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2004-11-17 (Queensbury ZBA Meeting 11/17/04) QUEENSBURY ZONING BOARD OF APPEALS FIRST REGULAR MEETING NOVEMBER 17, 2004 7:00 P.M. MEMBERS PRESENT LEWIS STONE, CHAIRMAN CHARLES ABBATE ROY URRICO CHARLES MC NULTY JAMES UNDERWOOD JOYCE HUNT ALLAN BRYANT MEMBERS ABSENT PAUL HAYES ZONING ADMINISTRATOR-CRAIG BROWN CODE COMPLIANCE OFFICER-BRUCE FRANK STENOGRAPHER-SUE HEMINGWAY OLD BUSINESS: AREA VARIANCE NO. 45-2004 SEQRA TYPE II ROBERT & JANICE GRILLO AGENT(S): SHAWN CALLAHAN OWNER(S): SAME ZONING: WR-1A LOCATION: 121 SEELYE ROAD APPLICANT PROPOSES CONSTRUCTION OF A 600 SQ. FT. ADDITION TO EXISTING 720 SQ. FT. GARAGE. RELIEF REQUESTED FROM SIDE YARD SETBACK REQUIREMENTS, CONTINUATION REQUIREMENTS, SIZE, AND HEIGHT RESTRICTIONS. CROSS REF. BP 96-241 DEMO OF 2-CAR DETACHED GARAGE, BP 96-240 REPLACE EXISTING 2-CAR DETACHED GARAGE WARREN COUNTY PLANNING JUNE 9, 2004 ADIRONDACK PARK AGENCY YES LOT SIZE: 0.84 ACRES TAX MAP NO. 227.17-1-51 SECTION: 179-5-020(D) 179-4-030 179-13-010(E) SHAWN CALLAHAN, REPRESENTING APPLICANT, PRESENT; ROBERT GRILLO, PRESENT MR. STONE-Read the tabling motion. MR. MC NULTY-Tabling motion and Staff notes. MR. STONE-Yes. MR. MC NULTY-Okay. The tabling motion. “MOTION TO TABLE AREA VARIANCE NO. 45-2004 ROBERT & JANICE GRILLO, Introduced by Paul Hayes who moved for its adoption, seconded by Allan Bryant: For up to 62 days to allow the applicant time to develop and submit a revised proposal somewhat scaled down from the current proposal. Duly adopted this 15 day of September, 2004, by the following vote: th AYES: Mr. Bryant, Mr. Abbate, Mr. Underwood, Mrs. Hunt, Mr. Rigby, Mr. Hayes 1 (Queensbury ZBA Meeting 11/17/04) NOES: Mr. McNulty” And then we have an October 19 letter from the Grillos regarding the th addition to the existing garage at Seelye Road residence. They say, “Following our request to table our proposal at the September meeting of the Zoning Board we obtained a copy of those minutes and the minutes of the previous meeting in order to address the issues involved. After evaluating the comments and issues raised at those meetings we believe that our submitted application is still the best for impact on the neighborhood. An addition to an existing structure would be less obvious and less intrusive than an additional structure in the middle of the property. The other problem raised was that concerning stormwater for the neighbor to the north. This was the first that we were made aware of their belief that their water problem is a result of our garage. The storm water will be diverted and contained on the existing structure as well as on the new one. Thank you, Robert & Janice Grillo” STAFF INPUT Notes from Staff, Area Variance No. 45-2004, Robert & Janice Grillo, Meeting Date: September 15, 2004 “Project Location: 121 Seelye Road Description of Proposed Project: Applicant proposes a 600 sq. ft. garage addition, at 21 feet high, to the existing 720 sq. ft. detached garage at 21 feet high. Relief Required: 1) 17.64 feet of side setback relief from the 20-foot minimum requirement. 2) 5 feet of height relief from the 16-foot maximum requirement (1 and 2 per § 179-4-030) 3) Relief from the continuation requirements, per § 179-13-010(E). 4) Additionally, even though the applicant has not requested any, 420 sq. ft. of relief is needed from the 900 sq. ft. maximum size requirement for a garage, per § 179-5-020(D). Parcel History (construction/site plan/variance, etc.): AV 45-2004: tabled 9/15/04, 600 sq. ft. addition to the 720 sq. ft. detached garage. AV 45-2004: tabled 6/16/04, 720 sq. ft. addition to the 720 sq. ft. detached garage. BP 96-240: 05/23/96, construction of a 720 sq. ft. detached garage. BP 96-241 05/27/96, demolition of a 720 sq. ft. detached garage. Note: in 1996, the replacement of dangerous structures was permitted without the need for a variance. Staff comments: On September 15, 2004, the applicant submitted a proposal for a scaled-down garage addition from 720 sq. ft. (June 16, 2004) to 600 sq. ft. The height was proposed to be the same as the original proposal. The difference in the relief required from the June proposal is 120 sq. ft. less size relief and 0.16 feet less side setback relief. Due to concerns expressed by the neighbors at the public hearing, the applicant was offered a tabling motion. After considering the concerns of the neighbors, the applicant has decided to request the same amount of relief as that of September 15, 2004. The applicant believes the current proposal will have the least amount of impact on the neighborhood compared to the construction of an additional structure in the middle of the property. Additionally, the applicant has offered to divert and contain all stormwater from the proposed addition and the existing garage in response to the concern by the neighbor to the immediate north. Should the application be approved, site plan approval by the Planning Board will be required being the proposed expansion is in a CEA (Critical Environmental Area), per § 179-13-010(F).” MR. STONE-Gentlemen, introduce yourselves. MR. GRILLO-I’m Rob Grillo. MR. CALLAHAN-Shawn Callahan. MR. STONE-Anything more you want to add to this thing? MR. CALLAHAN-No. I think the letter and everything explains itself pretty clearly. MR. STONE-I’m reading this, and it says the construction of an additional structure. Now, that’s in Staff notes. Are you suggesting that you would want to put another building on the property if this were denied? MR. GRILLO-I need another building on the property, sir. 2 (Queensbury ZBA Meeting 11/17/04) MR. STONE-Okay. So, I mean, you recognize that a second structure would require a variance also? Is that correct, Bruce, since you wrote the notes. MR. FRANK-I’m sorry, what was the question again? MR. STONE-If we denied this variance, and they wanted to put a second structure on the property, that would also require a variance? MR. FRANK-That’s not correct. They’re entitled to an accessory structure up to 500 square feet. MR. STONE-Of up to 500 square feet. I’m sorry. Yes. MR. FRANK-As long as it meets the setbacks and it’s within the size constraint, it would be allowed. MR. STONE-Okay. I’m partly in error. I was thinking of the 600 when I said that. All right. Anything else you want to add? MR. GRILLO-No. Just like the letter says, you know, I want to keep it uniform. I really don’t want to put it in the middle of the property. It’s going to obstruct everybody’s views. People walk their dogs up and down the block, and they look at the lake. If I add this addition to the side of the existing building, I mean, nobody would even know that anything was done after a few years went by. I mean, of course in the beginning everybody’s going to know. They’re going to see the construction going on, but a couple of years go by, nobody would ever notice. MR. STONE-Any comments from the Board, since I was not here at the last application, last meeting? MR. BRYANT-I have a question. I was reading the minutes from the 9/15 meeting when this was tabled, and there’s no indication why it was tabled. Since this is the same application, and there’s been no change in it, why was it tabled? Do you remember? MR. GRILLO-They told us to get a copy of the minutes, look it over, and try to see what we could do about it. So we got minutes. We looked over the neighbor’s complaints, and addressed, what would be better, what we feel. MR. BRYANT-There were three letters entered into the record at that time, on the 15. All three th were opposed. Do you want to respond to those letters? MR. GRILLO-Yes. I think one letter was from a neighbor who believed that I was going to make an apartment on top of the garage, which I never even thought of until she mentioned that, but I have no plan on doing so. Another letter was from the Lake George Association. I believe they were contacted by the neighbors that came to the meeting, and also wrote the letter. I guess they’re all friendly or whatever, and they got their support for that. I think that was the only two letters. The other two neighbors attended the meeting, and the other lady, what did she. MR. BRYANT-There was a letter from Middleton and there was a letter from McCollister. MR. GRILLO-Middleton was here. I guess she read her letter. MR. BRYANT-She read her letter. MR. GRILLO-McCollister sent the letter. Lake George Association sent the letter, but I don’t recall what the other woman was opposed about. MR. BRYANT-Okay. 3 (Queensbury ZBA Meeting 11/17/04) MR. URRICO-From your original application in June, at that time you requested a 720 square foot garage addition. That to me seems to be the only change. The difference is, the change has been from a 720 square foot garage addition to a 600 square foot garage addition. MR. GRILLO-Correct. MR. URRICO-Everything else appears to be the same, height. MR. GRILLO-Right. MR. URRICO-Side setback’s a little bit more. MR. GRILLO-Well, the only reason I’m keeping the height the same is because that’s what I have. I have that. I want to keep it uniform. I mean, it really would look like a house if I went with a lower roof. It would look like a house with an addition on it. That’s what I’m trying to avoid. MR. URRICO-Okay. MR. STONE-Anybody else? Okay. We had closed the public hearing, but just since we’re here with a, not new application, but we’re going on, let me reopen the public hearing. PUBLIC HEARING RE-OPENED BOB MARRA MR. MARRA-I’m Bob Marra, and I own a piece of property directly behind there. I own the property right there where the mark is. MR. STONE-To the west across Seelye Road? MR. MARRA-That’s right, and I’ve been there since the early 60’s, and I think that Bob Grillo has done a good job of updating and keeping his place nice and clean, and doing everything that he should be doing to make the property very, very nice. I think he’s been a great neighbor to everyone in the area. Actually, that picture, you’d be standing on my front when that’s taken. That’s my view of what I see from my front porch. If he did put a new structure there, that would block my view. I wouldn’t like that at all, but I would not object at all to put an addition on that garage the way it is, or the way he’s proposing it. I think it would be great. I think it would get rid of all his toys that are outside and put them inside and make the area look nice. MR. STONE-Thank you. MR. MARRA-Okay. MR. STONE-Anybody else wishing to speak on this subject? Any additional correspondence, compared to what’s been read? MR. MC NULTY-I find nothing new. MR. STONE-Okay. Let me close the public hearing. Let’s talk about it. Let’s start with Jim. MR. UNDERWOOD-I think we have to key on as to what the changes have been from the original proposal. We’re down to 600 square feet of building that’s proposed, and as the applicant has suggested to us, you know, he could build a 500 square foot building out in the middle of the yard and block his neighbor’s view and add to the hodgepodge nature of a lot of the parcels up on Seelye Road and along the lake there. I think it makes more sense, even though we’re going to grant a little bit over height relief and 100 feet over the distance, excuse 4 (Queensbury ZBA Meeting 11/17/04) me, the cumulative amount of building, that it would make sense to add on to the building as the applicant has proposed in this case. I wasn’t opposed to this when he was at 720 square feet, and I think it’s a bit of a stretch to imagine that this is going to effect the lake. It’s not going to be seen from the lake. It’s going to have the least amount of impact on his most effected neighbor, which is the person that lives to the west. So I would vote for it’s approval. MR. STONE-Chuck? MR. ABBATE-Okay. Thank you. I would agree with Jim, but in addition to that, it was enlightening for me to see a neighbor who will be immediately affected by this come forward and support this application. I think that’s very important. I think the request is reasonable. I agree with all the comments that Jim has indicated and I will support the application. MR. STONE-Al? MR. BRYANT-Well, there are four areas of relief requested. As far as the setback, I understand that, you know, you want to just extend an existing building which is close to the property line. The height relief, in order to keep the structure consistent, that would be acceptable, the continuation, obviously. I think I’m still troubled by the size of the garage. That’s the only place that you really made any significant change. You’ve gone from a request of an additional 540 square feet, on June the 16, to 420 square feet on September the 15. I’d like to see it thth downsized a little bit more. MR. STONE-So you’re saying? MR. BRYANT-I’m opposed to it. MR. STONE-You’re opposed to it as presented? MR. BRYANT-Exactly. MR. STONE-Okay. Roy? MR. URRICO-Yes. The two areas I was most troubled by are the height relief and the area relief as well. I’m satisfied that you’ve scaled it back. I think you’ve made some concessions there. I’m still a little troubled by the height, but I understand why you’re doing it. I would be in favor of it at this point. MR. STONE-Okay. Joyce? MRS. HUNT-Yes. I’m glad to see the scaling down of the size, and I agree, the height, I don’t think would be a good idea to have two different heights to the building, but I would want assurances that the stormwater would be diverted and contained on the existing structure, as well as the new one, because of the neighbor that complained about that. Do you have plans on how to do that? MR. GRILLO-Yes. We’re going to start out with gutters and leaders, and run the water towards my side of the garage. MRS. HUNT-Then I would be in favor. MR. STONE-Chuck? MR. MC NULTY-Well, I can see the rationale for the height relief, and if I were to approve an addition on that, I wouldn’t have a problem with the height relief. However, I do have several other problems. I’m trying to look at this based on if the current proposal was the first one that came in. I think it’s a mistake to evaluate a proposal based on how much the applicant has compromised without considering other things. It’s still an oversized garage that’s being 5 (Queensbury ZBA Meeting 11/17/04) proposed. It’s going to be 1320 square feet, versus 900 that’s allowed. It’s still going to be way too close to the side setback, and I’m bothered about the idea of continuing, well, you can’t really say violation of the setback because the current garage has pre-existed, but it would be allowing an additional violation, I guess, or a new violation of the setback. That bothers me. The oversize of the garage bothers me. Going back to some of the things I’ve said before, back two or three years ago when we re-did the Zoning Ordinance, the people that re-did it were fully aware of the problem that a lot of people in Town needed, or felt they needed, larger garages to store extra things, boats, snowmobiles whatever, and they consciously made the decision to leave the limit at 900 square feet, and I think the approach to this kind of thing, of I’ve got too much stuff to house in the standard size garage, needs to go back to the Town Board in a revision of the Zoning Ordinance, instead of this Board okaying expansions every time somebody’s got too much stuff to store in their existing garage. So that bothers me. I think the points that we made earlier, the applicant certainly could put a storage building in the middle of his property if he wanted to, but it would be limited to 500 square feet. Anything beyond that, he would need a variance. If it were structured in a way, or used in a way that it became a second garage, he would also need a variance for that. So he can’t just go ahead and build whatever he wants in the middle of his property, and I guess finally, I am totally unconvinced that the addition would make all the things that are on the outside of that structure now disappear. The plans that have been shown to us show a fair portion of the addition to be a shop. You can’t have a shop if it’s crammed full of stuff that’s being stored. So I think it’s just going to push what’s being stored outside now closer to the road. I think it’s going to tend to give the property more of a commercial look if it’s expanded and it’s got additional garage doors on it, even though it’s not a commercial operation, I understand, but I think it’s going to detract from the residential nature of the property. So considering all those, I’m going to be opposed. MR. STONE-I basically agree with Mr. McNulty. I even go further. I don’t think anything is reasonable on this thing. I think any time you do a project and you need four variances, there is something wrong with the project. I mean, 1320 square foot garage is more than we’ve been granting and we get approached for second garages and enlarged garages, and I just think that it’s too much. Contrary to Mr. McNulty, I think the height bothers me. I think you’ve got a building at 21 feet, that’s fine, but I don’t think we need more building in 21 feet, particularly when it’s like a wall on the north side, and I know your neighbor made some comments about it, but as Mr. McNulty said, we’re adding to this wall that’s two feet, 2.63 feet from the line. That’s extremely close, and I don’t think we, as a Board, should allow that kind of closeness, if you will. So I’m inclined, because of the height, because of the size, because of the setback, I’m inclined, and I will vote no on this thing, but having said that, I perceive there are four people who are willing to grant this variance, and therefore I need a motion to approve. MOTION TO APPROVE AREA VARIANCE NO. 45-2004 ROBERT & JANICE GRILLO, Introduced by James Underwood who moved for its adoption, seconded by Charles Abbate: 121 Seelye Road. The applicant is proposing a 600 square foot garage addition at 21 feet high to match the garage that currently exists there, and this has been scaled back from the 720 square foot detached garage originally proposed. The relief required. They’re requesting 17.64 feet of side setback relief from the 20 foot minimum requirement, and again, this is a reflection of building on to the current building, as it’s cited. It’s thought that this is the best thing to do, as opposed to building a separate structure out in the middle of the yard meeting the setbacks. Five feet of height relief from the 16 foot maximum requirement, and again, this is to match the current building so it doesn’t look like an amalgamation of an add on to the side of it. Again, our rationale is that having this building built in one continuous piece looks better than having it separate, with separate structures on site. Three, the relief from the Continuation requirements for Section 179-13-010(B) and, Four, additionally, even though the applicant has not requested any, he needs 420 square feet of relief from the 900 square foot maximum size requirement for a garage per Section 179-5-020(D). Again, that 420 square feet of relief, he could build a 500 square foot building separately out in the yard. 6 (Queensbury ZBA Meeting 11/17/04) Duly adopted this 17 day of November, 2004, by the following vote: th AYES: Mr. Urrico, Mrs. Hunt, Mr. Abbate, Mr. Underwood NOES: Mr. Bryant, Mr. McNulty, Mr. Stone ABSENT: Mr. Hayes MR. STONE-There you go, gentlemen. I should have announced that the Loszynski application has been withdrawn. If anyone is here, I hope no one spent 25 minutes listening to us thinking it was going to be on. All right. NEW BUSINESS: AREA VARIANCE NO. 90-2004 SEQRA TYPE II JEAN M. HOFFMAN OWNER(S): JEAN M. HOFFMAN ZONING: WR-1A LOCATION: 159 CLEVERDALE ROAD APPLICANT HAS CONSTRUCTED A BOATHOUSE/SUNDECK, AND REQUESTS RELIEF FROM THE MAXIMUM HEIGHT REQUIREMENT. CROSS REFERENCE: SPR 50-2001, BP 2002-142 BOATHOUSE, AV 91-2001 WARREN COUNTY PLANNING: NOVEMBER 10, 2004 ADIRONDACK PARK AGENCY YES LOT SIZE: 3.43 ACRES TAX MAP NO. 227.17-1- 9.11 SECTION: 179-5-050(A10) BILL KENIRY, REPRESENTING APPLICANT, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 90-2004, Jean M. Hoffman, Meeting Date: November 17, 2004 “Project Location: 159 Cleverdale Road Description of Proposed Project: The applicant has constructed a boathouse with a 978 sq. ft. sundeck roof at a height of 17.5 feet. Relief Required: The applicant requests 3.5 feet of relief from the 14-foot maximum height requirement, per § 179-5-050(A10). Parcel History (construction/site plan/variance, etc.): SP 50-2001 Mod.: to be reviewed 11/23/04 pending outcome of AV 90-2004. BP 2002-142: 04/08/02, 1,170 sq. ft. boathouse with 700 sq. ft. sundeck. SP 50-2001: 11./27/01, 1,170 sq. ft. boathouse with 700 sq. ft. sundeck. AV 91-2001: 11/15/01, size relief for a 1,170 sq. ft. boathouse. BP 2001- 664: 09/18/01, 174 sq. ft. deck. AV 30-2001: tabled 05/16/01, setback and continuation relief for a 624 sq. ft. second-story addition (application withdrawn on 7/12/01.) Staff comments: The applicant claims plans and specifications consistent with the prior approvals associated with the project were provided to the contractor (Pro Built Docks). Staff wonders if the applicant has contacted the Lake George Park Commission relative to Permit #5234-11-02 (Wharf Construction). The park commission permit will need to be revised to reflect the “as built” boathouse/sundeck. Will a variance be required from the park commission as the boathouse/sundeck height exceeds their maximum height requirement of 16 feet?” MR. MC NULTY-And that was referred to County, and they came back with a No County Impact. MR. STONE-Just for purposes of the record, before we turn it over to you, I did talk with Molly Gallagher at the Park Commission today, and they do not grant after the fact variances. It will go to an enforcement action now that they are aware of it. Just for the record, you should know that. Okay. People, go. MR. KENIRY-Mr. Chairman, thank you very much. I’m Bill Keniry. I was here with Mrs. Hoffman, who’s here with me tonight, on the original application, you’ll recall, I attempted, at that time, to be very brief, and I will try to do the same tonight. Mrs. Hoffman has laid out the facts as best she can in the application. From our perspective, respectfully we suggest and ask that you consider first, the first criteria in the application, the benefit to the applicant. To some extent, perhaps, it is obvious, in that all she seeks to do is complete the project that was originally intended and undertaken in this instance. The obvious also benefit to the applicant 7 (Queensbury ZBA Meeting 11/17/04) would be, in this instance, that she would not be obligated to tear that which has been constructed down and then not also have to rebuild it. This would allow her to finalize the original undertaking that we were here for in the first instance. With respect to the effect on the effect on the character of the neighborhood, respectfully we suggest and ask that you consider that there be none, particularly that with respect visa vie the first original grant of the variance that we had received. I think we’re talking about a variance here in terms of the magnitude from the original grant in the order of 3.5 feet and as you all have the proof before you of how these circumstances developed, it’s not through the fault of the applicant. It’s not that Mrs. Hoffman somehow deliberately disregarded the approvals. To some extent, obviously, we could have come here in the first instance, had we intended this. Finally, with respect to feasible alternatives, we ask that you find that there be no other feasible alternatives in terms of the effect. We’ve contemplated and thought through the options in terms of cutting, if you will, of the railing above the top. That creates a safety hazard, and also a Code violation, in terms of the upper railing on the deck, and if you cut below, the result will be that on the respective sides of the dock, we believe that it’s approximately six feet on the sides from the surface of the dock to the lower portion of the awning. If you reduce it, the result would be you would have approximately three feet in terms of the clearance between the ceiling on the sides of the roof, if you will, and the surface area of the dock. I hope that was clear enough. The picture, perhaps, depicts it. We ask that you find that the relief not be considered substantial, and finally with respect to the physical characteristics and the environment in that area, we hope that you find that what is proposed and what is asked of you tonight is more in keeping and consistent with the area than to have us tear it down. I’ll try to answer any questions that you have, and appreciate your time. Thank you. MR. STONE-All right. Area Variance No. 91-2001, which was a size relief for the dock surface, basically. What was the height of the drawing that accompanied that? MR. KENIRY-I believe that, in the first instance, and I tried to go back into my original papers, the first thing I found is that the prior structure that was actually there was 16 feet, and we sought 14 feet, I believe, and as it is built, it’s 17.5. So 3.5 difference. MR. STONE-Well, that’s the 3.5, but the original drawing was 14? MR. KENIRY-I believe that it was. MR. STONE-I mean, to me, three and a half on fourteen is not a small building area. It’s not like measuring and being an inch or two off, particularly when you consider that not only is our requirement 14 feet, the Park Commission is 16 feet, and I had trouble understanding, that’s all, comprehending how it could get that high. MR. KENIRY-And I don’t mean to prejudge what the contractor might perhaps say, were he here to defend himself, but apparently he has some issue with respect to the manner in which the measurement is conducted, utilizing the mean water mark, and I believe that there has been some, perhaps, consistent mis-measurement, perhaps on his part that we have now later learned. While I do understand, I appreciate what you’re talking about in terms of the number of feet, I certainly appreciate what linear feet are and the distance. I think I can measure as a reasonable person, but I think that that’s where the origin of this problem arose, as I understand it. It’s not so much of how he applies that ruler, but it’s how he performs the measurement from that mean high water mark. MR. STONE-Having recently renovated a dock with a competitive builder, he had no problem in determining the height of our structure. MR. BRYANT-I have two questions, please. The building permit that you refer to is a 2002 building permit to construct this boathouse/sundeck thing. Is that what you’re talking about? I mean, the Area Variance was directly related to that? MR. KENIRY-I think that that was actually 2001, if I. 8 (Queensbury ZBA Meeting 11/17/04) MR. URRICO-He’s talking about the permit. You’re talking about the variance. MR. BRYANT-The actual permit to construct the building was issued in 2002. We’re talking about the same building, right? Okay. MR. KENIRY-Yes. MR. BRYANT-You explained the, and from what I understand what you said, it’s a contractor’s error between the 14 and the 17. How did we get from 700 square feet to 978 square feet on the sundeck? Is that a contractor’s error, too? MR. KENIRY-He did it. MR. BRYANT-What do you mean he did it? MR. KENIRY-He built it that way. MR. BRYANT-Didn’t he have plans to go by? MR. KENIRY-And that deviates from the plans that he was given. Totally. MR. BRYANT-And what is the basis for that deviation? I mean, what, that doesn’t, you know. JEAN HOFFMAN MRS. HOFFMAN-We had the balcony. Jean Hoffman. We had the railing right on the edge, and when I was at either the Planning Board or the Zoning Board, one of the gals said, it’s too big, bring it in. So the plans that I gave John said he was supposed to bring it in like one foot, or a foot and a half, on this side, and a foot and a half on that side, which would have brought the railing in, which would have eliminated that area space. He didn’t do it. He put it on the outside. MR. BRYANT-So it’s basically the positioning of the railing and not, the overall structure is not any bigger than the original? MRS. HOFFMAN-No, no. The original’s fine. It’s just he was supposed to bring those little railings in, and he didn’t. He set them right on the edge where you usually set a railing. MR. BRYANT-Okay. The structure is bigger, I mean, it’s higher, which would indicate, in my mind, that there were probably additional building costs. I mean, I don’t understand the logic. Why would the builder build a structure higher, incur additional expenses, because obviously his original contract and estimate must have been based on a 14 foot structure, and now your structure is 17 foot plus high, and you’re also talking about a square footage of, I don’t know, 1100 square feet. So, you know, that adds cost. So I don’t understand what the benefit would be for the contractor to do that. MRS. HOFFMAN-Johnny was on a payment schedule. So the longer he stayed and the more he did, the more he earned, black and white. As far as the side of it, I think that’s what you said in your first question, I haven’t spoke to the gentleman in quite a while. I fired him off the job at one point. So I haven’t talked to him. As far as coming over the edge, when I talked to one of his men up in Bolton that used to work for him, he said Johnny’s idea was that when you measured, say this is the dock, when you measured from here and you came up, it was a man’s height. That’s what Bill was trying to relate to, and then it came up here, and to make this foot and to get a snow load on a very low, I mean, if you looked at the docks, it’s very, very low. We even bought two foot shingles instead of the foot and a half shingles, just so the ice and snow can’t get up, and I had him put snow and ice on both sides, so we wouldn’t have any trouble with it, but it’s very, very shallow on that pitch, but he started from here, and came up with a 9 (Queensbury ZBA Meeting 11/17/04) six foot man, then came on this slope, and that’s what determined this piece. Then he put the railing on top, which brought it up over the top. MR. BRYANT-Was he an employee or is he an independent contractor? MRS. HOFFMAN-Independent contractor. I waited seven months to get him. MR. BRYANT-Thank you. MR. URRICO-When was the construction? When was it completed? MRS. HOFFMAN-I had another group from North Creek complete it in I think April or May of this year. MR. URRICO-Of this year? MRS. HOFFMAN-Yes. MR. URRICO-And when was the error discovered, at what point? MRS. HOFFMAN-When the boys came and measured it. MR. URRICO-Thank you. MR. BRYANT-The boys meaning the Staff? MRS. HOFFMAN-The Staff. MR. BRYANT-Okay. MRS. HOFFMAN-Craig Brown. MR. ABBATE-I have some questions. Let me go back to Step One. The building, the boathouse as it is constructed is currently 978 square feet. Is that correct? MRS. HOFFMAN-The top, yes. MR. BRYANT-The sundeck. MR. ABBATE-The sundeck. MRS. HOFFMAN-The sundeck. MR. ABBATE-Okay. What were the plans for the square foot, submitted to the builder? MRS. HOFFMAN-Seven hundred. MR. ABBATE-Seven hundred, and currently, as I understand it, the height of the sundeck roof is at 17 feet 5 inches, is that correct? MRS. HOFFMAN-That’s correct. MR. ABBATE-And what was the height when submitted to the builder, on the plans? MRS. HOFFMAN-Fourteen. 10 (Queensbury ZBA Meeting 11/17/04) MR. ABBATE-It was fourteen, okay. So in effect what we’re saying, I’ll just reiterate, that this is squarely a contractor error, and you are, in effect, requesting, your counsel is requesting, relief from, as a result of this contractor error. Is this correct? MRS. HOFFMAN-That’s correct. MR. ABBATE-Okay. MR. UNDERWOOD-I might add a few comments. Being a log builder, and knowing how this goes, I think that a little bit of an explanation as to how this occurred. I would have to agree somewhat with Mrs. Hoffman that if you’re looking at the angle of the roof, if you guys are looking at the pictures that you got with your plot here, if you’re looking at the angle of the roof, I think the point that she was trying to make was that the original builder on the project had to determine how much headroom was needed to walk out on that dock, and when you’re building with logs, I think one of the things you have to keep in mind is the scale of the logs. If you put a log across and it’s right at, you know, forehead height or just over your head, every time you walk out on the dock you’re going to bang your head on it, and a general rule of thumb with log building is if you think something’s too low, put it up one notch higher than you think, just to make to make it look better, and the result, usually, of that is that people thank you because they’re not banging their heads on it every time they walk out on your dock. I think that if you look at the height, it’s a reflection of primarily the angles of that roof. As she said, if you’re looking over on the edge of the roof, you’re looking at a very low angle. You don’t have a whole lot of headroom when you’re on the exterior portions of the dock out there, and in order to develop the structure as it was built, you know, that height is a mere reflection of that only. I don’t think there was any intent to make the thing any higher, and if you look at that real gentle slope that comes down, it’s about as low a pitch of a roof as you can make, without having a flat roof and making it just another ugly boathouse up on Lake George. The three and a half feet of relief, I think, would be a reflection of if you measure the height of those railings up there, I would venture a guess that they’re probably about three and a half feet. I’m not sure what the actual height of those is, or what it was measured at. So that would be, the relief would be not so much for the building itself as it would be for the continuation of keeping that sundeck up on top of their, you know, and maintaining its use as built. I would just make the comment in general that, you know, I think you have to look at the end result of what you have there. I mean, you’re going to have to deal with the Park Commission. I don’t know how lenient they are, or whether they’re adamant about their height restrictions also, but I think, you know, in looking at what’s been built and the amount of time and effort that’s gone into it, I don’t think there was any intent to build something and get an extra foot of height out of it, or three feet of height of it, for that matter. It’s all a reflection of that deck up on top. If you didn’t have the sundeck up there, I think you would be pretty close to meeting the height requirement, as per our Code, but at this point in time, it would seem a little obtuse to remove that, but that’s just my opinion. MR. STONE-Anybody else? MR. ABBATE-Interesting. Thank you, Jim. Obtuse to remove it. What would happen if it were removed? MR. KENIRY-Can’t use it. MR. ABBATE-Can’t use the sundeck. MR. KENIRY-Can’t use it. The structure would remain, but it renders it unusable. MR. ABBATE-The structure would remain. So there wouldn’t have to be any enforcement to tear down the building? MR. KENIRY-It just renders that portion of the structure useless, really. 11 (Queensbury ZBA Meeting 11/17/04) MR. MC NULTY-If that were removed, if you wiped out the sundeck, took the railing off, where would that leave you on height? Does that still leave you over the height? MR. KENIRY-I don’t believe so. MR. STONE-Did you ever measure that, Bruce, the posts? MR. FRANK-I’m not sure we actually measured them. Typically, the rails are three feet high. I’d have to confer with Craig, the Zoning Administrator. He went with me the day we did the measurement. I’m not sure if we measured those exactly, but I guarantee you they’re close to three feet high. MR. ABBATE-Do you know, folks, is it three feet high? Because if it was three feet high, now you can reduce that 17.5 by three feet, which makes it 14. I mean, the question then becomes, maybe a choice. Maybe the choice is maintain the structure and not use the sundeck, or insist on the sundeck and perhaps face enforcement. I mean, I’m just trying to be honest with you. MR. KENIRY-Sure. MRS. HOFFMAN-Fine. MR. URRICO-I have a question for Staff. Even though the square footage of the sundeck changed from 700 to 978 square feet, that didn’t require an additional variance there? They’re still within? MR. FRANK-There’s no Code that has a maximum for sundeck size. Actually, after reviewing the meeting minutes from that meeting, when this was approved, at least three different Board members commented that it was not a compliant size sundeck. I wasn’t at that meeting, but that was stated, and that’s how that got approved, from my review of the meeting minutes. That’s why they agreed to the 700 square feet. There’s no restriction on the maximum size of a sundeck, dock maximum size is 700 square feet. So that was a condition that the Chairman suggested, no one voted against it, and it was agreed to by the applicant. So that was a condition of the approval. MR. STONE-Seven hundred square feet. MR. FRANK-Seven hundred square feet, which could be changed here, if he chose to, because you wouldn’t be granting relief. You just wouldn’t be conditioning the approval of the as built structure. MR. URRICO-But that was a condition. So the condition was that. MR. FRANK-That was a condition that was offered to the applicant by the Chairman, and she accepted that condition. MR. ABBATE-What was the date of the approval, do you recall? MR. STONE-November 15, ’01. th MR. ABBATE-November ’01. The ZBA approved it on November ’01. Out of curiosity, when was it determined by you folks that there was a violation? MR. KENIRY-I believe it was August 27. th MR. ABBATE-What year? MR. KENIRY-I’m sorry, 2004. 12 (Queensbury ZBA Meeting 11/17/04) MR. ABBATE-So we went from November ’01 until 2004. MRS. HOFFMAN-Johnny was there for roughly 21 months. MR. STONE-It wasn’t finished, Chuck. MR. ABBATE-I see. MR. STONE-The building permit was April 8, ’02. MR. ABBATE-Okay. I’ve got you. MR. FRANK-In the Fall of 2003, I visited the site to do an inspection, I happened to be in the area. I was doing boathouse inspections that day. It wasn’t close to even being completed. So they said come back next year. MR. ABBATE-Yes, I understand. Thank you very much. MR. BRYANT-Question for Staff, relative to the Park Commission permit. Based on the Staff notes, are you indicating that they may reject the? MR. FRANK-I don’t think we know that. It was just a question that was brought up, because they needed a Park Commission permit, and it was just a question, I guess. MR. STONE-Well, as I said earlier, they were informed by a copy of Staff notes, I believe, to the fact that it is 17 and a half feet. Their requirement is 16, and I was told by Molly Gallagher, who is the dock person, that they don’t grant after construction variances. They go immediately to an enforcement action. MR. ABBATE-Why would Staff copy these folks in the first place? MR. FRANK-We did not copy Staff. Staff did not copy the Park Commission. I think you commented, Mr. Stone, that you contacted Molly Gallagher. MR. STONE-No, no. I contacted her today. She knew about it. MR. BRYANT-Well, this is public information. Just one more question, Mr. Chairman, who’s ruling would supercede? Assuming that we grant a variance tonight, and the Park Commission decides that they’re not going to accept a structure that’s 16 foot, who’s ruling would prevail? MR. MC NULTY-The Park Commission. MR. BRYANT-Well, then why are we listening to this until the Park Commission makes the decision? MR. MC NULTY-Well, they could say the same thing the other way. MR. FRANK-This Board can do what they want. They act independently of the Park Commission. MR. BRYANT-I understand that, but the question was, who’s ruling would prevail? MR. ABBATE-Well, I’m not so sure that’s important. I think the applicant has a right to appear before the ZBA. MR. BRYANT-Well, there’s no question about that. MR. ABBATE-Well, then. 13 (Queensbury ZBA Meeting 11/17/04) MR. BRYANT-But the question is timing and sequence. MR. ABBATE-We should only concern ourselves with the information in front of us. MR. STONE-We are more restrictive than the Park Commission. MR. BROWN-To answer your question, Mr. Bryant, if this Board finds that the dock height is too much, and you reduce it to 14 feet, that’s what’s going to hold. They can go to the Park Commission, the Park Commission can say, no, 16 is fine. Your 14 is going to be the one that we’re going to look for to enforce. MR. BRYANT-Okay. If we say tonight, 17 is where it’s going to be, and the Park Commission decides that they can’t approve anything over 16 feet, who prevails? MR. BROWN-The most restrictive one, the Park Commission would then have the enforcement to bring them down to 16. MR. BRYANT-So what you’re saying is, if we say, no, 14 feet, then it’s irrelevant what the Park Commission says, it’s the most restrictive? MR. BROWN-Correct. MR. BRYANT-Okay. Thank you. MR. URRICO-I’d like to ask one more question about the size. The boathouse itself, the entire boathouse, what’s the measurement of that right now? MRS. HOFFMAN-Eleven seventy. MR. URRICO-So that’s what you requested back in ’01? MRS. HOFFMAN-That’s correct. When we first started, it was two boathouses that were 700 feet apiece because the lakefront warrants, or I can have two 700 foot boathouses, which meant 1400 square feet. I didn’t want two. I wanted one. So we drew it up for 1170, and that’s what we built. MR. URRICO-That’s what you built. MRS. HOFFMAN-Yes. MR. URRICO-Okay. MR. STONE-Anybody else? MR. FRANK-Mr. Chairman, for the record, after reviewing my inspection with the Zoning Administrator, we did measure the height to be three feet for the top of the rails. MR. STONE-Three feet to the top of the rails? MR. FRANK-From the top of the sundeck to the top of the rail is three feet. MR. STONE-Okay. Which would be fairly standard for safety reasons, yes. Okay. Hearing no other questions. MR. URRICO-I have one more. How much can that railing be reduced and still maintain the integrity of the sundeck? 14 (Queensbury ZBA Meeting 11/17/04) MR. STONE-From a safety standpoint, you mean? MR. URRICO-Yes. MR. STONE-I don’t think it can. MRS. HOFFMAN-I don’t think, 32 inches is about the top, isn’t it? MR. URRICO-Okay. I was just wondering. MR. BROWN-Yes. I think 36 was the minimum with the new Building Code. MR. URRICO-Okay. MR. STONE-Anybody else? All right. Let me open the public hearing. Anybody wishing to speak on the subject? PUBLIC HEARING OPENED MR. STONE-Correspondence? MR. MC NULTY-Yes. We have a couple of pieces of correspondence. One we have a letter from Leigh Beeman, 7 Overlook Drive, Queensbury, and they say, “I have no objection to Mrs. Hoffman’s application for a height variance for her boathouse/sundeck. What has been built is unique and beautiful and does not interfere with my view in any way.” And we have a letter from Susan Bardin, Land Use Management Coordinator for the Lake George Association. She says, “I’m writing on behalf of the Lake George Association to provide our comments regarding the above mentioned subject matter. It is our contention that the variance request of 3.5 feet of relief from the 14-foot maximum height requirement for the boathouse is substantial. It appears that in November 2001, the same applicant requested a variance for 470 sq. ft. of relief (from the maximum surface allowable of 700 sq. ft. for a dock or wharf), to build the 1170 sq. ft. boathouse with 700 sq. ft. sundeck. This substantial request was granted. Granting yet another substantial variance for the same structure is, in our opinion, not appropriate and should be denied by the Board. It is the Town’s charge to prevent conspicuous shoreline development by limiting the size and height of boathouse structures. Thank you for your consideration of our comments for the protection of the water quality and aesthetic resources of Lake George.” MR. STONE-Anything else? MR. MC NULTY-And that, I think, is it. I see nothing else. MR. STONE-Okay. Nobody else out there. Let me close the public hearing. PUBLIC HEARING CLOSED MR. STONE-Any comments you want to make on either of those two letters? You don’t have to, only if you want to. MR. KENIRY-No, I think the Board is aware Leigh Beeman is the person who is perhaps the most directly affected. She’s the neighbor who would have some type of standing to complain, with respect to impact on her view. MR. STONE-Okay. MR. KENIRY-Thank you. MR. STONE-Okay. Let’s talk about it. Chuck Abbate? 15 (Queensbury ZBA Meeting 11/17/04) MR. ABBATE-Okay. Thank you. I think what we have here, based upon what I’ve heard this evening and what I’ve read, is a problem that was not generated by the applicant but rather by the contractor. Now, the counter that argument would be, well, there is individual responsibility, that the burden of proof always falls on the applicant to determine what’s right and what is wrong. However, as we discussed earlier, with an entirely different situation prior to this meeting, there are always mitigating circumstances, and after all there are individuals who are going to be affected by this. It’s currently, in my opinion, a beautiful structure. It would, in fact, be a shame to have to be torn down, and as far as I’m concerned, I could care less what the Lake George Park Commission might say. That’s not my problem. My problem is to deal with the applicant that’s presented before me this evening. I do not believe that there was any intent at all on the part of the applicant to attempt to deceive or to misdirect this Board. I think it’s an unfortunate set of circumstances, and I do not believe, at least in my opinion, that the applicant was responsible for this. It would be a travesty of justice to direct that this houseboat, this sundeck, rather, be destroyed. Based on the circumstances that I’ve heard this evening, Mr. Chairman, I would support the application. MR. STONE-Okay. Mr. Bryant? MR. BRYANT-Well, I agree with a few of the things that Mr. Abbate said. First off, it is a beautiful structure, and I also believe that the Hoffmans had no intention to build the structure illegally. It’s not their error, but we have applicants come before us quite often where contractors make a mistake, for whatever reason, either they put the building in the wrong place or it’s too close to the side, or for whatever reason, and my understanding of your description of the problem is that it was a contractor’s error. My position is that these type of situations, I always ask whether or not I would approve the application if the structure wasn’t built. In this case, I would have been opposed to the application, and as far as culpability and whether it was the contractor’s error or plans or whatever is really of no consequence. This is an issue between you and your contractor. I’d have to be opposed to the application. MR. STONE-Roy? MR. URRICO-Yes. I’m afraid I have to agree with Mr. Bryant. We’ve had applications where we’ve fought for every foot of height relief that we can grab, and try to keep that to a minimum, and I believe there was some honest, and perhaps maybe not so honest mistakes made in this project, but if this was coming before us right now, and you were asking for three and a half feet of relief on the height, I would not want to grant that, and that’s the way I have to look at it. I have to look at this as if it’s coming to us brand new and try not to get involved in the particulars that put you in this circumstance, which I believe were not your fault, but based on the specific request of three and a half foot from the fourteen foot maximum, I would have to say no. MR. STONE-Joyce? MRS. HUNT-Yes. I tend to agree. I think it’s a substantial request, and I would have opposed it if it had come to us before it was built and so I would oppose it now. MR. STONE-Chuck? MR. MC NULTY-I’m afraid I’m going to have to echo the more recent comments. Looking at the thing, first off, I guess, if I were the applicant, I would do exactly what the applicant’s doing and ask for a variance, given what’s there. So I fully understand why the applicant’s before us, but there’ve been times in the past this Board’s made the point, more regarding commercial and business decisions, but saying it’s not our job to fix a business error or a misstep on judgment on the part of a business and rescue them, and I think kind of the same thing applies here. It’s not necessarily our job to rescue a mistake, regardless of who made the mistake. Second, I don’t think, being harsh about it, there’s any established right to have a boathouse or to have a sundeck. On the other hand, I’ll agree. It would be a shame to tear that structure down, and certainly there are some definite benefit to the applicant, in not having to go to that kind of 16 (Queensbury ZBA Meeting 11/17/04) expense, but I think, you know, even considering the justification that you’ve got to have the edge of that at a certain height so you don’t whack your head if you duck under it, I guess my response for that is if it doesn’t work, then you don’t build it. Going beyond that, I think there are some alternatives. To begin with, the whole structure does not have to be torn down. It’s too bad, but if the applicant eliminated the sundeck, took the railing off and eliminated the sundeck use, that structure would be nearly compliant. From what we’ve said tonight, it sounds like maybe it would be a half foot higher than it ought to be. I’d be willing to go for a variance for that half foot. That, I think, is more than reasonable, but given the current situation, it’s clearly beyond the height that was approved. It’s clearly beyond the size that was approved. A mistake was made, and I don’t believe it’s this Board’s job to fix that mistake. So, as presented now, I’d be opposed. MR. STONE-Jim? MR. UNDERWOOD-Yes. I kind of said my piece before, and I think I tried to rationalize, you know, why we should allow it to remain as it is. I think that, as Chuck has suggested, you could take the sundeck off, but you wouldn’t have a sundeck up there. You do have the area created up there for a sundeck. I don’t think this is a displeasing structure to the eye. I think compared to 99% of the garbage that’s built up on the lake year after year, that everybody wants this generic mode of docks, there’s no individuality up on that lake. It’s just a bunch of people that are trying to up and up on everybody else, but I think this attempt here was an honest attempt to create something of lasting value, and of beauty for the community. I think you have to look at it in the context of the size of the lot, the amount of water frontage and the fact that, you know, when we initially came, I was against this proposal initially, but having seen the finished project, I think that it reflects a style that is Adirondack in style, and I think it’s something that ought to be preserved and not just torn down just out of, because something’s a few feet over height or not. There should be some individuality built into things, and I don’t think any of the Adirondack great camps that are located throughout the Park, probably none of them would meet our height requirements. So, you could go retroactively back and tear everything down and just build generic, you know, pressure treated lumber crap up there and that might be your viewpoint, but I would support your application. MR. STONE-I think you made a great argument, Jim did, for the size of the dock, and I have no problem with that. We granted relief for the dock. I think it was built specifically, as I look at it, for boats, the fact that both outside piers are covered, which is unusual on the lake. It’s a very attractive dock. I think a lot of people have said that. Certainly it was built for boating, with the overhangs on both sides. As I say, I don’t know of any docks in my area that go that far. They may go halfway across the pier, but they don’t go all the way. So it was built for boats. I think in this particular case, as Mr. McNulty said, there is a reasonable idea here to bring this closer to conformity, and I certainly could approve taking off the sundeck and bringing it down to 14 feet, 14 feet 6 inches, whatever it is. I cannot, in good conscience, as attractive as this dock is, condone that height. I just think it adds insult to injury. I think it is a lovely structure. I think it’ll still be a lovely structure if we don’t have a sundeck, but I can’t, in good conscience, say yes to this variance. I just think it’s too much. Having said that, I need a motion to deny with a condition that, as an alternative. Go ahead, Mr. Brown, you were about to say something, before I get in trouble. MR. BROWN-Well, to deny with a condition. What if they don’t meet the condition? Is it not denied now? Do they want to offer an alternative? MR. STONE-Okay. MR. BROWN-If they’d like to take the rail off and then you give them the variance for six inches, or, I didn’t know if you wanted a response from them, that’s all. MR. STONE-Would you like to comment on Mr. Brown’s suggestion? MR. KENIRY-I don’t know if we know that measurement. 17 (Queensbury ZBA Meeting 11/17/04) MR. STONE-Well, I, personally, think it’s got to be at least three feet. Whatever it comes down to, I mean, we could say whatever it comes to with the railings removed. MR. BROWN-Three feet’s what we measured in the field when we were there that day. MR. STONE-Okay. So we can say fourteen and a half. MR. MC NULTY-Or you could even give them 15 and give them a little margin. They’re not going to put a rail back on and a sundeck at 15 feet. MR. STONE-Well, it’s going to be 14, I mean, they’re obviously at least three feet higher. So it’s your call. We’re prepared to deny the dock as it exists. The alternative is that you say, we’ll take the railing off. We will not use the space, and we will grant six inches of, or we will grant relief for a height that follows taking off the posts, taking off the railing. Are we all right with that? MRS. HOFFMAN-If that’s what we’ve got to do. MR. STONE-Well, it certainly looks it. The votes, five people who are willing to say no here. MRS. HOFFMAN-Okay. MR. KENIRY-Unless you let us impress ourselves upon you again, in terms of a plea to consider the five factors in particular, and I don’t know that I can convince any of you to change your votes. I assume that you’re fairly well entrenched with what you’ve said, but in particular, the one that strikes me, in terms of the balancing of the equities is there is some adverse, obviously, impact on the applicant, as a result of the denial, whereas I don’t believe that there has been a shred of proof that there’s any detriment to any other person. MR. STONE-There’s a detriment to the community from, first of all, from the view shed. One of the reasons we have 14 foot docks is certainly the view from the lake, which comes into play. We haven’t mentioned it, but we usually do, and I will mention it now since we haven’t. It’s true that I recognize that there is a bluff where Mrs. Hoffman’s house is, and that this sits below the bluff, but as we agreed in a previous request by Mrs. Hoffman, and I don’t want to bring history in, view shed was very important to us as a Board at that time, in trying to expand her home, so that is a detriment, and it’s one of the ones that we have mentioned quite often in connection with docks and dock heights, particularly. So, you can’t convince me. Let’s put it that way. MR. KENIRY-Isn’t that just speculation, though? That’s a guess. That it somehow affects the view shed. The letter from the person who’s affected is in favor. MR. STONE-From the land side. I’m saying from the boat side. I mean, that’s one of the things that we have expressed concerns about before. I think Mr. Underwood, in making his impassioned pro speech certainly reflects that there’s a lot of building going on on the lake that he’s not impressed with, and this is one way that we have to look at stuff is from the lake, and obviously it’s not easy to do when you’re driving around, but it’s something we have to keep in mind. It’s your call. I’m not going to poll the Board, because we’re not going to get into a thing, but have we changed anybody’s mind by? No, okay. So are you willing to ask for a variance that would be at whatever height it comes out if we take the railing off? MRS. KENIRY-Fine. MR. STONE-Okay. Then we need a motion to approve a request for approximately six inches of relief, obtained by taking off the railing on the deck. Do I have a volunteer? MR. UNDERWOOD-Yes. 18 (Queensbury ZBA Meeting 11/17/04) MOTION TO APPROVE AREA VARIANCE NO. 90-2004 JEAN M. HOFFMAN, Introduced by James Underwood who moved for its adoption, seconded by Charles Abbate: 159 Cleverdale Road, Sunnyfields Lane. The applicant has constructed a boathouse with a present 978 square foot sundeck roof at a height of 17 and a half feet. The applicant has requested three and a half feet of relief from the 14 foot maximum height requirement, which the Board seems disinclined to give at this time, per Section 179-5-050(A10). It’s the opinion of the majority of the Board that they could live with the height of the building if the upper sundeck railings were removed, which would bring it down within the realm of 15 feet. So we would move for its approval without the sundeck on top. Duly adopted this 17 day of November, 2004, by the following vote: th MR. BRYANT-I just want to make clear, now, we’re granting them one foot of height relief. Is that correct? MR. STONE-Yes. MR. BRYANT-He said 15 feet. MR. STONE-Well, I would prefer 14 and a half, but that’s what the motion. MR. BRYANT-Which is it, Mr. Chairman? MR. STONE-Well, I would like it to say taking off the railing, whatever height it comes to be, taking off the approximate three foot railing. MR. BROWN-I think if you want to follow the procedure, the motion’s at 15. If you’d like to request that he amend, you can do that, or you can vote on the motion as it is. He’s offered it at 15. MR. BRYANT-I’m asking a question, that’s all. MR. BROWN-What’s the question? MR. BRYANT-My question is, I just want to clarify that we’re granting them one foot of height relief. MR. BROWN-With the current motion, that’s what you’d be doing. MR. BRYANT-The current motion? MR. BROWN-Yes. MR. BRYANT-That’s all I want to clarify. MR. BROWN-Okay. MR. STONE-We can, we’ll take a vote. If 15 passes, then it’s fine. If it doesn’t pass, then we’ll try a different number, if that’s the way we feel. I would prefer, personally, to say the height that occurs naturally when the railing is removed, which is approximately three feet, but that’s not what Jim offered. So that’s perfectly fine. MR. BRYANT-I’m frustrated, because I just don’t want to do let’s make a deal. Either that’s the motion or that’s not the motion. That’s all. 19 (Queensbury ZBA Meeting 11/17/04) MR. STONE-Well, any time we have a motion, if we turn it down, then the motion, in a sense, deny. MR. BRYANT-And you just stated that we’ll try another number, and I don’t want to play let’s make a deal. This is a 15 foot height request, and that’s all there is to it. It’s either approved or denied. MR. ABBATE-The next stage is a request to second. Right, Mr. Chairman? MR. STONE-Yes. MR. ABBATE-I second the motion. AYES: Mr. McNulty, Mrs. Hunt, Mr. Urrico, Mr. Bryant, Mr. Abbate, Mr. Underwood, Mr. Stone NOES: NONE ABSENT: Mr. Hayes MR. KENIRY-Thank you. MR. STONE-You’re welcome. AREA VARIANCE NO. 85-2004 SEQRA TYPE II MOUNTAIN VIEW OUTLET, LLC AGENT(S): JONATHAN C. LAPPER, ESQ. & STEFANIE BITTER, ESQ. OWNER(S): MOUNTAIN VIEW OUTLETS, LLC ZONING HC-INT. LOCATION: 1476 STATE ROUTE 9 APPLICANT PROPOSES CONSTRUCTION OF A CLOCK TOWER ADDITION TO THE FRONT OF THE BUILDING. RELIEF REQUESTED FROM THE FRONT SETBACK REQUIREMENTS AND THE SETBACK REQUIREMENT OF THE TRAVEL CORRIDOR OVERLAY ZONE. CROSS REF. SV 40-2004, BP 2004-605 COM’L ADDITION-FAÇADE WARREN COUNTY PLANNING NOVEMBER 10, 2004 ADIRONDACK PARK AGENCY N/A LOT SIZE: 4.51 ACRES TAX MAP NO. 288.12-1-17 SECTION: 179-4-030, 179-4-060C JON LAPPER & TOM JARRETT, REPRESENTING APPLICANT, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 85-2004, Mountain View Outlet, LLC, Meeting Date: November 17, 2004 “Project Location: 1476 State Route 9 Description of Proposed Project: Applicant proposes construction of a clock tower addition to the front of the building (northwest corner), and renovation of the façade. Relief Required: Applicant requests 31.3 feet of relief from the 50-foot minimum front setback requirement of the Highway Commercial Intensive zone, and 56.3 feet of relief from the 75-foot minimum setback requirement of the Travel Corridor Overlay district, per § 179-4-030 and §179-4-060(C). Parcel History (construction/site plan/variance, etc.): SP 64-2004: to be reviewed 11/23/04 pending outcome of AV 85-2004. SV 40-2004: 07/21/04, size and setback relief for a new freestanding sign. BP 2004-605: pending outcome of SP 64-2004, commercial addition and renovations to the 3,112 sq. ft. façade. Various other BP’s and reviews under previous ownership. Staff comments: The applicant claims the clock tower addition and façade renovation will not only improve the outlet plaza’s appearance, but it may also draw potential customers to the plaza. The applicant purchased the mostly vacant plaza earlier this year and attributes the high rate of vacancy to the existing layout and outdated architecture. The applicant believes the proposed renovation will bring new life to the plaza.” MR. MC NULTY-And this was referred to Warren County, and they came back with a No County Impact. 20 (Queensbury ZBA Meeting 11/17/04) MR. STONE-Okay. For the purpose of the record, I attended a meeting this morning, at which Mr. Jarrett made a presentation, and we had a very short discussion on his presentation this evening, was not judgmental in any way. Go ahead, Mr. Lapper. MR. LAPPER-For the record, Jon Lapper with Jeff Gordon, one of the members of the LLC. Jeff is with Gordon Development out of Albany. They bought this center, when one of the largest outlet center owners in the country bought a block of them and they wound up selling some of the smaller ones. So now we’re back to having local ownership, and that’s part of why the center is sitting there mostly vacant, and we need to do something about it, and Tom Jarrett, the project engineer. For the sake of the record as well, Mr. Chairman, I have an admission that the 18 references to clock tower that were just read, some of them from my application and some from the notes, are incorrect. Because when I saw this in black and white, I thought that this was a clock, and it’s actually a light. So the decorative tower, it’s the same intent, but it’s not actually a clock. It’s actually a globe of a ball that’s hanging, a light. So it’s a tower, but not a clock tower. MR. STONE-Well, we thank you for that much. MR. LAPPER-Okay. So now we’re all clear. What’s going on here simply is, as the application stated, an attempt to rejuvenate this plaza. I’ve got some photos. I’m sure everyone’s familiar with Log Jam Plaza, as we call it here. Just a very outdated, approximately 15 year old development, virtually no attention’s been paid to it by prior owners. Mostly you see just dull roof when you look at it. You can hardly even see the stores. It’s a really bad design. They’ve got this fence in front. These ugly little posts, and what Jeff is attempting to do here is to really take the architecture that this Board approved, after many discussions, for his sign, which is rounded columns and a crown molding at the top, and incorporate that sign design into the whole façade. I’ll pass this along, but this is the rendering of what we’ve applied to the Planning Board for, for the renovations. Substantial change to bring in higher caliber tenants than what have been there historically. They really need some money to fix it up, and also just because it’s in such deteriorated condition. The whole purpose of the tower is to just, to make it visually interesting. You can see that the rest of the center is all complete flat. They want to do something at the road frontage that guides you to this. So that’s why it’s there and not somewhere back, because it makes sense visually, as an architectural enhancement, and that was not something we came up with. That was what the architect came up with, and the real issue is just the fact that the Plaza itself right now sits too close to the road, based upon current zoning. What we mentioned in the application, what happened is that there was a taking by the State, condemnation, when they widened and added sidewalks to Route 9 a few years back. So the Plaza didn’t move. The road moved, and the Town now has the Travel Corridor Overlay Zone of 75 feet. If we could talk about that for a second. The Travel Corridor Overlay Zone is an attempt, the 75 feet is an attempt to say this is one of the major thoroughfares in the Town. At some point whoever owns the road, whether it’s the Town, the County or the State, in this case the State, may want to widen it. If they do widen it, we’d rather keep the investment in that 75 feet less, so that it keeps the taking less. It’s just an economical way to view it, to not have people make major investments within that 75 feet. While the enhancement to the whole Plaza will cost a few dollars, the tower is not a substantial cost factor. It’s really, it’s just a visual enhancement. So, in terms of that issue, I think it’s very unlikely that that road would ever go to a five lane, for no other reason than there’s a lot of parking up there, and the parking’s probably more important. I also don’t think that, even though people have to wait in the tourist season, three lanes works pretty well. A five lane road is a major road, and if they’re not going to do it on Main Street, they’re not going to do it up there. MR. STONE-Mr. Lapper, you’re an attorney. MR. LAPPER-Yes. MR. STONE-You’re an expert, now, on traffic? 21 (Queensbury ZBA Meeting 11/17/04) MR. LAPPER-I spend a lot of time with traffic engineers, more than I want to admit, but in terms of looking at this road, which I have for many clients, I just wouldn’t predict that this would go to a five lane road, but even if it did, and there was a taking, you know, anything that’s built can be taken down, and this, my point is that this is not such a big deal in terms of what’s being constructed. It’s not leasable space. It doesn’t have a lot of value. It just has some architectural merit, and that’s really what this is about. They’ve got a vacant plaza and they want to make it look good. We’ve got some colored renderings that show, in addition to the sign that you approved, and the architecture of the building that’s proposed, that matches the sign, it shows the landscape enhancements which include sod and sprinkler system. I mean, it’s really, it’s dull right now. So now that it’s been purchased, they want to spend some money and fix it up, and this is all part of the same plan, and again, all that would be approved by, would be subject to review and approval by the Planning Board, but even though this may sound like it’s a lot of relief, because we’re not going any closer to the road than the building, and this construction is a minor aspect of what’s going on here, I hope you won’t see this as a, under these circumstances, these particular circumstances, you won’t see this as a substantial variance. MR. STONE-Jon, can you, because I have to admit, I’m not sure I understand the drawing. Where is this tower going to be, physically? MR. LAPPER-In the front north corner, along Route 9. MR. STONE-It’ll be further encroachment toward the road? MR. LAPPER-No, it’s no further than the existing building. It’s right at the same line as the existing building roof line. MR. MC NULTY-It’s going to be built on top of the existing building? MR. LAPPER-Yes. MR. STONE-It’s on top. Okay. MR. LAPPER-It’s not in front of. It’s on top of, and I doesn’t need a height variance. It just needs the front. MR. STONE-That would have been an interesting word to put on top, because I looked at this thing, and it wasn’t very clear to me. MR. LAPPER-Yes. It’s not any closer to the road. It’s just on top of what’s there. MR. STONE-Okay. MR. LAPPER-Tom could point it out, if you want. MR. STONE-No. It’s just that I see a box on here, and I couldn’t tell if that was the tower or if it was going on top. MR. LAPPER-I would like to just pass this up to you so you can see this. MR. STONE-Sure. MR. BRYANT-Can I ask a question, while you’re passing that up? MR. STONE-Go ahead. 22 (Queensbury ZBA Meeting 11/17/04) MR. BRYANT-Relative to this tower, I understand you want it to catch attention to the Plaza. What is the real significance of the tower? Is it eventually going to be a sign catcher or are you going to hang flags from it? MR. LAPPER-No. You approved the signs right there. MR. BRYANT-Yes, but that doesn’t mean, I don’t really understand the significance. MR. LAPPER-Because it’s an architectural enhancement because you’ve got a very flat, boring structure, and this gives it some modulation for height, that you’ve got, everything else is here, and you’ve got something that at the corner that draws your attention to it. It’s just spending money to make it look nicer is the simplest way to describe it. It certainly isn’t for signs. MR. JARRETT-It’s strictly an architectural feature, not a functional feature. MR. URRICO-You said it’s a light, a globe? MR. LAPPER-Yes. MR. URRICO-Not a gong, right? MR. LAPPER-It could be a gong. If you want a gong, we could do a gong. MR. ABBATE-What he’s saying is that it requires architectural appreciation. Is that what you’re saying? MR. BRYANT-I mean, did you make some kind of study that people are going to be attracted to this globe? MR. LAPPER-No. We hired an architect. MR. GORDON-It’s going to take the end of the building, and I guess the answer to your question, since there’s no frontage, all the centers have frontage on Route. Since our center (lost words) doesn’t have frontage, the sign, the architect felt the sign just kind of creates, you know, to say, hey, we’re here. We’re not. MR. BRYANT-Yes, the sign does, but I’m questioning the tower. If you want frontage, why don’t you just put a glass window in the front. MR. GORDON-It’s an architectural, like what Jon said, an architectural feature, statement that says. MR. LAPPER-Yes, and that’s a good point that the direction that the Plaza faces, you’re seeing the butt end, you know, so glass would help. It’ll only help one store. MR. ABBATE-Thank you. MR. BRYANT-The bottom line is you’re saying it’s going to be built within the existing footprint. It’s not going to, you’re not going to need a height variance. You’re not going to put any signs on it. You’re not doing anything that you don’t have already, other than the fact you’ve got a globe on it, or whatever you’re doing. MR. LAPPER-Exactly correct. MR. BRYANT-Okay. I just want to clear it in my mind, that’s all. MR. STONE-Yes, even this picture doesn’t, I mean, it doesn’t show it on top as well as. 23 (Queensbury ZBA Meeting 11/17/04) MR. BRYANT-I think they’re going to cut the overhang there out, and that’s where it’s going to be. MR. STONE-Yes. Okay. Is Orvis part of this? MR. LAPPER-They’re pleased to announce that Orvis will be part of it. MR. STONE-They’re going to move? MR. LAPPER-Yes. MR. STONE-Okay. Because I drove down that road yesterday, and I said that road’s got to be fixed back there, where they are. MR. LAPPER-Yes, well, also as part of the site plan, they’re going to fix the parking lot. They’re going to completely reseal the parking lot. MR. STONE-That would be good. Okay. Any other questions, comments? MR. URRICO-It won’t make any noise? It wouldn’t chime or anything? It’s not a bell tower. MR. STONE-Okay. So, one of the questions I had down, and I’m looking at the picture. The sign that we approved will be where we approved it. This will be right on the building, and if anything, it will detract from the sign, but that’s your call, not ours. MR. LAPPER-Yes. MR. STONE-Okay. All right. Any other question anybody has? MR. BRYANT-I have no other questions. MR. STONE-Well, hearing no further questions, let me open the public hearing. Anybody wishing to speak on this subject? Speak on the subject? Any correspondence? MR. MC NULTY-No correspondence. PUBLIC HEARING OPENED NO COMMENT PUBLIC HEARING CLOSED MR. STONE-Let’s talk about it. Let’s start with Al. MR. BRYANT-To cut to the chase, since you’re not really expanding the building, you’re in the existing footprint, you’re not going to be requesting any kind of relief. You’re not going to add a sign to it. It’s not going to make noise or tick or chime. I don’t understand the attraction, but that being said, I’m in favor of the application. MR. LAPPER-Thank you. MR. STONE-Roy? MR. URRICO-I’m going to disagree on one point with Mr. Bryant is that I do understand why it’s there. I think it’s going to be a nice addition. It’s going to give it a nice distinction from some of the other outlets along the strip, and I appreciate what you’re doing there, in trying to resurrect that Plaza. I’d be in favor of it. 24 (Queensbury ZBA Meeting 11/17/04) MR. STONE-All right. Joyce? MRS. HUNT-I have to agree. I think the tower’s going to be like something, you know, people are going to go to the shops by the tower, and the fact that it’s not encroaching any further towards the road, I would be in favor. MR. STONE-Chuck? MR. MC NULTY-Well, several thoughts, but my bottom line’s I’m going to be in favor, too. I didn’t want to worry you too much. I think things like this in some ways do kind of equate to a sign. They don’t have letters on them, but they’re there to attract people, just like signs are, and another good example is Panera Bread, which we approved a lettered sign for, but if you look at the side of that building now, half the side of that building is technically a sign with a lighted awning under it, but it still makes it attractive, and I think in this case it’s going to, as the applicant argues, it’s probably going to make the building more attractive, and while it’s not our job to rescue bad business decisions, at the same time, if we can do something to help a struggling mall like this that doesn’t cut more into the setback, I think we should do it. So given that the tower is not going to extend out beyond the building footprint, I’d definitely be in favor. MR. STONE-Jim? MR. UNDERWOOD-Yes. I’m in favor of it, too. I recall when Rick Bylsma put the towers up on the mall just down the road there, that was probably 10 years ago now, that that was done, and it did spruce it up and make it look a little different. I mean, it’s pretty plain Jane as it exists, and anything’s going to be a major improvement. MR. STONE-Chuck? MR. ABBATE-Thank you. I think the applicant should be applauded. I seriously mean that, for their attempt at renovation, and I can’t wait for that clock tower to go up because I’ll go up Route 9 and drive and look at it, and so, based upon that, I think I will support the application. MR. STONE-Just before, and I certainly agree with it, too. Certainly when you told me where it was, and I did have some questions until I knew that, I just want to reiterate something that Chuck said. Not for you guys because I think you know it, but for the record, it is not our job to bail out bad business decisions, and we’ve said this over and over again, and I just want to make sure that it’s in the record. If somebody, just because somebody says, I made a terrible thing, I need a variance, well, that’s not a good reason. In this particular case, you’ve got a property that needs fixing, and we can help, as Chuck said. I think we should, and therefore, I need a motion to approve this tower. MR. LAPPER-Non clock tower. MOTION TO APPROVE AREA VARIANCE NO. 85-2004 MOUNTAIN VIEW OUTLET, LLC, Introduced by Roy Urrico who moved for its adoption, seconded by Joyce Hunt: 1476 State Route 9. The applicant proposes construction of a tower addition to the front of the building on the northwest corner, and in doing so, he would be renovating that façade. In making this request, the applicant is asking for 31.3 feet of relief from the 50 foot minimum front setback requirement of the Highway Commercial Intensive zone, and 56.3 feet of relief from the 75 foot minimum setback requirement of the Travel Corridor Overlay District per 179- 4-030, and 179-4-060, Section C. In reviewing this application, I’d like to make note of the balancing test, which says that the Board of Appeals shall balance the benefit to the applicant with the detriment to the health, safety, and welfare of the community, and I think in this application there’s actually a benefit to the health, safety, and welfare of the community when you think about what possible ramifications could come about from a positive commercial renovation there. I think the Board is also considering whether the benefit can be achieved by 25 (Queensbury ZBA Meeting 11/17/04) other means feasible to the applicant, and, yes, the tower does not have to be put up there. I do not think there’ll be an undesirable change in the neighborhood character. In fact, it probably will be an improvement. The request is substantial, but there’s already, the building itself is already in that Travel Corridor Overlay zone, and as such, this will not infringe on that anymore than it already is. The request is substantial because of that, and there are no adverse physical or environmental effects, and the difficulty is I would say not self-created, since the building is in that position. I move that we approve this Variance, 85-2004. Duly adopted this 17 day of November, 2004, by the following vote: th AYES: Mr. Bryant, Mr. Abbate, Mr. McNulty, Mr. Underwood, Mrs. Hunt, Mr. Urrico, Mr. Stone NOES: NONE ABSENT: Mr. Hayes MR. STONE-There you go. MR. LAPPER-Thank you. REQUEST TO RE-HEAR APPEAL 4-2004 SEQRA TYPE N/A JONATHAN C. LAPPER, ESQ. AGENT(S): JONATHAN C. LAPPER, ESQ. OWNER(S): JOSEPH RIITANO ZONING: WR-1A LOCATION: SUNSET LANE MR. RIITANO REQUESTS NOTICE OF APPEAL NO. 4-2004 BE REHEARD DUE TO CERTAIN FACTS AND CIRCUMSTANCES THAT EXIST, THAT THE BOARD MAY NOT HAVE BEEN AWARE OF WHEN REVIEWING THE APPEAL. CROSS REF. NOTICE OF APPEAL NO. 4-2004, BP 2002-866, ADDITION, BP 2002-442 SEPTIC ALTERATION WARREN COUNTY PLANNING N/A ADIRONDACK PARK AGENCY N/A LOT SIZE: 0.17 ACRES TAX MAP NO. 226.19-1-9 SECTION JON LAPPER & STEPHANIE BITTER, REPRESENTING APPLICANT, PRESENT MR. STONE-Before I hear from you, Mr. Lapper, I just want to go over the ground rules a little bit. Then if we do decide to rehear, it will not be tonight. It would have to be advertised, and it would not be until December, if we agree. The other thing that we all should know is that any decision to re-hear must be unanimous on the part of the Board. So, what I’m suggesting to you, that we would like to hear you out on why we should re-open. We don’t have to have a public hearing on this, as far as I’m concerned, at the moment. We’ll see how it goes, but you’re basically talking to us, to say do we want to re-hear on the basis of whatever you’re going to tell us. MR. LAPPER-Okay. MR. STONE-Okay. MR. LAPPER-First, and to confuse you, with me are my two colleagues who were working on this matter with me. Stephanie Bitter, who you know, and Carla Bitner, who just, her name is so close that it’s just intended to confuse you. Very simply, the simplest reason why we’re asking this to be re-heard is that what happened here, the public hearing was held, and after the public hearing was closed, the applicant’s attorney discussed a map that was the prior set of plans, the 2002 plans, and during the course of the building process, the 2002 plans were the original submission for the building permit, and during the course of the construction, the plans were supplemented. The project changed somewhat. They were reviewed by the Zoning Administrator. They were reviewed by the Building Inspector. They were approved, but the plans that you were reviewing that night weren’t the final set of plans. So you were under the impression that the applicant had constructed something that varied from the approved plans, which would be an after the fact situation, and that wasn’t what happened here. You didn’t 26 (Queensbury ZBA Meeting 11/17/04) have the final set of plans in front of you, and we didn’t have an opportunity that night, or Stephanie was here, didn’t have an opportunity, to bring that to your attention because the public hearing was closed, and the only issue there is that if new information is brought out, after the public hearing by the applicant, it’s probably good to let the public have another shot at it, but in this case, we believe that what you had in front of you wasn’t the whole story, so that’s why we’re asking for this to be reconsidered, and the plans that were approved by the Zoning Administrator, and we have lots of documentation which we’ve submitted to this. Everything was in compliance with the Zoning Code, according to the determination of the Zoning Administrator. The only issue was the front porch, and when that variance was denied, the front porch was removed by the applicant. So the only thing that was not in compliance was taken down, and it was the Zoning Administrator’s position that this was in compliance. That’s why the CO was issued, but I don’t think that that those facts were brought to your attention that night. MR. STONE-I’m going to, you’ve made certain statements that I have had some contact with the Zoning Administrator, and I will let him speak on his behalf, because I think there’s questions about those comments you made. Is that right, Mr. Brown? MR. BROWN-Well, you tell me. If you have a question about what’s been presented to you. MR. STONE-Well, he’s saying that you approved the revised plans. MR. BROWN-That’s not correct. I approved the original set of plans that was submitted. The revised set of plans that was submitted was approved by the Building and Codes Department, but I did not approve and still have not approved the revised plans. Upon my initial review of those plans, that’s when I made a determination that Mr. Riitano needed an Area Variance, too, if he wished to keep what was shown on those plans. MR. LAPPER-But just as to the porch. That’s what your letter said. MR. BROWN-As to the porch, right, but those revised plans have not been. MR. LAPPER-But what I’m characterizing is, your letter is that you said everything else in these plans is okay, but you would need to get an Area Variance just for the porch. That’s how I’m interpreting your letter. MR. BROWN-Well, I guess you could read it that way. It’s a little stretch. I think what my letter says is that you need a variance to keep the porch because it violates the setbacks and the Floor Area Ratio. The fact that I don’t mention anything else, I don’t know if I would stretch to say that it was in compliance, but I certainly didn’t say it wasn’t. MR. STONE-You did not sign off on it. MR. BROWN-On the revised plans, no. MR. STONE-Like you normally do. MR. BROWN-Correct. MR. BRYANT-Can I ask a question? MR. STONE-Yes, Al, go ahead. MR. BRYANT-I want to ask Mr. Lapper. As I understand it, one of the points you’re saying is in the original meeting of 8, whatever it was, 25, and that Ms. Bitter was not afforded the opportunity to respond to the public hearing. MR. LAPPER-To comments after the public hearing by the neighbor. 27 (Queensbury ZBA Meeting 11/17/04) MR. BRYANT-Okay, and I’ve reviewed these very carefully. She didn’t ask for that. MR. LAPPER-Well, the public hearing was closed. MS. BITTER-And I actually did attempt to speak, when I knew you guys were making a motion, and the Chairman had motioned to me that I wasn’t afforded that opportunity because the public hearing had been closed. MR. LAPPER-That was nonverbal. MS. BITTER-Nonverbal. He gave me the hand. MR. BRYANT-Okay. So what you’re saying is that while the public hearing was concluding. MR. LAPPER-Closed. MR. BRYANT-Well, let’s don’t get that far. MR. LAPPER-Okay. MR. BRYANT-Because I understand the way the Chairman works. Somebody speaks and then he says anybody have anything to say. MR. LAPPER-These were comments after the public hearing was closed, when the Board continued to talk to the neighbor’s attorney. MR. BRYANT-Okay. I misunderstood. Okay. Thank you for clarifying that. MR. LAPPER-And we hope and believe that if you had the full story, you may view it differently, but we didn’t have the opportunity that night, just because of the procedure. We also could address what Craig said. Carla’s got his letter. CARLA BITNER MS. BITNER-And your letter actually, the way it is written, it states that you did not, you reviewed the revised building plans, and that they’re in violation of the Floor Area Ratio, as well as the minimum front setback requirement for the property. There’s no indication in the paragraph of your August 28, 2003 letter, which states that the roof line was not in compliance, and that’s why you were not finding the building plans in compliance, and further the next paragraph, you actually do state that, you confirm that the overall height of the building had not exceeded the maximum allowable height of 28 feet. MR. STONE-The height is not on the, never been on the table. I don’t believe. MR. LAPPER-Yes, that was one of the issues. MR. STONE-It was the fact that it went up, that it was an expansion. There was discussion that going up constituted an expansion, I believe, but not that it was in violation of the height. MS. BITTER-But in reference to that, I think he’s identifying that if he was saying it was in reference to nonconforming statute, we would have needed a variance, but he’s saying that because it doesn’t exceed the maximum height requirement that a variance wouldn’t be necessary. So he was thinking of it in the same box, that it didn’t even exceed, or extend, I should say. MR. LAPPER-We believe that we were in compliance with the Zoning Administrator on that point. 28 (Queensbury ZBA Meeting 11/17/04) MR. STONE-Okay. So you believe this, and he believes that, and that’s why you’d like to have a re-hearing, and it’s basically up to us to decide whether we want to hear or re-hear it. MR. ABBATE-I have a question as well. MR. STONE-Go ahead. MR. ABBATE-Words play an important role in any legal proceeding or quasi judicial proceeding, and I know that you and I went to different law schools, but my Latin is rusty. I can’t find the term determination, that’s on Page Three. What does that mean? MR. LAPPER-That’s not Latin. I think that’s Italian, for determination. MR. ABBATE-Thank you for clearing that up. MR. LAPPER-I’m going to let Carla just make another point, just a couple of other issues. MR. STONE-I have another question for Mr. Brown, but go ahead. MS. BITNER-No, I was going to move on to another reason why we were requesting a re- hearing, but if we want to stay on this first point. MR. STONE-Well, one of the things Mr. Lapper said, that a CO was issued, and that, therefore, said it was all right. Mr. Brown, would you like to comment on when a CO was issued and what the requirements are? MR. BROWN-Are you looking for the date that the CO was issued? MR. STONE-No, no. You told me, I believe, I don’t want to put words in your mouth, that certain things were fixed, and therefore the CO was issued, but it did not address stuff that happened subsequent to that. MR. BROWN-Yes. I think the issuance of a Certificate of Occupancy, it’s not a subjective determination. It’s not something that there’s any discretion over. It’s, do you meet the requirements to have your CO issued, are all these items done. If you meet those requirements, then you get your CO. MR. STONE-And those are building issues? MR. BROWN-That’s a Building Code issue. MR. STONE-Not Code issues. MR. BROWN-Well, they’re Building and Code issues. MR. STONE-Not Zoning Code issues. MR. BROWN-Correct. MR. STONE-That’s a different. MR. LAPPER-Yes. I don’t think that the Zoning Administrator would issue a CO, because a CO has t o go to, before it can be issued, it has to go to your Department, and you have to approve it for zoning. 29 (Queensbury ZBA Meeting 11/17/04) MR. BROWN-To some degree. I review a final survey, to make sure it meets the setbacks and those are compliant, but when it comes down to the Building Code issue, I sometimes don’t see CO’s when they’re issued, most times. MR. LAPPER-Right, because, well, the Building and Code issues go to Dave Hatin. MR. BROWN-Correct. MR. LAPPER-And the Zoning Code issues go to you. MR. BROWN-Yes. MR. STONE-Yes, but the fact that it was issued doesn’t mean that he was satisfied, in terms of Zoning Code, as I understand it. MR. BROWN-No, I’m trying to figure out if that was a question or not. MR. STONE-I thought it was, but that’s all right. MR. BROWN-No, I think, I knew that Dave was in the process of issuing a Certificate of Occupancy, Dave Hatin, Director of Building and Codes, was in the process of issuing a Certificate of Occupancy, and based on my inspection of the property, I think the day before the Certificate of Occupancy, maybe the day the Certificate was issued, it appeared as though all the alterations that were required to bring the site into compliance, removal of the front porch, the back porch, permeability requirements and the conversion of the basement from non-garage to unfinished living space were done. So, I was satisfied that the zoning requirements completed. I didn’t sign off on anything, but I didn’t. MR. LAPPER-He was satisfied that the zoning was in compliance. MR. STONE-Yes. So why do you want to re-hear? MR. MC NULTY-I think we’re working maybe cross purposes. Correct me if I’m wrong, but this was an appeal by somebody else, questioning the Zoning Administrator’s decision, and as I recall, the Zoning Administrator either implicitly or some other way was indicating he had no problem with the roof going up, and he basically felt that the building was okay the way it was, and the Appellant was arguing that a portion of the, well, he was arguing that the vertical expansion was an expansion. He was arguing that the ends of the roof were in the setback. MR. LAPPER-That’s right. MR. MC NULTY-So the issue is not with what the Zoning Administrator approved or said was right. The issue was with this Board deciding that the Appellant was saying that the Zoning Administrator was wrong. MR. LAPPER-That’s correct, but I guess part of what was discussed that night was whether it was after the fact, whether the applicant had complied or not complied with the plans, because the plans that you were looking at were the wrong set of plans, because that’s what had been presented to you by the neighbor. Beyond that, some of our other questions that I’ll ask Carla to review with you are, we think that because the building permit had been issued and it was under construction, that the neighbor had a legal obligation to come before this Board within two months of when the building permit was issued, when the Zoning Administrator issued a letter in 2003, and that it was too late, that you can’t watch your neighbor build a building, and then when they’re ready to get the CO, come to the Board and ask them for a determination that it’s wrong. Because if you sit on your rights, the legal term is latchus, which I won’t spell, but that there are some other issues that the applicant shouldn’t have had the opportunity to come to the Board that late in the construction process, and we’d like you to consider those issues as well. 30 (Queensbury ZBA Meeting 11/17/04) MR. STONE-Okay. What I’m trying to understand, if we grant a re-hearing, and we give you everything you want, what are you going to want? I don’t understand. MR. LAPPER-Basically, that the thing that’s there can stay. MR. STONE-I thought it could. MR. LAPPER-No. What you decided, it would have to come down. MR. STONE-It has. MR. MC NULTY-No, what we decided is that the ends of the roof were in violation, the portions of the roof that were closer to the lot line than what the setback allows. MR. LAPPER-You were not there that night. MR. STONE-I wasn’t there for that part. Okay. MR. MC NULTY-The center part of the roof could stay, because that was within, but that the ends of the roof would have to come off. MR. STONE-Okay. MR. BROWN-That’s not exactly the outcome of the Appeal. The outcome of the Appeal was that that roof line change from this to this did constitute an expansion of the structure, and that that unfinished attic space up above constituted floor area and should be counted in the Floor Area Ratio calculation. MR. LAPPER-That’s correct. That’s right. MR. BROWN-It wasn’t a determination that says you have to cut the building off. The applicant, Mr. Riitano, rather, has not applied for an Area Variance to maintain that yet, which is still an option that he can pursue. If that option were pursued and denied, now there’s an enforcement action to remove those portions that violate that setback, but they haven’t got that far yet. MR. LAPPER-I completely agree with that, but we think that there was an error in the determination about the roof, because the definition in the Town about living space and non- living space, and that the attic was non-living space, and that that’s something that this Board should re-consider to make sure you’re right on that. You went against Craig on that, and I think Craig was just citing the Code. So that’s another reason why I think just to clear the record, and in terms of precedent for the Town, because when you interpret the Code, it is precedent, it would be important that that also be reconsidered. MR. BROWN-And if I could, just to focus the, I think if you’ll let me, focus the re-hearing request, is to re-hear your determination on that Appeal, that found that the roof line change constitutes an expansion, and that the unfinished attic space is considered floor area, and that’s the decision that they’d like you to re-visit. MR. ABBATE-Well, I’m the one who made the motion. Okay, and I basically stated that, let me read it, because I think it’s important. “This evening Counsel has presented, in my opinion, overwhelming documentary evidence and has stated, given testimony, that in fact vertical expansion does constitute an expansion. It constitutes growth. The Appellant has also, in several other instances, based his appeal on, one, that the roof structure, independent of the unapproved front porch, and associated roof overhang constitutes expansion of a nonconforming structure, and violates the Zoning Codes Section 179-13-010.A.1 and 179-13- 010.E,”. Since I’m the one who made that motion and since the motion, which indicated that we 31 (Queensbury ZBA Meeting 11/17/04) did not support the Zoning Administrator, based on the information this evening, Mr. Chairman, I have to re-think this whole thing. MR. BRYANT-Mr. Lapper, would you be so kind. You made a couple of points as to why you think that we should allow a re-hearing, okay. I just want you to reiterate those points. I know one is the timely fashion of the application. MR. LAPPER-Yes. MR. BRYANT-The information that was provided, and so forth and so on. Just reiterate those points, one, two, three, four, five. MR. LAPPER-Sure. One of them is the legal term is latchus, when you sit on your rights. That if you’re watching your neighbor build a building, and you don’t like it, and here the neighbor had a continuing Freedom of Information request, and in fact had sent the letter to Craig Brown saying, in 2003 while the building was being constructed, that the neighbor didn’t agree with what the Zoning Administrator had said, that there’s an obligation to challenge it and in fact to seek an injunction at that point, under the law, not to wait for someone to build a building, and then complain after it’s built, if you’re aware of. So that’s one point. MR. BRYANT-Yes. I think you have 60 days after a determination to Appeal that. MR. LAPPER-That’s a Statute of Limitations question, and that’s very similar and related but separate, that we believe that the letter that we were talking about with the Zoning Administrator, that when the Zoning Administrator made certain points that he believed that the roof line was okay, that the applicant needed to challenge that within 60 days, because people need to know when a construction project is going on, and not at the end after they’ve invested thousands of dollars, and that’s a Statute of Limitations question, but that’s separate. There’s the sitting on your rights issue, and then there’s the Statute of Limitations, 60 day. So there’s those two. There’s the map that we think that you didn’t see that what they did build was what the Planning and Zoning Departments had approved, and you were looking at the 2002 map, which was different than what was built. What was built was what the 2003 map said, and that because it was brought to you by the neighbor’s counsel, who didn’t have that, he didn’t have the most recent map. MR. BRYANT-So you’re saying the information that they provided was not accurate? MR. LAPPER-It was stale. It was not complete, because he didn’t have the most recent map. MR. BRYANT-Okay. I understand. MR. LAPPER-And then the last is the determination of whether Floor Area Ratio applies to habitable space under the Code definition, and we think that because the attic space is not habitable. MR. BRYANT-Yes, but that’s addressing the. MR. LAPPER-Substantive issue. MR. BRYANT-Yes, but that’s not really what we’re here to talk about tonight. MS. BITTER-The reason on that is that, during the Appeal, Mr. Caffry was referencing how the Town Code says, you know, Building Code Section 711 and 712, when discussing what habitable space is, and during that review he said, you know, it’s not even in existence anymore, when in fact the Building Code had actually been amended, and that, the habitable space definition that Mr. Brown was using is still in the Building Code. It was just under Section 202, as opposed to 711. 32 (Queensbury ZBA Meeting 11/17/04) MR. LAPPER-That’s a really important point. Two years, that’s very misleading. Two years ago the State Fire and Building Code was changed. So when the Town Code references the definition of habitable space in the State Building Code, the other attorney said, well, that Section doesn’t even exist, and he’s technically right, that it doesn’t exist as Section 712, but it exists as the new replaced Section, which still has the same definition that the Zoning Administrator was using. So that was presented to you, and that was, you know, sort of legally correct, but incorrect, because there is another Section. MR. BRYANT-Okay. Well, that speaks to the issue of the data that they provided, but is this one of the topics that you weren’t able to address that night? MS. BITTER-Absolutely. MR. BRYANT-Okay, and those are the three issues? MR. LAPPER-Yes. MR. BRYANT-Okay. MR. STONE-All right, but in light of the comments of Mr. Brown, that this plan, this revised plan that you’re citing, was never approved by the Zoning Department. Is that correct, Mr. Brown? MR. BROWN-The plan as it was submitted, the revised plan as it was submitted, was not approved by the Zoning Department. The Building and Codes Department did approve the plan. MR. LAPPER-And I would say that it wasn’t approved for some issues because he was right, the front porch, we all acknowledge that, and the rear porch, the permeability had to be addressed, but the issues that the neighbor was appealing on, in terms of the height issues, wasn’t something that the Zoning Administrator was raising at the time, and if the neighbor wanted to challenge that the Zoning Administrator was saying that the roof height issue was okay, that should have happened within six months, within sixty days, excuse me. MR. STONE-Okay. MR. LAPPER-So I was bringing that up for a different point than what I was citing in Craig’s letter, and we just think that this Board is always careful to try and get to the right result, and we think that, for a number of reasons, you didn’t get the right result, and if we had had an opportunity to speak, we would have been able to present it, and we didn’t, and it’s our client who’s the real party in interest here because he’s the guy who built the house, got the permits from the Town, has the CO, and his neighbor, even though this doesn’t affect his view of the lake or anything, the neighbor’s just worked up about it, and we don’t think that you had all the facts before you. MR. STONE-Okay. Anybody else have any? Well, as I said, to rehear it, one, if we decide to rehear it and unanimously, it would be advertised for, I think it’s a very narrow issue, like all appeals, and what you’re saying is you think we didn’t have all the facts before us. MR. LAPPER-That’s right. MR. STONE-Now, that’s your opinion. We’ve heard some conflicting, on the part of the Zoning Administrator. So, I’m really not sure. MR. BRYANT-I don’t understand what’s conflicting. Just clear my mind here. What’s conflicting? MR. STONE-He never signed off on the revised plan. 33 (Queensbury ZBA Meeting 11/17/04) MR. BRYANT-Okay. So somebody obviously did signoff. MR. STONE-Yes. MR. BROWN-Yes, that’s correct, the Building and Codes Department. I think, and not to confuse things even further, but I’m going to try, there likely should be even another set of revised plans to complete the building permit file t hat shows what’s actually been constructed. MR. LAPPER-As built. MR. BROWN-As built, and that is something that I would sign on, because that is what I feel is compliant, and has been responsive to all the concerns that are raised on the property. MR. STONE-So you’re saying if the applicant would submit as built plans, based on your judgment, that you would sign off on it? MR. BROWN-Well, obviously I’d have to review them. MR. STONE-I’m not asking for carte blanch. MR. BROWN-But, yes, sure. MR. ABBATE-But there’s also another issue, and I’m surprised you folks don’t open this up, because that was the basis for your complaint, that you were not given an opportunity to address these issues. MR. LAPPER-Well, that’s what we were saying, because the public hearing was closed before some of this discussion happened. MR. ABBATE-I don’t want to just limit it to one special point. You folks feel that you were denied an opportunity to rebut or even address comments that were made. MR. LAPPER-That’s correct. MR. ABBATE-Therefore denying an individual, blah, blah, blah. Okay. Thank you. MR. LAPPER-Right. MR. BRYANT-Is there some sort of precedent in that regard? Because generally speaking, when somebody appeals a decision of the, a ruling of the Zoning Administrator, it generally relates to their own property. This was a unique circumstance where the appeal was made by not the original applicant, and so generally, some kind of precedent relative to that? MS. BITTER-Can I just respond to that? In Section 267A of the Town Law it specifically says because Zoning Board of Appeals proceedings are quasi judicial, all parties, applicant and opponent alike, must be given an opportunity to review any evidence presented. Evidence or facts which Board members have had an opportunity to consider outside of a hearing or after a hearing has been closed must be divulged and the parties should be permitted to provide additional evidence with respect thereto. MR. LAPPER-I think that’s in the practice commentaries. MS. BITTER-The practice commentaries. MR. LAPPER-To the Town Code section. So we think that this is just an unusual set of circumstances where new facts came out after the public hearing. 34 (Queensbury ZBA Meeting 11/17/04) MR. STONE-Just a second, Mr. Caffry. Well, let me just ask what the Board’s pleasure is. We can listen to Mr. Caffry, who is representing the, I’m not inclined to, at this point in time. MR. BROWN-Well, in fairness to Mr. Caffry, this has been noticed as a public hearing. It was advertised that way. MR. STONE-Was it? I apologize. Okay. Well, let us, are you through with your presentation? MR. LAPPER-Yes. MR. STONE-Are there any questions? MR. ABBATE-Yes. I have one more point. Allan asked if there was precedence. That precedence was set forth in that Sunset Sanitary Service Corporation versus the Zoning Board of Appeals of the Town of Smithtown, in which the individual, the applicant was denied. So there is precedence. MR. LAPPER-Yes, we cited that. Right. MR. ABBATE-So there is precedent to demand that an individual have an opportunity to rebut, and that’s the State of New York, by the way. MR. MC NULTY-I’ve got one comment, or something to confuse the issue whatever. Just a thought to throw out at this point. We’ve got this proceeding now. We’ve got another one scheduled tonight. We’ve gone through this two or three times before, and I just wonder if there’s some way, as we proceed, to kind of rawl all this into one ball of wax and sit down and get the whole thing done with, rather than have it go on and on and on. Maybe not, but just a thought. MR. STONE-Well, I was going to suggest that both sides sit, go out and talk about it, because even if we grant a rehearing, there’s no guarantee that we’re going to get a different result than we did before, but that’s up to you guys. If we have no further questions, let me open the public hearing, as advertised, and I would remind Mr. Caffry, and anybody else who speaks, that you are responding in a public hearing that gives you five minutes. PUBLIC HEARING OPENED JOHN CAFFRY MR. CAFFRY-John Caffry, attorney for Michael Kelly, the adjoining property owner. This is our appeal that we won that’s being asked to be reheard. I hope we aren’t held strictly to five minutes if we need a little more. There’s five of you here tonight who voted to grant our appeal the last time. As has been pointed out, you can only vote to rehear if all seven of you vote to rehear. So that means five of you would have to think you made a mistake. Unfortunately I think most of what Mr. Lapper said needs to be rebutted, and is not really accurate. The timeliness issue we think is a red herring. There was a letter in August of 2003. It did not discuss the issue of the second floor living space, which was the thing that you voted on the last time, and did not discuss the vertical expansion setback variances. Therefore, there was nothing to appeal. We couldn’t have appealed those issues there because they weren’t covered in that letter, and Mr. Lapper then says, well, we sat on our rights. As many of you know, as Mr. Brown, I’m sure knows, Mr. Kelly was practically jumping up and down and screaming. He was sending letters on a regular basis asking that something be done about this. He did not sit on his rights. As a result of that, Mr. Riitano was required to apply for a variance finally, which was denied. Then he got a lawyer and came back and applied again, and he was denied again. All along, we were counting on the Board and Mr. Brown to ultimately make this project come into conformity. Mr. Kelly did not sit on his rights in the least. The August ’03 letter discussed the overall roof height. As Mr. Stone pointed out, that’s not the issue. It’s the question of the living space up there, the floor area ratio up there. Those were what was 35 (Queensbury ZBA Meeting 11/17/04) addressed in the August decision of this year. The first time that Mr. Brown addressed those issues in writing was in his May 2004 letter, and that’s what we appealed from. We filed that appeal within 60 days, and it was timely, and this is a lot like what we ran into in the paintball case where Mr. Brown made multiple rulings and this Board decided that, because there was changes in his rulings, an appeal from the second one was timely, and we went ahead with it. So I think what you did last time was consistent with your own practices. On the question of their opportunity to respond on their opportunity to present evidence at the last public hearing. Ms. Bitter, who’s an attorney licensed to practice law in the State of New York, she works with Mr. Lapper, she sat here and all she said was, well, we’d like it adjourned because Mr. Lapper himself can’t be here. There’s no reason she couldn’t have presented the same arguments, the same evidence, the same information that was presented, attempted to be presented tonight. Instead all she asked was that it be adjourned so Mr. Lapper could be here. He’d been involved in this case for a month. He had at least a month’s notice that this was going to be on in August. He could have sent a letter. He could have done all these things. He wasn’t here. That’s his problem. It’s not our problem. Ms. Bitter was here. She should have been able to cover it. Whatever goes on within their firm again is not your problem. It’s not my problem. There’s no excuse given for why he wasn’t here then. We had driven all the way up, my client had driven all the way up from Poughkeepsie, and it wasn’t until after the meeting started that it was asked to table it or adjourn it. As far as this opportunity to reply to things that were said after the close of the public hearing, that happens all the time at this Board, that after the public hearing closes, the applicant sits here and has a continued discussion. The Board may or may not allow further input. I don’t recall her attempting to speak. It’s certainly not in the minutes. Had she asked, had she had something on the merits, I would have objected. I haven’t heard any relevant new evidence in facts mentioned. As you recall, what happened with this project was Mr. Riitano applied for a permit. He was told you needed a variance to build the second floor. He came before you. It was denied. He went back to the Town Staff with those same plans he’d been turned down for and they were not fooled, and they said, no, you can’t do this. So he finally came back with plans for a single story thing that complied, and nobody had any objections. What does he turn around and do? He builds the second floor anyway. So then those plans, it did not conform to the plans that were first filed, that were first approved. What maps later were referred to, all those issues were discussed as to what had been done. It was disclosed at the hearing the CO had been issued. There’s nothing new here. There’s no new evidence. All this stuff was discussed before. None of this so called new evidence is really relevant, you know, and you kind of get to the question of how many times does Mr. Riitano have to be told no by this Board. What part of no doesn’t he understand? Some of what was said a little earlier I’d like to respond to. I don’t know what the Sunset Sanitation case says. I didn’t bother to read it, but there was no new evidence, again, to respond to, and Ms. Bitter was here. She had the chance. There’s nothing in the minutes that showed that she attempted to do anything, and as Mr. Brown pointed out, that map had not been approved for zoning purposes anyway, and I think the Board understands that distinction. Just as an aside, Mr. Brown says as it’s built now, he thinks it complies. Of course based on your last ruling, it doesn’t. Your ruling was that what exists now does not comply. So the issue, as Mr. McNulty pointed out earlier, is not what the lawyer said. It’s not what I said. It was the grounds you gave, it was the arguments you made, and I think you had all the evidence. I don’t think there’s anything new here. I haven’t heard Mr. Lapper say he’s got any new arguments except this one about Section 702, a definition of habitable space. Well, that’s not what your Code says. The State Code no longer has a definition of living space. You can’t just pick up another definition and use it. It’s completely irrelevant, and therefore it’s not worth having a rehearing and going through all this all over again to hear something that’s not legally relevant. So I think that pretty well covers our points that, again, there’s no new evidence here. We didn’t sit on our rights. We’re not guilty of latches or anything else. We acted as fast as we could based on whatever we had to appeal from. When we finally got something in writing from Mr. Brown on the floor area ratio of the second floor, we appealed it within the time allowed, and what you’ve seen is Mr. Riitano tried this on his own. He didn’t get anywhere. He hired attorney Andrew Brick. He didn’t get anywhere. He tries attorney Lapper. He didn’t get anywhere with that at the last meeting either. Now they’re in court. How many times are you going to let him keep coming back and coming back and coming back, and when are you going to just tell him no means no? Thank you. 36 (Queensbury ZBA Meeting 11/17/04) MR. STONE-I have a question of you, and I will ask it of Mr. Lapper. You mentioned they’re in court, and that was referred to in some of the papers. Who’s in court doing what? MR. CAFFRY-My understanding, I’ve seen the papers, is that Mr. Riitano has sued the Zoning Board of Appeals. He has not sued my client, Mr. Kelly, and that law suit seeks to overturn the decision that you made on some of the same arguments that he’s making to you here tonight. So if the court rules, then it’s decided, and he’s going to get an opportunity, possibly. However, the Town Attorney made a motion to have the case dismissed because they failed to sue Mr. Kelly who, because it’s Mr. Kelly’s appeal, was a necessary party to the appeal, and the court has not yet ruled on that motion, but he did raise all the issues that he’s asking you to debate. So one thing that’s going to happen is, if you vote to rehear this, and you have a discussion and you have a debate on the issues that are part of a lawsuit, Mr. Lapper’s going to take the minutes of that meeting and run down to the judge and wave them around and use them against you however he can. So you ought to think about that, too, before you vote to rehear and expose yourself to that. If I were the Town Attorney, personally I’d be a little nervous, but I’ve long ago learned you cannot speak for Mark Schachner. Only Mark Schachner speaks for Mark Schachner. MR. ABBATE-This is a new issue now, Mr. Chairman. I didn’t realize that we were under litigation on this case. MR. STONE-Nor did I. I knew there was some reference to it. MR. ABBATE-I feel an obligation, I strongly recommend we don’t discuss any parts of this case and cease right now, until the litigation is completed. MR. STONE-Did you get an opinion, Craig, from the Town Attorney? MR. BROWN-Yes. I guess just to talk to the lawsuit for a second. My understanding of the status of that is that the Town’s defense has been, as Mr. Caffry described, that’s half of the defense, the failure to name a necessary party. The other half is that we feel that the, I don’t know what the proper term is here, the respondent in the case, hasn’t exhausted their administrative remedies, which is to appear before this Board. So they’re kind of in limbo here. If they have the court case decided one way, or if you decide another way, which one comes first? So they’re kind of in the middle right now. MR. STONE-Okay, but we have decided. MR. BROWN-Well, if you decide, it depends on how you decide on this rehearing, correct. MR. STONE-Not to rehear, we have decided. Okay. MICHAEL KELLY MR. KELLY-I’m Michael Kelly. I’m the original appellant of NOA 4-2004. One of the arguments that’s being presented to try to get this reheard is this other set of drawings that weren’t present that night, and that I think they’re hoping were actually approved by the Zoning Administrator. MR. STONE-They’re being waived in the background. Let the record show. MR. KELLY-The chronology of what happened, and I’m more than comfortable going on the record with this because I know it pretty well. The original building permit was issued in October of 2002 and that did not show the vertical expansion which occurred. It wasn’t until May of 2003, the end of May, that the framing for the vertical expansion occurred, at which point Dave Hatin said, hey, you didn’t build what we gave you the building permit for, and at 37 (Queensbury ZBA Meeting 11/17/04) some point in June apparently Mr. Hatin went to Craig Brown and said, we’ve got a problem here. MR. STONE-You believe all this to be true. MR. CAFFRY-Well, I have documentation that says, yes, we spoke. So, give or take a few days, I think it’s pretty close. MR. STONE-Well, you said Mr. Hatin definitively, it’s your understanding. MR. CAFFRY-Yes, my understanding, then, based on a letter from Craig Brown suggesting that that happened, and Mr. Brown, Jon’s right. I was jumping up and down and writing letters left and right, and what happened was Mr. Brown said this doesn’t jive with your previous drawings and you need to give us diagrams which match what you’ve built. Well, some time in July, Mr. Riitano were rejected because they did not depict what he had built. So, again, the end of August, another set of diagrams were approved by the Building Inspector. Now this whole time, Craig Brown is telling me, anything that he does, demolition or more construction, has to be preceded by an approved set of plans, approved by both Dave Hatin and me, Craig Brown. Craig has admitted right here that he never approved those plans, and I FOILed everything left and right, and I know that no plans have been approved, even by the Building Department, which depict the demolition of the front porch. So there’s nothing that the Zoning Administrator could have approved. So I’m not resting on my laurels or my, you know, my rights or whatever. I’ve been at this thing, you guys know this. If you guys say, well, yes, we’ll rehear this because there’s new information, Jon’s right, these guys had all kinds of time to prepare. The only thing they wanted was to table it. He had counsel. I prepared, we prepared. I drove, you know, six hours round trip, just like I did tonight. This is getting old. Thank you. MR. STONE-Okay. Thank you. All right. Anybody else wish to speak on this subject? On what basis do you wish to speak? I don’t want to get into standing too much, here. JOHN SALVADOR, JR. MR. SALVADOR-I hear the words demolition. I believe we need a demolition permit to undertake demolition. The importance of a demolition permit is you record what’s being taken down. This issue of failure to join the necessary party. I’ve got a lot of experience with it. All you do is amend your complaint and join the parties they say have to be joined. Thank you. MR. STONE-Thank you. Anybody else wishing to speak on this subject? Obviously there’s no correspondence. Let me close the public hearing. PUBLIC HEARING CLOSED MR. LAPPER-The simplest thing I can say in response to what Mr. Caffry said was you just heard him say that this was approved for as a one story house and they built a two story house, and what I have here and what I was referring to, and that’s exactly what he said that night at the meeting. I’ve got here signed, stamped plans, 2003, that show the second story, and that’s what this is about. These are the plans that you didn’t have, and these are approved. MR. CAFFRY-Not by the Zoning Administrator. MR. LAPPER-They’re building plans. When you have a building permit, the plans are approved. You have approved plans and you’re allowed to build them, and if you’re going to challenge that, you have to challenge it not after the roof is built. We’re not talking about the porch. We understand that the porch had to come down. It came down, but we’re talking about the height. We’re talking about whether the second story of his building can stay or go. What’s happening, we’ve appealed in court and we’re hoping that would be mooted by the fact that getting a re-hearing is to say that regardless of whether or not you feel that attic space is floor area or not floor area, and the Building Code that we think was improperly presented to 38 (Queensbury ZBA Meeting 11/17/04) you because there’s a replacement section that we cited, but regardless, we would say that, as a matter of law, even if you made that decision going forward, in terms of a determination of the review of your Code, than it wouldn’t affect Mr. Riitano’s house because his was built and nobody told him to take it down and appealed it to you within 60 days. It’s not a matter of writing letters to Craig Brown, but a matter of bringing an appeal within 60 days. So we’ve gone to court to say that if the Zoning Board wants to determine that attic space counts for floor area ratio, that may count going forward, but it doesn’t count for Mr. Riitano, because he built it before that was made. MR. STONE-All right. Did I hear you say, just because I want to clarify it, that if we were, would merely agree to re-hear, I’m not saying we would, then you would drop the suit? That’s not what you said? MR. LAPPER-No, because we want the guy to keep his house that he built. That’s his goal, but we’re saying that if you reheard this and reconsidered our arguments, which we think we could be persuasive if we had the opportunity or we hope we could be persuasive if we had the opportunity to thoroughly present it, that it would moot most of the stuff that’s before the court. MR. STONE-But you wouldn’t drop the suit? MR. LAPPER-We couldn’t drop it until you had a new decision, because there’s a statute of limitations. MR. STONE-You’re using moot and I just wanted to be sure. Go ahead. MR. BRYANT-I want to ask Ms. Bitter a question, relative to the last meeting that you’re talking about in your letter. You state that information was brought up in the public hearing that then later, or after the public hearing, that you were not able to respond to. MS. BITTER-Right. MR. BRYANT-And my question to you is, I went back into the minutes, Mr. Caffry made a good point. I went back in the minutes, and when he discussed the, not existence of a particular statute in the State Code, that happened before the public hearing, okay, and the sequence of events happened before the public hearing. MS. BITTER-But that map didn’t, that map definitely did not. MR. BRYANT-Okay. Well, I didn’t ask about the map. I’m asking about those two issues. My question, specifically, is was it a case that you were not permitted to speak or was it that you were not prepared with the documentation or Mr. Lapper or the ammunition to attack the things that Mr. Caffry brought up? That’s all I want to know. MS. BITTER-Well, I think I identified, when I made the request to table it, not only was Mr. Lapper not here, but because of the detail of the appeal, that we wanted to have a written submission to respond to the items that were discussed at the public hearing. MR. BRYANT-But you had that opportunity at the public hearing, to discuss the items that were already brought to you relative to those issues that you brought up in your letter, and that’s the point I’m trying to make. MS. BITTER-But I think I actually said, a written submission, so that the Board could actually digest the items that were being discussed. MR. BRYANT-You’re eloquent enough that we would be able to digest that. 39 (Queensbury ZBA Meeting 11/17/04) MS. BITTER-But that was only Part I. I mean, we’re dealing with items such as this map which was an erroneous item which was suggested, as well as the Statute of Limitations claim and the vested rights issues as well. Those are the three prongs that we’ve discussed, that this should be reheard for. MR. BRYANT-Okay. I won’t belabor the point. MR. STONE-Do you gentlemen, Staff, have any further comments? MR. BROWN-No. MR. ABBATE-I just want to clear something up as well. You have in front of you a map. MR. LAPPER-Yes, signed by the Town. MR. ABBATE-Signed by the Town, and that map. MR. LAPPER-Dated 7/03/03. MR. ABBATE-And it’s signed by the Town, sealed, and what does that map do? MR. LAPPER-It shows a second story. Mr. Caffry, at the public hearing, just said it was a one story building that was approved, and this is an approval for a two story building which was constructed. MR. ABBATE-Well, that was my point. What you have in front of you is approval for a building that was constructed and is currently constructed meeting those specifications? MR. LAPPER-That’s right. There were other issues like the front porch that had to be addressed, but in terms of the height of the roof, the second story, here it is. MR. ABBATE-But this is the document we did not have. MR. LAPPER-That’s right. This is the document you didn’t have. MR. ABBATE-Yes, because that would have changed some things, perhaps. MR. LAPPER-Perhaps. At least we’d like it to. MR. UNDERWOOD-Was that submitted to the Town after the construction or before? MR. LAPPER-Probably during the process. MR. UNDERWOOD-While it was being constructed. MR. LAPPER-Because there was an original set from 2002, and there was a new set from 2003, but well before the appeal, and the appeal they were talking about the 2002 plans, and they should have been talking about the 2003 plans, since the appeal happened in 2004. MR. STONE-Okay. I need clarification from anybody who wants to provide it. Because I’m confused, and I’ll frankly admit it. If we deny your request, if one of us or more of us says no, and you can help, chime in here, Craig, what is the current situation? What happens? MR. LAPPER-That we will have to prove our case to court, to go through the whole. MR. STONE-So you have a job. You would go to court to prove your case. As far as the Town is concerned, what’s the situation, Craig? We’re not going to rehear it, let’s say. 40 (Queensbury ZBA Meeting 11/17/04) MR. BROWN-Then I guess we would be faced with the determination, or not the determination, the decision that was made previously by the Zoning Board on the Appeal that’s in question, and we would pursue those issues, regarding the need for approval of the expansion as it was named in the appeal, or the decision. MR. LAPPER-The attic space. MR. BROWN-The attic space, yes. MR. STONE-Okay. MR. ABBATE-Mr. Chairman, the other consideration would be not to make a decision, in view of the fact that there is litigation pending. MR. STONE-Well, if we merely say, it seems to me we’re not going to re-hear it, that merely says that we’re content with the decision that we made and let the courts, it’s being challenged in the courts. MR. BRYANT-But I don’t know that that’s really what it said, okay. That was one of the things that Mr. Caffry said I didn’t agree with. The fact is that because we choose to re-hear it, is only an occasion that, yes, there may be additional information that may have, be relevant to the issue, okay. That doesn’t mean that we were wrong or we were mistaken. That just means that maybe there is additional information that should be considered. Frankly, I don’t like the way this, you know, you have an appeal by somebody who’s not the pp owner, and therefore the property owner now has to speak in the public hearing and can’t refute anything that the other attorney is saying, and now we’re going to get into another appeal process, and the attorney of the appellant, the original appellant can’t speak but in the framework of the public hearing. It’s very confusing. MR. LAPPER-That’s exactly right. That’s the problem. That’s exactly right. MR. BRYANT-Yes. If we all had equal time, and you presented your case and Mr. Caffry presented his case, and we vote on it and end of story. That’s all we’re asking for. I mean, I understand that it doesn’t work that way, but it’s very confusing for me. MR. STONE-Well, I agree that it’s confusing. MR. BRYANT-But I think that basis has nothing to do with what the Town will do in this case scenario or not has really to do with whether or not. MR. LAPPER-Procedural. MR. BRYANT-If this applicant, we should re-open this whole process and listen to it again with all the evidence and then go from there. I mean, that’s all I think we’re here to decide. MR. STONE-Well, that’s what we’re here to decide, I agree, whether we’re going to hear it or not. MR. BRYANT-All the other stuff is superfluous. MR. ABBATE-Well, it’s not superfluous because if we decide to rehear the case, it may be that the Zoning Administrator did not err. MR. LAPPER-That’s right. MR. ABBATE-So that’s not superfluous. That, to me, is important. 41 (Queensbury ZBA Meeting 11/17/04) MR. MC NULTY-Well, I think we, I’m trying to remember exactly what we did decide, but as I recall the issue was not whether or not the second story, if you call it that, on the house was approved or not approved, it was an issue of whether or not that second story had living space or should be included in the floor area ratio. So I think there’s some sneaker issues that have popped up tonight that we shouldn’t be considering it. It’s not a case, was it approved or wasn’t it approved. MR. BRYANT-I don’t think that that was the, I have the minutes here if you’d like to read them. That was not really the discussion. The discussion had to do with whether or not the structure was, you know, they increased the size of the structure with that storage space, and the question was, should the dead storage space be included in the floor area ratio, and that’s what, whether it was living space or whatever, I mean, that was not really the bottom line when it came to it. MR. MC NULTY-And it wasn’t whether or not the plans showed the second story or not. MR. BRYANT-No. The discussion was whether or not the dead storage space should be included in the floor area ratio. MR. MC NULTY-So if there’s new information, or appears to be new information that might impact that decision, that’s one thing. If there’s just extraneous information. MR. STONE-The Zoning Administrator ruled that it was not to be considered as part of the floor area ratio, and we said it was. MR. BRYANT-Yes, and traditionally, when it comes to attics and basements that are unfinished, that’s generally the rule. Okay. It’s not included in the floor area ratio. MR. LAPPER-That’s right. MR. BRYANT-So, you know, I would like, my personal opinion is I’d like to see this thing, and I’d like to have both Mr. Lapper and Mr. Caffry present their case, in full, and make a, you know, wrap this thing up. I’d like to give them the opportunity to re-open this thing, and then let them put all their cards on the table, all the drawings that are missing. He said, she said, and then we make a decision, end of story. MR. LAPPER-I’d like to just make one comment that I tell each and every one of my clients, that I never like to have land use matters decided in court. It’s the expensive way. It’s not the way it should go, and that’s why frequently, if we have a denial, we’ll come back with a different set of plans and ask this Board to consider something else, because there’s often another way to get somewhere. I mean, so we’d like to present the whole thing and have you consider it. It’s very important to Mr. Riitano because it’s his house and he built it and he thinks he has approval for it and he thinks that you were under the impression that he built it illegally, where we have signed plans saying he built it legally. MR. ABBATE-Mr. Chairman, I think Allan is right. In the interest of justice for both parties, it might be in the best interest to re-hear this, for both parties. MR. MC NULTY-That leads me back to my earlier thought that I made. We’ve got this issue now where we’re talking about floor area ratio on the up side of the house. We’ve got another issue scheduled for tonight that talks about floor area ratio on the bottom side of the house. If we were to consider re-hearing it, I wonder if there’s any way of rolling all this together. Let’s get the whole discussion done. MR. BRYANT-One affects the other. MR. LAPPER-We certainly agree with that. 42 (Queensbury ZBA Meeting 11/17/04) MR. BRYANT-If we decide, tonight, to re-hear this, okay, and then we’re going to go and hear the next appeal, that says that the basement, unfinished basement space should be included in the floor area ratio, and we decide in favor of the appellant, you know, we’re burning both ends of the candle here. MR. MC NULTY-That’s what I’m getting at. I’d rather hear the arguments on the whole thing at one shot, if there was some way of doing it. MR. STONE-Well, that’s why I facetiously said we should send them to the back room and come forward with a proposal that both sides, at least would be willing to discuss. MR. ABBATE-We’d have to go back to Square One, and resolve this once and for all. MR. URRICO-And I think the issue is that everybody be given a fair opportunity to get this matter, all the issues brought out together, as we have them now, and get it right, and fairly, and my personal opinion is, up to now, we haven’t gotten the whole story in one place at one time. MR. ABBATE-And you know, Mr. Chairman, even if we have to have a special meeting for this, it would be worth it to me. MR. LAPPER-That might not be a bad idea. MR. STONE-Okay. Do I hear anybody who doesn’t want to re-hear it? Remember, we only need one of us who feels that we should not re-hear it. MR. MC NULTY-If it was strictly the issue that initially was presented to us tonight, to re-hear what we’ve already done, I’d be inclined to say, no. If we can somehow make it work so that we can get the whole thing settled, make sure both sides have full time, then they don’t have to repeat arguments about definitions or anything else. We get a full picture and I think, like you say, maybe a special meeting is the way to do it. MR. STONE-Let me pose a question to the guys in the back of the room, and I don’t know if I’m legal or not. Mr. Caffry and Mr. Kelly, would you be willing to hold a joint session to try and get this whole thing worked out? MR. CAFFRY-We think that should be unnecessary, because we don’t think this needs to be re- heard. You voted, five to two, you made a good decision. There’s no new evidence that affects the floor area question, as Mr. McNulty asked about. The subsequent appeals in part build upon the first one. So I would say that if you did vote to re-hear, we would want to table our other one that’s on the agenda for tonight, but we don’t think you should vote to re-hear. There’s no reason to re-hear. MR. STONE-Okay. I understand that. MR. CAFFRY-And to re-hear and re-hash all those arguments, I think, is a waste of everybody’s time. MR. LAPPER-The guy’s got a house he doesn’t want to take down. MR. STONE-Well, that’s the question I’ve asked. I still don’t know what would be the action if we did one thing or another. MR. LAPPER-You reconsider it and you decide again what the right answer is. MR. BRYANT-Mr. Chairman, by re-hearing it, we’re not guaranteeing we’ll overturn it. We just want to hear all the facts, any new evidence that you claim to have, and any rebuttal that Mr. Caffry may have for that. 43 (Queensbury ZBA Meeting 11/17/04) MR. STONE-But I just heard, to my left, a concern if we don’t expand the discussion. Is that correct? MR. MC NULTY-Correct. MR. LAPPER-Because now there have been new appeals since then. MR. BRYANT-Well, I think, you know, Mr. Caffry just answered Mr. McNulty’s question. Because he is willing to postpone the next appeal relative to the outcome, if we re-hear this, relative to the outcome of that, and for scheduling purposes, it might be beneficial to have both the same night, end of story. This way everybody gets a fair chance, whether it’s a special meeting or not, you know, everybody gets a fair chance. End of story. MR. MC NULTY-I’d like to try to go a step further than that, though. What I’m looking ahead is I don’t want the appellant to keep nickel and diming this. He can keep finding things to raise issues with. It’s an ongoing argument. I think we’d serve everybody and cut the money that people are spending on lawyers if we could get the whole thing done in one shot, at some point, even if it takes a whole evening. MR. LAPPER-They’ve got three other appeals, now, that you don’t have on tonight because they didn’t make the cut for the agenda, two others in addition to this. So why don’t you put all four, the re-hearing of this, the other three, that’s the whole issue, put it on the table and we’ll argue everything that night and you’ll decide. MR. CAFFRY-We’re not trying to nickel and dime you. What happens is, we can only appeal what Mr. Brown does. We can’t just say, here’s everything we’d like you to vote on, to wrap this all up. We weren’t able to do that. That’s why we’ve had to file multiple appeals, but, again, a lot of them relate to the first one, and there’s no reason to re-hear it. It was a good decision. You had all the information. They’ve got nothing new. MR. BRYANT-Okay. Mr. Caffry, you already stated that. Let me ask you a question, though, while you have the mike. Mr. Lapper makes a suggestion, and I think it’s a logical suggestion, and it speaks to what Mr. McNulty has asked. You’ve got multiple appeals on the project. They all speak to the same issues, primarily. Why don’t we just do it all at once. MR. CAFFRY-If you want to put our other ones that are pending on all the same night and discuss them all at once, that’s fine, but we don’t think you need to re-open and re-hear the first one because you were right the first time. MR. BRYANT-Well, you already said that. MR. CAFFRY-And don’t go back and undo it. So if you want to take our next one and put it on next month with the others that we’ve got out there, I think that’s okay. MR. KELLY-I’m in agreement with that, but at the December 17, 2003 meeting, both parties were represented by counsel, and at the April 25, 2004 meeting, both parties had counsel, and again in August, both parties had counsel. We’ve both had our opportunity to go and present our cases, and if it seems as though all of these should be wrapped up into one, we did not have that opportunity. The most significant of any of them is the second story, and I’ve invested a lot of money and a lot of time and a lot of effort in getting that. Now I encourage everybody to go and review what we’ve presented and compare that to what’s in the record for the Town. You’ll find it’s all factual and truthful. MR. STONE-You’re making a valid argument, but just make it, go ahead. MR. KELLY-I agree with Mr. Caffry. If you want to roll up everything else, that’s fine, but everybody had an opportunity to present their case in August, and the main thing that it hinges 44 (Queensbury ZBA Meeting 11/17/04) on is this so called map which was only signed off by Dave Hatin. That is several months after the building permit was originally issued. He did not build what he got the permit for. MR. ABBATE-But don’t you think that, there’s another side here that’s being ignored. Don’t you think that there should be an opportunity to determine whether or not the Zoning Administrator was correct? MR. KELLY-With all due respect, I think we did. MR. ABBATE-But based on new information and what have you, I think by not hearing this thing we’re doing not only an injustice to all concerned, but also to the Zoning Administrator. MR. KELLY-Well, I would just reiterate that you checked everything that we presented, and everything that’s in the record, and everything we’ve said is factual, and the Board made their decision on that, and what Mr. Riitano presented. Thank you. MR. STONE-Okay. Ms. Bitter? MS. BITTER-If I could just respond to that. I want to just identify to you that tonight, unlike August 25, you’ve given Mr. Caffry and Mr. Kelly many opportunities to rebut everything th we’ve said. On August 25, I was only provided the opportunity to request that it be tabled. th After that public hearing was closed, I was not provided any opportunities, even though I sat there and tried to interrupt. I think that is a valid point, because regardless of when those points were made, when the conclusion was being reached and how the Board was being told, that was the time in which I should have been afforded an opportunity to respond, and the property owner, Mr. Riitano, should have been able to be heard. MR. STONE-Let me just, we open and close public hearings in a timely fashion. We ask. We ask people to make comment. We can’t keep them open all the time. MR. LAPPER-But if new information comes up during the discussion, then there should be a rebuttal. MR. STONE-I didn’t know there was new information. MR. LAPPER-But it was that map. MR. STONE-This is now. MR. LAPPER-No, no. This map existed way before, this map is a year old, and they were talking about 2002, and this was 2003, and it happened in 2004, and that’s all. We just wanted you to make sure you made the right decision. MR. STONE-The only thing that was before us that night was basically, as Mr. McNulty says, it was the Zoning Administrator correct in saying the open space on the second floor, legal or illegal, was it part of the floor area ratio, and we said it wasn’t. MR. LAPPER-But you believed it was illegal that night, and we’re saying it was legal, because it was approved, and you were told that it was built without an approval. MR. STONE-That wasn’t the point, whether it was legal or illegal. MR. LAPPER-In the minutes he stressed it was illegal, and we think that was influential, to some members. MRS. HUNT-But part of it was the fact that there were stairs going up to the attic from outside, and these large windows, we thought. 45 (Queensbury ZBA Meeting 11/17/04) MR. STONE-Right, that was part of the discussion. MS. BITTER-But he didn’t actually have what the Building Code actually identified as a habitable space in front of you that evening to make a valid conclusion that having windows and stairs created it as being habitable. MR. BRYANT-Yes, and that’s not a criteria for habitable space. MR. LAPPER-That’s right, and that’s an important point for the Town, for everyone that builds in the Town, what’s floor area ratio. So for anything else, you should make sure you’re right about that. MR. BRYANT-This really speaks to any other future applications. Now should the Zoning Administrator include storage space in the attic as being part of the floor area ratio. MR. STONE-That’s one of the reasons we have the planning and organization review committee, functioning, but it’s a process, and it’ll take a while, and this is more on the list of things that have to be looked at. Storage space we don’t define. The State Code is obviously in limbo a little bit. MR. LAPPER-Right, but perhaps if you have a bad decision, you should reconsider it, because it’s never been viewed that way. MR. STONE-Well, bad is a judgmental thing. MR. LAPPER-Well, we think that you were presented with, this is what the Building Code says, and it was wrong, and we’d just like you to reconsider that, and I think that hopefully all of you agree that it would be fair to just have a level playing field. Our guy is the real party in interest. It’s his house. MR. STONE-Okay, but nothing from that decision has transpired yet. The house is there. MR. LAPPER-Right, but ultimately, if it doesn’t get fixed, you know, something bad could happen. MR. STONE-Well, that may very well be, but you don’t know. Okay. Let me, does anybody, no, I don’t want to do it that way. I will poll the Board in terms of whether they want to rehear. MR. BRYANT-I think, Mr. Chairman, what you ought to do is just look for a motion to rehear, and then do the Board thing, the vote, because this is not a question of four against three. Let’s make a motion to rehear the appeal, and go from there. MR. LAPPER-And the other three at the same time. MR. BRYANT-If it goes, it goes. If it doesn’t, and Mr. McNulty can’t relate to it, then it’ll fail, and they can do what they have to do, and that’s the end of the story. MR. STONE-Okay, well, that’s what I’m saying. Make a motion. Go ahead. You just did. The motion is that we decide to rehear. MOTION THAT WE REHEAR NOTICE OF APPEAL NO. 4-2004 CAFFREY & FLOWER FOR MICHAEL KELLY RELATIVE TO THE RIITANO PROPERTY, Introduced by Allan Bryant who moved for its adoption, seconded by Roy Urrico: Duly adopted this 17 day of November, 2004, by the following vote: th AYES: Mr. Abbate, Mr. Urrico, Mr. Bryant 46 (Queensbury ZBA Meeting 11/17/04) NOES: Mr. Underwood, Mr. McNulty, Mrs. Hunt, Mr. Stone ABSENT: Mr. Hayes MR. STONE-We will not rehear. MR. LAPPER-Okay. NOTICE OF APPEAL NO. 6-2004 SEQRA TYPE: N/A MICHAEL KELLY OWNER(S): SAME ZONING: WR-1A LOCATION: JOSEPH RIITANO PROPERTY AT 16 SUNSET LANE APPELLANT IS APPEALING A ZONING ADMINISTRATOR DETERMINATION REGARDING A FLOOR AREA RATIO CALCULATION RELATIVE TO THE BASEMENT OF THE STRUCTURE. CROSS REF. BP 02-442 SEPTIC ALT. BP 02-866, RES. ADD; AV 26- 04, AV 52-02, AV 89-03; NOA 4-04 WARREN COUNTY PLANNING N/A ADIRONDACK PARK AGENCY N/A LOT SIZE: 0.17 ACRES TAX MAP NO. 226.19-1-9 SECTION JOHN CAFFRY, REPRESENTING APPLICANT, PRESENT; MICHAEL KELLY, PRESENT MR. STONE-In light of the discussion, would you be willing to postpone this one until we talk all three of them? MR. CAFFRY-That’s exactly why I came up and sat down. MR. STONE-Well, I was hoping you would say that. MR. CAFFRY-There is one thing I would like to discuss with the Board, as long as we’re here, and we’re talking about three. One of them we filed was an appeal of the Certificate of Occupancy itself that was issued in August, and we filed it within 60 days of the issuance of the CO. We got a memo or something back from Marilyn Ryba saying the CO isn’t appealable, and we spent some time looking into that question. I’m not sure it’s the Staff’s decision to tell us it’s not appealable or your decision or whatever. What I’d like to suggest with perhaps Mr. Lapper’s consent is that the Board and everybody agrees that that appeal be heard with the others as well, and wrap everything all together, so we don’t have to appeal whether or not it’s appealable and things like that. MR. MC NULTY-I’d like to hear the Town Attorney’s opinion on that. MR. STONE-Yes, I would, too. I was going to say that. I think we need an opinion. I mean, if you want to adjourn, table the one that’s on the thing tonight, we will consider, after consultation with the Town Attorney, putting them all together, and we’ll get an answer to that one. Is that correct, Mr. Brown? Is that reasonable? MR. BROWN-I’m sure that the memo that was drafted by Marilyn Ryba was based on information she received from Town Counsel on the appealability of the Certificate of Occupancy issue. MR. MC NULTY-In which case I’d like to have that confirmed, just so we know. MR. CAFFRY-I don’t think so, because I had somebody from my office call and talk to Marilyn, and I don’t think she had consulted with Town Counsel. Let’s say that. I think that was something, a Staff decision and not a Town Counsel decision. We’d be glad to talk to Town Counsel. MR. BROWN-I’d be happy to get you that in writing from the Town Counsel. I’m sure they discussed it. MR. MC NULTY-If it is appealable, I’d agree. It ought to be packed into the whole thing, but if it’s not appealable, then we shouldn’t be talking about it. 47 (Queensbury ZBA Meeting 11/17/04) MR. URRICO-Mr. Chairman, I’d also like to recommend that on that night that Town Counsel also be available for this meeting. MR. STONE-Agreed. MR. CAFFRY-I mean, yes, because they’re involved, now, because of the litigation. I talked with Mr. Schachner at one point and he said, I don’t get involved unless I’m asked to, I said, okay, fine, but now that they’re involved in the litigation, I don’t have a problem with that. MR. ABBATE-Mr. Chairman, let me make it official. I move that the evening that we hear this appeal, that the Town Counsel be present. MR. STONE-And that we hear all three or four together. MR. ABBATE-Whatever it is, I move that we request the presence of Town Counsel. MR. STONE-Okay. MR. CAFFRY-And there was some discussion of whether or not there would be a special meeting. I don’t know what you want to do. I know I have a problem with your December 15 th meeting. I am available on the 22 . nd MR. STONE-We’ve got two meetings in December? MR. BROWN-The 22 would be the meeting that these would be on. nd MR. STONE-Would be the 22. nd MR. BRYANT-I’m not going to be here. I’ll be in Florida. MR. BROWN-I’m sure we could find an alternate. MR. STONE-Well, hopefully we’ll get the gentleman in the back who’s heard everything tonight, and hopefully we’ll get Mr. Hayes, who we haven’t seen lately for some reason. Okay. MOTION TO TABLE NOTICE OF APPEAL NO. 6-2004 MICHAEL KELLY, Introduced by Lewis Stone who moved for its adoption, seconded by Charles Abbate: And combine this with the Appeal that is scheduled to be heard on December 22, and at the nd same time determine whether or not a CO is appealable, and if it is appealable, we’ll lump those all together at the same meeting on the 22. nd Duly adopted this 17 day of November, 2004, by the following vote: th AYES: Mr. Bryant, Mr. Urrico, Mrs. Hunt, Mr. McNulty, Mr. Underwood, Mr. Abbate, Mr. Stone NOES: NONE ABSENT: Mr. Hayes MR. CAFFRY-Thank you. MR. STONE-Thank you. I’ve been requested by Mr. Salvador to speak to us for five minutes. MR. BRYANT-Is this going to be relative to an appeal? 48 (Queensbury ZBA Meeting 11/17/04) JOHN SALVADOR, JR. MR. SALVADOR-Yes, indeed. It’s relative to some information that I think you need to have in your possession. MR. BRYANT-Wouldn’t you prefer to have it during the appeal process? MR. SALVADOR-No. My appeal is over with. I may be establishing a basis to reopen, from what I have to say here tonight, but first I’ve asked Bruce to put up a slide here that you folks looked at earlier tonight. I think I’ve got some information on it, okay. MR. STONE-If he can find it. MR. SALVADOR-I noticed on this map, there are some things that are in error. First of all, this unnamed road here, that actually has a name. The Town Board gave that a name, I think it was in, the name of this road, I believe, is Heron Hollow Drive, and that road was given that name because when Dave Hatin was setting up the 911 number system, he came to this Hillman Road, and by God we found out that Hillman Road was in fact a T-shaped road. It was not only this road, but they claimed it was this road, down to here, and to here I believe and to Takundewide. Okay. So what they did was, you can’t have a T-shaped road, the numbering system. So they left this Hillman Road in this shape the way it was, and they gave this branch a new name, and it’s Heron Hollow Road. I believe that’s in the Town record and it’s on the Town list of inventory. MR. STONE-That’s where Judge Moynihan lives. MR. SALVADOR-That’s where Judge Moynihan lives and that’s exactly why it was done. Okay. I handed to you earlier this evening a letter that I’d written to Dave Hatin and the reason that I gave that to you was that on the 20 of October, when I appeared before you on my th appeal on the boat versus the dock issue, I included in that, I said the fact that I had gotten a Notice of Violation from Mr. Hatin. It was really a two pronged notice. One of them was, the first of these purported Building Code transgressions deals with a vessel, which we designed, built, registered, and after sea trials, hoisted to a location on our land for a final outfitting, and I talk about the vessel. Mr. Hatin determined that a building permit was required, if we were to maintain her in storage, because we didn’t have floatation under it. Okay. So what we did, we decided the easiest way to preclude an enforcement action was to install just enough floatation to keep her afloat, and that’s what we did, and we have done this and assumed the need for a Town Building Permit for a vessel in storage has accordingly been abated. Well, after this hearing, I got a letter from Mr. Hatin, and I refer to it in that letter before you, where he’s now determining that this is, in fact, a structure, and as a structure it needs a building permit, and of course before we can get a building permit, because this is in this zone, in the Waterfront zone, is a nonconforming use, marina, we’d have to go to site plan. So the reason for that letter is to try to show Mr. Hatin that in fact it is not a structure as he, it doesn’t qualify. It doesn’t meet the conditions, the criteria or anything to be called a structure. Then he talks in there about the fact that he and Craig Brown had made a determination that this was such, and that if I didn’t agree with the determination I could take an appeal. Well, I don’t see any evidence of Mr. Brown’s determination, and I told him so. However, he can take an appeal if he thinks it, Mr. Brown has been remiss in not making this determination, and I’ll get to that subject later, but anyway, take a look at that, and I’m just wondering if I don’t have a basis, maybe, to ask you to rehear my appeal of last month, simply because there’s no information now. Initially I thought that he had determined that I didn’t need any permit. Now he’s saying I do. So that’s all part of the same thing, but give it some thought. I still have a few days before I would file a Notice of Appeal on that. I went to the Planning Board meeting, by the way, I should mention, with regard to boathouses and decks, the Planning Board listened to a site plan review application last night, and they determined unequivocally, the Town Code is lacking as to the surface area of the deck. It’s very specific about the 700 square feet of the dock, but as that boathouse is, if you can shoot that cantilever out there, there’s no limit to the size, the area of the deck. The Code does not address that. 49 (Queensbury ZBA Meeting 11/17/04) MR. STONE-Okay. Why I referred to the fact that those wings, most docks don’t cover the outer piers like that. MR. SALVADOR-And I think that’s why they’ve got the depth in there. They need the structure, they need that to get that cantilevered. They need the depth. That’s the three and a half feet you’re talking about. Anyway, at last night’s Planning Board meeting, I delivered them a copy of my arguments from October 20, because all of this is going to site plan, that th we’re in the process of trying to obtain from the Planning Board at this time. All of these are site plan issues, because if, in fact, I need a building permit for a boat in storage, then that becomes a site plan issue. It’s a structure, and if, in fact, my boats are determined to be docks, they are site plan issues, and they will be before the Planning Board. So I gave them the benefit of my arguments before your Board on the 20, and I told them, I quoted you, Mr. Stone. I said, th and this is in the minutes, your presentation was very learned, very erudite, very long, but very informative. So they have that in their possession. MR. STONE-Am I supposed to worry about that? MR. SALVADOR-No. I came to this Board a couple of months ago, I believe, talking about my inability to get some information from the Town that I think I need to satisfy the requirement that I can in fact do something I want to do, and this deals with information on the highway right of way location. If you recall, I was before this Board in 1999, trying to site a structure on my land, and it was determined that the map that we were using was not the most accurate map, and that the map that was being made available to the Board, through Staff, from the Highway Department, was the most accurate map, and the map that should have been used, and I’ll quote Mr. Thomas, who was the Chairman of the Board at that time. He says here he wanted the centerline laid out, but we couldn’t get that done, but we have a map that Paul Naylor, the Highway Superintendent, says is the official Town map. Even though he didn’t follow procedures as to recording it, notifying and whatever else he was supposed to do, but I think if he had done this, this still would have been the official Town map. So I believe this map is what we should use in determining this application, and all the other. In any case, we challenged that. We appealed that. They go on to further say, we appealed this in Supreme Court, and the argument here that the Board makes is feasible alternatives include the possibility of relocating the cabin to a more compliant location westerly. This is your resolution. This relief is substantial to the Ordinance in that 28 feet of relief from the 30 foot setback requirement has to be interpreted as substantial. Now the map that I presented showed that my setback from the right of way line was probably something in the order of four feet, but when Mr. Naylor’s map was put on the table, it was 28 feet. We went to court, okay, and Judge Lacy issued a decision and he substantially agreed with your resolution, that he said, yes, if you locate to the west you don’t need the relief you’re asking. Okay. I took that and I wrote Mr. Brown a letter, and I showed him, by taking the Highway Superintendent’s map, official Town map, and I gave you copies of this, I believe, and setting the cabin more westerly, I drew the envelope of setbacks, okay, I drew this, and I located it. Sure enough, I can get it in, I can just get it in there, and so I went to Mr. Brown and I said, this is what I would like my permit based on. He looked at the draft, this is a draft I used, he said there’s not enough information on this. This was his reaction. There’s not enough information on this. Well, I’m using your map. I’m using your map, the one you said I have to use, and there’s not enough information on it, well, let’s get it on there. Let’s get it on. Now, Mr. Brown has been vacillating for a couple of months, and he just doesn’t know what to do, okay. He doesn’t want to go ask the Highway Superintendent, okay, or I would say ask the Town surveyor. The Town surveyor prepared that map. If there’s not enough information on it, let’s go get it. He’s dragging his feet on this. Now, in the good old days, I could have appealed that omission to this Board, but we’ve revised our Zoning Ordinance, and we’ve dropped that word “omission” out, and by the way, if you read this text of the Zoning Board of Appeals, it doesn’t match Town law at all. This is so confusing it’s incredible. Take Section 267 of Town law, and all you’ve got to do is put those paragraphs in here. They’re well written. She read them to you tonight. She wasn’t reading from this. She was reading from McKinney. This used to say that anyone aggrieved, anyone aggrieved, can take an appeal to this Board, anyone. You can live in Baltimore, wherever you 50 (Queensbury ZBA Meeting 11/17/04) are, you feel aggrieved, you can bring an appeal to this Board for an action, determination, and it used to say omission, omission, but now they Salvador proofed this Code, and they’ve stricken omission. MR. STONE-I suggest you come tomorrow night and raise this same point. MR. BRYANT-You should be taking notes. You’re on the Committee, take notes. This should be part of the discussion. That’s why you were selected to be on the Committee. Why are you asking Mr. Salvador to make a special trip? MR. ABBATE-Let me correct you a little bit, Mr. Salvador. The word “omission” was only deleted with one small portion. The word “omission” continues on. MR. SALVADOR-Yes. Later they left it in here, and it doesn’t fit. See, they left action or omission. Well, they never talked about omission earlier, but now they forgot here. MR. STONE-Okay. MR. SALVADOR-Seriously, these things, they all have to come together in that meeting, but the problem with that meeting is that, if you folks attend, it’s extremely difficult to get the microphone, get some time, and be able to articulate an argument. MR. STONE-Talk to the Chairman. MR. BRYANT-Is that why you’re here tonight? Because here you can articulate your arguments? MR. SALVADOR-I try. Okay. Thank you. Thank you, gentlemen. MR. STONE-Okay. CORRECTION OF MINUTES June 23, 2004: NONE MOTION TO APPROVE THE MINUTES FOR JUNE 23, 2004, Introduced by Lewis Stone who moved for its adoption, seconded by Allan Bryant: Duly adopted this 17 day of November, 2004, by the following vote: th AYES: Mr. Underwood, Mr. Abbate, Mr. Urrico, Mr. McNulty, Mr. Bryant, Mr. Stone NOES: NONE July 21, 2004: NONE MOTION TO APPROVE THE MINUTES OF JULY 21, 2004, Introduced by Lewis Stone who moved for its adoption, seconded by Charles Abbate: Duly adopted this 17 day of November, 2004, by the following vote: th AYES: Mr. McNulty, Mr. Urrico, Mr. Abbate, Mr. Underwood, Mr. Stone NOES: NONE July 28, 2004: NONE 51 (Queensbury ZBA Meeting 11/17/04) MOTION TO APPROVE THE MINUTES OF JULY 28, 2004, Introduced by Lewis Stone who moved for its adoption, seconded by Charles Abbate: Duly adopted this 17 day of November, 2004, by the following vote: th AYES: Mrs. Hunt, Mr. Urrico, Mr. McNulty, Mr. Abbate, Mr. Stone NOES: NONE August 18, 2004: NONE MOTION TO APPROVE THE MINUTES OF AUGUST 18, 2004, Introduced by Lewis Stone who moved for its adoption, seconded by Roy Urrico: Duly adopted this 17 day of November, 2004, by the following vote: th AYES: Mr. McNulty, Mr. Urrico, Mr. Abbate, Mr. Underwood, Mr. Bryant, Mr. Stone NOES: NONE August 25, 2004: NONE MOTION TO APPROVE THE MINUTES OF AUGUST 25, 2004, Introduced by Lewis Stone who moved for its adoption, seconded by James Underwood: Duly adopted this 17 day of November, 2004, by the following vote: th AYES: Mr. Abbate, Mrs. Hunt, Mr. Urrico, Mr. McNulty, Mr. Underwood, Mr. Stone NOES: NONE September 15, 2004: NONE MOTION TO APPROVE THE MINUTES OF SEPTEMBER 15, 2004, Introduced by Charles Abbate who moved for its adoption, seconded by Joyce Hunt: Duly adopted this 17 day of November, 2004, by the following vote: th AYES: Mr. Underwood, Mr. Bryant, Mr. McNulty, Mrs. Hunt, Mr. Abbate NOES: NONE September 22, 2004: NONE MOTION TO APPROVE THE MINUTES OF SEPTEMBER 22, 2004, Introduced by Lewis Stone who moved for its adoption, seconded by Charles Abbate: Duly adopted this 17 day of November, 2004, by the following vote: th AYES: Mr. McNulty, Mr. Underwood, Mrs. Hunt, Mr. Urrico, Mr. Abbate, Mr. Stone NOES: NONE MR. BRYANT-I have two quick questions. Just one comment and one question. We’ve got to be careful with Salvador. He brings a lot of good stuff to the Board, and he’s after the meeting, but, you know, he’s touching on an issue that later on he may appeal, and in reality, there was no public hearing announced for, there was no other discussion. Anything that he said tonight would have to come back to a normal appeal. 52 (Queensbury ZBA Meeting 11/17/04) MR. STONE-Yes. He’d have to say it. MR. BRYANT-But you see, the public wouldn’t have the advantage of what he said tonight. Okay. So you’ve got to be careful with him. On motion meeting was adjourned. RESPECTFULLY SUBMITTED, Lewis Stone, Chairman 53