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2004-02-18 (Queensbury ZBA Meeting 2/18/04) QUEENSBURY ZONING BOARD OF APPEALS FIRST REGULAR MEETING FEBRUARY 18, 2004 7:00 P.M. MEMBERS PRESENT CHARLES MC NULTY, ACTING CHAIRMAN ROY URRICO JAMES UNDERWOOD CHARLES ABBATE JOYCE HUNT, ALTERNATE LEO RIGBY, ALTERNATE MEMBERS ABSENT LEWIS STONE PAUL HAYES ALLAN BRYANT CODE COMPLIANCE OFFICER-BRUCE FRANK STENOGRAPHER-SUSAN HEMINGWAY MR. MC NULTY-There’s some housekeeping to do. It doesn’t look like we’ve got a gigantic crowd. We’ll mention that the Wal-Mart items are going to be tabled up front, just in case anybody is here for that. I’d like to start with the agenda, just as it is, and see what we can do with the approval of minutes, since we’ve got so many of these minutes that have been hanging fire, pending action, and it looks to me like the July 16 and July 23 minutes we can’t handle thrd because we don’t have enough people here that were present at those meetings. However, the August 20, we had Roy, Chuck, Joyce, and me. So there’s four of us. So we could do that one. th MOTION TO APPROVE THE MEETING OF AUGUST 20, 2003, Introduced by Charles Abbate who moved for its adoption, seconded by Joyce Hunt: Duly adopted this 18 day of February, 2004, by the following vote: th AYES: Mr. Urrico, Mr. Abbate, Mrs. Hunt, Mr. McNulty NOES: NONE ABSTAINED: Mr. Rigby, Mr. Underwood ABSENT: Mr. Stone, Mr. Hayes, Mr. Bryant MR. MC NULTY-Okay. That one’s done. At the August 27, we had Mr. Urrico, Mr. Abbate, th Mr. Underwood, and myself. So we can do that one also. MOTION TO APPROVE THE MINUTES OF AUGUST 27, 2003, Introduced by James Underwood who moved for its adoption, seconded by Roy Urrico: Duly adopted this 18 day of February, 2004, by the following vote: th AYES: Mr. Urrico, Mr. Abbate, Mr. Underwood, Mr. McNulty NOES: NONE ABSTAINED: Mr. Rigby, Mrs. Hunt 1 (Queensbury ZBA Meeting 2/18/04) ABSENT: Mr. Stone, Mr. Hayes, Mr. Bryant MR. MC NULTY-Okay. Looking at November 19, we had Mr. Underwood, Mr. Abbate, Mr. th Urrico, Mrs. Hunt, and that’s it, because I was not here, but there’s still four. So we can do that one. MOTION TO APPROVE THE MINUTES OF THE MEETING DATED NOVEMBER 19, 2003, Introduced by Charles Abbate who moved for its adoption, seconded by Joyce Hunt: Duly adopted this 18 day of February, 2004, by the following vote: th AYES: Mr. Underwood, Mr. Urrico, Mr. Abbate, Mrs. Hunt NOES: NONE ABSTAINED: Mr. McNulty, Mr. Rigby ABSENT: Mr. Stone, Mr. Hayes, Mr. Bryant MR. MC NULTY-Okay, and December 17. We had Mr. Underwood, Mr. Urrico, Mr. Abbate, th Mrs. Hunt, and Mr. Rigby and myself. So we can do that one easily. MOTION TO APPROVE THE MINUTES OF DECEMBER 17, 2003, Introduced by Roy Urrico who moved for its adoption, seconded by Joyce Hunt: Duly adopted this 18 day of February, 2004, by the following vote: th AYES: Mr. Underwood, Mr. Abbate, Mr. Rigby, Mr. Urrico, Mrs. Hunt, Mr. McNulty NOES: NONE ABSENT: Mr. Stone, Mr. Hayes, Mr. Bryant MR. MC NULTY-Okay. Now we can say we’ve accomplished something already. Okay. It’s probably not necessary to go through the spiel about what our procedure is going to be, because I think everybody that’s here knows what we do. So we’ll skip that for tonight. OLD BUSINESS: AREA VARIANCE NO. 38-2003 SEQRA TYPE: TYPE I COORDINATED REVIEW WAL- MART STORES, INC. AGENT: PERRY L. BUTCHER & ASSOC., ARCH. OWNER: NATIONAL REALTY ZONING: HC-INT. LOCATION: 891 ROUTE 9 APPLICANT PROPOSES DEMOLITION OF THE FORMER AMES STORE AND A 95,217 SQ. FT. EXPANSION OF THE EXISTING WAL-MART. SEEKS RELIEF FROM THE PERMEABILITY AND MINIMUM PARKING REQUIREMENTS. CROSS REFERENCE: SPR 25-2003, SV 71-2003 WARREN COUNTY PLANNING 7/9/03 LOT SIZE: 11.29 ACRES; 6.46 ACRES TAX MAP NO. 296.17-1-36; 296.17-1-37 SECTION: 179-4-030, 179-4-040C SIGN VARIANCE NO. 71-2003 SEQRA TYPE: TYPE I COORDINATED REVIEW WAL- MART STORES, INC. AGENT: PERRY L. BUTCHER & ASSOC., ARCH. OWNER: NATIONAL REALTY ZONING: HC-INT. LOCATION: 891 ROUTE 9 APPLICANT PROPOSES AN OVERSIZED FREESTANDING SIGN AND NUMEROUS ADDITIONAL WALL SIGNS AND SEEKS RELIEF FROM THE REQUIREMENTS OF THE SIGN ORDINANCE. CROSS REFERENCE: SPR 25-2003, AV 38-2003 WARREN COUNTY PLANNING 7/9/03 LOT SIZE: 11.29 ACRES; 6.46 ACRES TAX MAP NO. 296.17-1-36; 296.17-1-37 SECTION: 140-6B(3) 2 (Queensbury ZBA Meeting 2/18/04) Next order of business is to handle the two applications that we had from Wal-Mart. We’re going to table those because of just incomplete action on the matters by the Planning Board. So, I’ll make a motion. MOTION TO TABLE AREA VARIANCE NO. 38-2003 & SIGN VARIANCE NO. 71-2003 WAL-MART STORES, INC., Introduced by Charles McNulty who moved for its adoption, seconded by Charles Abbate: For up to 60 days, pending completion of Planning Board action on their applications. Duly adopted this 18 day of February, 2004, by the following vote: th AYES: Mr. Underwood, Mr. Urrico, Mrs. Hunt, Mr. Rigby, Mr. Abbate, Mr. McNulty NOES: NONE ABSENT: Mr. Stone, Mr. Hayes, Mr. Bryant MOTION TO TABLE AREA VARIANCE NO. 38-2003 & SIGN VARIANCE NO. 71-2003 WAL-MART STORES, INC., Introduced by Charles McNulty who moved for its adoption, seconded by Charles Abbate: For up to 60 days, pending completion of Planning Board action on their applications. Duly adopted this 18 day of February, 2004, by the following vote: th AYES: Mr. Underwood, Mr. Urrico, Mrs. Hunt, Mr. Rigby, Mr. Abbate, Mr. McNulty NOES: NONE ABSENT: Mr. Stone, Mr. Hayes, Mr. Bryant MR. FRANK-That’ll be fine. I’m hoping it’ll be next month, and that’s what we were told, possibly next month. MR. MC NULTY-Okay. Then we’ll move on to the next item. NEW BUSINESS: AREA VARIANCE NO. 5-2004 SEQRA TYPE: II ERIC & LINDA LA FLEUR AGENT: JONATHAN C. LAPPER & FRANK DE NARDO OWNER: ERIC & LINDA LA FLEUR ZONING: WR-1A, CEA LOCATION: 332 CLEVERDALE ROAD APPLICANT PROPOSES DEMOLITION OF A 510 SQ. FT. DOCK/BOATHOUSE WITH SUNDECK AND CONSTRUCTION OF AN EXACT REPLICA IN THE SAME LOCATION. RELIEF REQUESTED FROM THE MINIMUM ADJACENT PROPERTY LINE SETBACK REQUIREMENTS. WARREN COUNTY PLANNING ADIRONDACK PARK AGENCY 2/11/2004 LOT SIZE: 0.19 ACRES TAX MAP NO. 226.12-1-75 SECTION: 179-5-050(A)(6) JON LAPPER, REPRESENTING APPLICANT, PRESENT MR. UNDERWOOD-Would you like your letter read into the record? MR. LAPPER-Please. MR. UNDERWOOD-Okay. This letter is dated January 15, 2004, to Lew Stone, Chairman, Town of Queensbury ZBA RE: The Eric & Linda LaFleur, 332 Cleverdale Road”, and it’s for their Area Variance as Chuck just discussed. “Dear Chairman Stone: On behalf of Eric & Linda LaFleur, I am hereby requesting an area variance, with regard to the applicants’ proposed 3 (Queensbury ZBA Meeting 2/18/04) renovation plan to their boathouse/dock. At this time, the applicants maintain a pre-existing, nonconforming 510 square foot boathouse/dock. Last winter, it sustained severe ice damage and has been rendered unsafe for users. In addition, the wood that makes up both the dock as well as the boathouse has deteriorated substantially. As a result, the structure is in desperate need of immediate repair. In order to renovate this structure, the applicants are proposing to demolish the existing structure and reconstruct an exact replica with the same dimensions. However, in order to proceed with this renovation, side setback relief is necessary. Please note that under the Town Code a 75% dock repair is permitted without a variance. Please place this matter on the Zoning Board’s February, 2004 agenda. In addition to the application we are also enclosing site plan, elevation drawings, as well as photographs of the structure. If you need anything further, please feel free to contact me or my associate Stefanie DiLallo Bitter. Very truly yours, Jonathan C. Lapper” STAFF INPUT Notes from Staff, Area Variance No. 5-2004, Eric & Linda LaFleur, Meeting Date: February 18, 2004 “Project Location: 332 Cleverdale Road Description of Proposed Project: Applicant proposes demolition of a 510 sq. ft. boathouse with a sundeck and construction of an exact replica with the same adjacent property line setbacks. Relief Required: The applicant is requesting 1.6 feet (south side) and 12 feet (north side) of relief from the 20-foot minimum adjacent property line setback requirement per §179-5-050(A6). Parcel History (construction/site plan/variance, etc.): BP 2003-885: 10/29/03 (CO not yet issued), 656 sq. ft. dock reconstruction. BP 2003-865: pending, repair boathouse from winter 2002-2003 ice damage. Staff comments: Being the submitted site plan is not a survey, how were the dock setbacks determined? What setback is the applicant claiming for the south side of the existing and proposed boathouse (is “18’ 6 feet” meant to mean 18.5 feet)? The applicant is requesting 1.6 feet of relief. Should this be 1.5 or 1.4 feet? Consideration might be given to require an “as built” survey to confirm the relief requested.” MR. UNDERWOOD-“Warren County Planning Board Project and Referral Form February 11, 2004 Project Name: LaFleur, Eric & Linda Owner: Eric & Linda LaFleur ID Number: QBY- AV-04-5 County Project#: Feb04-36 Current Zoning: WR-1A, CEA Community: Queensbury Project Description: Applicant proposes demolition of a 510 sq. ft. dock/boathouse with sundeck and construction of an exact replica in the same location. Relief requested from the minimum adjacent property line setback requirements. Site Location: 332 Cleverdale Road Tax Map Number(s): 226.12-1-75 Staff Notes: Area Variance: The applicant proposes to remove an existing 510 sq. ft. boathouse wit ha sundeck and to replace the structure in kind in the same location. The information submitted indicates the existing boathouse received ice damage and has been rendered un-safe. The boat house is proposed to be 8 ft. from the north property line and 18.6’ from the south property line where both require a 20 foot setback. Staff does not identify an impact on county resources based on the information submitted. Staff recommends no county impact. County Planning Board Recommendation: No County Impact” Signed Bennet F. Driscoll, Warren County Planning Board 2/17/04” MR. MC NULTY-Okay. Mr. Lapper? MR. LAPPER-Good evening. For the record, Jon Lapper. With me tonight is Frank DeNardo from Elite Docks who will hopefully build the new dock if this Board allows. After we submitted, and as the notes indicated, we submitted with a Sketch Plan, Bruce Frank asked us to provide surveys. So I’m going to hand you a survey. This doesn’t change anything that’s in 4 (Queensbury ZBA Meeting 2/18/04) the application. It’s just the actual, having the surveyors go out to show you exactly what’s there, which is just a little better than the rendering that we submitted. I guess, very simply, as the cover letter stated, we’re seeking to replace the dock that’s there with the identical dock, just that it’s in deteriorated condition, and we submitted the photos showing the damage. There’s one error on the application. It’s not in the public notice, but what you have on your Staff notes for relief requested of 1.6 feet and 12 feet, that’s actually the existing setback. So the relief requested is the opposite of that. That’s what’s right there now, 1.6 and 12. So we would be looking for 8 feet and 18.4. MR. ABBATE-Eight feet and 18.4? MR. LAPPER-Yes. MR. ABBATE-Okay, instead of the 18’6”? MR. UNDERWOOD-Instead of the 1.6. MR. LAPPER-Yes, instead of the 1.6. Because that’s just on the north side there’s only 1.6. It’s right there. When you look at the map, it looks like the dock is actually a couple of inches beyond the extension of property line, and that’s just because the ice has pushed it north, and that’ll get pushed back to the 1.6 where it should be. I want to just briefly quote two sections from the Zoning Code. Under Article 13, which is the Nonconforming Uses, Structures and Lots, the general provision is, subject to the provisions of this Article, a nonconforming structure or use or a structure containing a nonconforming use may be continued and maintained in reasonable repair, but may not be enlarged or extended as of the date this Chapter becomes law except as follows. So, again, it may be continued and maintained in reasonable repair, but may not be enlarged or extended, and we’re certainly not proposing that this be enlarged or extended because we just want to replace it exactly the same. There’s another, there’s a definition in the Code, dock repair. Normal maintenance or replacement of up to 75% of the total dock area, and then there’s dock replacement, replacement of a dock to an extent greater than 75%. What’s curious is that the general provision, under 179-13-010, on the nonconforming uses, says that it can be continued and maintained in reasonable repair. In this case, we don’t really have to get into that. I’m just pointing that out that there’s argument that if you’re just replacing it in kind that you don’t really need a variance, but Craig Brown has indicated that we had to get a variance, so it wasn’t really worth arguing, but all we’re trying to do here is continue it in reasonable repair, and it doesn’t use any of those terms, those defined terms of dock repair and dock replacement anywhere, for what that’s worth. In terms of just the magnitude of this variance, it doesn’t make sense to replace 75% of the dock, which is rotting. I’ll let Frank speak of that a little bit, but in terms of the impact on the neighborhood, this has always been there. It’ll just be a nicer dock than what’s there because it’ll be brand new, and that’s the extent of it. If you could just speak a little bit about why you can’t just do 75%. FRANK DE NARDO MRS. DE NARDO-Well, basically you’re looking at a dock that’s been hit numerous times over the years with ice that’s been put back into position again. This last winter that it went out, it got hit really good. Couldn’t get a boat in the slip. We spread the dock back out, just so they had the use of dock for the season. Shored up his boathouse. Meanwhile, his boathouse is in such disrepair you can literally walk through the ceiling of it, I mean, just from the rot and from being shifted and over the years of, you know, just going downhill if you just take 75% of that structure away, you’re still going to have 25% of rotten dock. So, they’re throwing good money after bad. I mean, it’s not worth it. I guess that it’s, to start with. MR. URRICO-How much of the dock, will you start from scratch? Will you remove the entire dock or will you use some of it to? 5 (Queensbury ZBA Meeting 2/18/04) MR. DE NARDO-No, the dock itself is just going to be resurfaced, went down four layers, and then resurfaced, straightened out. The upper structure, I mean, it’s just totally gone in there. MR. URRICO-Okay. So you’re not going to re-sink any piles or anything? MR. DE NARDO-No, there’s no pilings in it. It’s an old crib dock. So basically straightening it out, re-rotting it, and then all new upper structure from there up. MR. ABBATE-Counselor, I just have a comment here, and the question is not of integrity, but rather a fact. You’re stating for the record that this will not be an expansion of a nonconforming structure in any manner? MR. LAPPER-Absolutely not an expansion. MR. ABBATE-And then on the relief required you made a change. You mentioned the north side, you requested 12? MR. LAPPER-Yes. I’m just looking, the north side is where it’s only 1.6 feet. MR. ABBATE-Instead of 12? MR. LAPPER-Right. That was just a mistake. MR. ABBATE-1.6. MR. LAPPER-On the north side, yes. MR. ABBATE-And on the south side? MR. LAPPER-Eight. MR. ABBATE-Instead of 1.6? MR. LAPPER-Right. MR. RIGBY-There’s already been some construction that’s been done out there. The dock itself has been replaced, is that right? MR. DE NARDO-Yes. MR. RIGBY-And what percentage of the total dock is that that has already been replaced? MR. DE NARDO-The upper surface, just the upper surface structure. About four layers down. So it’s been resurfaced. The whole top dock has been resurfaced. We went down about 18 inches below the mean, and replaced the wood from there up, and everything below that, the depth of the dock right there is about nine feet. So we’re talking 18 inches under the water line we went down, with new wood, and then came up all new from there. MR. RIGBY-So the additional work that’s going to have to be done then, is, what, the top piece will be totally replaced? MR. DE NARDO-It’s the upper structure, anything you see that’s above the dock. Everything from this section here up, and all the way around. This was all pushed over, this whole front corner was down about seven or eight feet down. I don’t know how it stayed standing after the ice hit. We jacked it up. The old dock was literally spread apart so they could stick toad in there. When we got there it was only nine feet wide. The boat’s about eight, six. It wouldn’t even fit in there. We spread it back out to get use of his dock for the season, and jacked the 6 (Queensbury ZBA Meeting 2/18/04) boathouse up and shored that up. We put, I don’t know if you noticed, we put a lot of supports in there to hold it up in place, and we’ve locked up the stairs so nobody would walk up on top. MR. RIGBY-So the existing footprint of the dock the way it was is going to stay the same? Is that correct? MR. DE NARDO-Exactly, yes. MR. RIGBY-It’s not going to shift, it’s not going to be expanded in any way? MR. DE NARDO-No. There’ll be a little more integrity built in to what’s there right now. MR. RIGBY-And then the upper structure will be the same? MR. DE NARDO-The upper structure will be the same. It’s just the lattice work. MR. LAPPER-You’ll just not replace the lattice work. MR. DE NARDO-The lattice work won’t be replaced. It’ll be put back to Code, is basically what we’re doing. The height won’t change. We’re looking at, the railings will be three foot high. Right now they’re like 33 or 32. MR. LAPPER-That’s the Code, the three foot. MR. DE NARDO-So we’d have to bring it up to Code that way, but as far as the main structure, width, size, I mean, that’s all staying the same. They don’t want any change whatsoever, except get rid of the yellow. They don’t want the yellow. MR. MC NULTY-Okay. I’m a little puzzled now. You say that the dock portion has been repaired? MR. DE NARDO-Yes, it has. MR. MC NULTY-When was this survey made? The date on it says February 17. th MR. LAPPER-It was surveyed within, since we submitted, because this was ordered when the Planning Staff required it, or requested it. MR. MC NULTY-Okay. Well, to go back, then, to what you said, the survey shows the dock being over the property line extension. MR. DE NARDO-The extension, yes. MR. MC NULTY-Is that where it is and is that where it’s going to stay? MR. DE NARDO-That’s where it’s been. MR. LAPPER-I was told that that was because the ice had shifted it. MR. MC NULTY-Yes, but he’s already said that they’ve already done that part of the dock repair. MR. LAPPER-Is that true? MR. DE NARDO-Yes. MR. FRANK-Can I interject on something? I was under the understanding, through the Zoning Administrator, that the relief they’re seeking is for the boathouse, not for the dock. The 7 (Queensbury ZBA Meeting 2/18/04) building permit’s been issued. The dock’s been built, and I realize what Mr. Lapper had stated in the Code as far as replacement and repair. Again, I tried to contact the Zoning Administrator, but I’m almost 100% positive that we had discussed this, and the relief that they were seeking was for the boathouse itself, not for the dock. So that’s what I’m not really clear. MR. LAPPER-If that’s the case, I understand what you’re saying. Then that would go back, that’s why the setbacks would be greater than what we’re talking about here, because the boathouse is a lot smaller than the dock. MR. FRANK-So again, I’m not really sure how much relief you’re requesting. I mean, I can scale this, but I know you quoted a couple of figures, but. MR. LAPPER-No, then my figures would wrong, and we go back to what the application stated. Because you can clearly see on the new map, where the boathouse is. Then I misspoke and the application was correct. MR. MC NULTY-Okay. So we’re only talking about the boathouse portion, which is basically the sundeck and the supports for that. MR. DE NARDO-The sundeck itself. MR. RIGBY-Another general question, too. It’s my understanding that if it’s more than a 75% replacement of a dock, that a different type of variance is required. Is that correct? In other words, if it’s a 75% or less replacement of the dock, it’s deemed as a repair. If it’s more than 75%, it’s deemed a replacement? MR. LAPPER-If that’s how, that may be what the intent of the Code is. It’s not clear, but if that were the case, than anything less than 75% would be repair and wouldn’t need any variance. MR. RIGBY-Right. MR. LAPPER-And it’s only because replacing the whole thing requires a variance. MR. RIGBY-Now, is this, overall, when it’s all done, is it more than a 75%? MR. LAPPER-Yes. It’s 100%. MR. RIGBY-It’s a 100% replacement. MR. DE NARDO-The upper structure would be, but the lower structure wouldn’t be considered 100%. MR. LAPPER-But you did the lower structure without requiring a variance? MR. DE NARDO-Without a variance. MR. RIGBY-So it’s really a replacement, not a repair, when we’re talking about the entire structure. Correct? MR. LAPPER-Under those two definitions that I read, there’s a replacement definition and the repair definition, but at the same time, the nonconforming uses, nonconforming structures, continued and maintained in reasonable repair, and that section doesn’t talk about 75%. And that’s the general section that governs the Zoning Board. MR. ABBATE-Yes, but if you look at the description of the proposed, the applicant proposes demolition. That means it brings it down to zero. So anything would be more than 75%. If you were going to take a building and you’re going to demolish the building, then you’re down to zero, and if you’re down to zero, and want it replaced, you’re talking about 100%. 8 (Queensbury ZBA Meeting 2/18/04) MR. LAPPER-Well, if you were going to do 75%, I mean, the way this sometimes works with the grandfather is that you do individual supporting members one at a time, so you maintain the integrity of it for the grandfather. MR. ABBATE-Counselor, you’re good. You reinvent and you re-interpret everything. You’re good. MR. LAPPER-Let me give you an example, and this is just as an aside, but when the Rustler Steakhouse was replaced by Blockbuster video, there was a front setback issue, and there was an overhang, and the contractor had to actually maintain what was inside of there for that setback, because if you took it down, you’d lose the grandfather, and that, so, I mean, there is a way, it doesn’t make sense, there’s a practicality where you can replace 75%, make sure you keep 25% there, and use the old members while you’re constructing. MR. ABBATE-If you demolish something, you have zero. Correct? MR. LAPPER-Yes, unless you get relief first from the Board. If you demolish it. MR. ABBATE-So your proposal to demolish the 510 square foot boathouse is not accurate, then? MR. LAPPER-No. I mean, we’re here saying let’s not mess around with 75%. We’re asking you for relief. It’ll look the same as it looks now. MR. ABBATE-Well, that should have been in there. Let’s not mess around with 75%. It would have been clearer. MR. LAPPER-Right. I thought my cover letter said that. MR. ABBATE-Okay. All right. MR. FRANK-And just to go on the record, I just got off the phone with the Zoning Administrator. What I stated earlier is correct. You only need relief for the boathouse, not for the dock, and if you look at the Chapter on Destruction, you’re allowed to replace that whole dock, not talking about the boathouse, because according to the Zoning Administrator the boathouse was not destroyed, and you’re not appealing that determination that he made. MR. LAPPER-No, we’re not. MR. FRANK-So that’s why they’re seeking relief for the boathouse to be torn down and rebuilt, and any new construction needs to meet the current setbacks. The dock was not subject to the current zoning regulations because it was destroyed, and he agreed to that. MR. MC NULTY-Okay. So the description on the Staff notes page really is misleading, because it refers to boathouse, sundeck, and there’s other places where it says some of the material says dock/boathouse, but the actual Area Variance page talks about the applicant’s requesting an Area Variance so they can repair the nonconforming, pre-existing sundeck that currently exists, and it talks just about the sundeck. So that would support the point that Mr. Frank has just made. Any other questions? Then I’ll open the public hearing for this. Is there anybody here that wishes to speak in favor of this application? Anybody wishing to speak opposed to it? Is there any correspondence? PUBLIC HEARING OPENED MR. UNDERWOOD-The only correspondence is from the Lake George Park Commission, you know, granting them a permit, a standard activity permit for work on the structure supporting the existing wharfs as proposed in your application. “This is a standard activity permit issued based on a riparian owner’s written request for the repair or replacement of wharf structures. 9 (Queensbury ZBA Meeting 2/18/04) This permit was issued in accordance with the applicable provisions of the Park Commissions rules and regulations at 6NYCRR, and that’s Section 645 and 646 in the Environmental Conservation Law, under a special delegation agreement with the Department of Environmental Conservation who normally issues these approvals. This permit is valid only for repair or replacement of legally existing wharfs and their supporting structures with no changes in size, shape or location. Please review the general and special conditions included on their permit. These are intended to minimize any environmental disturbance associated with the authorized activity. Please note that it is the responsibility of the permitee and the permitee’s agent to comply with all permit conditions. Further the permit is valid only for the activity expressly authorized. Work beyond the scope of the permit shall be considered as work without a permit. The notice enclosed with the permit must be displayed in a conspicuous place near the project site during the entire period of construction and must be suitably protected from the elements. Any failure to comply with the terms of the permit may be treated as a violation of the Environmental Conservation Law. Questions regarding this permit should be directed to the undersigned, Molly Gallagher, Deputy Permit Administrator” MR. MC NULTY-And that’s it? MR. UNDERWOOD-Yes. MR. MC NULTY-Okay. Then I will close the public hearing. PUBLIC HEARING CLOSED MR. MC NULTY-And I guess it’s time to move on to polling the Board, unless anybody has any other general questions. Well, hearing none, let’s talk about it and see where we’re at. Chuck, can we start with you? MR. ABBATE-Sure. I’d be more than happy to. The applicant basically has stated that there’s not going to be an expansion of a nonconforming structure. Counsel has pretty well, in my opinion, spelled out what’s meant by the demolition versus, etc., etc. and we discussed the fact about the piers and what have you. What I’ve heard this evening, Mr. Chairman, I don’t believe that there’s really going to be any adverse effect if we were to approve this application. Unless I hear something else, Mr. Chairman, I would be in support of the Area Variance. MR. MC NULTY-Okay. Thank you. Let’s see, Leo, I guess you’re next. MR. RIGBY-Yes. Given that the structure is basically going to be the same structure that it was before, I’m also in favor of it as well. I see no negative side to approving it. MR. MC NULTY-Okay. Roy? MR. URRICO-Yes. I’m going to basically echo what my fellow Board members have stated. Being that this is a replacement and a replica of a previous existing boathouse, it’s not an expansion, I don’t think there will be an undesirable change in the character of the neighborhood. I think the benefit sought by the applicant probably could not be achieved by any other method. So I think that’s okay. The Area Variance is substantial, but as noted earlier, this is no more or less than what previously existed. Under a perfect set of circumstances we would start from scratch and move it over a little bit somewhere center, but I understand that’s not what we’re dealing with right now. So I don’t see it having an adverse environmental effect on the area as well, and the difficulty is probably created by nature. So I don’t see there being a problem. I’d be in favor of it. MR. MC NULTY-Okay. Thanks. Joyce? MRS. HUNT-Yes. I agree. It seems to me that there is no other alternative, really. Replacing what was there before will make everything (lost words) and I would be in favor of it. 10 (Queensbury ZBA Meeting 2/18/04) MR. MC NULTY-Okay. Jim? MR. UNDERWOOD-Yes, I, too, would be in favor of it. I think it’s a reflection of the ice damage that was received last spring when it really was moving out there, and I think that, you know, given the fact that the dock’s already been repaired, it’s natural to want to repair the rest of it also, and it’s within the realm of reality. So I’d vote for it. MR. MC NULTY-Okay. I can basically agree. I think it’s an in-kind replacement. We’ve got the survey in place to show what should happen. So we’ll assume that when it is rebuilt, there shouldn’t be any surprises in so far as where the new structure will be located. So on that basis, I guess we can call for a motion in favor of this, if somebody would like to tackle it. MR. ABBATE-Okay. I’ll do it. Before I do that, Counselor, I just want to clear up one thing. Now, you’re requesting, you’re going back to the original 1.6 feet on the south side? MR. LAPPER-Yes. MR. ABBATE-And you’re going back to the 12 feet on the north side? MR. LAPPER-The application was right. I was wrong. MR. ABBATE-Okay. That’s no problem. MR. MC NULTY-But, Chuck, when you start, too, if you’re going to try to use that new guideline at all, go cautiously, because there’s pieces in that, that’s an example that happens to use this application as the example, but there are pieces in there that aren’t going to be needed, like reference to SEQRA. MR. FRANK-You might not want to use that. I think he really wanted you just to look at that and see what you thought about using it and discuss it. MR. MC NULTY-That would be my reaction. It might be better to follow our old format for now. MR. ABBATE-Sure. No problem. I’d be more than happy to do it. MOTION TO APPROVE AREA VARIANCE NO. 5-2004 ERIC & LINDA LA FLEUR, Introduced by Charles Abbate who moved for its adoption, seconded by Joyce Hunt: 332 Cleverdale Road. The applicant proposes the demolition of a 510 square foot boathouse with a sundeck and construction of an exact replica with the same adjacent property line setbacks. Relief requested is that the 1.6 feet, south side, and 12 feet north side, of relief, from the 20-foot minimum adjacent property line setback requirements per Section 179-5-050(A6). Benefit to the applicant, the benefit to the applicant is not only achievable, but is also feasible as well. It’s apparent, based on the documentation and testimony submitted, that there has been substantial damage as a result of natural forces, and the applicant is merely attempting to restore it to its original position, if you will. Feasible alternatives, well, there basically are none, other than to do what the applicant is requesting. Is this relief considered possibly substantial to the Ordinance? Not in my opinion, Mr. Chairman. I believe that the relief requested is probably bordering on nominal. Any effects on the neighborhood? I don’t believe, there does not appear, based on the documents submitted and based upon the testimony this evening, that there will be any adverse effect or impact on the physical or environmental conditions of the neighborhood, particularly since Counsel has stated on the record that there will be no expansion of this nonconforming structure in any manner. Additionally, there does not appear to be any type of detriment to health, safety, general welfare of the neighborhood. Is this difficulty self-created? Based on the information, again, submitted, the documentation submitted to the Board, and the verbal testimony this evening Mr. Chairman and Board members, I do not believe that the alleged difficulty is self-created, and on balance, Mr. 11 (Queensbury ZBA Meeting 2/18/04) Chairman and fellow Board members, I move that we approve Area Variance No. 5-2004. I’d like to make an amendment. This amendment relates to the relief required. The applicant now has modified his relief required and is now requesting 1.6 feet on the south side and 14 and a quarter feet on the north side. Duly adopted this 18 day of February, 2004, by the following vote: th MR. MC NULTY-Has anybody got any changes, suggestions? Everybody understand what’s been proposed? MR. FRANK-I’m just curious, what was the amount of relief that you’re granting? The amount of relief, what was it stated? MR. ABBATE-Yes. I’ll make it quite clear again. The amount of relief requested by the applicant is 1.6 feet, south side, and 12 feet north side, of relief, from the 20 foot minimum adjacent property line setback requirements per Section 179-5-050(A)6. Correct, Counsel? MR. LAPPER-Yes. MR. ABBATE-Thank you. MR. FRANK-And since you’re willing to approve this application, I don’t want to have the applicant have a problem with it. I’m not really sure if I agree with the amount of relief that’s quoted. It isn’t scaled to the way you’re stating. MR. LAPPER-What do you think it is? MR. FRANK-Well, okay, what line are you? MR. LAPPER-We’re looking at the dotted lines on the map. MR. FRANK-So on the north side, are you setting it back from 90 degree to the shore or the property line extension? MR. LAPPER-It should be the property line extension. MR. FRANK-And that scales to about five and three quarter feet to me. MR. ABBATE-On the south side? MR. FRANK-On the north side. MR. ABBATE-Rather than the 12? MR. FRANK-What they’re proposing. It looks like that the current, or the proposed setback is going to be 5. three quarter feet to the property line extension on the north side. The closest portion of the dotted line, which is the boathouse. MR. URRICO-We’re talking about 14 and a half feet of relief? MR. FRANK-I think it’s closer to that. I mean, if you want to make a stipulation as this survey depicts. I mean, when I spoke with Stefanie on the phone, she told me that the setbacks were on the map. That’s why I, I just don’t want to screw you up. MR. LAPPER-I understand. So instead of 12 feet, you think it should really be 14 and a half feet? 12 (Queensbury ZBA Meeting 2/18/04) MR. FRANK-And the reason I’m doing this is because she said would an as built survey be required, and I told her, I don’t think so, because now you’re providing a survey. It’s easy for me to check because the dock has been clearly located. It’s real easy to check how far the boathouse extends toward the side of the dock. I don’t want to have to have the applicant have the Zoning Administrator say we need an as built survey which he could very well do, without the Board’s saying one way or another, for any building permit he could say that. So I want to make sure you have the correct relief granted to you. MR. ABBATE-So you’re suggesting it’s 14 and a half feet on the north side? MR. FRANK-Closer to 14 and a quarter. MR. ABBATE-Fourteen and a quarter? MR. FRANK-That’s what I believe. MR. LAPPER-I would say Bruce is just trying to be careful. So we only want to build exactly what’s there. It’s a question of making sure the resolution’s right so we don’t have to come back. MR. RIGBY-Well, I thought we had all agreed that the amount of relief would be exactly what it was prior to the demolition. MR. LAPPER-Yes. It’s a question of what it is prior, I guess, what the existing is. MR. RIGBY-That’s exactly what it is. I mean, it’s no more relief than it was prior to the incident. MR. LAPPER-Right. It’s not going to 14’ 5” if it’s 12, now, but it’s just saying whatever it is now, it has to stay the same. MR. URRICO-So we just have to agree on what that relief is. MR. RIGBY-Yes. MR. FRANK-Or you can just say as the survey provided depicts. I mean, this is the legal submittal. MR. URRICO-The maximum of 14 and a half feet? If we grant that relief of 14 and a half feet, and it’s less, we’re still okay. MR. MC NULTY-Yes, if they use less relief, it’s not a problem. MR. FRANK-That’s correct. MR. MC NULTY-It might be safer, you know, if everybody’s in agreement, to go with what Bruce has scaled. MR. FRANK-Again, I’m going to be the one to check this in the field, and the only way I’m going to check it is, I’m telling you right now, is I’m going to measure from the north side of the dock to the boathouse. MR. LAPPER-Bruce, did you get this relief reduced on the south side, correspondingly? Did you scale that out? MR. FRANK-Well, because the way the boathouse is going to be, both lines are just about one point close to the shore where the closest portion of the boathouse is going to be on the south side. I believe it’s around 19 feet. So I believe what you’re requesting is accurate. It’s just the north side that I have a concern about. 13 (Queensbury ZBA Meeting 2/18/04) MR. LAPPER-Okay. MR. LAPPER-We will certainly state on the record that we’re not going to make it any less nonconforming. It’s a question of what exists. So, he scaled it out. That’s probably the smartest way to go. MR. ABBATE-Yes, but we have to hear it from you. MR. LAPPER-Yes, 14.5, but no more than what it is now. MR. ABBATE-You’re requesting 14.5. Do you want me to do an amendment, Mr. Chairman? MR. MC NULTY-Why don’t you. MR. ABBATE-Sure. Okay. Mr. Chairman, I’d like to make an amendment, based upon conversation. This amendment relates to the relief required. The applicant now has modified his relief required and is now requesting 1.6 feet on the south side and 14 and a quarter feet on the north side. If this is acceptable, then I move that Area Variance 5-2004 be approved. MR. MC NULTY-Do we have a second? MRS. HUNT-I’ll second. AYES: Mr. Underwood, Mr. Urrico, Mr. Rigby, Mrs. Hunt, Mr. Abbate, Mr. McNulty NOES: NONE ABSENT: Mr. Stone, Mr. Hayes, Mr. Bryant MR. LAPPER-Thank you. Bruce, thank you. MR. FRANK-You’re welcome. AREA VARIANCE NO. 8-2004 SEQRA TYPE: II RICHARD & DEBRA SELKOW AGENT: JONATHAN C. LAPPER, STEFANIE DI LALLO BITTER OWNER: RICHARD & DEBRA SELKOW ZONING: WR-1A, CEA LOCATION: 160 LAKE PARKWAY, ASSEMBLY POINT APPLICANT HAS CONSTRUCTED A 9 FT. BY 16 FT. SUN ARBOR ON TOP OF THE APPROVED BOATHOUSE/SUNDECK (HEIGHT AT 15 FT. 11 IN.) AND A 3 FT. STAIRS LANDING TO THE EXISTING DOCK. RELIEF REQUESTED FROM THE MINIMUM ADJACENT PROPERTY LINE SETBACK REQUIREMENT, MAXIMUM DOCK HEIGHT REQUIREMENT, MAXIMUM SURFACE AREA REQUIREMENT, AND FROM THE CONTINUATION REQUIREMENTS. CROSS REFERENCE: SPR 11-2003, AV 10-2003, BP 2003-127 ADIRONDACK PARK AGENCY WARREN COUNTY PLANNING 2/11/2004 LOT SIZE: 0.37 ACRES TAX MAP NO. 226.15-1-5 SECTION: 179-5-050(A5, 6, 10) 179-13- 020E JON LAPPER, REPRESENTING APPLICANT, PRESENT MR. UNDERWOOD-There’s a letter that I’ll read into the file, and it’s dated January 15, 2004, to Lew Stone. “Dear Chairman Stone: On behalf of Richard & Debra Selkow, I am hereby requesting a modification to area variance number 10-2003, which was granted for the applicants’ proposed renovation plan to their boathouse/dock. At the time that the previous variance application was being presented, the applicant’s agent believed that it was feasible to construct the dock, boathouse, and sun arbor with-in the fourteen feet height restriction. However, after construction and measurement by code enforcement is appears that the small sun arbor maintains a height of 15’ 11 inches. The arbor was reconstructed by the applicant to maintain the parcel’s historical sand Victorian design, as well as to provide some necessary 14 (Queensbury ZBA Meeting 2/18/04) shade for the family. After meeting with the Planning staff, prior to submission, the applicant’s agent believed that the relief was not required for the 3 x 3 stairs that were placed into the lake. However, it is now the position of the Zoning Administrator that relief is required and therefore it is being requested. Please place this matter on the Zoning Board’s February, 2004 agenda. In addition to the application we are also enclosing site plans, elevation drawings, as well as photographs of the structure. If you need anything further, please feel free to contact me or my associate Stefanie DiLallo Bitter. Very truly yours, Jonathan C. Lapper” STAFF INPUT Notes from Staff, Area Variance No. 8-2004, Richard & Debra Selkow, Meeting Date: February 18, 2004 “Project Location: 160 Lake Parkway, Assembly Point Description of Proposed Project: Applicant has constructed a 9’ x 16’ sun arbor on top of the approved boathouse/sundeck (height at 15 feet 11 inches) and a 3’ x 3’ stairs landing addition to the existing dock. Relief Required: 1) 9 sq. ft. of relief from the maximum surface area requirements for docks (926 sq. ft. pre-existing nonconforming dock prior to stairs landing addition), per §179-5-050 (A5). 2) 15 feet of relief from the 20-foot minimum adjacent property line setback requirement (for the stairs landing addition), per §179-5-050 (A6). 3) 1 foot 11 inches of relief from the 14-foot maximum height requirement (for the sun arbor), per §179-5-050 (A10). Parcel History (construction/site plan/variance, etc.): BP 2003-127: 04/10/03, 926 sq. ft. boathouse/sundeck. SP 11-2003: 02/25/03, replacement of an existing two-story boat cover/sundeck in the same location and configuration, but with a reduction in height. AV 10-2003: 02/26/03, 12 feet of relief from the 20-foot minimum adjacent property line setback requirement for the replacement of the existing two-story boat cover/sundeck in the same location and configuration (relief also includes that for the sun arbor only at a compliant height). AV 10-2003: 02/19/03, tabled until 02/26/03 because of no representation by the applicant’s agent (public hearing left open). BP 98-437: 07/17/98, septic alteration. Staff comments: On October 15, 2003, an inspection of Site Plan 11-2003 and AV 10-2003 revealed the boathouse/sundeck “as built” was greater in height than the 14-foot maximum height required by code (also a violation of Condition #1 of SP 11-2003), resulting in “Relief Required #3”. The investigation also revealed a 3’ x 3’ stairs landing leading to the lake bottom. Even though the landing is at a lower elevation than the existing dock, the Zoning Administrator determined the landing must be included in the total square footage of the dock resulting in “Relief Required #1”. The landing also needs additional relief from the minimum adjacent property line setback requirement (Relief Required #2). It should be noted the sun arbor would have needed relief from the minimum adjacent property line setback requirement. However, the applicant is requesting relief for the stairs landing setback, which encroaches on the setback more than the sun arbor. Consideration might be given to require an “as built” survey to confirm the relief requested.” MR. UNDERWOOD-“Warren County Planning Board Project Review and Referral Form February 11, 2004 Project Name: Selkow, Richard & Debra Owner: Richard & Debra Selkow ID Number: QBY-AV-04-8 County Project#: Feb04-38 Current Zoning: WR-1A, CEA Community: Queensbury Project Description: Applicant has constructed a 9 ft. by 16 ft. sun arbor on top of the approved boathouse/sundeck (height at 15 ft. 11 in.) and a 3 ft. by 3 ft. stairs 15 (Queensbury ZBA Meeting 2/18/04) landing addition to the existing dock. Relief requested from the minimum adjacent property line setback requirement, maximum dock height requirement, maximum surface area requirement, and from the continuation requirements. Site Location: 160 Lake Parkway, Assembly Point Tax Map Number(s): 226.15-1-5 Staff Notes: Area Variance: The applicant requests a modification to an approved area variance for the construction of a sundeck with an arbor. The information submitted indicates the applicants intended to construct a sundeck with an arbor and maintain the 14 ft. height limitation. Upon construction, the arbor measure 15.11 ft. in height where 14 ft. is required. In addition, the applicant indicates the square footage of the dock is 935 sq. ft. where 700 sq. ft. is the minimum allowed. The applicant has also indicated that they have put in stairs from the dock to the water where it is 5 ft. from the property line where 20 ft. is required. Staff does not identify an impact on County resource based on the information submitted. Staff recommends no county impact. County Planning Board Recommendation: No County Impact” Signed by Bennet F. Driscoll Warren County Planning Board 2/17/04. MR. MC NULTY-Okay. Mr. Lapper. MR. LAPPER-For the record, Jon Lapper. The property owner, Rick Selkow, is with me. I guess I want to start off talking about the stairs into the lake. These are just to access the lake for swimming, and the applicant had believed, after the initial meeting with Staff, that this was not necessary to be included in the relief. I want to just, I don’t have copies, but I want to just pass this along. I’m showing you a photograph of the old stairs that came off the dock which actually extended out closer to the property line. That’s what was originally there, and this is what it was replaced with the ones that are parallel to the dock, so that they’re a little farther from the property line. Do you see where the stairs are on the drawing? I guess on this issue is comes down to whether or not that is considered, it’s mostly in the water and whether or not that’s considered part of the dock and I guess the Zoning Administrator has now determined that it is, and that should have been part of the variance request. Rick, I’m assuming that because of the depth of the water there and the fact that you don’t have a beach, that that’s just to get in and out, if you’re swimming, that’s needed because of the depth of the water. RICK SELKOW MR. SELKOW-Yes. The water is, I guess, about four and a half, five feet deep, maybe, especially for parents, they can’t just walk off the dock. You need something to get into the dock. MR. LAPPER-So that was historically there. It probably should have been requested last time, or at least that’s what’s been determined now, but it’s not really visible because it’s mostly in the water. So that’s the one issue about the stairs. In terms of the arbor, the sun arbor, I didn’t represent Mr. Selkow last time, but I have reviewed the minutes of the meetings and from what I can determine, the decision was that the request to replace it in kind, which would have been 17 feet, was denied, and the instructions were to go, if you’re going to build the sun arbor, it has to be no higher than 14 feet, which is the requirement under the Code. What I want to show you here, this is just a picture of the historical sundeck when they bought the property, which you can even tell that it was taller than what’s there, the 17 feet, a 1989 photo which just shows that it has been there for a long time since that, and then the recent photo of the more modest sun arbor, which is at 15 feet 11 inches. So it is one foot one inch shorter than what it replaced, but it is one foot eleven inches higher than what the Code requires. MR. URRICO-How’s that again? MR. LAPPER-It’s one foot eleven inches higher than what is required. It’s 15’11” versus 14, but it is one foot one inch shorter than the 17 feet that was there to begin with. Obviously, you can have a deck without an arbor. It’s there for protection from the sun. It’s a nice thing to have. The reason that it’s there is because that was historically what was there, and they were trying to just maintain the character that had been there for probably most of the last century. Rick has 16 (Queensbury ZBA Meeting 2/18/04) spoken with all of this neighbors who are supportive of his application, and I know that there is at least one letter that I received a copy of from one of the neighbors supporting it. MR. MC NULTY-Okay. Is that it? Questions? MR. ABBATE-I do. Counsel, I want to start off by stating that, as far as I’m concerned, the burden of proof of accuracy in all the records submitted in compliance with variances that are approved fall squarely on the shoulders of the applicant. I notice that this history goes back to February 26, 2003, and that Area Variance which was approved made it quite clear that any modification would only be at the compliant height, and on February 19, 2003, this was tabled because of no representation by the applicant. This only came to light because of an inspection on October 15, 2003, which is quite a distance in time from February 26, and as far as I’m th concerned, the 12 feet of relief will remain until we receive an as built survey before we act on this thing, it’s my opinion. Thank you, Mr. Chairman. MR. MC NULTY-Anybody else with questions or comments? MR. URRICO-My question is, the stairs, were they part of the original application? MR. LAPPER-My understanding is that, after the meeting, the pre-application meeting at Staff, they applicant didn’t believe that they needed to be, that that was going to be considered part of the dock structure. MR. URRICO-So they weren’t on the plans? MR. LAPPER-I think they weren’t on the plans, that that wasn’t even part of what they applied for, they thought that that didn’t come within the requirement of the variance because of stairs being separate from the dock. MR. MC NULTY-Any other questions? Well, if not, let’s open the public hearing. Anybody here wish to speak in favor of this application? Anybody wishing to speak opposed? Do we have any correspondence? PUBLIC HEARING OPENED MR. UNDERWOOD-Yes. We have two pieces of correspondence. One was a call from a Mr. Margolis, who called at 4:25 on 2/17/04. He has no objection to the project of the Dock and Design Consulting as long as all criteria is met. The same for the Richard Selkow variance, and I’m not sure who Mr. Margolis is. MR. LAPPER-He’s a property owner about three houses down. MR. UNDERWOOD-Yes. The second one is a letter that was received. It says, “Dear Board Members: As adjacent neighbors, directly to the south of the Selkow’s, we have absolutely no objections to any of the variances that they are seeking. The fact of the matter is that the Selkow’s have done an outstanding job having the dock rebuilt. The reconstructed sun arbor, that seems to have caused the most concern, has no obstruction issues with us at all. In fact, this new arbor is a great improvement over the prior one. The care and attention that went into the way this new dock and arbor was constructed, was very considerate of not only us, their neighbors, but also the visual impact that it would have from all angles viewing this dock complex. We would strongly recommend the approval of all the variances being requested by the Selkow’s. Sincerely, Thomas and Susanne Irish” MR. MC NULTY-Is that it? Okay. Then I’ll close the public hearing. PUBLIC HEARING CLOSED 17 (Queensbury ZBA Meeting 2/18/04) MR. URRICO-I have a couple of questions. I’m just curious. I don’t know who I’m asking this of, but I don’t understand the mean water mark. Is it something that’s variable? Does it change from year to year, depending on, or is that an established line that’s consistent? MR. FRANK-That’s correct. It’s a set elevation. The lake level changes. So that’s why, when a contractor goes to apply for a building permit, he goes to the Lake George Park Commission’s web site and they have instructions on how to figure out where that mark is relative to today’s lake level. I know Mr. DeNardo did so, and I went up there on four different occasions. I finally got an occasion when it was extremely calm, and I was very close to what Mr. DeNardo had found within a couple of inches, or I can’t remember exactly what it was. His mark had faded away. So we did the same interpretation on two different occasions. I mean, there’s no exact science to it, unless you have a level run done by a surveyor to establish what is the actual height of the dock, relative to that mark. We’re establishing where that mark is, and most people don’t want to have to pay to have a level run done by a surveyor to find, you know, that elevation. This is something that’s accepted, and I believe Mr. DeNardo, if you were to ask him, would tell you the same thing, that this is what all the contractors do when they go to build boathouses or docks, whatever, they establish that mark, according to the day they call up. There’s a lake level gauge somewhere on the lake. I think it’s up near Roger’s Rock, and the Park Commission checks it daily, and you can call up and you can find out what that is and they have a formula figuring out how you would take that information to determine where the mean low water mark or mean high water mark is on that particular day. MR. URRICO-So one of the variances which deals with the height is determined by the mean water mark. Is it not? MR. FRANK-The 14 feet max is from that mark. That’s correct. MR. URRICO-The mean high water mark? MR. FRANK-That’s correct. MR. URRICO-Which can change, or not? MR. FRANK-The mark doesn’t change. Only the lake level will change. MR. URRICO-The lake level will change, but determining whether it’s. MR. FRANK-The mean low and mean high are set elevations. MR. URRICO-Okay. I think I understand. I’m just trying to figure out how, if there’s a 14 feet, how we determine that, based on what the mark is thought to be at that time? MR. FRANK-Well, you could go out there on any day, and you’re going to be able to come up with the same mark, regardless of the lake level. MR. URRICO-Okay. MR. FRANK-As the lake level fluctuates, you know, you’ll be able to, in theory, come up with that same elevation on any other day. MR. LAPPER-Do you then find out how high the lake is over mean high? MR. FRANK-Well, that’s what you need. MR. LAPPER-So you’re measuring the water? MR. FRANK-You’re measuring from the lake level on that day, that’s correct. Either up or down for the mean high or mean low. 18 (Queensbury ZBA Meeting 2/18/04) MR. LAPPER-So you need it to be pretty calm at the time that you’re? MR. FRANK-If it isn’t, you’re not going to get an accurate reading. That’s why I went there four times before I got an accurate reading, and I could be off by a little. I don’t know. I’m not a surveyor. It would only take a level run by a surveyor to set elevation on that dock, if you wanted to measure to the mean high or the mean low. MR. URRICO-So the relief is based on the applicant’s figures? MR. LAPPER-No, that’s Bruce’s. MR. FRANK-Well, that’s what I came up with. I think they concurred with it. How they concurred, I don’t know. MR. LAPPER-We didn’t dispute that if he found it was 15’ 11” that he’s probably right. MR. FRANK-And again, the contractor that built it, he determined it to be, I think he was within two or three inches of what I determined. His mark was still clearly visible, and he told me where to find it, and I did find it. MR. RIGBY-Just a general question. How did it happen that the height of the arbor exceeded what was originally planned? MR. LAPPER-From what I can tell, the way the variance was granted was that the arbor could remain, but the arbor had to be within 14 feet, and I think what they did was that they did a new design, as you can see from the pictures, that was less elaborate, and the top was lower, but they apparently did it so that it’s still, that a normal size person could stand under it so you wouldn’t have to duck to get in. So they made it as low as they could, but still have it functional. Does that sound right? MR. SELKOW-Pretty much where it was. I didn’t know about the heights or anything. I just wanted to keep the same dock that was there before, pretty much. MR. LAPPER-But the 15 foot 11 now is that as low as it can be and have people? MR. SELKOW-I just can barely get into it and I’m only 5’5”. A six foot person would have a problem. MR. URRICO-So the design was changed from the one that was submitted? MR. LAPPER-From the one that was pre-existing. What was submitted last time was to replace it in kind, which would have been the 17 feet, and what was constructed was the much simpler, what I submitted in that photograph of the flat roof, and it’s lower. So it is in violation, but it’s less than what was there to begin with. MR. RIGBY-I don’t understand that. I thought that, you’re asking for a variance. Did you get approval originally for replacement of the arbor at the original 17 feet? MR. LAPPER-No. The 17 feet was rejected by the Zoning Board last year. MR. RIGBY-Okay. MR. LAPPER-But what was permitted was that the arbor could be there as long as the arbor didn’t exceed 14 feet. MR. RIGBY-Okay, and it does exceed 14 feet. 19 (Queensbury ZBA Meeting 2/18/04) MR. LAPPER-It exceeds it by less than what was there, you know, but it exceeds it by a foot, according to Bruce. MR. MC NULTY-Yes. As I remember, when we reviewed this last year, we struggled with the arbor quite a bit, and finally just said, if there’s some way that they can do it and stay within the right height, we’d allow it. MR. LAPPER-I guess it’s just that when you check out what mean high is, to be at 14 feet, you’d have an arbor that you probably wouldn’t want, because if Rick is at about five and a half feet tall, it would be, you know, I guess around less than four feet. MR. ABBATE-Yes, but there are a total of four issues, well, three issues in addition to that. The landing must be included in the square footage, which it was not, and you have to have relief from the minimum of the adjacent property, which you didn’t request. MR. LAPPER-For the landing. MR. ABBATE-Yes, and the sun arbor requires relief as well. MR. LAPPER-Except that Staff said that if you get the relief for the. MR. ABBATE-I’m glad that you mentioned Staff notes, because they suggest that we have an as built survey before. MR. LAPPER-We certainly don’t argue with that, that there ought to be an as built survey, and that’s something that can be accomplished. MR. ABBATE-I think it’s imperative. Otherwise we’re just throwing figures out into the air, and it was no compliance with the initial one that was approved. MR. MC NULTY-Can I ask for Staff in that connection? I’m a little puzzled about the statement on the relief for the sun arbor, because I thought we allowed for that when we passed the Area Variance last time. We were saying that it couldn’t exceed height. MR. FRANK-That’s correct. So that was on the same north side as the rest of the sun deck. So they would have to grant relief for that at the time, but it wasn’t built at a compliant height. So now they’re requesting relief for this at a compliant height, but also as part of a new construction, that would need to meet the side setback. Well it doesn’t, but it isn’t encroaching on the property line setback more than that landing, and again, to make things clearer, that landing is a step down. I think it’s maybe six to nine inches. I can’t remember exactly. When I came back and I reported to my boss what the situation was, I don’t recall at the time when I did the inspection what he said. I don’t think he was really much concerned about that little landing. It’s three by three and it’s leading to the stairs down at the lake bottom. Now, as a technical point of view, it needs, since he’s stating it’s part of the dock, it needs setback relief from that property line. The as built survey that he suggested that we ask for, that’s really to find out exactly what relief is needed. There’s a fence there, and I believe that it’s going to be very close, if not exact , if that fence is close to the property line or on the property line, it’s relatively close to the relief that they’re claiming that they need. So the as built survey, that was something that the Zoning Administrator thought that we should ask for, so we know exactly what relief you’re going to grant, if you’re going to grant them relief. Do I think it’s close to what they’re claiming? I believe so. I was out in the field. There’s a fence right there. It’s right close to the area where I could get a good look at it, and another technical issue that put them over the pre-existing square footage that the dock had, by nine square feet. So some of that relief is technical in nature. One last thing, I realize they’re asking for relief for that sun arbor, but as you can see the photo on the screen, it’s not like it’s going all the way across, but that is the height that needs relief. The sundeck elevation is approximately, I believe, let me think, nine feet, and then the rails are three feet higher. So the whole structure isn’t at that maximum allowed. I think you all realize that, but I wanted to put it on the record to make sure what 20 (Queensbury ZBA Meeting 2/18/04) you’re, you granted relief initially for the location of the sundeck and that is where, what is approved. The only thing that we’re really looking at now is the sun arbor and that little landing, because I guess the Zoning Administrator made a determination that. MR. MC NULTY-Okay, and should we deny the variance for the three foot stairway, then if we wanted to allow the sundeck, we need to do the setback on the sundeck, simply because it’s being treated as a new structure because of the height. MR. FRANK-That’s correct. MR. MC NULTY-I mean, they haven’t built the sundeck closer to the lot line than they intended last time? MR. FRANK-Exactly. That’s correct. MR. MC NULTY-It’s in the same spot. MR. FRANK-It’s in the same location relative to the line. MR. MC NULTY-Okay. MR. FRANK-Except for the portion that’s above the 14 feet is new construction. It doesn’t have any relief granted. MR. MC NULTY-Right. Okay. So the setback on the sundeck would just be a technical thing? MR. FRANK-Exactly. MR. MC NULTY-Question for the applicant. Would you talk a little bit, I know you had an old set of steps, from the photographs, that went down into the lake as a set of steps. You’ve got a set of steps now that do the same thing in a little bit different direction. MR. SELKOW-Correct. MR. MC NULTY-Thinking in terms of alternatives, could you talk a little bit about the pluses or minuses of an alternative of just a vertical ladder that would be on the side of the dock, with handles on it. How much do you gain with the landing that you’ve got now, versus just a vertical ladder? MR. SELKOW-A vertical ladder would get you into the water. For my parents and my in-laws, they can’t handle a vertical ladder. So we’re pretty much denied water to them. The stairs that were there before, that went straight off the deck towards the property next door to me, from what I understood from the contractor, they’re, you know, the waves hitting them caused a lot of damage to them. Every year they have to be nailed back in. I believe they were being held on the bottom by some kind of weights, barbells, that somebody that had bought the house that was down there just tied it on on the bottom. This was just turned to make it, you know, keep the same accessibility we had before to the water, and so they won’t get destroyed every year. It seemed like almost every year they’d be hanging off sideways. They’d have to be nailed back in to the dock. The contractor just told me that it would be much easier having it this way, so the waves hit them straight. Otherwise, there’s no way to walk in to the water. MR. MC NULTY-Right. MR. FRANK-Mr. Chairman, for the record, the stairs can encroach on the setback. It’s just that landing. So if you decided to not ask for that relief and he removed the landing, he could put those same stairs in the same location, and they would be just as encroaching on the setback as that landing. The stairs are allowed. 21 (Queensbury ZBA Meeting 2/18/04) MR. MC NULTY-But he wouldn’t need relief then? MR. FRANK-That’s correct. MR. LAPPER-The landing (lost words). MR. SELKOW-It makes it safer for my senior parents and my in-laws. They’re both in their 70’s, and keeps it non-slippery. The stairs, when they went straight into the water, that first step could be a doosy, and just end up sliding off of it. So this gives them a place to stand. MR. MC NULTY-Okay. Any other questions? Okay. We would need to talk about this. I guess let me try to summarize some of the issues here that we probably ought to talk about when we make the round. Obviously one is the height of the sundeck and whether the, what is it, one foot eleven inches, basically two feet, is significant or not, compared with the discussion we had last year at this time about the height of the sundeck. There’s the question of the stairs and, in particular, the landing rather than the stairs, from what Staff is saying, because the crux of the matter with that, I guess, is the landing, which we can view as something that the applicant built without asking for permission or we can view it as something that was just a misunderstanding and mistake that the applicant thought he was replacing something that was there, and then the as built survey, whether or not it’s important to you that we require an as built survey perhaps before we act on this, or just as confirmation afterwards, and then we’ll see where we go from there. Let’s mix it up and start from the other end this time, and start with Jim. MR. UNDERWOOD-I don’t think that I’m really concerned with the stairs. I think that, you know, your historic photographs showing that they had been there previously, even though they have been slightly changed, the direction is not really a concern for me, and, you know, obviously the neighbors didn’t think that it was a concern either. The height of the arbor over the top there, though, is a concern. I think we were pretty adamant that we wanted it to be at a compliant height, when we issued the previous variance for it, and I think, too, that, you know, the basis of your argument, the last time, that it was supposed to be a historic representation of what was there previously, and I think you’ve pretty much dramatically deviated from that. It’s kind of a plain Jane right now, compared to what you did have there, and I think that our concern before reflected that, you know, it should reflect that historical nature and, you know, with all that gingerbread and latticework that it had on there. So, you know, we’ve had numerous requests for these coverings over the top of sundecks, and I think previously we’ve granted, or we’ve made the suggestion to the owners that they, rather than having a firm structure, you know, with a solid roof up there, that, you know, it’s easy to put up some kind of a structure, you know, with the metal piping and things like that that can be taken down at the end of the season or something like that, but I think that, you know, this is a large structure on here. It does provide shade as you requested, but at the same time, we had requested that it be within the height requirements that have been, you know, promulgated by the Town. So I would not be in favor of granting relief for it. I think that it pretty much dramatically deviated from what you originally had proposed. MR. MC NULTY-How do you feel about requiring an as built survey before we make a decision or as a follow up? MR. UNDERWOOD-I’m not really concerned with that, you know. I think somebody can go out and measure it pretty accurately from that mark on the dock. MR. MC NULTY-Okay. Joyce? MRS. HUNT-I agree with Jim. I remember all the discussion last year about the height and taking off the latticework and it was well known to the applicant that we wanted the 14 foot maximum, and obviously we didn’t get it, and I don’t know that an as built would make a difference. I do recall, Jim, the discussion of a temporary awning type, but I have no problem 22 (Queensbury ZBA Meeting 2/18/04) with the stairs, the step down off of the 15 feet relief, for the setback on the stairs, but I do have concerns about the height. MR. MC NULTY-Okay. Roy? MR. URRICO-Yes. I also remember this discussion from last year. I do agree with Jim on this. I’m not too bothered by the stairs. I think I understand why they’re there, and maybe it was an oversight, but I guess I have a hard time understanding how we can set a limit on the height of the arbor and still have that exceeded. So I’m pretty adamant about that not being granted. I can live with the stairs and I really don’t care one way or the other on the as built. MR. MC NULTY-Okay. Thanks. Leo? MR. RIGBY-I, too, have a problem with the height of the arbor. I think what was granted and what was constructed were two different things. I also have a problem with the stairs, too, in that, the landing, rather, in that you now have access from shore to the water through the landing, as opposed to having an attachment or stairs hanging from a dock. I think those are two separate things and two separate items. So I have an issue with that, too. MR. LAPPER-I may be mistaken there. I think I said from the shore, and Rick is saying it’s only from the dock. MR. SELKOW-You still have to go on the dock. There’s no access from the shore. MR. RIGBY-You can’t access the landing from the shore? MR. SELKOW-No. You have to go on the dock. MR. RIGBY-Is that landing attached to the shore? MR. SELKOW-No. It’s attached to the dock. MR. LAPPER-The way the diagram’s designed here, it looks like it buts up against the shore. This is the old one with the stairs coming off the dock. MR. URRICO-That’s what he means, right? You said the old picture, not the, you don’t have a new picture? Other than the one you passed around. MR. LAPPER-I have, it doesn’t show that side of it. MR. RIGBY-That railing, now if you go to the right of that railing, that’s access to the landing, isn’t it? No. MR. LAPPER-That’s the landing right there. MR. SELKOW-This is your access to the dock right here. In between this post and this post, the access for the landing. MR. RIGBY-Okay. What’s on the right? See where the light brown is there? What’s to the right of that if you go down? Isn’t there a railing or something? MR. SELKOW-This is a railing that goes right here and goes this way, and this is the rail that goes down into the lake. It’s a handrail. No, it’s the stairs. So this is the landing here. You have the landing which is the width of this here, and then that railing goes down along the stairs into the lake. MR. RIGBY-So there’s stairs that go on the shore down into the lake? 23 (Queensbury ZBA Meeting 2/18/04) MR. SELKOW-No, from the landing off the dock. The landing is in between this post and this post here. MR. RIGBY-Okay. So where we’re viewing, we’re viewing from the shore. MR. SELKOW-Right here is the shore. There’s a seawall here, and there’s about a foot and a half jag between shore and that landing, and this is all rock cobble along here. Is one of the reasons why we turned it, those old stairs went out like this, and then you ended up in a cobble pile right over here, is another reason why we did turn it. MR. RIGBY-So is there access to the lake right there? MR. SELKOW-The only access is in the front of this, you walk down the stairs. The angle of this here. You’re actually facing straight down now. MR. LAPPER-There’s going to be a seawall next to it. MR. RIGBY-Okay. I just wanted to clarify that. So, at any rate, I probably don’t have an issue with the, if that’s not attached to the shore. What did your neighbors to the north say? Have they said anything? Have they made any comment about? I mean, you talked about the neighbors to the south. MR. SELKOW-The dock itself (lost words). MR. RIGBY-Because that landing actually is to the north, correct? MR. SELKOW-Yes, no, they have no problems with that. (Lost words) that goes behind that landing. There’s no access from the shore (lost words). MR. RIGBY-That railing that extends off the side of the dock, that’s new as well. Correct? MR. SELKOW-This here? MR. RIGBY-Yes. MR. SELKOW-Yes. (lost words). MR. RIGBY-So it really is an extension of the dock, then, isn’t it? It’s not just stairs hanging off the dock, it is an extension of the dock. The railing’s not below the water. (Discussion LOST WORDS – MICROPHONE PLEASE!!!) MR. RIGBY-Okay. I believe it’s an extension of the dock, looking at it from here, but I guess we could talk about it all night. MR. FRANK-Because it is at a different elevation. It’s a six to nine inch step down from the dock elevation down to that three by three foot landing. MR. RIGBY-Because it’s under the water, does that make a difference as far as extension, from your standpoint? MR. FRANK-The Zoning Administrator made that interpretation. I was there on different occasions when water was lapping up over that landing. So it was, the water was not going over the top of the dock, but it was going over the landing. MR. RIGBY-I still think that there’s a difference between stairs hanging of the dock and that structure. So I’m still struggling with that, but to get to the Chairman’s, without belaboring the point here, I do have a problem with the height of the arbor. I probably have a problem with 24 (Queensbury ZBA Meeting 2/18/04) the extension of the landing, and as far as an built survey goes, I don’t think it’s really going to make that much of a difference. MR. MC NULTY-Okay. Thanks. Chuck? MR. ABBATE-Okay. Thank you. It’s a question of principle. I stated earlier that the burden of proof of compliance with any approved variance falls squarely on the shoulders of the applicant, not the Zoning Board of Appeals. I recall last year there was a tremendous hue and cry from the applicant presenting a strong argument to maintain the integrity of the historical significance of this, etc., etc., and we listened to it, and we said finally, okay, fine, but only at the compliant height. I thought that was quite clear. It’s in English. It’s quite clear. It meant that you cannot exceed the compliant height, which we approved, and yet the applicant exceeded it. Mr. Chairman, the principal basically here is this. The applicant failed to comply with our approval, and now comes back and says I would like you to hear my confession and give absolution, and as far as I’m concerned, the answer is no. MR. MC NULTY-Okay. So you’re definitely against the arbor? MR. ABBATE-Definitely against it. MR. MC NULTY-How do you stand on the stairs? MR. ABBATE-The stairs? I’m not sure I have a problem with the three by three stairs. Quite frankly. I could probably be swayed in that area, but the height I am immovable on. MR. MC NULTY-Okay. Well, I think the Board’s been fairly consistent and I’m inclined to agree with them. The stairs, the first reaction that I think we’ve probably all had, I know I’ve had, was, well, he didn’t follow the variance. We’re not going to give him anything, but listening to the explanation about the stairs, it strikes me that I can understand where there might have been a misunderstanding with that. I don’t think it’s a big deal, and I certainly can understand the reasons for the applicant wanting them the way they are. I don’t think it’s going to infringe on the neighbor. So I have no problem with the stairs either. The arbor is a problem. As other members have mentioned, we went through this last year, just about this time, and I know we struggled with the whole thing. We talked about the historical significance of the arbor and all of that, and, after that whole struggle, we basically all said, only if it can be made to comply with the height, and I think that’s where I come down. So I think what we’re looking at is we could do an approval of the relief required for the stairs, which would be an increase in the dock area to accommodate the landing, and an additional allowance for the setback to allow for the stairs and the landing at that point, and it looks to me like that’s the best we’re going to be able to do. Does somebody want to tackle a motion of that sort? MR. ABBATE-I’ll do the disapproval of the height. MR. LAPPER-Can I make a quick comment before you do? MR. MC NULTY-Sure. Go ahead. MR. LAPPER-Certainly the stairs is a real practical issue, in terms of (lost words) the depth of the lake there and the height of the wall, and that’s appreciated, and I think, in terms of the arbor, I mean, certainly, I never like to be in a situation coming back and asking for additional relief on the height issue. I’m not sure how well it was presented last time, just because, by the Board making the determination that it’s okay to have the arbor, but there had to be 14 feet, I’m not sure that everybody understood, last year, that if it was really a four foot high arbor, not only wouldn’t it be practical to have to crouch down under it, but it also probably wouldn’t be visually very attractive. It would look more like a table than an arbor, and so I think that there’s an issue, a procedural issue, which I understand, it’s not the way we like these things to go, where somebody comes back for relief. I wasn’t here last time. I read the minutes. I didn’t get the flavor of it, but I think that the applicant certainly made an attempt to make the arbor, 25 (Queensbury ZBA Meeting 2/18/04) making it as small as they could, and it’s fairly innocuous. I didn’t hear that neighbors had any problem with impact on the neighborhood. It’s certainly a very attractive dock, looking at the photograph, but it’s an unfortunate situation. I don’t think that the arbor takes away from anything, and it is historical, and I apologize on behalf of my client that we’re here again for this, but I think the attempt was to do what the Board said, which is to make the arbor compliant, and obviously it failed because it isn’t 14 feet, but it still looks pretty good to me, when I looked at the photograph. MR. ABBATE-Well, your argument doesn’t hold water, Counsel. MR. LAPPER-Why is that? MR. ABBATE-Simple. When we say that only at a compliant height, even an eighth grader would understand what that meant. Nothing in the Area Variance that we approved could be misconstrued by an eighth grader. That is a child in eight grade. There are no complicated words involved. It says only at compliant height, and if you ask an eighth grader what is meant by compliant height, I’ll bet you they could give us an answer. MR. LAPPER-You’re absolutely right. MR. ABBATE-Well, thank you, then your argument doesn’t hold water. MR. LAPPER-It’s just that you can’t have an arbor that does comply, because 14 feet doesn’t work on a second story. MR. ABBATE-And quite frankly, why wasn’t that argument presented to us way back then. MR. LAPPER-I wasn’t here last time. MR. ABBATE-No, no, I’m not saying. MR. LAPPER-And neither was Rick. So I can’t say. MR. ABBATE-Well, you know, the fault doesn’t lie with us. The fault lies with you folks. MR. LAPPER-Absolutely. The fault doesn’t lie with the Board. We’re just pointing out that it’s not practical to make a 14 foot high arbor. MR. ABBATE-Well, I’m still willing to do a disapproval on a height, Mr. Chairman. MR. MC NULTY-Okay. Well, I believe what we can do, I don’t know as we need to do a disapproval on the height as much as do an approval on those factors that we can approve, and just omit the approval for any of the relief requested for the height of the arbor. So, I’m looking for somebody to do a motion in favor of approving the side setback and the increase in the dock surface area to allow for the landing and the stairs, and that’s all we really need. Okay. Go ahead, Joyce. MOTION TO APPROVE AREA VARIANCE NO. 8-2004 RICHARD & DEBRA SELKOW, Introduced by Joyce Hunt who moved for its adoption, seconded by James Underwood: 160 Lake Parkway, Assembly Point. Applicant has constructed a 3’ x 3’ stairs/landing to the existing dock. Relief required. Number One, nine square feet of relief from the maximum surface area requirements for docks, 926 square feet. Pre-existing nonconforming dock prior to stairs/landing addition per Section 179-5-050(A5). Number Two, 15 feet of relief from the 20 foot minimum adjacent property line setback requirement for the stairs/landing addition per Section 179-5-050(A6). How would you benefit from the granting of these Area Variances? It will enable the applicant to maintain the dock that he recently constructed, which replaced his preexisting nonconforming dock. The reason for the replacement was due to the dock’s old age 26 (Queensbury ZBA Meeting 2/18/04) and deteriorating state. The benefit would be to allow access to the lake from these docks by a stairs. What effect would this variance have on the character of the neighborhood and the health, safety and welfare of the community? There would be no effect. Really the structure was recently constructed. The variance would be larger square footage but would not really affect the health, safety and welfare of the community. Are there feasible alternatives to this variance? The stairs could be removed, but that would be a hardship for the applicant. Is the amount of relief substantial relative to the Ordinance? It does not seem to be, nine square feet does not seem to be a substantial amount of relief. Will this variance have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district? No, it will not have an adverse effect. Duly adopted this 18 day of February, 2004, by the following vote: th Zoning Administrator Note: By Craig Brown -Town of Queensbury Original variance application sought relief for the construction of an arbor on top of the sundeck. The arbor had already been constructed in violation of the side setback and height requirements. This motion does not grant any height relief for the arbor structure. AYES: Mr. Abbate, Mr. Urrico, Mr. Rigby, Mrs. Hunt, Mr. Underwood, Mr. McNulty NOES: NONE ABSENT: Mr. Stone, Mr. Bryant, Mr. Hayes MR. ABBATE-Mr. Chairman, may I respectfully make a suggestion? It’s my opinion that, from a legal standpoint, if we don’t address the disapproval of the height, and we leave it as an omission, this could very well result in a legal disqualification in that, in my opinion, that the Board may have acted arbitrary, by not addressing that issue. As a safeguard, I really think we should not omit the disapproval, but I really think we should include the disapproval of the height. That’s only a suggestion. MR. MC NULTY-Okay. MR. FRANK-It’s not unheard of where you split up an approval on an application. You’ve done it twice that I know of in the past. Do I think you have to do it? I don’t know if you have to do it. If you don’t grant the relief for it, it’s still not in compliance. They have no relief granted to allow it. So, I mean, it’s up to the Chairman how you want to proceed with this. MR. URRICO-Can we offer two motions, one with the partial approval and one? MR. FRANK-Well, I think you might want to ask the applicant what he feels. MR. LAPPER-We appreciate the partial approval, and however you want to handle the arbor. MR. SELKOW-I would like the Board to realize that it was not my intent to violate any Codes or anything like that. All my initial concern with this was to build the exact same dock that was there. If this is 14 feet, there is no arbor. I mean, there can’t be an arbor at the, I guess the height that the township code says it has to be. So the arbor will have to go at some point. There’s just no way to walk underneath it. There’s no sense to have an arbor there. It was not our intent to build it higher or anything else. Yes, the historical value was a big point. The house is over 100 years old. The dock was there. This was how I bought the place. I was just looking to construct the same exact thing. I wasn’t asking for anything more than was originally there. If this is not in compliance, I would guess my only alternative is to deconstruct it and take it down. It can’t be lower than anybody, you know, you can’t walk underneath it that low. There’s no sense in having it there as an arbor. I mean, I just, you know, I wasn’t here at the original presentation of this, and to allow an arbor at 14 feet, there is no arbor. 27 (Queensbury ZBA Meeting 2/18/04) MR. ABBATE-But you are the owner of this property, correct? MR. SELKOW-Yes. MR. ABBATE-And you weren’t here at the original one? MR. SELKOW-No, I wasn’t. MR. ABBATE-Then the burden of proof falls on your shoulders, because you weren’t here to present that argument, and as a result of you not being here, this is what’s happening. MR. SELKOW-That’s why I’m here now. MR. MC NULTY-Okay. I think, let’s just go with what we’ve got. By not approving the arbor, I think as the applicant’s indicated, it leaves them in noncompliance, so he’s going to have to take whatever action deemed necessary to bring it into compliance, and it strikes me that that’s going to be sufficient. MR. ABBATE-Question, Mr. Chairman. It doesn’t have to do with the applicant. For Staff, now this hasn’t been approved for the height. What happens now? What’s the procedure? MR. FRANK-Well, technically they’re not in compliance. MR. ABBATE-Right. MR. FRANK-And I think the Zoning Administrator will probably directly send a letter to the applicant indicating to him a certain amount of time to come into compliance. MR. ABBATE-But it’s your understanding that, is there any question in your mind that the height was not approved? MR. FRANK-I think it’s very clear. You didn’t grant him any relief for the height of that sun deck. MR. ABBATE-Okay. It was just a procedural thing. I didn’t know. MR. MC NULTY-Okay. If there’s no other business. On motion meeting was adjourned. RESPECTFULLY SUBMITTED, Charles McNulty, Acting Chairman 28