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1988-07-20 "'-.,.. -- QUDlISBURY ZOIIIRG BCWQ) OJ' APPD.LS Regul~ Meeting Held. Wednesday, JUly 20, 1988 at 7.30 p.m. p;¡¡esent. Theodo;¡¡e Tu;¡¡n8J¡, Chai;¡¡man Gustave Beh;¡¡ Daniel G;¡¡i£fin Susan Goetz, Sec;¡¡eta;¡¡y Jeff1;ey Kelley Cha1;les o. Sica;¡¡d R. Case p1;ime, Counsel Lee Y01;k, S;¡¡. PlanneJ; David Hatin, Building/Codes Daniel Ling, Asst. Planne~ MaJ;y Jane F. Moelle1;, StenogJ¡aphe1; Absent. Michael Mulle1; ZORIRG BOARD BUSIDSS M1;. TUJ;ne1; called the meeting to oJ¡de1; at 7.15 p.m. The fi1;st O;¡¡de1; of business was 1;equested by Ms. Lee YOJ¡k, S1;. Plan- ne;¡¡. The pUJiPose was to suggest that the Zoning Bo~d of Appeals schedule two meetings pe1; month, in oJ;de;¡¡ to accommodate incJ;8ased applications. The Zoning Boa1;d did not feel such scheduling is necessa;¡¡y at this time, howeve;¡¡, if a second meeting is needed, it will be held the last Wednesday of each month. CO;¡¡1;ections to the minutes of June IS, 1988 a;¡¡e as followsl Use VaJ;iance No. 12881 Pg.l, 1st Pa1;a.. The gaJ¡age .. should be .. The building Pg.2, 31;d Pa1;a.. Ms. Bissell ~ents should be .. The Blacksmith Shop 1;ents Pg.3, last paJ¡a.. should be -he felt the1;e weJ¡e conflicting- Use V~iance No. 13701 Change Leifus to Liapes. Pg.12, 2nd Pa1;al any bindings .. should be .. any!indings Use V~iance No. 1372 Pg.13, 1st PaJ¡a.. should be M1;. Tu~eJ¡ has ~ Pg.15, 2nd Pa1;a.. should be .. land cannot be used/sold as zone~. Use VaJ¡iance No. 13701 Please see page 17. M1;S. Goetz moved APPROVAL of the June 15, 1988 minutes as C01)1;ected. Seconded by M;¡¡. Kelley. passed VDaA~.ly 1 - OLD BUSIIIBSS Mr. Turner announced that the fOllowing scheduled applications will not be presented at this meetingl SIGN VARIANCE NO. 13761 Inside Edge, Tom Jacobs; Withdrew application USE VARIAICB RO. 1372 III'l'DPRB'l'A'1'IOR IlUllBBIt 42-1988 Harley V. Hermance, Jr.; Sanders Road; W. Glens Falls; LI-1A Mr. Turner Zoning Board of ition of this Earle F. Matte, stated Appeals use in agreed. that these items have been tabled one month, as the does not have a legal interpretation of the defin- a Light Industrial Zone. Mr. Hermance's attorney, Mr. Sicard Number 42-1988, interpretation. moved to Harley V. TABLE Use Variance No. 1372 and Interpretation Hermance, Jr. for one month pending counsel's Seconded by Mrs. Goetz. Passed Unanimously nw BUSIIIBSS IftBRPItB'1'A'l'IOR BUDBIt 41-1988 Frank S. Hagelberg Albany Telephone Company This application Company is in fact treated in the same Communications. is for an Interpretation that Albany Telephone a public utility and that its application should be manner as last year's application by NYNEX Mobile Mrs. Goetz read a statement from Lee York, Sr. Planner, stating that she had been in contact with the Federal Communications Commission in Buffalo and Washington, D. C., at which time she had received information regarding the company's presumed status as a public utility. Ms. York requested that the application be tabled, in order to have the opportunity to pursue confirmation of Albany Telephone Company's status. 2 - Mr. Prime advised the Board that Albany Telephone Company's cousel was present at the meeting, and he felt perhaps some information could be put into the record that would be helpful in assisting the Board to make a determination as to the status of the company as a utility. Mr. Frank Hagelberg, Esq. f~om Harter, Secrest , Emery in Rochester NY, rep~esented the telephone company. Other representatives for Albany Telephone in attendance were I Co-counsel B. P. Oliverio of Davis & Oliverio in Buffalo, who is regulatory counsel for Albany Telephone, Ed Rudeman and Michael Rapp, Federal Sales Manager and Operations supervisor for Albany Telephone, and Walter Williams, Field Engineer. Mr. Hagelberg recognized that there is a gap in the Ordinance in which a regulated public utility is not covered, however, by the same token the Town recognizes that Use Variance procedures are probably not appropriate for a public utility. He referred to NYNEX Communications which secured authority for a cellular telephone cell site, this application is similar. He further explained that the company is a New York partnership consisting of two pa~tnersl Associated Communications and McCaw Communications, who are authorized by the FCC as the holder of a broadcast license to offer cellular telephone service in the area. Mr. Hagelberg informed the SOard that the cellular system is a rela- tively new technology that is telephone without wires, a radio telephone consisting of a series of low-powered cells. Each cell site covers a radius of five miles and has over 330 separate channels. The process is that the mobile telephone will travel from cell site to cell site, while travelling in and out of the communique areas. The FCC said that there should not be a monopoly, but instead a ·duopoloy,· a form of having two companies in each geographic area competing with one another. The system was set up so that the existing wire line company in this area, NYNEX Mobile Communications, because of its relationship with New York Tele- phone, is the wire line company authorized by FCC to offer mobile cellular communications, Albany Telephone is the non-wire line company. The FCC has determined that the pUblic would be best served by competition between two companies. The setup of two competing companies in a geographic area is consistent t~oughout the country. Mr. Hagelberg spoke of the licensing information from the FCC, specifi- cally consisting of the license (Radio Station Authorization), which was issued to Cellular Mobile Services in New York (Exhibit A) to serve the Glens Falls area, in addition is a consent from the FCC to the transfer of control to McCaw Communications. He feels that the documenting papers prove that Albany Telephone is holder of the license and the non-wire line company authorized to provide service in the local area. Mr. Prime felt that Albany Telephone may be a utility, but there is a problem relating that to the Town Ordinance, because of the public Service Commission authorization. Regarding the Ordinance, Mr. Hagelberg added 3 that once a company is ~egulated by the PSC, a company is effectively out of the O~dinance, which c~eates a -hole.- He explained that Albany Telep- hone is ~egulated by the PSC and ~efe~~ed to a 5/9/88 letter to Mack Dean and a Certificate of Public Convenience and Necessity (Exhibit B), both required fo~ se~ice operation. Mr. Prime said his confusion is that the PSC autho~ization is to Albany Telephone, not to the stated applicant. However, Mr. Hagelbe~g confirmed that the applicant is Albany Telephone, wào is a pa~tne~ship consisting of the two above-mentioned parties. There- fo~e, the PSC autàorization runs to Albany Telephone Company. Mr. Prime explained tàat this is a new concept to tàe Town and Boa~d and feels that more documentation is needed. If it is a utility, it is not the classic utility, because of the competitive nature of the business and deregula- tion. To help cla~ify the situation, Mr. Hagelberg explained to Counsel and to the Boa~d that there a~e two documents needed, in o~der to commence business I 1) Radio Station Authorization on the cellular band from the FCC stating that Albany Telephone is allowed to use the ai~aves within a specific band fo~ a specific pu~pose, 2) Autho~ization from the State of New Yo~k PSC confirming that Albany Telephone has p~esented themselves befo~e the commission stating that they a~e a utility and there is a need fo~ the se~vice to be offered, in tu~n the PSC permits the service to be offe~~ed. Both of these documents have been presented to the Board. Regarding a thi~d party ente~ing the a~ea, Mr. Hagelberg said the documen- tation for that is the FCC orde~ initially establishing the cellar tele- phone system o~ autho~izing the establishment of the cellular telephone system throughout the United States (1981), that o~der specifies that the~e will be only two companies within a cellula~ geographic service area (CGSA). Because of the newness of the concept, Mr. Hagelberg said he did not object to a ~eview by the Town Planning Boa~d as to the location and the business that will be conducted, this would give a background into the concept. He further stated he would explain to whomever necessary what is being p~oposed on the site and the similarities/differences between the NYNEX and Albany Telephone sites. The sites are not in conflict, they are sepa~ated physcially by some distance, mo~e fundamentally the cellular band is 760 channels. Because there a~e two carriers in each market, the numbe~ of channels is split in half. They are not compatible in that they cannot be put one location. The site is owned by Torrington Indust~ies and Albany Telephone holds a lease through them. The location is 1000 feet West of Big Bay Road, in back of P~oc~aft Co.. Mrs. Goetz stated that, although Albany Telephone is calling itself a public utility, there is some question according to FCC as to whether or not the applicant is a public utility. That is what has to be determined. M~. Hagelberg responded by explaining that the gove~ental unit that is conce~ned with whether or not the applicant is a public utility is the 4 Public Se~vice Commission, because the state regulates utilities within its jurisdiction and the Public Service law creates a definition of public utility, which explains that if a certain business is being carried out, then that company is regulated by the PSC. He noted again that the Certification of Public Convenience and Necessity has been issued May 17, 1985 by the PSC, because the applicant has come within the statutory framework. On the other hand, the FCC is concerned with the allocation of radio frequencies. In review, Mr. Hagelberg stated that the Ordinance does ~efe~ specifically refer to utilies covered by the State Public Service Commission. Because of Mrs. Goetz's inquiries that have not been answered and because of lingering questions that need to be satisfied in all of the Boards' minds, Counsel recommended that the matter be tabled, so that all parties concerned can be satisfied. Mr. Hagelberg offered assistance to the Board in advising as to the right questions to ask and the right people to whom the questions should be asked. Mr. Kelley moved to TABLE Inte~~etation Numbe~ 41-1988, Albany Telephone Company. Because of the Town Planners' inquiries and lack of answers and lingering questions as to the status of this company as a public utility, the Board wishes to Table the application with the applicant's consent. Seconded by Mr. Sicard. Passed UDa.J11aoUaly IftBRPIB'1'A'1'IOB IlUllBD 43-198' Woodbury Development Group The request is for an Interpretation of the Zoning Ordinance, as it pertains to parking. What are the pa~king requirements for office space? Can the planning Board waive Or modify the pa~king requirements? This interp~etation is in conjunction with Site Plan Review No. 12-88 (Planning Board Agenda). Location is 20 Westwood Drive. Mrs. Goetz read Theodore Bigelow's letter submitted 6/29/88 requesting the Interpretation (on file). Tom Collu~a, an employee of Richard Jones Architects, represented the p~oject, and stated that the Interpretation directly affects expansion of the office in the future. Mr. Turner pointed out that Section 7.072 j) of the Ordinance states for Home Occupa- tion and P~ofessional Offices - ·One (1) space for each 100 sq. ft. floor a~ea devoted to such use.· Regarding the planning Board's involvement, Mr. Prime referred to a 5 lette~ f~om Stua~t Messinger and advised that the procedu~e that the planning Board has followed is that it does not have the authority to waive o~ modify any of the Zoning O~dinance provisions, including parking, but they can pe~it the develope~ to pave a ce~tain numbe~ of parking spaces that seem app~opriate to the p~oject and retain the balance of the pa~king spaces in a rese~ve, eithe~ in an unpaved, gravel area, o~ grassed-over ~ea that could be used for parking in the future. Mr. Collu~a asked if some distinction had to be made between pro- fessional office buildings and simply office buildings, as pa~king requi~e- ments fo~ office buildings do not necessarily meet the qualifications of p~ofessional office buildings (ier sales, not necessarily doctors, archi- tects, etc.). Afte~ furthe~ discussion, M~. P~ime did confirm that it would be necessa~y fo~ the develope~ to commit up front to either p~ofes- sional o~ comme~cial fo~ that is the basis of the Ordinance, Or go before the Zoning Board for a Variance, if there is ~easonable cause to modify the pa~king. The Zoning Boa~d does have the power to give ~elief in a hardship situation, the planning Board does not have the right to waive the ~equirements fOr the parking. M~. Collu~a asked if the Boa~d's Inte~retation will stand that the developer needs to provide 1/100 sq. ft. of pa~king space. Again, he was info~ed that there is a need to decide what is going to be done at the site. Mr. TU~ner reminded that the 6/23/88 planning Boa~d's minutes stated that the Site plan is fo~ a Commercial office space, o~ 5.5/1000 sq. ft. Ms. Goetz moved that the Oueensbu~y Town planning Board DOES NOT HAVE THE RIGHT to vary the number of requi~ed parking requirements that are in the Oueensbu~y Zoning O~dinance, but can change the method of obtained the ~equi~ed number of requi~ed pa~king spaces. In essence, the planning Boa~d cannot change the code. Seconded by M~. G~iffin. Passed unanimously USE VARIARCB RO. 1378 John S. Carusone Michael J. Mulle~ Robert J. Mulle~ The application is to ~emove the existing dwelling and build a new office to be used fOr P~ofe8sional Offices at 250 Bay St~eet, SFR-IO. John he felt S. Ca~u80ne, Esq., represented the application, and stated that that the property meets the three criteria set up by the Town of 6 ~ ..../ Queensbu~y. Reasonable Return, Uniquenss and Neighborhood Character. In review of Robert Guyette's property, it was purchased in 1962 from his mother's estate, it had been her summer ~esidence, which at that time was a ru~al setting. In 1964-65, the structure was enlarged from 1 1/2 stor- ies to two stories and the entrance way was faced south, away from Bay Road. In the late 1970's, Bay Road was enlarged, subsequently there is apProximately 20 feet from Bay Road to the structure. The Guyette's have lived there app~oximatley 25 yea~s, and Mr. Guyette is in a position now to sell. Regarding the Carusone and Muller law fi~, the office is presently located on East Washington St~eet in Glens Falls. Mr. Carusone's fathe~ pu~chased the building in 1963, there a~e three lawyers and four employ- ees, and seven people have been maintained in the Washington street office, since the elder Ca~usone's passing in 1983. It is the intention of the pa~tners to remain in that fOrm. 1) Reasonable Return. Mrs. Mary Ma~cy, b~oke~ for Dyer Blake, aPPraised the p~operty. Mrs. Marcy Presented her qualifications, she has been with Dye~ Blake since 1984 and in real estate since 1978, she does apPraisal work fOr Private individuals, as well as local attornies and all appraisal wo~k fOr Niagara Mohawk Powe~ Co~poration. The subject house is composed of three bedrooms, one bathroom, living ~oom/dining room/kitchen combination (approximately 30 feet long), 1800 sq. ft. on 1 1/3 ac~es. M~s. Marcy stated that he~ appraisal of the Property is between $105 - $115,000, the $105,000 is the low market value, if the house were in a diffe~ent residential area. She feels that it is most difficult to sell this type of property in this location to anyone who might want it fOr residential use. In her mind, the only way the house might sell fOr residential would be in the case where someone might think the buy was a good deal and the pUrchaser would buy more house fOr the family than ordina~ily possible, in this case, in the present location Mrs. Ma~cy does not feel the selling price would be mOre than $75,000. Century 21 has been advised to keep the house on the market. The CarusonlMuller law firm felt that, in fairness to Mr. Guyette, if the house stayed on the market and there were another buyer who would pay a comparable Price, the law fi~ would back out of the contract. During the time, there have been approximately 15 inquiries, some were direct inquir- ies, others were f~om other real estate agencies, not one inquiry was fOr ~esidential use. The Property has been on the ma~ket since May, it has been on multiple listing fOr maximum exposUre. Mrs. Marcy feels that a family would not want to buy this for a pri- mary ~esidence, because across the street is an unkept industrial acre parcel, up the street are other industrial buildings, and commercial offices throughout. If the parcel were bought as a rental-type p~operty, the rate-of-retu~n that one would have to get to make a payment would be very high, the top amount fOr rent might be $600 - $700. 7 ------ 2) Uniqueness. CompaJ;ison was made to the new st:r;uctw;e on the south- west co:r;ne:r; of Ft. AmheJ;st and Bay Street. The house does not front Bay St:r;eet, it f:r;onts on Ft. Amhe:r;st, the house sits much farthe:r; back, and ac:r;oss the stJ;eet the indust:r;ial/commeJ;cial settings do not exist, as they do with the Guyette p:r;ope:r;ty, in addition, the:r;e aJ;e railroad tJ;acks at the Guyette p:r;opeJ;ty. The back pOJ;tion of the Guyette p:r;ope:r;ty abuts the :r;eaJ; po:r;tion of the Ga:r;:r;ison Road p:r;ope:r;ty, yet the front po:r;tion is vi:r;tually on the highway (20 feet back). It is difficult to sleep, as the t:r;ucks go back at all houJ;s of the day and night. Rega:r;ding the lighting plan, office hou:r;s aJ;e 8.30 a.m. to 5.00 p.m., except in summeJ; when employees leave at 4.30 p.m. LawyeJ;s come in at diffe:r;ent hou:r;s, as the need :r;equi:r;es. No weekend o:r; evening wo:r;k, unless atto:r;nies work at that time, theJ;e would be less lighting than an average :r;esidence. The:r;e is no secuJ;ity, no night lighting, no outside pa:r;king lights. 3) Neighbo:r;hood Character. M:r;. Ca:r;usone submitted a J;ende:r;ing of the building design pJ;oposed by Jim Gi:r;a:r;d of No:r;the:r;n Homes. He stated he contacted many of the neighbo:r;s in the aJ;ea to t:r;y to :r;e-assw;e them that the plans fo:r; the office are, in effect, a :r;esidence. The only diffe:r;ence would be that a) occupancy would not be as fJ;equent as a :r;esidence, and b) the inte:r;io:r; would be substantially diffe:r;ent f:r;om :r;esidence (ie. no showe:r;s, kitchen, etc.). The law fi:r;m offeJ;s to keep the tJ;ees as they aJ;e OJ; move t:r;ees alJ;eady the:r;e and put them in a diffe:r;ent location. M:r;. Gi:r;a:r;d :r;ecommended that the building be cente:r;ed mo:r;e on the lot than the p:r;esent st:r;uctuJ;e, which would enable the parking to be situated to the nOJ;th and sc:r;eening be placed between the pa:r;king lot and the :r;esidences to the :r;ea:r;. M:r;. Carusone noted a 50 foot lot in the J;eaJ;, out of Fo:r;t Amhe:r;st Realty, that has a sepa:r;ate deed :r;estJ;iction in it that it can only be used fo:r; :r;esidential pu:r;poses, so no po:r;tion of the professional offices can be placed on the lot, it would always be a natu:r;al buffe:r;. The a:r;ea bo:r;de:r;ing M:r;. Town's p:r;ope:r;ty would be kept -fo:r;eve:r; wild.- The b:r;ook that :r;uns by is on the ve:r;y co:r;ne:r; of the 50 foot lot. M:r;. Guyette's p:r;ope:r;ty does not have the Fo:r;t Ambe:r;st Realty deed :r;est:r;iction. In summa:r;y, M:r;. CaJ;usone exp:r;essed that he does not feel the p:r;ofes- sional office would be a det:r;iment, in fact, he feels the paJ;tners have done a gJ;eat deal to keep the J;esidential cha:r;acte:r;istic in the neighbo:r;- hood and that they would be good neighboJ;s. The pu:r;chase would be fo:r; 1.36 ac:r;es, including the small :r;esidential lot, the:r;e will be one deed fo:r; the enti:r;e pa:r;cel, with a covenant fo:r; the 50 foot lot on which the law fi:r;m could not build. The p:r;ope:r;ty is 440 feet deep and 149 feet wide in the back. M:r;s. Goetz stated that the Va:r;iance would go with the land, not the pu:r;chase:r;, M:r;. Ca:r;usone said that the law fi:r;m has no intention of sel- ling. The building is being built in a way that is unique to the law f bim, and would not have much value to anyone else. The parcel has been on the ma:r;ket since 5/8/88, the:r;e was an open house and the lawye:r;s we:r;e 8 ~ the only ones to attend. The~e was discussion ~ega~ding the short amount of time that the house has been on the market, M~s. Ma~cey advised the Boa~d that the real estate ma~ket in the last few months has been soft in the a~ea of $125,000 and up. Lower than that amount, the ma~ket is -fast and fu~ious,- if p~ope~ty comes on the ma~ket and it is ~easonably p~iced, it is bought quickly. PÙlic R~ingJ Suppo~t, no comment. OpposedJ James Town, 48 Ga~ri80n Road. Mr. Town has been a resident in his p~esent home fo~ 25 years. He feels the neighbors are being pressured to accept the encroachment on the neighbo~hood. Leste~ P. White, 50 Gar~i80n Road. Mr. White stated that 178 feet of the subject Property abuts his back- ya~d. He would not like to see the domino effect come into the neighbo~- hood. The neighbors t~y to keep thei~ homes safe and the concern is the future. Mr. White is also concerned that the lot is large enough, so that a pa~king lot could extend to the ~ea~. The area is ~esidential and the neighbo~s want it to stay that way. War~en Rouillard, 44 Gar~ison Road. Mr. change road. Rouillard has lived in his home fo~ 28 years. He feels that any in the occupancy of the lot will affect him and his neighbo~s down He has had indications that the value of his home will go down. Beverly Ke~~, 47 Ga~rison Road. Mrs. Kerr stated she has been a resident of her home fo~ 17 years, and that John Carusone comes histo~ically to this position. Years ago the neighbors had a verbal ag~eement to Kubricky that the p~ope~ty, which has now become Light Industrial, would ~emain sc~eened f~om all residences in the area, that agreement was never fulfilled t~ough various ci~cum- stances. The neighbo~s are very concerned that, should be property be sold by Mr. Carusone, the problem again may arise. Public Rearing Closed Mr. C~sone advised the Board that he is unfamiliar about any restric- tions, however, if the Board wishes to make reasonable ~est~ictions with ~espect to the property, the law fi~ would have no objections, iel screenings, re-sale, additional construction, limit to one building. Again, he firmly stated that the law firm has no intention to move. 9 Co~~espondence. M~s. Goetz ~ead a lette~ f~om Theodo~e loli, who was in suppo~t of the application. Lette~s ~ead opposing the application were f~om. Wa~~en Rouilla~d, Joan Cla~k, Me~~itt Scoville, J. E. Town, Sa~a and Cha~les Ginsbe~g, Leste~ and Do~othy White. (The afo~ementioned lette~s a~e on file.) Wa~~en County app~oved. Beautification Committee submitted tentative app~oval, an a~chitect's ~ende~ing has been ~equested (Exhibit C). A lette~ f~om Robe~t Guyette dated July 7, 1988 (Exhibit D) ~equested a change in the zoning of the subject p~ope~ty f~om Single Family Residen- tial to Light Indust~ial. M~s. Goetz asked the neighbo~s how they would feel if stipulations were attached to an approval. Stipulations would apply to whomeve~ owned the p~ope~ty, if a fut~e owne~ wished to va~y f~om those stipulations, anothe~ Va~iance would be ~equi~ed. That would p~otect the neighbo~s. M~. P~ime suggested that if the law fi~ should sell, the zoning would ~eve~t to the zoning placed on the land. pùlic ReQil'19 lte-Opued. Leste~ White. M~. White stated he would not have objections to stipulations, as long as it would stay that way fo~ever' but he does not feel that is feasible. D~. Eisenhart's p~ope~ty was mentioned, howeve~, Counsel mentioned that that p~operty is pa~t of the Fo~t Amhe~st Realty and would not pose the same p~oblem. M~. P~ime also assu~ed M~. White the subject house is unique because it is outside the FOrt Amherst Development. Mr. Ca~usone pointed out that the proposed building could be conve~ted to a single family ~esidence mo~e easily than M~. Guyette could do p~esent- ly. it will be set back, is Colonial in nature. MJ;'s. Ke~~. M~s. Ke~~ pointed out that the neighbo~s have not had an opportunity to discuss the ~est~ictions to be put on the new deed. She asked that the ~equest be Tabled, so a discussion could be held with Mr. CarUsone. M~. P~ime reminded M~s. Ker~ that stipulations simil~ to those of FOrt Amhe~st Realty would not be applicable. The stipulations in this case would apply to use within the Ordinance. Regarding parking, Mr. Ca~sone explained that 18 pa~king spaces have been designed on a lot that meaSUres 54 x 66 ft. In the p~esent location on E. Washington st. the~e a~e accommodations fo~ 14 vehicles. He would have no objections to pa~king ~est~ictions, ie. in the ~ea~ abutting the neighbor's p~ope~ty. Public .earing Closed 10 ..... ~. Robe,t't Guyette advised the Boa~d that the p,t'ope~ty has been on the ma~ket since Janua.t'Y 1988 unofficially. Du.t'ing that pe~iod of time the~e we.t'e t~ee inqui~ies and, as stated in his lette~, the conditions we.t'e such that no one showed inte.t'est, especially Duke Conc~ete and Kub.t'icky. The noise du~ing the night is indesc~ibable, and the Guyette's we.t'e one of the ve~y few people in the area who opposed those companies. The øo~d was unable to come to a decision, as ~equested by the Chai~- man. M~. B~ asked M~. C8,t'usone if he wished to table the application, so the neighbo~s could meet with him and discuss the stipulations. M~. Ca~sone ~equested that, since the neighbo~s we.t'e p~esent at the meeting, he would offe.t' to meet with them at this time, while the Boa~d continued with anothe,t' matte~. Chai~n Tu~ne~ ag.t'eed this could be done. When the discussion on this matte~ .t'esumed, M~. Ca.t'Usone specified conditions to which the neighbo~s had ag~eed and said they would not oppose the applications 1. if the p~emises is the p~oposed buye~ Va~iance, sold, the Va.t'iance would end with the owne.t'ship, would have to make application fo~ his/her own 2. the back po~tion of the p~ope~ty would ~emain as is, the pO.t'tion west of the extension of the east p~ope~ty line of M~. White's prOpe.t'ty shall .t'emain fo.t'eve~ g~een. 3. p~ope~ sc~eening on the south and southwest po~tion of the p.t'ope~ty to sc~een the building and pa~king lot from view, 4. the pa~king lot will have p~ope~ dtiaining to the no~th and east, 5. the pa~king lot lights will be no mo~e than landscape lighting, 6. the~e will be no expansion of the building o~ pa.t'king lot. M~. Sica~d moved APPROVAL subject to the ~est~ictions. It meets the fou~ .t'equi~ements of a Use Va~iance* the new building will improve the appearance of the neighbo~hood, the hardship has been demonstrated and the~e is no reasonable return if used as zoned, the neighborhood cha~acte.t' will be imp~oved in appea~ance, the uniqueness is that this property f.t'onts a Light Indust~ial zone ac~oss the st.t'eet, including a concrete block plant and a heavy traffic situation. The~e will be six stipulations attached to this Variance. 1. This V~iance is g~anted fOr a law office only, the Va~iance will end with this ownership. 2. The back portion of the p.t'operty will ~emain as is, this is the a.t'ea east of the extension of the south p.t'ope~ty line of M~. White. 11 _/ 3. The~e will be p~ope~ sc~eening on the south and southwest po~tions, to sc~een the building and pa~king lot f~om the neighbo~s on the south. 4. The pa~king ~ainage will be to the no~th and east. 5. The~e will be no lighting othe~ than landscape lighting. 6. The~e will be no expansion of building o~ pa~king lot. M~. John Ca~.one, pa~tne~ in the law fi~ of Ca~usone and Mulle~, app~oved of the stipulations. Seconded by M~s. Goetz. pa...4 5 Yes (Sica~d, Tu~ne~, Goetz, G~iffin, Be~) 1 Abstain (Kelley) AlBA VAltIAIICB RO. 1379 Kentucky F~ied Chicken This ~equest is to ~eplace the existing wood dumpste~ enclos~e, with a conc~ete block enclos~e, to match the adjacent Kentucky F~ied Chicken building (in colo~), located on Route 9, No~thgate Cente~, PC-1A. M~. James Mathis, V. P. of White/Lake Geo~ge, owne~s of Kentucky F~ied Chicken, ~ep~esented the p~oject. ~. Mathis explained KFC has been in the p~esent location since Ap~il 1984. When the lease to the building was pu~chased, an appea~ance was made befo~e the planning Boa~d and the dump- ste~ was app~oved, along with the enti~e ope~ation plan. In the ensuing yea~s, the stockade fence has dete~io~ated. M~. Mathis explained that he is ~equesting a conc~ete slab with conc~ete blocks and a chain link fence, it would be an imp~ovement and be mo~e substantial and add to the looks of the back of the sto~e. M~. Be1u; noted that the cu~~ent ba~~icade has a 0 setback on the ~ea:ç p:çope~ty line. M:ç. Mathis stated that the cu~b is on the p~ope~ty line. The conc:çete blocks would be placed whe~e the walls of the p~esent dump- ste~ enclosu~e a:çe situated, the~e would be no inc~ease in size. pu1alic H~iDg Open", SUppo~tl MJ;'s. Halll She feels dumps te~, as ove~-flowing. M~. Mathias the~e a~e should many be such commended fo~ taking ca~e of his items in Queensbu~y that a~e 12 Opposed. Jack paladium. owne~ of Roxy's and the p~ope~ty behind the dumpste~. ~. Paladium stated that the dumpste~ is exactly on the line. PJ;ev- iously KPC had only one tank, then a wood fence, and now KPC is J;equesting a block slab. If conc~ete is pouJ;ed, it can neveJ; be ~emoved and, if M~. Paladium should constJ;uct, the conc~ete slab would be a hindJ;ance. He sug- gested that the dumpste~ be put behind the IRS building, howeve~, the Boa~d did not feel that a~ea was logical, because of the dJ:ivevay, paJ;king places, and the IRS building was situated away f~om KPC. ConsideJ;able dis- cussion took place at the dais. M~. Mathis advised that it would be less expensive to keep what he has, costs fo~ a conc~ete slab would be about $3,000. He J;equested a con- c~ete slab because it would impJ;ove the appeaJ;ance of the block. The Tu~ne~ advised ~. Paladium that KPC could ~eplace the existing st~ctuJ;7e without a pe~it. Public B~iD. Clos" MJ;7. SicaJ;7d moved DISAPPROVAL of ~ea VaJ;7iance No. 1379, Kentucky F~ied Chicken. This was a ~equest fOJ; a concJ;ete block dumpsteJ;7. Seconded by MJ;. Be~. Pass" 4 Yes (Sica~d, Goetz, G~iffin, Be~) 2 No (Kelley, TUJ:ne~) 1 Absent (MulleJ;7) MJ;. Mathis was given apPJ;7oval to put chain link gates on the fJ;7ont of the existing stJ;7uctuJ;e, as they would give a betteJ; appea~ance and would be mOJ;7e substantial. AlŒA VAlUAIICB RO. 1380 H. & S. Kaminski R. & M. Suen This p~oposed 50 feet. is a pJ;7oposed addition of a SCJ;7eened-In Po~ch and Sun-Bay. The addition will leave a setback f~om the lakef~ont of app~oximately M~. Donald W. Boyajian, Esq. J;7epJ;esented M~. Kaminski. The applicant p~oposes to imp~ove the po~tion of the p~opeJ;7ty which is in a state of dis~epai~, with a 50 foot setback. The pJ;7oposed addition to the pJ;opeJ;7ty 13 -' would imp~ove modifications to the s~uct~e, to beautify it, to ~epai~ and ~eplace an existing deck, and to make substantial imp~ovements to the existing st~ct~e. This would add to the aesthetic value. The p~oposed uses would not inc~ease the use of the house, would not impact negatively o~ c~eate inte~fe~ence to a public facility, the~e would be no negative impact on the view f~om the lake to the pJ;opeJ;ty. The p~oposed pOJ;ch and bay window do not p~otJ;Ude into the pJ;ope~ty. NeighboJ;s on both sides of the p~ope~ty a~e closeJ; to the lake than the cUJ;J;ent use, the setback is gJ;eate~ than the neighboJ;s, even as PJ;O- posed. Imp~ovement could not be made on the no~th side, because of the septic system, on the south side, the~e is a p~esent distance of 10 feet. M~. Boyajian feels that the~e will be no adve~se impact on the neighbor- hood. Public B~iag OpU_1 Suppo~t MJ;s. Ma~ie Fa~ha~tl owne~ to the south. ~s. Fa~~t stated that she is the only one who will be affected by the addition, and does not want he~ view of the lake obst~ucted. She also wanted to know if the sCJ;een-in po~ch would be fo~ sleeping. AnsweJ;1 No. MJ;. GJ;iffin stated he was at MJ;s. FaJ;ha~t's pJ;opeJ;ty and said heJ; view would not be obstJ;ucted. She was infoJ;med that the Town InspectoJ; would make su~e the addition would not be higheJ; than stipulated. MJ;s. FaJ;haJ;t appJ;oves the application, as long as it stays within the stipulations. Opposed I MJ;s. Halla MJ;s. Hall J;equested to know if a home is conside~ed single family, if two families have pUJ;chased the pJ;ope~ty and they live theJ;e. MJ;. TUJ;neJ; stated it is dete:t;mined by the use of the house. MJ;s. Hall feels theJ;e is an ove~se of the pJ;opeJ;ty, J;oads a~e blocked, and the pJ;oposed addition will be closeJ; than 50 feet to the lake. Public B~iDg Closed COJ;~espondence. (Exhibit E). ~s. DickeJ;son, DOJ;othy ~eceived fJ;om Ma:t;ie fJ;om heJ; pJ;ope~ty, file. ) M~s. Goetz ~ead a lette~ f~om AdiJ;ondack PaJ;k Agency Goetz ~ead letteJ;s of disapPJ;oval fJ;om LOJ;J;aine J. Hall, Judy Hadja:t;ians (1 spelling). A letteJ; was FaJ;haJ;t stating heJ; conce:t;n about the view of the lake she did not oppose the p~oject. (All lette~s on MJ;. Boyajian ~e-emphasized that none of the changes would inc~ease OJ; diminish the use of the pJ;opeJ;ty. He explained that the applicants aJ;e J;elated, geneJ;ally theJ;e aJ;e not mo~e than fOUJ; people in :t;esidence, some- times theJ;e a~e guests. M~. Kaminski said this is the fi~st he has heaJ;d 14 " "--- ...---'" about any complaints, and wished the neighbo~s had p~eviously advised him of the p~oblems. M~. Kelley was advised that the changes of the deck with the sun-bay extend 3 ft. 3 in. fa~the~ than at p~esent. M~. Tu~ne~ noted that the distance f~om the lake to the house is less than 50 feet, although M~. Kaminski felt the ~awing was inaccu~ate and feels the addition is 50 feet f~om the lake. M~. G~iffin moved to TABLE A~ea Va~iance No. 1380, H. & S. Kaminski and R. & M. Suen, to get mo~e accu~ate info~mation, pa~ticul~ly on the south side of the p~ope~ty. Seconded by M~. Sica~d. Pus" Un&m1llo1lsly ADA VAltIARCB RO. 1381 F~ed and Ca~ol Ducey This application is fo~ the const~uction of a ga~age addition with a nonconfo~ing setback (4 ft. 10 in. +/-) on the existing ga~age at Mayflowe~ Lane, off of pilot Knob Road, LR-1A. This is a continuation of the nonconfo~ing setback on the south side. Dean Howland, J~. is the agent fo~ the application. The~e is an existing ga~age which is 30 feet in depth, which will be used as a two-ca~ ga~age with the addition of five feet. M~. Be~ exp~essed conce~ about the g~ade level of the ~iveway, although M~. Howland assu~ed that the~e would be no p~oblem. The ga~age floo~ would be b~ought up to the existing level. The existing house has a c~awl space, the~efo~e, the second sto~y of the ga~age would be used fo~ additional sto~age and a game ~oom, the~e will be elect~icity, no telephone and no wate~. C~ol Ducey, owne~ The Ducey's will be living in the house yea~ ~ound. They own two ca~s, one being a fou~-wheel d~ive, the ga~age extension is needed to house the vehicles in the winte~. PUblic .~inl open.., no comment Co~~espondence, Wa~~en County planning Boa~d app~oved. ~. Ducey. G~iffin moved APPROVAL of ~ea Va~iance No. 1381, F~ed and Ca~ol This is a nonconfo~ing expansion of five feet and will be no 15 -'~ close~ to the p~ope~ty line. The minimum ~elief and p~actical difficulty is that it is a pre-existing, nonconfo~ming use. The garage will not be used fo~ sleeping. Seconded by M~. Kelley. paased VnaaiMoualy ADA VARIAlICB 110. 1382 Kenneth Fuchsloche~ This ~equest is to move the 16 ft. x 18 ft. shed. To build the ga~age and enla~ge it to a 26 ft. x 24 ft. ga~age. The old shed will be a pa~t of the new ga~age. The location is 1.6 miles f~om the inteJ;section of Bay ~oad and Route 9L, RR-SA. (Note. The following text is taken fJ;om stenogJ;aphic notes, as the tape was not functioning.) M~. FuchslocheJ; stated that he has been living at the ~esidence fo~ six yea~s. The~e aJ;e t~ee wood and two metal sheds, which are enclosed and pJ;e-existing. The p~oposed ga~age will be 18 feet fJ;om the J;oad. If it is moved , the~e will be J;ock ledge. pùlic B~inl Opene.. no comment Co~~espondence. foot setback. Wa~~en County modified with a condition of a t~ee- M~. Kelley moved APPROVAL of AJ;ea Va~iance No. 1382, Kenneth Fuchsloche~, as the applicant has shown p~actical difficulty. The condition of the g~ound on which the ga~age is to be built has a conside~ab1e slope f~om fJ;ont to back amd goes at a steep ~ate. He cannot get fa~ enough off the ~oad, without g~eat expense. On the south p~ope~ty line, the~e will be a 17 foot va~iance fOJ; a 3 foot setback, on the easteJ;ly p~ope~ty line, theJ;e will be a 12 foot vaJ;iance of 18 feet fJ;om the pJ;opeJ;ty line. Seconded by ~. Sica~d. pa..ed Vaant.o..ly 16 ''-" M~. TU~ne~ adjou~ed the meeting at 11.15 p.m. 9£øcl/V {/}l~lU( Theodo~e Tu~ne~, Chai~n Ma~y Jane F. Moell~, Stenog~aphe~ C01UŒC'1'IOJIS 'l'O JUD 15, 19.. MIIRJ'lBS Ref. USE VARIANCE NO. 1370 Cha~les E. and Ba~ba~a Seeley Page 10, Pa~ag~aph 3, Line 4 M~. Be~ noted the fOllowing linel -..which is now a ba~ and is single sto~y.- M~. hoist.- point, 1ibe~ty minutes M~. of we~e Be~ co~~ected the minutes to include the wo~ds. -loft and The tape of the subject v8J;'iance has been ~eviewed and, at that Seeley does not mention -loft and hoist.- I have taken the t~ansc~ibing the po~tion of the p~esentation f~om which the being w~itten. H~. Tu~e~1 What did you get .. you got a pe~it fo~ the *.* ga~age, which is now a ba~? Is that cO~J;7ect? M~. Seeley I That you'll see that it is just go ahead with the it down. is co~~ect. You can go back and look at it and only a single sto~y because Geo~ge (Leipes) said top stOJ;7YI because it look like the devil, I took Ma~y Jane F. HoelleJ;7, Stenog~apheJ;7 17 \; '. A. CLINTON IMlAY BRUCE I. HANSEN JOHN E. SWETT ANTHONY". PALEAMO NATHAN J. ROIIIFOOEL THOMAS A. SOLBEAG JOHN F. MAHON ALAN ILLIG JOHN E. BLVTH W. REYNOLDS BOWE"S PETER M. 8LAUVEL T LAWRENCE A. PALVINO WILLIAM O. SMITH THOMA8 ø. GARLlOK ALAN F. HILPlKEA C. RICHARD COLE BARRY Ft. WHITMAN D. DYSON QAY JAMtS O. MOORE WILLIAM M. OOLBY ke.NNeTH A. PAYMENT .,.UA",. B. MI.IS'EHZAML J~ME8 A. LOCKE,IIt ,.,"".....~._-~ --"."11>._-"",,,, ..'-..-- tjlLE copy HARTER, SECREST & EMERY MICHAIL Po BUCkLIY WILLIAM H. HELPEAICH. It! NEAL O. MADDEN PETER O. SMITH JAMEB II. GRAY. .I". JOHN Ft. WEIDER H. ROBEA'" HEAMAN WIL LlAM ... LA 'aRT. THOMA.8 O. SMITH JACK D. .'8EN8ERO FRANK So HAGElBERa lAIC A. EVANS FRED G, ATEH. "". PHILIP Ft. FilIAl SUSAN MABCETTE BRANDT T. MARV MCDONALD "'AAOAAET A. CATILLAZ' JEFFAEY H. BOWEN DAVID A. ,..IAAIS MICHAEL ... MCEVOY DONALD S. MAZZULLO JOHN O. HIA.aAT KATHLEeN C. PA88IDOMO. . ATTORNEYS AT LAW 700 MIDTOWN roWER ROCHESTER, NEW YORK 14604-2070 DAVID S. 80ROI BRYON C. ANDREASIIN CHARLES O. CRAMTON JAMES E. METZLER AOBERT F. PIZZO RONALD.t. MENDRIOK MAUREEN T. ALeTON GARY 1... KARL STEPHEN Ft. VAN AA8DA1...~ EDWARD,.. "AIMO, II RIOHAAD E. ALEXANDEA WU..\.tAM Ft. GUll''' BAJANV. MCAVOY BAABAFlA J. VAN """.OALE A088 fl. L"'HZ"''''M. SUSAN VOOEL~VANDE".ON LARRY O. SOHEAFEA MARTIN W. O'TOOLI AOBIAT A. "08ILLO. peTEFI H. ABDELLA CYNTHIA S. FlOCHFOAD DOROTHY H. FEROUSON HyMAN e. ,AEIMAN AICHARD 8. SECREST J. PAUL IIRINNAN GIOAOE A. WILLIAMS HARAY M. ORAClE IE. JAMEe HICklY WILLIAM A. CENTNER ROIIERT V. CJIANNINY SEN'OR COUN8EL JOHN CLAPPER In A. PAUL BAlnoN PAUL M. HETLAND COUNSEL WILLtAM W. eel.\. WILLIAM F. 8"ANOI8, "I.... SPEOIAL COUNSEL 716 . 232-6500 Telecopier 716 . 232-2152 One Steuben Place Albany, New York 12207-2110 518 . 434-4377 800 Laurel Oak Drive Naples. Florida 33963-2738 813 . 598-4444 KAYE A. THOMA. BONNIE A. aLENIS MARY E. ROSS TIMOTHY R. PARRY. . ADMITTED" ~ ONLY July 15, 1988 Mr. Dan Ling Town of Queensbury Queensbury Town Office Building Bay at Haviland Road Queensbury, New York 12801 Dear Mr. Ling: Re: Application of Albany Telephone Company As a follow-up to my letter of yesterday, enclosed please find a copy of the Federal Communications Commission Radio Station Authoriza tion originally granted on June 25, 1987 to Cellular Mobile Services of New York covering the Glens Falls, New York, area. Also enclosed is a copy of the FCC consent to the transfer of CelÌular Mobile Services' license to McCaw Communications of the Northeast, Inc. To complete the picture, you should be aware of the fact that McCaw Communications is a partner of Albany Telephone Company. This information should now complete the material you requested for next week's meeting, and I look forward to meeting you on the 20th. Should you require anything further, please do not hesi tate to ask, and thanks again for your cooperation and assistance. FSH; j h Enclosure Very truly yours, ~7ST Frank S. Hagelberg cc: Albany Telephone Company EXHIBIT Al .. ~.._~---_... ,~ .11..,... 003S2-CL-TC-Ol·17 ..-/ FILE COpy , ...~, tI·f'. ,....... ..,~. "- ,,""10 ,...,..." A...clueA 'EDUAL CO....UNICATIONS COMMISSION ....1........ D. C. 2OS,. . . CONSINT TO TRAM".R 0' CONTROL 0' CORPOR. nOM HOLDING eel" CARRIER RADIO STAttON CONSTRUCTION 'IRMIT OR LlCINSI LiC...øe: Cellular NObile SerYlee. 01 New Tork, Inc. '"_: (T'....'_' T.: (T,......... Beeper Marketin. of New York, Inc. McC8W Co..unicatlons of the North...t, Inc. CI....f St.,;...: N......f s....e.: Do~t1c Public Cellular Aadio Teleco.un1caUons Se1'Yi·;e. CeUular I Coli Sip: St.tl... Loeotlo" Autho,I..tlo" IN"""Ite,,) Not Yet Assllfted Glen F.UI, Mew Tork Þ8A . \1ftd... .....Oft" of ... C_lcetlOft. Ac' of .t.14. lit. M....' of". ,....... c..un'c.UOft. C:-'"'Oft t. ho.."" .,..'od '0 lito "...f....' eon'to' of lito ........C'..W4I eo""',...... '""" ....110....." "...roto, to "0 ...."".tHt t,...f..... Th. COIIIIIIIIIICIft" cell....' _ .... ,.....r... 0' ...tNll. ..... Oft It. .., ...",..tlOft' ..... '" the "...rotor ... 0' ,...... f.... ..., lit. ...,""'..... eoft,.III" 'n. .,... 'n eo"".clion "'... tho OIIIIUc.UOft ... tftIo ..d ..., ... IIIId.,...".. of ... pe,u.. upott "'ldI tht. tnn.f... ., eotlttoll. ....oft... will boCOtfttHt ..., 'ft F.' ,ath. October 6, 1'87 Th. .e.... "...f., of eoft...1 of ... eo,,",retlClft, "cldlll' "'1..., or ..,. .........UOft(.) 10 ... "...f..... thall ". ('OMpl.,.d Withlll 4$ day. hili tho "to h.,...,. ... nolic. I.. I... ,... ......r III'" """,ptI, bo A....,...... ... COIIIIIII.uon b)' th. ,,.......... tIIIO"'", ...... ... tic.. n'eH"" to .rrk' ... ,.....,... 0' ceII'..I".... ... eo""I.,... U ICIft 1II.'III'n. ... COfIIlllllllon .... IUc:fI ...n... n.lco. 'ranlf.... I. .lItotfir.d . botln lit. eoft.....etlOft Ot ......UOft of ... ".UOII in accord· "'C''' wi.. eI' ... ,."". ..d eoft.UOft. of .... ...o'....tlonl.). TII'. cottMft' ...... IHI' ....0.... th. cottltfttC'uon flO' o,.,atio" of lIid "taU on by ""'If.... .",... ... "nUl ..dI no,"lulio" ".. ..... '0"'..... . lit. c-Illlon. . ~..." \~~oh" ,e \~\ 2, 1987 FEDERAL CORINtCATlONS taMSION ~..'.. V .,,:.:,- ~1>, 't' ...M'.......... .. c. ~.c.e. ,':\;,:\~l' ~':> ~ ".~ "":"..,' ,-.: ~, \ ~ i : i I , ¡ ¡ ,:~! I .. i ..~ t ., L.,:,.J 'r, L ' ¡~ ".~ ¡ J..: . tl ~ ;' f ~l .'.! ~.,:í 1< .~ I ~ ' L$ . .~) t,,{ '-'. ·4 :"3 ~ ,.:} t) :1 .... I" iI' ,;( '. . .t'.... 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'~ j" 'j , ;;~~ ~ .~ .. .~ . .~ ~:,7....~~ > ~~' . ff...~ .~~~' ,~t1:.....~, . . ...·'\o.'..·I~.1;! "......~~.,., ~ 1-'; ·'t· ,,~ ~·1., .~';f.'" "f; ;": i~j ~~~¡1 ,,",¿ . '~;:,.¡; ">~; ~jI .t'~,:'...... ;'. ~ ~ ' , ... . '":'. ':~,; 'f'"~. 'ti .; ~ . ,':¡...:: ~ ·i~~~L,:ilJ .~·;~y",.."" " ""4;{ !loi'f ",. Ä~'f.~ .t~t'~;r·~l ·~";~i·. \"'t~; ~:~·.·t 1"- '"'I"/: ~,,; ~; ;J,~ .~(,.'~:;. "or . ,.,¡ .. . ,.t{~; < f" i~'): . ,. ~.~ ,r;~ 'i4t'{f~'~ 1'" . ~ ." '\ ·~t, .J./,\::" & y;- .~~ 'r. '-'t:... ':~. ,..'~~~¡; . ....~.~... ...~ ... {.,~ ''',''~:'.~'' .:" ~'.~ jH:~~ .~!-. ~ .... R. CI.INTON EMERY BRUCE E HANSEN .JOHN E. SWETT ANTHONY R PAI.ERMO NATHAN J ROOFOGEI. THOMAS A SOLBE.RG .JOHN F MAHON AI.AN ILI.IG .JOHN E BI.YTH w. REYNOLDS OQWERS PE:TER M. BLAUVELT LAWRENCE R PALVINO WILUAM D. SMITH THOMAS B GARLICK ALAN F. HILFIKER C RICHARD COI.E BARRY R WHITMAN o DySON GAY .JAMES C. MOORE: WILLIAM M COLBY K£NNETH A PAYMENT STUART B I¥IEISE:NZAHL JAM£S A I.OCK£, ill '-- --'~ HARTER, SECREST & EMERY MICHAEl.. F.a BUCKL.EY .. WII..I..IAM H HEL.F"£RICH, m ~~:i: G I:~I~~'L- ... .JAMES B GRAY..JR .JOHN R. WEIDER H. ROBERT HERMAN WILI.IAM N. L.A FORTE THOMAS G SMITH .JACf( D (ISENBERG FRANK S HAGELBERG ERIC A EVANS FRED CATEN..JR Pt-4II.IP R flL.ERI SUSAN MASCETT£ BRANDT T, MARY MCDONALD MARGAR£T A CAfll..LAZ JEFFREY H BOWEN DAVID R fERRIS MICHAEl.. R MCEVOY DONAL.D S MAZZUUO JOMN C HERS£RT KATHL.££N C PASStDOMO· ATTORNEYS AT LAW "\' 700 MIDTOWN TOWER .~ U r ~QCHESTER. NEW YORK 14604-2070 716 . 232-6500 Telecopier 716 . 232-2152 DAVID S. SORCE BRYON C. ANDREASEN CHARLES Q. CRAMTON .JAMES E. METZLER ROBERT F. PIZZO RONAL.D,J. MENQRICK MAUREEN T. AL.STON GARY L. KARL. STEPHEN R. VAN ARSDAL£ EDWARD F. PREMO. Ir RICHARD E. ALEX....NDER WILLIAM R. GUPP BRIAN V. MCAVOY ANDREW A. COSTAÞ<,:ZA BARBARA J. VAN ARSOALC ROSS P. LANZAFAME SUSAN YOGEL-YA,..OERSON LARRY D. SCHEAFER KEITH A. L.YNOAKER MARTIN W. O'TOOLE ROBERT A. ROSILLO· PETER H. ABOE!..!..A CYNTHIA S. ROCHFORD HYMAN B. FREEMAN RICHARD B. SECREST J. PAUL BRENN"-N GEORGE R. WILLIAMS HARRY M. GRACE E. ,JAMES HICKÊY WILLIAM A. CENTNER ROBERT V. GIA""NINY SENIOR COUNSEL .JOHN CLAPPER m A. PAUL BRITTON PAUL M. HETLANO COUNSEL One Steuben Place Albany, New York l' 2207 -2110 51 8 . 434-4377 800 Laurel Oak Drive Naples, Florida 33963-2738 813 . 598-4444 WILLIAM W. BEL.L WILLIAM F. BRANDES. JR.· SPECIAL COUNSEL . ADMITTED IN FLORIDA ONLY KAYE A, THOMAS BONNIE A. BLENIS MARY E. ROSS TIMOTHY R. PARRY· Nay 9, 1988 Mr. Mack Dean Building Inspector and Zoning Administrator Town of Queensbury Queensbury Town Office Building Bay at Haviland Road Queensbury, New York 12801 Re: Albany Telephone Company Dear Mr. Dean: This will confirm our recent telephone conversation regarding Albany Telephone Company and the company's efforts to locate appropriate land for a cellular telephone cell site in the Town of Queensbury. As we discussed, it appears from a review of the Town' s Zoning Ordinance the "public utilities" are defined, but that no provision is made in any of the zoning districts in the Town for the loca tion of "public utili ty" installations. This, in turn, would lead to the unusual si tua tion in which a public uti li ty would have to meet the tests imposed for the granting of a use variance in seeking permission to locate facilities anywhere within the Town. I understand you will be reviewing this situation with the Town Attorney and reviewing the circumstances under which NYNEX Mobile Communications Company was able to secure approval for a similar cell site last Fall., I look forward to hearing from you in this regard at your earliest convenience. In addition, you asked Albany Telephone's status as to respond as follows: that I supply information regarding a "public utility, II and I am pleased Albany Telephone Company is a New York partnership licensed by the Federal Communications Commission and the State of New York Public Service Commission to provide cellular telephone k 't H ~ é-fl /.31 ~:~ ~";;',~".";_-'. -':~~.i>':,;.;.~,,- '.,;'.:4, ,¡,¡." ':''_'. .<t,..L,-_~:J.;"'¿~;:::'._",':'".-~__::...:...-..;~:-'---':::"':"""~:~'_':"_"'__ · . HARTER, SECRE~& EMERY ~------/ Mr. Mack Dean Building Inspector and Zoning Administrator May 9, 1988 Page -2- service in the Albany, New York area. Under regulations promulgated by the Federal Communications Commission, only two companies (Albany Telephone Company and NYNEX Mobile Communications Company) are authorized and mandated to provide such service in this area. The courts in New York have recognized that [p] ublic utili ties enjoy a favored posi tion in relation to zoning regulations and public utility structures serving the entire community have historically been recognized as reasonable and proper uses in all types of use districts (Staminski v. Romeo, 62 Misc.2d 1051, 310 N.Y.S.2d 169). Mammia v. Town Zoning Board of Appeals, 110 Misc. 2d 534, 536-537, 442 N.Y.S.2d 689, 691 (Sup. Ct., Westchester Co. 1981). This recognition stems from the fact that needed public services could be blocked if applications for public utili ty uses were subjected to the normal tests for use variances (including a showing of unique circumstances and hardship). As discussed in greater detail below, Albany Telephone meets the several criteria employed by the courts in determining whether an enterprise should be considered a "public utility" for zoning purposes, including: 1., Albany Telephone is subject to federal and state regulation as a public utility; 2. The activity of the company is "impressed with a public interest" as defined by the Courts; 3. The company's activities will not only serve the "public interestll but will furnish a service to the community in which its facilities are located; and 4. While the service provided by Albany 'l'elephone is the product of new technology and may not yet be fully familiar to the public; it should nevertheless be recognized as the functional equivalent of existing utility activities and be treated in the same manner for land use purposes. F 't.I+U31 T (j a.... HARTER, SECRESÌ'-ðc EMERY -../ Mr. Mack Dean Building Inspector and Zoning Administrator May 9, 1988 Page -3- Albany Telephone Company is subject to governmental regulation as a public utility. Albany Telephone Company is licensed by the Federal Communications Commission and is subject to regulation by the New York State Public Service Commission. Further more, as one of only two companies in the area permitted to offer cellular telephone service, it is part of a governmentally-sanctioned "dual monopoly". One of the leading cases defining a "public utility" for zoning and land use purposes, S taminski v. Romeo, 62 Misc. 2d 1051, 310 N.Y.S.2d 169 (Sup. Ct., Suffolk Co. 1970), cited governmental regulation as a criterion for determining whether a company qualifies as a public utility. Specifically, Staminski held that a cable television company that was regulated by the Federal Communications Commission and "potentially" regulated by the State of New York Department of Public Service was sufficiently regulated to meet the criteria necessary for a company to be a "public utility" under a local zoning ordinance. In Albany Telephone's case, the company is regulated by the State of New York Department of Public Service. Under Section 2, subsection 23 of the Public Service Law, the term "utility company" or "public utility company" is defined as persons or corporations ...operating an agency for public service subject to the jurisdiction, supervision and regulations prescribed by or pursuant to (the Public Service Law) .... Section 90 provides that the provisions of Article 5 thereof shall apply to ...communications by... telephone between one point and another within the State of New York and to every telephone corporation. . . . In turn, a "telephone corporation" is defined in Subsection 17 of Section 2 as ...every corporation partnership and person ... owning, operating or managing any telephone line or part of telephone line used k ¥ti", (J rr ß .3 "'''''.;.~\;...:'':!.';~L·:.^'~'..,';..;M.'''':·:->L..,..·.·.,,;·;''T-,~.:..Li. HARTER, SECRE~& EM ERY ,..--/ Mr. Mack Dean Building Inspector and Zoning Administrator May 9, 1988 Page -4- in the conduct of the business of affording telephonic communication for hire ... and Subsection 18 of that same section defines a "telephone line" as including, among other things, ...receivers, transmitters and all devices, apparatus, property used, operated or owned by any telephone corporation to facilitate the business of affording telephonic communication. As noted above, Albany Telephone Company is also licensed by the Federal Communications Commi ssion. Thus, Albany Telephone is heavily regulated, as required by Staminski. See id; see also Commonweal th Public Utili ty Commission v. WVCH-ComÏñÜniëã'tiõñ'S;" Inc. 23 Pa. 292 (1976) (rl:quiring that a company's rates be subject to review by a regulatory body to be classified as a "public utility" under a township ordinance). Albany Telephone Company will provide a service that is impressed with a public interest. A second criterion that courts look to in determining whether a company is a "public utility" for zoning and land uses purposes is the type of service that the company provides or proposes to provide. Courts have required that the service be of "public consequence or need" and have specifically designated telephone services as a type of service that impresses a company wi th a public in terest. SE~ Mammina v. Town Zoning Board of Appeals, supra; See also State v. Redman, 60 Wash. 521, 374 P.2d 1002 (1962) (cited in Staminski, 62 Misc. 2d at 1055, 310 N.Y.S. 2d at 173). --- Albany Telephone will be providing services to the community in which its facilities will be located. The courts have required that a company that is seeking to be treated as a "public utility" under a local ordinance must be proposing to provide servicl:s to the community in which it is requesting to place its facilities. See Video Microwave v. Zoning Board of Appeals, 77 Misc. 32d 798, 354 N.Y.S. 2d 817 (Sup. Ct., Westchester Co. 1974). In Video Microwave, a company wished to construct facilities in New York State for the purpose of relaying signals to television broadcasting stations in the New England area. The court held that the company was not proposing to provide serviC'e to the New York State communi ty k'l.fhlf.[ '7 4..¡ ~;"""~'.:. ~':':"':')'~".".": ":¡,..~!:\,.~~,~,, '-4."":";;~"'~' .:, ";~..' '0.'_..'.:~!-";'''. :'.....!,,,.,~,.II.~":!!''''':,i>.....~.......,''-'-'-,,_,,'-'-''.:~"__ HARTER, SECREh-& EMERY Mr. Mack Dean Building Inspector and Zoning Administrator May 9, 1988 Page -5- under whose ordinance it wished to qualify as a public utility, and that the company therefore could not be viewed as a public utility under that local ordinance. By contrast, Albany Telephone proposes to place its facilities in the Town of Queensbury in order to provide telephone services to residents of, and businesses in, the Town and the surrounding areas in the Capital District. In this way, Albany Telephone easily passes the Video Microwave test. Albany Telephone's telephone service represents the type of new technology that courts have been willing to, and insistent upon, recognizing as equivalent to the old technology in It:he service it provides. In Crowley v. New York Telephone, 80 Misc. 2d 570, 363 N.Y.S. 2d 292 (Dist. Ct., Nassau Co. 1975), in which a party to an easement attempted to block a cable television company from using a public utility easement originally granted (in 1949) to the telephone company and other "public uti Ii ties", the court concluded that the process of determining the definition of "public utility" must adapt to progress in business and industry and not just those that existed at the time of the agreement. See also Hoffman v. Capitol Cablevision Systems, Inc., 82 Misc. 2d 986, 372 N.Y.S.2d 484 (Sup. Ct. '" Albany Co. 1975) (requiring broad interpretations of easements referring to public utilities to meet progressive inventions). The Crowley court based its decision on the needs and interests of the public, noting that a refusal to recognize new technology under the definition of public uti Ii ty could deprive the public of the benefits of technological progress. See id. Specifically, the court listed communicating during emergenciëS, business and educational uses as areas in which cable television could benefit the public. Indeed, if current availability, current pricing and current market acceptance were the determining factors in deciding whether an activity qualifies as a "public utility," the fi]:st airports, the first power lines and, indeed, the first superhighways could never have been built. Similarly, in Albany Telephone's case, to refuse to recognize Albany Telephone's new technology as a public utility could deprive the public of the benefit of its use and violate the caution of courts such as Crowley that require that the term "public utility" must be viewed in light of changing times and scientific advances for land use purposes. I<. y"j'l--/4S f7 ¡J Š -.-...--....".. ,~' ._....-_.."~--_.,þ.,~.~,._.__......... IiÁRTER, SECR~ & EMERY '- Mr. Mack Dean Building Inspector and Zoning Administrator May 9, 1988 Page -6- In summary, the activities of Albany Telephone Company differ in no respect from the cellular service offered by other companies in markets across the United States and provide the same service, in a somewhat different form, as more traditional telephone companies. As such, the proposed use qualifies as a "public utility" and should be treated accordingly for purposes of zoning and land use planning. I look forward to hearing from you regarding the manner in which the Town desires to proceed in this matter. Should you require any further information in the meantime, please feel free to contact me at your convenience. Thank you for your attention to this matter. Very truly yours, HAR¡þdE¡T Frank S. Hagelberg FSH¡jh cc: Albany Telephone Company 0881630fsh Æ: '/..H 10, T ß fa · . -.....------ .--,- - \I'I~' 8. OLllk~ 7-14-66 11:50AM; 715652295-+ ..-/ ; þ 2 ITA,~B or HIW YORl PUBLIC IIRVZCI COMMI8.ION At a ....ion of the "ubl1oaerviC:I Co_i.aion beleS.in the City of Albany on May 15, 1985 COMMtl'JONERI.'RII~MT, Paul L. 0101a, Chalr.an Edward P. t.arkin Carm.l CarrlftltonH."r Ro.emary I. Poollr. oa11 aarfleld Schwartz CAli 21051 .. Cellular Iy.tt. On' öf 11bany - 'etition for a Clrtitioatl of Public Conventencl and .Iee..ity to conatruct and operate '. aotl1ulat radio teleco_~n10.tlon Iy.t.lm to provide ..·rvicI ,In the Albany, New York c.llul.~ t.ographia .er.101 are.. ORDIR I8.aXRGCIRTIPZCATE or POILIC CONVIR%IRCI AND RICISS%!Y (I8.~eð May 11, 19ê5) .. - Iy petition fileð Marcb,22, 1985, Cellular 'Ylte. One of Albany .o~gbt autbority p~r.u.nt ,to 'Ietion .9 of the Public ServicI La" ltõ'õ'.rate a Cll1ürar ti1iitiõne ·utili~y'-ñEñë-AIb'11\y,.n-rCSrr:-·_- area. 'be petitioner va. ,ranted a con.tr~ct1on permit for thl ,rope..d t.cil1t1e..~ro1ft tbe 'ederal Colllftunicat1on. Co_i..ion. At our May 15, 1.8S ....ion' ve determineð that public convenience and neo...it)' zequir. tht conatruQtioft .n" op.ration of facilitie., by Cellular 8yat:em On. of Albany. The operation to be certified herein 'hall provide reliable oellular radio telecommunications a.rv1oe within all or part of the contours defined by the pee a. the Albany cellular geographic a.rvice ar.a. EXHIBIT B ì "1' 8. OL~IO ?-14-ee, 11: SlAM ; ?158S229S~ 2 ..-/ ; ** 3 -- Aooordin,1y,-it ia CIRTIrlCD t.bat ,ubject ,t.O 'b. condition. her.inafter .et forth· in t.h1a Order, and not. otblr"i.., public oonvenienoe anð ,. .'.,':; .' ntee..ity require the oper;lt;lon o!hlthcå,acit)' land .obi1. oellular;- raeSio t.elephont facil1t1.. ÞyCtl1ularIYlt.. On. of Albany 'to enabl. it to off.r to tbt,eneral publiO otllulat raðio ttlephone ..r;vic" with1nth..lbany C.llular geotraph1c ..r.s.a. are., and it 1- furtber OaD'RI1)1 1. ~bat tbia Order conltitut.. a Certificat.e of public Convenience and ..a...ityauthoriling Cellular IYlt.. On. of Albany to \ pr0914. c.llular telepbone faoiliti.. al ð'lorlbeð 1ft ita pet.ition within 'be 'tat. of .ev York, z. ~h.t appropriate tariff lohedul.a ahould bt filed with the C0Ill11..10n within nln.t~y day. of th1" Ord.r, 3. That tb. Ctrtifioate of Public Convenience and .ec...ity .et forth in thl. O~4'r will ber.toked witbout further notictif Cellular .Ylttm Ont of Albany fail. to file it. .cheðul. of tariff. ...".l~h...1-~ COIll1ft1111oZL!1tb11l.JO 4,y., of~.h!!. Order, 4. 'rhat on or b.:fot. .ept'l&ber 4, 1'87, C.llular .)'Ite One of Albany lubmit. proof to 'the Ccnmd...1.on that it s.. providint .."10' to the entirt Albany CGSA. S. 'hat if the .ftti~.CQ8A 1. ftot ..~yeð by I.~t..b.r 4, 1.e, tbe certificate will b..odified to includ. only th. at.a actually ..tv.d. - EXHIBITS 9 & OLI-..-,IO 7-14-813' " ,,<' 71S85~95-+ " ,\~~ --,/ I. -"bat ~hl. Or..ri' elf.cti.. "_.~U..t.1Y' aftc1" ,. 'fhat't'bl. pcoc:..ðtnti.'oontinue.s.: (aIGIB) ~olM ~.iILL1.1. secretary , .. _-----0&1 ........Á. -~---.....-. -- EJQtIBI'l' B1 ,',j "" TOWN 0,1' QU]¡:El'{ljBURY f J LE C 0 P Y COMMI.',\"J']¡:E FOR COIöIIINXTY BEAUTIFI CATIO: RobertL. !:ddy, Chairman ' .Mrs. ArthurJ. Seney, Secretary 1?Owen Avenue 8 Queensbury Avenue , "Queensbury" N. Y. 12801 . , Queensbury, N. Y. 12801 To I (x) Warren County P1anni:ngBoard, '.' Da. te I 7/11/88 .( ) Queensbury. Town P1anningBoard, ¡ '. (X) Queensbury Town ZoniJrlg Board of Appea1s (X) A.pp1icant '-- Re. Variance #1378 Bay Road We have reviewed the request Jror.CX) Variance. ( ) Si tePlan Review, ( ) Other... and have the tollc)wingrecommendations. () Approval ( ) Disapproval' (X) Tentative Approval Attorney John Carusone described plans for plantings on the proposed site of new att,orney offices. Actual renderings and i · species to be used had n()tbeenmade, availableby the landscape architect. , , .Thè~eai'" (westerly) portiono{'the property will be left in its pres,~ptnatural state (approximayely 3/4 acre. " J,-, The Only question of one committee ~ember was the buffer zone between the ápplicant's.parking area. and the northeast corner oft,hf¡! second ,house in on Garrison Road - Owned by White. As soon ~s the landscapearchitect's plans are available, they will be given final· review. ' '" : The architectural rendering of'theexpected appearance of the 'building indicates that it will blend in well withfue residential neighborhood. ' :1<- _'>\~ In~:additionlto the above lands,caping,' screening and planting provisions, Committee wishes to go on :recordt,ha t it does not approve I, 1. Non-conforming signs,. . .i:' .....' . \2. Plastic or artificial' 'trees .:shru'bs .orflowers. ,.', ",,,' " "1 ~,\' ,C In~pp~ovip(!;theabove'or att;:Lched"p:J.a.n~ ),"the Committee has the expressed or'im1>lj"ed'j;"greement otthe aPJPlicant'to '):'eplace immediately dead trees. ~hrubs',J~,:r;t)lants. andtogive:proper,mai~~ena.nce.to all plantings. All -rubbish~cop:tainers or dumpsterJS shall be screened, allplaptings shall be mulèhed:i;:and~,,"trees shall be retained .or :Pl.anted ,:as agreed. ; ~ '>,'''-;,'-':' '-.·"';>r:-}:i~i:->:~(':';}::::·~1~"3~'-;';'" ':. \ . '. ._t " <, ' ::/.'/~;;}<:-- 1:ully ~:f;t;Ly~ Eddy, Chair:~ EXHIBtTC -_....,.,-...._,- .~ ..:.;., -- ---- "- ..../ ROBERT F. GUYETT :!50 BAY ROAD GLENS FAIdoS, NEW YORK, 12801 July 7, 1988 '. Town of Queensbury Planning Committee Town Office Building Bay Road Glens Falls, New York 12801 This is a request for ,a change in zoning of my property, consisting of a house and approximately 1.06 acres of land, located at 250 Bay Road, Town of Queensbury. I recently retired and wish to sell this property which I have had, officially, on the market since May 1988, but it has been meeting sales resistance as a single family dwelling ()wing to its location and features and characteristics of the neighborhood. Owing to the widening ()f Bay Road, the house is about twenty feet from the edge of the road. This road, which now may be regarded as a major highway, is heavily traveled by passenger cars and trucks of all sizes and descriptions resulting in much noise and vibration within the dwelling. Travel is continuous until well after midnight with hea'~ truck travel resuming at about 5 a.m. In fact, a heavy equipment cClmpany is located on the opposite side of the road about 300 feet fJ:~om this property. Directly across the road from the residence is Duke Industrial Park. Equipment frequently operates in the CEiment block manufacturing area of the park until after midnight., 'l'he noise generated, about which I and others have complained tCI representatives on the Town Board on numerous occa.sions, violat.es the peace and sanctity of my property, often interfering not only with sleep but with simple conversation in the dwelling in the afternoons and early evenings. Crossing Bay Road and I"unning diagonally within about 150 to 200 feet of my property is a D & H Railroad spur adjoining property which is zoned light 'industrial and currently occupied by a plant which formerly manufactured paper machinery. EXHIBIT D1 I '" ".- '-- .J. Planning Committee -2 July 7, Owin<} to the featUres ,an,dchâ2:acteristics of the , neighbor- hood described on' the previcluspage, I have, found occupancy of this property intolerable, aJ1ld,. ." for this reason, ,I. am , offering my property for sale. However, it is precisely these features and conditions that make thi.s property unsaleable as a single family dwelling. A change clf zoning to commercial or light industrial is, therefore, re:questedto enable me to sell ,this property while realizing a fair market value. EXHIBITD2 ~ ~. ./ - - - :STATE OF NEW YORK EXECUTIVE DEPARTMENT ADIRONDACK PARK AGENCY P.O. BOX 99 RAY BROOK, NEW YORK 12977 nlte) 89' ·.c01S0 JUly 19, 1988 Ms. Lee York Town Planner Town of Queensbury 8ay at Haviland Roads Queensbury, New York 12801 Dear Lee: "<'."'~' -- . ""OWN C:F Qm;E!'>,!~:PU:'\ ., YT,-'.Y;;;;11~:;ii.( -1'í\t)ll'~"¡ ~.~! I , \:,;, \, \'!;.; ¥/1 I ~;t: i : I: ,. (~~,;1'\ t ! , JI~~ ~~88 "'~,; \. ,.-., FILE COpy On July 12 we received materials related to three variances, and have the following questions and comments. Kaminski: The 50 foot shoreline :setback appears to be measured where the dock is (north end), ~bereas the distance to the shoreline at the south end is less than 50 feet. It doesn't appear that the site prohibits con:struction in compliance with the ordi- nance. Also, plea~e send a copy of the Z8A findings once action is taken. Sandsmark: Is there a plan of the new structure that will replace the existing one? the mat«~rials received do not include the Z8A findings with respect 1~0 each variance criteria, please send the minutes or record ()f findings? Frasier: We assume this is a prE~-existing vacant lot of record, please confirm. In general, we find the agendas useful (would it be feasible to indicate which items are in!dde the 8lue Line (just write "P" on the list?), and for those, indicate the tax map number and if feasible, what APA land use area and whether its a Class 8 or local permit. EXHIBIT E, - ."~<j';;,~ , ' '--' ~ Lèe York Il!Y 19, 1988 Page 2 " ...-' Please call ìf you have qUEistions; 1). w. Hotalìng, Chìef Government Servìces JWH: nmh cc: Dan Lìng, Assìstant Planner Barbara Rottìer, Assocìate Counsel, APA Gregory Hìll, Lake George Basìn PlannìngCoordìnator, APA EXIIIBIT E2