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1997-06-25 /' \ , , --- . 1 FILE 'wi QUEENSBURY ZONING BOARD OF APPEALS SECOND REGULAR MEETING JUNE 25, 1997 INDEX Area Variance No. 31-1997 Tax Map No. 16-1-30.3 Geraldine & Robert Middleton 1. Area Variance No. 22-1997 Tax Map No. 55-2-22.21 Michael Hayes 20. Area Variance No. 32-1997 Tax Map No. 123-1-40.1 Rui & Kathleen Gomes 24. Notice of Appeal No. 2-97 John & Kathleen Salvador 31. THESE ARE NOT OFFICIALLY ADOPTED MINUTES AND ARE SUBJECT TO BOARD AND STAFF REVISIONS. REVISIONS WILL APPEAR ON THE FOLLOWING MONTHS MINUTES (IF ANY) AND WILL STATE SUCH APPROVAL OF SAID MINUTES. " '.'i.f....~.·'.. t f{. . .. ;' ~; P'!' __..d m .j '"'-' '-'"' (Queensbury ZBA Meeting 6/25/97) QUEENS BURY ZONING BOARD OF APPEALS SECOND REGULAR MEETING JUNE 25, 1997 7:00 P.M. MEMBERS PRESENT CHRIS THOMAS, CHAIRMAN BONNIE LAPHAM, SECRETARY ROBERT KARPELES LEWIS STONE ROBERT MCNALLY BRIAN CUSTER PAUL HAYES PLANNER-GEORGE HILTON TOWN COUNSEL-MILLER, MANNIX & PRATT, JEFF FRIEDLAND STENOGRAPHER-MARIA GAGLIARDI NEW BUSINESS: AREA VARIANCE NO. 31-1997 TYPE II WR-1A CEA GERALDINE & ROBERT MIDDLETON OWNER: SAME AS ABOVE 119 SEELYE ROAD, EAST SIDE OF SEEYLE ROAD, OFF OF CLEVERDALE ROAD APPLICANTS PROPOSE THE CONSTRUCTION OF A NEW HOME TO REPLACE AN EXISTING HOME. THE NEW CONSTRUCTION WILL NOT MEET THE SIDE SETBACKS AND SHORELINE SETBACKS LISTED IN THE WATERFRONT RESIDENTIAL ZONE. RELIEF IS BEING REQUESTED FROM THE SIDE YARD AND SHORELINE SETBACKS LISTED IN SECTION 179-16, WATERFRONT RESIDENTIAL ZONE AND THE SHORELINE SETBACK REQUIREMENTS LISTED IN SECTION 179-60,B,l,C. TAX MAP NO. 16-1-30.3 LOT SIZE: 0.97 ACRES SECTION 179-16, 179-60,B,1,C GERALDINE MIDDLETON, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 31-1997, Geraldine & Robert Middleton, Meeting Date: June 25, 1997 "PROJECT LOCATION: 119 Seelye Road Proposed Project and Conformance with the Ordinance: Applicants propose to remove an existing home and construct a new home in the same location. The new home would not meet the side yard and shoreline setbacks required for the WR-1A zone. The applicants propose to build a new home in the same location as the existing home, with setbacks of 10 feet from the shore and 5 feet from the side lot lines. Cri teria for considering an Area Variance, according to Chapter 267, Town Law. 1. Benefit to the applicant: Relief would allow the applicants to build a new year round home which could be used year round. 2 . Feasible alternatives: The applicant may have the ability to construct this home more toward the center of the lot between the existing garage and the shoreline. This could possibly eliminate the need for side yard setback relief and would reduce the amount of needed shoreline relief. 3. Is this relief substantial relative to the ordinance? The applicant is seeking shoreline setbacks of 10 feet and side line setbacks of 5 feet. These setbacks may not be substantial given that a house already exists with these setbacks. 4. Effects on the neighborhood or community? It is not clear what the effects on the neighborhood might be. If the height of the new home is higher than what exists, there may be a decrease in scenic views from the property to the north. If the height and layout of the new home remain the same near the north property line, then the new home may not have any new negative impacts. 5. Is this difficulty self created? A difficulty was created when the existing home was built in 1920 before any zoning requirements were in place in Queensbury. Staff Comments & Concerns: The applicant should indicate what the height of the new home will be in order to - 1 - (Queensbury ZBA Meeting 6/25/97) MR. THOMAS-It could be because if that right-of-way wasn't the, camp could be moved more toward the center of the property and back a little farther from the lake. MRS. MIDDLETON-Because if we gave up the right-of -way, then we would have to go 50 feet back from the lake. Is that correct? MR. THOMAS-Well, we would try and ask you to go back 50 feet from the lake. MRS. MIDDLETON-So you're saying you might go for a variance so you wouldn't have to go 50 feet back? MR. THOMAS-Well, it just depends on how far back you could go. If you took the camp where it is now, and you moved it south, toward the center of the lot, okay, along the lake, in front of the garage, and the outhouse, in there, it depends on how far you could get from the lake. A minimum, we would like to see a minimum of 50 feet, but if you can't get it, then you would still need the variance, but in order to do that, Mr. Kaidas would have to give up his right-of-way, his deeded right-of-way across your property. MRS. MIDDLETON-We would want more than that. He would have to give up the boathouse, completely. MR. THOMAS-Well, I don't think he's going to do that, but he could give up just the crossing, I do believe. MRS. MIDDLETON-There's a rock ledge there, and there's a wall. So you can't go back too far, but I believe 50 feet would be approximately, well, it would definitely be in the right-of-way. MR. THOMAS-That's right. MRS. MIDDLETON-But there's a big rock ledge there. MR. STONE-Are you saying the boathouse that is in your riparian rights, right in front of your property, he has easement to it? MRS. MIDDLETON-He has easement and he has use of it. In the deed you'll see it's as if joint tenants. So he puts his junk in there, and he parks his big boat, at his boat which is illegally 10 feet from our property line, projected property line, where it should be really 15 feet, but when they built it, they built it from the north to the south, so by the time they got the south it was already wrong, but anyway, he's got this large boat that he has tied to his boathouse, and tied to our dock. That was the Christina. MR. HAYES-Now, the inside of your boathouse, he can use that as well? MRS. MIDDLETON-Yes, he does. We have a deflated rubber raft that's been there several years, and we have old water skis, an old sailboat board, anything that he doesn't want goes there, but then he does put stuff in there that's good also, that most of it's junk. MR. STONE-Do you have your own boat in there? MRS . MIDDLETON - Yes, we do . because it's. He couldn't put his boat in there MR. STONE-Well, that one, but what if he. MRS. MIDDLETON-He has a smaller boat. He still couldn't get that one in there. This is a very small opening to the boathouse. It' s less than eight feet. So it was made for the old (lost words) very - 3 - '--' ,_./ (Queensbury ZBA Meeting 6/25/97) determine what the impact may be on the property to the north. If the ZBA votes to grant relief for the proposed home, staff recommends that some type of stormwater management system such as drywell and gutter system be included in order to prevent runoff into Lake George. SEQR: Type II, no further action required." MR. THOMAS-All right. Mrs. Middleton, do you have anything else you'd like to say? MRS. MIDDLETON-Well, I just wanted to point out, I thought the home was built about 100 years ago, and we purchased it because of the location. It was close to the water, and it appeared to be quite private, but we had a good view of the lake. This property was previously owned by Michael Kaidas and his sister, and it was one piece of property that was divided in half, the house being in the center of the property. So our neighbor to the north is Mr. Kaidas, and because he had a boat, and there was nothing on this other piece of property, they wrote a right-of-way into the deed so he comes down our driveway, from the south end of the property, going north, to an entry to his property, and then around in front of the house to the boathouse. So he has access to his boat and the boathouse as well, and this is all spelled out in the deed, and I believe you all have a copy of it. At the time that we purchased this property, there was no other house on that other piece, okay. So Mr. Kaidas built the house, his house now, a few years after we had purchased, and knowing that we would some day either winterize or re-build, he built his home in such a way that he got a view of the lake, looking out of the bay. We've been here in this building for about 20 years, a little more. The original entrance to the house was facing north, at the spot on the map that shows where he needs the variance, the five foot away. Well, that is not our original entrance now. It's going to be, actually the kitchen door is our front door. The other one is blocked with a row of trees, which gives Mr. Kaidas his privacy, because he's so close to us. So he can't see us on the porch, unless he peeks through the bushes, and then there's also a line of trees on the one side, other side. I think that's about it. So all we really want to do is just put the house back where it was, only put a new one, one that we can use year round, with a foundation and heat. MR. THOMAS-Any questions for the applicant? All right. I'll start it out. Have you approached Mr. Kaidas about having his relinquish that right-of-way that goes through your property, since he has a driveway of his own down to his property? MRS. MIDDLETON-No, we haven't, because we like the spot that we're at. The house is like on a point of land, and it puts us closer to the lake. If we were to move back, that's 50 feet back, and it would infringe on his right-of-way. MR. THOMAS-But did you ever ask him to relinquish that right-of- way, give it back to you? MRS. MIDDLETON-He would have to give up everything. He would have to give up the boathouse as well, and parking his. MR. THOMAS-Well, I mean, just the crossing across your property, the right-of-way across your property. MRS. MIDDLETON-How do you do that on a deed? It's written in the deed. MR. THOMAS-I don't know. Jeff, can you change the deed? MR. FRIEDLAND-Sure. I mean, you can relinquish a right-of-way. I don't want to pretend to give you legal advice, but it can be done. I'm not sure it's relevant to the Area Variance at issue here, but as a general matter, it can be done. - 2 - (Queensbury ZBA Meeting 6/25/97) MRS. MIDDLETON-For. I wouldn't make you wait for somebody against. These are just sketches that were made by a friend of ours. We weren't sure what way we wanted to go, but he took them from the footprint, and this is roughly what we started with, but this is not the one (lost words). We wanted to go two stories, but because of the way the property situated, it's down hill. Our garage is up on another level, and that probably is even lower than that second story would go on the house. This is just rough drawings. Okay. That's the lake side appearance, and this is actually the first floor. That's how I came up with the footage of how much square feet there was to begin with on the first floor, okay, and this was just the second floor, going only half, but we're not too sure about that. As I say, it's something we weren't sure of. MRS. LAPHAM-What is the second floor? MRS. MIDDLETON-It's just a little, this is open. MRS. LAPHAM-Down to the living room? MRS. MIDDLETON-Yes. MRS. LAPHAM-So there'd be four bedrooms altogether? MRS. MIDDLETON-Three. Two up and one down. MRS. LAPHAM-Okay, because I see one, two, three, and one down. MRS. MIDDLETON-The master bedroom, you're right, but, like, we were really only thinking of three, three total. We didn't want to go to the expense of an architect, because we didn't know if we could do this. MR. STONE-Where is, in this picture, where is the ground, and how high is this highest point here from ground level, from finished grade, elevation? I mean, the Code calls for 28 from finished grade. MRS. MIDDLETON-It wouldn't be much higher than what it is already, because it's a kind of a raised ceiling in the living room. MR. STONE-Well, that's here, but I'm talking about here. MRS. MIDDLETON-But as you can see, this is like only half. So it's probably another 10 feet. I don't really know. Whatever the Code says we should do, that's what we will do, of course. MR. STONE-Okay. Well, Code calls for 28 feet from finished grade, wherever finished grade is here. MRS. MIDDLETON-Yes. Well, I know you were all there, and you saw that the lowest point was over here to the south, on the bottom. That's the only place that you could actually put a good foundation. This up here is much higher on the west side. If you see by these pictures, you can tell how high it is already. MR. STONE-Right, but it can't be any higher than then 28 feet from here? Mr. Chairman, are we right? It can't be any higher than 28 feet from here? MR. THOMAS-Right, that's right. MR. STONE-That's finished grade. MRS. MIDDLETON-That's the lowest point. MR. THOMAS-That's the lowest point. You can't be any more than 28 feet. - 5 - '-- ~ (Queensbury ZBA Meeting 6/25/97) long and narrow. MR. STONE-Okay. MR. THOMAS-Any other questions for the applicant? I'll open the public hearing. No? If not, MRS. MIDDLETON-Maybe I should say, we do have some pictures here that shows that we're not blocking anybody's view. Can I show them to the Board? MR. THOMAS-Sure. MRS. MIDDLETON-Okay. We're starting with a picture of the house, our house, and you can just barely see roof of his house, which is in the back and over to one side, and that's at an angle. So it's facing another way than ours. Okay. You can see the house. His house is very dark. It's a brown, and this picture is a picture of our porch, which shows these trees which he has a barrier, so we don't interfere with him, and this is a picture of his house, as it looks out the lake. This next picture also shows his boats, his boathouse as it appears in this picture, and that's the view, you have the beach there. This one is just from his patio, and as you can see, he can't see our house from there, and this is like through the bushes. This is a much better picture. You can see (lost words). It shows the house, and the next door people's lot, which is to his advantage, because it cleared the lot. You can really see out to the main land. You can see the beach and the house and the land, all in that picture. MR. KARPELES-What is this one? What are we looking at here? MRS. MIDDLETON -Okay. This is his boathouse, and this is his beach. So his looking out, you cannot see his house. MR. KARPELES-Where's your boathouse? MRS. MIDDLETON-I'm right next to it. Over here. own boathouse, and this is just another one that out of the bay. The last one is way out on the see that he has a full, clear view, all the way of the five mile markers. He cannot see his shows him looking point, so you can up to the opening MR. STONE-Now who's house is this? Is this his house? MRS. MIDDLETON-That's his house. MR. STONE-Where's his other dock? He has two docks, I gather. MRS. MIDDLETON-You can't see it, because it's over here. He can't see it, either. MR. STONE-Okay. Is this his boat, too? MRS. MIDDLETON-The property line is here. This is next door. MR. STONE-That's next door. Okay. Thank you. Okay. I see. MR. THOMAS-Any more questions for the applicant? up the public hearing. Those wishing to speak variance, in favor of? If not, I'll open in favor of this PUBLIC HEARING OPENED MRS. MIDDLETON-Excuse me. Somebody is just coming in now. They had to come up from Schenectady. MR. THOMAS-Are they going to be for or against? - 4 - (Queensbury ZBA Meeting 6/25/97) hospital, and he's in critical care, and he said be sure to get up there and go and talk to the people about the Middletons, because it's important that they're allowed to do this. What else can I say? Do you have any questions? Because I'd like to answer them. I'd like to do whatever I can do. JOE GUERRA MR. GUERRA-I would like to just say that I think any structure they have would be an asset to the lake. I don't know what requirements they're restricted to, but I'm sure they would stick to them and it would be an asset anyway. MRS. GUERRA-Well, they're an asset to the road. They're an asset. They're very helpful, and they're always there for any of the neighbors, the kids, whoever, and I think in this day and age, when most people walk away from a situation, and you have people like Gerry and Bob Middleton, you're lucky to have them on the street. MR. THOMAS-Okay. Anymore questions for? No? Thank you very much. MRS. GUERRA-You're welcome. If you have any more, I'm here. Thank you. MR. THOMAS - Would anyone variance? In favor of? Opposed? else like to speak in favor of this Anyone would like to speak opposed? MEMBER OF PUBLIC-I just have a question. What would be the normal setback, 10 feet, as opposed to five feet? MR. THOMAS-That piece of property which is 108 feet along the front, it would have to be 20. MR. HILTON-Twenty on the side. MR. THOMAS-Twenty on the side, and fifty from the lake. MICHAEL O'CONNOR MR. O'CONNOR-Mr. Chairman, Members of the Board. I'm Michael O'Connor from the law firm of Little & O'Connor, and I'm here representing the neighbors immediately to the north of the property that you're considering, Mr. and Mrs. Kaidas, they are here with me and they have a number of questions as to what is being proposed. Basically, they are trying to protect their property, if they can, from any type of encroachment. I would begin, I guess, with a couple of questions, and I looked at the application, and it said that they are basically replacing, it looks like from what I can see, the footprint of 2375.5 square feet, but then I looked at the Assessment record and did a calculation based upon that, and they only show 910 square feet of living space. There seems to be a great discrepancy between the application and the records that are here in the Town hall. So I'm not sure what that basis of discrepancy is, and that's I have made another calculation, including what are the screened in porches, which I don't think actually qualify as living space, and I come up to 1218 square feet, and they're talking about almost twice that on appears to be the first floor, and then they appear to be talking about almost 600 square feet on the second floor, if I understand their calculations correctly. I don't think they've shown you adequate elevations for us to really make a judgement as to what effect that will have upon our view, and I'm not sure if you're looking at this as being, I guess you're not looking upon it as being an expansion of an existing building, even though they are trying to say that the footprint is grandfathered, because there's a specific section of the Ordinance that says you can't expand on this type lot in a Critical Environmental Area in excess of, I think it's 50%, and I - 7 - '--- '"-"" (Queensbury ZBA Meeting 6/25/97) MR. STONE-If you slope up, as the qround goes up, but it can't be higher than 28. MR. THOMAS-Feet. MR. STONE-At that point. MR. THOMAS-From that point. MRS. MIDDLETON-Okay. MR. THOMAS-And that's to the peak also. MRS. MIDDLETON-Okay. This is only, it's not much more than six feet, because you hit your head, and of course the bedroom probably is eight feet. So that would give you another 10 foot to go up, right? Anything else? MR. THOMAS-No. MR. STONE-Not at the moment. MR. THOMAS-Well, I'll open up the public hearing. I already opened it. Anyone wishing to speak in favor of this variance? In favor of? Please come to the microphone and state your name. ROSE GUERRA MRS. GUERRA-My name is Rose Guerra. This is my husband Joe Guerra. We'd like to speak in favor of the Middletons. They have lived on Seelye Road for 20 years. We have been there for 31 years. I'd like to, if I may, just tell you a little bit about the kind of people the Middletons are. My daughter was out in a sailboat one day, and the wind changed, and she was out with several of her friends, and I was out, I was gone. I didn't know she was stuck out on the lake, but Bob Middleton knew, and he went out there, and he looked for her, and he brought them back in. There were three girls. They're very, very conscious of the lake, probably more so than most of the people on Seelye Road. The lake is very important to them. I hope I don't sound corny, because I don't mean to do this, but Bob Middleton found a duck, a turtle got its foot. So he takes it to the vet, and then he goes and gets the turtle and puts it in a milk crate, and takes it way up to the narrow, so the turtle couldn't hurt anymore ducks. That's the kind of people we're talking about, okay, and they're the kind of people that, after living on Seelye Road for 31 years, I would like for my neighbor, and they have had many, many problems. Things that should not happen have happened to them. For instance, a big fence being put right along the side of their house, so they couldn't look out at the lake, which was not according to what the standards were. Then they had trees put across their windows so they couldn't look out at the lake. Now they have a huge, huge cabin cruiser in front of their house, just to ruin their view. Maybe I sound annoyed or angry, but I am, because the Middletons don't deserve this. They're the kind of neighbors anyone of you guys up there would want as a neighbor, and they're very important, when you live on Seelye Road, and you have a volunteer fire company, and I don't know what else to say. I just want them as my neighbor, and I certainly hope you don't turn them down on this variance. MR. STONE-Where is your property? MRS. GUERRA- It's two doors from the Middletons, going toward Castaway. I don't know south, north, all that. I don't know. MR. STONE-Okay. MRS. GUERRA-But we're two doors, and my father is 90. He's in the - 6 - (Queensbury ZBA Meeting 6/25/97) was placed there last year, or within the last couple of years. I mean, that's self created. Although self created doesn't necessarily defeat an application for an Area Variance, not like a Use Variance. The same thing with the outhouse. That was recently re-Iocated. There are a lot of concerns. The main concerns are, we think that the setbacks, particularly on the side to the north, should be maintained. There's no basis for showing that they shouldn't be required to do that. There are plenty of alternatives that are available that would not require the encroachment that they've asked. If you went up and looked at the camp, I think the camp's built on piers. It's not something where they're trying to take advantage of a prior foundation, even. The mentioning of the rock outcropping, there's rock outcropping any place on there. Everybody's had to deal with it when they built their homes. Mr. Kaidas had to deal with it when he built his home 77 feet back from the lake, and I say 77 feet, too, I'll show you a map, 76 feet. I'm sorry. Seventy-six feet is the place where it's closest to the lake. In actuality, it's probably 100 or better from the boathouse. There's a good bend to the property, the frontage of the property. Also, while I'm up, I might as well be sure that you have these surveys. You're talking about 75% variance, at a minimum, on three sides of this building, and probably 60 to 70% depending, I don't know how close the building is to the south of the property, to be honest with you, but probably 60 to 70 percent on the request for the building to the front. When Mr. Kaidas built his property, I've got a number of pictures, he spent quite a bit of time placing it, and placed it so that he had a view out of most of his windows, and he can look over this existing building on the Middleton property, and see the lake, and I'm not sure if I understood the results of your conversation as to height here, but if they add a second story, they've got to be adding something other than what's there now. If that's on a rock outcropping, I wouldn't think you're going to be able to excavate enough to bring the first floor down below your present first floor and still accommodate a second floor with a pitched roof above it. Two of the roofs on the existing building are pretty much flat roofs, and that accommodated the ability to look out over them. I think you also have a problem here as to construction. If this is as rough construction as it's proposed, being on a rock outcropping, and they're going to do foundations and what not, I don't know how they're going to do that and back fill and what not on a five foot side boundary. It just doesn't make a lot of sense. Here's an opportunity improve it. There's no real showing that there's any real detriment to them, other than apparently they want to keep it as close to the lake as they can keep it, but I think everybody's had to live with the rules. The rules right now are probably more lenient than they used to be. I think another neighbor here a little bit, the next house to the north of Kaidas is here, and they built 85 feet back at the time when we had the 75 foot requirement. We've got some pictures, too. The first set of pictures or the first series of pictures, there's three there, are pictures of the north side of the existing Middleton property. The bottom of those stairs, are about 30 feet, or 30 inches from the Kaidas property. The trees are on the Kaidas property line. The second are two pictures taken from windows of the Kaidas house, which show the view of the lake over the building, over the present building, and so is the third sheet, and I'm not sure, but it sounds like, if they're going to go up another story, then that would be obstructed. There are some other regulations that I'm not even sure have been addressed or not addressed. When you're converting, although you're building a new house. I don't know if that's the same as converting, but when you're converting from a season to a year round home, you're supposed to come in with an engineers certification that the septic system will accommodate that change, when you're going from a three to four month use to a 12 month year round basis. I did not see that in the file, and I think that that would be a concern. It's our understanding that this septic system was built, this septic tank was placed on rock, and then fill was - 9 - "- '-'" (Queensbury ZBA Meeting 6/25/97) don't see any reference to that in the application. I'm also very confused as to what setbacks they actually are asking for, because there are some different sections in our Ordinance, and it's fun some times when you read them, and then other times it's not so much fun. We went through the lake shore restrictions, I think, in October of 1996, and re-did them. It looks like we probably left a couple of glaring conflicts there. If you look at 179-30.1, I think, it seems to say that there are no side lines on this particular lot, because it's a lot that's bordered on a road on one end, and a lake on the other end, and it says, in that case, the other lines will be considered rear lot lines. So I don't know if we should be looking at rear lot line setbacks or side line setbacks. I think one is, and it's 20 feet, maybe, in either instance. I'm not 100% sure, but if you look at the map, they are talking about three sides of this property being only five feet from the boundary. They talked, Mrs. Middleton talked about the former entrance to the property being on the north side of the building. There's a set of steps that go down to within 30 inches of the property line, and I don't know if that's a continuance or not a continuance, after the construction's completed. I had objected, and I will object on the record, to preserve our rights also, that this probably should have gone to the County, not withstanding the agreement that the Town has entered into with the County, because of the proximity of the proposed building to the lake. As I understand it, this building that they propose is going to be 19 feet from the lake. That's the existing building now, and I don't know if that includes overhangs or doesn't include overhangs. I mean, you're a little bit sketchy here as to what we're comparing apples to. The setback from the lake, in this area, in mY mind, is a minimum of 50 feet, or the greater of the average of the buildings on each side of the property. Mr. Kaidas' building is 77 feet back, at a minimum. So it's probably even greater than 50 feet that you would have to set this up on. I think when the Town went through and re-did the shoreline setbacks, the idea was that when people built under the existing regulations, you would try to prohibit people from building out further, and obstructing whatever they set up as their views, and in the sense, people were allowed to go closer to the side lines to get more building space out of their lots, so they'd have a bigger building envelope, but at the same time the direction was to keep them back from the lake, at least 50 feet, and in some cases, even further, even though the prior regulation, I think, was 75 feet in this particular zone. I think, Mr. Thomas, you hit upon one particular question. The basis for all this is supposed to be a showing of practical difficulty. If you look at the map, I think even a map they submitted, and if you look at the deed, because I think I was party to that deed, I forget when it was, but it was some time ago when the property was divided between Marion Jeckel and Michael Kaidas. The right-of-way was an approximate location. That's not a set in concrete location, and in the past, Michael Kaidas has offered to re-locate the right-of-way, the right-of-way that cuts through their property that they say prevents them from maintaining the setback from the lake. There are two separate right-of-ways, and I don't think we need to necessarily talk about the second one, but I will just mention it to distinguish it. There is a right-of- way from the Kaidas property at the front by the lake for him to walk to the dock and the boathouse that he has the right to use as a joint tenant. He's never fully occupied that. He's never fully tried to utilize it as a joint tenant. He built the dock in front of his own property, which you've seen when you've been up there, a dock that complied with all requirements and was called to task on before the Lake George Park Commission, when he was building it, called to task on before the Queensbury building people. He met the requirements when he built that dock. It is a legal dock. I don't know the basis for somebody saying that it was illegal, but I would distinguish the walking right-of-way from the right-of-way through the back of the property. The other couple of things, and I'm not sure if they even say they inhibit the building, the garage - 8 - (Queensbury ZBA Meeting 6/25/97) there. We were given very, very strict guidelines, as to where the house was going to be placed, how high it was going to be, how big it was going to be, the side line setback, the lake setback, no one, it seems that everybody's getting variances for everything, and I had to live by the law. Mine was at a time when it had to be 75 feet back. Because of the rock ledge broken up, you had to be 85 feet back. Had I been under the impression that you would grant all these variances, we would have had a completely different house than we have. I'm just surprised, and wondering why all these variances are granted, when we have these rules. Two doors down, last year, or this winter, a variance was granted on the length of a dock. When I applied for illY docks, they said 40 feet, don't even think of anything different. Now there's a 47 foot dock two doors away. When I built illY house, they said 75 feet from the lake, don't think of anything different. Now I'm seeing houses 20 feet from the lake? I'm just flabbergasted as to why this is going on like this. If there are rules, there are rules. If there are not rules, there are not rules, and if a variance is going to be granted as a matter of course, then that's okay, but I just don't know why, if you have these rules, I'm not going to say they're not enforced, because that's not true. They are enforced, but variances are granted, why I was forced to, or under the impression of don't even think that you're going to get a variance of being closer than 75 feet to the lake, and now I'm seeing things, new houses being built, just like mine was, that are 20 feet from the lake. MR. HAYES-You understand that this house was built in 1920, though. There's no variances associated with this house as it sits now. MR. SCHREIBER-No, I understand now. saying for a new house being built. I understand that, but I'm MR. STONE-You did not seek a variance? MR. SCHREIBER-No, sir. MR. STONE-That right was always there for you. MR. SCHREIBER-Absolutely, but, okay. MR. STONE-I just wanted you to know that you have that right. MR. SCHREIBER-But mine is 85 feet back. MR. STONE-I appreciate that, and the lake thanks you. MR. SCHREIBER-Well, that's okay. I'm just saying if that's the normal course now, and I understand now it's 50 feet, a variance is going to be granted, and you can't say this for sure, they're going to be granted as a matter of course, where that rule really isn't going to be in effect, that people are going to be 20 feet from the lake or 15 feet from the lake, because then I'm going to be looking over people consistently, and you can't predict whether it's going to be granted or not. This Board stands on its own. MR. STONE-This Board has been on record, and certainly I have, that a variance is not a God gi ven right, and this is how we have attempted to look at variances. We seek minimum relief, usually when we grant variances. We are trying to do our job as citizens of Queensbury. MR. SCHREIBER-I understand. I just don't want to end up being what I want to call it a back lot. I might as well be across the street for half the price. If all these houses are going to be 20 feet from the lake, and I'm going to be looking over them or under them or beside them, something like that. Thank you. - 11 - "- '--" (Queensbury ZBA Meeting 6/25/97) brought in to place the leach field in. I think that's obvious from some of the pictures, we've got some pictures of it. I don't know if it's a full mound system or not. I don't think it is because I don't think the LGA would allow a mound system that close to the lake. MR. STONE-You mean the Park Commission? MR. 0' CONNOR-The Park Commission. So we think that we can demonstrate very clearly that any proposed increase in height will have a detrimental effect upon our scenic view and our view of the lake. Now, is the opportunity to remedy something that took place years ago that probably shouldn't have taken place. The age of that building being built really wasn't what created the nonconformity. When that house was built, it was in the center of the lot. There came a time, though, where there was a difference of opinion between the parties that were j oint owners of that property, and I think there was even some litigation between them, and this was a settlement where a line was drawn down through, with an idea that the house would eventually be removed, a year round home would be built there, but before that took place, the person who had given those inferences, sold the property to a third party, and unfortunately the relationship hasn't been the best from the outset, but now's the chance for YOU to look at it, based upon our Ordinance, and I think make the things right. Mr. Kaidas is willing to sit down and talk about right-of-ways, if that's necessary to accommodate moving the building further over and further back. We're very willing to do that. That's all we can say at the moment, and I also, I guess, should give you the assessment record, so that you can try and figure out why there's such a drastic difference in square footage of what's proposed as to what's on record with the Town. That's got actual measurements. MRS. LAPHAM-Does this have the sketch, too? MR. O'CONNOR-Yes. That has a sketch. That shows 900 square feet. That may be, Mrs. Lapham, just living space, because I don't know if they did the screened in porch as. MR. STONE-It should be on there, if it's an adequate description of the house. MRS. LAPHAM-Okay. Before there was an enclosed porch, that was 47 by 7, so that, they're not counting that. MR. O'CONNOR-This is a calculation of 1218 square feet that shows the porches, it shows the whole foundation. MRS. LAPHAM-They're on there, unless at one time there wasn't a whole second story. MR. O'CONNOR-There are also some other provisions for conversion of year round, seasonal to year round, about site plan review when you're in a CEA and what not. I don't see any of that being offered or followed, but I think you need more information before you can act, or if you do act, I think at this point, you should deny it. Thank you. MR. THOMAS-Thank you. Would anyone else like to speak opposed? OSCAR SCHREIBER MR. SCHREIBER-My name is Oscar Schreiber. I live one house north of Michael Kaidas, and I heard the nice things said about the Middletons, and I'm not speaking for or against the Middletons. I don't want anybody to think that. I'm just really curious. When I built my house in October of, it was finished in October of 1993, I believe the permit was granted June, July of '93, right around - 10 - (Queensbury ZBA Meeting 6/25/97) of it was part of a litigation that we had to straighten out this line, to straighten out the hedge, to give up the easements, and we just have never found any give or take on either side. This has been an unfortunate circumstance. I think we wrote the law on what is a structure and what is not a structure ,based upon two different trips to the Supreme Court, regarding this property, but I also don't really think that that has much to do with your guidelines for the granting of a variance. What is the practical difficulty, are there alternates that are available, what effect might it have upon adjoining properties. I mean, there really is no practical difficulty here. MR. STONE-I understand all this, Mike. It's just a question that I felt I wanted to ask, because I hear certain rights, and then I see what might appear to me as taking away of people's rights, and this has nothing to do with where I'm going to come out on any decision that I make, but it's just something I felt I wanted to say. MR. KARPELES-I'd like to ask a question. still necessary, the Kaidas right-of-way? Is this right-of-way MR. O'CONNOR-Probably not. MR. KARPELES-Would he be willing to relinquish it entirely? MR. O'CONNOR-He would be willing to negotiate that relinquishment, as well as the relinquishment of the walking right-of-way, as well as the right to use the boathouse. We'd like to straighten out the property line, and I'll throw in a fourth item. This is not the place or forum, probably, to negotiate this, but we also don't really need, if they aren't five feet away from us, and sitting above us in our front yard, my client's front yard, look at the topographical features of that, and look at the elevation of the porch and the first, where his front yard is compared to that porch. If that isn't in that proximity, that hedge probably is also not necessary. So there are four things that are on the table there, but we've had no, apparently there was no contact with Mr. Kaidas at all prior to the filing of the application. Mr. Kaidas has a short statement he'd like to have part of the record. MR. THOMAS-Okay. MRS. LAPHAM-Okay. "My wife Susan and I built our house in 1978. An enormous amount of time and research were given in the design and placement of our home. By Code, we could have built much closer to the lake, we considered the view from all angles, and also the view of others from their homes, from across the bay and from the many boats which use the lake. Just recently, we built a glass enclosed porch to grasp the views, a second story would conclude our efforts and resources were wasted we would be looking directly into a building. We have always understood that just such a project would not be permitted because of the zoning (that we abide by) was placed to protect Lake George and all. Oscar and Debbie Schreiber our neighbors to the north, they too could have placed their home much closer to the lake by code. They chose to set back further so as to enhance the shoreline not to fill it up. Bob and Geraldine Middleton have a unique opportunity, which most will never be granted in life. The placement of their new home. They can add to the beauty of Lake George by creating a landscaped buffer on all sides of their home. Or as proposed, just fill this corner up with a building with absolutely no possibility of doing any landscaping, on two and one half sides. Also limiting their own access to their building, to only one and one half sides. The Middletons would like to build up to get a view from a second story and still would have a limited at best view from the first story, and again very limited access." - 13 - '-" '-/ (Queensbury ZBA Meeting 6/25/97) MR. THOMAS-I have one question for you. Was there a building on the lot when you built? MR. SCHREIBER-No. MR. THOMAS-It was just an empty lot? MR. SCHREIBER-Besides like 1,000 trees, yes, never a building on it, no, nothing had ever been built. It had been a cut out lot. A neighbor of mine, McCollister's, or Beals, I think it was under, owned it, and it was cut separately, and it was always a cut out lot since, I think, 1940 something, but, no, in answer to your immediate question, nothing had ever, ever been built on it. That's why everyone thought I was crazy when I bought it because we knocked down the trees and they said, do you know what's under there, and I said, no. Thank you. MR. THOMAS-Thanks. MR. STONE-I have a question for Mr. O'Connor, if we're asking questions. Your client talked about his view being interfered with, and yet when I looked at the property, on the property line, it appears that the Middleton's neighbor, you client, has planted a row of trees which effectively cuts their view considerably. MICHAEL KAIDAS MR. KAIDAS-Can I answer that? MR. STONE-You certainly may. MR. KAIDAS-My name's Michael Kaidas. As far as planting trees, which rows are you talking about, the ones that are between his house and my house? MR. STONE-No. The ones that are near his side porch. MR. KAIDAS-Near his side porch? You mean where the Rhododendrons are and all my bushes? MR. STONE-No, pine trees of some evergreen type. MR. KAIDAS-That are on mY property. MR. STONE-Yes, they're on your property. MR. KAIDAS-Show me where you're talking about. MR. STONE-I'm talking on the north side of the house. MR. KAIDAS-The north side, that's our only privacy. If we go down there, the only privacy we have is because of those trees. I can hear every conversation, they can hear every conversation ~ have. That's the only buffer we have. When we walk to the boathouse, the boathouse is on mY property. The boat that the other young lady complained about is in front of mY property. I could have built 12 feet from the property line. I chose to build 15 feet, so I bent over backwards. I don't understand that landscaping is a detriment. MR. STONE-I only ask because you're asking for your rights, and you're entitled to do that, and yet you've taken away their view. You're talking about your view. It's just an anomaly, as far as I'm concerned. MR. O'CONNOR-That hedge that you talk about on the north was a privacy hedge because of his front yard. It wasn't built with the intention of blocking view. We have offered in the past, and part - 12 - (Queensbury ZBA Meeting 6/25/97) MR. HAYES-I think it's the footprint issue. MRS. MIDDLETON-It's part of the footprint. MR. HILTON-It would be considered part of the, if it's just an open porch. MRS. MIDDLETON-It's a screened in porch. MR. STONE-Under the main roof? MRS. MIDDLETON-Under the main roof, with piers under it. MRS. LAPHAM-I think what Mrs. Middleton is asking is if you consider that part of the footprint. I'm saying simply that it's not measured as living area. That's why we have a discrepancy. MR. HILTON-Well, we would consider it part of the footprint, but I think the Assessment Department treats it differently, and has a separate classification other than living space, for screened in porches. MRS. MIDDLETON-So my figures were basically right, but not compared with an assessment. MR. HILTON-Well, they do differ from the assessment figures, and I really don't know. I mean, if you measured, I don't know how you measured or what you did to get these figures. MR. HAYES-Under the Code, how do they distinguish between porches and, is there any actual language? MR. HILTON-There are building codes. I don't have the building code in front of me, and actually I'm not that well versed in it to tell you what the differences are, but there are differences between screened in porches or open patios or decks and whether they're considered living space or, you know, what type of classifications they do have. MR. MCNALLY-The only real issue is the setbacks. We're talking about the distance from the existing building to the property line, and that's irrespective of living space, is it not? MR. HILTON-I think that's what we're looking at tonight with this Area Variance is just the setbacks. MRS. MIDDLETON-If that's not considered living space, then should we take it from where the wall of the house is to the property line? That's 20 feet. Because the porch is about 10 foot wide. MR. FRIEDLAND-I would agree with Mr. McNally. This is an Area Variance application for a variance from the setbacks, and you have specific criteria to look at, and I'm not sure that the discussion about porches, whether a porch is enclosed or not enclosed, or whether it's living space, has anything to do with meeting the criteria for setbacks, meeting the criteria for Area Variances. So I think maybe you need to re-focus on what's before you, which is strictly an Area Variance application. MR. THOMAS-Any more questions for the applicant? MR. MCNALLY-Mrs. Middleton, are you going to tear down this building to the ground? MRS. MIDDLETON-Yes, that was the least expensive way to go. MR. MCNALLY-So you're not thinking of saving any foundation or anything else like that? - 15 - -- "-" (Queensbury ZBA Meeting 6/25/97) MR. THOMAS-Would anyone else like to speak opposed? Any correspondence? MRS. LAPHAM-No. MR. THOMAS-If not, I'll close the public hearing. PUBLIC HEARING CLOSED MR. THOMAS-Anyone have anymore questions for the applicant? MRS. LAPHAM-I have one more question. When I came to look at the site yesterday, you mentioned something about bedrooms upstairs or a second level that were open? You said you had two bedrooms above the living room. I mean, I'm trying to see if maybe that's the discrepancy between the square footage that you're talking about and the square footage that Mr. O'Connor is talking about. MRS. MIDDLETON-I don't know where he got the square footage that he's talking about. MRS. LAPHAM-Well, he got it from the Assessor's record card, which means somebody from the ~ssessor's office went up and measured the outside of the building. And that's what they came up with. MRS. MIDDLETON-That didn't include the porch? MRS. LAPHAM-No. The porches were not considered living spaces. They're porches. MRS. MIDDLETON-They're not? Because what the measurements I have are the measurements of the full, what I consider the full outline, because the porch is supposed to be five feet from the property line, which is living space. Is it not? I mean you live on the porch as well. Do you understand what I'm saying? MRS. LAPHAM-I do understand what you're saying, but it's not considered living space from an assessment point of view, from an appraisal point of view. MRS. MIDDLETON-I don't know about the assessment part of it. I'm not a lawyer, and there's too many lawyers here that I can't compete with them, but that's the measurements I took were the measurements from outside of the building, including the porch. MRS. LAPHAM-Okay, and do you have any second story or half story living area above the first part of the house? MRS. MIDDLETON-At the present time, no. MRS. LAPHAM-Okay. Then I misunderstood what you said. MRS. MIDDLETON-Okay. No, the bedrooms are open. I said there's just no, they're seven, eight foot walls. So the whole house is like an open concept with just spaces between them, walls that don't go all the way up to the ceiling, partitions. MR. THOMAS-George, do you want to clarify the porches versus living space? MR. HILTON-Well, first of all, let me just say that the figures that we have provided, in all our applications, the applicants have to provide the figures, and these are the figures we were given. I can't speak to why they're so different from the assessment. The only thing that I can offer is that maybe they're including every building on the property in their assessment with the application. Now I'm kind of confused here as to what we're really after with this porch and living space question. If someone can rephrase it. - 14 - (Queensbury ZBA Meeting 6/25/97) MRS. LAPHAM-And if they took the building that is there now, if they took it out, removed it, so we have a vacant, virgin lot, that's new construction, is it not? MR. HILTON-New construction. MRS. MIDDLETON-Then what side line would you go by? MR. FRIEDLAND-Again, I wonder if I could just re-focus. The bottom line here is that the Zoning Administrator has already decided that this needs an Area Variance because it doesn't meet the setbacks, and that's what's in front of you. We can talk until the cows come home about what if's, if different things happened, but that's not what's in front of you right now, and again, there are specific criteria, for an Area Variance. Practical difficulty is not one of them, and it hasn't been for some time now. As I'm sure you know, you have to weigh the benefit to the applicant, if the variance is granted, as opposed to the detriment to the health, safety and welfare of the neighborhood, and then there's several criteria to take into account when you consider that balancing test, and that's the task that's in front of this Board tonight. MR. THOMAS-Okay. Anymore questions of the applicant concerning setbacks? No? All right. Lets talk about. I'll start with Lou. MR. STONE-Thank you, Chris. I really don't like being put in the middle of neighbor disputes. We've had it too many times on this Board, and I've only been on it for six or seven months. We can't settle differences between people. All we can do is grant or deny variances based upon the law. As our Counsel just said, the law is very specific. We have to balance the benefit to the applicant with the detriment to the community. We also are honor bound by our job to grant the minimum variance possible, minimum relief possible. It seems to me that if we look at this lot, the applicant has not given us any alternatives as far as placement of a new building on this particular piece of property. It is a lot slightly less than one acre, which is even substandard by current waterfront zoning, but there are setbacks that could be achieved by placing a lot, a house in the middle of the lot at a prescribed setback. So I am certainly leaning, and I want to hear the rest of my colleagues, but I am certainly leaning, on the basis of what I've said, to deny this variance, because I think there are other alternatives. MR. THOMAS-Jaime? MR. HAYES-Well, without reiterating too heavily what Lou said, we are charged with weighing the benefit to the applicant against the detriment to the neighborhood, but I'm having a harder time than perhaps Mr. Stone with the fact that this house was the original neighborhood. That's part of what we should be weighing. It's a little difficult to make a judgement on the detriment to the neighborhood without knowing specifically what's going in there, even though we have been provided with some plan. It's still a little unclear. Obviously, as Mr. 0' Connor pointed out, the immediate neighbor is willing to make some concessions, and certainly there seems to be the possibility of some compromise, but unfortunately, we have to rule as it comes before us, and I am in favor of the variances as written, being that I believe they have this house on the original foot print, and I don't believe, versus the benefit to the applicant, that the neighborhood would be detrimented. So I would be in favor of the application. MR. THOMAS-Brian? MR. CUSTER-When I originally went up there to view the parcel, my initial thoughts were, why couldn't that be moved more center. Then after speaking with the Middletons and understanding the - 17 - "'--' ~" (Queensbury ZBA Meeting 6/25/97) MRS. MIDDLETON-There is no foundation. It's only on piers. MR. MCNALLY-And in the process of considering where to build this and how to build this, did you ever consider moving the building a little bit more to the center of the property? MRS. MIDDLETON-No, because of the right-of-way, and not only that, we bought the property because it was out on a peninsula. If we moved it back, we still wouldn't get a view of the lake, really, because of all the trees that are planted there, and that would give us a very odd configuration on the property. We would lose that. It would appear as though it was Mr. Kaidas' property. It's a strange layout, but then again, it was there. It's been there 100 years. It was there when Mr. Kaidas built his home. So he knew what he was up against. He, at the time that we bought it, and he was building his, my son helped him build his driveway. My husband helped him take his trees down. We helped him, and we were very good friends I thought at the time, until Mr. Kaidas put up a six foot stockade fence on three sides of the property, and that's when all hell broke loose with the litigations and stuff, but that's neither here nor there, but he knew that was there, so he had a choice, build there or go some place else. Do you know what I'm saying? MR. O'CONNOR-Mr. Chairman, can I just make one point as to why I was questioning the square footage? MR. THOMAS-Yes, go ahead. MR. O'CONNOR-If you look at Section 179.79A(2), it talks about restrictions on (lost words) on nonconforming buildings and nonconforming lots. This lot I think is nonconforming because of width (lost word) zone. You have some other outside restrictions that you have to consider, and then you have to take a look at the floor plan definition under floor plan, floor area. You will see that porches are excluded. So I guess in part what I'm saying is that I don't think they've even, I'm not sure how Mrs. Middleton made the calculation at all, as to what's there, because my calculations of 1200 and some odd feet was on a perimeter basis, simple math calculation. She's indicated that there's no second floor space. I think she's going beyond the 50% increase. Even if she puts this building in the center of the lot, at the proper setback, you'd need an additional variance. MRS. MIDDLETON-From the lake, from the side? MR. O'CONNOR-From this requirement. MR. STONE-If she puts it in the middle of the lot, you're saying? MR. O'CONNOR-Yes. MR. STONE-The new construction, it has nothing to do with this one. MR. O'CONNOR-Well, that's a determination that you've got to make, whether or not this, it says no enlargement or rebuilding. This is coming to you on the basis of a rebuilding, you're stuck with this. We've been around this 16 times, on this lake and other lakes. You cannot expand your floor plan by 50%, living space by 50%, without a specific variance to do it. MR. HILTON-If I could just say, the way that that's been applied in the past is that we treat any expansion of existing structures, and if an expansion of an existing structure comes in, and it's expanding by more than 50% of what was there originally, then it requires a variance. Any new construction has not been treated that way, and variances haven't been needed if it's a brand new construction, as is this. - 16 - (Queensbury ZBA Meeting 6/25/97) other concerns, being the boathouse and like that. I'd also like to see elevations with height measurements, from final grade, because this seems to be a big concern, too, because of view, and we've heard a lot tonight about view, and also an accurate square foot measurement, you know, what is it? So far we've heard four different numbers tonight, and things just aren/t, all the ducks aren't in order here. So I would like to ask the Middletons if they'd like to table this, so they could get more information, and also to talk to the Kaidas' . MRS. MIDDLETON-Yes. We would like to discuss it. MR. THOMAS-Okay. ROBERT MIDDLETON MR. MIDDLETON-We would like to discuss it. I would like to leave the camp where it is when we bought it. That's the reason we bought it. We've had it for many years, and I'd go along with keeping it right there. I don't want to move it. MR. THOMAS-Okay. Well, we can give you 62 days. We can table it for 62 days, okay, and that'll give you time to give us some kind of rough elevation, with measurements, okay. These elevations you gave us are nice, but it doesn't show any height from final grade, or anything like that, plus I think you may have a real good chance, talking with Mr. and Mrs. Kaidas, of straightening out the property line here, and since it is going to be a new camp, you know, you might be able to move it around a little bit to get it more in conformance with the Ordinance. So, having said that. MOTION TO TABLE AREA VARIANCE NO. 31-1997 GERALDINE & ROBERT MIDDLETON, Introduced by Chris Thomas who moved for its adoption, seconded by Robert Karpeles: Until the neighbors can confer and maybe come up with some kind of agreement, and that elevations of a proposed house can be shown to the Zoning Board of Appeals. Duly adopted this 25th day of June, 1997, by the following vote: MR. THOMAS-Okay. The tabling is for no more than 62 days. George? MR. HILTON-Have you left the public hearing open? MR. THOMAS-No, I did not. MR. HILTON-Okay. MR. THOMAS-No, I don't think I will. I think everybody that wants to be heard has been heard. So the public hearing will remain closed. All right. AYES: Mr. Stone, Mr. Karpeles, Mrs. Lapham, Mr. McNally, Mr. Custer, Mr. Hayes, Mr. Thomas NOES: NONE MR. THOMAS-So, talk it over. See if you can get us some more information here, and if you need any help, go down and talk to George down in the Planning Department. MRS. MIDDLETON-Okay. MR. THOMAS-Next I think we'll do, since we're just looking for a re-vote on the previous motion on Area Variance No. 22-1997 for Michael Hayes. - 19 - ',-, '~ (Queensbury ZBA Meeting 6/25/97) right-of-way, I kind of changed my mind, kind of looked at it as the original footprint, as Jaime has indicated. Having said that, though, I asked the Middletons to bring some drawings of what may go there, and I'm still not sure, I'm willing to let them go on the footprint, provided that the structure that's going to be up there is not going to exceed certain height lines, and keep that elevation. I'd like to see more of that, but having said that, I think also the right -of -way is open to negotiation. I'm not a construction expert, but there's no foundation there that that existing camp is on, and to tear that down anyway, I don't see why that couldn't be moved, if that right-of-way could be granted away also. So I guess in mY frame of mind, I'm a little bit more information. I'd want to table it until I see some more information. MR. THOMAS-Okay. Mr. McNally? MR. MCNALLY-I would agree that there's two things missing from this application. The first of the items that I'd be interested in seeing is some kind of idea of what building you're putting up there. Your plans are so indefinite it is hard for me to judge what kind of impact it's going to have to the Kaidas or to the rest of the people in the neighborhood. It's hard to judge. If this building is in fact only 900 square feet and you're putting up a 2,700 square foot building, as you plan, it's going to be a substantial increase in size and a substantial impact on the area. If, on the other hand, it's already that size, and you're only adding 500 feet, on a second floor that's not going to hurt anybody's view, I might grant the variance at the drop of a hat. The second point is also this issue of right-of-way. I don't know, if this were just adding 500 square feet, expanding the building, that's not such a big deal. If you are essentially building a new building, and in such circumstances, I think that, while I'm very sYmpathetic to the application, I'm not prepared to go forward right now. MR. THOMAS-Bonnie? MRS. LAPHAM-Well, I'm not inclined to vote for it now, either. I'm kind of sitting where Brian is, that, first of all, I don't feel we have enough information, that I'd want to see elevations. I want to see floor plans, and exactly the square footage that you would be adding, what type of structure, how high, what kind of foundation, just blueprints, plans or some sort to see what you would be putting in there. Secondly, I don't really want to vote on this or discuss anything further until the Middletons have had a chance to sit down with the Kaidas' and maybe work out some of these compromises that they were talking about earlier, the right- of-way, relinquishing of the boathouse, the removing of trees, and so forth, you know, because maybe after that's done, maybe we would see a totally different picture. MR. THOMAS-Okay. Bob? MR. KARPELES-Well, I couldn't agree with Bonnie more. I think she's hit the nail on the head. It would appear that, since this camp is going to be destroyed completely or torn down completely, it would be a good opportunity to get back away from the shore a little bit, and if Mr. Kaidas is really willing to relinquish that right-of-way and make some other concessions, I see no reason why that couldn't be located more centrally on that lot. So I agree with Bonnie. I think that this should be tabled and give these people a chance to see if they can work something out, and see if they really can work it out. MR. THOMAS-Okay. I agree with the other members, that I think this should be tabled, and that the neighbors should try and come up with some kind of dialogue concerning this right-of-way and the - 18 - (Queensbury ZBA Meeting 6/25/97) OLD BUSINESS: AREA VARIANCE NO. 22-1997 TYPE II SR-1A MICHAEL HAYES OWNER: SAME AS ABOVE EAST SIDE OF ROUTE 9L, 400 FEET SOUTH OF THE INTERSECTION WITH CRONIN ROAD APPLICANT PROPOSES TO CONSTRUCT A SINGLE FAMILY HOME ON AN EXISTING LOT. THIS LOT DOES NOT HAVE THE REQUIRED 40 FEET OF FRONTAGE ON A TOWN ROAD WHICH IS REQUIRED BY THE ZONING ORDINANCE AND DOES NOT CONFORM TO THE SIZE REQUIREMENTS OF THE SR-1A ZONE. RELIEF IS BEING REQUESTED FROM SECTION 179-70 WHICH REQUIRES 40 FEET OF FRONTAGE ON A TOWN ROAD PER LOT AS WELL AS THE LOT SIZE REQUIREMENTS LISTED IN SECTION 179-19, SUBURBAN RESIDENTIAL ZONE. TAX MAP NO. 55-2-22.21 LOT SIZE: 0.62 ACRES SECTION 179-70 MRS. KURIMSKY-I would like a chance to speak. MR. THOMAS-I'm sorry, the public hearing has been closed. MRS. KURIMSKY-You never sent me a letter. MR. THOMAS-Well, that's not illY fault. You'll have to talk to the Planning Department about that. MRS. KURIMSKY-I did talk to the Planning Department. MR. THOMAS-And what did they say? MRS. KURIMSKY-They told me to come up today, and these are my maps, and I do want to be heard. MR. THOMAS-Okay. MR. J. HAYES-I'd like to excuse myself, also. MR. THOMAS-Go ahead. What's the pleasure of the Board? Do you want to open the public hearing back up or not? Bonnie, yes or no? MRS. GOMES-This isn't on the agenda, but I am. So I'd like to know what's going on. MR. THOMAS-I have the right, as Chairman, to change the agenda as I see fit. MRS. LAPHAM-I wouldn't be against it if it's short, and if we're not going to hear the same thing we heard for two weeks. I'll vote yes, as long as we keep it short and we don't sit and hear. MR. THOMAS-It was discussed at the last meeting that this would be on the agenda. MRS. LAPHAM-You asked me if we should open the public hearing. MR. THOMAS-Yes. Yes or no? MRS. LAPHAM-Well, I hate to shut anyone off, but I don't want to sit and listen to the same thing we've been listening to the last two weeks. MR. THOMAS-Yes or no, Bob? MR. KARPELES-Yes. MR. THOMAS-Lou? MR. STONE-Yes. MR. THOMAS-Brian, open the public hearing back up, yes or no? - 20 - "~ ~' (Queensbury ZBA Meeting 6/25/97) MR. CUSTER-No. MR. THOMAS-Bob? MR. MCNALLY-For this one statement? MR. THOMAS-For just one statement. MR. MCNALLY-Yes. MR. THOMAS-Yes. Okay. I'll open the public hearing back up on Area Variance No. 22-1997, for one statement. PUBLIC HEARING OPENED AUDREY KURIMSKY MRS. KURIMSKY-I'd like to address this Board. I was precluded from coming. I did not get a letter in the mail, as the rest of my neighbors did get a letter, and when I called, I can't remember the girl's name, but she told me it was not on last week's agenda. It had been tabled for they figured probably July, and the meeting went on anyway, and we never were notified. Since this property directly effects me on two sides, I feel that I do have a right to be heard. I want to reiterate my stance of opposition on several areas. Number One is the road frontage. The current lot size only has a 15 foot road frontage as opposed to the 40 foot requirement for a building lot. Mr. Hayes created this problem himself when he divided this property into smaller lots. I do not believe the Town Ordinances ever had a minimum of 15 feet for road frontage. Therefore, I believe the Hayes' must have been reasonably certain that a variance would be granted at the time they created that lot and later sold it to their son. The question in illY mind arises as to how they could have had the foresight to know this would be done. Do they have an in that other citizens of this Town don't have. Could the fact that their son Paul Hayes serves on this Board have anything to do with it? I might remind you, when the initial letter came to me, informing me of the meeting, it was for the property of Paul and Jennifer Hayes, yet at the meeting it was the brother, Michael who was seeking the variance. Number Two is the wetlands. The question was brought up at the May meeting by myself as well as several of my neighbors about the wetlands. There's a stream that borders the eastern edge of this property. My children often skated on this pond created by this stream in the winter. I have talked to several members of the DEC on Friday, June 20, 1997, and in particular it was Mr. Prall and Mr. Timko. They informed me that there indeed is a protected wetland that runs adjacent to the area. I requested and was sent a copy of this map, and I will give it to you. MR. THOMAS-Would you state your name for the record. MRS. KURIMSKY-Audrey Kurimsky. As you can see, the areas that are protected wetlands are shaded in blue. Chris has a letter that when this was revised was in March of 1995. There were no deletions but only additions to the wetlands, and furthermore you've got the issue of stormwater runoff. Not only for the sake of wetland preservation, but because this area is already wet, I would like to know how you plan to provide for water runoff. As the land currently is sloped toward the east, the natural flow of the stormwater is in the direction of the proposed building. I already have problems with water in my basement. When we first bought out house, this problem occurred mainly in Spring. However, since the houses were constructed right next to me, I get water in the basement not only in Spring, but often after several days of rain any time of the year. I believe that my problems were worsened by the fact that the natural slope of the land was altered when the homes were built right next to me, because of the way they - 21 - (Queensbury ZBA Meeting 6/25/97) graded the property. Now their land is higher than that of my own. While we have a sump pump that helps, I am concerned that further grading of the property will make a bad situation even worse. I do not expect the Town to solve my own water problems, but I have addressed this as a concern in the past, when you granted a previous variance for the house next to me, and my concern exists and is worse now. We can't even use our basement for storage because of the water problem, and we ask that you don't make our problems any worse. Safety. Currently there are two families using the one driveway, which I might add is very close to my house. There already is a problem seeing around vehicles parked at the end of the driveway when I pullout onto an already busy Ridge Road. This already compromises my safety. Right now, and this was at five o'clock, there were two cars parked in the driveway as well as cars in the garage. If that driveway is to be accessed for a house behind, and that would be immediately behind me, then there is certain to be problems in case of any fire or medical emergencies. Even if the tenants were required to limit their parking to the garages, there would be potential for problems if either family had as much as one guest, which is often the case on weekends and in the evenings. This would also greatly increase the noise that I would have to live on, on a day to day basis. My property value. I feel that the apartment houses have already changed the genre of the neighborhood. People who rent these houses are, for the most part, transients, in the sense that they rent for short periods of time and leave. This has dramatically reduced the sense of community previously enjoyed, while there are still a core group of neighbors who indeed are property owners. The renters are close to outnumbering us. This is zoned a residential, not a commercial area. When we purchased our property in '83, you could have not asked for a better neighborhood or a more pastoral setting. While I realize you cannot buy a view, you must admit surrounding greatly influence the price and salability of any home. This is my home. My husband and I have worked to purchase and keep it up. If you grant this variance, you will not only sandwich me in and preclude any views that I would have of anything other than houses, but reduce my value of my home of 14 years. We moved from the City of Glens Falls to the Town of Queensbury to have a more rural setting. If this variance is granted, I lose on this aspect as well. I would urge you to uphold the slogan touted on the signs of Queensbury "A place of natural beauty and a nice place to live". Monetary returns. Mr. Hayes expressed a desire to build this home so he could see a return on his financial investment. I would like to address this statement in two ways. We bought our property as our home, not as merely a tool to gain wealth. I have raised my three children here. My neighbors across from me were not only close friends, but were like surrogate grandparents to my children. There's not a day that I don't think of them and miss them. This type of neighbor is being driven from the neighborhood by developers like the Hayes'. Five years ago, one tenant, who left the property, told me they needed to find another place as the rent was way too high. At that time, they were paying $650 a month. This is five years ago. I believe that the rent has probably increased since that time, keeping pace with inflation, but even if it has remained at $650 a month, the Hayes family currently sees a gross of $3900, $650 times six, per month, from the current apartments, or yearly gross of $46,800 per year. I feel that this should be an adequate return and do not feel that another house is necessary in order for them to see any financial return. Improprieties of the Board itself. Besides being precluded from the last meeting, I do not feel it is right for Mr. Hayes in asking for a variance. I would think, if anything, it would be more ethical if Board members abided by the current Zoning Ordinances, rather than to seek to blatantly override them. The road frontage isn't even close to Code. I do believe that it was proper for Mr. Hayes to abstain from voting or discussion. However, at the last Board meeting, when there was a break, this is the one in May that I came to, two of the Board - 22 - '~ "-") (Queensbury ZBA Meeting 6/25/97) members, Brian, I believe you were one of them, and I can't remember who the other one was on the end, went out and sat in that other room and talked with Paul Hayes for the entire time that you were on break. Furthermore, every neighbor at that meeting expressed valid objections for further development. I believe the Board should be cognizant of our concern as well as the Hayes. I was told you closed the public meeting for discussion, and then after it was closed, allowed new facts and figures to come in. You refused neighbors to speak. You even threatened. I feel this is very unfair, and then also when I called I was told that the matter is pretty much decided, and I thought it was supposed to be done at public meetings, not behind closed doors. If the Hayes had been upfront in the beginning about this development, which is six, and they want seven houses in there now, you would have insisted that they have environme:n:";al impact studies done as well as a full review required for a development of that size. Instead, I see you courting to the Hayes, encouraging them to come back for variance after variance. I ask that you draw the line here and now, and make them abide by the same Zoning Ordinances, rules, as the rest of us, and that is by myself, Audrey Kurimsky, my husband Thomas Kurimsky, and my son Matthew Kurimsky. We all live at 518 Ridge Road, and are registered voters. MR. THOMAS-Thank you. Maria, do you have the original motion? MS. GAGLIARDI-Not with me, no. MIKE O'CONNOR MR. O'CONNOR-Mr. Chairman, may I respond on behalf of the applicant? MR. THOMAS-No. The public hearing's closed. I don't want to hear anyone else. This thing's been dragging on too long. MR. O'CONNOR-I probably would agree, except that the record could look as though there's some testimony that's uncontroverted, and I do not want your record to remain in that status. You've opened the public hearing. I think the applicant has to be allowed an opportunity to respond. CHRISTINE SPINA MRS. SPINA-Then I also at this time would like to speak. MR. THOMAS-Jeff? MR. FRIEDLAND-It's completely up to you. MR. THOMAS-I can open it? I can close it? MR. FRIEDLAND-Sure. If you want to let the applicant respond to something that was said, that's in your discretion. MR. THOMAS-No. I think we've heard all this before. The original motion was made by, there was a motion, and we came up with a three to two vote, because there was only five of us. MS. GAGLIARDI-It was Brian. MR. THOMAS-Brian made it? MS. GAGLIARDI-Yes. MR. CUSTER-Are we moving on the motion? MR. THOMAS-Yes. What I'm going to do, Brian, is I'm going to ask you, do you want to stick with your original motion? - 23 - (Queensbury ZBA Meeting 6/25/97) MR. CUSTER-Yes, I do. Prior to making my motion, I would just like to say that I take great exception with Mrs. Kurimsky's questioning of my integrity upon leaving this meeting at a break and going out and speaking with Mr. Hayes. What I speak to Mr. Hayes about is mY business. Whether I talk about the baseball scores today or whatever, you have to take it on my word that I did not discuss this issue. The fact that you raised that specter, I think it's a great insult, and I just wanted to tell you that. Thank you. MR. THOMAS-Would you like to read your motion back again, Brian? Have you got it? MR. CUSTER-I've got it right here. MOTION TO APPROVE AREA VARIANCE NO. 22-1997 MICHAEL HAYES, Introduced by Brian Custer who moved for its adoption, seconded by Bonnie Lapham: Ridge Road. The applicant proposes to build a home on a pre- existing, nonconforming lot, and is seeking 25 feet road frontage variance. He is seeking 18,137 square feet of relief from the current zoning law, which is in comparison to the original 30,000 feet required prior to the change of the law in 1988. The benefit to the applicant, it would allow him to build a house on the lot at this time. The feasible alternatives are limited, due to the nature of the area and what can also be placed there. The relief is substantial relative to the current ordinance, but not in comparison to the Ordinance in effect at the time the lot was created. Effects on the neighborhood or community are minimal, as the residential nature, which continues to recommend the residential type construction, and the difficulty I would agree is self created in the sense that they carved the lot out, although there were some diminishing reasons why it had to occur. I would like to add that if we grant the variance, that the access be granted only through the easement in the property due south of the existing parcel, and that some form of privacy hedge be put into the proposed project on the north and west sides of the property. Duly adopted this 25th day of June, 1997, by the following vote: AYES: Mrs. Lapham, Mr. McNally, Mr. Custer, Mr. Thomas NOES: Mr. Karpeles, Mr. Stone ABSENT: Mr. J. Hayes MR. THOMAS-Does that give us the four? So the variance is approved. Okay. On to the next one. AREA VARIANCE NO. 32-1997 TYPE II RR-3A RUI & KATHLEEN GOMES OWNER: SAME AS ABOVE 91 TUTHILL ROAD, WEST MOUNTAIN ROAD TO CLENDON BROOK ROAD TO TUTHILL ROAD, WEST SIDE OF TUTHILL ROAD APPLICANT PROPOSES THE CONSTRUCTION OF A DETACHED GARAGE WHICH WILL BE LARGER THAN ALLOWED BY THE ZONING ORDINANCE. RELIEF IS BEING REQUESTED FROM THE REQUIREMENTS FOR PRIVATE GARAGES LISTED IN SECTION 179-7 OF THE ZONING ORDINANCE. TAX MAP NO. 123-1-40.1 LOT SIZE: 26.76 ACRES SECTION 179-7 KATHLEEN GOMES, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 32-1997, Rui & Kathleen Gomes, Meeting Date: June 25, 1997 "PROJECT LOCATION: 91 Tuthill Road Proposed proj ect and Conformance with the Ordinance: The applicant proposes to construct a 34 foot by 40 foot detached garage. The garage will not meet the size requirements for garages contained in the zoning ordinance. Garages are limited to 900 square feet by - 24 - '--- ' '--'- (Queens bury ZBA Meeting 6/25/97) code. The garage the applicant seeks to build would be 1360 square feet. Criteria for considering an Area Variance, according to Chapter 267, Town Law. 1. Benefit to the applicant: The applicant states that relief would allow the construction of a garage to be used by cars, boats and motorcycles owned by the applicant. 2. Feasible alternatives: Alternatives appear to be limited which would conform to the Zoning Ordinance and address the applicants stated need. 3. Is this relief substantial relative to the ordinance? The applicant is seeking to build a garage which is 460 square feet above what is allowed by Code. 4. Effects on the neighborhood or community? The construction of a 1360 square foot garage on this property may not have any negative effects on the surrounding neighborhood. This construction could lead to future requests for oversized garages in this and other areas of Queensbury. 5. Is this difficulty self created? The need for this garage seems to be based. on the number of vehicles the applicant has which could be viewed as a self created situation. Staff Comments & Concerns: The applicants proposal appears to be somewhat substantial and based on a self created difficulty. However the ZBA should also take into consideration the benefit to the applicant and what effect the garage would have on the surrounding neighborhood. SEQR: Type II, no further action required. " MRS. LAPHAM-And there's nothing from the County. MR. THOMAS-All right. Mrs. Gomes, is there anything you'd like to add, say, comments? MRS. GOMES - I have a picture that shows the shed that's in the process of falling down. It's printed backwards. They're actually reversed. The photo store printed the negative backwards. I also have building plans for the garage showing that it is just a basic garage structure. We're not hiding a nuclear factory or anything in there. It's just a garage. That's it. MR. THOMAS-Does anyone have any questions for the applicant? MR. KARPELES-Yes. When I looked at it, how much more of that hill are you going to have to remove in order to build that garage there? MRS. GOMES-It has been graded, somewhat, by the former owner, but there is some excavation that would have to be done. However, if we place it in the other feasible sites, not only would we have to excavate, but we'd also have to take down numerous trees, which are the only trees blocking my house from the road and from my neighbor's view. MR. KARPELES-How about behind the house? awfully far away from the house. I mean, that seems MRS. GOMES-If we put it behind the house, it's right near our well, and if there were ever need to access the well, there would be no way to get any type of a vehicle or anything back there to drill a well or repair the well. Also that would require us to pave approximately an additional 100 to 120 feet of driveway. There is also a grade from the proposed site of the garage up to the site behind the house, and when you're towing a 4,000 pound boat up a hill, it's a little bit hard on the transmission. You want to do as little of that as possible. We also have a three year old. We'd like to have a back yard rather than a driveway and a garage behind our house. We think it would look nicer with a swingset and some grass than pavement. MR. STONE-If I accept your argument that you have four cars, two 24 foot boats, and so on and so forth, if you bought the QE II, and wanted to put it on your property, the same argument would apply. - 25 - -~ (Queensbury ZBA Meeting 6/25/97) Is that correct? If you had 20 boats, you could make the same argument. It is self created, as Staff Notes, it could be construed as self created. MRS. GOMES-Well, the problem is also created by the Town, since they allowed the previous owner to divide the existing storage building, which was approximately the same size, from the existing house, when they allowed her to subdivide the property. MR. STONE-But you bought the property knowing you didn't have that building. Is that correct? MRS. GOMES-And planning to build one to replace it. MR. STONE-Okay. MR. KARPELES-Yes, but you knew what the zoning was when you bought it. MRS. GOMES-No, as a matter of fact, we didn't, and I made that point when I went to Town hall, and when I've since spoken to a number of candidates that will be running for Town Supervisor next year that as new residents moving here from out of State, there was absolutely no information packet given to us that told us even where Town hall was, let alone where we could have access to zoning requirements or what the zoning requirements were. MR. STONE-Thank you for the thought. Sorry. MR. THOMAS-How many people have driver's licenses in your house? MRS. GOMES-Two. MR. THOMAS-Just two, and you have four cars, two each? MRS. GOMES-Yes. I have a sports car, which I quickly learned this March, in the snow, is not feasible in this area, and we went out and bought a four wheel drive so we could make it up Clendon Brook Road and up our own driveway. Otherwise our only option was to park down on West Mountain and hike all those miles up to our house. My husband has a pick up truck that he uses for heavy hauling, and we also have a conversion van. We do quite a bit of traveling. We have a three year old. So we have the van. When we go camping, we carry a lot of gear with us, and that's what the van is for. MR. THOMAS-All right. So you don't happen to have just two cars hanging around for no reason at all? All four of them are used on a regular basis? MRS. GOMES-Yes, they are. They're all registered and they're all ensured, as are the boats and the motorcycles. MR. THOMAS-May I ask why you have two boats? MRS. GOMES-May I ask what that has to do with this? MR. THOMAS-Since part of the regulation is that you can have a 900 square foot garage, and I do believe you can have a separate building for storage of boats. MRS. GOMES-I have one boat for skiing and there is, my husband also owns a race boat. MR. THOMAS-Okay. Thanks. Any other questions for the applicant? MR. MCNALLY-You have to understand that you're asking us to give you a variance (lost words) - 26 - ",--- --# (Queensbury ZBA Meeting 6/25/97) MRS. LAPHAM-I just want to make sure that I know where this is going to be. The garage is going to be located between your house and the road, and it'll be buffered by all the trees that are there now? MRS. GOMES-Yes. MRS. LAPHAM-So you won't see it? MRS. GOMES-No. It won't be seen from the road, nor will it be seen from either side of our property, whereas the other site, the other feasible site, it would be seen from the road. It would be seen from this property to the side of us, and from the property across the street from us. MR. MCNALLY-What kind of construction is it going to be? Did I see cinder block? MRS. GOMES-Yes, cement block with a metal roof, using the pre-fab storage trusses. MR. MCNALLY-Is there any covering over the cinder block? MRS. GOMES-Yes. MR. MCNALLY-Is that the final finish, cinder block? MRS. GOMES-No. It will not be. MR. MCNALLY-What kind of finish? MRS. GOMES-That is sort of yet to be determined. We have wood from the property that we're having milled. That's an option, as is matching log siding to match our home. We have not been able to determine where we can get matching log siding. We have hand peeled rough hewned logs, and as yet have not been able to locate a manufacturer that could give us similar siding for the garage. So if it's not that, it will either be the T111, as indicated on the drawing, or it will be the, I think they call it Adirondack siding, which is just the logs cut with the bark still on them. Something rustic that will go with the log features of the home. MR. MCNALLY-You show a single and a double door garage? MRS. GOMES-Yes. That's on the 34 foot side. It's double deep so that you don't see as much of it from the front. We're doing it double deep. MR. MCNALLY-Yet, this will be on the gravel drive? MRS. GOMES-Correct. MR. STONE-What is under the house? As I came up the driveway and I turned in, there is a concrete slab between the driveway and the house, and then there seems to be, is that a basement, is it storage? MRS. GOMES-That's living space. When we bought the house, we had asked the previous owner if that had, at one time, been a drive in garage. They denied it. They said, no, it had always been living space. We're not 100% sure. One of the neighbors told us it had, at one point, been a drive in garage. The house was set up as a mother / daughter. So there are two bedrooms, a bathroom and a kitchen on each floor of the house, but we're ripping the kitchen on the upper floor out, because it's in the vaulted, what you call a great room in a log house. So you have a beautiful stone fireplace and a vaulted room and a kitchen sink right there. So we will be using the kitchen and the dining room on the lower level, - 27 - (Queensbury ZBA Meeting 6/25/97) as well as the guest bedroom and a bathroom. MR. STONE-Thank you. MR. THOMAS-I have just one more question. According to this plot plan that you gave us, that garage would be 73 feet from the house. Do you really want it that far away? MRS. GOMES-Yes. MR. THOMAS-How many winters have you been up here? MRS. GOMES-Well, we didn't want to attach it to the house because we just feel that's a safety issue. Our former house had a garage under, in the basement, like this one may have had originally, and we did not like that. It created problems for heating and insulation, as well as fumes from vehicles. So we did not want a detached garage, and we also felt that if we could not build the garage out of the exact same materials of the house, it would not look as nice to have to attach it or put it closer to the house, and as I said before, we are looking to eliminate a lot of the gravel that's, I mean, most of the yard was gravel, and that's not what we're looking for, living in the scenic Adirondacks. We would like to have a yard, a side yard and a back yard, as I do have a child, and I think it's a lot safer to play on grass than on stone. MR. THOMAS-Okay, but do you know that it can snow like up to three inches an hour up here? MRS. GOMES-Yes, I do. Albany for one year. I lived in Buffalo for three years and in So I'm familiar with snow. MR. THOMAS-That trek, that 73 foot trek, would be a long one. MRS. GOMES-It's actually shorter than the trek would have been to the other location in front of the house, and the trek to the other location would have been down quite a steep slope, also. MR. THOMAS-Okay. Any other questions for the applicant? I'll open up the public hearing. Anyone wishing to speak of, in favor of this variance? Anyone wishing to speak opposed to this variance? If not, in favor opposed, PUBLIC HEARING OPENED MR. THOMAS-Any correspondence? MRS. LAPHAM-No. MR. THOMAS-No correspondence. I'll close the public hearing. PUBLIC HEARING CLOSED MR. THOMAS-Any more questions for the applicant? All right. No more questions? Brian? MR. CUSTER-I have one question, maybe, for George. I mean, they would be entitled to build two separate facilities, 900 square feet. That would be the allowed? MR. HILTON-Well, mY understanding is no. That accessory uses as defined and listed in our Ordinance, apply to a singular use. So if they were going to put two garages up, that would also require some type of variance. MR. THOMAS-But what if one of them was a boat storage? MR. CUSTER-Yes, that's my question. - 28 - "---' -_/ (Queensbury ZBA Meeting 6/25/97) MRS. LAPHAM-Well, wouldn't they not need a variance at all for one garage of 900 square feet. Then they would need just the other. MR. HILTON-If you had just one garage that was 900 square feet, that wouldn't need a variance, as long as it met the setbacks. MR. STONE-I mean, the definition of Boat Storage, Private is "a place, site or structure used to park, house or store on anyone lot three or fewer vessels". MR. HILTON-Right. The only thing I'm checking here is to see if boat storage is listed as an accessory use in the RR-3A zone. MR. STONE-It doesn't appear to be. MR. THOMAS-I don't think so. MRS. GOMES-While you're looking, I was also told that if we called this a barn, we wouldn't need a variance at all, since this is zoned rural property. Is that correct? MR. HILTON -That would be correct, but I think the storage of vehicles would conflict with the definition of a barn. MR. STONE-Agricultural uses it has to be, principal to agricultural uses. MR. HILTON-So if you called it a barn, you wouldn't be able to use it for the purpose that you want to. MRS. GOMES-So the barn next door to me isn't a barn because they have motor homes and furniture stored in it, yet it is over 900 square feet. MR. CUSTER-It's probably a nonconforming use. MR. HILTON-It may be a nonconforming use. I don't know. That's a different situation. MR. STONE-Type II, that's site plan for a private boat house, private boathouse, forget it. MR. THOMAS-No. storage. It doesn't say anything in there about a boat MR. HILTON-Yes. If it's not shown as a listed or accessory use within that zone, it's illY understanding that boat storage would then need some type of Use Variance in order to go in this area. MR. THOMAS-I think so, too. MR. CUSTER-So we need a Use Variance, then? MR. THOMAS-We'd need a Use Variance. foot garage, no problem, as long as they wanted to build a boat storage, for that. They could build a 900 square they met the setbacks, but if they would need a Use Variance MRS. GOMES-I'd like to point out that a 900 square foot garage would not fit four cars, because it would be 30 by 30, and our cars are longer than 15 feet in length. So if you were putting one car in front of the other, they would stick out about three feet, if you put them bumper to bumper. MR. THOMAS-How about 20 by 45? MR. CUSTER-The building wouldn't have to be square 30 by 30. - 29 - (Queensbury ZBA Meeting 6/25/97) MR. THOMAS-No, 20 by 45 would give you 900 square feet. MRS. GOMES-But it would also give you limited space between cars, and no space to put the motorcycles, and maybe you're wonderful at backing out of garages, but I'm not always. So I don't want to have to back up with only a few inches between my car and the car next to me. MR. STONE-It's interesting to note in Single Family Residential zones, SFR-10, 20, and One Acre, you can have both a garage and private boat storage, but on a big lot, you can only have a garage. MRS. GOMES-That's something that I find kind of ironic about all this, that why have the same size limit for a garage with 52 acres as someone with half an acre lot. MR. STONE-You're 26 acres. MRS. GOMES-Well, and an additional 26 in Luzerne. MR. STONE-You've got 26 acres. We're only concerned with 26. The other 26 is in Luzerne. MRS. GOMES-Well, but if you look at how close my neighbors are to me, I have 52 acres. MR. CUSTER-But it's another Town. MR. STONE-It's another Town. I mean, we're only concerned with 26. It's still a lot. I'm not putting down the 26. MR. CUSTER-I asked these questions for some clarification. It's a sizeable garage. In comparison, my first home was a 1100 square foot, two bedroom ranch. So I could move right into that garage and live very comfortably. I think if this were any other place, I might have reservations regarding the size and having it constructed there, but surveying the property and how far the setbacks are and the wooded nature of the location, I really, I think I can move forward with it. MR. THOMAS-Okay. Bob? MR. MCNALLY-Counting all factors, on balance, I think it's an appropriate garage. MR. THOMAS-Bonnie? MRS. LAPHAM-I don't have a problem with it because of the rural nature of 52 acres, the applicant wants four vehicles, and the other thing, it's not going to be visible from the road or from any of the neighbors. MR. THOMAS-Bob? MR. KARPELES - Yes. I agree with everybody else. I think it' s really a lousy place for a garage, but if she wants it there, let her have it. MRS. GOMES-If you have any better suggestions, let us know. MR. THOMAS-Lou? MR. STONE-I'm certainly inclined to go along with it, although the argument that you make is not one that I find on point, because if you had eight cars, eight boats, you could have made an argument for a garage four times this size, but when you consider the size of the lot, and the visibility from adjoining properties, I will go along with it. - 30 - '-'"" (Queensbury ZBA Meeting 6/25/97) MR. THOMAS-Okay. Jaime? MR. HAYES-I agree with the other members. It's very clear to me that this variance is substantial, but based on the amount of acreage that's involved with the property, and also it's location, I don't think that there's going to be any undesirable change in the neighborhood. So I think I would also be in favor of the application. MR. THOMAS-I would also be in favor of it, due to the terrain of the land, since it all does sit on a hill, and as Mrs. Gomes has said, that any other building that she puts up, besides this one, would have to have more landscaping and removal of dirt and stuff like that. So that would create more of a hazard with rock slides and tree slides and everything else that happens up there. I don't think there'd be an undesirable change in the neighborhood, since you really can't see it. The request is substantial, but I think with everything considered that it should be all right. I don't see any physical or environmental effects. The only thing I would like to see, though, is some kind of stormwater runoff management, you know, like gutters and drywells. MRS. GOMES-There's drainage indicated, also, on the plan that I gave you. MR. THOMAS-Yes. I just want to say it, just to make sure it's on the record that way, so it's understood. Would anyone like to make a motion? MOTION TO APPROVE AREA VARIANCE NO. 32-1997 RUI & KATHLEEN GOMES, Introduced by Paul Hayes who moved for its adoption, seconded by Lewis Stone: The applicant, the Gomes', propose to construct a 1360 square foot garage on the property. The Ordinance called for the maximum garage square footage of 900 square feet. Going through the benefit to the applicant, it would allow them to store the number of vehicles and boats that they presently have on their property. Feasible alternatives are limited based on conformance with the Zoning Ordinance. Is the relief substantial relative to the Ordinance? The relief is substantial to the Ordinance, being that the garage is 460 square feet above the allowed Code, but the detriment or effects on the community seem to be minimal based on the property location and the overall amount of acreage associated with the property. That granting of the variance be contingent upon proper stormwater management. Duly adopted this 25th day of June, 1997, by the following vote: AYES: Mrs. Lapham, Mr. McNally, Mr. Custer, Mr. Hayes, Mr. Stone, Mr. Karpeles, Mr. Thomas NOES: NONE MR. THOMAS-There you be. MRS. GOMES-You still need that welcome to the neighborhood packet, though. MR. STONE-Right. I've got it down. NOTICE OF APPEAL NO. 2-97 JOHN & KATHLEEN SALVADOR APPLICANTS ARE APPEALING A DECISION OF THE ZONING ADMINISTRATOR CONCERNING FRONT YARD SETBACK AND SHORELINE SETBACK REQUIREMENTS AND HOW THESE SETBACKS APPLY TO PROPERTY OWNED BY THE APPLICANT. LOCATION: NYS ROUTE 9L, EAST OF BAY ROAD, TAX MAP NO. 4-1-11 IN A WR-1A ZONE. JOHN & KATHLEEN SALVADOR, PRESENT - 31 - (Queensbury ZBA Meeting 6/25/97) MR. THOMAS-Okay. Martin's letter. Read in Mr . Salvador's letter, and then Mr. MRS. LAPHAM-Okay. MR. THOMAS-Wait a minute. Read Mr. Martin's letter first, because that's the older one, and Mr. Salvador's letter addresses that. MRS. LAPHAM-Okay, and then there's other letters here. MR. THOMAS-Well, we'll get that. MRS. LAPHAM-This letter is from John Salvador, Jr., and it is addressed to Mr. James M. Martin, Executive Director, Community Development, Town of Queensbury. "Dear Jim: Thank you for your letter of May 5, 1997, relative to our Building Permit Application (#97-072) for a 300 sq. ft. Hunting & Fishing Cabin. As we read your letter, we conclude that all of your previous zoning concerns have been eradicated and but for the question of front yard property boundary set-back, all other zoning issues have been addressed. With respect to your interpretation and declaration of the location of the front yard property line, we intend to file an 'Application for Appeal' to the Queensbury Town Zoning Board of Appeals. We understand that such application must be filed before late May in order to be included on the June agenda. In addition, our letter of April 7, 1997 requested information concerning the APA's preliminary determination that they have a basis for a claim of jurisdiction. We are interested in the specifics surrounding the derivation of any jurisdictional claims the APA may have relative to this project. We need this information in order to prepare for the various appeals boards. Also, I trust the notion that this project constitutes or even has a capacity to serve as a wharf is no longer a realistic consideration. However, if this not be the case, then the foundation for this notion should be substantiated. Again, your earliest response will assist us in preparation for our appeal. Yours truly, John Salvador, Jr." MR. THOMAS-Now Jim's letter. The one you got tonight, it's dated May 5th. This is the one in response to Mr. Salvador's letter. MRS. LAPHAM-Okay. Thank you. May 5, 1997, John Salvador, from Town of Queensbury "Dear John: I am in receipt of your letter dated 4/7/97 concerning the denial of a building permit application (#97-072) for construction of a hunting and fishing cabin on your property and in the waters of Lake George. The letter contains numerous points in an attempt to obtain a reversal of the denial of the application. After consideration of the points made in your letter the determination for denial is not reversed. The reasons are as follows: 1. The shoreline setback refers to separation from the body of water. Pointe #2 on page 3 of your letter erroneously refers to setback from a property line. The shoreline setback is the overriding consideration. 2. A hunting and fishing cabin is listed as a principal structure in 179-16 C (2) (b) . Furthermore, 179-16A(1), limits density in the WR-1A zone to one principal building per acre. The boat house was not considered in the density analysis referenced in my letter of 4/1/97. Rather item #3 refers to the beach house as identified on the survey revised April 4, 1997. The new lot size of 3+/- acres is noted. The reference to a 1.99 acre lot is based on the information in the Assessment Department. As a courtesy and a means to correct the lot size I will, by copy of this letter, inform Helen Otte of the corrected larger lot size. In light of the corrected lot size information the density for this lot is not an issue. 3. You make reference to the twenty two (22) boat slips. Again, research indicates the correct number to be forty (40) (see attached letter dated 5/24/93). Please consider this letter to be a final determination of denial. If you feel aggrieved by this determination you are welcome to file an appeal to the Zoning Board - 32 - - (Queensbury ZBA Meeting 6/25/97) of Appeals. Sincerely, James M. Martin, AICP Executive Director Community Development Copy to Helen Otte and Mark Schachner" MR. THOMAS-Mr. Salvador. MR. SALVADOR-The details of construction are not at issue here tonight. I'm giving you this just for plan view. Mr. Chairman, I'd like to request that the public hearing be opened at this time. I'm interested in my remarks being on the record. MR. THOMAS-Okay. So that's all you want to say as your opening remark? You'll have a chance to talk after the public hearing's closed again. MR. SALVADOR-I have a presentation to make that involves these drawings, and my arguments. I'd like to have them be a part of the record. MR. THOMAS-Okay. Well, you can make that without the public hearing being open because you're the applicant. MR. SALVADOR-Well, will my remarks be on the record? MR. THOMAS-Yes, they will. MR. SALVADOR-Okay. MR. THOMAS-As long as that tape recorder is going, they're on the record. MR. SALVADOR-Okay. Thank you. I say good evening, Mrs. Lapham and Gentlemen of the Board. For the record, I am John Salvador, and I appear here tonight with my wife, Kathleen, for the second time in about one year on the matter concerning the development of our waterfront lands in North Queensbury bordering Lake George. There's one other housekeeping matter I would like to bring up at this time. For all the reasons mentioned previously, I would request that Mr. Stone recuse himself. He is a Vice President of the Lake George Association. It would become patently clear that many of the waterfront zoning issues related to our project are derived from the LGA's philosophies and policies as the relate to land use in the Lake George basin. In addition, he has risen from being a member of the Board of Assessment Review to having been appointed its Chairman. We are presently in our fifth year in an Article 7 Supreme Court petition against the Town Assessor and the Board of Assessment Review, and some of that relates to this project. More telling is the fact that his wife Joan holds title to property in our zoning district. MR. STONE-Mr. Salvador, I decline your request, for several reasons. One, the waterfront zoning law of the Town of Queensbury was adopted by the Town Board after numerous public hearings. It is the law of the Town of Queensbury. My responsibility as a member of the Zoning Board of Appeals is to follow the dictates of the laws of the Town of Queensbury, granting variances where it has been shown to be a plus for the applicant versus a detriment to the community. As far as being a member of the Lake George Association, I am also on other organizations, too, and they have no effect on anything, my independent thinking and listening to all the facts and all the presentations made. I humbly decline your request. MR. SALVADOR-Thank you. MR. STONE-Wait. One more thing. You talked about your being in Article 7 before the BAR. I was not a member of the BAR when you first went to Article 7. - 33 - (Queensbury ZBA Meeting 6/25/97) MR. SALVADOR-That's correct. MR. STONE-And the fact that my wife owns property has absolutely nothing to do with me. Our names are Joan Stone and Lewis Stone. We are two independent individuals. JOAN STONE MRS. STONE-Thank you. MR. SALVADOR-Spouses, however. MRS. STONE-I am Joan. I am not Mrs. Lewis. MR. SALVADOR-Okay. We appear here in a capacity divorced from that of the owners and operators. MR. STONE-No, we are not divorced either, sorry. MR. SALVADOR-The owners and operators of resort businesses know as Dunham's Bay Lodge and the recently organized Dunham's Bay Boat and Beach Club. Rather we appear here tonight as residents of the Town, and more particularly, as owners of residentially zoned property situated north of State Route 9L in the vicinity of Dunham's Bay on Lake George. We are seeking a building permit which will allow us to develop our waterfront residential lands. The residential development we envision, a hunting and fishing cabin, has been designed in full keeping with the character and aesthetics of our neighborhood on and around Dunham's Bay. This second appearance tonight necessitated, according to Chapter 179 Section 98 of the Town Code deals with our appeal of the Zoning Administrator's interpretation of two sections of the Zoning Ordinance, namely Section 179-16F, which deals with lot, yard, height and building size regulations, and Section 179- 60B (1) (b) 15 (C), shoreline regulations. Other issues associated with this project, such as lot size, principal structure versus accessory structure, potable water supply, wastewater treatment and handling, refuse handling and disposal, wharf definition, docking of boats, etc., have been analyzed and settled to the satisfaction of the Zoning Administrator and his Staff. The only matter which remains to be resolved in this otherwise garden variety project deals with shoreline setback. We cannot agree that the Zoning Administrator has interpreted the Zoning Ordinance properly as the Ordinance relates to the boundary line setback on ~ property, defined as tax parcel 4-1-11. The question before you tonight deals with the proper location of the shoreline from which to measure our building setback. Our property boundary is not coincident with the shoreline of Lake George, as are practically all other riparian owners abutting the public lands, that is the bed of Lake George. This proj ect has been carefully laid out, such that the building, a 300 square foot hunting and fishing cabin, is set back from our property boundary, which we would like to term, for tonight's discussion, the Salvador shoreline. The Zoning Administrator and the Town's Counsel failed to recognize the significance of our reference to our property boundary, and chose, instead, to use an arbitrary line which runs through our property, which is called the shoreline of Lake George. Tonight we will refer to that shoreline as an apparent shoreline or imaginary shoreline, as it appears on ~ tax parcel, 4-1-11. Our understanding, from reading the writings of the U.S. and New York State juris prudence is that building setbacks are measured from property boundaries, which are legal boundaries. Careful analysis show that legal shoreline of Lake George, in the area of this project, is, in fact, coincident with our property boundary. Tonight we will show the derivation of this statement. The effect of using the apparent shoreline, as the Zoning Administrator has chosen to do, these are the effects. One, it renders the three acre parcel, 4-1-11, unsuitable for building of any of the - 34 - '- (Queensbury ZBA Meeting 6/25/97) allowable uses prescribed in the Ordinance. There simply is not sufficient land, upland from the apparent shoreline, for any residential use, namely a single family dwelling, or a 300 square foot hunting and fishing cabin. We cannot meet the setbacks. The only use consistent with the Ordinance is then bare land. It has the effect of imposing upon us an unconstitutional deprivation of reasonable use of our land, that of residential use. The effect of the setback requirements on tax parcel 4-1-11, according to the Zoning Ordinance, is to destroy all economic value. Before delving into legal boundary versus apparent boundary, I would like to say a few words on the subject of setbacks. New York Juris Prudence Second Series, Section 11, entitled "Buildings" offers the following. Municipalities are granted the general power to regulate the location of buildings and the size or area of yards, courts, and other open spaces. Such provisions have been held to give a municipality the power to establish setbacks, side yard and rear yard lines. This power does not arise out of the zoning power, since the establishment of setback lines is no part of zoning. Further, the validity of setback line provisions depends on whether the regulations are based on considerations of public health, public safety, or the general welfare. In one of the earliest cases, at 252 New York Supplement, Page 343, the Appellate Division of New York State Supreme Court wrote that, power to establish setback lines does not arise from the power to enact zoning ordinances, since zoning means districting and establishing setback lines is no part thereof, and in a more recent case, at 252 New York Supplement Second Series, Page 780, the court opined that application of width, area, and setback requirements of zoning ordinance amounted to an unconstitutional deprivation of reasonable use of land owner's property, evidence indicated that application of requirements prohibited any development of the lot for uses permitted in the ordinance. That the only use of the property consistent with the ordinance was bare land, and that effect of the ordinance restrictions was to destroy economic value of parcels to put bare residue in their economic value. We would like to return to the subject of shoreline definition, before any discussion about legal versus apparent shoreline, and the application of each to this project. A short word about lake levels on Lake George. Our research reveals that all shoreline definitions have a relationship to water level. I am going to read from reference material which is somewhat technical in nature. Please do not dwell on the data points, but rather the history, the methods, and the determinations. We have handouts tonight which will graphically show what we're speaking of in the law. The following is quoted from an article entitled "Shoreline Survey of Lake George" published in the August/September 1959 issue of the New York State Conservationist. Following the advice of the Attorney General, the elevation of the mean low water mark was determined on the basis of daily readings recorded at the Roger's Rock gauge, maintained by the US Geological Survey for the 40 year period ending May 1959. This gauge is located about a half a mile north of the actual Roger's Rock, at Stone's Bay, in the Hamlet of Baldwin. It was found to be at the reading of 1.81 feet, equivalent to 317.74 feet above mean sea level. These data have been incorporated in Section 15 of the New York State Public Lands Law. Significantly then, as of 1959, all land below 317.74 feet elevation above mean sea level on Lake George is known as public land, lands held in trust by the State of New York, and as administer, as trustee more or less, by the Office of General Services in accordance with the New York State Public Lands Law. Thus, the legal lake level, as established on advice by the Attorney General was the mean low water mark, and has been set at 1.81 feet on the Roger's Rock gauge, which is equivalent to 317.74 feet above mean sea level. On the other hand, the Queensbury Town Code, 179-60B, makes reference to the mean hiqh water mark. Town Code 179-7 defines the mean hiqh water mark as being 320.2 feet above mean sea level. This elevation has been determined from a 1912 National Geo datic vertical datum, and is listed in 6NYCRR Part 608.11. The Queensbury water level of 320.2 - 35 - ~' (Queensbury ZBA Meeting 6/25/97) and referenced as mean hiqh water level, is not the water level elevation which can result in the leqal shoreline established by the Attorney General. The intersection of the horizontal plane at elevation 320.2 feet mean high water with the land abutting Lake George does form what we shall call tonight the apparent shoreline. It would appear that all that land located between the elevation 317 and elevation 320 above mean sea level is no man's land, neither public lands nor lands of the upland property owner. The State makes no jurisdictional claim above the mean low water level of 317.74, and the Town requires setback from the mean high water level. You'll notice on this graphic presentation, the elevation 317.74 mean low water mark, as that line which establishes what I'm going to call the legal shoreline of Lake George. That's the line below which, within which, the public lands are located, the bed of Lake George, above which the navigable waters of the lake are located. The Town, you see, has chosen the mean hiqh water mark of 320.2 to measure their setback from. I've taken the liberty, here, to also plot the elevation of the natural dam height, up in Ticonderoga, at 315.5. This is the dam that was improved upon which caused the flooding of ~ lands and a little bit of others, also. Now, I'm going to hand out a graphic of the apparent or imaginary shoreline, plotted on top of that. You'll notice on this that we have flagged the Point A as the apparent shoreline. That's the same line that the Town measures it's setback from, and again, we have the legal shoreline defined, and then we have tagged that area between those two as no man's land. No one claims jurisdiction over that. From a Town point of view, you setback from 320.2, and the Office of General Services claims no jurisdiction above 317.74. Are there any questions on these? MR. MCNALLY-Are you saying that the 50 foot setback should be set from where? MR. SALVADOR-Where it should be setback with regard to our property comes on the next. MR. MCNALLY-Well, aren't you bringing this up just because you think the setback should be established, some reference point? MR. SALVADOR-I'm bringing it up because I'm trying to establish that there is a legal shoreline on Lake George, and the Town has not recognized that in their call for what is the shoreline. MR. MCNALLY-All right. MR. SALVADOR-And I also am trying to show that, setbacks are to be measured from property boundary. cases on Lake George, the property boundary and the coincident. in law, the Now, on many shoreline are MR. MCNALLY-I didn't mean to cut you off. If you're going to go to that point, then why not do that. MR. SALVADOR-Now, I'm going to hand out the next one, as a plot of a section through our property. The first two, if you noticed, were sectioned through a tax parcel, what is it there, Lou? MR. STONE-8-1-4. MR. SALVADOR-Do you recognize that, Lou? MR. STONE-Now I recognize that. Thank you. Thank you for including my property, our property, my wife's property. MR. SALVADOR-It's just a coincidence. MR. STONE-I'm sure it was. MR. SALVADOR-Now, a section through our lands, which are partially - 36 - ',,-- ,-./ (Queensbury ZBA Meeting 6/25/97) flooded, we're saying the legal shoreline is the Salvador shoreline. That's the point we're trying to make. The Office of General Services makes no claim of jurisdiction on ~ lands, okay. It makes absolutely no claim of jurisdiction on our lands. So our lands are private lands. They are not public lands, and the Town has elected, in this decision of Mr. Martin's, of the Zoning Administrator at the time, to setback from the Point A. We're trying to make the case that that is not the legal reference point on our lands. Okay. Now in plan, this is that line. This is that line we're calling the legal or the Salvador shoreline. This here, and the project that's located here is set back 50 feet from that line, in accordance with the Ordinance. MR. STONE-John, this may be out of order, but where is the 317 line on this one? MR. SALVADOR-It has no significance, because. MR. STONE-You've established it on all these other ones. I would like to see it. MR. SALVADOR-Fine. You can put it in there, but it doesn't have any significance as the line relative to what the OGS claims their jurisdiction to. Their claim of jurisdiction is our property boundary. Okay. MR. STONE-Out here you mean? MR. SALVADOR-That's right. MR. STONE-Well, you've got 315 coming up into your lands. I don't see 317. MR. SALVADOR-All right. Give me a moment to get a letter out, please. Okay. We received, in our search on this subject, we received a letter in 1992 from the Real Property Planning & Utilization Group of the Office of General Services. He had this to say. After reviewing the documentation forwarded to us, the Office of General Services recognizes that the land constituting lots number eleven and twelve of the French Mountain tract was indeed conveyed in free simple estate. The only exception pertains to the reservation of any gold and/or silver. Except for these gold and silver rights, the State of New York has no other sovereign claim or right, title or interest in and to land now or formerly submerged south of the respective northerly boundaries of the aforesaid lots, and south of the boundaries of the aforesaid lots is south of this lot. MR. STONE-Okay. That's fine. That letter is perfectly valid, I guess, but why did we go through this exercise of 317.74? I mean, it sounds to me that we didn't need it. MR. SALVADOR-The legal water level of Lake George has been established by the New York State Attorney General. That's important. It does not apply on our land, because our land is not Lake George. Our land is flooded land. It was not originally a part of the water body of Lake George when the lands were granted. MR. STONE-Okay. MR. SALVADOR-Okay. The Town of Queensbury has had a long history and association with the shoreline of Lake George. The boundaries of the Town were first set during colonial rule, and were defined as the east shore of Lake George. Subsequent to 1776, the Town boundary remained the east shore of Lake George, between Hautin's Patton to the south, and the County of Washington to the north. Actually, Hautin's Patton is in the Town of Lake George. The same - 37 - (Queensbury ZBA Meeting 6/25/97) east shore of Lake George is the legal boundary we refer to tonight. The Queensbury Town boundaries were subsequently changed in the areas of the Town of Lake Luzerne and the City of Glens Falls, but never along the east shore of Lake George. The boundary changes which took place in the early 1800's were solidified in the revised State Statute of the State of New York, Chapter Two, Title Four, entitled "Of the Several Towns of the State". The revised Statutes I refer to were made effective as of the close of the legislature of 1858, and I assume the legislative session of 1858 did in fact close. We wish to reiterate that our lands comprising tax parcel 4-1-11, that parcel, located along the northern most portion of lot number 12 of the French Mountain tract are in the Town of Queensbury. The French Mountain tract was surveyed and mapped in 1810, by order of Simon DeWitt, Esquire, Surveyor General. The title of the map reads "Map of Attractive Land in the Town of Queensbury, County of Washington, called the French Mountain Tract" You will note that Queensbury was a part of Washington County in 1810, because Warren County did not come into being until 1814. MR. MCNALLY-What does this have to do with your appeal? MR. SALVADOR-I'm establishing the legal shoreline of Lake George. MR. MCNALLY-Don't we agree that your property is in the Town of Queensbury, and don't we agree that you own certain property which is beneath the waters of Lake George? Why must you demonstrate that? MR. SALVADOR-Because the Zoning Administrator is saying, as he requires us to set back from that shoreline, that that in fact we would not be in the Town of Queensbury. We would not be in the Waterfront zoning district. MR. MCNALLY-Well, get to the point, I should think. MR. SALVADOR-Yes, well, I'm building this, this is historical data that is important and is pertinent. All of the lands comprising lots twelve and thirty-two of the French Mountain tract were included in a land grant to James M. Fuller in 1818, and the record of that is available in the State Archives. Tax parcel 4-1-11 is located wholly within Lot Number 12 of the French Mountain tract. It is in the Town of Queensbury. As I understand, Warren County first undertook the preparation of tax maps in 1960. This parcel has always been shown to be wholly within the Town of Queensbury, and that portion of the approximately three acre parcel is shown to be under water. Since the advent of land use regulations in the Town, all of the land in area known as tax parcel 4-1-11 has been zoned in one form or another as residential, leading to the present one acre Waterfront Residential, and needless to say, we've paid all the taxes required. If, in fact, the shoreline setback is to be interpreted as the apparent shoreline rather than the legal shoreline, as we have argued here tonight, then the following arguments are to be made. Our flooded lands are not within the Town of Queensbury, established by the colonial legislature in 1763, because they established the Town boundary as the shoreline, the east shore of Lake George. That has never changed. That has never changed. We plead that this Board find that the Zoning Administrator has incorrectly construed the meaning of the Zoning Ordinance as it relates to the location of the shoreline on our tax parcel 4-1-11. If left to stand, the Zoning Administrator's decision promotes the unconstitutional taking of our private property. We have demonstrated that the Town's Zoning Ordinance is ambiguous, with regard to the shoreline location on flooded lands. In the matter of Alan V. Adami, which New York State Court of Appeals reference in a January 16, 1996 decision, any ambiguity in the language must be resolved in favor of the property owner. If the Zoning Administrator's decision stands, then we maintain there - 38 - '-- -' (Queensbury ZBA Meeting 6/25/97) are certain physical features of our flooded lands which comprise a portion of this tax parcel which render it unfit for the uses permitted in the Zoning Ordinance, that is residential use allowing single family dwelling or a 300 square foot hunting and fishing cabin. None of these physical features have been self created. We did not build the dams that caused the flooding. Land was appropriated by Warren County in 1931 in order to facilitate the improvement of the Fort George, Brayton County highway. This condemnation caused three acres to be severed from the approximately 210 acres at that time. There is no way one can build a residential dwelling on the non flooded lands of tax parcel 4-1-11. We did not foster the notion that lands which had always been used to support one form of recreation or another should be zoned residential. In fact, I testified at the September 1996 public hearing dealing with Waterfront zoning changes. My comment centered around the inappropriateness of continuing to ignore the fact that flooded land existed within one of the Town's residential zoning districts and that there existed a regulatory vacuum as to their use. Imagine the Town with full knowledge of this unusual situation, rendering a SEQRA negative declaration and adoption of the revised Waterfront zoning regulations at the same hearing. In Sure versus Limbrook, the Supreme Court rendered a Zoning Ordinance invalid which restricts property to uses for which it is not reasonably adapted. Anderson's New York Zoning Law and Practice states that a Zoning Ordinance is unconstitutional if it is not suitable to any use permitted by the Ordinance. Conversely, if the Zoning Ordinance precludes the use of property for any purpose for which it may be reasonably adapted, it may be declared unconstitutional. The only use allowed on tax parcel 4-1-11 is residential. Finally, we maintain that the Zoning Administrator's use of the apparent or imaginary shoreline rather than the legal shoreline has deprived us of all reasonable use under the Ordinance. Such deprivation is confiscatory by its very nature. Such an Ordinance affects a taking of property without due process of law and violation of the 14th Amendment, without just compensation of Article One, Section Seven of the Constitution of the State of New York. Such takings offends these constitutional limitations, irrespective of its tendency to serve such salutary purposes as preservation of wetlands, protection of delicate shoreline ecology, etc., etc. Thank you for your consideration, and we're ready to answer any questions you might have. MR. THOMAS-All right. Any questions for Mr. or Mrs. Salvador? MR. HAYES-I had one. I still am confused as to the difference between the Salvador line and the legal shoreline. The legal shoreline is at 317 feet? MR. SALVADOR-Lets say it's in here some place. MR. HAYES-So the Salvador line is the property line as conveyed? MR. SALVADOR-That's right. Most of the large land tracts, the land patents that were granted by the State of New York were granted with a boundary line definition called the shoreline of Lake George. This area it was not. There is a meets and bounds definition to this line. It wasn't a shoreline. I have the field notes, the survey field notes of this work. There's no talk of being in water. The surveyors in their notes where they are, what they're doing. They'll tell you the weather that day. There is absolutely no talk of being in the water, in the lake, anything like that, when they're setting these corner markers. So it's clear that this was probably very marshy, maybe high and dry at that time. There's been a lot of scouring, due to boat traffic, in the mean time. It's hard to tell what the original elevation was here, but the important thing is that this lot had a definition, and it was not the shoreline of Lake George, and it's in the Town of Queensbury. The Town of Queensbury has a definition boundary, - 39 - (Queensbury ZBA Meeting 6/25/97) says the east shore of Lake George. So that's where we're setting back. We're saying this is the legal boundary. This is the boundary the Town is obligated to recognize our property boundary, in establishing the setback. MR. CUSTER-John, I've been by that parcel probably 100,000 times in the last 14 years of living up here, but try to help me. The land in question is owned by you? MR. SALVADOR-Yes. MR. CUSTER-Are there beach area and docks that are part of it? Yes. Okay. So that it can be reasonably construed, though, that you are benefitting financially from those existing right now? MR. SALVADOR-They're nonconforming uses. MR. STONE-But you have a snack bar also on the property, right? MR. SALVADOR-That's a nonconforming use. MR. STONE-But nevertheless on the property. I just want to make sure, on that lot. What's the depth of the water where you want to build? MR. SALVADOR-About eight feet. MR. STONE-Eight feet. Okay. You described a regulatory vacuum. Would you explain to me why the water of that area is not navigable waters and why I can't go anywhere I want on the waters of Lake George? MR. SALVADOR-These are not navigable waters, because they are flood waters, and because they were not navigable in your original statement. MR. STONE-That's not what I was told by the State, however, that all the water that's currently there is navigable waters, and putting an obstacle to my navigation is, has some problems, as far as the State goes. MR. SALVADOR-Last year, you recall I put a raft out here last year with a light on. MR. STONE-Yes. MR. SALVADOR-Nobody told me to get rid of that raft. Nobody arrested me. There was no order to remove it, none whatsoever. We control those waters. The law says, there's case law that establishes, he who owns the soil owns the water. That's in law. MR. STONE-I believe there was just a case where a navigable stream was said that one couldn't fish because somebody owned both sides, but the law didn't say that you couldn't use that water, and this person owned the land under the stream. MR. SALVADOR-Now, that's because that navigable waterway is navigable in fact, and the property owner owned the bed. Okay. The waterway was navigable in fact. It was navigable in its original state. Nobody created the river. MR. STONE-But for 200 years, this water has been, you talked many times about a "taking". Has not the State of New York taken this water as a navigable waterway? MR. SALVADOR-No. MR. STONE-Why? - 40 - ~ '- (Queensbury ZBA Meeting 6/25/97) MR. SALVADOR-Because we still control it. MR. STONE-You do? MR. SALVADOR-Well, sure. These boats come in and out of here at our will. MR. STONE-I'm not talking about the docks. I'm just talking about riding along the water. MR. SALVADOR-This way, at our will, yes. MR. MCNALLY-You can fence off that? MR. SALVADOR-Yes, indeed. MR. MCNALLY-You can prevent people from going in and out of that water area, over the lands that you've got title to? MR. SALVADOR-Indeed. MR. MCNALLY-That's your position? MR. SALVADOR-Yes, indeed. In fact, the plan shows, you see the plan showing a buoy system around the cabin? That's to keep out boats. That's how we were able to establish that this structure does not have a capacity to dock boats. We fenced it off. We fenced it off. We put a buoy system up. MR. MCNALLY-This is your planned system, sir. system out there now. You don't have a MR. SALVADOR-No. MR. MCNALLY-And you expect that to stop boats? MR. SALVADOR-Gee, it works today. We have a swimming raft over here. We have a buoy system around it. We have no invasion from boats. It works. MR. MCNALLY-How large is this parcel on which you're going to build, or plan to build this structure? MR. SALVADOR-Three acres, a little over three acres. MR. MCNALLY-And how much of it is submerged, how much is not submerged? MR. SALVADOR-I'd say, two thirds, one third. MR. MCNALLY-Which is the one third? MR. SALVADOR-The land. MR. MCNALLY-So it's mostly submerged? MR. SALVADOR-Yes. MR. MCNALLY-And on the unsubmerged part, do you have a marina of some kind, docks? MR. SALVADOR-Well, the docks are on that water. MR. MCNALLY-But they're attached to the land? MR. SALVADOR-They're attached, yes. MR. MCNALLY-And do you have facilities to support the marina, as - 41 - (Queensbury ZBA Meeting 6/25/97) far as servicing? MR. SALVADOR-We have a water sports and water activity center, yes. MR. MCNALLY-Is there a pumping station for gasoline there? MR. SALVADOR-Yes. MR. MCNALLY-And a small store. I see a building, under the word "groundwater table", approximately in the middle. MR. CUSTER-Right in the corner of the "L" there, John. it's a snack bar. I think MR. SALVADOR-Right here? No. MR. MCNALLY-That's the water sports center. MR. SALVADOR-Yes. building. That's what they're referring to, the same MR. MCNALLY-What other buildings or things are on the unsubmerged portion, or attached to it? MR. SALVADOR-None. MR. MCNALLY-Now, is this operated as a commercial venture? MR. SALVADOR-Sure. MR. MCNALLY-How so? Do you rent out the slips? MR. SALVADOR-Yes. MR. MCNALLY-You rent out the boats? MR. SALVADOR-Yes. MR. MCNALLY-And the store is open to the public? MR. SALVADOR-No. It's primarily for our guests. I mean, if someone stopped in for directions, wanted to buy a coke, fine, but we don't advertise it that way. I point out that all of this you speak of is nonconforming use. This is a residential zone, and this, all of this you speak of could some day go. Okay. Witness the Mooring Post, could some day not be there. MR. STONE-Well, if we could make a contingency, of course we can't do anything because we have again, as Y2Y-know, a very small matter to decide here. We either agree with Jim Martin or we don't agree with him. MR. SALVADOR-Exactly. MR. STONE-It has nothing to do with the variance or anything else, but if you were seeking a variance we could put a condition on it the docks had to go if you wanted to build a cabin. We could try. MR. SALVADOR-Yes. If you want the variance bad enough, you'll live up to the terms. MR. MCNALLY-And I'm curious, too. Are you saying the place you wish to build is in the Town of Queensbury or is not in the Town of Queensbury? MR. SALVADOR-I maintain it is in the Town of Queensbury. MR. MCNALLY-And is it subject to the Zoning Ordinance in the Town - 42 - '"--, (Queensbury ZBA Meeting 6/25/97) of Queensbury then? MR. MCNALLY-This is zoned on the zoning map one acre Waterfront Residential. MR. CUSTER-John, it's zoned residential. So why don't you propose to build the cabin on the piece of land, ask for a variance that way? MR. SALVADOR-I can't meet the setbacks. MR. CUSTER-Unless we give you a variance. MR. SALVADOR-Yes. It's worse. You'll see if you look at the setbacks, worse condition. You'd need relief front and back. MR. STONE-Out of curiosity, John, you brought it up and we didn't, but if that land were not yours, underneath the water, you could argue by your definition that you could go out to the 317 mark. MR. SALVADOR-Yes. MR. STONE-That's no man's land you're saying. You could argue, in your style, that you could do anything you want there because it's not Queensbury in a sense. MR. SALVADOR-It is Queensbury. It is Queensbury. MR. STONE-But you said it was, what was your phrase, no man's land. MR. SALVADOR-Well, because Queensbury doesn't lay jurisdiction to it. OGS doesn't. MR. STONE-Okay. is. I was just curious where the no man's land line MR. SALVADOR-Somewhere's. There are two lines, okay. There are two lines that would run at those elevations, and they run through here somehow. MR. STONE-You're saying, all right. You're land is not at the mean high, because the mean high varies, obviously. MR. SALVADOR-Important is that our land has a boundary definition that is fixed in space. It is a meets and bounds line. All other lands on Lake George have a reference to a shoreline, and over the years, the shoreline has moved. The shoreline has, you've lost land. As you own land bordering Lake George when they built that dam, depending on the slope at your property, you've lost land. MR. STONE-Well, land was lost. MR. SALVADOR-Land was lost. MR. STONE-I didn't lose land. MR. SALVADOR-But the legislature cleaned it up. The legislature cleaned it up by making it legal, by establishing these levels. They're established in law, and you have no claim, but they didn't change this. MR. STONE-All right, but, John, I was told by the same man who said, unfortunately I don't have his name. I'm sure YOU do. By the same man from the State who said yes, in fact, you do own the lands in question. That you cannot control the waters. The exact same person said it to me personally, and he said he said it to you. I believe. He may not have written it. - 43 - (Queensbury ZBA Meeting 6/25/97) MR. SALVADOR-I have a letter from him saying something about other regulatory agencies. I mean, I don't say that because we own these lands we're not subject to regulation. I mean, the Town of Queensbury is regulating this land. I'm not denying that you don't have the power to do that. Okay. MR. STONE-Then we also have the power to use common sense, and say putting something out there is against my common sense. I mean, it seems to me that we have been extremely patient in listening to this, and one of the things that, I will say this again later, one of the things that we are, as a Board, we are not supposed to be arbitrary and capricious. I think this whole project is arbitrary and capricious, in my opinion. MR. SALVADOR-Fine. I'm telling you, we pay taxes on this land, and we bear a heavy burden. MRS. LAPHAM-I beg to have a point there. I was speaking with the Assessor, and I'm under the impression that there is no assessment on those lands. Your assessment is on the docks, and on the shoreline, and on the property attached to the shoreline. MR. SALVADOR-That may well be. That's the Assessor. MRS. LAPHAM-So you can't be deprived if you're not assessed. MR. SALVADOR-I get a tax bill. It has two portions to it. It says, land and improvements, buildings. MRS. LAPHAM-Lands and improvements, the snack bar, the docks. MR. SALVADOR-And my tax bill, our tax bill for this parcel has a land line, and it has a building line, and how they allocate and where they get their numbers, it's their. MRS. LAPHAM-What I'm trying to point out and what the Assessor told me was that that allocation is not for your underwater, submerged lands. It is for your shoreline. It is for your snack bar. It is for your docks. MR. SALVADOR-Yes. MRS. LAPHAM-So, therefore, we can't be depriving you. MR. SALVADOR-They're assessing us as a commercial operation. MRS. LAPHAM-So you can't be deprived of land that has no assessed value. I mean, you can't be deprived of financial return on lands that don't have any assessed value. MRS. SALVADOR-But we're not looking for financial returns. MRS. LAPHAM-Well, you're looking for a reasonable return of some sort. MRS. SALVADOR-No, we aren't. MRS. LAPHAM-Well, then why do you want this to begin with? MRS. SALVADOR-Because we want a hunting and fishing cabin on our property. MR. STONE-I thought I heard reasonable return. MRS. LAPHAM-I thought I heard reasonable return, too. That's why I brought that up. MRS. SALVADOR-No. - 44 - '-- (Queensbury ZBA Meeting 6/25/97) MR. SALVADOR-No. On residential property? How do you establish reasonable return on residential property? MR. STONE-We have had to do that, sir, on a couple of occasions. That's the Use Variance judgement, and we have applied that. Is that not correct, Mr. Chairman? MR. THOMAS-Absolutely. MR. MCNALLY-I see, though, the dispute regarding 22 versus 40 boat slips. How many boat slips are we talking about, really? MR. SALVADOR-It's irrelevant. I think we were counting just these and not the ones that were here in this corner. MR. MCNALLY-So it's just a matter of which ones you were counting on this parcel? MR. SALVADOR-Yes. MR. MCNALLY-Why should we not consider a 50 foot setback from the existing shoreline as defined by the Queensbury zoning code? MR. SALVADOR-Because I'm saying it's not the shoreline of Lake George on our property. MR. MCNALLY-But doesn't the zoning code define a shoreline? MR. SALVADOR-Yes. It's at elevation of 320.2 mean high water. MR. MCNALLY-Does your property comply with the 50 foot setback from that reference point? MR. SALVADOR-Which property? MR. MCNALLY-The property that you're proposing to build. MR. SALVADOR-No. The line that Mr. Martin was using is this line. MR. CUSTER-Then, John, you would actually make the argument that it is a conforming setback this way. MR. SALVADOR-I tried that once, and it did not fly. MR. CUSTER-That's what I'm, I'm buying that. controversial enough to accept that. I'm just MR. SALVADOR-Okay. We set it back this way, all right, and Mr. Martin said that the intent of the Ordinance is to. MR. CUSTER-Intent is one thing. What it says is a different thing. MR. SALVADOR-Where were YOU when I was? MR. CUSTER-I deal in contract law with insurance all day long, John. If it's not in black and white, we go to court and let the jury decide. MR. SALVADOR-I think Mr. Thomas will tell you that I. MR. STONE-You withdrew your application. MR. SALVADOR-Well, I had the argument here, and it didn't look like it was going to fly. MR. STONE-That's what I was about to say. - 45 - (Queensbury ZBA Meeting 6/25/97) MR. CUSTER-That's the one argument I would buy. MR. THOMAS-Are there anymore questions for Mr. Salvador before I open up the public hearing? All right. I'll open up the public hearing. Those wishing to agree with Mr. Martin or disagree with Mr. Salvador? Step forward and state your name. PUBLIC HEARING OPENED KEN FUCHSLOCHER MR. FUCHSLOCHER-After all of that, sir, I don't know if I could give any sort of an argument. My name is Ken Fuchslocher, and I own property on Dunham's Bay and my argument basically is, I don't know the law, but if it walks like a duck, swims like a duck, eats like a duck, it's a duck, and this thing about shoreline and so forth, to me, the shoreline is where the lake meets the land. What I gathered from Mr. Salvador's letter to Mr. Martin that basically he is using a shoreline in the water, and it's a good argument, but I thought about it, and basically, what was the intent of the law in the first place? Why did we pass a law about a 100 foot setback from the shoreline? And the conclusions I came to is if we didn't have this, we would have a stampede of everybody building their house right on the shoreline, and those pushing the point, nudging the house into the lake itself. The law was made to protect the lake, as I reason it out, and I respect Mr. Salvador. I really do. I think he does a fine job over there. His place is immaculate. I'm sure if he is allowed to build something like that, it will be kept up, but the thing is, one, it opens Pandora's Box, because there are other property owners in the same situation, and I'm afraid if this is allowed to happen, that then these other people will have, basically, a foundation to build their cases on, and, personally, I don't think it enhances the beauty of the lake, the natural beauty of it, to have a structure out in front of it, and I personally would like to have you say no to this. Thank you. MR. THOMAS-Thank you. MR. FUCHSLOCHER-I'm sorry I can't give you any legal support. MR. THOMAS-That's all right. We have our own. Would anyone else like to agree with Mr. Martin and disagree with Mr. Salvador? JOAN STONE MRS. STONE-My name is Joan Stone, and regardless of what thoughts Mr. Salvador may have, I have surprised my husband, who is sitting up at that table, by doing this, and I have my own point of view. I am entitled to state my own point of view. One question that I have is, isn't there a time limit after which acceptance by use would not allow this claim? This water has been open for more than seven years. I have been coming to this area since 1942 or '43. My father first rented and then bought a piece of property on Assembly Point, which is where we now live, and I have passed over that road and seen that shoreline for that number of years. I feel it's a narrow, two lane State highway. It has a lot of curves, and to put this kind of building in the middle of the Bay, so to speak in the middle, near shore, but in the water, would create a hazard because people looking at it would be startled by it and not paying attention to the way they're driving. I drive that road many, many times a week, to go wherever I'm going, and even though I do drive by several times a week, when the platform was there, I looked at it every time. It is a distraction to have something out there, and that is one of my concerns. The other is that I Chair a committee for the Lake George Association on water quality, and in my mind, water quality means more than a lack of pollution. The quality of water on Lake George, in my opinion, would be disturbed by the presence of this building. Thank you. - 46 - '~ --' (Queensbury ZBA Meeting 6/25/97) MR. THOMAS-Any questions for Joan Stone? MR. STONE-I certainly don't have any. MR. THOMAS-Okay. Thank you. One last time, agree with Mr. Martin, disagree with Mr. Salvador? All right. I'll spin it around the other way. Disagree with Mr. Martin and agree with Mr. Salvador? TONY CERRO MR. CERRO-Good evening. My name is Tony Cerro. I am from Kingsbury. What I have to say, I hope that I will not hurt anybody's feelings. I don't intend to. What I have to say here tonight, it has to do with more of an educational issue. What we are talking about here is a question of liberty. I would like to ask you a question. How many of you have read both the Federal Constitution and the State of New York Constitution? Did any of you? MRS. LAPHAM - I have. MR. MCNALLY-I'm sure we all have. I know I have. MR. STONE-I've read the Federal Constitution. I haven't read the State Constitution. MR. CERRO-Okay. MRS. LAPHAM-I read them both years ago. MR. CERRO-Okay. First of all, a common law, a body of water that was landlocked, it used to be that the owners all around that lake or body of water, they used to own the land. They used to own the water. They used to own the land under the water, and the minerals also. This has been changed, when the Federal government has taken jurisdiction over the great lakes and allover lakes which they call navigable. In other words, they put some commercial buildings and they had boats traveling through these waters, and they called them navigable waters, and they took jurisdiction over that for the purpose of controlling under the commerce clause of our Constitution. Now, that aside, what I've seen here tonight is that a lot of people, they have argued about their rights. I would like to ask you a question. What is your right, or anybody's right, to have a view over somebody else's property? When a person buys a property, he buys a definite amount of property between four corners, okay. That is the property that they own, and that is the property that they have jurisdiction over. Okay. If a person wants to control somebody else's property, now that is wanting to tell somebody else what to do with their own property, and this is what's happening here. What I'm trying to tell you is this. As Americans, as free people, you have to start to think about being free. Really free. What you are asking these people, and I see these people here. I am from Italy. I was born in Italy. Okay, and I was born under Mussolini. Okay, and I went through, I grew up during the war and after the war. What I've seen there, I don't like it. I didn't like it. I suffered from it. What I am trying to tell the people here, don't let it happen in America just like it happened there. Now, you are sitting here as a Board, okay, trying to probably solve the problems that are brought before you, but I think that you should start thinking in terms of, what is my interest, or what is the State interest, on any property that these people own that they want to do something on it? Quit thinking as a slave person. Start thinking as a free man, free people. Freedom is not free. Freedom has to be fought for, and I think that, I don't think that you people, you want to oppress anybody, you know, but by the same fact that you are accepting a job that is doing exactly that, by imposing rules and regulations on things that the State has no interest on it, it is wrong. Let the people - 47 - (Queensbury ZBA Meeting 6/25/97) build whatever it is necessary for them to build. Now, we are arguing with a garage between 900 feet and 1300 feet or whatever. What is the interest of the State to control that? Who needs that garage? Now, I've been a victim of the same thing. That is why I like to say these things. Besides, I have known Mr. Salvador for a number of years. I know him to be a very gentle person, gentle in all ways, and the same thing for Kathleen. I can't, you know, you look at their property. It's spotless. They are certainly not bad neighbors, and if he wants to push the envelope, even to the point of freedom, independence, you should applaud a man like him, that is going to stand up for what he thinks is right. That is a God given right that we have. Mr. Stone here was saying, you know, if you build the cabin on the water, well, you're going to prevent me from riding my boat. Well, your driving of a boat depends, actually, on a privilege that the State gives you, but because the State gives you a privilege, you want to take his right away to develop his land. The same thing is, if I own a piece of property on this side of the road, okay, and I want to build a house here, the person on the other side of the road says, no, you can't do that, because you're going to block my view. Now, what the hell am I buying the land on this side of the road for, if I can't use it? And why don't YOU buy it on this side if you want the view? Doesn't it make sense? You think about common sense, and you pointed out another thing tonight, that on one hand, in one district you could have a one acre lot. You could have boat storage and garages. On the other one with three and up to three acres and 25 or 26 acres, you are asking a variance for the person. Is that common sense? I don't know if I am getting my message across. My English is not well. MR. STONE-Very eloquent. MR. CERRO-I am worried about these three people here. These three people, they're young kids, okay. I associate with you three gentlemen, and as far as I'm concerned, my life, you know, my building life is over, and my family is raised and they're on their own, but these are the people that are going to suffer under a tyrannical government that we are building every day in this Country. Please, buy yourselves the Federal Constitution, the New York State Constitution. Buy yourselves the Federalist Papers, the Anti-Federalist Papers. It's going to cost you less than $30. Get educated in what our Constitution government was meant to be. Not what the public wants it to be. Democracy, now everybody tells you this Country's a democracy. That's the biggest lie, and our Government has been lying to us many times. The first time, well, not the first time, but one of the biggest times was when they took your gold away from you, okay. Now, the biggest lie now is the tobacco companies, not the tobacco companies, but the Congress and the Government which they want to sell your right to sue the tobacco companies in the future. Nobody has that right. You have the constitutional right to sue anybody that is hurting you in any way. The same thing if a property owner, his building will be detrimental to his neighbor. His neighbor has the right to sue Mr. Salvador for regress and for paYment. That is God's law. That is the constitutional law. That's the way it has to be, otherwise, we're going to end up just like Germany, Italy, China. Something to think about. I may not have said too much for John, but think about it. Thank you. MR. THOMAS-Would anyone else like to speak, in favor of Mr. Salvador, opposed to Mr. Martin? WINTON WILLIAMS MR. WILLIAMS-I oppose this. MR. THOMAS-Well, you're in favor of Mr. Martin, then. - 48 - '~ --../ (Queensbury ZBA Meeting 6/25/97) MR. WILLIAMS-I'm in favor of Mr. Martin. MR. THOMAS-Then you don't like what Mr. Salvador is asking? MR. WILLIAMS-I don't like what Mr. Salvador is doing. MR. THOMAS-Right. You're in favor of Mr. Martin. MR. WILLIAMS-Mr. Martin, okay. I've just been coming up to Lake George since about 1944. MR. THOMAS-Could you state your name for the record? MR. WILLIAMS-My name is Winton Williams, and my home of record is North Carolina, but however my wife and her parents have lived here all their lives. MR. THOMAS-Okay. Thank you. MR. WILLIAMS - I don' t see why one person has the right to set something like this up in the middle of the Bay. I think it's a disgrace to the whole Lake George. Like I say, I've only been coming up here since about 1944, but my wife and her father were born here and went to a one room schoolhouse in Lake George area, and they own property on this side of Dunham's Bay. I can remember my father-in-law, he has never mentioned any land in Dunham's Bay that was above the water level, in his whole life. The old State road now comes along on the south side of our property. The new State road was built and Mr. Salvador, I believe, owns all these boat docks along, which should be State road. These docks come off the right-of-way property, and I don't see that he has a right to own these docks. This is one of my objections to Mr. Salvador. I don't feel that he has a right to build something like this in the middle of the Bay. Now there's a situation similar to this that is happening in North Carolina. The lady across the street from us is on the water, and she wanted to build a house on the side of her lot, and the officials wouldn't let her do it. She didn't have enough land. So somebody buys that property from her and a great, big, huge house is going up on that property that the people wouldn't let her build a house for her son. He claimed, he's an attorney, and he claimed that he owned land out into the water, and this was the way he got around by getting enough land to build a house there. I think he's taking advantage of all the people in that area, and I think Mr. Salvador is taking advantage of all the people around Lake George, by trying to put something like this in the middle of Dunham's Bay, and I strongly object to it, and that's all I've got to say. MR. THOMAS-Thank you. Would anyone else like to speak, in favor of Mr. Salvador's position, against Mr. Martin's position? Last time. GILBERT BOEHM MR. BOEHM-My name is Gilbert Boehm. I live on Dunham's Bay, just a short distance away from where Salvador has his property line. I believe that Mr. Martin's interpretation is somewhat arbitrary. Because I really think, as Mr. Salvador has pointed out, that these determinations should be done relative to the property lines, not necessarily an arbitrary line such as the shoreline. Thank you. MR. THOMAS-Thank you. Anyone else? ALLEN STRACK MR. STRACK-For or against? MR. THOMAS-It doesn't matter. - 49 - (Queensbury ZBA Meeting 6/25/97) MR. STRACK-Just a quickie, because we have been here long enough, and I've written a number of letters myself, which are a matter of record. My name is Allen Strack. I live in Dunham's Bay, a short distance from the proposed location of this edifice that Mr. Salvador has proposed. I guess briefly I'm definitely and violently opposed to this thing as being a potential blot on the landscape and a real detriment to the environment of the Lake George in general, Dunham's Bay in specific. It's an area that, it's right within my field of vision. As I look out my front door now, this last year when he had this raft out there with this flashing red light on here, I was ready to go out there and saw it off myself. It was a real annoyance to us, as a local resident. I presume that if there was some kind of an edifice built out there in the middle of the lake, it would require some kind of lights and other pollution to the area. If people occupied it, there would be noise pollution involved, for people trying to, people living in there, because noise carries across the water, and it would be very annoying to people in the neighborhood, and I would be one of the first to be in receipt of that noise, and light. So anyway, and briefly, I'm very much opposed to that thing. I've written some letters, and they're a matter of your record. MR. THOMAS -Okay. Anyone else, last time? All right. Go ahead and read the letters. MRS. LAPHAM-Okay. Town of Queensbury, 742 Bay Road, Queensbury, NY, Attention: Board of Zoning Appeals "Once again, we are to be assembled to re-hash an item that has been re-hashed and re-hashed, in one form or another, so many times over the past year that I have lost count. I refer to the current re-appeal of the Salvadors in the matter of 'a hunting and fishing cabin' which they propose to erect in the open waters of Dunham's Bay, in Lake George. We are residents located near (Lot 4-1-17) the proposed scene of endeavor, and have expressed our opinions regarding the actions desired by the Salvadors. Refer to our letters of 5/22/96 and 10/22/96, copies of which are attached, for these additional comments. We are still opposed to the construction, occupancy and use of aa cabin' located in the open waters of lower Dunham's Bay, as proposed by the Salvadors. The structure, and its use, would add to the congestion of an already high traffic area, the location of many docks, and traffic from the nearby boat-launch, as well as from the many people already living in the area. The impact of occupancy, with added lights, noise, and pollution must not be minimized. The access to such a structure, other than by boat, is non-existent. The presence of a new, man-made structure in the open waters of the Bay would certainly detract from the character of the neighborhood. We realize that this hearing is convened to review certain specific details of the Planning and Zoning boards rejection of previous submittals of the Salvadors. We just hope that, as these details are reviewed, the Board does not lose sight of its overall mission, which is that 'continued vigilance in the growth of non-conforming use is essential to maintaining the integrity of residential zoning in this neighborhood'. We hope that the Board will continue to exercise its good judgment, and re- affirm its denial of the requested building permit. Sincerely, Allen W. Strack Eleanor B. Strack" Now, do I need to read the former ones? MR. THOMAS-Were they read into the record? MRS. LAPHAM-Well, that's what I'm asking you. It says, refer to our letters, copies of which are attached. MR. THOMAS-Well, if they weren't read into the record, they need to be read in now. MRS. LAPHAM-Okay. If these refer to when they withdrawn each time, because the project was withdrawn. - 50 - "-' - (Queensbury ZBA Meeting 6/25/97) MR. THOMAS-Yes, right. MRS. LAPHAM-So that would be water under the dam, so to speak. MR. THOMAS-Yes, right. MRS. LAPHAM-So I don't have to read them. MR. THOMAS-No. MRS. LAPHAM-William and Cheryl Baldwin, 24 Joshua Rock Road, Dunham's Bay, Lake George, NY, Town of Queensbury, "We are writing in response to the Public Hearing Notice of Appeal by John and Ka thleen Salvador on Wednesday, June 25, 1997. The Not ice of Appeal is Number 2-97. Our opposition to the Salvadors' so-called, "Dunham's Deepwater Development", is already on record. We are now, as a Director of Joshua's Rock Corporation and as property owners at 24 Joshua's Rock Rd., opposing the Appeal No. 2 - 97. Very truly yours, Cheryl L. Baldwin William C. Baldwin" From the OfficeofStanleyJ. Wawrejko, June 24, 1997, To: Mr. James Martin or Bonnie M. Lapham, Secretary, Subject: RE: John and Kathleen Salvador Cabin on the Lake project "1. I own a summer home on Dunham Bay, Lake George. 2. I have possessed this cottage for thirty (30) years. 3. It would be my opinion that the granting of this application should be denied because of the following reasons: (a) It would cause greater and further pollution to this great lake on top of the pollutions we now face. One must consider that the location of the proposed project is in the proximity of a rather expansive boat storage and launching area. (b) The time required to complete this project would, in all probability, cause prolonged and severe damage to the Dunham Bay area. (c) It is beyond my comprehension why anyone would desire building this project so as to severely impair all of the cottages in the Bay area. (d) If this application were to be approved, it would act as a precedent for a future similar request. (e) In summary, this is a type of request that benefits no one and harms many in so many ways. Stanley J. Wawrejko Dunhams Bay 55 Colvin Avenue Albany, New York 12206" That's it. MR. THOMAS-That does it? MRS. LAPHAM-That does it. MR. THOMAS-I'll close the public hearing. PUBLIC HEARING CLOSED MR. THOMAS-Mr. Salvador, any closing remarks? Any short closing remarks? You know I have to ask. MR. SALVADOR-Okay. Yes. There are a couple of closing remarks. With regard to Mr. Cerro's comments, in this constitutional republic of ours, the salient protection we have is the rights of the minority. They are to be protected. That is important, otherwise we have a tyranny of the majority, and that is not allowed in our Constitution. All comments made here tonight and comments received in writing pertaining to the presence of a building, of a structure, are totally irrelevant. We're here tonight to discuss a very narrow issue, as Mr. Stone pointed, out, that of property boundary setback. Comments with regard to pollution, we have taken very careful care to design this project, and all of its use, that we don't contaminate the water. I defy anyone to point out and to quantify, if they have concerns, we are prepared to mitigate them. This doesn't scare us. We do it every day, and we are not intent on any environmental damage. We don't live that way. We don't work that way, and it's not necessary, and you can be sure anything that ultimately comes out of this application will be done properly and the environment will be - 51 - (Queensbury ZBA Meeting 6/25/97) protected. We'll see to that, and nobody can force that on us. It's either done willfully, or it doesn't get done. As far as referring to this project as it's laid out here as a nonconforming use, quite the contrary. It is an allowable use. Where were these people when the Town was ganging up on us and zoning this recreation area, that's all it's ever been, recreation. Zoning it residential. Isn't the Town telling us this is what they want here? Read the Comprehensive Plan, what it says, the 1988 Comprehensive Plan, about residential development, and the need for it. Now, no one was around then. So the point I want to make is this is a conforming use. This is an allowable use, and we have satisfied all concerns with regard to the building code, sanitary code, environmental laws, everything. The only issue outstanding for this Town, as far as this Town is concerned, is the issue of where do we measure, from where do we measure the property boundary setback. Thank you. MR. THOMAS-Thank you. All right. Before us we have to answer two questions. Section 179-16F, setback requirements. I don't see Section 179-16F in our Ordinance, but setbacks. MR. STONE-That's the setback, that's here, under the new one. MR. THOMAS -Okay, the new one? I haven't got the new one, yet. Okay, and the other thing is 179-60B(1) (b) (15) (c), which is on Page 18026. So as we talk about that, those are the only two things we need to keep in mind. We're not concerned about what the building looks like or any other, you know, pollution or anything like that. So, having said that, we will start with Bob. MR. KARPELES-Well, I'm in agreement with Jim Martin. I believe that the intent of the zoning law is to keep homes even, or residential homes away from the lake, not into the lake, and I basically, that's it. I believe houses on stilts are for third world countries, basically. MR. THOMAS-Lou? MR. STONE-I agree with Mr. Martin, for very many reasons. I could go into a lot of discussion, but I believe the plan that you talked about is the land use plan, this Town's Land Use Plan. I don't think water is land, as one thing. I think there are many other reasons, but the thing, I agree that if we get into a discussion of water being land, we are getting into an area that I don't want to tread, myself, and therefore, I will decide with the Zoning Administrator. MR. THOMAS-Jaime? MR. HAYES-I also agree with Mr. Martin's ruling. We are charged with considering a narrow issue as to whether he inappropriately applied the Zoning Ordinance of Queensbury, and as far as I can read the two Sections that are in question, I believe he applied them correctly, and I do agree with the comments of the public and that all the due process protections in our Country are important, and they should be protected at every level, but I think that Mr. Salvador should pursue along those lines. MR. THOMAS-Brian? MR. CUSTER-Well, as I said, I'm not afraid of controversy, and I looked into this and listened to John's asking to take a quantum leap here and to buy into some things. Words mean things, and lack of words mean things also, and when you read the definition of shoreline setbacks, under the Ordinance, I bought the original argument that John put forth, that he was setting the land back from the shoreline. Whether he's on the land or on the other side of the land is not clearly defined in this, and I think the - 52 - ~ ----' (Queensbury ZBA Meeting 6/25/97) nebulous writing here of the Queensbury Code needs to be amended to quantify and clarify that, and until that is done, I cannot find that he made the proper interpretation, because the interpretation could have been the exact opposite. The phrasing is obtuse and as funny as that may seem, I'm against. MR. THOMAS-Okay. Bob? MR. MCNALLY -Mr. Sal vador, you have not convinced me that Mr. Martin's decision with respect to the proposed building was wrong. I think Mr. Martin's decision is correct. You can obviously disagree as to the nature and extent of government regulation. It's there to resolve conflicts between public and private rights. Private rights are there, and they are important, but they're not (lost word). You have only to look a the two Sections of the Zoning Ordinance to read what the purpose of the shoreline setback rule and the shoreline regulations are. Just like Bob suggested, not to have buildings sitting in the middle of lakes or to have buildings located close to the shore, and the point of it is simply to protect the lake, and to minimize the disturbance, and to basically ask people to act reasonably, and in all honesty, I don't see Mr. Salvador, although I understand he wants to make a point, to be acting reasonably in this particular fashion, and I just have to agree that Mr. Martin's decision was proper. MR. THOMAS-Okay. Bonnie? MRS. LAPHAM- I agree with what's been said. I agree with Mr. Martin's decision for, in particular the reasons that were just stated by our newest Board member. I couldn't have said it any better myself. MR. THOMAS-I also agree with Mr. Martin. You take the two points that Mr. Salvador's appealing from Mr. Martin's decision, specifically Section 179-60B (1) (b) (15) (c) in the shoreline regulations, which states, shoreline setbacks, the minimum setback from the mean high water mark of all principal buildings and accessory structures other than docks or boathouses shall be, whatever, it's 50 feet now, in all commercial zones, and all, other than docks and boathouses, and if you look up the definition of shoreline setback, the shoreline setbacks, the shortest distance, measured horizontally between any two points of a principal building or accessory structure, in excess of 100 square feet in size except docks and boathouses and the shoreline of any lake, pond, river, New York State Department of Environmental Conservation classified wetland or stream. Now we go back up and look at shoreline. Shoreline is defined as the high water mark at which the land adj oins the waters of lakes, ponds , rivers and streams within the Town. So what I conclude this to say is that any building has to be on dry land, not covered by water or covered by flood water or anything else. So having said that, would someone like to make a motion to either. MR. STONE-Well, we just have to deny the appeal, right? MR. THOMAS-Well, yes, deny the appeal and affirm Mr. Martin's decision. MOTION TO DENY NOTICE OF APPEAL NO. 2-97 JOHN & KATHLEEN SALVADOR, Introduced by Lewis Stone who moved for its adoption, seconded by Bonnie Lapham: And approve the decisions made in the letter of James Martin, Executive Director of Community Development, dated May 5, 1997. Duly adopted this 25th day of June, 1997, by the following vote: AYES: Mr. Hayes, Mr. Stone, Mr. Karpeles, Mrs. Lapham, - 53 - ..-/ (Queensbury ZBA Meeting 6/25/97) Mr. McNally, Mr. Thomas NOES: Mr. Custer MR. THOMAS-So we have a 6 to 1. Mr. Martin's decision is upheld. MR. CUSTER-It's a technicality. MR. THOMAS-That's why we're here. All right. Minutes. CORRECTION OF MINUTES May 21, 1997: NONE MOTION TO ACCEPT THE MINUTES OF MAY 21, 1997, Introduced by Lewis Stone who moved for its adoption, seconded by Chris Thomas: Duly adopted this 25th day of June, 1997, by the following vote: AYES: Mr. Hayes, Mr. Stone, Mr. Karpeles, Mrs. Lapham, Mr. Custer, Mr. Thomas NOES: NONE ABSTAINED: Mr. McNally June 4, 1997: NONE MOTION TO ADOPT THE MINUTES OF JUNE 4, 1997, Introduced by Lewis Stone who moved for its adoption, seconded by Chris Thomas: Duly adopted this 25th day of June, 1997, by the following vote: AYES: Mr. Stone, Mr. Karpeles, Mrs. Lapham, Mr. Hayes, Mr. Thomas NOES: NONE ABSTAINED: Mr. McNally, Mr. Custer MR. HILTON-Mr. Aronson's variance will be on next month. It'll be amended. MR. THOMAS-For the amendment of it? MR. HILTON-Yes, and he'll have a new plan. hearing. It'll be a public MR. THOMAS-Okay. adjourn. It sounds good to me. I'll make a motion we MR. STONE-Second. On motion meeting was adjourned. RESPECTFULLY SUBMITTED, Chris Thomas, Chairman - 54 -