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1978-12-27 SP 3 9:1 Official Minutes of the Queensbury Zoning Board of Appeals Special Meeting held December 27, 1978 at 7:30 P. M. Members Present: Absent: Kirkham Cornwell, Chairman Ted Turner Sjoerdje Richardson Charles Sicard Alfred Franco A. Mather Reed George Kurosaka, Jr. Staff: Stephen F. Lynn Variance #602 - Robert Lefebvre Dixon Road R-4 Zone Variance to place Data Processing Service Center and rental of unused space for office or store rental in a preexisting, nonconforming use in R-4 Zone on the property situated at Dixon Road. This variance was tabled at the Regular Meeting December 20, 1978 to this Special Meeting to obtain a legal interpretation from Town Counsel. Copy of his findings attached. Motion by C. Sicard seconded by K. Cornwell to grant this variance '......-- with the following restrictions: 1. Drape front windows so as to contain the light within. 2. Remove existing signs and structures. 3. No further expansion of existing building. 4. Retail for data processing equipment. This motion carried unanimously. The Board is of the opinion that the character of the neighborhood is not adversely affected. Circumstances are unique because of the nature of the building. ~tu}~ Kuk am Cornwell .-. -~Ktl;'?~i ~ , , '" ' , . "i~wn 0/ Queenjburfj QUEENSBURY TOWN OFFICE BUILDING -- TOWN COUNSEL BAY AND HAVILAND ROADS, R. D. GLENS FALLS, NEW YORK, 12801 TELEPHONE: 1318) 792.583. POLICE DEPT. 793.25!U HIGHWAY DEPT, 793.7771 Dec~mber 27, 1978 TOVJN OF QUEENSBURY [ffi [[ D~C [E2'~ 1~7: \t1) AM P.M. . , "'911 218'41516 7' 81~'\lf:r:1. L . . . I, ... .. " Mr. Kirkham Cornwell Chairman Queensbury Zoning Board of Appeals Queensbury Town Office'Bu:ilding ,Bay & Haviland Roads GI~ns Falls, NY 12801 Re: Premises of Guy Bush on Dixon Road in the Town of Queensbury Dear Mr. Cornwell: This is to provide my written legal opinion which was requested by the Zoning Board of Appeals relative to the above-entitled property. I am informed that the premises owned by Mr. Bush have situate thereon a building in which a retail food marketing business operation was conducted untjl sometime in late 1~77. I am also informed that the business operation conducted on the premises pre-existed the adoption of the Queensbury Zon- ing Ordinance. Therefore, such a retail operation constituted a nonconforming use within the meaning of that term in the Queensbury Zoning Ordinance. - I understand that at the present time, a potential pur- chaser, a Mr. LeFebvre,has made application to the Zoning Board of Appeals for legal authorization under the Queensbury Zoning Ordinance to conduct 'a, data processing' business in part of the building and possibly a retail computer-sales business in another ~ortion of the building. Thus, the question is presented whether such a contemplate~ change of use. is per- mitted by the Zoning Ordinance withou~the granting of a vari- ance by the Queensbury Zoning Board of Appeals. It'is my legal opinion that the granting of a variance by the Zoning Board of Appeals would be required before the premises owned by Mr. Bush may be used for either a data processing business or a retail computer sales store or both. · . ~, ''';''''.' ",'::" rl~ . .. 'U' .. '" Mr. Kirkham Cornwell December 27, 1978 Page 2 Obviously, Section 8.303 of the Zoning Ordinance which recites that "when discontinued for a periòd of 18 months or more, a nonconforming use Bhall be terminated" is not applicable to this situation as the food market retail busi- ness, according to the information provided to me, was con- ducted on the premises until late 1977. Therefore, 18 months have not passed since the termination of that business activ- ity. .Under the circumstances herein, the relevant provision of the Queensbury Zoning Ordinance is 8.302(b) which recites as follows: "A nonconforming use may be changed into a conforming use, or to a more restrictive nonconforming use." Mr. LeFebvre I s contempla ted' luse of' the preperty to house a data processing business and/or a retail computer sales business undeniably constitutes a "change of use". Since said contemplated èhange or changes of use would not be conforming uses, the question under Section 8.302(b) is whether either or both would constitute a "more restrictive nonconforming use or uses". In my opinion, they do not and, thus, a vari- ance would be necessary for Mr. LeFebv.re's contemplated busi- ness activity or activities to be conducted. In order to render a legal opinion concerning this mattér, I-am required to interpret the phrase "more restrictive nõí1'- 'conforming use" in Section 8.302(b). One interpretation which possible could be advanced concerning that Section of the Ordi-' nance is that it means that a use which is factually more re- strictive because of the nature or expense of the changed or new use is permitted by the Ordinânce, even though the changed or new use would ~fàll within the same zoning classification as the origi- nal nonconforming use under the classifications established in the Schedule of Zoning Regulations. ~ ~ The other interpretation is that the term "more restrictive nonconforming use" means that Section 8.302(b) only authorizes a change of use to a conforming use or to a use which would be permitted in a higher classification under the Schedule of Zoning Regulations. It is my opinion that the latter is the . . 'fIkj " .J... ~,:.' , "'.' , ... .'.'.I.!i". i ..,., " ..¡~ r. " .. '''¡¡".. Mr. Kirkham Cornwell December 27, 1978 Page 3 " correct interpretation of this provision of the Ordinance and represents the true intent thereof. Under the Schedule of Zoning Regulations, a retail food market would be permitted as a principal use in either a C-l, C-2 or C-3 zone. Under my interpretation of Section ..8.302 (b), a "more restrictive nonconforming use" in this area would be a use which was permitted in a R-5 zone. As the area on Dixon Road with which we are concerned is an R-4 zone, if the use were changed to R-4, the use would obviously be a conforming use which is permitted under Section 8.302(b). Mr. LeFebvre is seeking to establish a business activity which falls within the same commercial zoning classifications as a perrni tted use as does a food market'. Therefore, in my opinion, this does not indicate a proposed change to a "more restrictive nonconforming use" and, therefore, it is not per- ./ mitted by Section 8.302(b) of the Zoning Ordinance. I am aware of the unanimous case authorities in the State of New York that have held that Zoning .Ordinances, being in , derogation of common-law property right$, must be cons trued- in favor of the property owner. (See, e. g:, Matter of Off Shore Rest. Corp. v. Linden, 30 NY 2d 160, 167; Thompson Ind. v. Incorporated ViI. of Port Washington North, 27 NY 2d 537; Matter of 440 E. 102nd St. Corp. v. Murdock, 285 -NY 298, 304). However, even in view of these decisions, it is my opinion that the foregoing discussion correctly states the meaning and intent pf Section 8.302(b). On the basis of the abov'è, I must conclude, that a vari- ance would 'be necessary beforê Mr. LeFebvre may conduct the business ac.t.ivities thereon which he is desirous of conducting. .it> I am well aware of the fact that ~ very logical argument may be made that it would be better to have the presently vacant premises used for some business activity rather than to allow them tö remain dormant as they apparently have for at least the last year. However, whether such would be better is not the issue which I must decide. I, as is the Zoni~g Board of Appeals, am bound by the provisions of the Zoni~g Ordinance and the foregoing leads me to the conclusion which I have expressed above. Therefore, the same principles appli- cable to any variance application must be met in dealing with l' ., ~ l' .:i/11 ',.., Mr. Kirkham Cornwell December 27, 1978 Page 4 this particular situation. "If the Zoning Board of Appeals finds the requisite hardship and other criteria necessary for granting a variance, it is clearly within the powers of the Zoning Board of Appeals to grant the variance concerning this property. In dealing with any variance application, the Zoning Board of Appeals must comply in all respects with the requirements of Section 10.202 of the Zoning Ordinance. Whether a variance application is granted or denied, the Zoning Board of Appeals should make specific findings of fact concerning a particular variance application which it is considering and those findings of fact should be incorporated into the resolu- tion either to grant or deny the requested variance. I realize that the foregoing discussion may appear to be complicated, but I believe the same is necessary in order that . the Zoning Board of Appeals will be cognizant of the reasons for my opinion. I believe that the foregoing provides the legal opinion which you had requested. If any additional opinion or clari- fication of the foregoing is necessary, please let me,know. ." ve~ truly yours, (1 ' rJ'~.J JOSEPH R. BRENNAN Town Counse.~··' it> it> .. .. '"