surfaced area which I will call asphalt, back a few years ago, and there was some encroachment on the existing setbacks for the wetlands. There was also an expansion of some crushed stone area, which I believe the Town considers non-permeable surface, which I think is a definition 32 (Queensbury ZBA Meeting 8/25/04) which you’ve got to review, and I consider it an absorptive area, and I think most (lost words) consider it crushed stone, as far as the variance. That being said, when this issue came up in 2001, the DEC was notified, and I believe there was a letter in the file that DEC saw no significant impact to the wetlands, and warned D’Ella not to do any further expansion. It should be noted on this property that gravel surfacing and the crushed stone, or crushed stone, was pre-existing, nonconforming when expanded, and I think there is some documentary evidence that Mr. Brown has from aerial photos prior to 1996, which showed that existing, nonconforming crushed stone. So, even though we are expanding beyond the permeability from 30% required to 23% that we probably already had violated permeability standards because of the existing, even though we are expanding it. I would like to bring up the points the permeability issue, it should be taken into account that there is a landlocked piece of property behind Mr. D’Ella Bella’s property which is non-developable, and there is also an adjacent piece of property to Mr. D’Ella Bella’s which is also non-developable. I know that both properties are available to purchase. I believe purchasing these would just create a hardship for Mr. D’Ella Bella , and it’s unnecessary since the properties cannot be developed. Now, obviously, the NiMo easement is also non-developable area. So this is property that’s surrounded by non-developable, permeable areas, and we ought to take a look at the fact that the Code was developed to maintain permeability within the surrounding areas, even though it’s not happening on this property, it still happens within the vicinity. It won’t be changed. This piece of property will never be developed. Mr. D’Ella Bella bought it and it’s within the wetlands. So it doesn’t make any sense to (lost words). We looked at combining the properties, but still, by combining the properties, did not come in (lost words). As far as the expansion is concerned, you need to take into account the setback from Quaker Road which is 120 feet, and I think, as mentioned this evening, the reason for setbacks is to prevent crowding and I don’t see crowding of Quaker Road as an issue here. I know that it was mentioned that there are feasible areas, but for circulation purposes, I think, and the fact that we are expanding the existing showroom, which is in the front of the building, that there really aren’t any feasible areas. It should be noted that this is apparently the service entrance, and can’t be blocked. If we tried to, when we did examine other ways of doing this expansion, if we tried to expand over here, we would be encroaching on the buffer of the wetland and also would be blocking a circulation pattern that’s necessary (lost words). Other than that, I guess that’s about it, as far as the issues here. MR. STONE-Okay. I appreciate you trying to deflect, obviously some of the questions we’re going to have, and I appreciate that. However, I have a few more. You’ve said that it’s far off the road, and we did recognize that a few years ago when we gave a variance for the sign, recognizing that it is far off the road. So it has been considered in a different way, but certainly was considered. The other thing that I have, and this is, I’m starting, because I’ll take prerogative here because I’m the Chairman, but I can’t stop Mr. D’Ella Bella from parking cars on NiMo. That’s not our job, but I can stop from building too close to the property line, and I’m inclined that way, but I want to listen to what’s going on. Obviously the NiMo property is being used by Mr. D’Ella Bella to his advantage. I assume he has permission. It’s not a concern of mine, whether he does or he does not, but the property line is something over which we do have some control, and I’m just thinking that I’m not sure I want to go that way. Chuck? MR. MC NULTY-Well, just to express a couple of ideas before we get to the final vote and I spring stuff on people. I’m inclined to agree with the Chairman on the front. When I first looked at this application, my first reaction is, yes, they’re right. It’s a good distance from Quaker Road because of that NiMo property along there, and so there’s probably no harm in expanding, but then when I was out there today and looked at it, it strikes me that this addition would put this particular dealership building sticking out further than the others down that road. I didn’t measure them and I didn’t line up and look down through, but it strikes me that this puts this one closer to Quaker Road than the Honda place and Nemer’s place, which does bother me, and bother’s me, too, looking to the future and the potential of them saying, well, you gave it to them. We want to do the same thing and expand our showrooms. So I’m inclined to say no to the front expansion. The permeability also bothers me. There’s a lot of land there. D’Ella Bella’s got a lot of different properties where they could move cars. My inclination there, too, unless I hear something different, is I see no reason to allow an 33 (Queensbury ZBA Meeting 8/25/04) infringement on the permeability requirement, and, incidentally, it also looked to me like they’ve done a similar thing on the Honda property, except they used gravel instead of crushed stone, but that’s, the parking on the Honda property goes back just about as far as what it does now on the Pontiac property, but anyway, that’s where I’m at at this point. MR. STONE-Anybody else? Questions? Okay. No questions? MR. URRICO-I guess the question, Staff asked it, is do you have, you have an access easement across the NiMo lands. MR. MACRI-I don’t think that that’s part of this. MR. URRICO-Well, it was a question that Staff brought up. MR. MACRI-I understand, but I don’t really think that it’s relative to the setback. MR. URRICO-Okay. MR. STONE-We ask any questions we want, sir. MR. MACRI-I agree, but I can’t answer that. MR. STONE-Well, if you can’t answer, that’s fine. MR. MACRI-I can’t answer it because I didn’t research it because I didn’t believe that it was relative to (lost words). MR. ABBATE-What was the question again, Roy? I missed it. MR. URRICO-The one in the Staff notes about the access from NiMo properties. MR. ABBATE-Okay. All right. I have a question, if I may. MR. STONE-Go. MR. ABBATE-Would you be kind enough to respond to this, I think it’s pertinent. Staff says that removal of required green space in favor of more parking/display area may present a significant adverse impact on the physical or environmental conditions in the neighborhood. Would you comment on that, please. MR. MACRI-I’m not sure (lost words) would be removing any green space. If anything, we would just be taking up asphalt and the gravel is existing gravel (lost words), back in 2001, this application in order to move forward on the setback application. MR. ABBATE-Let me ask Staff, then. Would you explain that, please. MR. FRANK-I will attempt to. These aren’t my notes. These were Craig Brown’s notes. I was on vacation. So, again, what was your question? MR. ABBATE-Okay. In the Staff notes, it says removal of required green space in favor of more parking/display area may present a significant adverse impact on the physical or environmental conditions in the neighborhood. MR. FRANK-Is he referring to the after the fact placement of crushed stone, which is an enforcement action which dates back prior to my time at the Town, May of 2001. So, I’m not wholly familiar with this because I started in July, but I think that’s what he’s referring to. MR. ABBATE-Okay. 34 (Queensbury ZBA Meeting 8/25/04) MR. FRANK-I think that’s why they’ve included this in their proposal, because it’s an after the fact request for relief for that portion. MR. ABBATE-Okay. Thank you, Bruce, I appreciate it. MR. STONE-Any other questions? MR. UNDERWOOD-I would assume that there’s no infiltration devices on that lot at all. I mean, I didn’t view any when I looked. MR. MACRI-No. There are existing catch basins. MR. FRANK-I don’t believe there’s anything in the rear where the crushed stone is. MR. MACRI-Yes, there was a structure there. MR. FRANK-Is it located on this survey that you supplied? MR. MACRI-I can tell you, I don’t believe any of the structures are located at all, but when we did tank removal, back probably 10 years ago, we put a drywell back there. So I assume the drywell’s still there. MR. STONE-That’s behind the building, or is that where the crushed stone, the new crushed stone? MR. MACRI-Behind the building (lost words). MR. STONE-Okay. MR. FRANK-Well, to be honest with you, I did walk the site, and I did look for that. I didn’t see anything. There was plenty of vehicles parked there, so I could very well have missed it, but again, that’s why I asked, could you locate it on this map, or was it ever located? MR. MACRI-If it isn’t there, it would be (lost words). MR. STONE-Just a comment that I feel compelled to make. You talk about our Code and the permeability. Remember, that Code applies even to private driveways, and you’ve got car after car, truck trailer after truck trailer, pounding down this stone, and that’s why, under our Code, we think it’s impermeable because eventually it becomes impermeable. MR. MACRI-I understand that, but I also noted, 10 years ago, when I was on the Planning Board, it was not, it was permeable area, crushed stone. Things have changed, obviously. MR. STONE-Yes, well, I appreciate, again, as I said earlier, at least for some of us, we will be looking at that. MR. MACRI-The definition really needs to be looked at. MR. STONE-All right. Having said that, no other further questions? I’ll open the public hearing. Anybody wishing to speak on this subject? PUBLIC HEARING OPENED DONALD PAUL KRUGER MR. KRUGER-My name is Donald Paul Kruger. I own the property directly to the north of the D’Ella Auto Group’s property. I have no objection. 35 (Queensbury ZBA Meeting 8/25/04) MR. STONE-The wetland you’re talking about, basically? MR. KRUGER-Correct. I have no objection to the buildings issue. However, I do object to the easement on the permeability. The reason being, all the property, not only from this section of land, but directly adjacent to it, being D’Ella Honda, both these areas are draining into my property, creating stagnant water right on the property line and encroaching upon my property, first of all. Secondly, there’s a large number of cars, almost to the property line, and so increasing that, or decreasing that percentage from 30 to 28% is questionable to me, because already a large portion of that property almost entirely is being used for parking area. This property of mine is available to the D’Ella Auto Group for retention, drainage, whatever they’re willing to do with it, increasing their green space for these (lost words) properties. MR. STONE-Let me ask you gentlemen a question that you may or may not be able to answer. They’re actually asking for 23.8% permeable versus 30. If they had 30, would the problem go away? MR. KRUGER-By reconfiguring a portion of the land, absolutely. MR. STONE-Okay. I just want to, it’s your judgment, obviously. MR. KRUGER-There’s 2.3 acres available there. MR. STONE-I’m not talking about that. I’m saying if their property met the Code of 30%, on the property that they have, do you think that would help? Would that mitigate the problem? MR. KRUGER-By using that 30% for retention purposes? MR. STONE-Well, using it for being permeable. I don’t want to go any further than that. Okay. You think it would help. MR. KRUGER-It would help mitigate the situation. MR. STONE-Okay. MR. URRICO-Where is your property located? Is it directly north? MR. KRUGER-Right where the, yes. MR. URRICO-Right there? Okay. MR. STONE-The Lands of Peter Phair? MR. KRUGER-Formerly. MR. FRANK-The shows as Paul Kruger, if you look right here. MR. STONE-I’m looking at their thing. MR. HAYES-You bought it from him. MR. KRUGER-Over two years now. MR. STONE-Okay. MR, KRUGER-Two and a half years. 36 (Queensbury ZBA Meeting 8/25/04) MR. STONE-All right. Any other questions of Mr. Kruger? Thank you. Anybody else wishing to speak? MR. KRUGER-One other thing. Currently there are no catch basins, no retaining ponds on any of the D’Ella Group’s property. MR. STONE-Would this have to go to site plan? MR. FRANK-Yes, it would. MR. STONE-The total. MR. FRANK-Should you grant the relief, yes. MR. STONE-Yes. That was the assumption, Mr. Frank. Okay. Thank you. DON KRUGER MR. D. KRUGER-Hi. My name is Don Kruger, and I have to really give Mr. D’Ella credit. Mr. D’Ella Bella’s certainly increased his business. He’s done a tremendous job on Quaker Road. However, in retrospect, I think back to when they tore down the Continental Insurance building, dumped it in the swamp there, and it became what is now the Cadillac Honda place, I believe, and they made absolutely zero effort at containing the water on the property. Every time I have an issue with drainage, as a builder in Queensbury, Mr. Hatin tells me that I have to contain the water on the property. They have a (lost word). In Mr. Macri’s dissertation, he stated that the land behind it where my son owns is landlocked. That’s not quite true because he does own the property going out to Meadowbrook Road, and this is all part of his land. If they go ahead and do this and dump more water on it, on the back property, it simply drains off to the back. MR. STONE-Okay. Well, that’s why I asked about the same thing. MR. D. KRUGER-It’s going to compound the crime. MR. STONE-That’s the Planning Board’s problem, if we grant relief. They can still, they get into that subject, in terms of containing stormwater. Okay. Anybody else? Thank you. Anybody else wishing to speak on this subject? Any correspondence? MR. MC NULTY-No correspondence. MR. STONE-Then I’ll close the public hearing. PUBLIC HEARING CLOSED MR. STONE-Do you want to make any comments? MR. MACRI-Obviously, if the Board was to grant the variances, there would be a stormwater management plan (lost words) which would have to indicate (lost words) which Mr. Kruger and Mr. Kruger well know. As they mentioned the land is available for sale by Mr. D’Ella Bella, which would solve all of the problems by owning the property. MR. STONE-We can’t compel you to do that. MR. MACRI-I understand. It could be done, and we could meet the permeability issue, and they would not have to worry about stormwater, but I think we can make a vast improvement on this property. I would also note that the adjacent property that Mr. Kruger brought up was formerly the (lost word) auto shop and was not originally owned by Mr. D’Ella Bella and the 37 (Queensbury ZBA Meeting 8/25/04) only thing that’s ever been done to the building is sprucing it up. There was never any additions put on. It was never larger than this size addition that we recently put on. MR. STONE-Okay. Well, we’re not talking about that property. MR. MACRI-And therefore there was never any need to (lost words) any drainage which may effect the adjacent property. MR. STONE-Okay. MR. MACRI-And I would also like to bring up the fact that since the D’Ella’s have moved to the area in the early 80’s, they have vastly improved the properties on Quaker Road, and have contributed tremendously to the community. MR. STONE-Not germane, but thank you. MR. MACRI-I understand it’s not germane, but (lost words). I believe that there really is no impact to the community on the expansion of the structure. I appreciate the fact that 125 feet does seem too close to some people, but it is 125 feet, and I think the setback laws were made not to keep buildings 200 feet from the road, but to keep buildings reasonably back, reasonable setback, and I don’t think 125 feet (lost words) is an unreasonable setback. Other than that, I think that’s it. MR. STONE-Okay. Let’s talk about it. Chuck Abbate? MR. ABBATE-Okay. Thank you. I know that we can’t enforce the stormwater management plan, but you did mention that. I think it’s important, and notable, that the folks who are going to have, who will be immediately impacted, in the event that we approve this, have stated their concerns over water, etc., etc., and it was interesting that the representative for D’Ella Auto Group indicated that there would be a stormwater management plan. However, I know that’s for the Planning Board kind of thing. I’m trying to really come up with a reason not to approve the application, and I’m having a very difficult time. I think what I need is some guidance, and I’d certainly have to listen to what other members of this Board have to say, quite frankly, I need some help. MR. STONE-Okay. Joyce, help him. MRS. HUNT-Well, when I went there today, I was really struck with the fact that every available space had a car, and they were parked almost over the line of growth in the back, and I know it doesn’t seem like much, 23.8, compared to 30, but when you went and looked at the property, it did make a big difference, and I have a problem with 46.79 feet of relief from 50 foot minimum setback. I mean, you know, they’re chipping away at some of these requirements, but this goes beyond that, and I would not be in favor of it. MR. STONE-Okay. Roy? MR. URRICO-Yes. I think I’m going to take the route of the balancing test, and start with the (lost words). There are feasible alternatives there that can be achieved, by moving, by putting it somewhere else, a smaller showroom. There are feasible alternatives. So that’s established. As far as the undesirable change in the neighborhood character or nearby properties, this is one where I’m really probably bothered by the most, because we’ve seen with the sign, that sign stands out, wherever you come from on Quaker Road, that sign hits you, it’s the first thing you see, like it doesn’t belong there. It really doesn’t belong there. We granted that variance there, and every single auto group along that road now came back and asked for a Sign Variance, because of that sign. So I’m willing to bet that if we allow the expansion of that showroom, then we’re going to have other car dealerships coming back and saying, we want the same thing, because they’ve done it before with the sign. That’s my point about that. I think the request is substantial, both from the permeability angle and from the minimum front setback. Yes, it’s 125 38 (Queensbury ZBA Meeting 8/25/04) feet from the road, but it’s 125 feet from the road for a reason. Their front setback is where it is, and you want to come right up to it, and you’re already using that property anyway. So it’s obvious what it’s going to look like afterwards, and whether t he request would have adverse physical or environmental effects, we’ve also heard about that. Every spot there is occupied by a car, and if there’s going to be runoff, it’s going to increase the amount of materials that shouldn’t be draining into the wetlands, and then the final thing is whether the difficulty is self- created, and that’s, it definitely is self-created. So I cannot be in favor of this application. MR. STONE-Jaime? MR. HAYES-I essentially agree. I think that the D’Ella Bella’s have done a nice job with this. It certainly has been improved. I don’t think anybody would argue that. I don’t think there’s any effort here to take advantage or not end up with a good product in the end, but in this particular case, the desire for this expansion of the showroom really is entirely self-created. It’s just something that they want, something that they’re attempting to do. I think that Roy did an excellent job pointing out the fact that, and Joyce, that at the end of the day, that this could create a relative tide like effect, domino effect, in a sense, that this becomes the next step in expanding these buildings out toward Quaker Road. The fact that Quaker Road has this large setback, and I think you pointed out, as you did, that, you know, these things are further away than people think because of the setback from the road, but in this sense that’s a positive now for Quaker Road and the commercial sight line of Quaker Road and I think expanding even further would be a mistake. I think in the end, I think that, if I balance all the things (lost words). I think that the request, in the end, is substantial, when you look at cumulatively. I think there’s potentially a negative impact on the immediate environment there. So I would be opposed. MR. STONE-Chuck? MR. MC NULTY-Well, regrettably I’ve got to agree with what’s been said. I would agree with Jaime. I think that the wide expanse of green area we’ve got right now, thanks to Niagara Mohawk, is an asset to Quaker Road. It would look a lot worse if all those car dealerships were right up within 50 feet of the road itself, and I’d like to keep it the way it is now, and likewise I guess this falls into one of my ones that I’d classify as saying I want to is not sufficient justification to authorize the variance, and I think, as has been pointed out, it’s self-created. There are alternatives, and therefore I’m going to have to be opposed. MR. STONE-Jim? MR. UNDERWOOD-I would essentially have to agree with what Chuck said. I think the expansion on the front towards Quaker Road for the same reasons, I would not approve this variance. As far as the crushed stone that was that was added in the back there, I did review the Halfway Brook Watershed Management Plan, and they succinctly noted in there that near complete or absence completely of infiltrators on almost all those sites to the north there, because there is some drainage into the swale on the front there, which goes along the front of Quaker Road there, also in the back, also feeding into Halfway Brook eventually. I think that, you know, the added crushed stone in the back, as was suggested by the Krugers, was in violation. I don’t know when it occurred, but since we’re dealing with it at the present time, I think it ought to be reviewed. I think that if there’s plans for any expansion on this site whatsoever, I would think that the Planning Board would probably want to make sure that those infiltrators were put into place. I think that when we contrast this with what was done at the new dealership up the road, the Saturn dealership, it’s a grand difference when you’re looking at the cars that are parked wall to wall from one side to the other, at all times, and along with the other dealerships adjacent. So I would not be able to approve this variance. MR. STONE-Well, I think the Board has very clearly enunciated our concerns. I think one of the troubling things to me is the comments made by the neighbors. Yes, they have an ulterior motive. They’d love to sell their piece of property. I understand that, but they have volunteered that water does go onto their property, and that’s really a no-no, and as Mr. 39 (Queensbury ZBA Meeting 8/25/04) Underwood just said, there doesn’t seem to be any effort being made to prevent that from happening. I’m also more concerned with the proximity to Quaker Road. I mean, if that building is put in, and, yes, this is conjecture, this is an opinion, then somehow the cars will move closer to Quaker Road because the building will be there, and there are cars there now, or they’re very close to them, and I suspect that they will keep going until NiMo either goes out of business, which could happen, or they file suit. So I think our job, in going through the test, as a number of people have, certainly comes down on the side of denying of this variance. So, having said that, I need a motion to deny. MR. MACRI-Could I just make one other comment? That if NiMo did (lost words) there’s a possibility that it would not be a problem if the building were (lost words). MR. STONE-But the wires are going to be there. MR. MACRI-From the road, it would not be a problem. MR. STONE-And I was not being serious. I’m being somewhat facetious. MR. MACRI-I’m being serious. In reality we created a commercial district, and you’ve said 50 feet is a good setback, and you’re turning around and saying, no, it really should have been 125 feet. MR. STONE-And all we’re saying 15 feet from the property line. MR. MACRI-The rest of it. MR. STONE-Well, we’re not going to get into an argument. MR. MACRI-I’m not looking for an argument. I’m just stating the facts. In the reality, if there was no (lost word) there was no power line, the building would all be within 50 feet. MR. STONE-May or may not be. MR. MACRI-The reality of the situation is that you’ve created a commercial zone that allows buildings within 50 feet, but not you’re not (lost words) of Quaker Road. Of Quaker Road, okay, (lost words), but you’re not allowing a property owner to come within 125 feet. MR. STONE-We’re talking a property owner coming within 50 feet of his property line. Forget what is between there and Quaker Road. MR. MACRI-But it’s not developable land. MR. STONE-That’s fine. Anyway, I need a motion to deny. MOTION TO DENY AREA VARIANCE NO. 62-2004 D’ELLA AUTO GROUP, Introduced by James Underwood who moved for its adoption, seconded by Joyce Hunt: 293 Quaker Road. The applicant proposes to construct a 1,775 square foot building addition and has expanded the on-site parking area by placing 21,750 square feet of crushed stone on the property. The applicant seeks relief from the front setback and permeability requirements. They were requesting 46.79 feet of relief from the 50-foot minimum front setback requirement of the Highway Commercial Intensive zone, and the feeling of the Board is that, in general, this does not seem feasible. Additionally, the applicant seeks relief from the permeability requirements. Instead of having the required 30% minimum requirement, they have expanded the parking in the back so that they now only have 23.8% permeability on site. It’s also the recommendation of this Board that the pending enforcement action be pursued. The removal of the green space has been deemed to be a negative for the neighborhood, and the expansion further towards Quaker Road was also deemed to be a negative. 40 (Queensbury ZBA Meeting 8/25/04) Duly adopted this 25 day of August, by the following vote: th MR. UNDERWOOD-It’s also the recommendation of this Board that the Planning Board review what has been done, in view of that, and deal with some kind of infiltration structures being built to prevent the runoff from flowing on to the adjacent properties. MR. STONE-I guess, technically, we have to say we’re encouraging Staff to look into infiltration. We can’t, we’re not sending it to the Planning Board, but we do want to get that comment in there, and I thoroughly agree with you. Is that a good way to do it, to encourage you to look at this property, from a stormwater containment? MR. FRANK-I think it’s already been looked at. I mean, obviously this enforcement action dates back to May of 2001. So I think what extended it for so long was because they had to have the wetlands delineated, which they did. MR. STONE-Okay. MR. FRANK-Again, it wasn’t my enforcement action. It was prior to my employment with the Town, and so the Zoning Administrator, he would be the one to ask. Now that they did not get the relief needed, they’re still not in compliance. What is the next step? That’s a question that will be discussed at our debriefing meeting tomorrow. MR. STONE-Okay. So, Jim, just that we recommend the enforcement action be pursued, the pending, I think that’s the easiest way to do it, but it should be in there. I agree with you. Okay with that? MR. UNDERWOOD-Yes. AYES: Mr. Urrico, Mr. Hayes, Mr. McNulty, Mr. Abbate, Mr. Underwood, Mrs. Hunt, Mr. Stone NOES: NONE ABSENT: Mr. Bryant SIGN VARIANCE NO. 61-2004 SEQRA TYPE: UNLISTED PANERA BREAD AGENT(S): LAVER MANGUSO & ASSOC. ARCHITECTS OWNER(S): NORTHWAY PLAZA ASSOC. LLC ZONING: HC-INT. LOCATION: 820 STATE ROUTE 9 APPLICANT PROPOSES TO PLACE AN 84 SQ. FT. WALL SIGN ON THE SOUTH FAÇADE AND AN ADDITIONAL 84 SQ. FT. WALL SIGN ON THE EAST FAÇADE. APPLICANT REQUESTS RELIEF FOR ONE ADDITIONAL WALL SIGN. CROSS REFERENCE: BP 2004-431, BP 2004-429, BP 2004-234, BP 2004-016 WARREN COUNTY PLANNING: AUGUST 11, 2004 ADIRONDACK PARK AGENCY: N/A LOT SIZE: 22.87 ACRES TAX MAP NO. 296.18-1-47 SECTION: 140- 6(B3d4b) STEPHANIE BITTER, REPRESENTING APPLICANT, PRESENT MR. STONE-In other words, they have permission for one. Do they have a permit yet? MR. FRANK-I don’t know if they submitted one or not. They’re entitled to. I have been informed they have. So they’re entitled to one, and they’re asking relief for. MR. STONE-Yes. I know they got one up. That’s what I was asking the question. MR. URRICO-But you can’t see it from the road. MR. STONE-Well, let’s not go there yet, but they’ve got a sign, and it’s up. 41 (Queensbury ZBA Meeting 8/25/04) MR. FRANK-The sign permit’s in the box. MR. STONE-I just wanted to be sure. STAFF INPUT Notes from Staff, Sign Variance No. 61-2004, Panera Bread, Meeting Date: August 25, 2004 “Project Location: 820 State Route 9 Description of Proposed Project: Applicant proposes to place an 84 sq. ft. wall sign on the south façade and an additional 84 sq. ft. wall sign on the east facade. Relief Required: The applicant requests relief for an additional wall sign where only one is allowed per tenant, per §140-6(B3d4b). Parcel History (construction/site plan/variance, etc.): Several approvals have been issued to this property. Most recently, Site Plan Review approval for the Home Depot and associated site work within the plaza as well as a Sign Variance application to the plaza for the oversized free standing sign at the Route 9 entrance adjacent to the Panera location. Specifically, for this applicant, a wall sign permit has been issued for an identical sign, which has been installed facing the interior of the plaza. Staff comments: It appears as though a feasible alternative would be to locate the allowable sign on the southern end of the building. Such placement would be visible from virtually all entrances to the plaza. Further, signage on one of the multiple freestanding signs appears to be an available option. Will the granting of this variance lead to future requests from other tenants of this plaza and similar facilities in the community?” MR. MC NULTY-“Warren County Planning Board Project Review and Referral Form August 11, 2004 Project Name: Panera Bread Owner: Northway Plaza Assoc. LLC ID Number: QBY- 04-SV-61-2004 County Project#: Aug04-29 Current Zoning: HC-Int Community: Queensbury Project Description: Applicant is proposing to place an 84 sq. ft. wall sign on the south façade and an additional 84 sq. ft. wall sign on the east façade. Applicant requests relief for one additional wall sign. Site Location: 820 State Route 9 Tax Map Number(s): 296.18-1-47 Staff Notes: Sign Variance: The applicant proposes to construct two wall signs for Panera Breads at the Northway Plaza complex. The information submitted indicates the signage is to address customers in the plaza and customers on Route 9 as to the location of the business. The site is permitted one wall sign of 100 sq. ft. and the applicant proposes two wall signs, one for each corner as the building is at the end of the complex. The plans indicate the signs are to be internally lit. the plans do not indicate any alternative size for the signs. Staff recommends no county impact with the condition that a smaller size sign be considered based on the maximum size allowed for one sign being 100 sq. ft. County Planning Board Recommendation: No County Impact with Stipulation County Planning Board recommends no county impact with a stipulation that a smaller sized sign be considered based on the maximum size allowable for one sign being 100 sq. ft.” MR. STONE-Go ahead. MRS. BITTER-Good evening. My name is Stephanie Bitter. I’m here on behalf of Panera LLC. We understand that the Town of Queensbury carefully looks at the Sign Variances that are requested. We understand that the Town of Queensbury is very careful in providing Sign Variances. However, as you have seen over the last two years, this Northway Plaza renovation project has been a very good success. It has actually renovated a vacant plaza into something that’s very, I would think the Town would agree is aesthetically pleasing. Northway Plaza is 42 (Queensbury ZBA Meeting 8/25/04) very happy to have this tenant, Panera Bread. It’s a big plus to the Plaza, and it’s a high end restaurant. Just to give you some background information, Panera Bread’s only located in 35 states nationwide. As indicated on their website, only 145 stores are being added in this year, and we’re happy to welcome to the Town of Queensbury Panera Bread, the only one located in Warren County. With such, it’s very important that we identify that Panera Bread is located in the Northway Plaza. So in looking at the big picture, our request is due to identification, identification. Another item is that Panera Bread, adding this as a tenant to Northway Plaza, will all of a sudden allow there to be an internal restaurant in the Plaza. With this, the number of employees have proceeded to increase with the renovation project, from Home Depot. Travelers is already there, but the increase to Travelers of the Department of Labor, Peter Harris, can actually enjoy lunch at an internal restaurant. With such, that’s going to decrease the traffic in and out of the Plaza for those that choose to actually dine outside the Plaza for restaurants. So we feel that that’s also a plus. The variances that we are requesting is to have the second sign on the corner unit. We feel that these variances, when looking at the balancing test, the benefit that we will obtain as the applicant outweighs any detriments to the health, safety and welfare of the neighborhood and community. Specifically, the benefits I’ve identified is to promote internal lunching, to decrease the traffic flow during the noon hour, also the identification aspect. As I’ve identified in our application, this is a corner unit. So if you only have a sign on the east side, which currently exists, you’re only visible on site by the on site individuals that are visiting the Plaza for customers or employees. If you only have a sign on the south side, you’re visible to off premises individuals traveling, but not on premises. So we feel that both are needed in order for identification purposes. What effect do these variances have on the community? We feel it would have a positive effect for both safety purposes, for identification, as well as lessening the traffic, as we’ve identified. Are there feasible alternatives? Again, this being a corner unit, as the sign code identifies, when you have a corner lot, and a business is located on the side of two public streets, a wall sign is allowed for each side for identification purposes. We feel that the same analogy should take place with this since it’s being a corner unit. The second item that was brought up by Staff is about the freestanding sign. I’m going to be candid and honest. The Plaza has plans to contact with a major retail tenant, which would actually be located next to Travelers, and pursuant to the agreement that they’ve made, the area of that freestanding sign has already been reserved for that major retail tenant. So although it’s not visibly in use, it’s already been accounted for. So with that regard, we feel there’s no feasible alternatives, and the variance should be provided. Is the amount of relief substantial? Again, not when considering the analogy of the corner lot theory, and also not when considering the fact that on premises signs, which are not visible from any public street or adjoining an abutting properties don’t need a sign permit. They’re not even recognized as existing in the Town of Queensbury, pursuant to the sign code. We don’t fully believe that any adverse effects or impacts will occur to the physical or environmental conditions. Again, Northway Plaza has been undergoing this renovation project for the last two years. To become more aesthetically pleasing and to also bring the Town of Queensbury back to visiting the Plaza, so that there’s tenants there, that they would be interested in seeing. With that regard, we want to make sure that these tenants are easily identifiable by the customers, and also of the community of Queensbury. As such, we feel that a positive effect would be provided with these variances, since they would be able to identify Panera Bread more easily. MR. STONE-That’s it? MRS. BITTER-That’s it. MR. STONE-I recall your associate came before us, a couple of months ago, with a proposal to move the business that was occupying that corner lot, and we gave permission for a sign, because they’re not going to be on the corner anymore, so they needed a sign on the pole. When does it stop? MRS. BITTER-Well, it’s our position that this is one of the final steps of this renovation project. I’ve already identified to you that the retail tenant that’s going to be occurring at Travelers has already been reserved a spot on the freestanding sign. So although, as an agent of Northway Plaza, I can tell you that the project is coming to a close. 43 (Queensbury ZBA Meeting 8/25/04) MR. STONE-There’s going to be a restaurant over there, too, correct? MRS. BITTER-Panera Bread. MR. HAYES-No. MRS. BITTER-That’s totally on the other end. That’s different. That’s in the, I know what you’re talking about, but that’s not what I’m talking about. MR. URRICO-Just to piggyback on that comment, I recall this during the same conversation, that part of the deal was that Empire Vision would move to the middle of the Plaza, and as a result, they needed to have a sign on the freestanding sign, and we suggested that it be the other freestanding sign. At that time it was said that Panera Bread would be on that sign, on the freestanding sign closest to Quaker Road. MRS. BITTER-Okay. MR. URRICO-Now is that off the table now, are they not going to be on that freestanding sign? MRS. BITTER-That’s not, no, they’re not going to be on the freestanding sign. That was not the individual that would be placed on that sign. MR. STONE-Well, they’re going down to the ground right now. They’re almost on the ground. MR. HAYES-Yes, the problem being is that we’ve been presented with several causal chains of, I mean, at one time there was another thing here that it was going to be Barnes & Noble and they needed this. That hasn’t materialized yet. MR. STONE-And Travelers wanted more parking spaces, and they’re cutting down people. So we’ve been through this. MR. HAYES-The idea with the signage, you know, that, well, I voted against, I’m proud to say that I voted against the Home Depot line up that we allowed through there, as it was, because that was. MR. ABBATE-Yes. If I may also, when I went there, I thought perhaps a feasible alternative would be to place the identification of Panera Bread on that freestanding sign, but I notice that there’s a heavy safety metal partition there that makes it difficult to read. So that’s out the window. Do you know what I’m referring to? MRS. BITTER-No. Which freestanding sign are you speaking of? MR. ABBATE-As you turn right, as you’re coming north, you turn right into the Plaza, Panera Bread is on the left, and there’s a huge sign that says Home Depot, and then there are a number of other signs, freestanding signs there. Well, there is one space there, but it would be very difficult to read because of the metal safety guard. You don’t know what I’m referring to. MRS. BITTER-No. Is there a picture of? MR. ABBATE-All right. Well, let me just continue. When I went to look at the Panera Bread, indeed they have their sign in front, which is fine, but I said to myself, what would be the damage to the community if there was another sign that you could see heading, coming south to north, which would identify Panera Bread. So I decided to take a look at Home Depot, and this is what I discovered at Home Depot. I discovered 11 signs. There were two signs on Route 9, on this freestanding sign. There were nine signs, permanent and temporary, on the structure of Home Depot, and there were three additional signs stuck into permeability areas around there. So I’m saying, hmm, that’s interesting. If Home Depot has to have a total of 11 or 12 44 (Queensbury ZBA Meeting 8/25/04) signs, I’m trying to say to myself, well, wouldn’t it be reasonable for Panera Bread, logically, to suggest, well, if you’re heading north, there would be a sign that says Panera Bread, and the folks could see Panera Bread and say, oh, goodness, yes, I’ve been there before, and turn in, and then go into the parking lot, and you walk into an entrance which says Panera Bread. So I’m saying to myself, it seems to me, unless the Board can tell me differently, that the request is not unreasonable. Am I making sense to you? Do you understand what I’m saying? MRS. BITTER-Yes. MR. STONE-Well, to her you are. You said you’re in favor, is where you’re coming from. MR. ABBATE-Well, I think, you know, I think when I saw all these other signs there, here, this is my logic, from my Board members. There are two huge signs for Home Depot, heading south to north. In addition to the nine other signs that I counted on the building that are permanent as well as temporary. I’m saying, this little business of Panera Bread coming to this area, it seems reasonable to me that if I were a tourist, or even in Town, heading north, and I saw a sign that says Panera Bread, and I, by the way, go to Saratoga. So I’m somewhat biased, and I like Panera Bread, okay. Well, there’s Panera Bread, and I could just turn in there. Without a sign on that building, it would be very difficult. Am I making any sense to anybody? MR. STONE-Yes, you’re in favor of it, you said because there are so many signs, one more wouldn’t make a difference. MRS. BITTER-I thought he was talking about the whole corner unit analogy. MR. HAYES-Lew’s trying to put the five minute gag rule on you. MR. STONE-All right. Let me ask you a question, which is what we normally do right now. Have thy considered any window sign? In other words, we have an Ordinance, a Sign Ordinance, in terms of window coverage, of no more than 25%. Is that correct, Mr. Frank? MR. FRANK-That is correct. MR. STONE-So a nice neon sign in the front window, splashing Panera Bread, would be an alternative, at least to me. MRS. BITTER-I see where you’re going, but the picture just went away. The windows are very low in the area that we’re talking about, the south side. MR. STONE-No, I’m talking about put the sign, the big sign, on the south side. I agree with you that the south sign is important, but not important enough, in my mind, to have two of them, but you can have a neon sign in the front window for those poor people who have to be told over and over again, you work here and you have to be reminded that Panera Bread is in the same place you are. I can’t buy that argument. MRS. BITTER-I was not only speaking of the employees, but also the individuals that were visiting the Plaza for different reasons, to go shopping at Peter Harris, Home Depot. MR. STONE-How are they going to get in? How are they going to get in the Plaza? MRS. BITTER-They are going to get in, which most people are visibly. MR. STONE-They’re going to see Panera Bread on the south side. MRS. BITTER-But they might not have the direction to understand that it’s located on that left side, due to the fact that the panel on the top is going to be blank. MR. STONE-Well, the window is going to have a flashing neon sign, but okay. 45 (Queensbury ZBA Meeting 8/25/04) MRS. BITTER-Well, with the landscaping, it might be hard to understand that, but we would be willing, because of the County Impact statement, that we would be willing to propose a smaller sign, located on the east side, as opposed to the 284 square feet, which was being proposed. MR. STONE-Compromise is rearing its ugly head. MR. ABBATE-Yes, well, now that’s interesting, okay. Now that’s a feasible alternative. Are you suggesting that the larger sign currently in front go on the south side? MRS. BITTER-That’s correct. MR. ABBATE-And then a smaller sign be placed on. MRS. BITTER-On the blank panel. MR. HAYES-The only thing is, I just think it’s dangerous to be presented with three or four scenarios that this is all we need to do this. I mean, it’s like one finger, two finger before you got the whole thing. The other thing, too, is now if we do allow a sign on this thing, which I’ve already said on the record that I think that that strip right there is the closest thing to sign pollution that we have in the Town, with all those Home Depots and everything else. MR. ABBATE-That’s true. MR. HAYES-That we’re adding to that, and the other thing is I just don’t, are we setting a precedent where everybody on the corner of a plaza is going to want a small, even if they say, well, it’s a small sign. MR. STONE-I could look it up. What’s the Code? MRS. BITTER-If I could just respond to the precedent issue, I realize that that’s always a concern, but as we’ve always discussed is that the factors that are applied in each, or the facts that are applied in each application are taken into account in the determination that’s made. In this case, we have a Plaza that’s, the back of it is adjacent to Route 9. So we’re not talking about that there would be a sign on one side coming north of Route 9 and the other side on Route 9. We’re speaking of a side that doesn’t even have, you know, the frontage of the road, that positive aspect. So I think the facts in this case are unique. So it’s difficult to have a precedent in that regard, because I don’t think there’s a plaza similar to this in the Town of Queensbury. MR. HAYES-No, but there is like Stuyvesant Plaza in Albany and stuff. The internal plazas, they don’t have signs on the sides. MRS. BITTER-Right, but they’re not also with their backs facing. MR. STONE-Some of them are. MRS. BITTER-In Stuyvesant Plaza? Because I’m very familiar with Stuyvesant Plaza, but I know that the Friday’s there also has like a freestanding sign on the main road, and that was the road frontage that all the signs, that they’re pulling in to, into the parking lot. MR. STONE-I can only tell you that we have been concerned with the signage at this place. I mean, as a group, we certainly have talked about it. Bruce, I mean, I can look it up, and I should know, but a building on the corner, are they automatically? They’re not automatically allowed two signs. MR. FRANK-Again, this is, corner of a Town road. This is not on the corner of a Town road. MR. STONE-Okay. If it has two frontages on two Town roads. 46 (Queensbury ZBA Meeting 8/25/04) MR. STONE-You can get two signs. Like Blockbuster, how about Blockbuster, or Hollywood, on Bay and Quaker. MR. FRANK-They may well have gotten an Area Variance for that. MR. STONE-They did. We gave it to them. MR. HAYES-We gave it to them. MRS. BITTER-Because I was familiar with Saturn, when we were here before on Saturn. MR. HAYES-This isn’t Hollywood. MR. MC NULTY-Well, let me read my little thing that I found. I was searching for a Use Variance the other day on the computer, and it, like all searches do, gave me a whole bunch of other things that had no direct relationship, but one thing I came up with, out of the Sign Ordinance, was a Section, 140-14, entitled Variances. This is in the Sign Ordinance. Our Sign Ordinance, which gives a little different set of criteria than the one that we normally read on applications. It says the Board of Appeals may vary or alter or adapt the strict application of any of the requirements of this chapter, in the case of exceptional physical conditions, whereby such strict application would result in substantial difficulty or unnecessary hardship that would deprive the owner of the sign of reasonable use of that sign. No variance, in the strict application of the provisions of this chapter, shall be granted by the Board of Appeals unless it finds that, one, there are special circumstances or conditions applying to the land or a sign and not applying generally to land or signs in the neighborhood and that said circumstances or conditions are such that the strict application of the provisions of this chapter would deprive the applicant of the reasonable use of such sign or land, where the variance would otherwise be in general harmony with restrictions established for the area, and where it shall find that the request made is the minimum variance that will accomplish the necessary objectives intended and that the granting of the variance will be in general harmony with the general purpose and intent of this chapter and with the Master Plan of the Town of Queensbury and will not be otherwise injurious to the neighborhood or detrimental to the public welfare. It strikes me that that is pretty restrictive and probably says there’s some of the Sign Variances that we granted maybe shouldn’t have been granted if you use this criteria. MR. ABBATE-Yes, such as Home Depot. MR. MC NULTY-Such as Home Depot. Such as Saturn. MR. ABBATE-And Saturn and Hollywood. MR. MC NULTY-You can go down the whole list and say that there weren’t really exceptional cases of physical problems. MR. ABBATE-But the only problem is we made exceptions. MR. MC NULTY-True, but just because you made a mistake doesn’t mean that you have to continue to make mistakes. MR. STONE-Well, I think, more importantly, there’s a feasible alternative. I think you could put something in the front window there that doesn’t take up more than 25% of the window space, and draw attention from inside the thing. First of all, most people are going to drive into this shopping center, if it’s on the south side. If it’s on the south facade, they’re going to have the ability to see the sign, and even if they come in from the north, they’re going to have the ability, when they turn east, opposite Ace Hardware. I think, in my case, and we’re not to total discussion, but I think it’s too much for me, but, any other questions on the part of the Board before I open the public hearing? 47 (Queensbury ZBA Meeting 8/25/04) MR. URRICO-I guess I would, the applicant realizes that any sign on that wall is not going to be visible, coming from the north. Still coming from Route 9 going south, you won’t know there’s a Panera Bread there unless you come back in that direction. MRS. BITTER-Yes. MR. URRICO-Would they be willing to put the smaller sign on that facing, rather than the larger sign? MRS. BITTER-That could be a possibility. MR. URRICO-Because like everybody else, I hear more complaints directed at me about the amount of signage, not only at that Plaza, but if you take the whole corridor, you get those billboards in the background. You have the Pizza Hut red roof, you know, everything sort of blends together because it curves around, but we’ve added to it with the Home Depot signs, and you say there’s more on the way, and I would think that if we can grant some sort of relief, but at a minimum, that that would be a big improvement, at least allow you to state your case, Panera Bread, but not at the detriment of the community. MR. STONE-You’re saying put it on the south? MR. URRICO-Put the smaller sign on that, and leave the other sign where it is. MRS. BITTER-Put the smaller sign on the south. MR. STONE-You’re suggesting a second sign? MR. ABBATE-But not as large. MR. URRICO-But not as large. MR. STONE-Okay. MR. ABBATE-You know what, I think Roy’s got a good point there. I think he has an excellent point there, because, let me say this, I realize what was read into the record tonight, but if we’re going to take the stand and adhere to the letter of the law, then from now on we better adhere to the letter of the law, or if we want to be reasonable in our decisions, I think that a smaller sign, as Roy recommended, on the south side would be fair and appropriate. MR. MC NULTY-And if you use a smaller sign, then there’s room for other signs for all the other businesses in the Plaza on that wall, too. MR. ABBATE-No, that building belongs to Panera. MRS. BITTER-Right. MR. STONE-No, it doesn’t. MR. MC NULTY-No, it doesn’t. It belongs to the Plaza. MRS. BITTER-Well, you could restrict it that it’s only the individual that’s located in that corner. MR. ABBATE-I thought we don’t make decisions based on theoretical probabilities? MR. HAYES-The one thing, though, is from what Chuck read in the record, I think there’s a difference between making an allowance for a sign to be a little larger than you would be 48 (Queensbury ZBA Meeting 8/25/04) allowed by Code, which we have done on Quaker Road, versus breaking the gap between two signs and one sign. I mean, to me, that’s a bigger leap of faith. MR. STONE-Okay. Well, we’ll get to that in a couple of minutes. Any other questions? Let me open the public hearing. Anybody wishing to speak on this subject? PUBLIC HEARING OPENED JOHN SALVADOR MR. SALVADOR-John Salvador is my name. I just wonder what the feasibility is of a freestanding sign on the roof of the building? MR. ABBATE-It’s not permitted in the Town of Queensbury. Am I right? MR. FRANK-No roof signs are allowed by Town Code. MR. SALVADOR-Well, what you could do is make the façade a curve and have, change the name to Panera, Panera and have one dash and then go around the corner. MR. ABBATE-Are you done, Mr. Salvador? Thank you. MR. STONE-Thank you. Anybody else wishing to speak on this subject? Any correspondence? MR. MC NULTY-No correspondence. MR. STONE-Let me close the public hearing. PUBLIC HEARING CLOSED MRS. BITTER-If I could just respond to Mr. McNulty’s identification of how the sign code reads. In the beginning of the sign code, it specifically says the purpose and intent of the sign code is to provide maximum visibility, and that’s why we’re here, you know, we’re here to make sure that Panera Bread is identifiable to its customers, as well as to the community, and also it says it’s to prevent unreasonable distraction, and we’re not trying to hide Panera Bread or to make people not aware of exactly where it is located in the Plaza. I understand that if we have one on the south façade, a reasonable person should be able to find it, but that’s not always the case. Because just because it’s on that side wall, it could identify to someone that it’s located somewhere in that Plaza complex, and that’s why we feel that there needs to be identification on both sides. MR. STONE-You’ve just given me another thing for my list. How can you say a sign is intended for maximum? I know what the Code says. That would mean we could go up 300 feet in the air. Maximum visibility. If you’ll pardon me, it’s a stupid statement, and it will be changed. MR. MC NULTY-There’s redundancy in the one I read, too, but it’s working on. MR. STONE-Okay. Let’s talk about it. Let’s start with Joyce. MRS. HUNT-Okay. Thank you. I wondered why they put the sign on the east side rather than the south side, because you have to have something on that south side for the traffic, but if you come in the entrance from Quaker, you might not notice, if there was no sign on the east side, you might not know, because the buildings there are angled, and there are places where you cannot see the south side sign from the parking lot, especially over by Travelers. So I would, I really do think they need signs on both sides. I don’t know that they need the size, you know, maybe the second one could be smaller, but I do think they need two signs. 49 (Queensbury ZBA Meeting 8/25/04) MR. STONE-Okay. Roy? MR. URRICO-Yes. I started to state my case earlier. When it comes to signs, I’m pretty adamant about not granting more relief than what is necessary. So in my mind it comes down to, well, is this necessary, and I actually agree that it is necessary. I think we have, and regardless of what the name is, you know, I think an obligation to help promote what we do in Queensbury, and I think in this case, you make a great case about the contour of the Plaza and it’s the contour of the road as well that contributes to it, and I don’t think, whatever you do on that corner, you’re going to get maximum visibility, from whatever. I’ll use Staples as the example, you know, Staples has the perfect location. You can see it from anywhere coming down Route 9, and south or north, or Quaker Road, but this case, unless you’re there, you’re not going to see it, and I really believe that, in this case, even when you sort of look at the balancing test, can the benefit be achieved by other means feasible. Well, the feasible means would be take one sign and put it on that side, but then you can’t see it in the other location, and it probably wouldn’t look very good either. The shops at Malta are very tastefully done. Those signs are also tastefully done. They’re not overwhelming, except for the Nextel sign, but that’s another story, and people never had problems finding the OTB over there, either, when it was there, with or without a sign, but I think in this case, I think this is the alternative. I think, as far as an undesirable change in the neighborhood, yes, I’m totally against what’s happened in the Home Depot Plaza, with the proliferation of signs and the way it’s grown. I’m happy to say that Jaime and I both voted the same way when that sign came in, but I don’t think this is the right argument. I don’t think this is where we draw the line. I don’t think it’s fair to make this particular case pay for what some other tenants in the Plaza have overtaken, as far as signage. I think the request is substantial, but I think if we can tone it down, and put the smaller sign on that side, I would definitely have a better feeling about it, and as far as the adverse physical or environmental effects, we do have them going up that stretch, and I’m not going to say that this is not going to contribute to it in some way, and the difficulty is self-created because it is a corner on a difficult plaza to enter and come into, but I think also it’s needed. So I would be in favor of it. MR. STONE-Okay. Just before we keep going. Would the two of you, and, Roy, you started to mention it, would you comment on Counsel’s offer of a smaller sign? I mean, because that’s certainly on the table. MR. URRICO-I did. I said I would be in favor of a smaller sign, but being on that wall, rather than facing inside the Plaza. MR. STONE-You’re saying the smaller sign on the south façade? MR. URRICO-Yes. MR. STONE-Joyce, do you have comment one way or the other? MRS. HUNT-Yes. I thought the second sign should be smaller. I thought they made a mistake putting the one sign on the east side, but. MR. STONE-Well, if you had your druthers, would you like the smaller sign inside or outside, south or east? MRS. HUNT-I don’t think it really matters. MR. STONE-Okay. Jaime? MR. HAYES-Well, I pretty much said what I felt before, but I mean, I’d certainly be happy to summarize it. One, I voted against the Home Depot triage of signs, run down the road there, largely because I felt that it was too much in too small an area. We were told by the applicant’s agent, Home Depot’s agent, that these were necessary, the Plaza was being recycled. This is what they needed to make this all work. At some point thereafter, they came back and said, 50 (Queensbury ZBA Meeting 8/25/04) well, we need some more signs because we’re going to try and fill the Plaza up more here, including the possibility of getting Barnes & Noble and everything else, which, I guess if they took over where Travelers are, that they would need, under this rationale, they would also need the sign on the other side of their building, too, you know, we’re talking about a horseshoe effect here. So that would be two more signs. It seems difficult for me to imagine, in this particular case, that it’s entirely self-created in the sense that the applicant, really, in this case, is the Plaza. It’s Drucker Associates, being that they have, you know, brought these tenants in, moved tenants, asked us to give them variances so they can move tenants and now that those tenants are moved, they’re asking us for more variances. I just can’t see why, in an area where we already have too much signage, you know, probably one of the worst signage distribution areas in Town, that we’re actually thinking about adding to that in this particular case. I own a strip plaza in Town, in Queensbury, on Western Avenue, and it just seems to me we could be setting a precedent where people on the corners of strip plazas are going to start saying, well, I need a sign on the other side of my awning, and if you look at the strip plazas like Stuyvesant Plaza or other ones in Town that are tastefully done, the fact that the signs are all on the front and that they’re uniform, it adds, somewhat, to the overall lack of sign pollution, in my mind, and they’re usually semi-compliant with each other in size and direction and everything else. I think we’re putting a situation here where we’re actually going to encourage the breaking of that line. I also think it’s (lost word) in the sense that Panera Bread came into this location, negotiated a contract to go in there, and had to be made aware of the fact that they weren’t going to get the pylon sign, and if they’re not going to get a pylon sign, then it’s a business decision whether that’s still acceptable or not. I guess we’re being asked to continue past that business decision and give them relief, again, for a sign, and I think when you balance everything, and I also think there’s a precedent to be set here, in the sense that there’s a big gap, there’s a big difference between one sign and two signs. I don’t think there’s a big gap, precedent wise, between saying you should have an 84 square foot sign, like, say, Tractor Supply, and we’re going to give you a 100 foot sign, or you’ve got a reason for that. When you start going from one sign to two signs, now, that’s a precedent that we may have to defend many times over in the future. MR. STONE-So you’re against? MR. HAYES-I would say I’m against. MR. STONE-Okay. Chuck? MR. MC NULTY-Well, several thoughts. I have to go back to Stuyvesant Plaza on some of those, too, and I’ll agree with what Mr. Hayes said, that I think a plaza looks classier if you go in and there’s the standard set of signs around over the front door of each place. When you go into one of those plazas, that’s what you can learn to expect, that the signs are going to be on the interior and you get in and you look around when you get in there, and it doesn’t take too long for people to know that Panera Bread or somebody else is in Northway Plaza, and that’s where you go for that. If we were to allow a sign for Panera Bread where it’s being proposed, seriously, then I think we ought to be prepared to allow a sign on the side of that building, or somewhere out on the road for every other tenant in that complex, and if you’re going to pick one that would be really useful, it would probably be the U.S. Post Office sign. So you could direct people to that, but I don’t think it’s reasonable to put a sign on that side. They’re in a plaza. They’ve got a good sign on the front of it. You get in the plaza, you can find it. Not every tenant in the Aviation Mall has their sign on the outside of Aviation Mall, but using this logic, they could ask for that. So I think, on this basis, the second sign, it’s double what’s allowed. I don’t think it’s reasonable, and going to back one of my earlier statements, I think it’s partly a question, are we going to try to raise the classiness of our signs, or are we going for kind of a crappy look, and the more signs we stick out near the road, the crappier the Town of Queensbury looks. So I’m going to be opposed. MR. STONE-Jim? 51 (Queensbury ZBA Meeting 8/25/04) MR. UNDERWOOD-I would think it would be in their interest to move the sign to the south side, where it would gain maximum exposure. I think that, within the mall itself, you can rely upon Pavlovian desire, when you smell the bread, your nose is going to lead you right to the place. So, I would not be in favor of two signs. MR. STONE-Chuck? MR. ABBATE-I think it’s unreasonable to kind of punish a newcomer for the sins of others. I think this is a business, I think Roy said it well, where we should encourage business, and a smaller sign, or take the sign that’s in front right now and put it on the south side and put a smaller sign in front, makes sense. If we are going to stay with the letter of the law, then I say to this Board we better do it from here on in. I would be in favor of a smaller second sign. MR. STONE-Okay. I’m going to be the naysayer and say no. Very quickly, I agree with, I think Mr. Hayes put it very well, some of the points that he made, and particularly that we are not responsible for bad business decisions. They came in with eyes wide open. One of my favorite comments that I make, not publicly as much as I do, but certainly privately, is that, I did make it tonight, is that a variance is not a God given right. You have to earn it, and in this particular case, with our Sign Ordinance, and what we’ve tried to do in this Town, yes, we’ve made mistakes, but I believe there are feasible alternatives. I think a window sign, on either side. I mean, it can be in the window on the south side, there are two windows there, I notice, and certainly some kind of a sign there, or certainly in the front. The point about the bread baking and all that stuff certainly is good, and if you give somebody a neon sign in the window, they’ll find it. I’m not worried about it at all, particularly with a big sign on the, and it can be a compliant. How big can it be on the sign, on the wall? MR. FRANK-They’re entitled to one 100 square foot sign. MR. STONE-Yes. MR. FRANK-For a business complex. MR. STONE-Yes. So it could be 100 square feet on the south side, and I defy anybody coming into that Plaza not to see it. Having said that, the way I’ve totaled it up, I’ve got four people who don’t want to see a second sign. MR. MC NULTY-We’ve got to do a SEQRA. MR. STONE-I know we’ve got to do a SEQRA. Well, thank you. So, let me do that first. Now, I’m going to, we ran into a problem before, last week, and I’m going to read this thing, and I would like your comments before we make a blanket motion, unless, does anybody have any reason not to make the blanket motion I normally do? Do you see any significant environmental problems with this? MR. HAYES-No. MR. ABBATE-No. MR. MC NULTY-No. MR. STONE-Anybody? Okay. MOTION THAT A REVIEW OF THE SHORT ENVIRONMENTAL REVIEW OF THE SHORT ENVIRONMENTAL ASSESSMENT FORM SHOWS THERE ARE NO SIGNIFICANT NEGATIVE IMPACTS CAUSED BY THIS PROJECT, Introduced by Lewis Stone who moved for its adoption, seconded by Paul Hayes: 52 (Queensbury ZBA Meeting 8/25/04) Duly adopted this 25 day of August, 2004, by the following vote: th AYES: Mr. Underwood, Mr. Abbate, Mrs. Hunt, Mr. Urrico, Mr. McNulty, Mr. Hayes, Mr. Stone NOES: NONE ABSENT: Mr. Bryant MR. STONE-Now I need a motion to deny. Jaime, do you want to do it? MR. HAYES-I can, yes. MOTION TO DENY SIGN VARIANCE NO. 61-2004 PANERA BREAD, Introduced by Paul Hayes who moved for its adoption, seconded by Charles McNulty: 820 State Route 9. The applicant proposes to place 84 square feet of wall sign on the south façade, and an additional 84 square foot sign on the east façade. Specifically the applicant requests relief for an additional wall sign where only one is allowed per tenant per Section 140-6 Part B3d4b. To my grounds for moving for disapproving the Sign Variance. One, I believe that the request, based on the historical requests that have been made for this Plaza, including request to move tenants to allow Panera Bread to come into the Plaza makes this application a self-created difficulty. We have granted the relief for number of signs in and around this Plaza extensively, in fact, and in this particular case, the applicant is, the owner of the Plaza was well aware of the conditions of which we made those approvals, and thereby we have to assume that Panera Bread was made aware of those limitations, as far as signage that was left as well. In terms of the request itself, I find it to be substantial in the sense that one sign is allowed, in this particular case, and two are requested, which means the applicant is requesting 100% of relief. I also think that the potential for adding more signs in this area of the Town, in this area of this Plaza, has the potential to have a negative adverse effect on the neighborhood that already exists, and it would be compounded by any request for additional signage. I think that some Board members have pointed out that there is, there’s a number of signs for this Plaza. There’s a number of signs proposed for a new potential tenant. There’s outdoor signage directly behind this, and there was a laundry list of Area Variances or Sign Variances that were granted for signs that are there now. So I think adding to that could have a negative impact on the environment in this particular case or the greater community in that area. I also think, in terms of future applications, which I know we interpret each application on a specific set of facts, but with a number of plazas in the Town, in this particular case, granting 100% relief for an additional side sign, if you will, could place this Board in a position of experiencing a number of requests for similar signs for very similar reasons, additional identification from a direction not contemplated from within the Plaza, and I think that that also could have a negative impact on the community. So, on balance, while I sympathize with Panera Bread, in this particular case, I think that the test, in this particular case, falls against the applicant. Duly adopted this 25 day of August, 2004, by the following vote: th AYES: Mr. Underwood, Mr. McNulty, Mr. Hayes, Mr. Stone NOES: Mrs. Hunt, Mr. Urrico, Mr. Abbate ABSENT: Mr. Bryant MRS. BITTER-Okay. AREA VARIANCE NO. 65-2004 SEQRA TYPE: II HENRI LANGEVIN AGENT(S): J. LAPPER, ESQ. AND JIM MILLER OWNER(S): HENRI LANGEVIN ZONING: RC-15 LOCATION: SHERMAN AVENUE APPLICANT PROPOSES TO ACCESS THE LOT FROM OTHER THAN THE LOT’S FRONTAGE ON SHERMAN AVENUE FOR A 53 (Queensbury ZBA Meeting 8/25/04) PROPOSED ICE-HOCKEY TRAINING FACILITY. RELIEF REQUESTED FROM THE PUBLIC STREET FRONTAGE REQUIREMENTS. CROSS REFERENCE: SPR 53-2004, PZ 2- 2003, SUB. 6-2004, SPR 17-2004 WARREN COUNTY PLANNING: N/A ADIRONDACK PARK AGENCY: N/A LOT SIZE: 1.2 ACRES TAX MAP NO. 309.5-1-3.2 SECTION: 179-4- 090(A) STEPHANIE BITTER, REPRESENTING APPLICANT, PRESENT MR. MC NULTY-This also refers to a Sign Variance which I believe they don’t need right now. MRS. BITTER-Right, that’s true. STAFF INPUT Notes from Staff, Area Variance No. 65-2004, Henri Langevin, Meeting Date: August 25, 2004 “Project Location: Sherman Avenue Description of Proposed Project: Applicant proposes to access a lot from other than the lot’s frontage on Sherman Avenue for a proposed ice hockey training facility. Relief Required: Applicant requests relief to access lot #309.5-1-3.2 from the approved access drive for the Miller athletic complex lot (309.5-1-3.1) which has not yet been developed, even though lot #309.5-1-3.2 has more than the minimum road frontage on Sherman Ave, per §179-4- 090(A). Parcel History (construction/site plan/variance, etc.): For #309.5-1-3.1 and #309.5-1-3.2: September Site Plan Review for ice hockey training facility. SP 17-2004: 03/26/04, athletic complex. SB 6-2004: 03/26/04, two-lot subdivision for lots #309.5-1-3.1 and #309.5-1-3.2. AV 7-2004: 02/25/04, height relief for athletic complex dome structure. PZ 2-2003: 11/18/03, change of zone from Light Industrial to Recreation Commercial –15. Staff comments: Note: per Mike Swann with Warren County Real Property, the Langevin property will be assigned tax map number 309.5-1-3.2 (the applicant has incorrectly identified lot 309.5-1-3.2 as lot 309.5-1-3).” MR. MC NULTY-“Warren County Planning Board Project Review and Referral Form August 11, 2004 Project Name: Langevin, Henri Owner: Henri Langevin ID Number: QBY-04-AV-65 County Project#: Aug04-27 Current Zoning: RC-15 Community: Queensbury Project Description: Applicant is proposing to access the lot from other than the lot’s frontage on Sherman Avenue for a proposed ice hockey training facility. Relief requested from the public street frontage requirements. Site Location: Sherman Avenue Tax Map Number(s): 309.5-1-3.2 Staff Notes: Area Variance: The applicant proposes to utilize a parcel for an ice skating training facility that will not have physical access to a Town road. The site will have access to Sherman Avenue from the Athletic Sport Complex drive. Staff does not identify an impact on county resources based on the information submitted. Staff recommends no county impact. Warren County Planning Board Recommendation: No County Impact” Signed by Bennet F. Driscoll, Warren County Planning Board 8/13/04. MR. STONE-Go. MRS. BITTER-All right. Stephanie Bitter, on the record here, for Henri Langevin. As you’re aware, an athletic complex was approved for the Millers for this parcel. Since that approval, Mr. Langevin, through the subdivision of the parcel, purchased the front section, which is 54 (Queensbury ZBA Meeting 8/25/04) located on the left side of the parcel that was originally owned by the Millers. Henri is proposing to construct an ice hockey training facility on the parcel which he purchased. When I speak of it as being a training facility, it’s only a quarter of the size of an ice hockey rink. It would only be for the mere purposes of training, and nothing more. MR. STONE-But it is an internal, artificial ice? MRS. BITTER-That’s correct. MR. STONE-Okay. Not artificial ice, but artificially refrigerated. MRS. BITTER-Yes. During the Miller’s review, the Planning Board asked them to reduce the number of curb cuts, which we’re here tonight to address, because technically with the Ordinance we’re kind of placed within a conflict, due to the curb cuts that are necessary for the arterial roads, but when Mr. Miller transferred the property to Mr. Langevin, he provided him access, pursuant to the easement, of the access drive that’s identified on the site plan. MR. HAYES-That’s a deeded easement or a permanent one? MRS. BITTER-Yes. MR. HAYES-Okay. Great. MRS. BITTER-Langevin’s parcel does have frontage on Sherman Ave., as the Staff notes have identified, but again, we’re trying to lessen the impact on the neighboring property owners with the construction of the athletic complex facility, and then I’m referring to the identification as to the balancing test that’s in the application that was read into the minutes. MR. STONE-I only was, only because I don’t like to trek through the woods, I was just put off by the fact that there is absolutely no indication of where any of this was on the property. All I saw was woods. MR. FRANK-They know that you went there for the height relief you granted for the dome, so I’m sure they assume that you knew where it was. MR. STONE-I did not. I was in Hawaii. MR. URRICO-I have a question as far as timetable. When will the hockey facility be built, as compared to the Miller complex? MRS. BITTER-I think it starts in the spring, but unfortunately I’m not firm on that. MR. URRICO-Okay. So, I mean, as far as what to grant you the relief on, is there going to be a driveway built to that area? MRS. BITTER-Right. I believe the training facility is the first item that’s going to be constructed. MR. URRICO-Okay. MR. STONE-Any other questions? Okay. My only comment was it’s a little premature because I can’t see the lot, but that’s a very minor point. Let me open the public hearing. Anybody wishing to speak on this subject? MR. STONE-Any correspondence? MR. MC NULTY-No correspondence. 55 (Queensbury ZBA Meeting 8/25/04) PUBLIC HEARING OPENED NO COMMENT PUBLIC HEARING CLOSED MR. STONE-Let’s talk about it. Let’s start with Joyce. No, I’m sorry. Let’s start with Roy. MR. URRICO-Yes. I have absolutely no problem with this application. I’m just curious about the timetable and hoping that everything comes together. I think it’s a good project for this location. I think this is a better means for the applicant to achieve this benefit. I see no undesirable change in the neighborhood, and the request does not seem to be substantial to me. It seems to be logical more than substantial. I don’t see any adverse physical or environmental effects, and if it’s self-created, it’s self-created, I think, to improve the entrance of the facility. So I’d be in favor of it. MR. STONE-Just a quick question. This is going to be, this is a totally separate piece of property now? MRS. BITTER-Yes. MR. STONE-They bought this corner? MRS. BITTER-Right. MR. STONE-Okay, and they’re totally responsible for it. MRS. BITTER-Right. MR. STONE-Okay. Jaime? MR. HAYES-Well, when I came on this Board, I sat next to Lew for the entire time, and he would generally leave me crumbs to say, nothing really to add, and I see Roy is starting to do that, in his thorough examination of the test. So I will just say that, in this particular case, I think it’s a good project. The Planning Board is going in a good direction to reduce the curb cuts. This is a natural traffic flow, and certainly any of the neighbors should be pleased. They should be happy. I mean, I think it’s a great idea. So I’m in favor. MR. STONE-Go ahead, Chuck. MR. MC NULTY-It’s good to have one that I can be in favor of tonight. MRS. BITTER-I appreciate that. MR. MC NULTY-This makes all the sense in the world, as far as I can see. I think it’s a good idea, and I’d definitely be in favor. MR. STONE-Jim? MR. UNDERWOOD-Yes, I, too, would be in favor of it. I think it makes more sense than having a separate entranceway with soccer moms and hockey moms fighting to get back out into traffic. MRS. BITTER-Soccer dads, too. MR. UNDERWOOD-Yes. MR. STONE-Okay. Chuck? 56 (Queensbury ZBA Meeting 8/25/04) MR. ABBATE-Yes. I’m in favor of it as well. Particularly in view of the limited amount of Staff comments. MR. STONE-Joyce? MRS. HUNT-I have to agree with the rest of the Board. It’s a two lane road. Sherman Avenue is a two lane road, and I don’t think they need anymore curb cuts. It’s hard enough to make a left or right turn onto there. MR. STONE-I think the Planning Board made a sound decision. Well, I think it’s good. I was being a little facetious when I couldn’t find it. I knew where the property was, but there’s certainly, from the plans, there’s absolutely no reason not to approve this. So I need a motion to approve. MOTION TO APPROVE AREA VARIANCE NO. 65-2004 HENRI LANGEVIN, Introduced by Roy Urrico who moved for its adoption, seconded by Paul Hayes: Sherman Avenue. The applicant proposes to access a lot from other than the lots frontage on Sherman Avenue for a proposed ice hockey training facility. In doing so, the applicant requests relief to access Lot Number 309.5-1-3.2 from the approved access drive from the Miller Athletic complex lot, 309.5-1-3.1, which has not yet been developed, even though Lot Number 309.5-1- 3.2 has more than the minimum road frontage on Sherman Avenue per 179-4-090A. In making this approval, I’d point to the balancing test, which shows that the benefit to the applicant can’t be achieved in another manner. This is the benefit that they’ve elected to choice, as a result of this is the better alternative. There won’t be an undesirable change in the neighborhood character, mainly because it’s limiting the number of curb cuts on Sherman Avenue, thereby improving that area somewhat from what it could be. The request is not substantial, considering what’s going in there and the benefits that will be achieved. The request will not have any adverse physical or environmental affects. As I said earlier, the difficulty is self- created, but it’s created to actually improve a difficulty. So I would say that it’s a good self- creation. So I move that we adopt this Area Variance. Duly adopted this 25 day of August, 2004, by the following vote: th AYES: Mr. McNulty, Mrs. Hunt, Mr. Abbate, Mr. Underwood, Mr. Urrico, Mr. Hayes, Mr. Stone NOES: NONE ABSENT: Mr. Bryant MR. STONE-One out of two. MRS. BITTER-Well, thank you very much. MR. STONE-Under the article that comes at the end of every one of our agendas, Any Further Business That May Come Before the Board, Mr. Salvador has requested five or six minutes. JOHN SALVADOR MR. SALVADOR-Thank you, Mr. Stone. Just a few comments with regard to tonight’s meeting. Mr. Stone dwelled on the problem of definitions in our Code. You should recall that when words lose their meaning, people lose their rights, and our Code has got all kinds of double meanings, and, you know, it’s kind of like cherry picking. When you need what you want, you go through it and you cherry pick it, and I’ve experienced this many, many times. Mr. Stone mentioned a property line setting back from a property line. I wish I could enjoy that privilege. 57 (Queensbury ZBA Meeting 8/25/04) I wish I could set back from my property line. I’m not allowed to. I’ve got setback from another line. Vagueness in the Code. MR. STONE-You never want to say anything when Mr. Salvador’s in the room. MR. SALVADOR-The D’Ella application. What happened to the good old days when you didn’t have standing before a Board until you mitigated your violation? That was the way we used to do it in the good old days. First you mitigate, and then you appear before a Board for a permit. What happened to those days? I appeared before the Town Board meeting last Monday night, and I spoke on two subjects. One was my concern for the fact that, as the Town Board elects to assign members from this Board to its super Planning Committee, I think they’re faced with a problem of incompatibility. I don’t think anyone on this Board, as they serve on this Board, has a, is in the position of compatibility to serve on a Planning Board. You are here to grant relief from an Ordinance. You shouldn’t be developing the foundation of that Ordinance. No way, and that’s a great concern I have. Now the Town Board deliberated a little bit about it. They said a few words. They nodded to my concern, but that’s apparently as far as it went, but you people should really take a good look at what the State has determined to be an incompatible assignment, and how it relates to your position on this Board and then serving on that Planning Committee. The other thing that happened on Monday night was the Town Board granted a septic variance for a project up on Cleverdale, and it dealt with the installation of a holding tank, and the variance didn’t deal with the holding tank. The variance dealt with the setback of the holding tank. The real issue is the use of the holding tank, and that fellow was driven into that situation because this Board decided to condition its permit. That gentleman was before your Board for Area Variances, and Area Variances only. He was reducing the living space. He certainly didn’t need to upgrade his septic system, and his system was not cited as being in violation, the two criteria you need to take a look at your septic system, yet you folks conditioned your approval on him having to upgrade his septic system. Something you’ve done for no one else in this Town. I can’t remember an Area Variance application being approved conditioned on that. A very, very dangerous precedent. As you were told tonight, you were given a decision, Supreme Court decision involving a case of ours, and its kind of an old hat. It goes way back to 1999, but the Judge finally made a decision. That involved my attempt to locate a 300 square foot hunting and fishing cabin on our property at Dunham’s Bay, and we had a series of hearings back and forth, tabling it all, arguing over the accuracy of a map and this sort of thing, but in the end analysis, this Board met and, in its motion to table Area Variance No. 25-1999, the Chairman of the Zoning Board concluded his resolution with, I would also ask that the Planning Staff forward a memo to Mr. Paul Naylor, Town Highway Superintendent, to ask him to lay out the centerline of the Dunham’s Bay Road, so that we can proceed with this application. That was a direct request from this Board. Four gentlemen approved that, Mr. McNulty, Mr. Stone, Mr. Stec, our Town Supervisor, and Mr. Thomas, the Chairman of the ZBA at that time, requesting the Highway Superintendent to do something to clarify an application. He refused to do it. He refused to do it and relied on a map that he said defined this, although that map did not have the centerline of the road on it. In any case, we took it to court, and the courts have determined the Board believed that there were other feasible alternatives to placing the camp two feet from the Dunham’s Bay Road. So, in the end analysis, the court has agreed with the Town that if I, in fact, located the dwelling in another place, I wouldn’t need the setback variances. So I have taken that, and I have obtained from the Town Clerk a certified map of the one we’re supposed to be using, the so called Steves map. That’s mentioned in the decision. That is the map we are to use, and so I sent a letter to Craig Brown early this month, and I attached to that letter a sketch, and I have copies of that for you here, and I’ve asked him, using a section of the Steves map, I have laid out the development zone using the setbacks as measured on that map and relocating my cabin to a place where you said it could be done, and I wouldn’t need the variances. I’ve done that, and I’ve sent that to Craig Brown. I haven’t heard from him yet, but I believe his position is going to be that the Steves map doesn’t show the New York State 9L right of way line, okay, and it doesn’t, and I’m not going to put it on the Steves map, but I think it’s incumbent upon the Town to get their map, the one the court is using as its foundation to get that map up to date, so that I can use that to see if I can meet the setbacks. The other issue is the shoreline. The shoreline, that was mapped on the Steves map, and Craig is taking a position that that’s not a very accurate 58 (Queensbury ZBA Meeting 8/25/04) measurement, well, get it accurate, that’s all I’m saying, but it’s the Steves map that has been determined by the courts to be determinative, and that’s the one I have to use. My map, the one I put on the table, was not considered to be accurate, and this is the map we’re going to use. So I’ve sent that to Craig. I’m expecting an answer from him. I don’t know how it’ll come out, what he’ll do, but in any case, I’ll give you copies of this. Okay. Thank you. MR. STONE-One thing I want to just say. 179-14-020, Authorization to Grant or Deny. Any variance to this chapter shall be granted by the Zoning Board of Appeals in accordance with the standards and procedures set forth in this article. In granting a variance, the Zoning Board of Appeals may impose conditions similar to those provided for site plan review usage to protect the best interests of the surrounding property, the neighborhood and the Town as a whole. MR. SALVADOR-That’s the Town Code? MR. STONE-Yes. MR. SALVADOR-That isn’t what State law says. MR. STONE-That’s the Town Code. That’s what we follow. MR. SALVADOR-Read the Powers, Duties, and Functions of the ZBA in Town law. MR. STONE-That’s the Town Code. MR. SALVADOR-And you will not find the term “conditions” used, neither in planning nor in zoning, conditions. MR. STONE-Okay. MR. SALVADOR-It’s not used. Okay. MR. STONE-As I say to many people, this is our bible. MR. SALVADOR-I know. I know. MR. STONE-Thank you. Meeting is adjourned. On motion meeting was adjourned. RESPECTFULLY SUBMITTED, Lewis Stone, Chairman 59