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2004-06-02 (Queensbury ZBA Meeting 6/2/04) QUEENSBURY ZONING BOARD OF APPEALS SPECIAL MEETING JUNE 2, 2004 7:00 P.M. MEMBERS PRESENT LEWIS STONE, CHAIRMAN CHARLES MC NULTY, SECRETARY ROY URRICO CHARLES ABBATE ROY URRICO PAUL HAYES JAMES UNDERWOOD ZONING ADMINISTRATOR-CRAIG BROWN TOWN COUNSEL-MILLER, MANNIX,SCHACHNER, AND HAFNER-MARK SCHACHNER STENOGRAPHER-SUE HEMINGWAY NEW BUSINESS: NOTICE OF APPEAL NO. 1-2004 APPELLANTS: UNDERHILL, ARMANDO, ROSECRANS, AND OTHER NEIGHBORS AGENT: CAFFRY & FLOWER, ATTORNEYS AT LAW OWNER: EAST SLOPE HOLDINGS, L.P. LOCATION: WEST MOUNTAIN SKI AREA, NORTHWEST RD. TAX MAP NO. 308.17-1-38 AND 307.00-1-29 ZONING: RC-3A LOT SIZE: 2.55 ACRES 365.43 ACRES SECTION: 179-16-050 CROSS REFERENCE: SITE PLAN REVIEW NO. 16-2004 APPELLANTS ARE APPEALING A DECISION MADE BY THE ZONING ADMINISTRATOR THAT A PAINTBALL OPERATION IS AN ALLOWED USE WITH SITE PLAN REVIEW IN A RC-3A ZONE AND SPECIFICALLY THAT THE PROPOSED ROCK-IT PAINTBALL FACILITY IS PERMITTED AT THE WEST MOUNTAIN SKI AREA. JOHN CAFFRY, REPRESENTING APPELLANTS, PRESENT MR. STONE-Basically, what we are doing tonight, because of the motion that we passed a couple of weeks ago, asking the Town Board to get involved, and they threw it back to us, so we will be starting at the point after the public hearing is closed. There will be no public comment tonight. We are going to start the meeting at the point where I ask the Board, what do you think. This is what we usually do after we’ve gone through all of the applicant’s, or the appellants, in this case, arguments, all the rebuttal, all the public hearing, and after we ask all our questions, we’re at that point where we were three weeks ago, when we made a motion to table it. Well, tonight we’re not making a motion to table it. We’re going to discuss a motion to uphold or not uphold the Zoning Administrator’s decision. Now, in summary, just to bring everybody up to date, the Zoning Administrator determined that paintball is an amusement, and amusements are allowed in the subject zone. There have been many arguments made about corollary things about what a paintball marker is or is not, and what that might do as far as the classification is concerned, but the point that we’re discussing tonight, and it’s a very limited point, and I said that three weeks ago, and I will say it again, we have a very simple question to answer. Is the Zoning Administrator’s determination that paintball is an amusement and therefore is an allowed use in this zone. If we support the Zoning Administrator, the next step in the process would be a site plan review conducted by the Planning Board. If we say that, I mean, that’s basically the situation. I mean, if we deny it, then I don’t even know what happens, to be very, Mark, what would happen if we say he’s wrong? MR. SCHACHNER-If you make the determination to overrule the Zoning Administrator’s determination that the proposed use is an allowed use in the zone, then if the applicant wishes 1 (Queensbury ZBA Meeting 6/2/04) to pursue the proposed use, the applicant would have two possible avenues for doing so. One would be to come before this Board and seek a Use Variance, and the other would be to seek amendment of the Zoning Ordinance, or the zoning law from the Town Board to make it an allowed use in the zone. MR. STONE-That’s if we, okay. The appellant would have to do that. MR. SCHACHNER-Well, the applicant for the paintball project. MR. STONE-Right. Okay. MR. SCHACHNER-But I think that’s what you asked. If you were to overturn the Zoning Administrator’s decision. MR. STONE-That means it’s not an allowed use, yes, right. MR. SCHACHNER-That’s what overturning the Zoning Administrator’s decision would be. MR. STONE-I’m sorry, yes, that’s why I asked. You’re right. It would say it’s not an allowed use if we overturned it. MR. SCHACHNER-Correct. MR. STONE-Okay. All right. Having said that, as I said, we are going to start where I ask the Board what do you think, and I’m going to start with Al Bryant. MR. BRYANT-Thank you, Mr. Chairman. I’ve gone through the new information, some of the information relative to different types of firing ranges and injuries and the like, relative to paintball, and so forth and so on, but I think, when you analyze the information, the intent of a firing range versus a paintball facility are two different intents. In a firing range, the participant goes to a firing range, regardless of what type of range it is, to improve his skills in firing the weapon. In a paintball facility, it’s more a strategic game. It’s really an amusement and not necessarily key towards improving the shooting skill of the marker. Some of the other topics that were brought up at the last meeting, relative to the multiple uses, I think that was covered at the last meeting. There are a number of facilities in the Town that have multiple uses of this type. There was also a lot of discussion about noise and traffic and the like, and the closeness, and proximity to houses. MR. STONE-Not germane. MR. BRYANT-Well, that’s what I was getting to. MR. STONE-Okay. MR. BRYANT-And the Chairman pointed out that the Planning Board will review these items, and, so, with these things in mind, I’m going to support the Zoning Administrator. MR. STONE-Roy? MR. URRICO-In my opinion, there’s a danger in deciding what is and what is not appropriate recreational activity. Times change. Activities change. What is a pastime for some may not suit others. We also have to be careful on how we got about permitting newer activities. Our task here is very specific. It’s to determine whether paintball qualifies as an amusement center activity within Queensbury Town Code. The Town Code does not refer to paintball specifically anywhere. So we have to ascertain where it fits. There is ample room for interpretation and confusion. For example, the Town’s only amusement park is located in a recreational zone. Other so called amusement centers are located in Highway Commercial zones, and the tables that list allowable uses within the zones, there are specific references to golf, skiing, golf driving 2 (Queensbury ZBA Meeting 6/2/04) ranges, as well as amusement and recreation centers. Town Code definitions also specifically refer to amusement centers, recreation centers, and even the sportsman club. These definitions include mentions of various activities including golf, skiing, firing ranges, and archery. All of this, but nowhere is there a paintball. All this points out how difficult the Zoning Administrator’s task is. However, I do not see paintball as an amusement but rather a recreational activity that involves active participants to be properly prepared. Which most amusements do not require. Therefore, I am supporting the Appeal that paintball should not be allowed as an amusement center. MR. STONE-Jaime? MR. HAYES-Well, I spoke at length before. I’ll abbreviate my comments. The Appellant has basically made their Appeal on the grounds that some kind of causal logic between the paintball marker being a firearm and a firearm, and that a firearm should only be used in a firing range and therefore this is not an allowable use, and as I’ve pointed out before, I don’t think that that argument carries, in my opinion. I think that after listening to testimony and reading the Code, for reasons that Al Bryant pointed out as well, I think that it’s not a firearm. I don’t think that firearms are shot at each other voluntarily in an activity designed to be fun. At least people pay to play it to be fun. So I just don’t, just can’t follow that logic to the sense that I would not support the Zoning Administrator’s position. As far as it being an allowable use, I think it is an amusement center activity. I really do. I said before, and I will say again, that I’m not sure I would want a paintball facility near my home. My position hasn’t changed on that, but we’re here tonight for the very narrow definitional interpretation of whether the Zoning Administrator applied the Code properly, and, as I read it, I think he did. Well, I guess those are two different ideas. I hope I don’t sound inconsistent, but I think it is an amusement activity. I think amusement centers are allowable in the Recreational Commercial zone, that is what it’s zoned. So I think, based on the facts that the Administrator was faced with, I think he made the right decision, and I think that’s his job, whether it’s popular or not. So, I am going to, my position is I think I would be against the Appeal and my finding is that the Zoning Administrator made the proper decision. MR. STONE-Chuck? MR. MC NULTY-Okay. I’ll try to confine myself also to the basic thing. I made other comments last time and no need to repeat them. The question, as I understand it, is that the Zoning Administrator has determined that a paintball field activity, such as is proposed, is an amusement center. It’s not a question of whether it’s an amusement or not. It’s whether it meets the definition of amusement center, which is in the Town Code, and I don’t like the way the thing’s written. It’s kind of ambiguous, but when I look at it, it talks about things like various devices for entertainment, including rides, booths, for the conduct of games, buildings for shows and entertainment. Then it goes on to say it includes some other, I guess what you’d call single use things, miniature golf, go karts, things of that sort, but nevertheless, it strikes me that the amusement center definition is better oriented towards a facility like the Fun Spot, which used to be Skate Land, or the go karts on Route 9, or possibly towards an amusement center in a mall, which has got video games and other things, but it doesn’t strike me that a paintball facility quite meets that definition. So, without going into whether or not a paintball gun is a firearm, and whether or not a paintball facility is a firing range, looking at the narrow question, I don’t think that it meets the qualification of amusement center, and I would support the Appellants. MR. STONE-Jim? MR. UNDERWOOD-I would have to echo Chuck’s sentiments to a degree. I think the ECL Law pretty much recognizes the responsibility of hunters and people that actual use firearms, to ensure that they’re always used, and that when a gun is loaded that it’s always kept with the muzzle pointed in a safe direction, and that when fired, you’re dead sure of the target. I think that it’s very ironic that while we can honor the recently fallen, people who represent us in the military locally, many of you in this room probably have been in the military or have been in a 3 (Queensbury ZBA Meeting 6/2/04) situation where you have used simulators and things like that also. At the same time, I think that, after going through all the machinations of sorrow over these people, that we find ourselves here arguing the merits of paintball as an amusing version of that same deadly activity where you mark people for death, essentially, and you’re out of the game. It’s a big step up from playing cops and robbers in the neighborhood, and I think that in a residential neighborhood, as we have over on this end of Town here, that even though there’s a small buffer between there, ECL Law specifically states that paintballs may not be used within 500 feet of any dwelling. It’s been pretty much pointed out there are plenty of dwellings, as proposed, in this facility, that would fall within that 500 foot range of the paintball. So I would not be in support of this as an amusing activity. MR. STONE-Chuck? MR. ABBATE-Okay. Thank you very much. The record will show that I advocated, very strongly, that we hear the Appellant, because I felt, and I stated on the record that, people have the right to be heard. The Zoning Administrator has determined that paintball is amusement and is allowed in this recreational zone. We’ve heard all the arguments for and against, and I’ve read the voluminous items of correspondence here from both sides, but I must echo the response of Mr. Urrico, Mr. McNulty, and Jim. I firmly believe that a paintball activity is not an amusement and is not allowed in a recreational zone, and as a result, I support the Appellant, and I cannot support the Zoning Administrator’s decision. MR. STONE-I do support the Zoning Administrator’s decision. While, because if you read our Code, it is very difficult to come up with a, where to put paintball, and I believe paintball is more amusement than it is not an amusement. I support the Zoning Administrator because perusal of the Zoning Code and as some of, many of the members said, it does not specifically talk about paintball, but that’s a flaw in the Code, and it has to be, it is new information. I mean, the world is changing all the time, and we do get new things and we have to make sure the Zoning Code covers the new things. I believe the Zoning Administrator, by making the determination that he made, that, one, it’s an allowed use, and, two, that it requires site plan approval, is the best way to ensure, I’m saying it is the best way to ensure that this activity will be regulated in the best possible way. The Zoning Board cannot put conditions on the activity. The Planning Board can, and I feel that if we agree with the Zoning Administrator’s two determinations, one that it’s an allowed use, and, two, that it requires site plan review, the public and the applicant will be best served by the process. However, as I look at the votes, I am in the minority, and therefore I need a motion to deny, to uphold the Appeal. I need a motion to uphold the Appeal that paintball is not an allowed use. So, do I have, from someone who said no, do I have a motion? MR. URRICO-I’ll make the motion. MOTION THAT WE APPROVE THE APPEAL THAT THE DETERMINATION RENDERED BY THE ZONING ADMINISTRATOR REGARDING ROCK-IT PAINTBALL AND THE ALLOWABLE USES WITHIN THE RECREATIONAL COMMERCIAL DISTRICT BE UPHELD, MR. HAYES-Is incorrect. MR. STONE-Mark, you have a comment? MR. SCHACHNER-Yes. I do have a comment. My comment is, as you all well know, it’s certainly not my roll to tell you which way to decide on an interpretation, appeal, a variance or anything else. However it certainly is my role to encourage you and urge you in the strongest terms possible when making a motion to approve, deny, uphold, reverse, overturn or what have you, especially in a situation that I think we could all fairly label as somewhat contentious and possibly one that may lead to litigation, that I need to urge you to put reasoning in whatever motion you make, and the reasoning, and I need to further urge you that that reasoning should not involve whether you think paintball is a safe activity or a dangerous 4 (Queensbury ZBA Meeting 6/2/04) activity, fun or not fun, profitable or not profitable, whether you think it’s fair to the neighborhood to have paintball or unfair to the neighborhood to have paintball, whether you think it’s fair to the applicant or unfair to the applicant. Your reasoning should be grounded in the terms of the Appeal, whether the proposed, reasonably, is understood to be an allowed use in the zone, and that does involve issues involving firearms, firing ranges, and amusement centers. MR. STONE-Roy, do you understand? MR. URRICO-Yes. Mr. Chairman, Appeal No. 1-2004, the Appellant, Underhill, Armando, Rosecrans, et.. al, project location: West Mountain Ski Area, Northwest Road. This is June 2, 2004. The Appellant is appealing the decision rendered by the Zoning Administrator regarding the Rock-It Paint Ball and the allowable uses within the Recreational Commercial district. His arguments were that this constitutes a firing range. The Town, whether it’s an allowable use, and whether this is a second commercial use. MR. STONE-That was the initial appeal. MR. URRICO-I’m supporting this Appeal based on the determination that this is not an amusement, and does not fall into the amusement center category. Rather it’s closely more aligned to recreational use, that involves active participation with people properly prepared. In making this motion, I feel that the allowable uses are not specifically rendered in our Town Code. Therefore some interpretation needs to be made as to whether it falls as an amusement within an Amusement Center, and I do not believe it does. Do we need more specifics than that? MR. SCHACHNER-I’d sure like to hear the word “because”, and then explain why you do not believe it does. MR. STONE-We can all help him. MR. UNDERWOOD-I would add the following, that in the absence of local guidelines for paintball facilities, it is inherent that we take note of the statues of higher authority, in this case the ECL Law, as promulgated by the New York State Department of Environmental Conservation, specifically they do not, and their language says that paintball markers may not be used for any reason within 500 feet of any dwelling. In the case of the Brandi’s proposal this evening, use of fencing containment was proposed as partially mitigating that 500 foot thing, but that 500 foot setback has not been met, as proposed, and I think that there’s no way that a Town decision can overrule a DEC decision in regards to that. MR. ABBATE-Good, Roy. MR. SCHACHNER-Mr. Chairman, I know that my advice is likely to be unpopular, and I apologize for that, but I have to do my job. MR. STONE-Absolutely, and we want you to. MR. SCHACHNER-The grounds for the motion that I understand that the Board is trying to formulate, needs to focus on the allowability of the use in terms of the fine terms in the Code, firearm, firing range, and amusement center. The fact that, or the allegation that the particular operation in question may or may not properly mitigate firing of paintball guns can’t be one of your grounds for decision, in my opinion. In other words, the points that I think Mr. Underwood is making, they may be totally valid points, but they’re points that relate to the specifics of this proposal, the netting, the setback and what have you. That would be very appropriate if this were a variance proceeding, but it’s not, it’s an interpretation Appeal, and your decision has to be generic to the use of, the proposed use of quote unquote paintball, and not specific to whether particular setbacks are being met, whether netting is installed, whether it’s loud or soft, etc. So I guess I’m going to try to reiterate my advice. I think that Mr. Urrico is 5 (Queensbury ZBA Meeting 6/2/04) on the right track, in terms of formulating a motion. I just think that in order to support that motion, he, or perhaps you want to take a break and have others, bolster his motion, however you want to do that is fine, but I think we need to hear some of the reasons, the because, and I think those reasons should probably involve the terms firearm, firing range and amusement center. MR. HAYES-Or amusement activity, what defines an amusement activity. MR. SCHACHNER-Fair statement, yes. I agree. MR. URRICO-All right. My motion is based, because the Town Code does not refer to paintball specifically anywhere in the Code. In addition it’s not mentioned under Recreational Center, Amusement Center, Sportsman Club, or anywhere else. So there is no mention anywhere in the Code of paintball as an allowable use currently, and therefore my motion is based on the fact that the Town Zoning fails to adequately address paintball anywhere in the Code, and therefore I feel it is not an allowable use at this time. MR. STONE-I think what Mr. Schachner is saying, however, that the Appellant made certain references in saying why this should be overturned, and I think those are the points that I think we have to comment on. Is that correct? MR. SCHACHNER-It is, and let me see if I can be more blunt and less popular. As I understand the current motion that Mr. Urrico’s proposing, you’re proposing, in essence, I’ll summarize, my words, to uphold the Appeal because the term or activity paintball is not expressly addressed in our Town Code, and I’m going to tell you, as your ZBA Counsel, that if the activity and term paintball was expressly addressed in our Town Code, we all probably wouldn’t be sitting here because then this would be a simple exercise instead of a very complex exercise. The reason we’re sitting here is in fact because it’s not expressly addressed, and I’m going to, at the risk of repeating myself, urge you to make your finding, whatever that finding may be, in terms of the relevant provisions, and the relevant provisions seem to be whether you feel that the proposed activity involves firearms, and the reason that’s relevant is because firing range is a defined term in our Code, and if you feel, and I’m not suggesting you should, but if a majority of you feel that the proposed activity either involves firearms or is best labeled as a firing range, then it would seem not to be one of the allowed uses in this zone, and if you feel it’s an amusement center, then obvious it is one of the allowed uses in this zone. So I think that whoever makes a motion that will ultimately be carried by a majority of the Board, needs to make a motion in those terms. MR. ABBATE-Let me try and add a couple of things here then, if we want to get more specific. I think Counsel for the Appellant has made it quite clear, in the numerous amount of research data that he submitted to this Board, and if you take a look at the data which was received on May 28, 2004, Counsel for the Appellant made it quite clear in listing a number, Bill of Rights, Responsibility of Students, but in particular I think a particular section here has helped me make a decision. The minimum period of suspension, and this is dealing with students in the Town of Queensbury, and they claim, quote, the term firearm means any weapon, including starter gun or paintball gun. So we find that the School Board, if you will, in the Town of Queensbury, has in fact declared a paintball basically a gun, and this comes under minimum periods of suspension for individual students who come to school carrying a paint gun. In addition, Counsel for the Appellant has submitted other documentation, in my opinion, which in my opinion, makes it quite evident that paintball activity is not allowed in a recreational area. MR. STONE-Are we there yet, Mark? I’m hard pressed to help. MR. SCHACHNER-Well, I think I’ve done the best I can giving advice. I don’t think the advice is connecting, but I, you know, I can’t make your decision for you. You’re allowed to, I mean, the other thing that you can do, I mean, remember you’re not obligated to decide this tonight, but I’m not suggesting, despite the groaning from the audience, I’m not making a suggestion to delay for the sake of delay. I’m only pointing out that there is no obligation to decide this 6 (Queensbury ZBA Meeting 6/2/04) tonight, and if a Board member or members want to formulate a motion with the advice of Counsel, you could certainly do that. You could also do that, you could also take a break and do that, not as a group. MR. STONE-Mr. McNulty would like to try. Start from the beginning. MR. MC NULTY-Okay. Let me start from the beginning, and see if I can do something you can shoot holes in. MOTION TO UPHOLD THE APPELLANT IN APPEAL NO. 1-2004 THE APPELLANTS ARE UNDERHILL, ARMANDO, ROSECRANS AND OTHER NEIGHBORS, Introduced by Charles McNulty who moved for its adoption, seconded by Charles Abbate: West Mountain Ski Center, Northwest Road. The Appellants are appealing the decision made by the Zoning Administrator that a Paint Ball operation is an allowed use with site plan review in RC-3A zone, and specifically that the proposed Rock-It Paint Ball facility is permitted at the West Mountain Ski Center. In considering the Appellant’s appeal of the Zoning Administrator’s decision, the Appellant suggested several arguments. One which if I remember correctly was that a Paint Ball facility does not meet the definition of Amusement Center as it’s defined in the Town Code, and for one point I tend to agree with that. The Amusement Center definition indicates that an Amusement Center can be indoors or outdoors, and may include structures or buildings, and it says it’s where there are various devices for entertainment, including rides, booths for the conduct of games, buildings for shows and entertainment, and it goes on to also mention some single use items like miniature golf and go-karts. Nevertheless, I think the implication in this definition, which I think probably is poorly written, but the implication is that an Amusement Center is a center where there are several amusements, and of riding things for the participants to, games for them to play, and so on. I don’t think Paint Ball quite meets that definition. Addressing another point made by the Appellant regarding the definition of firearms, it is difficult to come to a definite conclusion, again, because there’s no specific legislation out there that specifically addresses Paint Ball guns per se. Each piece of legislation has its own purpose. There’s the penal law which describes firearms and is, I guess could be loosely described as addressing people committing felonies. However, I think the Environmental Conservation Law comes close, and the Environmental Conservation Law, in essence, says that anything that can cause injury or death to a small animal is a firearm, and that includes air guns, pellet guns, regular what we would call firearms or whatever, and I think this is where we have to look at the definition of what Paint Ball facility is versus what an Amusement Center is. A paint ball gun has the potential to cause injury to a small animal, and therefore a small child. It falls within the realm of firearm as far as how it needs to be used. It needs to only be pointed at something if you intend to shoot it. Same thing with a firearm, and therefore I think, for the purpose that is proposed, the paint ball does fall within the definition of firearm. There is a potential issue that, even if this Board were to approve this, or uphold the Zoning Administrator, the Environmental Conservation Law might, at least technically, prohibit the use of these firearms or paint ball guns within 500 feet of any home. So, I believe that a paint ball gun, in that sense, meets the definition of firearm. I believe a Paint Ball facility does not meet the definition that’s implied under Amusement Center in the Town Code, and for that reason, I move that we uphold the Appellant. In addition, the United States Code, Title 18, Section 921, Crimes and Criminal Procedure, Part I Crimes, Chapter 44, Firearms, Definitions. In Section Three, of Title 18, it states, quote, the term firearm means, A, any weapon, including a starter gun, which will or is designed to or may be readily be converted to expel a projectile by the action of an explosive. B. The frame or receiver of any such weapon. C. Any firearms, muffler or silencer, and, D., any destructive device. Such term does not include antique firearms, unquote, and I think that also helps support my position that paint balls are, in fact, designated some type of a firearm, which is prohibited. In my comments, let me retract all the reference to Counsel’s documentation dated May 28, 2004, and let me add in its place this, that based upon my personal experience, as a student of Title 18 USC and a Professor of Criminal Justice, teaching Criminal Investigations and Forensic Evidence for 20 years, it is my personal belief that Title 18 of the United States Code is accurate, that a paintball is considered a firearm. 7 (Queensbury ZBA Meeting 6/2/04) Duly adopted this 2 day of June, 2004, by the following vote: nd MR. ABBATE-Mr. McNulty, may I add to that, please. MR. MC NULTY-Give it a shot. MR. ABBATE-Yes, thank you. In addition, the United States Code, Title 18, Section 921, Crimes and Criminal Procedure, Part I Crimes, Chapter 44, Firearms, Definitions. In Section Three, of Title 18, it states, quote, the term firearm means, A, any weapon, including a starter gun, which will or is designed to or may be readily be converted to expel a projectile by the action of an explosive. B. The frame or receiver of any such weapon. C. Any firearms, muffler or silencer, and, D., any destructive device. Such term does not include antique firearms, unquote, and I think that also helps support my position that paint balls are, in fact, designated some type of a firearm, which is prohibited. MR. STONE-I think you guys finally got it, in my judgment. Do you agree, Mr. Schachner, that by calling it a firearm they have said why they don’t uphold, they uphold the Appellant? MR. SCHACHNER-I think that’s the motion. MR. STONE-Okay. Does everybody understand it? Do I hear a second? MR. ABBATE-Second. AYES: Mr. Underwood, Mr. Urrico, Mr. McNulty, Mr. Abbate NOES: Mr. Bryant, Mr. Hayes, Mr. Stone MR. STONE-Mark? MR. SCHACHNER-That’s the end of your vote, I presume? MR. STONE-That’s a negative. MR. SCHACHNER-I have a procedural question that I need to ask. At different times, two I believe, during your multiple deliberation statements, I heard some reference to the Appellants submission of May 28, and I’m going to, my prediction is I’m going to need to know whether th you did, as a Board, consider the submission of May 28 or made your decision without regard th for the submission of May 28. I think I’m going to need to know that in the future, and I got th sort of mixed message about that. MR. ABBATE-I made mine without reference to May 28. th MR. STONE-May 28 was never entered into our deliberations officially. th MR. SCHACHNER-We think you read from it. MR. BRYANT-I read it. I read May 28. th MR. SCHACHNER-No, no, we think you read from it. MR. ABBATE-I did. MR. BRYANT-He did. MR. SCHACHNER-In your statement. MR. ABBATE-Yes. I did. 8 (Queensbury ZBA Meeting 6/2/04) MR. SCHACHNER-Okay. This is an important procedural point. MR. STONE-I understand. MR. SCHACHNER-It doesn’t affect the outcome of the proceeding, but it is an important procedural point. I think, as a Board, you need to indicate whether the May 28 submission th from the Appellant was or was not considered as part of your deliberations. MR. ABBATE-Let me say this. Whether or not it was considered, as far as I’m concerned is immaterial, because Title 18 of the United States Code remains intact. MR. SCHACHNER-Okay. So one member is basically saying it doesn’t matter. I’m saying, as your Counsel, it does matter. MR. STONE-In other words, that was never, the public hearing was closed. No materials were officially submitted after that point. If you made your determination, what Mr. Schachner is saying, without that benefit of that, please say so. MR. ABBATE-Okay. Let me try it this way, okay. I taught Criminal Justice in College for 20 years and I covered the United States Code Title 18, Espionage, Sabotage, etc, etc., etc., and based upon my personal knowledge in the past, it is a weapon. MR. SCHACHNER-I’m not asking, I think my question’s been misunderstood. My question is, as a matter of. MR. HAYES-It’s an evidentiary question. MR. SCHACHNER-That’s correct. MR. STONE-That’s correct. MR. SCHACHNER-My question are we including the Appellant’s May 28 submission as part th of your official administrative record that was part of your deliberations or not. That’s my question. MR. URRICO-The question is that you announced earlier that the public meeting was closed. MR. STONE-Was closed. That is correct. MR. URRICO-So any correspondence from the public would that be submitted or not? MR. STONE-That would not. Any material that was done after the public hearing was closed is not part of the record, as Mr. Schachner, that’s what he’s asking you. MR. SCHACHNER-That’s all I’m asking. MR. ABBATE-No. Counsel is right. Okay. Let me back up. Let me, in my comments, let me retract all the reference to Counsel’s documentation dated May 28, 2004, and let me add in its place this, that based upon my personal experience, as a student of Title 18 USC and a Professor of Criminal Justice, teaching Criminal Investigations and Forensic Evidence for 20 years, it is my personal belief that Title 18 of the United States Code is accurate, that a paintball is considered a firearm. MR. STONE-Thank you. Anybody else? Jim? MR. SCHACHNER-Mr. Chairman, before we hear from Mr. Underwood, sorry to interrupt, I’m not asking you to poll each individual member. You can if you want. It’s up to you. 9 (Queensbury ZBA Meeting 6/2/04) MR. STONE-Well, it’s the easiest way to do it. MR. SCHACHNER-Okay. MR. STONE-I mean, you’re asking a very simple question. Did they consider the May 28 letter th from Mr. Caffry as part of their rationale to make their decisions. It’s a simple yes or no. MR. ABBATE-No. MR. STONE-Jim? MR. UNDERWOOD-No. MR. STONE-Roy? MR. URRICO-No. MR. STONE-Chuck? MR. MC NULTY-No. MR. STONE-Fine. It was not considered. MR. SCHACHNER-So what I want clear on the record, then, is do I understand correctly that the Zoning Board of Appeal’s position is that the administrative record on which you based your decision was all the documents submitted, up to and including close of the public hearing at the previous meeting, and did not include, and will not include, the submission made by Mr. Caffry on May 28? th MR. STONE-That certainly was the intent of the Chairman to make. MR. SCHACHNER-That’s all I was trying to ask. MR. STONE-Okay. MR. SCHACHNER-Thank you. MR. STONE-Okay. We’re done, on that issue. First of all, before anybody leaves, I want to apologize for the Town of Queensbury because we are very embarrassed by these mics. This is the earliest they’ve ever gone. Usually at 11 o’clock they all start to click. Well, at 7:30 they should not have given us this trouble, and I, for one, would want to see better equipment, so that I, personally, am not embarrassed before 65 people, and that will be in the public record, and I trust that most of us feel the same way. NOTICE OF APPEAL NO. 2-2004 SEQRA TYPE: II PETER & CHRISTINA COLLINS AGENT: JONATHAN C. LAPPER, ESQ., STEFANIE DI LALLO BITTER, ESQ. OWNER: PETER & CHRISTINA COLLINS ZONING: WR-1A LOCATION: 17 HOLIDAY POINT ROAD APPELLANT IS APPEALING TO THE ZONING BOARD OF APPEALS REGARDING A ZONING ADMINISTRATOR DETERMINATION RELATIVE TO THE DEMOLITION AND RECONSTRUCTION OF A PORTION OF A STRUCTURE. CROSS REFERENCE: BP 2004-004, SPR 25-2004, SPR 58-99 ADIRONDACK PARK AGENCY LOT SIZE: 0.33 ACRES TAX MAP NO. 227.17-1-42 SECTION: 179-4-030, 179-4-070 JON LAPPER, REPRESENTING APPLICANT, PRESENT MR. STONE-We have another matter that we are going to discuss. There will be no public input on the matter we’re going to discuss. You’re welcome to stay and listen. Okay. We have 10 (Queensbury ZBA Meeting 6/2/04) a request made last week, and duly recorded in our minutes, that the Zoning Administrator asked us to reconsider our decision, or reconsider the Appeal No. 2-2004, in the case of Peter & Christina Collins. He wrote us a letter. It was read into the record. I have agreed that we will give the Appellant an opportunity comment on that letter, specifically as it refers to the re- hearing only, because when we get done this evening, our job, as a Board, is to decide whether or not to re-hear this Appeal, which would be at a later date, but secondly that vote has to be unanimous of the members of the Board. MR. SCHACHNER-Well, only if you decide to re-hear. MR. STONE-No, no. The decision to re-hear has to be unanimous I’m told. MR. SCHACHNER-What I mean is, if it’s not a unanimous decision, you don’t re-hear. It doesn’t have to be unanimous one way or the other. That’s what I’m trying to say. MR. STONE-I’m sorry, yes. MR. ABBATE-It only takes one no vote. MR. STONE-Yes. MR. SCHACHNER-Correct. MR. STONE-Yes. One no vote to re-hear. MR. SCHACHNER-To not re-hear. MR. STONE-To not re-hear. Okay. So, Mr. Brown’s letter of that date, and let me just paraphrase the end, he says, two things that he requested. One we can do if we don’t re-hear is a detailed clarification of the decision, but he would basically ask us to re-hear it. Because of certain statements that he made in this letter. Mr. Lapper, you may speak for a limited time please. MR. LAPPER-Thank you. For the record, Attorney Jon Lapper, with me, my associate, Stefanie Bitter, and the property owner, Pete Collins, his wife is behind us and to our right and your left. What you decided two weeks ago was a very narrow set of facts, and I think that the request for the re-hearing by the Zoning Administrator talks about potentially broad precedential value, but this is a very narrow case where the property owner went to the Town and submitted and received a building permit with building plans to construct, to reconstruct a 40 year old house that they’ve owned for 35 years. You all had in front of you, when. MR. STONE-Okay. We’re not talking the merits. We’re talking the Appeal. MR. LAPPER-I’m sorry, but the reason is that this is a narrow set of facts, because other cases that have come before you where someone tore something down and then decided they wanted to build it. Here we have a case where there’s a building permit to build exactly this. The new windows are specified in here, for example, in the building plans. So they went to the Town. They got a building permit to do a substantial renovation on a house that actually had been there closer to 50 years, and on that basis, while they were doing the construction, they determined that there was water damage, wind damage, and rot, and the narrow section of the Code that you were asked to look at was subject to the provisions of this Article, a nonconforming structure may be continued and maintained in reasonable repair, but may not be enlarged or extended, except as followed. Continued and maintained in reasonable repair, may not be enlarged or extended. There’s no issue that doing what the building permit calls for is not an enlargement, and reasonable repair, we’re talking about whether or not replacing the end of the house that faces the lake was reasonable repair, and there was testimony on the record from the builder and the architect that talked about the problems of moisture and rot in the walls. So it’s a very narrow case that nobody else is, or it’s not going to be applicable to a lot 11 (Queensbury ZBA Meeting 6/2/04) of other situations. When this has come up, that I’m aware of in the past, it hasn’t been where somebody got a building permit. At the end of the day, what he will be building is exactly what these plans show, and I think that, in the Zoning Administrator’s request for re-hearing, he refuted, that we’re doing something different, and building plans have been submitted today to replace the two, the walls that got ripped down, and it’s exactly what they had to start with in the building permit. Beyond that, there was an issue where it was alleged that I made misstatements on the record, which primarily goes to the issue of our request, the request by my office by Stefanie, for a written determination by the Zoning Administrator, and there was a discussion in the minutes at the meeting two weeks ago. Mostly, the Board asked some questions and it was mostly between Bruce Frank, Craig’s assistant, and me, and it ended with the statement from Mr. Frank on Page Five of the minutes. I believe, I think actually Stefanie Bitter had given me a call and wanted to know if anything written was provided and when I put that to the Zoning Administrator, he told me no because they complied when I directed them to stop work. So I believe that I’m not aware of anything written being provided, and my response was, that’s exactly what transpired. So there was no, Mr. Brown is making an issue of whether or not we made a written request for a written Stop Work Order, and the issue, the significant issue is that we didn’t have anything to go on. We were looking for him to put in writing, chapter and verse, what it was that he was alleging the Collins’ did wrong, because the section that I quoted to you says that they can continue and maintain it in reasonable repair, and we’re saying it was a repair, and there was nothing that, whether or not, it’s not even legally significant, and it wasn’t to you in your decision, whether or not we made a written request for a written determination or a verbal request for written determination. The point is that the applicant had the right to have a written Stop Work Order to know what it was that they were alleged to have violated. We didn’t see anything in writing until two days before the hearing when we got the Staff notes to the Board, and that was really interesting, in terms of what’s really going on here. The Staff notes to the Board quoted the second section of the Code that you don’t get to. It’s only if you’re enlarging or extending. Then you go to the next, and that’s what was quoted in the Staff notes, which I read last time, and that was the section that was quoted, was cited by the Zoning Administrator, and you don’t even go there because if it’s a reasonable repair you don’t have to go any farther. It’s a narrow case. It’s the house that they’ve lived in for all this time. The idea of re-hearing it, the Zoning Administrator had the opportunity to be here the last time and he wasn’t. I’m confident that if you re-hear it you’ll come to the same conclusion, but they’ve been in limbo for weeks and weeks, living in a boat docked on their property because the house is not livable, and it wasn’t until this Board fixed that two weeks ago, and now they got their building plans in to fix the two walls that were ripped down that they can go forward with the future. So in terms of fairness and refuting what was said in his letter, we don’t think there’s any reason to re-hear this. MR. STONE-Okay. Thank you. Okay. Let’s talk about it. MR. BROWN-Just a quick response. I think my position would be that it’s not a reasonable repair and maintenance. I think it’s clearly a re-building. The structure’s been completely removed down to the foundation, and it’s being re-built. If it was to replace some siding or some sheathing or some structural members, in repair, that’s fine. That’s done every day, but to completely remove that portion of the house and now effectively re-build it, is clearly not something that was in the building permit that we’ve issued. It may be in the building permit application that they’ve submitted. It sounded like they submitted it today, to actually continue on with the process, but my position, and it’s been the position, historically, of this Board that to rebuild is not something that’s subject to that Continuation Section. You cannot do that. You need a variance to re-build, and I think this is a re-build clearly. MR. LAPPER-How do you replace the studs, if you have rotted studs? MR. BROWN-Well, that’s not. MR. STONE-Okay. That’s, he made his statement. You made your statement. I mean, we have before us a request. That’s what it is, a request by the Zoning Administrator that he says, quote, it would be most appropriate for the Zoning Board of Appeals to re-hear Appeal No. 2-2004, as 12 (Queensbury ZBA Meeting 6/2/04) it appears as though the findings in this matter may have been based on misinformation, unquote. We have to determine whether to re-hear it. If we re-hear it, if we vote unanimously to re-hear it, then we will discuss this whole thing on its merits and we’ll get everybody in the room who has been quoted who had anything to do with this whole thing, and we will listen to everybody. So that’s what’s before us. We need to vote on, and I guess the easiest way, since it’s a simple yes or no, is that I will move that we re-hear Appeal 2-2004, based upon the request of the Zoning Administrator. Do I hear a second? MR. HAYES-Second. MR. BRYANT-Well, are we going to have a discussion, Mr. Chairman? MR. STONE-If you want, you may now discuss the motion. Yes. MR. BRYANT-There are a couple of issues that I wanted to cover. First of all, I agree with what Mr. Brown has said, relative to tearing down and then replacing, as being different from keeping the property in proper repair, okay, and I think that was reflected in my vote the last time around. I just want to touch on three points, one being the effect of the alleged misstatements and if you read the minutes, there’s no reference to these statements whatsoever in anybody’s conclusion. Those who voted positive or negative. They don’t really refer to those statements. The comments that were made at the last meeting relative to setting a precedent, I think it was the Town Attorney who one time said that we don’t set precedents, that we deal with each case individually, and so I don’t necessarily agree with that fundamental, because I think we do set precedent, and this is an unfortunate one. The final point I want to make is relative to the perception. We talk about perceptions a lot of times, and frankly this can be perceived as questionable, at best, from the outside. Is it that when the Zoning Board of Appeals makes a decision and the administration doesn’t like it, for some reason or another, can they appeal it? It just doesn’t sit right, well with me. So I have the same feelings that I had at the last meeting relative to this whole thing. Even though I voted against it in the first go around, we made our bed and now we’ve got to lie in it, and we’ll deal with it down the road, but I don’t think that it’s necessary to re-open it. MR. SCHACHNER-Mr. Chairman, could I just make a comment in response to something Mr. Bryant said? MR. STONE-Surely. MR. SCHACHNER-You know, of course, I’m not telling you to re-hear or don’t re-hear, but just for your edification, I appreciate your comment, and for that of the Board as well. I think I made a statement similar to what was characterized, but remember that just like in the last case, interpretation appeals are more generic and not as case by case specific, and I’m not saying that to influence you to re-hear or not re-hear. Only so you understand for the future that I did say something like what you said I said about variance applications which generally are taken on a case by case basis, each one standing on its own merits, but an interpretation appeal just like the paintball one, and just like what apparently happened here by way of interpretation does have more widespread applicability because it’s a ruling about interpreting a provision of the Code. MR. STONE-Okay. I’m not going to make any guesses. Everybody has a chance to be heard. Roy, do you want to say something? MR. URRICO-I’m satisfied with the decision I reached, and for the reasons I reached them the last time. So I would not be in support of re-hearing it. MR. STONE-Jaime? MR. HAYES-Well, I guess I had the privilege of not being here that time. So I don’t have to worry about being in agreement or disagreement with the case that I heard, but in this particular case, I’m going to agree with the Zoning Administrator that I think there’s an 13 (Queensbury ZBA Meeting 6/2/04) important precedential value to that decision. Whether it was, I guess historically my votes have been, I have considered at what point does a re-build or a re-model or a repair go beyond those definitions and go into new construction, and an opportunity to bring a project into compliance. I think this particular decision has the potential to set the precedent of compromising those decisions or similar decisions going forward, and I think that’s what Mr. Schachner is alluding to, that these are a little more generic in their impact as we move forward as a Board. MR. SCHACHNER-That’s exactly what (lost words). MR. HAYES-And I would be concerned about that. I certainly sympathize with the Collins’, and I think that, you know, a good case was made. The other reason why I would re-hear it, and all should not be interpreted as the way I would rule if I reheard it, a variance in this particular case, is I think unfortunately, or fortunately in this particular case, there seems to be a legitimate difference of opinion about several of the key facts, who spoke to who, when, what constitutes a repair. I’m not satisfied that I’ve heard from everyone involved, the Collins’ included, to my satisfaction, as to the facts of this case, so that I’m comfortable with the facts of this case. I’ve read, twice, the record, the minutes of that meeting, but I think that, in this particular case, I would side with the Administrator in the sense that we need, or side with the idea of re-hearing that Appeal, based on the fact that I think that the fact pattern is subject to question, and needs to be defined further, because I think they disagree about when things were said, and who said them and when they were said. So I’d like to explore that. So I’m in favor of re-hearing. MR. STONE-Chuck? MR. MC NULTY-No. I’ve been thinking about this all week, and I flip both ways on it, but I guess up front I want to say that the decision I made last time was not impacted by who said what when or who met at what time or whatever. I kind of ignored that and focused more on the facts and what I felt was a proper decision in this particular situation. However, since we do have a couple of Town Board people here, I want to digress just a little bit on this. This is important, as has been mentioned. It is going to set a precedent one way or another, and I’m tempted to vote for re-hearing it, only to air the thing, but I’m not sure that’s what I’m going to do, but, if, indeed, this Town has a policy that if you tear a wall down on a house, that is nonconforming, you cannot re-build that wall unless you get a variance, that has multimillion dollar implications for lakefront owners. That means that a lot of properties that are on the lake, should they discover they have a rotten wall, all of a sudden don’t have a buildable lot and instead of having a million and a half dollar piece of property, they’ve got something they can’t sell except to the neighbors. It also impacts the Assessors. Now I’m not trying to argue which way the policy goes now, what I’m trying to argue for is I think if this is going, something like this is going to be a policy, it needs to be hammered out and it needs to be put in writing, clear at some point in an ordinance or something, so it’s abundantly clear. Because it goes beyond that. If there’s that kind of a question out there, and a realtor is selling a piece of that property, they have to tell the buyer that this is a potential, that they might not be able to re-build what they’re buying. If they fail to tell that person, and later on the person finds he can’t re-build, that realtor is liable for the difference between what that person paid for that property and what it’s worth at that point. So it has some real implications for a lot of people, and I think whatever we decide tonight, the Town has to sit down and decide what is going to be the policy, and there’s good reasons for the policy. Obviously, zoning was put in place that says you can’t be more than 50 feet from, or closer than 50 feet to the lake for a reason, and if there’s something that’s all within that 50 feet, then the people that wrote the zoning felt that at some point when that place burns or rots out or the carpenter ants get it, it should not be re-built, but that kind of thing has to be made abundantly clear to property buyers and property owners and if it’s going to impact people that currently own properties in that situation, I think they’re entitled to a drastic reassessment. So it’s a serious question that needs a lot of attention. As far as it goes tonight, I voted to uphold the Appeal last time, I think that’s probably what I’m going to do this time. 14 (Queensbury ZBA Meeting 6/2/04) MR. STONE-Jim? MR. UNDERWOOD-Yes. I was not sitting the evening of this meeting. All I would have to say is this. In the past, as a sub, before I came on the Board full-time, I often had to sit here and listen to what you guys were talking about, and I’ve never ever felt that you ever made a decision up here that was not in the best interest of everyone concerned, and I think that for us to go back and say, well, someone disagrees with the decision you made two weeks ago, I think we should re-hear it again, you could pull that one out of the hat anytime you wanted to in the future for any reason whatsoever. I think that far from setting a precedent, it’s an unfortunate incident. I don’t think there was any intent on the part of the applicants, having read through here, to deceive anyone or to suddenly get this brand new house magically without a variance or anything like that. There are always going to be instances where you run into rot in the wall and things like that, and you make a decision based upon that. Whether they should have contacted the Town ahead of time, before they took the wall down and have them come out and look at it, I don’t know, but it’s a give and take world. Sometimes you give up a little, sometimes you don’t give up as much, but in this instance, I would support the Board in the decision they made that evening. So I would not be in favor. MR. STONE-Chuck? MR. ABBATE-Thank you. I wholeheartedly concur with the comments of Mr. Bryant, Mr. McNulty and Jim. Additionally, I support the statements of Mr. Bryant on Page Three of the 5/26/04 ZBA meeting, which I did not attend, but read, as well as those of Mr. McNulty on Page Five and Nine of that same meeting, and based upon the information this evening, Mr. Chairman, I would not be in favor of re-hearing the case. MR. STONE-Well, I think there’s absolutely no harm in re-hearing the case. I think, obviously listening to the feelings of the people, it probably would be upheld, the Appeal would be upheld the next time. My concern, and I don’t want to go into the use of words, inflammatory words, but I guess I would like to hear from all concerned so that I can make up my mind, in terms of what actually happened, and I’m not sure that I made my determination, and I certainly supported the Appellant last time, but that I made it with total information, and that bothers me, that I might not have had all the facts, and all I’m looking for is an opportunity to get everybody in the same room and listen to what everybody has to say, and we may certainly come on to the same thing, but, having said that, it appears that there will be more than one negative vote for my motion, but I will call for a vote. MR. SCHACHNER-Did someone make a motion? MR. STONE-I did before. MR. HAYES-Yes. MR. STONE-We did Roberts Rules this time. MOTION THAT WE RE-HEAR NOTICE OF APPEAL NO. 2-2004 PETER & CHRISTINA COLLINS, Introduced by Lewis Stone who moved for its adoption, seconded by Paul Hayes: Duly adopted this 2 day of June, 2004, by the following vote: nd AYES: Mr. Hayes, Mr. Stone NOES: Mr. Underwood, Mr. Abbate, Mr. Bryant, Mr. Urrico, Mr. McNulty MR. STONE-There we go. We will not be re-hearing it. MR. BROWN-I guess if I could just have two more seconds of the Board’s time. The second part of that request for the re-hearing would be to clarify the decision. So if you could, I guess 15 (Queensbury ZBA Meeting 6/2/04) provide some additional information. My understanding of the decision that this Board made on May 19 was that if an applicant appears before the Town with a project to demolish half of th their house. MR. LAPPER-Twenty-eight percent is your determination. MR. STONE-Wait a minute. We’re not talking about this. This is off the table, Mr. Lapper. You’ve made your point. MR. LAPPER-I understand, but it’s got to be characterized properly. He said 28%. MR. SCHACHNER-Mr. Chairman, I think Mr. Brown was real patient and let, as was the Board, in letting the representative for the property owner speak before. MR. STONE-Yes. MR. SCHACHNER-And I think that Mr. Brown deserves that courtesy as well. MR. STONE-Absolutely. MR. BROWN-My understanding of your decision that you made was that if an applicant appears before the Town with a project or proposal to demolish half of their house, that half of the house that they propose to demolish violates the setback requirements, that they can remove that portion of the house and re-build it on the same footprint with no variance. That’s my interpretation of your decision. Is that correct? MR. ABBATE-That’s for the Town Attorney to decide. We made our decision. That’s it. It’s over with. MR. BROWN-And I’m asking what your decision is. MR. STONE-He’s asking for clarification, Mr. Abbate. MR. ABBATE-The answer was we’re not going to re-hear the case. MR. BROWN-I’m not asking you to re-hear the case. I’m asking you to clarify the decision you made. MR. SCHACHNER-In fairness to our Zoning Administrator, he’s no longer talking about the Collins application or the Collins property. He’s asking a question to try to make a more efficient Planning and Zoning review process and know how to, remember that the reason that I said earlier, and somebody, I think Mr. Hayes, very accurately characterized my statement, as in interpretation appeals they do have some precedential value. So our Zoning Administrator is asking what I think is a reasonable question of you. You may not be able to answer it, by the way, but I think it’s a reasonable question, and he’s trying to seek your guidance for future cases, not the Collins property, but in future cases. So you’re past re-hearing Collins. Don’t worry about that. That’s not going to happen. MR. STONE-Yes. No, we’re talking about a hypothetical. MR. ABBATE-Yes, okay, and my response is this. We view each individual case that comes before the Zoning Board of Appeals on its merit, period. MR. STONE-Mr. Abbate that’s not what he’s asking. MR. ABBATE-Well, that’s what I’m saying. 16 (Queensbury ZBA Meeting 6/2/04) MR. STONE-No, but that’s not what he’s asking. He has to know how to act, in the office, though. MR. ABBATE-It’s not for me to determine how, for him to conduct his job. MR. MC NULTY-Let me give it a shot. My decision at the time was based on looking at the idea that it wasn’t the entire house that they’d torn down. It was two or three walls on one room. It was a substantial part of the house left standing, and they essentially were trying to repair something that they were between a rock and a hard place, in that they’d gotten into the walls, found that they had rotten material and they had to do something with it. So it struck me that it was a repair not a re-build. Now it’s since been pointed out to me that there’s been times where we’ve looked at things where people have torn a porch off and we’ve said, oops, that’s a tear down, you need a variance. So we’ve gone both ways, and I’m not sure what the correct answer is, other than to go back to what I was saying previously. I think we do need something in writing, because it does have the potential of being a real can of worms and talking about a lot of money that somebody can get stuck with, and it may be the property owner. It may be the Town, or it may be some poor realtor that isn’t up to speed on zoning, that makes a mistake and doesn’t point out to a buyer that they got a problem here with zoning, and that realtor honestly can be liable for the difference in value. MR. STONE-Chuck, let me try to explain what I think, I’ll paraphrase what I say and you can agree or disagree. We see variances, and I absolutely agree with you. We feel that we are very fair, we are consistent in granting variances, but, if we don’t get a variance request, because of something that Mr. Brown feels on the basis of what we just did, doesn’t require one, then he has a problem and the Town may have a problem, and that’s what he’s looking for, I think. MR. BROWN-No. I don’t have a problem with it. I’m just want to know, for instance, there are two applications that are submitted for the Zoning Board of Appeals next month that propose to completely remove a structure, replace it in violation of the setback requirements, and based on the decision of this Board on the Appeal at hand here, they don’t need to appear before the Board for a variance, and I’m just trying to clarify it, so I guide them through the process the correct way, that I don’t tell them they need to come to the Zoning Board for a variance and then the Zoning Board tell them, wait a minute, we decided two weeks ago that if you tear something down that’s in violation of setbacks, you don’t need a variance. I don’t want to send them to the Board if they don’t need to be here, and that’s the information I need. MR. STONE-You just said a total tear down, and none of our arguments last week, two weeks ago, talked about total tear down. MR. BROWN-And that’s the clarification that I’m looking for. Is it 28%, is it 29%, is it 2%? What’s your decision? What are the detailed implications of that decision? Do I need to do the math on the next tear down and make sure it doesn’t go more than 28% and say, okay, you’re fine? I need to be able to apply that decision to the next case that comes through the door. MR. STONE-Okay. MR. SCHACHNER-If you can answer it, I think it’s a reasonable question. You may not be able to answer it. MR. STONE-I agree it’s a reasonable question. Very reasonable. MR. ABBATE-Maybe the Town Board should get involved. After all, they are the administrators of this Town, quite frankly. I mean, I don’t think that we should bear the sole responsibility of interpretation. We made our decision. Now if the matter is that serious and traumatic, it seems to me the Town Board should get involved, and he should raise those questions to Town Board members. 17 (Queensbury ZBA Meeting 6/2/04) MR. STONE-Chuck, but I think you’re taking it, well, I think you’re taking it personally, and that’s not what he’s asking. If someone came, if you were sitting in his job, and they came and said, well, we’re going to take down 24 and a half percent, do I need a variance, that’s one. If they come and say I want to take down 75%, do I need a variance, can we give him any guidance? That’s all we’re talking about. MR. ABBATE-No. I am not going to commit myself to one foot. I’m not going to give him any guidance. MR. STONE-So you’re saying that he should follow the old rules of if it’s nonconforming, they need a variance? MR. UNDERWOOD-My understanding, in the past, is that you have always based it upon whether it’s a complete tear down. MR. BROWN-No, that’s not correct. MR. STONE-No. MR. HAYES-Definitely not. MR. BRYANT-Can I respond to you, the way I view it? MR. BROWN-Sure. MR. BRYANT-I think you should continue doing what you were doing, because in my view, the Appeal should have never been granted in the first place. MR. BROWN-Yes, but that’s not. MR. BRYANT-Yes. I know that. My point being that what you’re doing is correct, and each case, if there is an appeal relative to that, will be heard on its own merits. MR. BROWN-So, let me just turn the table a little bit. So, if somebody comes in to the office tomorrow with an application to establish a paintball facility on the West Mountain property, I should tell them that they can do that with site plan review? MR. BRYANT-We already determined that they couldn’t. MR. BROWN-I’m just looking for, I want to make sure (lost words). MR. BRYANT-It’s not on the same property. We’re not talking about the Collins property. We’re talking about somebody that tears down a wall, versus somebody that tears down 25% of their building. MR. BROWN-That’s the guidance I’d like to get from the Board. So I know where to draw the line. MR. ABBATE-Let me be fair to you and say you’re absolutely right, and my recommendation to you is this. If you’re looking for guidance, go to the Town Board. That’s my decision, and I’m not moving from it. Let’s end this thing. MR. BROWN-And I can certainly do that, but I would guess that if I go to the Town Board and ask them what the Zoning Board was thinking when they made that decision they’re going to have no clue. MR. ABBATE-That’s okay. We’ve got voters out there. No problem. 18 (Queensbury ZBA Meeting 6/2/04) MR. HAYES-The only thing I would add is that, I think, whether the Code is ambiguous or not, in any point, as evidenced by the case before us tonight, I think the Zoning Administrator has to make a determination based on a fact pattern, which I think you did, in that particular case, and then that’s either going to be upheld or disagreed with, but I think the second half of that is, as Chuck pointed out, I think in this case, you know, I think it’s dangerous to constantly appeal to the Town Board to change this and quantify that, but I think in your defense, in this particular case, for such a serious issue and for something that’s obviously going to be a matter of contention over and over again, because repairs and reconstruction and all this happens, for the analysis to end up looking for a number, dock repair, for example, I thought that, to me, that was prima fascia evidence that the Code isn’t clear enough in your defense as to what amounts to a repair. When you start using words like reasonable repair and stuff like that, I mean, Mr. Lapper’s here, I mean, people argue, I mean, a case law involved with reasonableness and due care and phrases like that, it’s huge. MR. BROWN-Yes, and those decisions, that decision on that case, we’ll just go back to it for a second, were based on the historical pattern of the decisions that were made. Those reasonable decisions that have been made consistently on applications similar to that, to a greater extent, a larger re-building than they proposed and less than they proposed. MR. HAYES-And I agree with you. I’ve said on several occasions, from a precedent standpoint, which Counsel has pointed out, we’re not creating on any individual case, but historically, we have treated a certain threshold as a new construction. I mean, we have, you know, I can think of many cases myself, and this, again, this has nothing to do with the Collins, so we’re separating this totally, but that case is over with, but I’m saying I think in this particular case I want to go on record as saying that that part of the Code needs to be upgraded. MR. ABBATE-Absolutely right. MR. HAYES-For your defense, for applicant’s defense, because obviously there’s a lot at stake, and I just don’t think that the phrases used in that part of the Code are just specific enough to end up with where we could end up back in this situation again, and that’s what you’re saying. I mean, you’re saying we could end up right back here next week, next month, next year, and I think that’s true. MR. STONE-We have always talked, and I certainly personally have always talked very proudly, quote unquote, that Queensbury does not have a footprint rule, but that’s precedent, and it’s not in the Code except for, it’s not there. I mean, this is what we’ve always done, and Mr. Brown is only saying, well, did you open the door to obviating the footprint rule, but I think we’re all right. I mean, I think there’s a, he’s right in looking for a, if we can give him a number, we can give him a number, but we can’t. MR. ABBATE-There’s nobody here this evening that’s wrong. MR. STONE-That’s what I’m saying. MR. ABBATE-That’s what I’m saying. So obviously it has to go to a power above us. MR. MC NULTY-Well, I think maybe in fairness to the Town Board, too, it may not be, at least at this point proper to just hand it to the Town Board and say, here, fix it, but maybe it does call for some sort of a small committee, Craig and somebody from Zoning Board, maybe somebody off the Town Board or something, but three or four people that can sit down and balance the reason that the people wrote the zoning, why they said that these places were nonconforming and how important that is versus the property rights of the current owners, and what kind of a percentage can we set for guidelines that would help Craig in the future and then bring that back to whatever Board has to approve it. MR. STONE-Also we know that there are deficiencies in the Zoning Code. I mean, Mr. Lapper knows. I know. There are little things, and like you said, reasonable. I had volunteered that 19 (Queensbury ZBA Meeting 6/2/04) myself and Mr. Round and Craig MacEwan, the three of us to sit down and edit the book, as a start, just going through and taking out and suggesting possible changes to the Zoning Code. We went through it a couple of years ago. We came up with a new Code, and quite frankly, I will admit to naiveté as to the agendas of a lot of the members of the committee, and that I was not aware of, and I would like the opportunity to go through the Code, and I would ask the Town Board to suggest that we do this, and point out, for example, I mean, one thing I noticed a couple of weeks ago. There’s an in so forth in one of the definitions. Well, you can’t have a definition with an in so forth in it because that’s almost as bad as approximately or whatever the word about docks. We need to go through this Code. It is a living document. It needs to be looked at and suggestions made. We know we’ve found things, and this is certainly one of the things, if this is the trigger, so be it. MR. UNDERWOOD-In your Staff comments on that case that we previously discussed here, you said historically the Town has held that the removal of a structure which violates the minimum setback requirements can only be re-built with the issuance of an Area Variance for reconstruction in the original violating location, an alternative in these instances may be construction or reconstruction in a compliant location, and along with that Continuation states that a single family dwelling may be enlarged or re-built if all setback provisions of the Zoning Code are met. In this instance you said the Collins proposal does not meet the requirement, and therefore cannot be re-built in the original location without an Area Variance. I think that you could use the language that you originally used there, which was that if it violates the setback requirements, it can only be re-built with the issuance of an Area Variance and it would many any construction or re-build on that site, and I think that historically, that’s historically what we’ve used in the past. If you’re going to re-build anything, and it’s within the zone that does not meet setbacks from waterfront property per say or side setback. If it requires relief, then you’re going to have to get a variance, just the same as we’ve always done. I don’t think there has to be any (lost word). MR. BROWN-And that was exactly my determination. MR. UNDERWOOD-Right. MR. BROWN-That they appealed, and they were upheld. MR. UNDERWOOD-Well, there must have been reasons for that Appeal to have been upheld, in this instance, but I don’t think that implies that all future ones are going to be upheld. MR. STONE-Okay. I think we should adjourn. On motion meeting was adjourned. RESPECTFULLY SUBMITTED, Lewis Stone, Chairman 20