Loading...
2004-12-22 (Queensbury ZBA Meeting 12/22/04) QUEENSBURY ZONING BOARD OF APPEALS SECOND REGULAR MEETING DECEMBER 22, 2004 7:00 P.M. MEMBERS PRESENT LEWIS STONE, CHAIRMAN CHARLES MC NULTY, SECRETARY PAUL HAYES CHARLES ABBATE ROY URRICO ALLAN BRYANT JAMES UNDERWOOD EXECUTIVE DIRECTOR-MARILYN RYBA SENIOR PLANNER-STUART BAKER ZONING ADMINISTRATOR-CRAIG BROWN TOWN COUNSEL-MILLER, MANNIX,SCHACHNER, AND HAFNER-CATHI RADNER STENOGRAPHER-SUE HEMINGWAY NOTICE OF APPEAL 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 REFERENCE: 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 LOT SIZE: 0.17 ACRES TAX MAP NO. 226.19-1-9 SECTION JOHN CAFFRY, REPRESENTING APPLICANT, PRESENT MR. STONE-As we start, let me remind the Board and the public and the applicant and the agents and everyone else, that we are dealing with a very narrow issue in both of these cases. The narrow issue that we are asked to determine is the Zoning Administrator correct or incorrect regarding his determination of a Floor Area Ratio calculation regarding the basement and are there any questions, I guess, about the letter written on September 3 in relationship to rd this whole thing. So, Mr. Caffry, keep in mind that we’re talking, as I said, the Appeal is the Zoning Administrator right or wrong, and obviously you can make whatever statement you want. The Zoning Administrator will also make any statement. Counsel will join in whenever she feels that we’re going in the wrong direction or going whatever. So, go. MR. CAFFRY-Thank you. For the record, I’m John Caffry from Caffry and Flower, the attorney representing Mr. Kelly who’s sitting here with me at the table. He’s the appellant on both of these appeals. I think it ultimately would be up to the Board to decide. It may make sense to take these one after the other. It just may make it easier for you, for voting purposes to break it down between the two, instead of voting on them all at once, but that’s ultimately the Board’s decision. I do feel like I ought to get frequent flier miles or something. I think there’s nine or ten appeals on your system for 2004, and I’ve been involved in at least five of them, and we appreciate the Board hearing both of these tonight and trying to consolidate it, and I’d like to think we can resolve all the outstanding issues that have been before you on this particular project, and get them all taken care of here, and perhaps maybe it’ll be the last time. I also appreciate all the time that’s been spent on this case. Again, hopefully we can bring it to some kind of resolution. It is unfortunate that this house is still out of compliance with the Zoning 1 (Queensbury ZBA Meeting 12/22/04) Code. It was about a year ago, after it had been expanded and an after the fact variance was applied for, that that variance was denied, and it still has yet to be brought into compliance. MR. STONE-That is not the job of the Zoning Board of Appeals. MR. CAFFRY-I understand that. MR. STONE-Just want to keep that clear. MR. CAFFRY-There are two Appeals. In order to straighten things out a bit, I tried to summarize them in a letter we filed on December 2. I think you should have all gotten copies nd of that. Along with that was kind of a history of events written by Mr. Kelly. On top of that, we filed copies of all the documents he referenced in there. We just filed one copy, just so they’re in the record and available to the Board if you wanted to refer to them. We also had a third appeal pending, which was appealing the issuance of the Certificate of Occupancy, and Marilyn Ryba wrote us a letter saying it wasn’t appealable. We tried to work, that was mentioned at the last meeting. We had discussions with the Town Attorney. She still feels it’s not appealable, and I don’t know if the Board is just going to accept her opinion and that’s the last word. I don’t what the process is for resolving whether or not that Appeal should be heard. MR. STONE-That is the advice that we have been given. MR. CAFFRY-And so you’re just going, that’s your decision. MR. STONE-As far as the Certificate of Occupancy, and I could make an argument against what you said, but I choose not to at this time. MR. CAFFRY-All right. I just thought I wanted to understand the process. You’ve accepted your advice of Counsel and you’re not going to hear that Appeal. Is that correct? MR. STONE-I only have two Appeals on the table at the moment. MS. RADNER-That’s correct. You read a correct statement of the authority of the Zoning Board of Appeals, and that doesn’t include appealing determinations, issuing Certificates of Occupancy or the decision of the Building and Code Enforcement Officer to issue that Certificate of Occupancy. MR. CAFFRY-And that, obviously we disagree, but if you’re not going to hear it, we’re not going to argue that tonight. So, I’ll start with Appeal No. 6-2004, which has to do with the basement. When we were here in August, the Board upheld our Appeal No. 4-2004, and that addressed, for the most part, the issues of the Floor Area Ratio for the second story that was added to the house, and the setbacks for the vertical expansion on the second floor, and you upheld those Appeals. Besides adding the second floor, this expansion of the house replaced what was previously a crawl space underneath the house with a full eight foot high basement, and Mr. Kelly has previously filed photos and other documentation showing that this former crawl space has been vertically expanded. MR. STONE-Keep in mind we’re talking about whether the Zoning Administrator is correct or incorrect. MR. CAFFRY-Correct. The letter that we appealed from in August 2004, or that was decided in August of 2004, hadn’t addressed the basement. So we couldn’t deal with the issue in August. A subsequent letter by Mr. Brown, June 28, 2004, did address the legality of the basement, and so we then filed a separate Appeal on that, and that’s the one that got numbered Number Six, and is before you now. There’s two main issues on that. One is the vertical expansion of the basement within the setback areas, and this is based on the August decision on our first Appeal directs the result on this issue having to do with the basement. You found, then, the vertical expansion within the setback areas was a violation of the setback rules for the second floor. 2 (Queensbury ZBA Meeting 12/22/04) That’s basically the law of the land at this point, or in legal jargon the law of the case, and is essentially, I think, a binding interpretation of your Code that a vertical expansion that violates the setbacks is a violation of the Code. We’re not here to reargue the merits of that. That you decided last month you weren’t going to rehear the merits. So we think it’s basically binding at this point. So if a vertical expansion of the second floor violates the Code, we think a vertical expansion of the basement likewise violators the Code, and this has nothing to do with whether or not it’s living space. It’s vertical expansion. Now the Staff memo says, well, we never decided that issue so it’s not appealable. That’s the only response. Mr. Brown’s Staff memo doesn’t argue the merits, doesn’t disagree with us on the merits. It just says, well, it was never decided, but the letter we appealed from, which was June 28, 2004, basically said, if you do X, Y, Z, you will be in compliance. So that in effect decides any and all issues, and so we think it is appealable that they did not properly, the Staff at that time, did not properly address the issue of vertical expansion, and therefore that is properly appealable at this time. If you accept Mr. Brown’s argument that, well, it’s not properly appealable, then we’ll have to write Mr. Brown and ask him to address the issue. He’ll probably disagree with us, and we’ll appeal, we’ll be back here again, and I think the idea is to get everything decided tonight if possible. So, going back to the merits on that, to be consistent with your prior decision regarding vertical expansion within the setback areas, you should find that the vertical expansion of the crawl space into a full eight foot high basement is a violation of the Code. The second issue, regarding the basement, has to do with the Floor Area Ratio, and it’s similar to the issue with the second floor, but not exactly the same. Your Code does not, it appears to have been designed as a garage. There’s been some back and forth between Mr. Riitano and Mr. Brown about whether or not they would remove the garage doors and just call it a basement. Our point is that, regardless of its intended use, it should be counted for the Floor Area Ratio. It is part of the structure. It is in effect living space. The Code does address the question of basements for the Floor Area Ratio. It says the basement, when it’s at least three feet high, of one wall is exposed, and this one, if you look at the pictures that have been filed, it’s certainly more than three feet high, and this says this space meets the requirements for living space, as described in Section 711 and 712 of the New York State Building Code. Unfortunately, those Sections no longer exist. Ever since I first got into this case, we’ve tried to find that, and we can’t even find it. It was repealed, replaced, at least twice I think it’s been replaced with new definitions. In the Staff memo that you got last month, to which this month’s Staff memo refers again, it says, look at the current State Building Code definition of habitable space. Well, that’s a different word. It’s a different term, and I don’t think it’s binding on this case. It’s not what was written when your Town Code was written. That doesn’t mean that may not be an amendment to make in the future, but right now it’s not what the Code calls for. I think it’s a lot like the second floor. It’s living space. It’s a basement. It can be used in any number of ways. It’s eight feet tall. You can finish it, you can do a lot of things, and one question, again, this came up with the second floor. Regardless of whether or not it’s completely finished off right now, do you want to be down there, or have Mr. Brown down there all the time policing it, seeing what’s going on. We think it’s very clear that it is floor space, that it is livable, and that it should be counted towards the Floor Area Ratio. If you look at the Appeal that we filed on this, the original Appeal document, and I won’t repeat it all right now, but I’m sure you’ve seen it, there’s any number of instances that were quoted in our Appeal, where Mr. Brown, at that point, appears to accept the argument that the basement is living space, and then only later, when this letter we’re appealing from, does he start to say, well, it may not be if you change the garage doors and disavow any intention to park a car there or something. Then it’s not going to count towards the Floor Area Ratio, and there was just a lot of inconsistency there, and I think you just have to cut through everything and say, it’s usable space. It counts toward the Floor Area Ratio. Back when it was a crawl space, it was really just part of the foundation. Now they’ve created a space. They’ve increased the bulk of the building. If you think of the intent of the Floor Area rule is to keep down the bulk of the buildings in the shoreline, or in the Waterfront zoning districts, and so that this should be counted as floor space. So what we’re asking for on this particular Appeal. 6-2004, is a ruling by you that the full basement that was created violates the Floor Area Ratio rule, because it should be counted in the definition, also that the vertical expansion of the basement violates the setback rules. You then get into the question of what’s the proper remedy, and I know Mr. Stone has said repeatedly, we don’t enforce, but you guys can’t be the one out there writing the Stop Work Orders or whatever. However, the New York 3 (Queensbury ZBA Meeting 12/22/04) State Town Law, which gives you the authority to hear appeals in the first place, gives you the authority to go farther than you have gone in this case before, and I think that’s a way to get this thing resolved, to get it done, and over with and give very clear instructions to the Town Staff as to what ought to be done. The Town Law 267-B1 says that when deciding an Appeal, the Board shall make such order, requirement, decision, interpretation or determination as in its opinion ought to have been made by the administrative official charged with enforcement and to that end shall have all the powers of the administrative official. So you can put yourselves in Mr. Brown’s shoes, and you can make a direct order to Mr. Riitano to remove the sections of the building that are in violation. What’s happened before is you ruled there was a violation, and it dumped back in Mr. Brown’s lap, and unfortunately, and we’ll get into this in the next Appeal, we don’t feel he really took that to heart and acted to enforce it, and I think it would be a lot clearer and end a lot of the back and forth if the Board were to say, this is a violation, and the sections that are in violation should be removed in order to bring this building into compliance, and just, you know, help to put an end to all this, and make it really clear what ought to be done here, and I’ve read the Statute over and over. It’s quoted to you in my December 2 letter. So I nd hope you had a chance to see it before. You do have the authority to be very direct as to what ought to be done here. You can make that order. Again, you can’t be out there and enforce it, if it’s violated. You can’t be the one to haul Mr. Riitano into Town Court, or whatever mechanism comes next, but you can say, this is what should be done, rather than just interpreting the Code, and I’m sure your Counsel may want to say something about that issue, but I think that you do have that authority. It’s there in black and white in the Town Law, and I’d just like to ask Mr. Kelly if he has anything to add regarding the factual background, I think, on the Floor Area Ratio rule, or have I pretty well covered it? MICHAEL KELLY MR. KELLY-Thank you, John. My name is Michael Kelly, the Appellant. I would like to make two points, and they both kind of get towards extremes. The first case is several people on the Board before have said, well, traditionally we’ve considered garages and storage space not towards living space. Well, the extreme exercise of that could result in a structure which was only limited by setbacks and permeability and height. Somebody could take those previous words to heart and say, well, this 1,000 square feet is all attached garage and/or storage space, and I really think that defeats the intent of, or my interpretation of the intent of the Ordinance, which is to limit structure bulk size, with respect to the lots that that structure are on. Secondly, the point that I would like to make is regarding the Zoning Administrator’s implication that the garages could be allowed to stay and really not be considered garages if no one put a car in them. The extreme case that I see there is, somebody builds a house too big, and the Zoning Administrator is walking through a beautiful thousand square foot living room, and the homeowner says, well, don’t worry about that, I’m just going to store stuff in there. Even though there’s a couch and a t.v. there, I’m never going to watch t.v. or sit there, and so I don’t think that the determination of what something is when it’s so quite obvious that it’s a garage, should be dependent upon intended or allowed uses, and again, I don’t think that can be policed effectively. Thank you. MR. CAFFRY-Any questions? MR. STONE-Okay. Well, I inadvertently did not ask the Staff notes to be read into the record. I was pre-occupied. I would like the Secretary to read Appeal No. 6-2004 Staff notes. After which I will call on Mr. Brown and Counsel to say whatever they would like to say on this particular subject. So if you would read it, 6-2004. MR. MC NULTY-Okay. STAFF INPUT Notes from Staff, Notice of Appeal 6-2004, Michael Kelly, Meeting Date: December 22, 2004 “Project Location: Joseph Riitano - 16 Sunset Lane Description of Proposed Project: The appellant is appealing the determination rendered by the Zoning Administrator regarding the 4 (Queensbury ZBA Meeting 12/22/04) basement of the structure at 16 Sunset Lane. Information requested: Appellant is appealing to the Zoning Board of Appeals to determine whether or not the decision made by the Zoning Administrator that the basement area of the Riitano structure at 16 Sunset Lane should be considered garage square footage and/or storage square footage and hereby be included in a Floor Area Ratio calculation for the property. Staff comments: The basement area of the Riitano home is not consistent with the definition of Habitable Space as referenced in the current Building Floor Area, Total definition. See definitions of Habitable Space and Non Habitable Space, (previously attached) for your reference. Historically, unfinished basement and unfinished attic spaces have not been counted in the Floor Area Ratio calculation. Also, the appellants request for the ZBA to find that the alterations to the basement of the home be considered as an unapproved expansion in violation of the setback requirements is not an issue that has been questioned nor has a determination been rendered and therefore is not an “appealable” issue.” MR. KELLY-Mr. Chairman, may I add one more thing? MR. STONE-Go. MR. KELLY-I’ll just reiterate that I believe it was on the 12/17/03 and the 4/25/04 hearings, in both instances the Zoning Administrator decided that the garages did, in fact, count towards the Floor Area Ratio and to the best of my knowledge, there has been no material change to that part of the structure to affect any change in consideration. MR. STONE-Okay. Thank you. Mr. Brown? MR. BROWN-I guess most of my comments are in the Staff notes. To fine tune, I guess, the issue of the vertical expansion of the basement is not anything that’s been addressed, and I still feel, and I’d just like to reiterate, that that’s not something that a determination was made about, and I don’t see it as an appealable issue at this point. The section reference to 711 and 712 of a previous New York State Building Code requirement, it’s easily accessible. It’s a document. It may not be the current document, the current New York State Building Code, but it’s a document, nonetheless. You can refer to it. You can go to the library, get a copy of it, pull out the old definitions and use them. That’s what’s in the Code. It may be outdated, but that’s the current reference, and it’s easily accessible. The Certificate of Occupancy that was issued to Mr. Riitano does not include any garage space. I don’t disagree with the argument that if the basement were finished as garage space and met the Building Code requirements to be considered a garage, that it would count in the Floor Area Ratio. That’s not the case here. The basement is utility area. There’s a furnace, water heater, I believe a fuel oil tank in the basement. I’m not sure about that, though, but it’s clearly not finished as a garage. There are certain fire separation requirements in the Building Code that require it to be considered a garage, and that’s not the case here. So that’s another reason it should not be considered in the Floor Area Ratio. MR. STONE-Okay. Anybody on the Board have any questions? MR. BRYANT-A question for Mr. Brown. When you say that the vertical expansion of the basement is not an issue, okay, can you be a little bit more specific? Because the way I’m reading the definitions of Floor Area Ratio, it says relationship of building size to lot size, derived by dividing the total building square footage and then in that, there’s a comment, See Building Floor Area, and there’s a specific notation relative to the basement that if the basement exceeds three feet in height above the wall that’s exposed then it has to be considered in the Floor Area Ratio. MR. BROWN-Well, there’s a little bit more to that sentence. It says, and meets the requirements of living space as per Section 711 and 712. MR. BRYANT-Okay, and is that what you based your determination on? 5 (Queensbury ZBA Meeting 12/22/04) MR. BROWN-On whether it meets the requirements for the Floor Area Ratio calculation? MR. BRYANT-Yes. MR. BROWN-Yes. MR. BRYANT-Okay. The habitable living space that you refer to as habitable? MR. BROWN-Correct, yes, which clearly excludes utility spaces, basements are clearly not counted as, I think they’re actually referenced as non-habitable space, in those definitions that are provided to you. MR. ABBATE-You say, the exclusions. Do the exclusions refer to the word “unfinished” like unfinished basement would not be included? Let me try it again. Would a finished basement be included in habitable space? MR. BROWN-If it’s finished as living space and meets the requirements? MR. ABBATE-Yes. MR. BROWN-Sure. MR. ABBATE-So what you’re basically saying is that at the present time, we’re talking about an unfinished basement and an unfinished attic, which, based on the fact that it’s unfinished, would then not meet the criteria of habitable space. MR. BROWN-Well, I’d like to say that, but this Board has already ruled on the attic. MR. ABBATE-Yes, let’s stay with the basement, then. MR. BROWN-Let’s stay with the basement, then. The question is, if it’s unfinished, does it count as, in the Floor Area Ratio? MR. ABBATE-If it’s unfinished, it doesn’t. MR. BROWN-That’s correct. MR. ABBATE-If it’s finished, does it? MR. BROWN-If it’s finished and meets the requirements of living space per the reference, it does count. MR. ABBATE-Okay. That’s one. Two, what’s the size of the basement? MR. BROWN-I don’t know the square footage. MR. ABBATE-I can’t recall. MR. BRYANT-While you’re looking that up, when you say it meets the requirements of living space, it then has to meet the height requirement and so forth and so on? MR. BROWN-Light and ventilation. It’s got to be finished. I don’t have the building plans in front of me. They’re in the file. MR. ABBATE-I’m sure somebody will have it. MR. URRICO-Craig, you mentioned something about the criteria of a garage, that it would have to meet in order for it to be classified a garage? 6 (Queensbury ZBA Meeting 12/22/04) MR. BROWN-Correct. MR. URRICO-You’re talking about? MR. BROWN-The New York State Building Code. MR. URRICO-What would that be, what would that include? MR. BROWN-Certain fire separations. That’s the big one. There has to be a certain fire separation between the living space and the garage space, and that’s not the way the building’s been constructed, and the Certificate of Occupancy that’s been issued does not include any garage space. MR. ABBATE-Do we have, does anyone happen to have, a picture of the basement in its current condition? MR. BROWN-I do not. MR. ABBATE-A recent, up to date. MR. BROWN-Interior? MR. CAFFRY-You should have them. We’ve given. Interior or the exterior? MR. ABBATE-The interior. I’m interested in the interior. You don’t have it? MR. CAFFRY-Mr. Kelly doesn’t have the ability to take pictures of the interior. MR. ABBATE-Well, do you have it, Craig, do you have a picture? MR. BROWN-I do not. MR. ABBATE-Does anybody have a picture of the interior at the present time? Because that, to me, makes all the difference in the world. MR. BROWN-There are no interior pictures that the Town has. MR. ABBATE-Well, how can we make a decision if we don’t know what the basement looks like? It may be finished. If it’s finished, then we go on to the next step. If it’s not finished. MR. BROWN-Well, I think we have to go back in time to the point that this decision was rendered and the Appeal was filed. At that time when the decision was rendered, it was unfinished. MR. ABBATE-It was unfinished. MR. BROWN-(Lost word) changed today, we make a new decision, and it’s. MR. ABBATE-Well, that’s what I’m trying to find out. This has been going on for two years here. I want to get this thing over with. MR. BROWN-Well, I think Mr. Riitano is here, and you can certainly ask him that question, when the time comes. MR. ABBATE-I’m sorry. I didn’t realize he was here. Okay. Thank you, Craig. MR. BROWN-Sure. 7 (Queensbury ZBA Meeting 12/22/04) MR. STONE-Can you find the size for Mr. Abbate? MR. BROWN-I’m working on it. MR. ABBATE-We can always ask Mr. Riitano, Craig. Don’t go crazy. MR. STONE-Any other comments, questions anybody wants to raise? MR. CAFFRY-Can I just respond to some things Mr. Brown said? MR. STONE-You certainly may. MR. CAFFRY-I guess I have a real problem with him relying on these Sections 710 and 712 that have been repealed and he says they’re easily accessible. Well, he’s never provided them to us, and we’ve asked for them. He’s never provided them to the Board. He’s here saying what he thinks they might say, but they’re not in evidence. There’s no guidance there as to what they say. They’re just not here, and we’re relying, I think, on his recollection of what they might have said in the past. MR. BRYANT-I don’t know what you’re referring to. Can you be more specific? MR. CAFFRY-The definition of Floor Area, or the definition in your Code of, let me read it to you. When you calculate the Floor Area Ratio, it then refers you to a definition of Building Floor Area total. MR. BRYANT-Yes. I think we have that. MR. CAFFRY-And it says all floors of the primary structure and covered porches, etc., including the basement, when at least three feet in height of one wall is exposed, and we definitely have that here, and the space meets the requirements for living space as described in Section 711 and 712 of the New York State Building Code, and the problem is nobody has 711 and 712, that I know of, and again, we’ve asked the Town for it more than once, and they didn’t have it. Mr. Brown keeps referring to what he thinks they say, but he hasn’t provided them to us. He hasn’t provided them to you, so far as I know. He’s now got a new definition from a second or third generation of the State Building Code of habitable space, but that’s not what your Code talks about. It says definition of living space as described in 711 and 712. So that’s not before us here. MR. BRYANT-Here’s 711 and 712 right here. MR. BROWN-They’ve been packaged with Staff notes a couple of times. MR. CAFFRY-Not of the current one, of the old one? MR. BRYANT-711.1, 711.2. MR. CAFFRY-We’ve never seen them. MR. BRYANT-Space 712, Light and Ventilation. This is the old Code. Am I correct in stating that? MR. BROWN-That’s correct. MR. CAFFRY-We’ve never seen that. MR. BRYANT-Okay, and then there’s a newer Code that we also have in our package, relative to habitable space, and I think that’s what you’re referring to. 8 (Queensbury ZBA Meeting 12/22/04) MR. CAFFRY-Yes. We’ve never seen that. MR. BRYANT-It’s part of our packet. MR. CAFFRY-If we get a chance to look at it, maybe we can respond to it. It’s not anything we saw. MR. STONE-Let me ask Counsel a question. I’ve heard a request for a public hearing. On Appeal, do we have to have a public hearing? MS. RADNER-Give me a second to look it up. I would encourage you, at a minimum, to give the property owner an opportunity to respond. MR. STONE-Okay. I just want to be sure. MS. RADNER-Craig just pointed out to me it’s been advertised for a public hearing. So I’d encourage you to hold it tonight. MR. STONE-Okay, thank you. Thank you very much. Any other questions of the Appellant? MR. CAFFRY-Let me just say, this here says habitable space. That’s not what your Code says. Your Code says livable space, or living space. The other thing is, he says, well, it shouldn’t count because it’s a utility area, but if you look at the definition in your Code, it can include garages. That’s not a living area. It can include storage sheds and things like that. That’s not a living area. MR. BRYANT-Under certain circumstances it can. MR. CAFFRY-Right, but the point is, he’s saying because it’s not a finished basement we shouldn’t count it. If they finished it, we’d count it. I think that’s a distinction without merit. MR. BRYANT-This line here, relative to what, it’s living space. MR. BROWN-And that’s historically been the position of the Community Development Department, the Building and Codes Department for hundreds of building permits. If it’s unfinished space, it doesn’t count. MR. STONE-Okay. Any other comments that, Mr. Kelly or Mr. Caffry, you want to make before I do allow the public, and certainly the landowner or the property owner to speak? MR. KELLY-Mr. Chairman, may we reserve the right to comment on this after? MR. STONE-Absolutely. MR. CAFFRY-And this 711 and 712 that we just got? MR. STONE-Absolutely. Okay. Let me open the public hearing, specifically starting with the property owner and/or his agents. MR. CAFFRY-And, Mr. Stone, at the last meeting, it was discussed basically giving them equal time, since they’re the property owner. We have no problem with that. I know your usual limit’s five minutes, but they’re the property owner, and we think they should have all the time they need. MR. STONE-Okay. Thank you. MR. CAFFRY-As long as we get to reply. 9 (Queensbury ZBA Meeting 12/22/04) PUBLIC HEARING OPENED JON LAPPER MR. LAPPER-He’s trying to get my client to take his house down, but he’s attempting to be gracious about the procedure. That’s interesting. For the record, Jon Lapper and Stefanie Bitter, on behalf of Joe Riitano, who is also here to answer any questions. As the Board can imagine, this is a very serious emotional and financial issue for Mr. Riitano because the neighbor, for some reason, is trying to get him to take his house down, but what we’re talking about tonight, as the Board has pointed out, is a very narrow issue, and we only need a few minutes. The question, simply, as you’ve been discussing, is whether the Floor Area Ratio requirement in the Town of Queensbury Code refers to unfinished basement space. The first exhibit I want to give you is the Area Variance, Floor Area Ratio worksheet, which is what the Town has used since there’s been a Floor Area Ratio requirement, and when you add up the square footage, it says basement, parenthesis, living space. Nothing you haven’t seen before, but if this were interpreted differently, as Craig has just mentioned, there would literally hundreds, if not every building permit, hundreds of variances that you’ve granted for construction in the Town that would be wrong because they wouldn’t have included unfinished basement space, and probably thousands of building permits that would be wrong because that’s just not how it’s done, because unfinished space doesn’t count. We’ve gone through to document this, and I’ve got an original and a bunch of copies. We have an analysis prepared by a licensed engineer, Tom Jarrett, from Jarrett-Martin Engineering, which really just goes through the same discussion that you’ve had. I’m going to read it into the record. Addressed to Chairman Stone and Members of the ZBA. “I am a professional engineer licensed to practice in the State of New York, and my opinion has been solicited regarding the above referenced appeal”, which is Kelly Appeal of Riitano, 16 Sunset Lane. “That appeal claims that the Queensbury Zoning Administrator’s failure to include the square footage of the basement of Mr. Riitano’s home located at 16 Sunset Lane, when calculating the “Floor Area Ratio”, was incorrect. In response to that claim, the Town of Queensbury Zoning Code definition of “Building Floor Area” is referenced: Building Floor Area: A. All floors of the primary structure and covered porches, as measured from outside walls, including the basement when at least three feet in height of and the space meets the requirements for living space as described in Section 711 one wall is exposed and 712 of the New York State Building Code. B. Detached storage buildings greater than 100 (emphasis added) square feet, and detached garages Sections 711 and 712 in the newly adopted New York State Building Code do not apply to habitable space or “living space”, however, two other references offer insight to the definition of living space: The Queensbury Community Development Staff Notes for this project appended definitions from Title 9 of “Codes, Rules, and Regulations of the State of New York” which define “Nonhabitable Space” as that including closets and other spaces for service and maintenance of the building. Section 202, Definitions, of the newly adopted New York State Building Code includes a definition for “Habitable Space” as follows: “A space in a building for living, sleeping, eating, or cooking. Bathrooms, toilet rooms, closets, halls, storage or utility spaces and similar areas are not considered habitable spaces. Further, it is our understanding that the Riitano basement and garage are not “finished” and are not intended for purposes of living, sleeping, eating, or cooking. In our opinion, unfinished basements intended for storage and utilities do not meet the requirements for living space under New York State Building Code, and in our experience with the Town of Queensbury, unfinished basements have not been included in the calculation of Building Floor Area. If you have any questions regarding this correspondence, please call our office. Sincerely, Jarrett-Martin Engineers, PLLC H. Thomas Jarrett, P.E. Principal” We went around with discussions with Craig over the summer and the spring as well, that the basement cannot be used as a garage. It’s not legal. It doesn’t meet the Code for a garage. One of the issues was fire separation, and it cannot legally be used as a garage. It’s not a garage. It’s just unfinished basement space, and the way it works in Queensbury, and always has, is that if it’s finished space, if it’s living space, then that’s what, that’s Floor Area Ratio and your basement counts. If it’s unfinished basement space, it’s not livable under the State Building Code, and that’s what that reference is. You’re not allowed to habitate it. You have to have two areas of egress and ingress. There are all sorts of Building Code issues that protect people from 10 (Queensbury ZBA Meeting 12/22/04) fires that would be on the upstairs living space that wouldn’t be in the basement. So it’s not allowed to be used for living space, and therefore it doesn’t qualify, and that’s really the only thing before you tonight. MR. ABBATE-You state here it is our understanding. What do you mean it’s your understanding? That’s a dubious statement, understanding. Have you been there to review the site yourself? MR. LAPPER-I have not. I was reading you what the engineer said, because he was giving us a Code interpretation. We did not ask him to go to the site. Craig went to the site and inspected it, and Joe can tell you, on the record now, that he hasn’t. MR. ABBATE-Well, you’re his Counsel. Is the basement finished? You’re his Counsel. You’re his spokesperson. MR. LAPPER-The basement is not finished. MR. ABBATE-It is not finished. Thank you. MR. MC NULTY-A question for the Counsel. The reference in our Code says space meets the requirements described in Section 711, 712. It doesn’t say anything about as amended, superceded, or whatever. That means that we should go by what was in the old 711 and 712, and not what replaced it. MS. RADNER-We’re pretty much stuck with it. Only the Town Board has the authority to amend this Zoning Ordinance, and they have to do it in the same manner that they adopt a Zoning Ordinance. They certainly have the power to do that, but they haven’t done that. So, yes, we’re stuck with it. If you’ll look at 179-16-010, that places the burden on our Zoning Administrator to interpret the Ordinance, unless you folks think that his interpretation doesn’t make sense, is irrational, is arbitrary. So that’s where we’re left. MR. LAPPER-Okay. I completely agree with that. What Cathi’s saying is that it is up to Craig to make the determination that if that living space definition has been replaced with habitable space, that he can look to habitable space, and that’s what he’s done, and that’s what the State Building Code did. It’s a very recent change. The Code was amended about a year and a half ago, and obviously in terms of the Town Code, it hasn’t been changed to reflect the change in the State Code, but the issue is, living space, habitable space, same definition, same issue. MR. ABBATE-Wouldn’t be more effective, Counselor, if we had some documentary evidence? In other words, it would seem to me, the question is, is it finished or is it unfinished. It would seem to me that documentary evidence would prove beyond any doubt whether or not. MR. LAPPER-Well, Craig inspected it. He was there. MR. ABBATE-You viewed it personally? MR. BROWN-Yes. MR. ABBATE-When? MR. BROWN-I believe it was in Mid-August. MR. ABBATE-This year, and it’s not finished? MR. BROWN-It’s unfinished. MR. ABBATE-Okay. Thank you. 11 (Queensbury ZBA Meeting 12/22/04) MR. STONE-Anything else you want to add? MR. BRYANT-Let me ask you a question. I just want to expand a little bit on what Mr. Abbate asked. By any stretch of the imagination, could it be finished to living space? In other words, after the fact, could he come back a year from now, and would it be legal living space? MR. LAPPER-If it was studded, heated, there would have to be, you know, sufficient egress and ingress to meet the Building Code. So you’d have to have heat, lights, sheet rock, all the things that you need to have, you know, finished walls, insulation, it could be turned into, a basement can be turned into finished space, but if it’s finished space, then it counts as Floor Area Ratio. If it’s unfinished basement storage, concrete, it doesn’t. MR. STONE-Do any of those modifications you’re talking about, I’m asking both you and Mr. Brown, require a building permit? MS. RADNER-I can answer it, yes. MR. STONE-Okay. I’m sorry. So they would. So there would be some notification. MR. LAPPER-Yes. MS. RADNER-Under our Town Code, they could do it, Mr. Bryant used the word could it be legally converted into, or could it be converted into legal habitable space, and the answer to that is, no, unless they come to the Town Hall, they pull a permit, they do what’s ever required to turn it into living space. Could they illegally somehow change it, modify it? It probably has happened throughout the Town and there’s little we can do to prevent illegal modifications. MR. STONE-Okay, but there are legal requirements in place that say to do it you need to get permits. MS. RADNER-Any structural change requires a building permit. MR. STONE-Thank you. MR. BRYANT-Well, yes. My question really was a double edged sword. I mean, I understand that whole process, but my other question is, is the basement physically habitable? I mean, do we have eight foot ceilings or seven foot six ceilings? MR. LAPPER-We’d have to ask Joe about the height of the ceilings. MR. BRYANT-Okay. Is it totally surrounded by fill? MR. LAPPER-I think it’s wet. I think that there are moisture problems down there because of the high water table. MR. BRYANT-I mean, is it possible to make two methods of egress? MR. LAPPER-Well, I mean, the issue tonight is the living space. If they came and they would need a variance for Floor Area Ratio, for one thing, to turn it into living space, but, Joe, if you could just, on the record, Joe Riitano, the landowner. If you could just tell them the condition of the basement. JOE RIITANO MR. RIITANO-The condition of the basement is a cellar, with a sump pump because there’s water problems. That’s the reason why we raised the house, because it ruined the whole house, and they inspected it and everything else. It’s not finished, and it cannot be lived in. 12 (Queensbury ZBA Meeting 12/22/04) MR. BRYANT-You said that there’s a sump pump in the basement? MR. RIITANO-Yes. Because if not, I’d have water above the furnace. Because the water table is so high. MR. BRYANT-So you do have a water problem in the basement? MR. RIITANO-Yes. That’s the reason why we raised the house. That’s why I went to the Town, and it’s the same house, the same footing, the house with the ridge on it, and we raised, they gave me the permit to do that because it was like a swamp. MR. BRYANT-How much did you raise it? MR. RIITANO-We raised it I think about five feet, four feet. MR. BRYANT-What did you just have crawl space there before? MR. RIITANO-Well, it was, before it was like mostly a garage, but we’ve been filling little by little to try to get rid of the water, and we never did it, and all the floor is disintegrating, and that’s why we raised the house. That’s why we did it. MR. ABBATE-Craig, does a five foot structural increase of a home require a permit? MR. BROWN-Yes. MR. ABBATE-Five foot structural increase requires a permit. MR. BROWN-When you say structural increase, five foot taller, five foot wider? MR. ABBATE-Well, he said that he increased the height of the building five foot because of water problems. MR. BROWN-Right. MR. ABBATE-All right. Increasing the height of that building five feet, structurally, would that require a permit? MR. BROWN-Sure. MR. LAPPER-And they got a building permit. MR. ABBATE-And he has the permit for it? MR. BROWN-Yes. MR. ABBATE-Okay. Thank you. MR. LAPPER-And a CO, and a Certificate of Occupancy. MR. ABBATE-Okay. Fine. All right. MR. STONE-Anything else you want to add? Any other questions? MR. LAPPER-No, but if the Appellant raises any new issues, I guess we want to reserve the right to. MR. STONE-Of course. 13 (Queensbury ZBA Meeting 12/22/04) MR. LAPPER-Thank you. MR. STONE-Is there anybody from the public who wishes to talk on this subject? I assume there’s no written correspondence? MR. MC NULTY-I don’t find anything other than stuff from the applicants. MR. STONE-Then I’m going to close the public hearing for the purpose of mediacy. If points are raised, and it is asked of me, I will allow the homeowner to comment. PUBLIC HEARING CLOSED MR. STONE-Gentlemen, you want to come forward. MR. KELLY-May we, again, borrow Section 711 and 712? MR. ABBATE-Mr. Chairman, could I recommend that these rebuttals be limited to five minutes? I think before the United States Supreme Court it’s only 15 minutes. MR. STONE-That’s a good suggestion. MR. ABBATE-Thank you. MR. CAFFRY-But you gentlemen have such a greater capacity to understand the arguments that those guys are much older and they’d all fall asleep anyway. While Mr. Kelly studies Sections 711 and 712, I would like to address a few points. One, I know we’ve submitted it all before, but just to make sure you all see it, the question of the changes in the building, we have, I’m going to pass around one page in black and white you’ve had in color before. This shows the old and the new and how it has been raised. Before it was a crawl space. You can tell it was. MR. STONE-Okay. We’re getting off the subject of this Appeal. The Appeal is, is this Floor Area livable, whatever, what we’re talking about. MR. CAFFRY-Well, there are two issues. One is was it vertically expanded improperly, which you’ve made a similar finding on the second story in August, and the second is the Floor Area Ratio. On the question of the vertical expansion within the setback areas, Mr. Riitano has just admitted he raised it four or five feet. So I think that’s pretty open and shut, and he says it’s the same foundation, the same size, the same footprint. So if there’s been an illegal vertical expansion of the second floor, which you did find in August, then there’s obviously now, he’s admitted to a vertical expansion of the basement. MR. STONE-This is not on the table, Mr. Caffry. You have two Appeals that you’ve made. MR. CAFFRY-It’s in writing. It’s part of our Appeal. MR. STONE-I don’t see it in your material, and if somebody wants to find it. MR. CAFFRY-It’s in the supplement or the amendment that we filed to it, I’m going to say in August or so, September perhaps, whenever, October. It is in writing. It is part of our Appeal. MR. STONE-I’m looking at a letter that you wrote on December 2, 2004. MR. CAFFRY-It’s mentioned in there, too. MR. STONE-You say both Appeals, failure to include basement and floor area calculations and failure to enforce ZBA’s finding. That’s the only two things I see. 14 (Queensbury ZBA Meeting 12/22/04) MR. CAFFRY-On Page Two of the December 2 letter it’s mentioned, right in the middle, nd there’s a whole paragraph. MR. STONE-I’m looking at your headings for the paragraph. MR. CAFFRY-Well, you’ve got to read it. Not just the heading. It’s mentioned in that December 2 letter. It’s also mentioned in one of the prior findings we made on this Appeal. nd MR. STONE-Mr. Brown, you had a comment? MR. BROWN-Mr. Chairman, I agree with Mr. Caffry that it’s in his Appeal papers, but it’s not a determination that’s been made so I, again, would make the point that I don’t feel it’s appealable. It’s not a determination that’s been made. MR. STONE-Okay. You have not made a written determination in relationship to this vertical expansion. MR. BROWN-Of the basement, that’s correct. MR. STONE-Therefore not, okay. MR. BROWN-So that’s a decision you guys need to make, that it’s not appealable. MR. STONE-All right. Anything else? MR. CAFFRY-Briefly, yes. I’m sorry. On the question of floor area ratio, whether or not is wet and has a sump pump doesn’t really answer the question. I’ve lived in houses that had basements with water problems and a sump pump, and they were fully finished, and, you know, livable space, t.v., carpet, you know, furniture, all that. You might lose a carpet if a sump pump breaks. So I don’t think that really answers the question. Another thing, I’d like to go back to the first thing Mr. Lapper said. Mr. Kelly is not trying to get Mr. Riitano to tear his house down. He just wants Mr. Riitano to bring his house into compliance with the Code. At one point in history, somewhere back in the dark ages, Mr. Riitano got a building permit for a one story expansion of the house with some first floor expansions, the roofline matched the pre- existing roofline. It was clearly just a roof. There was no living space up there. There wasn’t even an attic. He had a building permit to do that. He then proceeded to violate that building permit and build a second floor, which you had previously turned him down for on a variance. That’s what this is about. It’s about the addition of the second floor. It’s about the vertical expansion of both floors, making new living space in violation of the Code. We don’t want him to tear the whole house down. We previously, you know, discussed if they would take the roof down to the level it belongs at so that it’s not the big high roof that was there, we might be willing to make a compromise with them regarding the basement expansion, but they didn’t want to talk about it. We don’t want them to tear the whole house down. We want the roofline to come down into compliance with the original building permit. That’s what we’re asking for, and I think some of you have been on this Board through this whole process. Remember that, I remember the first time the variance was denied and Mr. Hayes said, well, it’s a partial teardown. MR. BROWN-Mr. Chairman, this Appeal’s about the basement. I think we should. MR. STONE-I know. MR. BROWN-Okay. I’m sure we’ll get to these in the other Appeal, too, but. MR. STONE-That’s what I want to do. I want to talk about, and I was really trying to find the language for the Appeal. I mean, as summarized, and let me just ask Mr. Kelly and Mr. Caffry, as summarized, this is an appeal on the determination rendered by the Zoning Administrator 15 (Queensbury ZBA Meeting 12/22/04) regarding the basement of the structure as being counted or not being counted into the Floor Area Ratio. MR. CAFFRY-And the vertical expansion. MR. ABBATE-That’s not included in there. MR. BROWN-That’s what they requested you to hear their Appeal on, and our side, and my side is a determination has been made about the floor area, but not the expansion. MR. STONE-Okay. So no determination has been made. So the only thing before us, you agree, Counsel? MR. BROWN-No, I agree that their request is that you hear both of them, but that’s not the determination. MR. CAFFRY-I think, to some extent, Mr. Brown and I are in agreement. He says it’s not appealable because he never decided it. We think he did because he wrote a letter that said if you do X, Y, Z, you’re totally in compliance. So we think that means any violation would be appealable. If he doesn’t, you have to decide, is the vertical expansion issue appealable at this moment in time. If it isn’t, we’re going back to Mr. Brown, and we’ll all be back here again, because they’ve already admitted what they did, but if you decide that that issue shouldn’t be ruled on tonight, that’s your decision to make, but you have to make that decision, and I think Mr. Brown and I agree on that process. We just don’t agree on what the result of that should be. MR. ABBATE-But let’s get back to what the Town, what the Chairman said. Your appeal does not include a vertical expansion. MR. CAFFRY-Yes, it does. MR. ABBATE-I’m reading this Appeal right here. MR. CAFFRY-That’s the Staff notes. MR. BRYANT-Those are Staff notes. MR. STONE-That’s what I’m struggling to find. MR. CAFFRY-On October 7, we filed additional supplemental information where this vertical th expansion issue was clearly laid out, and we filed 14 copies. So I’d like to think that Staff gave it to you. MR. BRYANT-Mr. Caffry, I want to get back to what you were saying before they started this discussion about. Did you say that the basement is really not the issue. The issue is the fact that they added the second floor against the building permit, etc., etc., right? MR. CAFFRY-No. I didn’t say that. Not tonight, that’s not the issue. MR. BRYANT-No, no. I know what the issue is tonight. The issue is relative to the basement. MR. CAFFRY-Right. MR. BRYANT-But I want to understand your motive here. I want to understand why you’re here. MR. CAFFRY-The reason I brought that up is because Mr. Lapper made an untrue statement that Mr. Kelly wanted the house torn down. He doesn’t want it torn down. He just wants the 16 (Queensbury ZBA Meeting 12/22/04) roof lowered, and I think Mr. Lapper’s statement was not germane to this Appeal, but I felt I needed to response. That’s all. MR. BRYANT-So why do we have an Appeal if this is not an issue? The real issue is the second floor. MR. CAFFRY-That’s part of the issue. MR. STONE-That’s not on the table. MR. CAFFRY-That’s not on the table anymore. MR. BRYANT-I understand that, Mr. Chairman, but I’m trying to understand the Appellant’s motive. MR. STONE-So am I. MR. KELLY-I think I can answer that. What I object to is the overall bulk of the house. It’s too close to the property line because it was nonconforming to start with. So as it was decided in August, expansion happened at both ends of the house and on the front, where it was already nonconforming. So it’s as simple as the bulk of the house, and certainly I want you to decide in my favor with regard to the basement and the garages, but I understand that it’s pretty impractical to lower the main floor of the roof without tearing the house down, and I’m not asking for them to tear the house down. I don’t want that. We all enjoy Lake George, etc., and I don’t want to deprive anybody of that. It’s the overall bulk of the house, and the garage area adds to that bulk. I guess I don’t have a perfect solution, but as Mr. Caffry indicated, we offered that if they put the roof on the house that was approved in the original building permit, from October of 2002, we would be cool with everything, given that conciliation. MR. ABBATE-Let me go on the record here. The vertical expansion, for the record, is included in your Appeal. One of my Board members brought it to my attention. MR. STONE-It’s on Page Three. MR. ABBATE-Yes. It is included. I was in error earlier. MR. BRYANT-Just one question of Staff before you continue, because I’m still trying to understand. Is the roofline different from what the original building permit was granted them? MR. BROWN-The roofline’s not part of this Appeal, but yes it is different. MR. BRYANT-I understand that. It is different. MR. BROWN-But the building permit had been revised, and a CO has been issued for the structure. MR. KELLY-The building permit was revised but was only approved by the Building Inspector, Dave Hatin, and to this date it’s my understanding has still never been signed off by the Zoning Administrator , which is a requirement for construction to take place. MR. CAFFRY-And the other issue with that was that the CO was issued before this Board voted in August that the second floor was illegal. So that essentially calls into question validity of the CO, but that’s not this Appeal. MR. STONE-Okay. I’m looking at Page Three of the December 2, 2004 note in which Mr. Caffry says we request that the ZBA make the following specific rulings. I’m going to ask each and every one of us to comment on those two things, one, on Appeal 6-2004, which is the Appeal before us, on Appeal that the ZBA overrule Mr. Brown and find that the basement/garage area 17 (Queensbury ZBA Meeting 12/22/04) must be counted in the FAR, and that a determination has, in fact, been made by Mr. Brown, and secondly that the ZBA overrule Mr. Brown and find that those parts of the basement garage area which are located closer to the property line then the setbacks allow were improperly expanded vertically, and from what I have heard no determination, no written determination was made on that subject. Therefore it is not on the table, as far as this Board is concerned. It may be in your letter, and you spelled it out, but Mr. Brown has stated for the record that nobody, he did not make a written determination. MR. BROWN-And if that’s truly to be the Finding of the Board, that needs to be part of the Findings for this Appeal, because they asked you to do that. MR. STONE-I understand that. MR. BROWN-Okay. MR. STONE-I would like the Board to comment, and I will start with Mr. Underwood, on, One, which is that we, that Mr. Brown is wrong as far as his comments on the Floor Area Ratio and the basement, and that he has not made a determination in regards to the vertical expansion of that same (lost word). MR. KELLY-Mr. Chairman, may I interrupt for just a minute? I would like to request that the Zoning Administrator, before everybody discusses it, that the Zoning Administrator explain his thinking of, in December of last year and April of this year, why he did think the garages counted toward Floor Area Ratio, because I don’t think that question’s been answered. MR. STONE-I’m not aware that it was on the table. Do you, Mr. Brown? MR. KELLY-It was mentioned in the Staff notes for both of those hearings that it was included, it needed to be included in the calculation for the Floor Area Ratio. Staff notes for, I believe, 12/17/03, and they’re included in the original Appeal. The excerpts from those Staff notes are included in the original Appeal that we submitted. MR. STONE-Well, I would like to hear where the Board is coming from, in terms of the two things that I talked about. MR. CAFFRY-Mr. Stone, could I make one other point? You said we get to respond on Part 711 and 712. MR. STONE-Okay. I’m sorry. Surely. MR. CAFFRY-We don’t see anything in there that excludes counting a basement, an unfinished basement as floor space, as habitable or living space, however you want to define it. Now this is the old version which, again, I don’t think I’ve seen before, but it talks about height has to be at least seven foot six, and if you look at the pictures, according to Mr. Riitano it’s at least that tall, and it doesn’t say it has to be finished space or anything. There’s no exclusion there for basements, whether it’s a garage basement or some other kind of a basement, it’s not excluded from this definition, and I guess you guys all have it in the package. You can look at it for yourselves. MR. ABBATE-Mr. Chairman, this is a personal position. As far as I’m concerned, there has been so much conflicting information this evening, that there’s no way I can make an intelligent decision on this. He said this, he said that. I would suggest that this Appeal be taken off the Board. That both attorneys get together and work with the Zoning Administrator, and if Mr. Kelly wishes, after we come up with specifics instead of theoretical kinds of problems, then come before this Board for a specific question regarding an Appeal. Other than that, I don’t believe we should hear this case this evening. 18 (Queensbury ZBA Meeting 12/22/04) MR. KELLY-Maybe I can clarify. Getting back to what I was saying before, and this may help your question, Mr. Abbate. In the Staff notes for December 17, 2003, it says 10.6% of relief from the 22% maximum Floor Area Ratio requirement. Note: The applicant has requested 3.03% of relief from the FAR requirement, but failed to include the areas in the basement approximately 570 square feet, that are accessed by two garage doors, which are required to be included as garage space, and then, in the Staff notes for 4/28/04, it states, quote, the new FAR proposed was thought to be at a compliant percentage. However, the proposal to convert the 273 square feet of basement garage to storage was incorrectly subtracted from the 1,868 square foot total existing floor area referenced on the Van Dusen and Steves survey submitted. The 1,868 square feet of floor area only includes the main floor of the dwelling and the covered porch. The applicant claims he thought the 1868 square feet also included the 570 square feet of basement garage space. The 29% FAR determined by Staff does include that portion of the basement proposed to remain as garage space, 297 square feet. Even if the applicant proposed to convert all the basement to storage only, and then he goes on to talk about the porch, but those two references clearly indicate that the Zoning Administrator was counting the two garages towards the Floor Area Ratio, and again, to the best of my knowledge, there’s been no material change to the structure that has lead to the Zoning Administrator’s change of consideration for this space. So I think that’s pretty specific. MR. ABBATE-Well, it helped me quite a bit. Mr. Chairman, I will be ready to make my decision in 61 days. MR. STONE-No, I was just going to ask Counsel. Is a motion, in the framework that Mr. Abbate talks about, is that a motion I can entertain? MS. RADNER-You could only entertain that motion if the two attorneys both agreed to that. What’s before you tonight is an interpretation, and you have to either uphold the interpretation or say no, that interpretation doesn’t make sense and here’s the correct determination. MR. STONE-Okay. Thank you. MR. BROWN-Mr. Chairman, if that’s a question of the Board, about the alteration of the Staff notes based on the garage square footage in the basement, I’d be happy to answer it. It’s a very simple answer. MR. STONE-Go ahead. MR. BROWN-Originally it was included and proposed as garage space. Garage space counts. The structure has not been constructed to meet the requirements for garage space. Therefore you don’t count it now. It’s unfinished. It’s not finished as garage space. MR. STONE-Okay. Thank you. MR. BROWN-The difference in the Staff notes, where you count it one time and you don’t count it the next time, is the construction, it hasn’t been constructed. If it was proposed as garage space, if it’s proposed as garage square footage, and you’re asking for relief, you have to count it. MR. STONE-Right. MR. BROWN-If we get to the point where we were at one of those variances, it’s an after the fact thing, it hasn’t been constructed that way. Therefore, it doesn’t count. MR. STONE-Okay. MR. URRICO-I still have a question. I’m still a little unclear as to why the second part of the Appeal is not part of this, the interpretation of the vertical expansion. 19 (Queensbury ZBA Meeting 12/22/04) MR. HAYES-He’s saying, explicitly, he hasn’t made that determination. MR. BROWN-Yes. Fortunately, or unfortunately, there’s a process that applicants and appellants are required to follow, and that is if a determination is made, an aggrieved party, somebody who doesn’t agree with it, wants to bring that to the Zoning Board, they can do that, only if there’s a decision or action that’s been made. If there’s a no action, there’s no Appeal that’s a valid Appeal. MR. MC NULTY-But as I understand it, the Appellant is arguing in the reverse that while the Zoning Administrator did not specifically make a determination on the vertical expansion, they’re arguing that he implicitly did, by writing a letter that said if they did a few other things, everything would be in compliance. MR. BROWN-Correct, and I agree that they’ve included it in their Appeal. It’s a decision you have to make, is it appealable, is it not appealable, and you have their argument and you have my argument. MR. STONE-Okay. Jim, let’s talk about it, in connection with these two. First, I’ll re-open the public hearing for the express purpose of commenting on what you just heard. PUBLIC HEARING RE-OPENED JON LAPPER MR. LAPPER-Just in terms of the big picture, I think it’s real important. They’re talking about the original building permit. There was a modification of the building permit. There was a building permit for the exact house that is there right now, and that’s why a CO was issued in August. So they’re talking about an original building permit when it would have been a shorter dwelling, but they went in and got a building permit issued by the Town for exactly what was built there. So if you listen to the appellants, they’re saying that something was built that’s different than the building permit, and that’s not true. The building permit process was that there was an original building permit. There was a modification to that, and what was constructed was in accordance with the modification, and that’s why the CO was issued. You wouldn’t get a CO if you didn’t have a building permit for that building. On the issue of vertical expansion, I don’t think it’s properly before you, procedurally, but besides that, you can’t, vertical expansion of a building is how high the building is. So if the building is 20 feet and it goes to 25 feet, it’s a vertical expansion. If the basement was four feet and the basement goes to eight feet, that’s not a vertical expansion of the dwelling, because the dwelling was already more than eight feet tall. Where you cut the lines between the floors is not a vertical expansion issue in the Town, it’s the size of the structure. I mean, so to say something like, you’ve got to take the middle section of your house out or something, we’re talking about the roof and whether the roof is living space, we talked about that last time, and whether the roof could have been a steeper pitch. That’s what we’re talking about, but in terms of the vertical expansion of a basement from three feet, it doesn’t expand the building, so it’s not a vertical expansion, but that’s not before you tonight, because it wasn’t noticed, because it wasn’t, there wasn’t an appeal of a determination. MR. STONE-All right. Thank you. I will re-close the public hearing. PUBLIC HEARING CLOSED MR. STONE-I want to talk about it. Jim, let’s start with you. Specifically, we’re talking about the FAR as far as the garage is concerned, was Mr. Brown correct or incorrect, and then I would like comment on this other issue which they have said, or Mr. Brown says he did not make a determination about. The Appellant says they did, and is appealing it. Is that straightforward, I hope. Jim? 20 (Queensbury ZBA Meeting 12/22/04) MR. UNDERWOOD-Yes. I think we need to talk a little bit more. As it presently exists, certainly there was a grand deviation from the original plans, and I think that in the last meeting that we had that the Board pretty much agreed that the expansion of the roofline was the offensive part of this building structure. I think that when you go to build a new construction, and you have the opportunity to expand a crawl space where you have to crawl around underneath a building that’s probably already wet, as shown in the picture that we have all seen at one point or another, that putting a full sized cellar in makes sense on a building like this. The conjecture as to whether or not it will be habitable in the future, I would imagine that, given the fact that anyone would go to all the trouble to expand a structure and put a cellar in, with a walkout basement, per se, with those doors on there, probably it will get developed at some point in time and they’ll have to come back to the Town, if they propose to do that. That definitely would have an effect on the FAR, but as far as an effect on the actual site, I don’t really think that that expansion of a cellar, if indeed it does occur at some point in the future, would have any affect on the neighborhood or the runoff in the neighborhood, since it’s already there. It would have had a half cellar or a full cellar. It makes no difference at all. I think that Mr. Brown, in his determination, looked to the affect. I think he clearly stated it was not a garage area. I think that it was pointed out by the Counsel of the owner of the property that it could be garage space. If it were constructed as garage space, that would entail, you know, fireproof sheetrocking, metal doors, and things like that, to include that in the future. That may be a possibility also. (lost words), but at the present time, as constructed, the cellar area has not been finished at any point in time, to this date. It could be, conjecturally it could be finished in the future, and I really don’t think that that’s what we’re deciding here this evening. I think that probably the majority of people in Town that build houses, many people are do-it-yourself- ers, and might change living space two or three years down the road. They might do it immediately if they come in and get a permit for it. They may be back before us at that point. I’m not sure if that’s going to affect the FAR. I’m sure it will, but I think at the present time it would be difficult to also say that that expansion of the cellar from a four foot crawl space to an eight foot crawl space has had any real affect. I mean, I think it is a split level site there. We have a grade on the front that’s pretty much even with the upper floor layer of the house on that first floor, but I think in the back where the doors are, underneath there, it certainly makes it more accessible for storage, or a garage, or for living space in the future. I don’t think that’s a problem, and I think that we’ve been quite generous with the Appellants in this case. The last time around we got into the relief problem, and I think that’s really the crux of the problem that you have also pointed out this evening with us. So I would have to support Mr. Brown and what he has said here this evening, and I would not be in favor of the Appellant’s appeal. MR. STONE-Okay, but in connection with the second thing, the vertical expansion, which you agree that he did not make a determination on that, therefore there is no appeal on that? MR. UNDERWOOD-I don’t think there’s any appeal on that, and I think, given the fact that it has been expanded vertically, I don’t think it would change my opinion as to the future of that cellar. MR. STONE-Okay. Thank you. Mr. Abbate? MR. ABBATE-Okay. Thank you. Very short. Here are the facts. Is the basement considered to be habitable or not habitable, and I think Mr. Brown, the Zoning Administrator, based his determination on fact, and the fact, based on description, is that that basement is unfinished and as such is not habitable. So Mr. Brown’s determination was correct. As to the second issue, vertical expansion. Mr. Brown, the Zoning Administrator, has not made a determination, and in my opinion, sir, there is no room, right now, at this moment, for an appeal. Thank you. MR. STONE-Mr. Bryant? MR. BRYANT-Mr. Caffry, you provide a lot of information. Good information. I think the only thing I have a problem with is that paragraph in the Town Zoning Code relative to the requirements for living space. I think that that paragraph is the thing that guides my judgment on that first part of the Appeal. The area is clearly not living space, and I’d have to agree with 21 (Queensbury ZBA Meeting 12/22/04) the Administrator on his assessment. As to the second item, I think there is a process, and until the Zoning Administrator addresses the point specifically, that we shouldn’t even be discussing it. MR. STONE-Roy? MR. URRICO-Yes. I agree with my fellow Board members. I support the Zoning Administrator on his determination regarding both issues as they stand right now. So I would therefore be against the Appeal. MR. STONE-Mr. Hayes? MR. HAYES-I agree as well. Mr. Brown is charged with interpreting, to the best of his ability, the elements and definitions in the Code. In this particular case, I think he did a good job. We all are aware of the potential of what could be abused in this circumstance, a result that maybe was unintended by the Code, but in this particular case, that’s not Mr. Brown’s job. Mr. Brown’s job is to interpret, in this specific element of the Code, and I think it does not meet the definition of a habitable space, and therefore it was properly omitted from the Floor Area Ratio calculations. Therefore I would not support the Appeal, and I would uphold the determination of the Zoning Administrator. MR. STONE-And the second issue? MR. HAYES-On the second issue, I looked and I can’t see where Mr. Brown has, in fact, made a determination on the vertical expansion. Therefore I think at this particular time it’s not part of the consideration that I would give to an Appeal. MR. STONE-Thank you. Mr. McNulty? MR. MC NULTY-I would agree, I guess, in supporting the Zoning Administrator on the question of Floor Area Ratio. It’s a sticky question, but I think the logic that he’s explained it, if the garage space were garage space, then it would be included. Since it has not been constructed to Code for a garage space, then it is not garage space, even though there happens to be a garage door there. I can understand the Appellant’s concern of what’s going to happen in the future, once that’s all closed in, because there’s nobody inside keeping track of what’s going on all the time, and it’s very easy for somebody to go ahead and do what they want and just neglect to get a building permit, but nevertheless, I think given the facts that we have before us right now on that issue, we have to agree that, at the present time at least, the area in the basement is not living space, and would not be included in the Floor Area Ratio. I’m a little more torn on the second question of whether the basement constitutes an expansion, or a vertical expansion, and whether or not the Zoning Administrator has made the decision, because I think there’s some point to the argument that the Appellant’s making that if the Zoning Administrator has said, you fix this and you fix that, then you’re fine, that kind of implies that he’s not considering vertical expansion being a violation. I don’t know whether expansion of a basement really is a vertical expansion, because I just quick went through the Code looking for vertical, in the computer base copy of the Code I’ve got, and all references I could find that were at all germane seemed to deal with the measurement from the top of the building to finished grade level. It didn’t say anything about, to the basement floor. So that leaves me a little flipping both ways on that. At the same time, I think as the Appellant has indicated, they still have an option on that, because if we support the Zoning Administrator that he has not ruled on this now, they can come back with a letter to the Zoning Administrator asking for a determination, and as long as the Zoning Administrator doesn’t stonewall on that but actually responds and answers it, then they have a way of coming back for that. So even though I’d just as soon not see them in here again, I think I’m going to go with the Board and support the Zoning Administrator on that also. MR. STONE-Well, I agree with the unanimous majority of the Board. I think there’s no doubt that the determination that this is not habitable space, not living space, not whatever space you 22 (Queensbury ZBA Meeting 12/22/04) want to call it, any space that should be considered in the Floor Area Ratio, that the Zoning Administrator’s determination is correct, and I would also agree, I think that Mr. McNulty spoke very well on Number Two, that in spite of all of the comments made back and forth, nowhere have we found a determination, a written determination, that the Zoning Administrator made a determination about the so called vertical expansion. Having said that, I need a motion to uphold the Zoning Administrator on Number One, and a determination that no determination was made in connection with vertical expansion, and, Mr. Abbate, you did a beautiful job of summarizing it. Would you? MR. ABBATE-Yes. I’ll do it. Sure. MR. STONE-Short and sweet. MR. ABBATE-It’s going to be short. MOTION THAT APPEAL NUMBER 6-2004 MICHAEL KELLY BE DENIED, BASED ON THE TESTIMONY THIS EVENING AND DOCUMENTS SUBMITTED TO THIS BOARD, Introduced by Charles Abbate who moved for its adoption, seconded by Allan Bryant: It is my opinion, Mr. Chairman, that the Zoning Administrator not only acted in good faith but acted and based his decision on fact. As to the second point, as to the vertical expansion, I cannot find, in any of the records before me, where the Zoning Administrator has made a decision, and as such, it is not appealable. Duly adopted this 22 day of December, 2004, by the following vote: nd AYES: Mr. Urrico, Mr. McNulty, Mr. Underwood, Mr. Abbate, Mr. Bryant, Mr. Hayes, Mr. Stone NOES: NONE MR. STONE-Okay. Going on, I assume, to Appeal No. 9-2004. NEW BUSINESS: NOTICE OF APPEAL NO. 9-2004 SEQRA TYPE CAFFRY AND FLOWER ESQ. FOR MIKE KELLY AGENT(S): CAFFRY AND FLOWER, ESQ. OWNER(S): JOSEPH RIITANO ZONING: WR-1A LOCATION: 16 SUNSET LANE APPELLANT REQUESTS INTERPRETATION RELATIVE TO A LETTER WRITTEN BY THE ZONING ADMINISTRATOR DATED SEPTEMBER 3, 2004 TO MR. RIITANO REGARDING THE ZBA’S DECISION FOR NOTICE OF APPEAL NO. 4-2004. CROSS REF. NOT. AP 4-2004, NOT.AP 6-2004, BP 2002-866 ADDITION BP 2002-442 SEPTIC ALTERATION LOT SIZE: 0.17 ACRES TAX MAP NO. 226.19-1-9 SECTION JOHN CAFFRY, REPRESENTING APPLICANT, PRESENT MR. STONE-This has to do with a failure to enforce our previous Finding that the second floor must be counted in the Floor Area Ratio. Is that a summary of what we’re talking about? Let me have Staff notes read into the record, so that we know at least the beginning of Mr. Brown’s comments. MR. MC NULTY-Okay. STAFF INPUT Notes from Staff, Notice of Appeal No. 9-2004, Caffry and Flower Esq. for Mike Kelly, Meeting Date: December 22, 2004 “Project Location: Riitano – 16 Sunset Lane Description: The appellant is appealing to the Zoning Board of Appeals for an interpretation regarding the 23 (Queensbury ZBA Meeting 12/22/04) calculation of the Floor Area Ratio for the structure at 16 Sunset Lane. Information requested: Appellant is appealing to the Zoning Board of Appeals regarding the Floor Area Ratio calculation for the Riitano property at 16 Sunset Lane. The appellant is seeking an interpretation from the Zoning Board of Appeals relative to a September 3, 2004 letter from the Zoning Administrator to Riitano. Staff comments: There was and is NO intention by the Zoning Administrator to ignore the August 25, 2004 findings of the Zoning Board of Appeals as asserted by the appellant. The inadvertent omission would have been corrected prior to the acceptance of any Area Variance application on behalf of Riitano to address these matters. The appellant’s request for the ZBA to force compliance in this matter seems quite premature in that Riitano has not yet filed for any relief from the ZBA in response to the August 25, 2004 findings. Also, the appellant’s request regarding the appealability of the issuance of the Certificate of Occupancy and further request for the ZBA to revoke the same is a matter that the ZBA is not authorized to decide, as previously stated in a letter by Marilyn Ryba and supported by Town Counsel.” MR. STONE-I’m going to go to Mr. Brown first. I know, anything you want to add to the Staff notes, or do you stand by them for the moment? MR. BROWN-For now it’s fine. MR. STONE-Okay. Mr. Caffry. MR. CAFFRY-As has been said, this is really a follow-up to Appeal No. 4-2004 that was decided back in August, which again, we think, and as Mr. Brown said earlier, he may not agree with it, but he recognizes it was the decision that was made, and that’s what we have to deal with here now, and we’re not here to reargue the merits of that again, either. We’re here to seek enforcement of it, and unfortunately because of the way this thing goes, we feel that everything that happens, we have to file an Appeal, or somebody, such as Mr. Lapper, will say, well, you didn’t appeal in time, therefore you can’t bring it up now, it’s too late, etc. So every time something happens, just to protect our rights, we have to file an Appeal, but we think this one does have merit. The problem is, in August, you ruled on two issues, again, the Floor Area Ratio and the vertical expansion within the setback area, but you didn’t order what should happen next. You just ruled, this is what the Code says. It appears there’s a violation here, but there was no direction as to what the remedy should be. You left that up to Mr. Brown. We assumed that he would seek to enforce both rulings. Instead, there was a letter from him on September 3 to Mr. Riitano, and all he discussed there was the vertical expansion, and rd basically said, you could remove these offending areas, or you can apply for a variance. There’s no mention of the Floor Area Ratio ruling, which is a much bigger issue because it affects the entire second story and not just certain parts of it. He says now he didn’t intend to ignore that, but that’s really what he did. He says it’s inadvertent, but this Appeal was filed two months ago, and we haven’t seen him take any action to enforce the Floor Area Ratio ruling. If he had, we might have withdrawn this as moot, because he would have done what he should be doing. Then he says, well, they haven’t filed a variance application yet, and therefore it would have come up then, but, who’s to say that they’re ever going to file one? They could just sit back there and not file a variance application. When would it come up? And also how many times does this Board want to hear another variance application from Mr. Riitano? You’ve already heard three and denied them all. What’s the point of that? We think what’s appropriate here is that the Board should issue an order, acting in Mr. Brown’s role, and order the removal of the second floor down to the level previously approved, like we talked about a few minutes ago, and ask Mr. Brown to enforce that, and, again, going back to Town Law 267-B1, we think it’s very clear that you have the authority to step into Mr. Brown’s shoes and make a direct order as to what the remedy ought to be, to enforce the vote that you took in August, rather than send it back to Mr. Brown again hope he does something. Again, you have the authority to make an order, as you think ought to have been made by Mr. Brown, and to that end, you have all the powers of the administrative official to do that. So we think you do have the authority to do more than interpret, and to make that order, and we request that you do it so we don’t have to come back here again and seek enforcement again, and get the second floor removed from the structure and bring it down to the level it supposed to be at. We think it’s fairly simple to do 24 (Queensbury ZBA Meeting 12/22/04) that. It could be resolved if Mr. Brown would issue that order himself, but he hasn’t, and I think we have to ask the Board to make that order itself, which is within your power to do so. MR. STONE-Can I ask Counsel? MS. RADNER-Yes. It may be a difficult point of distinction, but I don’t believe that Mr. Brown would have the power to order removal of a roof, and I don’t believe you have the power to order removal of a roof. I believe what Mr. Brown has the power to do is to say to a property owner, your property is not compliant because of your roof. You need to bring it into compliance. In order to bring it into compliance, these are the things that can be done. You can get an Area Variance. You can remove the roof. I think the only one that could actually order him to remove the roof would be the Supreme Court. Even Town Court doesn’t have those sort of injunctive powers. Mr. Brown certainly has the power to bring an enforcement action, and that’s generally a discretionary matter. While he’s working with an applicant trying to strong arm compliance, often he takes his time before actually bringing an action to Town Court or bringing a Supreme Court action, and Mr. Brown doesn’t even have the authority to bring a Supreme Court action. That has to be done by the Town Board. So he can bring a Town Court action to say you’re in violation and exact a fine perhaps, but that’s the extent of it. So, yes, you could sit here today and say, we’re ordering that in order to bring your property into compliance, you need to do one of the following, but you can’t tell them which decision to make and how they’re going to make their property compliant. MR. STONE-Okay. So you’re saying we could pass a motion that says, we want this property brought into compliance? MS. RADNER-Yes. MR. STONE-I mean, that’s about the extent of it. Did I summarize it too succinctly? MS. RADNER-I would recommend that you do something like we find that the property is not in compliance and that the applicant should be given 90 days to bring the property into compliance, something of that nature, 60 days, whatever you felt was reasonable, or that within 30 days he begin to take the steps, something quantifiable. MR. BRYANT-I’m not really understanding. MS. RADNER-What I’m saying is you can’t order him specifically, you’ve got to go take down your roof. MR. BRYANT-Yes, but I mean, even the, I want to back up to what Mr. Caffry said relative to Town law and relative to our stepping into Mr. Brown’s shoes. What is your interpretation of that? MS. RADNER-My interpretation would be that Mr. Brown is the person charged with interpreting the Code. He is also the person charged with bringing actions to compel compliance. If you believe Mr. Brown is making incorrect decisions in that regard, and an appeal is brought on that issue, you can change his decision. You can say, no, you’re not interpreting it correctly, or, no, this building is still not compliant, but you can’t take steps beyond what he could take. MR. BRYANT-Let me ask Mr. Brown. What exactly is happening relative to the application, the Riitano application that was rejected? MR. BROWN-Nothing. I think what’s the next course of events was that an Appeal was brought to you by Mr. Caffry and Mr. Kelly regarding the attic space, and it does it count in the floor area, doesn’t it count in the floor area. A decision was made that you should count it in the floor area ratio. 25 (Queensbury ZBA Meeting 12/22/04) MR. BRYANT-Okay. Well, you sent Riitano a letter. MR. BROWN-Correct. MR. BRYANT-Did he respond to you? MR. BROWN-I don’t remember. MR. BRYANT-Is there a response? Is there some kind of activity? Are we moving towards resolution? That’s all I want to know. MR. BROWN-Well, I think they can respond what their plan is going to be, but a method for compliance, if you seek to craft a resolution that says we want you to be in compliance within a certain number of days. One of those methods of compliance is come back to this Board to seek an Area Variance for this area of attic space that you now have determined counts in the floor area ratio that we didn’t count before. So it’s kind of a new issue. We didn’t count it in the floor area ratio before. They appealed that. You agreed with them. Now they have to count it in. So they have the option of coming to ask for that relief. That’s a method of relief that they can seek, which they haven’t done yet. MR. ABBATE-It would seem to me, Mr. Chairman, that the simplest way to hear and to settle this Appeal this evening is to use the guidelines set by the Town Attorney and make a motion that the ZBA demands that this property located at 16 Sunset Lane be brought into compliance within, as an example, 90 days from this date, and that’s it, and stop. Then from there, we’ve done our job, and the rest of it’s up to the Town. Is that okay. Does that sound all right? MS. RADNER-I think that’s acceptable. MR. STONE-I believe that’s what she said, Counsel said. MR. CAFFY-Can I ask Counsel a question, just to clarify something? MR. STONE-You certainly may. MS. RADNER-I don’t know that I’ll answer it, though. MR. CAFFRY-I can always ask. You said that the Board or Mr. Brown could potentially make an order to come into compliance, either get a variance or remove the roof, but what happens if they apply for the exact same variance for the fourth time and get denied for the fourth time. What then? MS. RADNER-Then Mr. Brown has the difficult decision to make of whether or not he brings an enforcement action or whether he goes to the Town Board to seek a Supreme Court action to compel removal of the roof. MR. ABBATE-Right, and once we make our decision, it’s out of our hands, and it’s quite frankly none of our business, what the Town does or what Mr. Brown does. We’ve done our job and that’s it. MR. STONE-Did you get the answer? Did you get an answer, Mr. Caffry? MR. CAFFRY-Well, it sounds like it would be progress. It would be nice if Mr. Riitano would just spare the Town the trouble of going to court. MR. STONE-Yes, well, we’re going to hear from Mr. Riitano through his agent when I open the public hearing. Okay. Having said that, I will open the public hearing and invite Counsel for Mr. Riitano, the property owner, to come forward. 26 (Queensbury ZBA Meeting 12/22/04) PUBLIC HEARING OPENED JON LAPPER MR. LAPPER-Thank you. MR. STONE-Again, narrow issue. MR. LAPPER-Yes, very narrow. What happened here, in terms of the roof issue, the vast majority of the roof is not outside of the setback limitations, in terms of the height of the roof. There are a couple of corners on the sides of the roof that we’re talking about. We’re not talking about the whole roof. Unfortunately I think that Attorney Caffry fooled this Board because he got you to just make a decision based upon the attic, and we’re not talking about the second floor. We’re only talking about the roof. He got you to make a decision about the attic based upon 711 and 712 no longer being in the Building Code, without doing the analysis that you did tonight, that that Section was superceded by another definition, and we’re talking about living space, and attic has never been considered living space in the Town, and it’s never been considered for Floor Area Ratio. So because of what happened that night, when you were just looking at the fact that 711 and 712 didn’t exist, and you didn’t get into the detail that you did tonight, we had no choice, on behalf of Mr. Riitano, but to Appeal that in an Article 78, to ask the Supreme Court to make a determination about that floor area. Well, I just want to back up. One other thing. Caffry kept talking about the fact that we had appeals, or we weren’t involved, but that Mr. Riitano. MR. STONE-Please say Mr. Caffry. I don’t like last names when we’re talking. MR. LAPPER-I’m sorry, I didn’t do that intentionally. MR. STONE-Thank you. MR. LAPPER-That appeals were denied previously, and the biggest one was that there was a porch, and that Appeal was denied for the porch, and the porch was removed, so that issue, of course, came into compliance. He couldn’t have gotten a CO without it. He made the changes. There was also a green space permeability issue because he had added some gravel, and all of that was removed, remedied, and the Zoning Administrator was satisfied or we never would have had a CO issued. So he’s not, this isn’t just going to sit. He’s asked the Supreme Court to make a decision about the attic and whether that’s floor area ratio, and if we’re unsuccessful in that appeal, then the alternative is either to make the roof flat on the corners, which would, you know, bring it down to the level that it was before, which would probably be ugly and unusual looking, but it would technically comply, or to come and ask this Board for what I think would be a very modest relief, in the form of an Area Variance to have those corners remain the way they are and it’ll be up to this Board, of course, to apply the Area Variance test and see how it comes out, and I’m certainly committing, on behalf of Mr. Riitano, that if we are not successful in the Supreme Court, then we will come back and ask for the Area Variance. Now, we could come back and ask for the Area Variance first, and if we’re successful, then it would moot the Supreme Court action, and, you know, somebody used the word heal, and that might be the best way to go, to just try and take care of this, and I don’t have a strong feeling, and I don’t think Mr. Riitano is, I mean, he wants everything to be right with the Town. So one alternative would be to appeal, even though we’ve got, or to apply for a variance now, even though we’ve got the Article 78 pending, and, you know, that’s something that I’m sure he’d be willing to do, or we just wait for the court to decide and then we see what we do at that point. That’s where we are. MR. STONE-So you’re making the statement that your client is working toward bringing this to resolution? MR. LAPPER-Absolutely. 27 (Queensbury ZBA Meeting 12/22/04) MR. STONE-Whether it’s through a court decision or coming back to us for a variance. MR. LAPPER-For a variance request, and Craig Brown is aware of that. We’ve had that discussion. MR. STONE-What is the time we’re talking about? MR. LAPPER-Well, with the Supreme Court, you never know how long it takes to get the decision. With the timing, you can’t predict, some things happen two months, sometimes six months. That’s all. So Joe has no intention of ignoring this, and I think that’s why there’s no enforcement action because Craig knows that there’s the Article 78, and I’ve had the discussion with him that we would also ask for the variance if that’s the only choice. That’s where we are. MR. STONE-Due diligence, as far as you’re concerned, on trying to bring this to closure? MR. LAPPER-Yes. MR. STONE-Mr. Brown, do you agree with what he said, that you were aware of this? MR. BROWN-Yes. MR. STONE-Okay. MR. ABBATE-A couple of things. You said that the vast majority of the roof does not comply. MR. LAPPER-Does not violate, does comply. MR. ABBATE-Well, what portion does violate? How many square feet are we talking about? MR. LAPPER-It’s the part of the roof that’s outside of the, it was grandfathered, but it went up, so it’s the part of the roof that’s outside of the setback. MR. STONE-It violates the setback requirement. MR. BRYANT-I don’t know if that’s an issue, Mr. Chairman. I think basically, the question I asked Mr. Brown, and your response is, you’ve got the Article 78, and you’re not sitting on it. MR. LAPPER-Right. MR. BRYANT-There is some activity, and we’re working towards a resolution. Is that what you’re saying? MR. LAPPER-Absolutely. MR. BRYANT-Okay. So it’s not something that Mr. Brown didn’t fall down on his job. MR. LAPPER-Absolutely not. MR. BRYANT-He’s staying on top of it. MR. LAPPER-He’s called. He’s written. We talk about it. MR. ABBATE-Is there a timeframe on this? Because this has been going on for two years now. MR. LAPPER-Well, everything that happened in the past has been remedied because the CO was issued. This is the only issue that’s left. MR. ABBATE-You didn’t answer my question. Is there a timeframe on this, for resolution? 28 (Queensbury ZBA Meeting 12/22/04) MR. LAPPER-The answer is we’re waiting for a decision from the Supreme Court. MR. ABBATE-Okay. MR. STONE-Is that it? MR. LAPPER-Yes. MR. STONE-Any other questions? Okay. Anybody else wishing to speak on the subject? Mr. Salvador? JOHN SALVADOR, JR. MR. SALVADOR-My name is John Salvador. I, too, have been in the process of building a single family dwelling during this period of transition from the old State Code to the new State Code, and the zoning, the Building Inspector made a determination in my case that because my application was filed, and I received a building permit prior to the adoption of the new Code, I had to live with the old Code, even though it might have been more beneficial for me to adhere to the new Code. That was a very simple determination that was made, and that’s the way we’re doing it. There’s no question old Code, new Code. I don’t know why it’s coming up in this case. Secondly, before this Zoning Ordinance was changed most recently, an applicant had an ability to appeal an omission that the Zoning Administrator might make. The lack of a determination could be appealed, but that provision and capability was cleverly dropped out of the Zoning Ordinance and now we can’t do that anymore, and that’s why you have this dilemma. MR. ABBATE-Well, that’s not quite accurate. The word omission, I hope I’m correct, does appear at least two or three more times. MR. SALVADOR-Yes. They forgot to drop it in the subsequent paragraph, but up front, where you appeal the determination that, etc., etc., the word “omission” is omitted. Cleverly. MR. ABBATE-Okay. Thank you. MR. SALVADOR-Thank you. MR. STONE-I invite you to come to other meetings on the subject. Anybody else wishing to speak on this subject? Then I will close the public hearing. PUBLIC HEARING CLOSED MR. STONE-Any comments that you want to make, Mr. Caffry, Mr. Kelly? MR. CAFFRY-Yes, please. I think what Mr. Lapper was trying to do was re-argue the merits again. He came in and said I fooled you. I’d like to think you make a well reasoned decision and I didn’t fool anybody, and he talked about the Code Sections 711 and 712, but those, I don’t think, are really germane. They really apply to the basement, and not to the second story. He talked about other appeals. I don’t think there were prior appeals regarding the porch and the permeability. Those really came out of the denial of the variance applications, and then he says if they lose in court, they will remove the corners that violate the setback rules, but the majority of the roof complies with the Code, which says to me he’s ignoring the floor area ratio finding that you made that does affect the entire roof and was a finding by you that the entire second story, with the roof that’s above it, violates your Code. So I don’t think, when he says he’s trying to work with the Town and coupled with the letter from Craig that ignores your floor area ratio ruling, whether on purpose or not, I still think there’s a problem here, in that some people are trying to ignore the floor area ratio ruling, and this Board needs to, you voted last time not to re-hear it, and it’s the law of the land, or the law of the case, and you, I think, need to 29 (Queensbury ZBA Meeting 12/22/04) make it clear that there needs to be compliance with that. Now the tricky thing is the Article 78 case, which has, and Ms. Radner can correct me if I’m wrong, it was filed, after your August ruling, and the Town Counsel made a motion to have it dismissed, and that’s still pending in front of a State Supreme Court justice. MR. STONE-The motion to dismiss is pending? MR. CAFFRY-Correct. MS. RADNER-Correct. MR. STONE-Okay. So there is a hiatus on consideration? MS. RADNER-What happens in an Article 78 is that the petition is filed. The Town can either answer the petition or move to dismiss the petition, pointing out the flaws in it. We believe the petition should be dismissed and we moved for its dismissal. If the court grants our motion, the Article 78 is dead. It’s gone, and they’re stuck with the decision you folks made. If the court says, no, Town, we’re going to allow this to go forward, we’re not going to grant your motion to dismiss, the case could go on for another year. As I believe it was Mr. Lapper correctly pointed out, we have no control, though, over how long it takes the Supreme Court to issue a decision, either on our motion to dismiss or on the merits, if we get to that point. MR. STONE-So, I’m hearing that what you said before, that we can ask that the Town, through the Zoning Administrator, pursue this as efficaciously as possible, and that’s what we can do, according to the interpretation you’re giving us. MR. CAFFRY-Mr. Chairman, I would say that you could issue an order such as she previously discussed, as your Counsel previously discussed and Mr. Abbate previously discussed, saying, come into compliance, and here are the issues that need to come into compliance, and I think you really need to reiterate the floor area ratio rule, because Mr. Lapper didn’t seem to agree with it, but you could say, come into compliance within 30 days, 60 days, 90 days, whatever you want. At that point, then, if they don’t like that, they could go to court and ask a judge to stay it, because they’ve got this other lawsuit pending or whatever. Maybe that would give the judge in the Supreme Court case some impetus to make a decision, too, but, you know, we could be waiting a long time to see what a court does, and we’d like this Board to, you know, put some emphasis behind this thing and make it clear what your ruling was and what needs to be done to bring it into compliance. MR. BRYANT-Well, let me just ask a question. I mean, what are the merits of trying to give them an order to comply if the Supreme Court can overturn the whole, you know, ruling? MR. CAFFRY-That’s what you guys do every day. You make, Mr. Brown makes rulings, and you guys can overrule him. You make rulings, a court can overrule them. That’s the process. MR. BRYANT-Yes, but don’t you think it’s premature, though, if they are, the court is going to decide whether or not our decision was correct in the first place? I mean, how can we give them an order to comply when a court could very well say that this Board was in error when they denied his application? MR. CAFFRY-What I said was, they can go to the court, and if they want the court to issue a stay, they can do that. MR. BRYANT-Yes, but I don’t understand the logic. MR. CAFFRY-But if you don’t put some impetus behind this, some way or another, nothing’s going to happen. 30 (Queensbury ZBA Meeting 12/22/04) MR. BRYANT-I don’t understand the logic, though. Like we’re jumping the gun. I mean, they’re already in court, to determine whether or not the decision was accurate. Why are we acting on that decision when a decision still has to be made by the Court? I don’t understand the validity of that whole process. MR. CAFFRY-I don’t think the Board can sit and wait for courts to make decisions. You have to make your decision and then let the courts sort out what happens. MR. BRYANT-We already made a decision, my understanding, I wasn’t here that night, but we already made a decision, and now the court will decide whether it was a valid decision, and we’ll go from there. I mean, Mr. Brown didn’t sit on it. You see, I would look at it this way. If nothing was happening, and Mr. Brown wrote a letter three months ago, and Riitano did not respond to it, and nothing is going on, I think you have a legitimate gripe. When you’ve got something in court to address the original decision, I don’t understand why we’re even talking. I don’t understand what we hope to achieve. MR. CAFFRY-We hope to achieve action, and if the court will make its decision, it can make its decision, but I think. MR. BRYANT-Well, how can we give them 90 days to act on something that’s going to be decided by a court anyway? MR. CAFFRY-It happens all the time. MR. BRYANT-It doesn’t sound logical to me. MR. STONE-Cathi, let me ask you a question. MR. CAFFRY-Let me point out, too. Mr. Brown made a written letter that we felt we needed to bring to your attention and appeal from or else we might lose our rights to do so. That’s why we’re here now. In the interim, or around that same time, this Appeal was filed. That’s why we’re here, because, or the court appeal was filed, okay, but we had to file an appeal from Mr. Brown’s letter or else risk waiving an argument that we had waived our rights. That’s how we got here. MR. STONE-You have a statement from Mr. Brown’s office, in terms of Staff notes, that says what you wanted it to say, that he did not deliberately omit this thing, and that when a request for a variance comes up, it certainly would trigger all of the requirements that you’re asking. MR. CAFFRY-But we’re looking for enforcement of your ruling, not another request for a variance. Obviously Mr. Riitano can file variance requests forever, but there’s nothing for Mr. Brown trying to enforce that ruling. MR. STONE-Okay. MR. CAFFRY-And that’s our concern, that he has let that drop and it needs to, something needs to be done to make it clear from Mr. Brown that that will be enforced by his office, and we don’t see that. MR. STONE-Well, I hear from Counsel that we can’t go as far as you would like to go. MR. CAFFRY-You can go pretty close. I don’t think she and I are that far apart. MS. RADNER-The applicant is urging a result. You’re certainly not required to grant that relief or grant any degree of the relief requested. You could decide that Craig’s determination, as it stands, is just fine, or you could simply rule that any further calculation of floor area ratio is going to take into account your prior decision unless overruled by the court. He’s urging one result. You’re not required to go that route. 31 (Queensbury ZBA Meeting 12/22/04) MR. STONE-Well, I hear Mr. Caffry asking us to insist that enforcement take place. That’s what I heard. MR. KELLY-Mr. Chairman, can I just, there’s been a little bit of confusion about how it is not in compliance, and Mr. Lapper really only talked about the setbacks, but your ruling in August was really had four implications. The first ruling was that the current structure violates setback requirements on the front and both sides, that the second floor must be counted towards floor area ratio, and that the structure, the expansion constitutes expansion of a nonconforming structure, which Number Four requires a site plan review by the Town Planning Board. So I just want to make clear that we’re not talking about a couple of setbacks from the corners of the house. This is, from my experience watching this Board and watching the kinds of things that people request relief for, this is a pretty serious set of violations that has physically existed for a year and a half, and because of the bureaucracy involved in trying to resolve things of this nature, we’re very desiring of some sort of enforcement. MR. STONE-Mr. Brown has stated, and all of the points that you just raised, Mr. Kelly, would be involved in any decision that he makes, or any recommendation for future action. I mean, he is not operating on, we’re going to have to take off three inches of roof. We’ve got all of these considerations. He knows that. MR. BROWN-I don’t disagree with the Appellant’s position that that should have been included in the letter. It was a mistake not being in there. I’ll be the first one to admit that. I think we’re on the same page with that issue. I think the outstanding issue here is the pace of play. I don’t think it’s up to the Appellants’ level. I think their position is there’s action here, but it’s not fast enough for them. So they want you to speed it up a little bit. MR. STONE-Right. MR. BROWN-And, you know, my position’s going to be, if asked, I’ll tell you now that I’m going to wait and see what the outcome of the Article 78 is. It’s kind of a conservation of resources, saying, why waste my time and the Town Attorney’s time, the Town Court’s time, everybody’s time to go to Town Court to have them say, let’s wait and see what the Article 78 says. So there’s an option of coming to this Zoning Board, like Mr. Lapper referred, for an Area Variance to seek permission to keep the second floor as living space, consistent with your ruling, or to go through a formal enforcement action, which is way down on my list of things. MR. STONE-Isn’t it true, Counsel, that your action, asking to overturn or whatever, is to defend us, because that’s your responsibility to defend Town Boards, Town Zoning Boards, Planning Boards, and Town Board. That’s what we do. That’s what they do. So the fact that they’ve done it says they’re doing their job. MS. RADNER-Of that you can rest assured. MR. CAFFRY-And what agree that what Ms. Radner is doing is defending your decision and has the potential to benefit us. This may be a compromise, or a procedural way to deal with the question of the lawsuit would be, your Counsel has said that you could make an order that it be brought into compliance in say 60 days or 90 days. You could make it be that it be brought into compliance within 60 days or 90 days of the dismissal of the lawsuit by the court, if it’s dismissed, and so we wait on the court, but then there is a timeframe there, and that resolution also make it clear what needs to be done in terms of these are the issues that need to be addressed. Mr. Brown says now he agrees with us. We’re very glad to hear that, and it was only a mistake. I think it needs to be spelled out because Mr. Lapper’s not hearing it. MR. ABBATE-Let me say something. This Board has no law enforcement authority, Number One, and your Appeal, tonight’s Appeal, 9-2004, is under litigation at the present time. Am I correct? 32 (Queensbury ZBA Meeting 12/22/04) MR. CAFFRY-Yes. MR. ABBATE-And as far as I’m concerned, we shouldn’t hear this Appeal until the litigation is completed. MR. CAFFRY-There’s no stay on Appeal from the court. It doesn’t stop you from hearing the Appeal. MR. ABBATE-I understand that, but your Appeal is under litigation right now. Correct? MS. RADNER-It’s not Mr. Caffry’s Appeal. It’s Mr. Lapper’s Appeal. MR. ABBATE-Well, I say you because you are the spokesman for your client. MS. RADNER-You’re the one that brought the Article 78, then. Right. I’m sorry, yes. MR. ABBATE-Am I right on this? MS. RADNER-Yes. MR. ABBATE-Yes, okay, and so since his Appeal is under litigation, it would be foolhardy for us to make any decisions. We do not have law enforcement authority to demand that Mr. Brown do this by a certain date or he’s going to get in trouble. MR. CAFFRY-Well, your Counsel said you basically do. Not phrased quite that way, but. MR. ABBATE-Nobody said we had law enforcement authority. MR. CAFFRY-It’s not law enforcement, in the sense of arresting people. MR. ABBATE-We can’t force Mr. Brown to do anything. MR. CAFFRY-You can overrule him and issue orders as to what ought to be done, and then it’s his job to carry it out, and I assume he’ll do his job once you make it clear. MR. ABBATE-If it’s in the best interest of everyone. MR. STONE-Okay, but you put a proposal on the table that we agree that this thing should be brought to resolution as quickly as possible, given the fact that it’s in the courts, and that we can’t do anything until the courts make a decision. MR. CAFFRY-Well, I don’t agree that you can’t, but I’m offering that up as a way, because I sense some hesitancy. MR. STONE-Yes. MR. BRYANT-I think, Mr. Chairman, my hesitancy is, I understand we have the ability to overrule the Administrator’s rulings, okay. We have the ability to step into his shoes when he’s not doing his job, but in this particular case, I think he’s prudent, in so much that he’s waiting for the Article 78 to be concluded before he takes any further action. I mean, you know, I don’t know that we have the right, you know, just to step on his toes because, you know, he didn’t tap dance tonight. MR. STONE-No, I’m not suggesting we step on his toes. MR. BRYANT-You know what I’m saying. We can tell him we need an enforcement action if he’s not doing what he’s supposed to do, but he’s done what he’s supposed to do to this point. 33 (Queensbury ZBA Meeting 12/22/04) MR. ABBATE-Well, that’s a good point. I like the word, he said that he thought the Zoning Administrator was being prudent. I said earlier I thought he was being charming . So I think maybe your word is probably correct. He’s being prudent. I like that, and as such, why interfere with his prudence? MR. BRYANT-Yes. I mean, I can understand if nothing’s going on, then he dropped the ball and then we should do something, but it’s moving forward. MR. STONE-And we can recognize that. That’s all I’m suggesting, that we recognize, in a motion, that we recognize that this is being pursued in a diligent manner through the courts and everything else. Is that reasonable? MR. ABBATE-Yes, sure it’s reasonable. We don’t have to include that provision that says it’s to be completed within 90 days. MR. STONE-No. MR. ABBATE-We don’t need a timeframe. We could just make a motion to say that we recognize that there is litigation and that the Zoning Administrator is working in the best interest of the Town and the applicants as well. MR. STONE-And you so move, right? MR. CAFFRY-If I may, I would be more comfortable with something along those lines, if it was made clear that Mr. Brown now agrees that it was a mistake not to mention the floor area finding in his letter, and that that should be part of any enforcement action that may occur ultimately. That, I think, gets us where we really wanted to get with this. MR. ABBATE-You’re asking for an apology. MR. CAFFRY-No. MR. STONE-No. MR. CAFFRY-I don’t care if he uses the word sorry or not. He recognizes now. MR. STONE-He said it in Staff notes. MR. ABBATE-He’s already admitted, this evening he’s already admitted that he made an omission. What more do you want? MR. URRICO-Mr. Chairman, I think we’re getting diverted completely off the topic here, and I think there’s an issue here, there’s an Appeal on, I’d like to get to it as soon as we can. MR. STONE-Well, what do you think the Appeal is? MR. URRICO-I just think that right now we’re arguing something that, we’re arguing semantics and possibilities. We’re not arguing anything concrete that’s on the table. MR. KELLY-And that argument stems from past experiences where we have been unable to argue things because we’ve waited too long or because we’ve been accused of doing so, and because this is the key to the argument, you know, the floor area ratio plus the other three things, we didn’t want this to get swept under the carpet and have somebody argue, six months from now, well, the Zoning Administrator said all you had to do was this and then everything was cool. 34 (Queensbury ZBA Meeting 12/22/04) MR. STONE-If we said, in connection with Appeal No. 9-2004 that we recognize that any correction would have to include the so and so things, and we recognize that it’s currently in the courts, something along that line. MS. RADNER-Perfectly acceptable. MR. STONE-Okay. Is that acceptable to you guys? Roy, is that where you’re coming from? MR. URRICO-No. MR. STONE-Well, what do you think’s on the table? MR. URRICO-I just think we made a ruling in August. We’re waiting for that ruling, the process to take place, so the enforcement is in process, and now we’re interrupting that process or assuming. MR. STONE-Well, they’re trying to protect their interests. MR. URRICO-I understand that, but I think we’ve made our ruling, and at this point it’s in the Zoning Administrator’s hands. He’s explained where he is. I don’t know what we have to do any further at this point. MR. BRYANT-I think what the Appeal basically is, that you are looking to acknowledge the fact that Mr. Brown omitted the floor area ratio issue in his letter, and that’s basically it. MR. STONE-Yes. MR. BRYANT-That’s as far as, you know, I’d be willing to even go. The other stuff, you know, I mean, whatever the omission was, that’s what we should outline, and end of story. MR. URRICO-So we’re now in the business of coming, taking on semantical issues? MR. BRYANT-We’re in the business if a citizen comes with a legitimate Appeal, to respond to that Appeal, and I think that’s what we should do. MR. URRICO-Okay. MR. ABBATE-But it’s already been documented this evening. The Zoning Administrator has already admitted there was an omission. How many times do we have to go through this? MR. BRYANT-Well, if that’s the case, make a motion relative to that omission. MR. ABBATE-Did you or did you not? MR. BROWN-I did. MR. ABBATE-Thank you. MR. BRYANT-That it should be included, and then everybody goes home. MR. ABBATE-No. I’m not going to make the motion because I think he did his job. MR. STONE-Al, why don’t you try a motion. We want to get this resolved. I think the Appellant is saying, all they want to know is that their rights are protected in terms of future action, in terms of what it takes to bring this property into conformity. MR. BRYANT-You see, herein lies the problem, in the verbiage of the Appeal, the actual Appeal, I mean, there’s not, we went into a long discussion about enforcement actions and so 35 (Queensbury ZBA Meeting 12/22/04) forth and so on. I think, from a very primitive level, you’re looking just to acknowledge that there was an omission and that that should be included, and if that’s what your Appeal is, then I will make a motion in that regard. MR. STONE-Please do. MR. BROWN-I think what you want to do, and not to make the motion for you, my position is very, in the beginning, the Staff notes were read, acknowledging the omission. At that point, the Appeal of the omission could have been withdrawn. I mean, it’s a moot issue now. I agree with the Appellant now. So, is there an issue that’s appealable? If they don’t want to withdraw it, you have to decide on it. MR. STONE-That’s correct. MR. BROWN-So what you want to do is, what I would suggest you may do, is uphold the Appeal, with the information based on the testimony tonight that I agree with him, that it should be in there. I mean, it could be as simple as that. MOTION THAT WE UPHOLD APPEAL 9-2004 CAFFRY AND FLOWER, ESQ. FOR MIKE KELLY, Introduced by Allan Bryant who moved for its adoption, seconded by Charles Abbate: Project Location: Riitano, 16 Sunset Lane. The applicant is appealing some omissions from the Zoning Administrator’s letter dated September 3, relative to the Floor Area Ratio, and I also rd want to, for the record, acknowledge that the Zoning Administrator is here, and he has acknowledged that it was an inadvertent omission. Duly adopted this 22 day of December, 2004, by the following vote: nd MR. HAYES-The reason no is I had originally agreed with the Administrator, so I would have to say to agree that it’s not an omission because I don’t agree with it in the first place. Just being consistent. AYES: Mr. Underwood, Mr. McNulty, Mr. Abbate, Mr. Bryant, Mr. Stone NOES: Mr. Urrico, Mr. Hayes MR. KELLY-Thank you. MR. CAFFRY-Thank you. AREA VARIANCE NO. 96-2004 SEQRA TYPE II JAMES AND NANCY WHITE AGENT(S): JARRETT-MARTIN/LITTLE & O’CONNOR OWNER(S): JAMES AND NANCY WHITE ZONING WR-1A LOCATION 52 ½ RUSSELL HARRIS ROAD, CLEVERDALE APPLICANT HAS DEMOLISHED A 990 SQ. FT. SINGLE-FAMILY DWELLING AND PROPOSES CONSTRUCTION OF A NEW 1,498 SQ. FT. SINGLE- FAMILY DWELLING. RELIEF REQUESTED FROM SIDE SETBACK AND FLOOR AREA RATIO REQUIREMENTS. WARREN COUNTY PLANNING DECEMBER 8, 2004 ADIRONDACK PARK AGENCY YES CROSS REF. BP 2004-108, SPR 40-2003, AV 61-2003 LOT SIZE: 0.14 ACRES TAX MAP NO. 240.5-1-7 SECTION 179-4-030 MICHAEL O’CONNOR & BOB HOLMES, REPRESENTING APPLICANT, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 96-2004, James and Nancy White, Meeting Date: December 22, 2004 “Description of Proposed Project: Applicant has demolished a 990 sq. ft. one-story dwelling, and proposes construction of a 1,498 sq. ft. two-story single-family dwelling. Relief Required: The applicant is requesting 10 feet 4 inches of side setback relief (north side) and 6 36 (Queensbury ZBA Meeting 12/22/04) feet 5 inches of side setback relief (south side) from the 12-foot minimum requirement, and 69.76 square feet of relief from the 22% maximum Floor Area Ratio requirement (proposed FAR is 23.07%) for the WR-1A zone, per § 179-4-030. However, staff has determined that 9 feet 7 inches of side setback relief is required from the 12-foot minimum requirement for the south side. Parcel History (construction/site plan/variance, etc.): BP 2004-018: 04/16/04, 1,498 sq. ft. residential addition/renovation. SP 40-2003: 07/22/03, expansion of a nonconforming structure in a CEA for a 508 sq. ft. second-story addition. AV 61-2003: 07/16/03, shoreline setback, north and south side setback, FAR, and continuation relief for a 508 sq. ft. second-story addition. BP 91-578: 08/16/91, septic alteration. Staff comments: The applicant has demolished a 990 sq. ft. one-story dwelling, and proposed construction of a 1,498 sq. ft. two-story single-family dwelling. The proposed shoreline setback of 50 feet is 11 feet greater than that of the demolished dwelling. The proposed setback of 5 feet 7 inches for the south side is for the majority of the dwelling. However, the small deck above the stairs on the south side is proposed to be 2 feet 5 inches from the property line. Therefore, 9 feet 7 inches is the required relief from the 12-foot minimum requirement for the south side.” MR. MC NULTY-“Warren County Planning Board Project Review and Referral Form December 8, 2004 Project Name: White, James and Nancy Owner(s): James and Nancy White ID Number: QBY-04-AV-96 County Project#: Dec04-27 Current Zoning: WR-1A Community: Queensbury Project Description: Applicant has demolished the single-family dwelling and proposes construction of a new single-family dwelling. Relief requested from side setback and floor area ratio requirements. The original approval for the structure did not include demolition. Site Location: 52 ½ Russell Harris Road, Cleverdale Tax Map Number(s): 240.5-1-7 Staff Notes: Area Variance: The applicant proposes to demolish an existing single family dwelling to construct a 862 sq. ft. first floor and a 508 sq. ft. second floor. The applicant requests relief from the floor area where 438.24 sq. ft. would be allowed to be constructed and the applicant proposes 508 sq. ft. This also includes setback relief; the new home will be 1.8 ft. from the north property line where 12 ft. is required and 5 ft. 7 from the south property line where 12 ft is required. The applicant applied for a variance previously in July 2003 where the County Planning Board recommended no county impact, and the local board approved. The July 2003 application was only to add a second floor. The application has changed because the first floor was not able to be salvaged as indicated in the information submitted. The site plan details the septic location, stormwater retention areas and the location of the home. Staff does not identify an impact on county resources based on the information submitted. Staff recommends no county impact. County Planning Board Recommendation: No County Impact with Comment Warren County Planning Board recommends no county impact with a comment that the County Planning Board is aware that Public Health Law 75 indicates holding tanks are not permitted for new home construction unless there are no alternatives.” Signed by Bennet F. Driscoll, Warren County Planning Board 12/13/04. MR. O'CONNOR-Mr. Chairman, Members of the Board, for the purpose of your record, I’m Michael O’Connor from the law firm of Little & O’Connor, and with me at the table are Jim and Nancy White who are the applicants, the owners of the property, and Bob Holmes, who is the engineering consultant for the project. I’m a little perplexed as to where to begin, but I think I’d need to go back a little bit. This is the second time this house has been before you, and I do this will full reservation of any rights of the applicant. Craig Brown has ruled that the actual construction plans that were approved by the Town, stamped by the Town, and for which a building permit was issued, exceeded the variance that was granted back in July of 2003, and that they exceeded those plans because they included a full basement and a new first floor. When I was here before in July of 2003, I spoke of putting a second story addition on the back part of an existing house. I said that we needed a front setback variance because we wanted to leave the front where it was, and we needed side line setback variances because the existing first floor had certain setbacks from the existing sidelines. At that time, you granted that relief. You also granted the relief for the one percent or 1.3% variance with the Floor Area Ratio, and you also allowed a structure that will be 25 feet 8 inches height. After we went to this Board, we then went to the Planning Board and got into perhaps more detailed discussion with the Planning Board as to what was actually there and what we would do with what was there, and in particular we had discussions about the septic system that was on the site and in existence. 37 (Queensbury ZBA Meeting 12/22/04) We had had that tested, to the extent that you could have it tested, without demolishing the structure at that point. It was under the back, it was actually underneath the building and we had excavated, opened up the top of it and had tried to run some things in there to see where it was and what not, and the discussions with the Planning Board was that you were going to remove that septic system, and we kind of went along with that discussion and said, yes, we probably will remove that septic system instead of having it maybe rot out underneath the back of the house, if we just built a second floor on it. They also got into discussion that if you build a basement, and I think John Strough is the one who I would quote who’s in the minutes, said he had gone up and inspected it and said the front part of that thing is on a very poor foundation, and he didn’t think that it would support the second floor, and that you’re probably going to re-do the whole foundation, and our comments to them were that if we had to, we would. We would do an inspection of it. Jim then did a determination that, or made a determination, and maybe we should have come back to you, I don’t know, truthfully, that he wasn’t going to be able to remove the septic system and demolish the back third of the house and have anything left in the front of the house to save and build on it on a sound structural basis. He submitted a set of plans, and this is the set of plans, and I think we copied, or included enough copies. I don’t know if we did or didn’t, Craig. You have a full set of the plans that were submitted to the Town. Those plans show a full basement. They show a new first floor, if you will, and they show the second floor, per the terms of what we had gotten a variance for. In fact, maybe just, we actually made it a foot and a half shorter than what we had gotten the variance for. They were not trying to be obnoxious. They were not trying to be obtrusive. They were trying to be as compliant as they could be. They actually tore the house down. They excavated for the basement, and then we were told that a Stop Work Order would be issued or was issued, I’m not 100% sure, and we looked at the site and said we better fill the site back in to a degree that it’s safe for the adjoining property owners. So that’s where we are today. What we’re proposing is the same structure, the end product of what you approved in July, except when it was gone, we no longer had to maintain the noncompliance with the lake. We were 40 feet before, or 38 feet, 39 feet. So we said, okay, let’s make it as compliant as we can. They moved it back to 50 feet. The only affect of moving it back 50 feet is that the second floor, which is on the back of this structure, goes further back, as compared to the two adjoining owners. That probably makes it less noticeable to them, as far as being out at the lake, and that’s basically where we’re at, and I’ve been here before with after the fact variance applications where we’ve built something by mistake, and you’ve, probably rightfully so, said you’ve got to be accountable for what you did. Well, in this instance I think the phrase might be turned. If you take a look at all the red that’s on this set of plans, and the building permit that came with it, the Town of Queensbury said, build this building, and in reliance of that, Mr. White went ahead, demolished the existing building, and then is back to you. It was not our intent, and clearly if you read those minutes of July 2003, it was not our intention at that time not to save the first floor. It was only after we got to the Planning Board and we got talking about removing the septic system that we got into discussion about, take the septic system out, and I don’t even know if there’s a Code, Craig, that says if you discontinue a septic system you have to remove it. I know you do on commercial projects. I don’t know on residential. So, if you talk about the test for an Area Variance, and that’s what we’re here for, all we’re talking about is the same structure that we had in July. We’re talking about a structure that’s probably safer from a Code compliance, with electrical, plumbing, and everything else that goes with it, as opposed to saving the first floor, and not necessarily bringing all those items into compliance. We’re probably talking about a structure that is more compliant, as far as in compliance with the heating, air conditioning, heat loss type regulations that you have. The impacts to the community are, or any additional impacts to the community, are absolutely zero. There is no difference in what we’re going to propose here, except that we’re going to have a nicer, better structure there than what we had proposed before. Instead of having a structure that’s half remodeled, half new, we’ve got a structure that’s going to be new. That’s our presentation to you. MR. STONE-The original motion, the south side setback was, you had asked for 6’5”, which was the original motion, and you found now it has to be, or Staff has determined it has to be closer than that. 38 (Queensbury ZBA Meeting 12/22/04) MR. O'CONNOR-The difference is we had a pre-existing deck coming out of the side of the first floor and stairs. They’re now saying that’s gone. So you’ve got to measure your setback from the new deck and stairs that you replace with that, and that’s the difference, the same width, same dimension of what was there before, and I think Staff is correct as to the, and I would agree with Staff on that Staff comment. MR. STONE-Any questions. MR. UNDERWOOD-A question for Craig. We, earlier this year, received a letter from the State Department of Health regarding holding tanks. Does that have any forbearance on this, because I see on here that it’s two holding tanks. MR. BROWN-Not on this Area Variance. The applicant, or applicant’s agents have been before the Town Board, which acts as the Local Board of Health, and received the review on the septic system, and a septic variance, I believe, for that system. So, I mean, they’ve done what’s necessary there. Will the moving of the house and the slight adjustment of the septic system, do you have to move the septic system at all because you moved the house back? MR. HOLMES-We would be shifting it, in accordance with the position of the house, to maintain the setback to the structure. MR. BROWN-Yes. Whether that needs to be re-reviewed by the Local Board of Health, I don’t know. I wouldn’t think so. MR. UNDERWOOD-Well, I didn’t know what the implications were, because the letter seemed to imply that holding tanks were not allowed, that we had been granting permission to use them, and the letter was subsequently stating that we were wrong in that, in issuing those permits. I just wondered. MR. BROWN-Yes. I guess, just to answer your question, it doesn’t have any implications on this Area Variance. It’s a separate. MR. O'CONNOR-We’re aware of that. We went through that with the Town Board. I’m not sure, but I think we made two or three applications to the Town Board for a septic system on this site. There are, we could put in a non holding system, non holding tank system on the site, but it would require more variances than what the Town Board thought varying the State Code regulation or dictate, and thought that there would be a better process, it would be a better system for the lot, for the community, to do the holding tanks, and I agree with Craig, that’s not really an issue before you. MR. STONE-I know it isn’t, but the question that was raised, and you had to get an answer, does the Board of Health have to see the fact that you’ve moved it, or will move it. MR. O'CONNOR-We can ask Dave that. MR. BROWN-Yes, that’s a separate. MR. STONE-Yes. I know. I’m just putting it on the record. MR. O'CONNOR-I think if you move it back 10 feet. MR. HOLMES-Moving it back 10 feet still would be in a compliant location. MR. O'CONNOR-It wouldn’t increase any setback. MR. STONE-Okay. 39 (Queensbury ZBA Meeting 12/22/04) MR. ABBATE-But however there is no prohibition on this application to have a holding tank, that I could find. Am I right on that, from the Town. MR. O'CONNOR-No. We have a permit from the Town Board to do holding tanks. MR. STONE-Yes, and it’s not in our purview, either. MR. ABBATE-Right, okay. I agree. MR. STONE-Okay. Any other questions from the Board? Hearing none, I will open the public hearing. Anybody wishing to speak on this particular application? PUBLIC HEARING OPENED MIKE AND GABRIELLE SHEARER MR. SHEARER-I’m Mike Shearer, neighbor of the Whites. MRS. SHEARER-Gabby Shearer. We’re on the north side. MR. STONE-Okay. Good. Thank you. MRS. SHEARER-I’m not exactly sure where to start, but I do want to comment on the fact that I thought it was supposed to be a remodeling job, and I think that’s part of where my problem started was that it was supposed to be a remodeling job. We were told by the Planning Board that the Whites would work with us on how they were going to do this construction job and not step on our property, which is what, 20 inches, 18 inches. The side of their building is 18 inches from our property line, and we’ve not been approached by them to discuss how they were going to do this and not touch our property at any point in time, and then what precipitated this Stop Work Order was that we went up to check on our place to make sure everything was okay, and there was this huge hole that we have pictures here to show you went all the way to our property line and in some places three or four inches into our property line, and we’re like, there’s no fence here. There’s no nothing here. This is dangerous. We can’t even come up here with friends on a warm evening, and that is totally unusable, not that we’re really up here in the winter. It’s not heated right now, but anyway, so we were a little concerned about the fact that there was no fence around this or anything to protect it, when it literally goes on to our sidewalk, a sidewalk we use on our house, and I guess when we came back, this was like a good month ago, if you want to show them the pictures. When we came back, and I guess you had given them the Stop Work Order and maybe said something about putting up a fence, they did put a fence up, a safety fence, and they did it by putting rebar right down the middle of our sidewalk. MR. STONE-Okay. I don’t want to stop you. This is really not germane to the variance application. MRS. SHEARER-Okay. So we need to come back with a lawyer, is what you’re saying? MR. STONE-No, I’m not saying that. We deal with, they’re asking to build a house on that property, in nonconformity, if you will, to our Zoning Code. MR. SHEARER-Okay. My comment to that is they have one foot eight inches on our side of the property. How are they going to do that construction without encroaching on our property. MRS. SHEARER-Which they’ve already done. MR. SHEARER-Which they have already done. 40 (Queensbury ZBA Meeting 12/22/04) MR. STONE-Okay. That is not our, we can’t comment on that. You can argue that the building is too close to the line. MRS. SHEARER-The building is way too close to the line. MR. STONE-Well, you can argue that. That’s what we’re here for. MR. BROWN-You can take a list of questions and ask the applicant when they’re done and get some responses. MRS. SHEARER-Then I did want to argue that. I think it’s too close to our piece of property, and I think, more so than that, the only thing that really bothered me was the floor area ratio requirements, that I think they’re building too big of a place for the size of that piece of property. It’s an awful little piece of property. It doesn’t need to have a variance for a larger house on it. MR. SHEARER-It’s a 25 foot wide lot. MRS. SHEARER-It’s not even 25, it’s 24. MR. SHEARER-They’re asking for a 10 foot 4 inch relief. MR. BRYANT-Can I ask you a question, please. MR. SHEARER-Yes. MR. BRYANT-I understood the applicant to say that the building is no wider than the old building that they tore down. Is that the case? MRS. SHEARER-Well, that depends. The second floor is actually, their proposal is for the second floor to be wider than the original footprint of the first floor. MR. BRYANT-That’s not the way I understood it. Okay. MRS. SHEARER-Is that true, the second story is not a foot wider, a foot closer to Gary’s property? MR. STONE-You raise the point. They’ll respond when we get back to them. MRS. SHEARER-Okay. Well, it was my understanding that the second floor is a foot wider than the first floor. So, in fact, yes, it is going closer and encroaching on the south side more so than it was before. MR. STONE-Okay. The only thing that I would tell you is that any request for relief is from the closest point, with the exception of eaves. Am I right, Mr. Brown? MRS. SHEARER-All right. Now do the eaves have to stay on their property? Because their original plan had the eaves over our property line. MR. STONE-That’s a good question. Mr. Brown? MR. BROWN-I think our Code allows up to 18 inches of the eaves to encroach into the setback. MR. STONE-Into the setback. MR. BROWN-It doesn’t allow it to go over the property line. Up to 18 inches of the eaves can encroach into the setback. 41 (Queensbury ZBA Meeting 12/22/04) MR. STONE-Okay. So that’s another point that you’re concerned about. That’s fine. All right. Anything else? MR. SHEARER-I’m also concerned that if they excavate out, like they have in the picture, and then we get frost heaving, any damage to my structure, because there is no buffer between the homes, and so if damage occurs, what’s my recourse? MR. STONE-And we will ask them to comment on that. MR. HAYES-But you do understand you’d need a civil remedy for that. MR. SHEARER-Another civil remedy is to have them meet the offset, such that you then have a 12 foot buffer between the two homes. MR. STONE-That is correct, but that’s where we come in. I mean, they can ask for anything. We don’t have to grant anything. MR. BRYANT-The lot is only 25 feet wide? MR. SHEARER-Yes. MRS. SHEARER-Twenty-four. MR. BRYANT-So they’d have to build a one foot wide building. MR. URRICO-Can I ask a question? When this first application came before us in August, did you have any objection to that, did you object? MRS. SHEARER-Yes, we did. MR. SHEARER-Yes, we did. MRS. SHEARER-We objected it all the way along. MR. URRICO-Was it noted anywhere? MR. STONE-Did you appear? MR. SHEARER-Yes. We appeared at all the meetings. We appeared with the sanitation board, with the Zoning Board and with the Planning Board. MR. STONE-Okay. Anything else? MR. SHEARER-One of the other comments, maybe this doesn’t have to deal with it, it’s a 25 foot wide piece of property. Where is all the construction equipment going to reside? Where are all the workers going to park? That’s something that we have to work out with them. What’s my recourse? MR. STONE-You’ve made them aware of it. MR. SHEARER-We made them aware of it before, and Mr. Brown, did you receive an e-mail today? MR. BROWN-The secretary will read it. MR. SHEARER-In case you didn’t have it. MR. STONE-Okay. 42 (Queensbury ZBA Meeting 12/22/04) MR. SHEARER-Thank you. MR. STONE-Anybody else wishing to speak on this subject, this application? LEON SPATH MR. SPATH-I am Leon Spath. I have property south of Mr. White’s, but I am here basically in behalf of Barbara Tanis, who is their direct neighbor. This is information from Barb concerning the construction activities of the White residence at 52 and a half Russell Harris Road. To all interested parties, I, Barbara J. Tanis, wish for the following statement to be presented to all parties with an interest in and to be accepted into the official record of all proceedings concerned with the construction activities on the White property at 52 ½ Russell Harris Road, Cleverdale, New York. The timing of the current situation raises serious questions regarding the justification for any requests for changes to the existing construction plans. The Lake George area is replete with seasonal residents, such as mine, for which the residents are not in the local area during the winter season. It is a common practice for winter work to be done such that if the Planning Board or other agency becomes involved then interested neighboring parties will be unable to attend any meetings. This represents an unvarnished attempt to deny the neighboring parties their right to due process in protecting the interests of their properties. Given that the review of this project at this time is a result of inappropriate behavior on the part of the Whites and and/or their contractors, it is incumbent upon the agencies involved in the review to make a concerted effort for protecting the rights of all interested parties. It is my right to review all plans and proposals for this project prior to approval, and I am depending upon the governmental agencies to protect my rights. Two, if, indeed, action is taken approving changes to the previously agreed to construction plan using the rationale, well, we have already done this work, so just approve it, then the credibility of the Planning Board as a holder and trust to the people of Queensbury will be severely damaged. Three, the current situation regarding the excavation cannot remain in its present form. My house, which is a mere four feet from the edge of the excavation, is actually a camp. That is it has no substantial foundation but rather sits upon a collection of piers that rest upon the ground. Having a large excavation in close proximity presents a clear danger to the structural integrity of my home. Allowing the situation to remain in this state through a winter freeze and a thaw cycle could easily cause a catastrophic collapse of the wall of the excavation with my house following close behind. Four, another concern for the excavation is that it represents not only a danger to people, but also a death trap to any of the local fauna that may be unlucky enough to happen upon it, this will be especially true once covered with a layer of snow. Five, a boundary line agreement which is binding upon my property as well as the White’s requires that the shared path running between our property be kept clear and accessible at all times. The construction efforts have resulted in severe damage to the path, thus limiting access to my residence by the agents responsible for the winter maintenance of my home. To this end, I request the following actions be taken by the Town Planning Board, the Queensbury Town Planning Board, or any other agency of responsibility. Resolved that any decisions regarding the construction be tabled until on or after 1 April 2005. No significant construction can be accomplished over the next few months so the impact of this is minimal. This would, however, protect the due process rights from all the interested parties. Two, direct that the existing untenable situation of the excavation be rectified by it being completely filled. This will mitigate any existing danger without requiring new construction approval at this time. Three, direct that immediate repairs be made to restore the shared path in all the places where it has been disturbed by the existing construction. It is essential that my agents have access to my residence during the winter months. Four, direct the Whites and any of their contractors that they have absolutely no right or permission to trespass on my property and as such must completely confine any activities to their own premises. Barbara J. Tanis. Now some of these have been corrected. They’ve filled the excavation in. So we don’t have that problem, but these, this was a letter from Barb, and there is a picture here, and I have a couple of other personal comments. In all the hearings before, we heard, they didn’t know where the septic system was. They assumed it was under the back porch. That was always the comments up until I heard earlier tonight. Now I understand that they found it, dug it up, found a rotten top, and so excavated. I don’t think they’ve come to the septic tanks 43 (Queensbury ZBA Meeting 12/22/04) yet. The septic tank is still in their backyard. They have not excavated any septic tank, and they’ve excavated where the house was. I think was a ruse or an excuse just to remove the building, but that’s my own personal opinion, but I feel that Barb has a cause here, and that I can get in the camp, but I have to climb over the porch railing to do it. I’m anticipating her being back in 40 days, and she’s going to want to get in to her camp, and she’s not going to be able to do it unless something is done, but as far as the house plans, I can’t say anything there, except that extending it back, it’s not, the original plans, at the back of the house it was 104 inches. At the front of the house, it was 108 inches, which meant that it was not parallel. So as they’d extend that back on the same line, they are going to be coming closer to her property line. She may have something to say about that, but this is, it’s an open issue, and that’s the, we’ve got other problems there, but you, as a panel, and the Town, they don’t worry about, only the drainage that comes from the roof, and what they’ve got planned is not going to work. I don’t know who did the perc test on that property, but Jim knows it does not drain. It sits there, and he’s going to have a swimming pool in his back yard and a swimming pool in his front yard, and that’s the only thing I’ve got to say. Thank you. MR. STONE-Thank you. Anybody else wish to speak on this application? Mr. Salvador? JOHN SALVADOR, JR. MR. SALVADOR-My name is John Salvador. Seriously I think you should consider this an unbuildable situation. This project apparently has been before three Boards, and I think all three Boards have looked at a different project, for different reasons, at different stages of its development. Again, it’s the three blind men feeling the elephant. There was mention made of a shared sidewalk on the property line. Has that easement been mapped on the site plan? Because I think the building has to set back from the easement, not the property line. We’re required to map easements. MR. BROWN-Our zoning code setbacks are to the property line. MR. SALVADOR-How about with roads by use? MR. STONE-This is no road by use. MR. SALVADOR-Yes, I know. That’s an easement, too, Mr. Stone. Okay. Let’s be consistent. Let’s be consistent. The developer has not right to encroach on that easement. Okay, and so therefore you should set back from the easement. They can’t encroach on it for any reason other than to use it as a walkway. Construction or otherwise. The septic system. I cannot recall Appendix 75A making reference to being able to use a holding tank unless no other alternative was available. That’s new language as far as I’m concerned. MR. UNDERWOOD-Holding tanks are not allowed by the State of New York. We received a clear letter this summer in regards to that. You received it. You read it. You should know that, too. MR. ABBATE-Is that correct, Counsel? MS. RADNER-There was a letter from the Board of Health, basically indicating that. There has been situations, though, where the various towns can’t make reality jive with that, and the Town of Queensbury and other communities have granted holding tanks in areas where there is no other feasible alternative. So far there hasn’t been any legal decisive action. MR. STONE-All right. The Town Board of Health, but Mr. Salvador is talking about the language. Is the language in 75A? MS. RADNER-Yes. 44 (Queensbury ZBA Meeting 12/22/04) MR. SALVADOR-That language is not, that’s my point. That language that you heard from the County is not in Appendix 75A. MR. STONE-Okay. MR. SALVADOR-Now, that letter that you have from the Health Department, I’m very familiar with it. It goes on to say that, if, in fact, you think you have to permit holding tanks, then you need to apply to the New York State Department of Health for a waiver, and no one has done that. There’s a procedure. MR. ABBATE-Hang on for a second. It seems to me, in the back of my mind, that the New York State law also grants towns permission to waive, am I correct, am I wrong? MS. RADNER-I’d have to look it up to be certain. MR. ABBATE-I think I may be right. MS. RADNER-I don’t want to start quoting and citing law that’s not in front of me. MR. ABBATE-Okay. MR. SALVADOR-The only agency that can grant a waiver to their regulations is the agency itself. MR. ABBATE-I don’t have it in front of me. MR. MC NULTY-Nevertheless, this is a septic issue which this Board has no control over. MR. SALVADOR-I understand, Mr. McNulty. MR. MC NULTY-We’ve got nothing to do with septic systems, is what I’m saying. It’s entirely off the topic. MS. RADNER-Correct. MR. SALVADOR-The practical difficulties that this applicant is facing, with trying to build on this 25 foot wide or narrower lot, should preclude the granting of a variance. Thank you. MR. STONE-Thank you. Anybody else wishing to speak on this application? Correspondence? MR. MC NULTY-I find three pieces of correspondence. The first one is a short letter from Peter and Wendy Demboski. They say, “Please be advised, we are in receipt of your public hearing notice regarding the captioned applicants. Although we cannot attend the December 22, 2004 hearing, we believe the proposed project does not demonstrate an adverse impact on public health, safety, or welfare of the environment, neighborhood, or the natural resources of the lake. For the record, we approve the applicant’s construction.” And they show an address of 64 Russell Harris Road. Then we have what I believe was an e-mail from Heide Kallio, and she addressed this to Mr. Brown. She says, “As we discussed, the following are my concerns regarding the proposed construction on Russell Harris Road. 1. The right-of-way to our properties should no be blocked or restricted by the trucks and equipment used for the construction, and the major construction, which might cause disruption, should not occur during the summer season. 2. There must be no damage to trees or property on either side of the right-of-way, as the right-of-way passes through the middle of our (the Whites’ neighbors’) properties, nor should there be any adverse impact (drainage, erosion, etc.) as a result of this construction. 3. The actual structure should be acceptable to the immediate neighbors (Tanis and Shearer), as there is so little distance between their properties and the Whites. As I told you, my brother, Kenneth White, may have additional concerns. We have inherited the property at 50 Russell Harris Road, which belonged to my father, Robert K. White. I have 45 (Queensbury ZBA Meeting 12/22/04) included Ken as an addressee on this e-mail, as well as the Browns and Shearers, our immediate neighbors on Russell Harris Road. Thank you for taking these issues to the meeting this evening. Sincerely, Heidi Kallio” And then we have another note from Barbara J. Tanis, and she says “I am Barbara J. Tanis. My principal residence is 54 Russell Harris Road. This property abuts the south side of the White’s property. We each own 25’ of frontage on the lake. I have lived here, voted here, and made this my home since 1973. I am an eighty year old widow who is aghast at what has happened next door. This new neighbor recklessly had his livable home demolished and a 10’ hole dug for a basement larger than the original footprint. The original plans permitted a second floor to be added to the existing structure on the existing footprint. Nothing was approved for a basement. I resided here until Nov. 15 this year and th watched this demolition and digging of this hole. Nowhere were any permits displayed showing permission to do this. There is a deeded agreement between our properties relative to the use and maintenance of the common pathway between our houses. It prohibits the Whites from any interference or changes to this 3’ wide pathway. The macadam pathway is now cracked and in one place I have only one foot of macadam to access the main entrance to my house. I’ve always been of the understanding that if a homeowner removes a structure entirely that this triggers, automatically, that now one has to meet current Codes and setback restrictions. If this is so, I protest that any variance be granted or permitted. This property is too small to handle grandiose construction. I feel the Whites deliberately ignored the original approved plans, thumbed their noses at the Town Board and their neighbors by irresponsibly demolishing their old house and footprint. I’ve tried to be a good neighbor but now I feel stepped on. I feel the letter of the law should be mandated and followed. They deliberately flaunted all of us, Town Board included, with doing their own thing and should not rewarded by approval at this late date. This 25’ piece of land should now be considered unbuildable. I have appointed Leon Spath Power of Attorney to protect my property in my absence. I will be returning by Feb. 2005 and hope I will have full access to my home. Thank you. Barbara J. Tanis” MR. STONE-Anything else? MR. MC NULTY-That’s all I find. MR. STONE-Okay. Let me close the public hearing. PUBLIC HEARING CLOSED MR. O'CONNOR-Okay. I think the applicant, and he can speak for himself, fully apologizes if he has infringed on any neighboring property. He obviously has hired contractors to do this. They have general liability coverage. If we’ve done damage to anybody’s property or if we do damage to anybody’s property during this process, we are liable for that, and I will make that as part of public record. Unfortunately, you get off onto a lot of facts that may or may not be correct, and I don’t think intentionally. The approval that was given in July of 2003 was conditioned upon the fact, the setbacks were measured to the structure, and it was conditioned upon the eaves not being in excess of one foot, which is what they’re shown on the plans that were approved by the Town for the building permit. The issue of drainage was before the Planning Board as part of the site plan review. You actually have a stormwater management plan that we submitted. By moving the structure 10 feet, we actually improve that drainage, or can improve that drainage. We had a shallow retention area down in the front, and we had a retention area, I think, on the back side. We now have a bigger area by moving the camp back 10 feet for that retention area, but given the flows that you, this is a small building. The footprint of this building is still 960 square feet or something close to that. We can adequately take care of the drainage. I made a misstatement, and I was corrected in part, okay. The building on the first floor, as we propose it, is no larger than the building that was there that we tore down. The building on the second floor that we propose is, I think, one foot wider toward the back end. When we proposed it, and we had a long meeting the first night that we were here for this variance, we had proposed a regular rectangular building, and as part of the discussions with the neighbors, trying to make something work, we said that we would not make that rectangular all the way to the ground, which was our intention to the back of that 46 (Queensbury ZBA Meeting 12/22/04) building. We said that we would have that indentation. We would have what the call a cantilever on the second floor in the back on the south side, and that’s still what we propose. As I understand it, the building that we propose is identical to the building that we proposed in July of 2003. It’s the same size lot. The only difference is we’re moving it 10 feet further back from the lake, or 11 feet back from the lake. I apologize. We did, and there are minutes. I see somebody looking. I’ve got the Planning Board minutes. We talked about, at that time, that we were trying to find out if we could use the existing septic system. We talked about the septic system. We said it’s under the back part of the building. That’s how we got into the discussion, well, you’re going to remove the septic system, aren’t you? And then that’s when it became obvious that we were going to have to remove the back part of the building, and those minutes speak for themselves. As far as timing of construction, some place somebody, one of the Boards said, now you’re not going to do this in the middle of the summer are you, and we said, no, we’ll do it after Labor Day, and that’s when we scheduled it. That’s when we got the building permit. As far as leaving an open dangerous excavation, we had planned to put the foundation back in that week. We would have a foundation there and probably have the building up by now, except for the fact that we have a Stop Work Order. So, it’s a small lot. We acknowledged that when we came in the first time. We tried to accommodate everybody to the extent that we could accommodate everybody. As far as where our construction work, park, we know they can’t park on other people’s property. We had that discussion. We even had the discussion, I think, with the Planning Board, well, what about the concrete trucks when they’re there pouring concrete, and if you had an emergency, and I think everybody finally agreed that, you know, that’s something that’s going to take place in a day, maybe a half a day, and that’s where we left that issue. MR. BRYANT-When you first came in, basically you were looking for a second floor on an existing structure? MR. O'CONNOR-Correct. MR. BRYANT-That was one issue. Grant you you do have an extremely small lot, and some of them have said it’s unbuildable, but in reality, we can’t deny your use of your own lot, but now that the building is torn down, the question is, can we do something with the design to eliminate some of the relief you’re requesting? I mean, can we make the building slightly narrower? I mean, it’s narrow now, but, I mean. MR. O'CONNOR-If you take a look at the floor plans. MR. BRYANT-It’s 18 feet wide. MR. O'CONNOR-The rooms are walk side by side in them. The bedrooms are, this is going to be used. It’s not going to be a permanent residence. It’s going to be used, I mean, in the sense it’s not like. MR. BRYANT-I’m just asking a question, hypothetical. MR. O'CONNOR-We thought that we did everything we could. We had proposed to go higher. We had had a, I can’t remember all the different alternatives that we talked about when we came in here the first time, but this seemed to be the least that we could put on there and make it a reasonable use of that property. MR. BRYANT-See, when I was young, I lived in Manhattan, and they had these things called railroad apartments. There were no rooms side by side. One room was in front of the next room, was in front of the next room, and that’s how the apartment was built. So, I mean, I’m just asking a question. MR. O'CONNOR-The one suggestion I had, since we got back into this thing, part of the comment by Staff was that we’ve got these steps, and that may be something. 47 (Queensbury ZBA Meeting 12/22/04) MR. ABBATE-Right, two feet five inches. MR. O'CONNOR-There are side steps here, which brings it, this is what brings us so close to that thing. We’re moving the whole structure back 11 feet. If we would be allowed to put those steps in the front of it, we could increase the setback from that side, and maybe open up that walkway. We understand that we’ve got to fully restore that macadam to whatever it was prior to the excavation. There is a walkway down there that’s a shared walkway. MR. URRICO-There was also concern, when you came before us the first time, about the eaves of the house extending over the property line. MR. O'CONNOR-But they won’t with one foot eaves, or less. MR. URRICO-They are going to be one foot eaves? MR. O’CONNOR-That was a condition that you put on us. MR. URRICO-Yes. MR. O'CONNOR-And that’s what they are. So I don’t know, Craig, if that would require something different than them telling us to move those stairs, but that’s the one area that I thought, there’s no other entrance to the front of this house. There’s not a side entrance or something like that, so you could do away with them. MR. STONE-So what you’re saying is, we had granted you relief from the lake, originally, because you were there. MR. O'CONNOR-Yes, you had. MR. STONE-And you’d like to take back some of that. MR. O'CONNOR-Well, I tried to make this as conforming, you asked the question, are there reasonable alternatives that you can explore, and we tried to explore the alternatives, and one of the alternatives was put the house back 10 feet, but putting the house back 10 feet I kind of ignored those steps. That was another area that we might have improved. If I had noticed it at that time, I would have said, we’ll put the house back 10 feet, but we’ll put the steps in the front, and that would open up a little bit of space down through there, and that might be a site improvement. MR. ABBATE-That’s a feasible alternative, by taking those steps off of the sidewalk, if you will, and putting them in the front. MR. STONE-How deep would the steps be? MR. O'CONNOR-The steps there are. MR. ABBATE-Two feet five inches is what you initially said. MR. O'CONNOR-So we would encroach on the front setback two feet, five inches. The other house it’s shown right here. So if we can open up that, that would be an improvement. MR. STONE-But isn’t that the offending structure on that side? MR. O'CONNOR-Yes, that’s the closest piece. Yes. That would save us two or three feet in a variance. 48 (Queensbury ZBA Meeting 12/22/04) MR. ABBATE-All right, now, Counselor, make sure I’m right now. So a feasible alternative would then be to take the steps, moving them in front, which would eliminate that problem on the side, and then put a restriction that the eaves would be one foot or less. MR. O'CONNOR-Yes. MR. ABBATE-And that would be acceptable to your clients? MR. O'CONNOR-Yes, it is. MR. ABBATE-And that would be a feasible alternative. MR. BRYANT-You’d have to then have relief for the lakefront, right? MR. ABBATE-I didn’t get to that yet. Yes. MR. STONE-Yes. MR. O'CONNOR-We’d like to do that. If you get us too far back in, we’re going to be in a tunnel. If you really tell us that we’ve got to shove it back another two and a half feet, you know, we’re not going to, we’ve got a serious problem here, and we’re trying to be reasonable in resolving it. I mean, they had a summer home there that they went and got a permit to replace, and now all of a sudden we’re back before you. MR. BRYANT-I want to ask you another question about the overhang. You said it’s a foot on this side here. That’s where the toilets are and the bathrooms are on the second floor, basically? The second floor overhangs? MR. HOLMES-What we had proposed was a two foot cantilever. MR. BRYANT-Yes. It’s two foot. It shows here two foot. Somebody mentioned a foot. So it’s two foot, actually. MR. O'CONNOR-It’s right here. Yes. MR. BRYANT-And that’s an absolutely must have? MR. O'CONNOR-They objected to it because it was near the side door. As we shove this back, it becomes even less important. It’s further away. It’s not next to their side door. It gives us a reason, we’re going to have, we’re not going to have full ceilings, right, in the second floor? MR. HOLMES-Right. One of the negotiations we had was knee walls for the second story to lower the overall height of the building. That was one of the conditions that, the last time around, that we had agreed to when you made it part of the condition of the approval. MR. O'CONNOR-With the knee walls, and without the cantilever, you end up with nothing, inside dimensions. MR. BRYANT-How does that overhang compare to the original footprint of the building? MR. O'CONNOR-It extends the side line backwards equal. MR. BRYANT-It’s still even with the original footprint? MR. O'CONNOR-Yes, it’s even with what the front was. You can see it right in this dotted area right here. MR. BRYANT-That was the original footprint, that dotted area? 49 (Queensbury ZBA Meeting 12/22/04) MR. O'CONNOR-On the front. There was a jog in the existing footprint. The second floor, which is new above it, did not have the jog. It followed the line directly back from the lake. JAMES WHITE MR. WHITE-Which was all negotiated between the neighbors and us, and we lowered the roofline and tried to comply as much as possible. In the new plans that we had approved, we lowered the roofline again another almost another foot. MR. O'CONNOR-We had a full, I apologize, I should have brought the old. We had a full second story on this property, which I think ended up with a 28 foot height, and we brought it down to 25 feet by making the pitch shallower on the roof and putting knee walls in, which we’d lose some space on the second floor, and they actually, when they went and did the plans, came out with 24’ 10”. So they gave up another 10 inches. MR. URRICO-You had 27’ 8” originally, and then that got cut back to 25’ 8”. MR. O'CONNOR-Okay. MR. HOLMES-And the actual building plans, it’s 24’ 10”. MR. STONE-Everybody got all their questions answered? All right. Let’s talk about it. Let’s start with Jaime. MR. HAYES-Well, I certainly understand the neighbors’ concerns in this particular matter, and obviously the encroachments that happened, or may have happened, they’re understandable as well, but that’s not really part of our test. I was in favor of this application initially, largely because when I looked at the balancing test, in this particular case, one percent of Floor Area Ratio relief that was being requested was new, and I guess compared to the old camp, and I just didn’t think that that was a big percentage of relief that we were being asked to accept, as compared with the benefit to the applicant of recycling this camp, recycling this property. One of the considerations that I put into my calculations when I went up there and visited the site was is that the camp needed to be improved or recycled or in this case that’s now being rebuilt. There was some action that I would have wanted to see if I lived next door, I mean, as far as, what’s the impact on the neighborhood or community. I think that what’s been proposed here is going to be an improvement to the neighborhood and community. So, you know, as I balance those things, the dimensional relief that was being requested was the same dimensional relief that was there before, essentially. So there was no change in that. So we were going to have a new camp, this was before, the same setback relief with the various other improvements to the site, and I just didn’t think that one percent of Floor Area Ratio was enough to trouble me, versus what was the benefit to the applicant or the neighborhood in this particular case. Now the applicant is in a difficult circumstance, but what impresses me is that now on top of a recycled camp, we’re going to have a new septic system, and we’re going to have a new septic system, and we’re back 11 feet more from the lake. So, I mean, those are big things. In balancing the test, well, I shouldn’t say a system, sorry, John. MR. SALVADOR-No, it’s been expressly stated that a holding tank is not a system. MR. STONE-Yes, we understand. MR. HAYES-I should say, yes, we’re having a septic arrangement that’s going to be approved by government bodies and with proper engineering, and I guess that’s how I should say it, whereas before I think it’s safe to say that the Planning Board and myself would certainly be concerned about what real engineering was with that old system, and what the benefits to the neighborhood and community were of that. Probably not at all. So, on balance, as I look at the plan that’s been presented to us now, it’s better than it was before. I certainly was in favor of it then, using the balancing test that we apply, and now I think there’s actually been a couple of 50 (Queensbury ZBA Meeting 12/22/04) new elements that have been added that actually prove in favor of the applicant, and I’d also like to point out that if the Planning Board reviewed this and asked for some changes, had certain concerns that are in their rubric and they asked the Whites to act upon those, I find it difficult, as a parallel Board, or a Board of the same jurisdiction, for us now to find them acting upon those at somehow a negative or something that we’re holding against them. I think that’s putting applicants in a precarious position, as they go through the planning and construction process. So, on balance, using the Area Variance test that we used, I just don’t think that, in the end, that the feasible alternatives are limited. I don’t think the relief is, the new relief, if you will, is substantial, compared to the Ordinance, and I think there’s going to be a positive impact on the physical or the environmental conditions in the neighborhood, once the construction is done. Certainly not while it’s being constructed, but once the construction is done. So, as before, I’m in favor. MR. STONE-Chuck? MR. MC NULTY-I believe I was in favor before, too, and I think, really, there’s no point in revisiting all the approvals and arguments that we had before. We approved this before, with the concessions that the applicant made. Now they’re proposing to move the thing 11 feet back further from the lake, which is certainly good. MR. STONE-Eight and a half. That’s the proposal on the table. MR. MC NULTY-Right, once you move the steps around, but we’re only talking about steps and porch type thing into the setback. So we’ve gained substantially on the setback from the lake. As Mr. Hayes has mentioned, we’ve gained on the septic situation, and yes, if this had always been a vacant lot, I might be inclined to say, okay, it’s unbuildable, but it hasn’t been a vacant lot. It’s been in use, and there are other similar lots near it. So, absent saying that everybody else in that immediate area can never rebuild their camp if it falls down, it’s not fair to say the applicants can rebuild here. So, having said all that, I think the benefit to the applicant is going to outweigh detriment to the neighborhood. I think actually we’ll end up with an improvement because we’re going to have a better looking camp. They’ve heard the concerns about construction, so they can take extra steps to lean on their builders to be careful about their neighbors. So, all considered, I’d be in favor. MR. STONE-Jim? MR. UNDERWOOD-I’ll read what the letter, basically from the State of New York, says in regard to the septic system and the use of holding tanks. The issue of holding tanks came up early in ’98, ’97 and ’98 when the Morse property Assembly Point, and again, I’m quoting Mr. Salvador here, to this end our Town Attorney was requested by the Town Board to initiate an inquiry to the Local Board of Health to the District Office of the New York State Department of Health. Mark Schachner received this reply from the District Director concerning holding tanks, and I’ll read you a few sentences from the reply. On behalf of the Queensbury Town Board, you wrote a letter to the Department, under the date of April 30, 1998, requesting the Department of Health to authorize the Town of Queensbury to allow the use of holding tanks in certain situations deemed appropriate pursuant to Town Code, local laws or Ordinances, Section 10 of New York State Conservation RR Appendix 75A entitled “Wastewater Treatment Standards Individual Household Systems” contains the minimum standards for the design and construction of new individual household wastewater systems. Those standards clearly indicate that holding tanks are not acceptable for long term use on year round residences, and for new home construction. When an existing sub surface wastewater treatment system fails, and site conditions are unsuitable for construction of a replacement system, local officials may authorize installation of a holding tank to address the problem. This does not say that we can support the development expansion using a holding tank. So I think it clearly states that the Town was flawed in their judgment in regards to the issuance of a permit for holding tanks on that property, and, you know, we based our judgment the last time on the fact, and after the fact we also received that letter from the State of New York which said if a lot cannot support a system, then it’s an unbuildable lot. So I would have to agree with that train of thought, and I 51 (Queensbury ZBA Meeting 12/22/04) would think that the State of New York, if they get a hold of this, is probably going to tell you that you’re going to have a problem. My suggestion would be the fact that you also have four adjacent houses on similar 25 foot lots, and for them to, in the future, build and re-do theirs and put holding tanks in would be a flawed decision. I think that you could do something regarding a group system on the property that would handle the wastewater treatment from all those, but I think that, you know, for you to assume that a holding tank is a usable device for a new expansion is wrong. So I can’t support it. MR. STONE-You can’t support this. MR. UNDERWOOD-No. MR. STONE-Okay. Chuck? MR. ABBATE-Okay. Thank you. Well, as odd as it sounds, I’d like to echo Jaime’s views as well as Jim’s views. I’m not so sure, this evening, that the holding tank is on the agenda. Counsel, am I correct in that statement? MS. RADNER-Correct. MR. ABBATE-Okay. So in echoing Jim’s position, while I may basically agree with him, it’s not on the agenda this evening. So, having said that, let me then continue. The neighbors certainly have a right to express their points of view. Certainly the applicant has a right to use his property. It’s my opinion that there have been a couple of concessions this evening by the applicant, and one of the concessions is that the eaves would be one foot or less, and the second concession would be that the stairs would be removed from the side of the building and put in another area. Is that correct? MR. O'CONNOR-Put to the front. MR. ABBATE-And the applicant would agree to those stipulations? MR. O'CONNOR-Yes. MR. ABBATE-Yes. Okay. MR. O'CONNOR-We would like to have the shoreline variance of 2.5 feet to do that. MR. ABBATE-Yes, that’s correct. Okay. Let me just rephrase this a little bit. In order for the applicant to come up with the second feasible alternative by moving the stairs, they would require two feet five inches. MR. BRYANT-I don’t know if they can do that because it wasn’t advertised for that type of setback. MR. O'CONNOR-We can come back. We’ll come back if we have to. MR. BRYANT-That’s a technical question. In the advertisement, you advertised for Floor Area Ratio and two side setbacks. You didn’t advertise for shoreline setbacks. MR. STONE-Yes, you’re right. MR. HAYES-Didn’t you advertise for dimensional relief, though? MR. BROWN-Well, we did specifically pick types of relief, not dimensional numbers. I think you have to weigh, you know, do we need to re-advertise this? I mean, if you feel comfortable that we have any affected or potentially aggrieved parties here, we have neighbors or 52 (Queensbury ZBA Meeting 12/22/04) representatives for neighbors here. They’re hearing this information. If you want to get comment from them and go forward with this offer. I think that’s reasonable. MR. ABBATE-Okay. The two alternatives that the applicant has agreed to, eaves one foot or less, and the stairs being removed, which still would require a two foot five inches, certainly I think the public is invited to comment and see if they’re comfortable with this kind of thing. Based upon all of this, Mr. Chairman, I would be in favor of the application. MR. STONE-All right. Allan? MR. BRYANT-Understandably, there’s not much you’re going to be able to do with the side setbacks. I’m just wondering if we couldn’t have done something with the Floor Area Ratio. I mean, you’ve got a great room in there, which is pretty sizeable. Then you’ve got a screen porch, and you’ve got all these other amenities for a camp, and, you know, once the building is torn down, all bets are off. So, it’s like you’ve started from scratch, and I’m just wondering if we couldn’t have done something with the design to maybe alleviate that Floor Area Ratio request. MR. O'CONNOR-I don’t think the impact of it is significant. I understand the principle of what you’re saying, but you’re actually talking 66 square feet. We have a set of building plans. We’ve got a contract with a builder. We’ve got a building permit, all in accordance with, unfortunately, the 1.1 relief. That’s probably more significant, or as significant to us at this point, as the 66 feet. If we were restarting all over again and doing the design thing, I think some people have said, and I think we have a concern, too, we want to get back into the ground. We want to have the walls back in place which will, in effect, be retaining walls, so we don’t end up with a problem. I don’t know how long some of you have been on the Board, but I remember the problem on Glen Lake. They did an excavation, and they stopped the excavation. The next thing you know, both side properties were in the excavation. MR. BRYANT-Well, anyway, getting back to my comments, I’m just concerned, okay, I’m concerned that maybe we just didn’t do enough to think this through, having had these problems with the demolition and so forth and so on. I recognize that you have a difficult situation and there’s not much you’re going to be able to do with the side setbacks, and you’ve been very cooperative on moving the building back to the stairs and so forth and so on. I’m just thinking out loud. So, that’s my comment, Mr. Chairman. MR. STONE-How would you vote? MR. BRYANT-How about if I say I’m on the fence. MR. STONE-Good. That’s fine. Okay. Roy? MR. URRICO-I am basically in agreement with Jaime and the two Chucks, for the reasons they gave, because at the end of the day, I think what we have is basically the same project we approved several months ago, even though it’s changed, in terms of it being an addition rather than a whole re-build, but the reliefs are similar, very close. In some cases they’re actually, we’ve gained something that we didn’t have before, which is relief from the shoreline, but I’d also like to emphasize two things. One, the eaves not be greater than one foot. That was something that we agreed to the first time. I want to make sure that it’s in there again. I also, the first time I was concerned about the neighbors being impacted, and it seems like, and tried to minimize the impact, and it seems like that has not been done, and that’s a concern of mine right now, and one third thing is that the Town also reconsider the zoning of this area, or 1 R 1 Acre an area that will never be one acre lots, I think creates an unusual problem. We have substandard lots here, and therefore all the relief is proportionately greater, and the impact is proportionally greater than a similar lot in a different location. So I would just say I would be in favor of it, but there are concerns that we still have to keep an eye on, and I hope that, in construction, that will be considered. 53 (Queensbury ZBA Meeting 12/22/04) MR. STONE-Well, I basically agree with Jaime, Paul, Mr. Hayes, however we want to say it. This is a constrained lot. There’s no question about it. I believe the applicant has done a very good job in trying to fit this, replace the property that was there. I mean, that’s the, I think the key thing. I’ve heard a lot from the neighbors about what happens between now and when the key is turned in the lock, and I think the applicant and his Counsel and his engineer hear this, and the neighbors are going to be watching. They’re going to be watching to make sure that there’s no encroachment on their land while this thing is being built, and all of that thing, and yet I haven’t heard anybody say, it’s too close to the line for when it’s up, and we didn’t hear it the last time, to the best of my knowledge. So I think, on balance, this certainly is a lot that the applicant bought in good faith, bought a house in good faith, tried to make it a little bit larger, found out they couldn’t, and so they’re doing the best they can, and they’re seeking, in a sense, minimal relief for a lot that is so small. I am not, I don’t agree with Mr. Urrico that we should rezone lakefront for anything less than one acre. I, too, recognize that very few lots conform, but one of the concerns that has been expressed about lakefront property is that if we give any relief to the zoning, we’re going to have more homes rather than less, and I think that’s a concern, and that’s talked about with sewers and everything else. So I would like to see it at 1A and will do my best to keep it there. However, I think this is a good thing. I should express, make comment, about the encroachment closer to the lake. Normally I would say no, but we are going from 40 feet to, I guess we’re saying two and a half feet. So we’re going to 47 and a half feet, compared to where it was before. So that’s, it’s certainly better, as far as setback from the lake is concerned. The one thing I need to ask of Staff, if, in fact, we are going to be move that the stairs be placed on the front, we need a side setback relief number. MR. HAYES-A rear setback, lakefront. MR. STONE-No, lakefront we got. It’s two and a half feet, but where the steps are on the plan, and they’re the offending structure. MR. BRYANT-He said he’d move the building back two and a half feet. That wasn’t an issue. MR. STONE-No, no. MR. MC NULTY-He’s talking about side setback. MR. BRYANT-Yes, but you’re not requesting shoreline setback now. MR. STONE-Yes. MR. BRYANT-No, you’re not requesting it, because he said he’d move the building back. MR. O'CONNOR-I said I’d like shoreline relief. If you really think that strongly that that’s an issue. MR. BRYANT-Yes, that would be a downer for me. MR. STONE-Okay. I heard him say that two and a half feet closer to the lake and I didn’t hear any serious objections. If you’re objecting, fine. MR. BRYANT-Well, you have neighbors here that object to the project. It wasn’t advertised. MR. STONE-Okay. No, I hear you. MR. BRYANT-You’re opening up a whole bag of worms. MR. STONE-You bring up a good point. MR. O'CONNOR-The steps will go parallel to the house. That’s okay. The steps go parallel. They don’t go out. It’s not like a grand entrance. 54 (Queensbury ZBA Meeting 12/22/04) MR. BROWN-They’re going around the lakeside of the house. MR. O'CONNOR-The steps will go, it’ll be a two and a half foot landing in front of the house, and it’ll be down the side. MR. BROWN-Okay. MR. O'CONNOR-It’ll be towards one of the sides, the steps. MR. BROWN-Okay. MR. STONE-What do you mean, it’ll be on the side of the house, but in front? MR. O'CONNOR-No, no. MR. STONE-You’re just going the other way. MR. O'CONNOR-Yes. MR. BRYANT-Let’s go back a minute because in the Staff notes, he addresses the stairs. So he’s saying the actual request is. MR. O'CONNOR-If you take 2.5 out, you’re talking 7.2 on that side. MR. STONE-You’re talking about putting the stairs lakeside? MR. O'CONNOR-Yes. MR. BROWN-Yes. MR. STONE-Yes, not on the side there. MR. O'CONNOR-Right. MR. STONE-So that’s what I’m saying, and right now the stairs, I know, Al, we’ve got the problem, and I’m going to get an opinion on that shortly, but if we move those stairs, the side setback requirement is less. MR. BRYANT-Yes, it becomes. MR. STONE-The relief is less. MR. BRYANT-The setback of 5’ 7”. It says that in the Staff notes. MR. STONE-No, it doesn’t. MR. HAYES-On the south side. MR. STONE-It’s going to go down from 9’ 7” relief to something less than that. MR. BRYANT-However, the small deck above the stairs on the south side. So it’s going to be 5’ 7”. MR. MC NULTY-What he was saying is it was 5’ 7” before the stairs were considered. The stairs are 2’ 5”. MR. HAYES-If we move the stairs, we’ve just got to get the motion right. 55 (Queensbury ZBA Meeting 12/22/04) MR. STONE-We’ve got to get the motion, that’s all I’m talking about. MR. O'CONNOR-Okay. No lakeshore setback relief. The south side, our dimensional requirement, then, is 5.7, is the nearest point to it. So we needed 12 feet. MR. STONE-So you’re moving the whole house back two and a half feet. Is that what you just said? MR. O'CONNOR-Yes. We’re trying to, we have space to do that. MR. STONE-Okay. So what we now have is a house that the closest point to the lake is still 50 feet, but that will be made up of the stairs. MR. O'CONNOR-The south side relief that we’re requesting, then, would be six feet five inches. MR. STONE-Do you agree, Craig? MR. BROWN-I think so. MR. STONE-Okay. All right. MR. O'CONNOR-And the north side relief that we are requesting. MR. STONE-Is 10’ 4”. MR. O'CONNOR-Is ten feet four inches. MR. STONE-Right. MR. HAYES-That’s unchanged. MR. O'CONNOR-That’s unchanged. MR. STONE-And the 50 is unchanged because it’s going to be 50 feet. The house will be moved a little further back. Okay. I need a motion to approve. MOTION TO APPROVE AREA VARIANCE NO. 96-2004 JAMES AND NANCY WHITE, Introduced by Paul Hayes who moved for its adoption, seconded by Roy Urrico: 52 ½ Russell Harris Road, Cleverdale. In this case, the applicant has demolished a 990 square foot one story dwelling and proposes to construct a 1,498 square foot two-story single-family dwelling. Specifically, the applicant is requesting 10 feet 4 inches of side setback relief on the north side of the building, and 6 feet 5 inches of relief on the south side of the building from the 12-foot minimum requirement. They’re also requesting 69.76 square feet of relief from the 22% maximum Floor Area Ratio requirement. The proposed Floor Area Ratio for this structure is 23.07. All these are for the WR-1A zone per Section 179-4-030. The applicant agrees to incorporate the six conditions that were requested of them by the Planning Board in their approval of July 22, 2003, as follows: That applicant will provide and install signage to reasonably ensure that construction equipment, vehicles or supplies will avoid blocking or encumbering Russell Harris Road access pad or parking area used by adjacent landowners to the extent that it’s reasonable and practicable. That roof eaves will be guttered and drained directed towards the retention basins. That all final submitted worksheets and plans will be updated to reflect the most recent changes. That a full basement, if built, would not be used for living space. That no exterior construction will occur between Memorial Day and Labor Day. That the chain link fence along the southern property line will remain during construction. In the relief that’s requested, we have been also asked and so stipulate that the requirements set forth by Mr. O’Connor, that were requested by the Planning Board for the construction of this 56 (Queensbury ZBA Meeting 12/22/04) property be incorporated permanently into this motion. They are referred to, accessible in Site Plan 40-2003. As to the criteria associated with an Area Variance, I think in this particular case, feasible alternatives are limited. It’s a small lot but it is a lot that has had a camp or a home on the lot, as has been pointed out by Board members in the past. It is also a home or a configuration of the lot that is not dissimilar to other camps or homes in the immediate area. Is the relief substantial relative to the Ordinance? I don’t think it is, in the sense that basically, with the expansion, we’re being asked for basically slightly over a one percent increase in the Floor Area Ratio for a total of 70 square feet. I do not find that to be consequential to the extent that it changes the balance of the test in this particular case. The dimensional relief, as to the north and side setbacks, are being maintained as they are now. So there’s no further encroachment into the setbacks by the construction of the proposed project. I’m in favor of the application, or I think the test falls in favor of the applicant, largely because I think the changes proposed with the new camp, the new septic arrangement, and the complete compliance with the shoreline setback being proposed by the new construction, I think that the actual impact on the physical or environmental conditions in the neighborhood will actually improve. There was an older camp at this particular site. This would be a new home. It would be compliant with energy and other systems. Therefore, I think that, and I think the benefit to the applicant is, as set forth by their presentation, that this camp will be more usable, and it’ll be a better facility than the one that was there, historically. Looking at that criteria, I think that the test falls in favor of the applicant and I would move for its approval. I also would like to add to the relief that I requested, in case it wasn’t so noted, that the eaves will be a foot or less and they will not encroach on the neighbor’s property, in this particular case, and Counsel has stipulated that’s part of their application. Duly adopted this 22 day of December, 2004, by the following vote: nd AYES: Mr. Bryant, Mr. Abbate, Mr. McNulty, Mr. Hayes, Mr. Urrico, Mr. Stone NOES: Mr. Underwood MR. STONE-There you go. MR. O'CONNOR-We thank you. I thank you on behalf of the applicant. We are going to try and do a better job with the neighbors, and I assure you of that. The other comment I’d make to you is, earlier on you were struggling with the Floor Area Ratio definition of living space. Take a look at your, and I know you’re keeping a hot list of things to change. Take a look at your definition of Adirondack Park Agency Act, and in there you say a particular section of the law, including any future amendments thereto. You ought to stick that language on any provision here that refers to the New York State Building Code, any future amendments thereto or replacements thereof, and you wouldn’t get into all that issue that you had. MR. STONE-Good. Thank you. AUDIENCE MEMBER-Had they originally asked for a new build (lost words). MR. STONE-We can’t comment on that. AUDIENCE MEMBER-I just want you to think about that. If they had originally asked for that. MR. STONE-Well, we already said a new building on an empty lot. AUDIENCE MEMBER-Well, no, if they had asked for just a reconstruction. We’re going to tear it down and build it, not on an empty lot, and, Number Two, and I don’t know this, I was under the impression that (lost words). Is that true? MR. BRYANT-We’re still in a meeting, Mr. Chairman. 57 (Queensbury ZBA Meeting 12/22/04) MR. STONE-Okay. We have some business before us. Okay. We have been asked to organize for 2005, by the election of a Chairman, Vice Chairman, and Secretary. Now, am I correct, Cathi, that only the seven seating would vote? MS. RADNER-I believe so, but again, I don’t have your policies here in front of me. MR. STONE-It’s something I never thought about. MR. BROWN-Yes, the Zoning Board doesn’t have a formal policies and procedures like the Planning Board does, but the alternate members are to fill in in case of an absence of a regular member. So in cases like this, you want to have the regular members do this. MR. STONE-Okay. I will open nominations for the Chairman, who will serve at the pleasure of the Town Board. Chairman Mr. Bryant nominated Mr. Hayes for Chairman Mr. McNulty nominated Mr. Stone for Chairman Vote for Mr. Hayes as Chairman AYES: Mr. Underwood, Mr. Abbate, Mr. Bryant, Mr. Hayes NOES: Mr. Urrico, Mr. Stone, Mr. McNulty Vote for Mr. Stone as Chairman AYES: Mr. Urrico, Mr. McNulty, Mr. Stone NOES: Mr. Underwood, Mr. Abbate, Mr. Bryant, Mr. Hayes MR. HAYES HAS BEEN VOTED AS CHAIRMAN OF THE ZONING BOARD FOR THE YEAR 2005. MR. STONE-I would like to make a statement, that I will take this as a vote of no confidence and I will seriously consider resigning from the Board. I’ve made a decision, but I will seriously consider it. Thank you. I need nominations for Vice Chairman. Vice Chairman Mr. Bryant nominated Mr. Abbate for Vice Chairman Mr. McNulty nominated Mr. Urrico for Vice Chairman Mr. Urrico declined the nomination for position of Vice Chairman Vote for Mr. Abbate as Vice Chairman AYES: Mr. Underwood, Mr. Bryant, Mr. Urrico, Mr. Hayes, Mr. Abbate NOES: Mr. Stone, Mr. McNulty MR. ABBATE HAS BEEN VOTED AS VICE CHAIRMAN OF THE ZONING BOARD FOR THE YEAR 2005. Secretary Mr. Abbate nominated Mr. Underwood for Secretary Mr. Underwood declined the nomination for position of Secretary Mr. Urrico nominated Mr. McNulty for Secretary 58 (Queensbury ZBA Meeting 12/22/04) Vote for Mr. McNulty as Secretary AYES: Mr. Underwood, Mr. Abbate, Mr. Bryant, Mr. Urrico, Mr. Hayes, Mr. Stone, Mr. McNulty NOES: None MR. MCNULTY HAS BEEN VOTED AS SECRETARY OF THE ZONING BOARD FOR THE YEAR 2005. MR. STONE-Okay. Those will be, the Chairman will be sent to the Town Board for their approval. MR. BRYANT-Mr. Chairman, I want to make a statement. MR. STONE-You may make a statement. MR. BRYANT-Relative to your statement. I said this last year, and it had nothing to do with your activity or the way you conducted the meeting. I felt, I’ve been on the Board five years, and you’ve been the Chairman. So it’s time to have another person sitting there in the Chairman seat. It has nothing to do with your performance. MR. STONE-Thank you. MR. BRYANT-Okay. MR. UNDERWOOD-I would second that, too. MR. ABBATE-Yes. I have a statement, too. MR. STONE-Okay. I appreciate that, but I had to make the statement I made, before you made these statements, because that’s what I felt, and I thank you for your comments. MR. ABBATE-And my statement that I’d like to make is this, that I believe that all members of the Board should have an opportunity to be placed in the position of leadership. I think it’s healthy for the Board and I think it’s healthy for the Town, and if it were up to me, there would be a one year limitation on the Board, and it would follow in succession, similar to the military, according to seniority, and quite frankly, I think that would solve a lot of the problems, but it’s nothing personal Lew, you’re out. MR. BRYANT-Is that all our business, Mr. Chairman? MR. STONE-Anything else before the Board? We’re adjourned. Respectfully Submitted, Lewis Stone, Chairman 59