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1991-12-04 SP -- -- ~EENSBURY ZONING BOARD OF APPEALS SPECIAL JEETING DECEMBER 4TH. 1991 INDEX Area Variance No. 87-1991 Dona 1 d Kruger 1. 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. o '--' -- QUEENSBURY ZONING BOARD OF APPEALS SPECIAL JEETING DECEMBER 4TH, 1991 7:30 P.M. MEMBERS PRESENT THEODORE TURNER, CHAIRMAN SUSAN GOETZ, SECRETARY CHARLES SICARD JOYCE EGGLESTON MICHAEL SHEA BRUCE CARR SENIOR PLANNER-LEE YORK ZONING ADMINISTRATOR-PAT CRAYFORD TOWN ATTORNEY-PAUL DUSEK NEW IIISINESS: AREA VARIANCE NO. 87-1991 TYPE II SFR-lA DONALD KRUGER OWNER: SAME AS ABOVE SHALLOW CREEK ROAD FOR CONSTRUCTION OF A SINGLE FAMILY HOME ON LOT 8. SIDE YARD SETBACK 13 FT. AND 17 FT. IN LIEU OF THE RE~IRED 20 FT. ON LOT 8 IN THE SHALLOW CREEK SUBDIVISION. TAX MAP NO. 75-1-23.6, 23.8 LOT SIZE: 10,000 SQ. FT. SECTION 179-20 MICHAEL MULLER, REPRESENTING THE APPLICANT, PRESENT MRS. GOETZ-We have a letter from David Hatin, Building and Code Enforcement for the Town, "Dear Board Members: This letter is to advise you that Lot 8, Shallow Creek Road, currently has a Stop Work Order in effect, due to the fact that Mr. Kruger has constructed the single family dwelling up to a framing stage with no permit being issued and no inspections being done by this office. The Stop Work Order was issued as a result of an inspection made on December 3rd, 1991, and will remain in effect until the ZBA rules on this variance, then the appropriate action will be taken from there. I trust this will answer any of your concerns. If not, please do not hesitate to contact me." STAFF INPUT Notes from Lee A. York, Senior Planner, Area Variance No. 87-1991, Donald Kruger, December 4, 1991, Meeting Date: December 4, 1991 "A letter submitted by Dave Hatin describes the current situation on this lot. This application was reviewed with regard to the criteria for an Area Variance. 1. Describe the practical difficulty which does not allow placement of a structure which meets the zoning requirements. The setbacks in the Zoning Ordinance were modified after the approval of this subdivision. It does appear that with a lot width of ±100 feet that the structure and access could be moved to conform more closely to the current setbacks. 2. Is this the minimum variance necessary to alleviate the specific practical difficulty or is there any other option available which would require no variance? Refer to above statement. 3. Would this variance be detrimental to the other properties in the district or neighborhood or conflict with the objectives of any plan or policy of the Town? No.4. What are the effects of the variance on public facilities and services? None. 5. Is this request the minimum relief necessary to alleviate the specified practical difficulty? The applicant does not present any alternatives. This is a discussion for the Board and applicant." MR. TURNER-Mr. Muller. MR. MULLER-Thank you, Mr. Chairman. For the record, my name is Michael Muller, and I have represented Mr. Kruger from the initial concept of putting together Shallow Creek, and that started back, I believe, in '86, did it not? Yes, and we went before the Planning Board, back in '86. At that time, in the zone, multiple dwellings were allowed. We presented a plan that had a multiple dwelling concept. I recall being at the meeting that evening, and the Board had in mind that it was important to, this was still another reason why the Town needed the moratorium, and I had to explain to Mr. Kruger why his project was going to be shelved, and I think it was shelved on account of the moratorium for, perhaps, 16 months or so. It was a considerable delay. I thought that he took it reasonably well, as any client can be reasonably measured. It was not a happy event. That is, he was anxious to build. When the new Zoning Ordinance came out, this was single family residential, and, in the process of presenting this to the Planning Board, the Zoning Ordinance then in effect had the setbacks that, well, fi rst of all, it allowed 10,000 square foot lots, and it had setbacks of, front yard setback of 30 feet total, side yard setback 30 feet, minimum 10 on a side, and rear yard happened to be 20 feet, that's not important here. So, we went through quite an extensive planning process, and there was a great deal of nit picking, and I have to tell you that Mr. Kruger, basically, let the planners do as they chose to do on this parcel, and it had some tough considerations here. There were a lot of slopes. There was a lot of aspects that they wanted to leave wide open, and he complied in all respects, and it was also a plan that impacted upon Bonner Drive, in the sense that the houses that would be on the southerly side of Bonner Drive were now going to have houses in their back yards. So, there was a great deal of planning 1 ~ ...- and give and take in arriving at a plan. When it was all said and done, the site plan was approved. I happen to be carrying a copy, here, that has Dick Rob~rts signature on it of December 7th, 1987. So, we're just about four years since we got our approval. Then Mr. Kruger goes to build a house, and I honestly cannot address all of what Mr. Hatin said in the letter, and maybe Mr. Kruger can and I think that he should, about, you know, that this house has gone up, there haven't been inspections or it doesn't have a permit. I'm here prepared to address, this evening, the aspect of the side yard setback. I'm told that one side of this house is 13 feet from it's side lot line. Is that correct, Donald? Okay, and I'm told that the other side is 17? DONALD KRUGER MR. KRUGER-It's a 70 foot house. MR. MULLER-Right, 17. All right. That would be right where it's supposed to be if he followed the site plan requirements. That's not where it's supposed to be if he follows the current Zoning Ordinance. So what you have here is a situation where the Zoning Ordinance, that has been since and recently re-enacted, as you put an overlay on the plan, they run in conflict with each other. With 20/20, perfect hindsight, you would call the planners or the Town and you'd ask them, you know, are we in compliance? What do we have to do, and should we get going? I have to tell you, and that's why I'm here this evening, much more as a witness than as his advocate. I did call Pat Crayford, and Pat, I'm sure, recalls the phone call. I didn't ask the question about the setbacks, okay. I mean, you know, perfect hindsight. I asked the question about the lots, about, you know, checkerboarding the lots, that is, what I was concerned about was, are we going to lose the smaller lots, because now we were in an area that required one acre? MR. TURNER- Yes. MR. MULLER-And Pat checked with me, and we went over the whole thing, and just, I thought it was like a fine toothed comb, and it had to do, basically, with the fact that, no, we need not checkerboard our lots with different ownership, that we were not in a Critical Environmental zone, we were not in the Adi rondack Park. We were all set. So, then I got back to Mr. Kruger and I said, no, it really looks good. You're all set. I'm here this evening to tell you that, you know, I soon then learned, only through Mr. Kruger, that he had his conflict, that is the setback. It's reasonable to allow this applicant the relief that he seeks, because if you look to how the situation arose, it's easily explainable. This Board has an extensive track record on granting similar relief. That is, we're not asking you to make a special case, here. I can't go through all the names of the subdivisions, but I recall one that constantly came before this Board, it was up across from where I live up on the upper Ridge Road. I think the correct name of the subdivision is Cherry Ridge, but any time somebody wants to build there, they have to come in here and get relief from the current setbacks to get their house in there, because I think you're requi ring 50 feet back from every 1 ine, and those lots are not going to fit a house. So, we think that it's honestly put before the Board, in that respect. That is, that we're complying with the site plan, and I think that's probably what our Town has as a way of interest, here, to comply with the site plan and get the houses where they wanted to see the houses. There were probably three or four presentations before that Board before they finally made a decision as to where they wanted to see the houses. In addition to that, if you grant this variance, there's not going to be any substantial negative impact upon the character of the neighborhood. It's going to remain residential. It's certainly not going to increase public services. I think that once the applicant has demonstrated that there is a practical difficulty, then it's incumbent upon the municipality to offer some proof as to why they would insist, beyond the economic hardship that's involved here, that the requirement be imposed. Mr. Kruger, I asked him this evening approximately how much did he spend to get in compliance with the Town, before he actually put a spade in the ground to build a house, and there was $148,000, to have the soft costs covered for site plan surveying, remember that the Town wants to see topography now, put the road in. So he made a considerable investment, and I think that he did so in good faith upon the site plan, and we'd just ask you to grant the relief that we seek here this evening, in compliance with our site plan. Do you want to add something to it? Do you have any questions of me? MR. TURNER-Lets have any questions of Mr. Muller, first. No, Michael. I guess you're all set. MR. MULLER-Okay. MR. TURNER-Now, we'll have Mr. Kruger. We have some questions for you. I guess my first question would be, why did you go ahead with the house? MR. KRUGER-We, again, with 20/20 hindsight we wouldn't have made that decision, but we proceeded in good faith. I applied for the building permit. I paid for it. We did what was on the Zoning Map, as we knew it, and I proceeded with the construction, and then I find out that I'm not in compliance, that they've changed the zone on me, and I can't build my house, and the print that I picked, it was, like, impossible to shrink it down. MR. TURNER-When did you get the building permit for Lot 8? You got one for Lot 6, but you didn't get one for Lot 8. MRS. CRAYFORD-He applied for a building permit on November 12th. 2 -- -- MR. TURNER-We've got one here for Lot 6, in November. MRS. CRAYFORD-Yes, Lot 6. This is Lot 8. MR. TURNER- Yes. MRS. GOETZ-Did he have a building permit for Lot 8? MRS. CRAYFORD-He applied for it, but I didn't issue it, because the setbacks were incorrect. MR. TURNER-Okay. MRS. GOETZ-Okay. So, you went ahead anyway? MR. KRUGER-We didn't know that we were in violation on it, until she called me about three days later and told me that. MRS. GOETZ-But then you still went ahead and built the house? MR. KRUGER-Upon seeking counsel of various people, I was told that I could go ahead until the Town Building Department told us to stop, at which time, when Dave Hatin told me to stop construction, we immediately stopped. MRS. GOETZ-So, it was, like, a month later or less? MR. KRUGER- Yes. MR. CARR-Who advised you to go ahead without a building permit? MR. KRUGER-That's hard to say. MR. CARR-Was it anybody from the Town? MR. KRUGER-No. I wouldn't say so. MR. CARR-Was it other builders? MR. KRUGER-I guess the general consensus of the people that I spoke to was that we should go ahead. I mean, understand, we're in a tight market, and I sold my house that I'm living in, and I have two months, from the date of the sale of the house, November the 15th, to build a new house. So, I have to be occupied, it's a house for myself. It's not a spec house, and I built just what I wanted to live in myself, and I have two months to do that, and I had all the subcontractors and men all lined up, and I mean, when Dave stopped us, I had ten men there I had to send home. MRS. GOETZ-But he did the right thing. MR. KRUGER-I'm not questioning that. I mean, we proceeded in good faith and he proceeded in good faith. I'm not questioning anybody's, you know, whether they were in good faith or not. MRS. GOETZ-When is the first inspection usually made? MR. TURNER-On the footings. MRS. GOETZ-So, it's, like, take your chances and go ahead, isn't it. MR. TURNER-Let me ask you a question. When you and I talked about it, was that house under construction, then? MR. KRUGER- Yes. MR. TURNER-See, it was my impression that when you and I talked, you came down to see me, that that was not the case. MR. KRUGER-The foundation was already up, and it was 70 feet long. I couldn't move it. MRS. GOETZ-What date was this application made out? MR. CARR-The 21st. MRS. GOETZ-Because, The present use, vacant land. 3 -- -- MR. KRUGER-I own the land all the way around that. The only neighbor that actually abuts that is Mr. Kosinski. MRS. GOETZ-But we were talking about Lot 8, on the application. MRS. EGGLESTON-Are your intentions to build more homes in that? MR. KRUGER-Yes, ma'am. MRS. EGGLESTON-But you wouldn't do it again, without a permit? MR. KRUGER-Absolutely not. No, I have to apologize for that. I mean, that's something that I would make a different decision on, but. MR. SHEA-Is this the first construction that you've undertaken, yourself? MR. KRUGER-No. MR. SHEA-Is this the first time you've done it without a building permit? MR. KRUGER-Mr. Shea, I thought I had a building permit. I went and I applied for it and I paid for it, and we thought that it was a pending thing. MR. SHEA-But you had a permit for Lot 6. You did not have a permit for Lot 8, correct? MR. KRUGER-We got a permit for Lot 6 after this. What date was Lot 6 issued, Pat? Do you know? MRS. CRAYFORD-I don't have it with me. MR. KRUGER-I don't have it either, but it was later. MRS. EGGLESTON-I think, though, you'd have to admit, being a former builder, I think you must admit you know when you ha ve a permi t and when you don 't. I mean, you've been through the process enough times. To say I thought I had one, or I assumed I had one, is not really a good answer. MR. KRUGER-I assumed that it was coming through. When I built before, the placards would come later. You would have the frame under construction by the time the placard arrived. Now Dave explained to me that you have to have the placard before you do anything. I did not know that. MRS. GOETZ-But you said that you also talked to people that advised you to go ahead. So, you must have had some discussion. MR. KRUGER-Yes, pending the approval of the Board. MR. CARR-Future building, are the lots wide enough to meet the setbacks? MR. TURNER-No. MR. KRUGER-They're 100 foot lots, and there are two houses, there's one that's occupied there that's 68 foot long. There's one under construction that's 70 feet long, and this one that I'm trying to build now that's 70 feet, and it just, I can understand the 20 foot side yards in an acre zone. That's perfectly reasonably. You have a 200 foot lot, 200 by 200, a 20 foot side yard is not an unreasonable request, but on a 100 foot lot, it creates a hardship on you to build, now you have to build a small house. MRS. EGGLESTON-Do you think it's rather large, compared to the rest of the homes in the neighborhood? MR. KRUGER-No. There are some small houses on Bonner Drive, but there are some very nice big homes on Bonner Drive, you know, the people have lived there for 20 years, and they've expanded them until, you'd be surprised how big, actually, some of them really are, and some of them have made some very nice improvements. They've come out toward the south, put all glass on them and really improved them. There's some people that haven't really done anything. MR. MULLER-These, I think, I would stand to be corrected by Pat, but I think that in the zone, where you do find 10,000 square foot lots, I'm reading from the Zoning Ordinance, the side setbacks are 10 feet, and these are preexisting, preapproved 10,000 square foot lots. They're actually larger than 10,000, but, go with 10,000. By the revision of the Zoning Ordinance, they became one acre minimum size, but there's no putting them back to one acre. That is, we just recently went through the process. We're not even presenting an argument to you this evening that, gee, these were lots that were created, 20, 30 yea rs ago and already exi st. I mean, these are pretty, brand new lots, and, yet, under the old Ordinance. I wanted to clarify one thing. In the conversation that Mr. Kruger and I had, I wasn't aware of the fact that he did not have a building permit until this evening. Pat told me as she was 4 '- - walking in, but he and I did have a conversation, when he asked me what should he do, that he has a foundation up, and, apparently, Mr. Hatin is of the opinion that it's in the wrong place, where there's too bi g, and my answer was, you've got to get in comp 1 i ance, and that, no, you need not stop, un 1 ess they issue a Stop Work Order. Obviously, you have to comply when they do that, and he tells me this evening that he did do that. So, I lead him to believe that, you know, you've got to stop when they issue a Stop Work Order. I probably would give anybody the same advice if they called me up on the phone, that, you know, they're saying that I'm in the wrong spot, and they're telling me to stop, and my answer would be, well, that would be nice, and it's the polite thing to do, but you don't have to stop until you get a Stop Work Order. Now, as I sit here and I listen to the whole thing, it would also be nice to have the building permit, and I didn't know that. I've dealt, a lot, with Mr. Kruger, enough to know that, in some respects, he's buil ding on a leap of faith, in the sense that he's not intentionally ignoring the Zoning Ordinance, but he moves his equipment and his trucks, his people when he goes. I can exactly foresee, I know what happened, and that is that he fills out all the papers, puts the check, drops it off, and it's a gi ven, as far as he's concerned, and away he goes. I think you know di fferent, ri ght? Yes, and he's bui lt other houses. I think of the time that I chose to build an office in Queensbury and I made my application for a building permit, and we danced around that for almost six or seven weeks before we got our building permit issued. I know that if I had to get in there, if that was going to be my residence, that I probably would have been glued right to the Building Inspector's door. He chose another option, which was, he thought the papers were in, ready to go, and I know that he would do that, okay. I would admonish him for that and tell him that that's not the way it's done, and it's, indeed the best way is to have your building permit in hand. That didn't happen here, and we wouldn't be in here trying to explain this one, and trying to unwind this one if he was right within the setbacks, that is, in all other respects that building permit would have to be issued. MR. TURNER-Well, it was my impression, Michael, that when I talked to him, that he might have told me that he had the foundation in, but, I thought that was the end of it, that he was going to stop, and then I find out Monday that the house is all framed. MR. MULLER-Yes. I have not even seen this house. I listened to him over the telephone, and I said to him, you stop when they issue the Stop Work Order, that's when you have to stop. MR. TURNER-So, after my conversation with Don, I thought, you know, that I had given him enough information that we wouldn't go any farther with it until he got the variance. MR. MULLER-Okay. Well, I certainly thought there was something special going on, in the sense that he said to me, I'm going to speak to Mr. Turner, and perhaps they'll schedule a special meeting for me, and I went, I never heard of that, but, go ahead, give it a shot. MR. TURNER-Well, I did, you know, because, he said he had a. MRS. EGGLESTON-Pat, may I ask, how soon after he submitted his application for a building permit and dropped off his check was he told he was not getting a building permit? MRS. CRAYFORD-The next day. MRS. EGGLESTON-So, you might say, almost immediately? MRS. CRAYFORD-Yes. MR. CARR-Like I said, my expression would be, what had you done by the next day? I mean, how far had you gotten? MR. KRUGER-The foundation was poured and it was back filled, when I heard that. MRS. GOETZ-Because the roof is on and everything. MR. KRUGER-No, the roof shingl es are not on. The bui ldi ng is framed, but it s exposed to the weather now. MRS. GOETZ-I know, but I mean, it's hardly just a foundation. MR. KRUGER-No, but when Pat called me, when I got that call, the foundation was back filled. MRS. GOETZ-I know, but, presently. The home that's next to the home that we're talking about, is that occupied, because it looked like a big piece of plywood over the front door? Does someone live in that? MR. KRUGER-Yes. The people picked the color, and we took the door down, because it was real cold and we put a temporary door over there. We didn't want the, it messes the paint up to be exposed to the cold, like today was. The painter was there and did that today. MR. TURNER-Okay. Any further questions? 5 '--...-- -- MR. CARR-No, not on this issue. MR. TURNER-Okay. Thanks, Don. Okay. I'll now open the public hearing. PUBLIC HEARING OPENED STEVE KELLY MR. KELLY-My name is Steve Kelly and I'm with Kelly Homes, and I can understand Mr. Kruger's position, and I would hope that the Board would understand the position that he's in, and the money that he has spent to do this subdivision, and then, all of a sudden, within one year, to tell him that everything is changed, that now you've got to put smaller houses. You've got to do, you know, a whole different thing from what originally was approved by the Planning Board, or whatever, and I just think that by what has happened to him could bankrupt a lot of builders in this area, and, in this day in age, I would hate to see that happen. MRS. EGGLESTON-Well, Mr. Kelly, I might say, in response to that, that what he's done could also effect other builders, in making them think that they could just do it without a building permit. MR. KELLY-What I'm talking about, I think, is his subdivision. His subdivision was approved with 10 foot side setbacks, okay, and all of a sudden you turn around and you're telling him a whole new rule, that's not right, okay. That's what 11m talking about. MRS. EGGLESTON-I understand that. I agree with you on that. MR. KELLY-And I think it's totally, you know, and then I think you've got to think about when the Town took over and dedicated the road, when he got the dedication of the road, what are you talking, a year? How long ago was your road approved? MR. KRUGER-In April. MR. KELLY-Yes. So, his road just got approved in April. Now he's got to go into all new rules, and that's five or six months down the road. I just think it's totally uncalled for. MR. TURNER-Anyone else wish to be heard in support of the application? MR. KOSINSKI MR. KOSINSKI-Yes. My name is Kosinski. My land borders Mr. Kruger's, and I have no problem with him building right next to my land, and I think he's improved the neighborhood, compared to the way it was years ago, when people used to dump their garbage down the hill, and I think he cleaned it up fairly nice, and I have no problem with him building along side my property, with the Ordinance and all that, I don't know anything about. Thank you. MR. TURNER-Thank you. Anyone else? Support? ROBERT PRATT MR. PRATT-My name is Robert Pratt. I'm building a house in the same subdivision, and I just, I feel I'm building a house that's 70 foot, the same way, the same dimensions and everything that he has, and, in actuality, I have 125 feet wide, but I'm only 100 feet deep. I met my setbacks, but, in looking at it, I feel that, correct me if I'm wrong, the Board is looking at protecting other people, you know, people that are already there, and there are no houses beside his house that he's building, at this time. So, a future consumer of a home could tell, before they bought that house, if they felt that house was too close or this and that, they could not buy that house. If there was an existing home there, then I could see where there would be more of a problem, but he owns property on either side, and he can, you know, when he puts the other houses in there, he can comply on those, and then the people have the option to see that, if he's 15 feet off the line or 13 foot off the line, and they want 20 feet, then they can purchase a house that's 20 foot off the line. I think this is more for something that, where a house is already preexisting, and, you know, there's a couple of things, he probably jumped the gun on the building permit, somewhat, but, when you apply for a building permit, you go ahead and you put your footings, you know, you're excavating and you have your footings in, and then your inspection comes thereafter, and, I mean, you keep right on going. It's hard to hold up a whole group of men from working and tell them, okay, you've got to take a day off, here, or you've got to take a day off now, and, you know, keep a construction firm going, and keeping the houses built. MR. TURNER-What lot are you on, Mr. Pratt? MR. PRATT-I'm on Lot 3, directly across the street. MR. TURNER-Three or five? 6 -- MR. PRATT-Five? Five. MR. TURNER-Five. Five is across from six. MR. PRATT-No. I'm on Three. MRS. GOETZ-I thought there was a house on Six? MRS. EGGLESTON-Yes, there is, they said. MR. TURNER-There is. MR. PRATT-I'm right directly across from the house that's. MRS. GOETZ-Not your house, but you mentioned that there's not a house on either side of the property we're talking about? MR. PRATT-No. MRS. GOETZ-I thought there was. MR. PRATT-No. MR. GOETZ-Is it two down? MR. MULLER-You're in Lot 3. He's building on Lot 3. There's nothing on Lot 6 now. There's nothing on Lot 10. MRS. GOETZ-Is there a house on Lot 4? MR. MULLER- Yes. MR. PRATT-So, there's no houses on either side of the house that he's building at this time? MR. TURNER-No. MR. PRATT-So, he's not causing a hardship. I mean, he's not causing a problem for. MR. TURNER-No. He has his layout for a subdivision, and he's just seeking the relief when the zone was changed, all right. So that increased the side setback. He's not asking for any other changes, right now. MR. PRATT-It was 15 feet when I built, and I built a week ahead of him, you know, I'm not that far ahead of him, in construction, in fact, he's ahead of me. I had another house going, and, you know, we've got two houses going at the same time, and he's actually got the roof, you know, his trusses on, and partly plywood, and he's got to comply to a whole different set of rules that's different than what I have. MR. TURNER-Okay. Anyone else wish to be heard in support of the application? AL CERRONE MR. CERRONE-Hi. My name is Al Cerrone, and I'm a partner with Passarelli and Cerrone builders. We have a development right up the road from Don, here, where we have the same situation. We have 100 foot lots, and, right now, we also have contracts where the homes are wider than 65 feet, and we have the same situation where you don't have the setbacks. So, really, I'm in support of him, for his situation, because I have the same situation. Thank you. MR. TURNER-Thank you. Anyone else? Anyone opposed? PUBLIC HEARING CLOSED MR. TURNER-Discussion? Does anyone want to talk about it? MRS. EGGLESTON-I really don't have a problem with it. It is like Mike says. We've done so many of those up on that Fox Road, isn't that the name of it, where, a preapproved subdivision. MR. TURNER-It does present a hardship to the builder when he comes in, and this one was done in '87. He's lays out a subdivision. He's got it all mapped out. He's got the lots all sized out. He's got the roads all in, and everything, and then he gets a curve thrown at him, and the rules change. 7 -- -. MRS. EGGLESTON-Just the way he went about it, just, we wouldn't want others to do the same, and he has said he wouldn't do it again, so, I don't know what else we can do. MR. TURNER-Okay. Motion's in order. tÐTION TO APPROVE AREA VARIANCE NO. 87-1991 DONALD KRUGER, Introduced by Bruce Carr who moved for its adoption, seconded by Joyce Eggleston: And grant the applicant relief of seven feet on the east side and three feet on the west side from the 20 foot setbacks. In 1987, this applicant's subdivision was approved with the design requiring 10 foot side yard setbacks, minimum, with a total required of 30 feet. The placement of this current home would meet those guidelines, and does not present an adverse effect on the neighborhood. The Ordinance would not be detrimentally effected by the granting of this variance, and public services would not be imposed on. Duly adopted this 4th day of December, 1991, by the following vote: AYES: Mrs. Goetz, Mr. Sicard, Mr. Shea, Mr. Carr, Mrs. Eggleston, Mr. Turner NOES: NONE MR. MULLER-Thank you for this special meeting, Ted. MR. TURNER-You're welcome, Mike. MRS. CRAYFORD-Ted, could I have an informal discussion with the Board on this subdivision, and, possibly, one or two others, and then would you, as a Board, be willing to possibly grant a blanket variance to a subdivision like this, with the setbacks that, not tonight, but that were originally approved with? MR. CARR-There probably should be something in the Zoning Ordinance that would require that. MR. MULLER-I agree with Mr. Carr, and the Town is loaded with subdivisions, and I really think that, I said this when we were looking at the Zoning Ordinance to revise it, that is that there are preexisting subdivisions in this municipality that have gone through the site plan process. I'm not talking about the ones that are World War II Specials, and I think that the Ordinance ought to defer to all of the planning. I think that the planners put it together, and we ought to just stick with that, and maybe then the Town loses $50 an application, but you also free up a night, like tonight and other nights, where I have seen two or three applications like this and, you know, you almost feel, I don't want to say that it's a given, but you feel duty bound to allow the variance, because, indeed, the planners put these people right through the ropes, you know that they did. So, it just makes sense. MR. CARR-I really think the Town Board should consider a resolution. MR. MULLER-It just makes sense. If you know anybody that will be on the new Town Board, you should suggest it to them. MRS. YORK-Perhaps this Board would like to make this a recommendation to the new Town Board, maybe your Secretary could write a letter. I agree with you, Paul, if you had a microphone, you could argue with me. It should be in the Ordinance, because otherwise they have to look at the uniqueness of each lot in every subdivision, don't you think? MR. DUSEK-I think it's a matter of a judgement call. It can, certainly, you can make that request. The Town Board certainly has the ability to revise the Ordinance to replace any kind of mechanism in the Ordinance that it would like that may address this issue. I think, in the past, the Town Board has dealt with this issue on a couple of occasions, trying to come to grips with this very thing. At one point, back in '88, they tried to exempt all subdivisions from the joinder clause, and from some of the other aspects. More recently, when they hit the issue again, they said, well, why don't we do what the State Law provides for, and that is, generally grant an exemption for three years, and after three years, let everybody come in for a variance, knowing that that would happen, but the rationale that they had, I believe, at the time was that, at least it provides an opportunity for citizens in the area who might be effected by this change, or this new house going in, to be able to be heard before your Board, and it just gave a procedure to it, but it's not to say that the thing can't be looked at again and, perhaps, another mechanism put into the Ordinance, which maybe in some fashion addresses this a little differently, and eliminates the need to come for a variance. There's a lot of possibilities. I guess that's what I'm saying, and, you know, from a legal standpoint, I certainly would not be adverse to any of them. I mean, they're all possible. MR. TURNER-Wouldn't it be a better idea to take them one at a time and grant them a variance on the one subdivision, because there might be some subdivisions that do have some problems. 8 ......- '--" MR. DUSEK-Well, I mean, that was, obviously, one of the factors that gave rise to the way the Board dealt with it, but, as Mike mentioned, some of the more recent subdivisions have certainly been put through thei r paces, in terms of rea lly bei ng analyzed, drainage concerns, everythi ng addressed, and this is not a definite idea, but maybe an idea is you have a cut off date for subdivisions where you will allow, basically, an automatic variance, if you will, or some sort of procedure, and automatic exemption, and then a subdivision before a certain date, that you don't, because there are some of the older subdivisions which have not gone through the same rigors that the later ones have, but that's just an idea. I mean, that may be one way of trying to further address the issue, but, certainly, in the past, that has been one of our problems. We have subdivisions, believe it or not, that date back, I forget the one I, probably the oldest one I've ever seen is 1920's, maybe, up around the Lake George area. JOHN RICHARDS MR. RICHARDS-My name's John Ri chards. It's interesting that thi s has come up, because I've seen it, as examining counsel for 1 oca 1 banks, and Paul's idea is a good one. You could use the '82 date, for instance, when they really did start to go through the ringer, and what hasn't been mentioned here, except maybe a little bit on the Kruger application, is the practical problems, the time problems and the money problems, run into. You've got banks who's rates may be changing. I don't think they're going to stay down here at this level forever, and so you have a construction loan that's, maybe, anticipated to be a two month or a three month time, and all of a sudden it's four months or five months, and the rates change. You have this kind of a ripple effect when you have an unforeseen delay like this, that is really a problem. People can't get out of their homes because the new one's not being built, and so, I really endorse, as a practicing attorney in the area, some kind of an amendment to the Ordinance, along the lines that Paul suggested, because it really is unfair to builders, as it stands now, and I think Mr. Cerrone even mentioned Leland Estates, which is just starting to be built, and you're going to have house after house after house up there. So, I'd be all in favor of a change. MRS. CRAYFORD-Soon. Soon. MR. TURNER-Any further comment? I don't think, from '82 until now, to handle them on a variance, I don't think there's that many out there that couldn't come before us, since they've had the site plan review. MR. DUSEK-You mean to have a cut off date? MR. TURNER-Either that, or grant them a variance for the subdivision as approved by the Planning Board. - MR. DUSEK-I think what I would like to do is, or I'd just recommend to you, that you may want to defer to the Planner to maybe just look over some of the records to get a good date. I don't know if '82 is necessarily the best date, but maybe the Planner or the Zoning Administrator, perhaps, would be in a position to take a look at the types of things that subdivisions went through over the past few years, and find a given mark that seems to be the date that they all, basically, went through the same procedures and that you feel pretty comfortable that they're modern subdivisions, basically, and then that would give you, I think, a better idea. I just don't know if 1982 is the date. Maybe it is, because that does coincide with our last major change in the Ordinance, before the '88 one, but, here again, maybe just to examine it just a little further to make sure that is the right time. MR. TURNER-Anyone out there have any comment? Do you want to make a comment? MR. CERRONE-The only thing I wanted to say is, the sooner the better, because I have contracts, right now, that I'm stuck with, and I can't build a house. So, unless I have to come in for a variance. MR. TURNER-You've got to come for a variance. MR. CERRONE-Yes. MR. TURNER-How many do you have sold? How many contracts do you have outstanding? MR. CERRONE-Well, I have one in there right now that we already start which, the setbacks are fine, but I have two right now that. MR. TURNER-Are going to need a variance. MR. CERRONE-They're 100 foot wide lots, right. I believe one house is 65 wide, and the other one is 67 wide. MR. TURNER-How many do you have, down there, left? MR. PRATT-Left to build? MR. TURNER-Yes. 9 '- MR. PRATT-I think I have, three, four lots that this will effect. MR. TURNER-Mr. Kelly, do you have any? MR. KELLY-Three in Hidden Hills, yes. MRS. CRAYFORD-Excuse me. There aren't a lot of them out there. MR. TURNER-No, I don't think there is. That's why I'm saying. Maybe it would be a good idea to scrutinize what's left out there, look it over and see where everybody is and see when they had the last updated review and just let them come in and get a variance. I think that's the quickest method. MRS. CRAYFORD-It is the quickest. MR. TURNER-If you go to the Town Board, you're going to be standing there waiting, I think. MRS. CRAYFORD-I agree. MR. RICHARDS-Well, maybe the developer could apply enmasse, for a variance for the 30 lots, or something, in anticipation. MR. TURNER-Well, that's what I'm saying, just apply for a variance on the subdivision, for what's left, just come and get them. MRS. EGGLESTON-On the whole subdivision. MR. TURNER-On the whole thing, a one shot deal. I explained that to Don. I said to Don, you know, maybe it would be a good idea if you get approval for what you've got left, because they're all laid out, and it creates an economic hardship on you to have to chop everything up to meet everything else. MR. DUSEK-To the extent that it's the developer coming in on a subdivision for all of his lots, that certainly works, because he can prove the economic hardship, because, obviously, if he can't build on them, the lots don't have the same value that they would if he could. So, that may be one solution for the developers is to come in with their entire subdivision, as you mentioned, Ted, other than going through the Town Board mechanism. That does provide an alternative. MR. TURNER-Yes, because, as busy as they are, you know, it's going to be, maybe, three months down the road, it could be spring. MR. DUSEK-Well, the trouble is, with the Town Board, too, that it's not just the Town Board, but it's the legal steps that they have to go through that takes time. MR. TURNER-Right, that has to be taken, right. MR. DUSEK-Anytime we make a wholesale change in the Ordinance, on the Town level, we're looking at having to do a SEQRA Review, first of all, and coordinating it with the other agencies. APA gets involved, because part of our Town lies within the APA and we have to, usually, wait until they get back in touch with us, which, that delays the process. It has to go through Warren County Planning. It goes through the Planning Board, and then any other involved agency. So, it does take a little time to get through that, and then if there's County or State property within 500 feet of where you're making the zone change, you've got to notify the Board of Supervisors of the County. There's just a lot of steps there, and we frequently find that a zoning amendment, first of all, it takes a little while to agree on the exact language, and then once you undergo the process, the fastest I've seen is a couple of months, more likely three months, and sometimes longer. MR. TURNER-How do you feel, Bruce? How does the rest of the Board feel? MR. CARR-I think it's a smarter move just to come in enmasse and just say, here's my subdivision, and this is the way it was approved, and now just make an application. MR. TURNER-You've got a legitimate, you know, you've probably got a legitimate argument, that, you know, you can prove it. MRS. EGGLESTON-Is that permitted, under? MR. CERRONE-We're not asking for anything unreasonable, or that wasn't granted before. MR. TURNER-No. It was already granted. So you assumed that when it was granted, you know, that you could run with the ball. MR. CERRONE-Not only that, but we have deed restrictions there. They're a minimum of 2,000 square feet, and, to maintain that, it's impossible to do. 10 ~ - MR. TURNER- Yes. MRS. CRAYFORD-If the developers could get in before the end of this month, we could have all these hearings in January. MR. TURNER- Yes. MRS. CRAYFORD-So, if you could talk to other developers out there to come in and talk to us, all right. MR. TURNER-Okay. Any further comment on that issue? MRS. EGGLESTON-No. MR. TURNER-Okay. That one's taken care of. All right. We have one other item of business, and then I'll have Sue read the letter. MRS. GOETZ-This letter is from Paul Dusek, to Ted Turner, dated November 8th, "Regarding Ireland and the Lake George Association versus Town of Queensbury ZBA and Frank J. Parillo, tabling of public hearing, our File No. 89-667, in reference to the above captioned matter, Tom West contacted me the other day and inquired as to whether the ZBA would consider scheduling the rehearing in connection with the appeal of the Zoning Administrator's decision of the Parillo zoning application some time in the near future. Tom indicated that he felt that it would not be appropriate to wait until Mr. Parillo completes his appeal. In addition to indicating that he felt that the matter was not stayed by the appeal, he also expressed concerns about the fact that at least one Board member, Sue Goetz, may not be on the Board after December. I indicated to Tom that the Board had decided to table the matter and await the outcome of the appeal. I stated that it was my understanding that the Board really did not want to undertake rehearing this matter, if it turns out that the matter is fully resolved by the courts. I think Tom understood this position, but reiterated his position, and also indicated that if the Court of Appeals denies Mr. Parillo's motion for leave to appeal, the case could be over in late November or early December. At that point, the idea of trying to get the matter heard in December came up. I am not sure, at this point, whether it was I or Tom that came up with the idea, but I did indicate to Tom that I would contact you concerning the possible scheduling of a hearing in December. With regard to a hearing in December, I indicated to Tom that I would recommend this to you, as it would still leave all the options open for the Board. If the Court of Appeals decides not to hear the case, the Board could then go ahead with it's rehearing, as planned. If the Court decides to hear the case, the Board could reconsider the issue of whether to rehear the case or await the outcome in the Court of Appeals. It would seem that this solution does leave all options open to you. Please advise if you would like to reconsider this matter at one of the November meetings." This is a letter dated November 14th, from John Richards, to Paul Dusek, "I am writing to follow up on our telephone discussion, earlier this week, regarding the scheduling of a new hearing on the Frank Parillo nonconforming use. I have reviewed the copy of your November 8th letter to Ted Turner, which you forwarded to me, and I strongly object to any scheduling of the hearing until the court proceedings have been completed. It is unreasonable and unnecessary for Mr. Parillo to incur attorney preparation expense and to schedule witness appearances for a hearing that may never take place. The launch is not operated in winter. If a hearing is eventually held, it makes no difference to anyone whether it is held in December or March. There is no reason for the Board to change the position it has maintained throughout these proceedings. That is, the Board will act when the courts reach a final determination. I trust there will be no scheduling of any action until we all receive definitive word from the Court of Appeals. If the issue is to be discussed again, before that time, I would appreciate being given notice in advance. Please forward a copy of this letter to Mr. Turner so that our position is clear to the Board. As always, thanks very much for your consideration. II This letter is dated November 26th, to Ted, from Paul Dusek, "In reference to the above captioned matter, enclosed please find a copy of correspondence received from John Richards. As you know, both John Richards and Mr. West will be appearing before the Board in December to argue for and against holding a public hearing in this matter. In the meantime, however, I thought I should forward a copy of this letter to you. MR. TURNER-Paul, do you want to make any comment? MR. DUSEK-The only comment, I think, that may be appropriate, at this point, is that, obviously, when I wrote the November 8th letter, and now a month later, I was assuming certain things which I don't know, at this point, have happened or not happened. Perhaps John will be able to fill us in more, but, at the time I spoke with Tom West, we were contemplating possibly hearing back on the decision from the Court, and thinking, well, if you set the hearing for December, presumably at the November meeting, if it turned out that the Court had not decided, or if it had decided that they would grant leave to appeal, then you could always postpone it again, or if they had said they're not going to hear it, then you could just simply go ahead and so, at that point, that was the tenor of my letter. I said, well, I don't have any problem recommending that to you because it seems to still leave, as I say in the letter, all your options open. After that occurred, and John contacted me, and we had a telephone conversation, and I don't know if you offered to follow it up in writing, John, or I asked you, but, in any event, I thought it was a good idea, and that gave you John's position, well, then, I think I had a couple of more phone calls with both John and Tom and maybe Bob, I don't know, but 11 ---- ....,/. as I said to John, before the meeting got started, I felt 1 i ke these two guys were having a tug of war and I was the rope. So, I said, go tal k to the Board, because I feel that this is a case for the Board's discretion. I don't know anything, under the law, that says you have to rehear it right in December, but I don't know anything, under the law, that says you can't rehear it in December, if you want to. There are good reasons, I think, on both sides, that both sides can argue. So, I suggested that both of these gentlemen appear before you and state their case, in terms of why they want you to hear it, or why they don't want you to hear it. Some of it's already been, I think, addressed in the letter, but I just thought it would be a good idea for them to tal k to you, and you'd be able to ask them any questions, and allow the Board to make the decision, which I think, you know, it's rightfully so. MR. TURNER-All right. Mr. West. TOM WEST MR. WEST-Thank you very much, Mr. Turner. Good evening. I'm Tom West. I think Paul is correct, that the position, our position is fairly well stated in his letter, in terms of why we believe this should be considered by the Board, first. Legally, because the Town chose not to pursue appeal further, there's no stay, and there's no legal reason why the Board is restrained from taking any further action. I think that's clear, and I don't think anybody would dispute that fact, and so now the question becomes, should you, as a matter of discretion, entertain this rehearing motion now and make a decision on it or not. Now, just in responding to Mr. Richard's letter, first off, I'm a little bit perplexed, in terms of talking about a major hearing. I mean, we've already had many major, lengthy hearings concerning this marina, and I don't know that it's really necessary to come back and hash over all the old testimony. I would presume that this Board would have the ability to look back over the old minutes and, in fact, I think some of the new members would have to do that to get themselves up to speed on that, but we had certain statements that were made, back at the July meeting, and so far back now, I can't remember which year it was, and then we went into, after the decision in July that a variance would be required, we went into a series of hearing dealing with the variance issues, and, in those hearings, Mr. Richards consciously wanted to go back and revisit the issue of whether or not a variance was required in the first instance, and introduce testimony as to whether or not there was an abandonment of the boat launch. So, I think there's been a lot of testimony on that subject. Probably, we will hear more, when it comes time for the hearing, and, no doubt, those who are opposed to the re-opening of the boat launch will want to say something on that as well, but I don't think we're talking about a major hearing. So, I don't think there's any real prejudice there. I mean, my concern, and I think the concern of my client, is very simple, that the complexion of this Board is changing over time. We've been through a lot of history on this particular project, and I think it's appropriate for as many people who were involved with that history to be involved with the rehearing. Otherwise, the rehearing just becomes another bite at the apple. Didn't like the first time, lets go back. Lets redo the proof, start over. If you do it enough times, maybe you'll get the unanimous vote that the courts have told us is now required, and the boat launch won't have to go through the variance process, and so that's really our position. We think it's just one of fundamental fairness, and I don't think there really is any prejudice to Mr. Parillo. If you schedule this later in the month and, by the way, the next decision date, from the Court of Appeals, is December 19th. We checked, and that's the next date decisions will be coming down. Whether this one will be among them, only they know, but, if you were to schedule this later in the month, you'd be in a position where I think it's likely you'd hear from the Court of Appeals by then, but, even if you hadn't, even if you went ahead and re-decided it again, and I'll assume the worst case, from our side. Lets assume that the Court of Appeals decides to take the case and then, down the road they reverse. The most that's done is take up a little bit of time, one evening of this Board, and I recognize everybody's time is valuable, but I think, given the fact that we do have at least one member leaving the Board, is that correct, and I think that member is also the move on to the person who initiated the motion for rehearing, that brings this to the table of this Zoning Board of Appeals. I think that time is well spent, for the interest of the public who have opposed this re-opening of this launch for many years. So, that's it. It's simply a fairness issue. It's one where we want to see the people who are familiar with the history of this controversy decide it, before the Board changes any further, and see exactly where everybody stands. If the Court of Appeals rejects leave, then that's the end of the Court process. If they grant it, even if they lose, the worst it would do would be to moot this second decision, and it would be just some time that was expended, and that's it. MR. CARR-Well, it would be a waste of money, I mean, a small amount of money, to the Town. To me, it would be a waste of any evening, but, quite frankly, December's one of my busiest months, you know, just trying to get everything done for the year end. MR. WEST-I appreciate that, and, you know, I come up from Albany for these proceedings, and have a lot of time invested in this case, and, you know, I'm a property owner right in Dunhams Bay. My family's owned property in that area for a couple hundred years. Family folk lore is it goes back to a land grant and came in and out of the family in a poker game one night, but we've owned property for a long time. So, I'm willing to take the time to come up and go through one more round on this. I think that, if you were to schedule it later in the month, I'm pretty confident the Court of Appeals will speak on the 19th, and we'll know exactly where we stand. I suppose the Board could always exercise its prerogative, if they take the case at that time, to extend it, but I don't really think the case 12 '-- -" has any legal merit. As I understand, it was the decision of the Town for the Town not to pursue the appeal further. They decided that they had stood up for what they felt was right, and the Appellate Division spoke and so now it was time to re-decide the issue. I appreciate that it's a busy time of the year. MR. CARR-Well, I think it's also, I mean, I think it becomes an economic decision, ðlso, from the Town's point of view. I mean, quite honestly, whether or not to pursue, I don't know if it was. MRS. EGGLESTON-Are we going to hear both sides before we discuss? MR. CARR-Well, yes, I just want to ask him a couple of questions, because, I mean, maybe John will address this, but I think one of the issues was the makeup of the Board. Mike, were you at that meeting? MR. SHEA-No, I was not. MRS. GOETZ-Jeffrey Kelley, his term expired. So, that's the other change. MR. WEST-Right. MR. CARR-And at the second meeting, Sue, you weren't there. MRS. GOETZ-I thought I was here every time. MRS. EGGLESTON-I don't think you missed any meetings. MR. CARR-No, you did miss a meeting. MRS. GOETZ-Was it that one? MR. WEST-It wasn't that one, because, as I recall, it was Mrs. Goetz and Mrs. Eggleston that were the negative votes that. MR. CARR-Well, no, there was one meeting that we needed a unanimous vote, before the lawsuit. That was the one that sent it into the lawsuit, and Sue was not there, and there was a lot of testimony, because it was a six to 0 vote. MR. WEST-I think Sue was there on the October meeting, too. MR. CARR-Well, no, because I didn't come on the Board until November. So, we had a meeting in early December, didn't we? MR. WEST-Late December. MR. RICHARDS-And we had a meeting in October to schedule to the December meeting. MR. CARR-And the December meeting was where the witnesses came. MR. RICHARDS-I think they were there at both. MR. CARR-Were they? MR. WEST-They were there sort of throughout. MR. CARR-Okay, because I wasn't at the October meeting or the July meeting that set this whole thing up. MR. WEST-Yes. The July meeting was focused slowly on the issue of whether or not a variance was needed, and then it was determined that a variance was needed, and, as I understand, what was agreed at the time was that as long as Mr. Parillo promptly applied for and pursued a variance, the Town wouldn't take any enforcement action to close him down, and we didn't really object to that. We thought that was an appropriate thing, at the time, because it was going to get the variance issue heard and determined, and we were willing to go along with that practicality. He immediately applied for a variance and I think as early as August or September, we started into the hearing process on the variances, and we had several meetings, with considerable testimony on the variance issue, and the impacts of the Marina, etc., and then it was in the October meeting, as we started to get into this issue of whether or not the original decision was correct, and we started to get some witnesses on that issue, as opposed to the variance issue that the Board decided to reconsider it, and it's actually all coming back to me. I remember it quite well. I remember Paul and I had some discussion, at that time. Neither one of us were prepared on the law, so to speak, and I said, gee, I think unanimity is required, and we weren't really sure, but I think there was one or two negative votes on that motion, and then, ultimately, that matter was fully heard, and I think it happened to be between Christmas and New Years, as I recall, the last week of December, and there were two negative votes. So, from our perspective, there are 13 -- - two people on this Board, among others, who were there throughout most of the early days of this matter, and we now know that one of them is leaving, for higher office or whatever, and she is also the one that made the motion for the rehearing, and what we're suggesting is that that motion be heard and determined. I don't think it requires a lot of testimony, even if Mr. Richards intends to bring in more witnesses about levels of activity prior to the re-opening of the Marina, and if we intend to bring in a few witnesses on that issue, because we're not getting into the Board range of variance issues and environmental impact issues and those kinds of things. It's really a factual, fact finding, mission, at that point. It's not overly involved, and, again, I think from a practical standpoint, I think we're going to hear from the Court of Appeals on the 19th. So, if there's some way that this can be scheduled, prior to year end, and accomplish the purpose of at least having as many people who were involved with the original hearings hear and determine this rehearing motion, it's the request of me, on behalf of myself, on behalf of Mrs. Ireland, on behalf of the Joshua's Rock Corporation and all of its residents from, basically, one side of the Bay. The Dunhams Bay Association has been a supporter of this, as has the Lake George Association, that that be heard and determined, and that fairness dictates that that be done now. MR. TURNER-Okay, John. MR. RICHARDS-Hello. If you know, my name is John Richards. I guess I have a hard time understanding the urgency, at this time. Tom didn't make the same claim when Jeff Kelley, when his term was expiring, because I really don't see the urgency whatsoever. As I said in the letter, there's nothing going on, and whether it's heard now or in March wi 11 not effect any of the practical aspects of the use of the launch. I don't, do you plan to replace Sue, or are you going to go with just the five, at this point? MR. DUSEK-At this point, I think the Town Board has not made any appointments. MR. RICHARDS-So, there mayor may not even be a new face to replace Sue on the Board. As far as the dating goes, Tom is right, in that the 19th of December, at least in my understanding, is when the Court will begin to review the motions before it. That doesn't mean that any decisions will be coming down. Perhaps the 19th, but my information is that it's very likely it'll be after the first of the year or, if it is this year, much closer to the first of the year than the 19th. That's certainly my understanding. As far as some of the points that Tom made, about it just being a little hearing, a minor rehearing, I think his whole position, and the position of the Appellants through this proceeding and the Courts has been that the rehearing that we had in December was improperly held, and it's certainly my understanding, I have not discussed this, whatsoever, with Paul, that we have to go back to square one and re-submit all that information that we've got, and we certainly intend to see if there are other witnesses that can be produced, and have to do a very substantial amount of preparation. I can only speak for Mr. Parillo and myself that, reasonable as my fees may be, I do charge for my time, and to put Mr. Parillo to the expense of having me prepare, and substantially prepare, for a hearing that may never be held certainly doesn't seem practical or necessary or appropriate or fair. One other issue that Tom mentioned, that he seemed to imply that by the Town's not continuing in the litigation, it was a statement that they were prepared to go ahead and have the thing decided. I'm not so sure that that's the case. I can't speak for the Town. There could be other factors besides that, and, certainly, I'm not even sure that their participation down the line is necessarily foreclosed, should the Court allow us to be heard before them. As a matter of fact, that's one of the issues that was addressed in the response papers to my motion papers. So, for any number of reasons, not the least of which, scheduling witnesses in the holiday times, and, what's now about three weeks, is very difficult, and I certainly don't look forward to even the idea of having to schedule witnesses and then call them off at the last minute. I just think it's impractical and unnecessary. MR. TURNER-Discussion? MRS. EGGLESTON-For myself, if there's the possibility, this is just my own feelings, or if we're going to have to hear it again, I would like it to be before Sue leaves the Board. It was a complicated, long issue. There's so many things to remember and do, and she's, for what we have left of the ones that were involved, I think that's important. MR. TURNER-Bruce? MR. CARR-Well, I don't agree, because Mike's going to have to be brought up to speed. I've got to be brought up to speed on two previous meetings. I was only at ~ meeting. Mike was at ~ of the three meetings, you know, and I think John makes a good point, in that there wasn't a big stink when Jeff got off, and Jeff was here for all three meetings. We know Sue's feelings on it at the time, and we knew Jeff's feelings on it at the time, and I think we can all just make our own decisions, based on it. Also, I think, if I recall from our discussion, it was, we had decided to let the Court of Appeals handle it, at the time, to save the Town any expenses of getting in, because Mr. Parillo was going to pursue it, although Paul felt, I believe, that you felt that you had a good case, if I'm not misquoting you. MR. DUSEK-I've always felt we had a good case. I'll say that on the record. 14 -- ..-' MR. CARR-Yes, so, I mean, but it was an economic decision, that we decided not to pursue it and let the private individual pursue it, and that, until the Court of Appeals rendered its decision, that we would kind of just, we would wait and let the Court system handle it. I'm still of that feeling. I think it .i! an imposition, in the holiday season, to try to schedule anything on a short notice, and I'm not just speaking personally, for me, because it is, I mean, it would be a very substantial position, but, on Mr. Parillo, his witnesses, and I'm sure, Tom, maybe his witnesses would be available, or would make themselves available. MR. DUSEK-The only thing, if I may just mention to the Board, and I'm just trying to keep this as, at least as much of the facts that you're considering, as fair as possible, and I'm certainly not trying to put words in Tom's mouth at all, either, but on the issue of Jeff Kelley, when you said that nobody made a big deal out of Jeff Kelley leaving the Board, I don't even know if they knew Jeff Kelley was leaving the Board. MR. WEST-We didn't. Just for the record, that was during the primary appeal. MR. CARR-No, it had already been decided. It was in September. MR. DUSEK-But the thing was is that Sue's was very noticeable because she was, obviously, running for office, and that subject got brought up, but I never really recall having any significant discussions about Jeff Kelley, except, at the time that we did start talking about Sue, and the concerns got raised, I think I also mentioned the fact that Jeff was leaving the Board, but I just want to make sure that issue's been addressed in some fashion. MR. TURNER-Charlie? MR. SICARD-I think we pretty well agreed there that, taking a look at the economics of the thing and everything, and pretty much had it settled at that point, but anything can change. I'll be here. MR. TURNER-Mi chae 1 ? MR. SHEA-I guess I would agree with Bruce, in that, I know that when I go back and do the ·research and rereading all the minutes, that I'll certainly weigh what Sue had said and what Jeff had said, as well as what the other Board members had said, and what was evidenced in the public hearing, and that's as important to me as what I may hear at that time, being there, personally, for the first time. So, I don't think that I would say to Mr. West that the thought and the opinion that Jeff and Sue had put into it at the time would certainly not go unnoticed and would certainly weigh into my thoughts and decision on what would have to be decided at that time. So, I guess I would agree with Bruce. It would be based on that that I don't really see a need for doing it at the present time, in order to save Sue's position, with respect to her decision that was made before, and how she might react to it the next time around. MR. TURNER-Well, I feel the same way, that, no matter what, the complexion of this Board could change any time. If we had one more member to take Jeff's place, there's two people, right there, that did not hear it before. So, they'd have to come up to speed, the same as you have to. So, I really feel that we made the right decision, and we leave it like that, and let the outcome at the Court of Appeals level, and then we'll take it from there, if it comes to us. MRS. GOETZ-When you give the background information, they'll be getting the full minutes of the part where, all about that rehearing issue, unanimous? MR. TURNER-It's going to have to come right up in July of '89, right on up. MR. DUSEK-There's two comments I'd like to make. First of all, with regard to the minutes, of course, they're available, and every member is certainly entitled to review all of the minutes that are available. Now, what's in those minutes, I can't really recall off the top of my head, right now, but I presume they were extensive, and they covered everything that was said at the meetings. So, those are available, and Lee, are the tapes from the meetings available? MRS. YORK-Yes, they are. MR. DUSEK-So, we even have the tapes then. So that, in the event that there's a question on the minutes, perhaps the tapes may address that. So, that's one issue, then. So, that the records are, in fact, available. The second issue, I think, that has not yet been resolved, and I don't know that it can be resolved tonight, but that is, the extent of the hearing itself. I can see an argument being made that the minutes, or the comments made by individuals at previous hearing could be brought into the record at this next hearing. On the other hand, I can also see an argument being made that maybe they shouldn't be, because this is a new hearing. Now, if the parties are all willing to agree, and by parties, I mean the lawyers representing the various parties, to stipulate to the comments made, and the Board is willing to stipulate to that as well, then, of course, I think they can be made part of the new record, and that would be upheld by a court of law, but if there should be a disagreement relative to that point, I don't know what the answer is, at this point. Is it excluded, or do you have to go 15 -- '--"" entirely on the basis of that new record. I know, somehow, at the time of the rehearing, that issue should be addressed either way. It should either be that you have to bring everybody back, or, that the record can be used to supplement that hearing. I think it should be answered, because you're going to want as complete a record as possible, at the time of that next hearing. So, everything has to be considered. It's just a question of how it's going to be done, and, like I say, I don't have that answer tonight. MRS. GOETZ-Okay. I have the faith in the people that weren't here, that I believe they will do their job in researching it, and I really hope that they do have, you know, saying that those minutes are available is one thing, but getting it in a packet for them is another, and I really would like to see the effort made, you know, rather than just say, well, they could go get those minutes. Well, we all have our minutes anyway, but, if we all keep them. MR. DUSEK-I think your Planning Office, and I don't mean to throw this on Lee, but the Planning Office is, basically, the coordinating branch for this Board. So, if you gave the direction that you wanted copies of the minutes from all those meetings, I'm sure they could bring it back together. Am I correct, Lee? MRS. YORK- Yes, you are. MR. CARR-Well, I'm sure we would want those. MRS. GOETZ-It's so complicated that it's almost like you need a chart to say this happened and this happened, especially about that rehearing issue, where it had to be a unanimous vote, because that, to me, was the biggest item that every happened with the whole thing. If it comes back, is it called a new hearing or are-opening? MR. DUSEK-It's called a rehearing. There is a special provlslon under the Town Law, Section 267, which provides for the rehearing, and that's what it's titled. It's an unusual type of creature and, in fact, I am told, and I think I've sent you out memos addressing the new changes that are being proposed to that Section of the law, and the legislature has now decided that maybe they ought to delete that. So, there will not be, after July of next year, you will not have the opportunity to rehear cases. It will be up to the applicants to do it the first time around, and then move on to the court system if they feel they can't the relief they're entitled to. MRS. GOETZ-Which, I support that idea. MR. WEST-The point I wanted to make is really a question. Maybe I'm confused on the facts, here, but I thought this Board already decided, this fall, to rehear this? I thought there was a previous vote, earlier this fall, to rehear this, and that, in fact, that motion was made by Mrs. Goetz, and so, I guess what I'm raising, and I'd ask your Town Attorney this issue, because I don't know the answer, is it proper for a Board, where a motion is made and passed, then to table it, when you know that you've got upcoming changes being made? The point I'm making is, I think the last thing we need is another legal issue floating around in this case, that a motion has been made, unanimously passed by this Board to rehear it. Now, quite frankly, I'll tell you this, that had I been hear, I would have argued that you shouldn't rehear it, that it was decided in July, and would have hoped for a negative vote, but you did. So, now I'm a little confused that I'm hearing three or four of you say, well, lets wait now. MR. CARR-Well, at the time, we did pass a motion to rehear, then we rescinded that motion. It wasn't tabled. It was rescinded. MR. DUSEK-I thought it was tabled? MR. CARR-I thought we rescinded it? MR. DUSEK-No. I think, my recollection of the events was that, once the Appeal was over with, you know, through the Appellate Divisions, the Board then made the decision, yes, we'll go ahead and rehear. MR. SHEA-Right. MR. DUSEK-A short time later, and I can't remember the exact amount of time that elapsed, but we were informed that John Richards was going to file with the Court of Appeals. MRS. EGGLESTON-Yes. MR. DUSEK-At that point, it was my understanding that the consensus of the Board was that we just simply put the hearing on hold and tabled. Now, does the record reflect a tabling or a rescinding, I don't believe it does, but I think that that was the understanding of the Board, and perhaps that wouldn't be a bad idea to make sure that's the understanding, as of tonight, after hearing both attorneys. MR. SHEA-I thought the Board had agreed to rehear it, but after the appeal. 16 -. -' MR. TURNER-Pending the appeal. MR. SHEA-After the appeal, which we've not had yet, and we're still saying that we want to rehear it, albeit Sue leaving, at some point in time, and all that we're saying is that we're not mandated or coerced to doing it before Christmas, but we're still planning on doing it, and a better time, we think, would be in due course, and after the appeal. MR. WEST-I appreciate the practicality of your judgement. I hope you don't believe that we're trying to coerce you into doing it, because we're certainly not. It's your prerogative, and we're here requesting that you do it, but I do think the legal issue that I raised is both an interesting one and a valid one, that, with a motion pending, on the table, to then just table that indefinitely, may be of questionable procedure, and maybe a better way to do it, if you're not going to address the issue now, is to rescind it, let the court process go its route, and then, if you decide you want to rehear it, make a motion to that effect, let the parties know when that issue's going to come up, and we can deal with that in due course, but I think what's gotten us into this position to begin with is the fact that we have had a motion made that was unanimously passed to rehear it, and I think we should either have a pending motion or not have a pending motion, is what we're saying. MRS. GOETZ-Why would you have encouraged us not to rehear? MR. WEST-Just on the theory that it's a thing decided. You already had many days of testimony on that. Mr. Parillo had two bites at the apple, in the sense of the July meeting. He was allowed to make statements and present whatever information he had, and at the later meetings, he was allowed to put in additional testimony. I just take the position that three bites at the apple, in terms of evidence, isn't warranted, and we've been through a long battle on this. Our files are at least thick as John's, there, in the file, and on the table, and enough is enough, and that we should get on with, really, what should happen is, we're in the middle of a variance hearing, and that's still the prerogative of this Board to decide that variance hearing, and we had a lot of good testimony both ways, but that would be our position, and I think our position is, tonight, I understand the practicalities, but I don't think it's good legal procedure, and I don't know if it's valid legal procedure, to make a motion and then table it, particularly when you know the move on is leaving the Board. MR. DUSEK-I think, the first thought that comes to mind is, obviously, when the motion was tabled, it wasn't because the Board thought that Sue was leaving. It was because they found out about the Court of Appea 1 shea ri ng. The other thought I had is, I guess, I don't see anythi ng wrong, Tom, off the top of my head, anyway, of a Board's moving to set a hearing, and then simply tabling that hearing, because that's, essentially, what I understood that they did. Leaving it in limbo, is that a good procedure? I don't know. I think you could argue it either way. I mean, what's the worst that can happen? Lets look at it from that respect. If it's bad, if they shouldn't have done it, then what's going to happen, the motion falls anyway. So, they have to re-adopt it. On the other hand, if it's good, then they simply proceed. I don't know that the Board is in any worse shape, by simply leaving it tabled at this point in time and letting it go, because either way, do you know what I'm saying? If you, ultimately say, could make a case, because that's what you're indicating, an apprehension that maybe we could get into a legal quandary over the thing. I think that if we did, if the Board simply has it tabled, well, that leaves all options still open to us, I would think. On the other hand, if we, all of a sudden, if the Board decided that they should untable it and rescind it, now, maybe, Mr. Richards has certain claims, on behalf of his client, that he wants to make. I don't know, but it just seems to me that leaving the status quo is probably the safest thing to do. MR. WEST-All I'm raising is the issue that that may not be the safe thing, legally, and I think it's cleaner either not to have a motion pending or, if one is pending, to hear it and decide it. MR. SHEA-We can set a date for after the first of the year. MR. CARR-I just don't think we should set a date until we hear from the Court. MR. TURNER-No. MR. SHEA-Neither do I, really, but, I mean, if he's pressuring us for a date, we can settle it that way. MR. CARR-Yes, but then we're going to set a date, and everyone's going to get prepared, but then we haven't heard from the Court, so then we postpone it, so then we're doing what Mr. Richards has asked us to do, and that's get everybody revved up and spend money for something that might be postponed again, and then, you know. MR. RICHARDS-It may never take place. MR. WEST-It could never take place. MR. CARR-Or may never take place. 17 '-' -- MR. WEST-Which is part of why I'm suggesting, if we're going to go into limbo, lets take the motion off the table. MR. RICHARDS-I don't think, and Tom hasn't cited any authority, where the tabling of a motion is dependent upon the particular makeup of a Board. As you said, Mr. Turner, the makeup changes month by month sometimes. So, I don't think that has any bearing on the matter. MR. WEST-I don't know the law, but I would venture to say that, under these circumstances, probably the move on is the choice. It's the motion made by somebody, and it's up to them if they want it heard while they're present. MR. RICHARDS-If you don't the law, it's just a question, and I think Paul's addressed the question. MR. CARR-The only legal thing that I could think of that would cause a problem is if we go to rescind it, because I think, to rescind a motion, doesn't the move on have to be the one to agree to the deci si on? MR. DUSEK-I am not sure, to be honest with you. MR. TURNER-The one that makes the motion has to make the motion. MRS. GOETZ-I'm the move on? If we rescinded the motion to have the rehearing, would the Board still have the ability to make a motion to have a rehearing in the future? MR. WEST-Sure. MR. DUSEK-I don't know that I'm ready to jump on that. I don't know. I don't know. We've had, this is an extremely tricky little area, as we've all learned. I think my best advice to the Board would be, is if you think you want to go a course of action, you're going to meet again in December anyway. If you think there's a course of action you'd like to go, and we have some legal questions relative to that course of action, lets take a little bit of time and just research it, before we jump the gun toni ght, because, you know, if anything you learn, as a resul t of thi s case, is you've got to be extremely careful. I remember the night that we had the ordeal. MR. RICHARDS-Same type of issue. MR. DUSEK-Well, in that case, though, I was reading from Anderson, who led me to believe, in his writings, that you didn't need a unanimous vote. Later, when I read the actual Town Law, there it is, clear as day, that you do need a unanimous vote, and then, after we got into the court system, as you all know, we've been battling the issue of nullities, and what means a nullity, and I thought I understood what a nullity meant, but the court has said that they don't agree with me, but, as John will tell you, he disagrees with the court's decision, too, but it just goes to show you, there's a lot of grey in this area. So I think, at this point, and also, this case, and this happens with cases, I'm sure both lawyers will agree. The longer they go on and the bigger they get, 1 ike this one does, the trickier they get and I think that, at this point, my words to the Board, or advice to the Board, would be to move with extreme caution, and if there is a course of action you'd like to go with, tentatively, by all means, suggest it, but let me just research out the pros and cons for you so that we're sure what you're actions will do, to the best that we can, and it may be that we still end up in the grey area, but at least lets try to see if there's some legal answers out there. MR. WEST-I would state this, Paul. That if it's the one solution that this Board might consider is to rescind it, so that we're back to where we were, waiting for the outcome of the case, and then pursued in due course, I would affirmatively state on the record that I and my clients would not object to that procedure of rescinding that, if you have any question about that, to put us back to, literally, Ground Zero, and we'll wait the full outcome of the court proceedings and then proceed in due course. MR. RICHARDS-You seem to imply that that might be a problem, in and of itself. I don't think it is. So, I'm certainly willing to concede that. MR. CARR-I would agree with Mr. West, in that, I would prefer it just to be a clean table. I thought we had rescinded it. I thought, at the time, or, not at the time, but I thought we had, at the time, rescinded it. The only thing I would ask Paul to look into is, because of the new law coming into effect in July 1st of '92, about rehearing, what does the effect of us not having anything tabled, okay, have on this? Can we rehear? Can we not rehear? What is the effect of having a tabled motion in effect on July 1st 1992? Does that also, then, become a nullity? What happens? I mean, what are our rights and what are our responsibilities? I mean, otherwise, if there really doesn't seem to be much difference, I mean, I'd rather just have it a clean slate, and not something hanging out there. That's my feeling. MRS. GOETZ-Could we just review what we're waiting for the Court to say? Okay. We said that they needed a variance, right? 18 ~ - MR. DUSEK-I think I can address it very simply. I am ~ familiar with this, at this point. Lets just answer the question of the Court of Appeals. There are two phases to the Court of Appeals application, first of all. The first phase has been undertaken by Mr. Richards and his client, and that is to ask the Court if they may appeal to them, this issue. If the Court says no, then it's done and it's over with. There's no more Court fight. If the Court says yes, then Mr. Richards has the opportunity of completing his appeal process, submitting the full records and making his case before the Court of Appeals. If that happens, in that event, the Court of Appeals will look at the issue of whether this Board, basically, did their job right, through to the end of December, or whether they didn't, and by that I mean, if you'll recall, this Board acted, in December, upon the presumption that the July decision was a nullity, and the reason for that, or at least the arguments we made in the papers, was that it was a nullity because there was not a public hearing, or a hearing as we interpret is required by the Town Law. The other side has taken the position that you had!. hearing, and it was sufficient because it met the requirements of the Open Meetings Law. Our position is that there's something more than the Open Meeti ng' sLaw. Thi s is the issue that the Court, I thi nk, of course I can't predi ct for sure what they'll do, but if they heard the case, it seems like that's the issue they would address. If they said, well, yes, we feel there is something more than just compliance with the Open Meetings Law, in other words, to hold a hearing, you have to let everybody who's there have an opportunity to speak, if that's what they hold, then I think the case is concluded and the Board's decision is upheld, everything has been done right. If, on the other hand, as I said, first of all, they don't want to hear the case, or if they conclude, after hearing the case, that the Board did enough at the July hearing, then, in that case, Mr. West and his clients. MR. SHEA-You mean didn't do enough, with respect to the Open Meetings? MR. DUSEK-No, did enough. Then Mr. West and his clients win, so to speak, on that issue, and, at that point, you're at the question of, do we want to rehear the case or don't we want to rehear the case. If you don't rehear the case, then Mr. Richards has to go forth with a variance application, or his client has to shut down his Marina, one or the other, or, whatever, boat launch, not the marina. So, does that summarize the issues for you? It's a little complicated, and it gets worse as we go along, but, hopefully, that gives you an idea as to where we're at, and that's why we're waiting for the Court of Appeals, because the Court of Appeals could cause you not to have to do anything further. On the other hand, the Court of Appeals could cause you to want to either rehear the case or it could cause Mr. Richards to want to apply for a variance. MR. WEST-Just in response to Mr. Carr's question. The new law does not go into effect until July of '92. MR. DUSEK-Of '92. MR. WEST-So, you and revi sit the preventi ng you. of rescinding it a clean slate. would always have the prerogative, anytime between now and July of '92, to come back issue, even if it is pendi ng before the Court of Appea 1 s, because there is nothi ng There's no stay of you acting. So, I don't think there's any prejudice, in terms and saying, all right, if we're going to leave it on hold, lets leave it on hold with MR. RICHARDS-I think, and this is not an advocacy item, but I think I can just, at least clarify, within the Board, procedurally, where we stand, just going from my notes, here. There was a motion, in July of this year, to rehear it, and that was approved, but then rescinded, when the Town decided to go forward and apply for permission, from the Appellate Division, to appeal to the Court of Appeals, and that's where the rescinding came in, Bruce. MR. CARR-Okay. MR. RICHARDS-Then after the word came down from the Appellate Division, in September of this year, the Board unanimously agreed to rehear this and, at that time, set a date of, I think November 15th, which has since been tabled. So, you do have, according to my notes. MR. DUSEK-Are you saying there was two motions made to rehear it, then? MR. RICHARDS-There was one back in July which was rescinded when you elected to go ahead in the appeal, and then there was a second one in September to rehear, and the date has since been tabled indefinitely, and I don't see why this Board has to do anything else tonight to continue on with that tabling. MR. WEST-I guess you always learn something new everyday, and I've learned two things new. I learned exactly when this Board acted the first time, and found out there was a previous motion that we didn't know about. I'd just like to state, for the record, given the length of this case, the public that I represent, I'm a little bit concerned that we weren't given notice of any of those prior actions. We're available, by fax or telephone call, to come up and appear at anyone of these meetings, to address these kind of issues, and if those kind of motions, effecting this case, are going to be made and entertained, I think that, fairness, if nothing else, dictates that we be put on notice of them. MR. DUSEK-I think, John, I don't believe you were at the first one, either. 19 -- ~ MR. RICHARDS-No. I didn't get notice. MR. DUSEK-The law does not require any notification, that I could find, anywhere in the Statute. It does require notification of the hearing, but it does not require notification of the motion. MR. WEST-I agree with that. I'm just saying that, given the length of this case, the number of people, from both sides, that have been interested in it, I think it's, again, another fundamental fairness issue. We would have appreciated that, and I think that, in and of itself, is another ground to rescind and go back to a clean slate. MR. DUSEK-I will say this much. I think that, at the time, like I say, the Statute did not require notification, and I think the Board acted properly when it reconsidered those two motions, but, in any event, that's one of the reasons why I suggested that everybody come here tonight, so that all these issues could be aired and that everybody could be treated fairly and that the Board could make whatever decision it wants to, and as I mentioned a little earlier, I think the only suggestion I'd still like to stand by, and that is that if, whatever your decision is tonight, I would just recommend that we just study it legally, I mean, come up with a consensus of what you'd like to do, and then we could just review it between now and the next meeting that you have, and then just, if we find a legal problem, we could let you know. If we find that it's in the grey, we can let you know that, too, but at least legally explore it, in terms of seeing if there's any cases or law that we're missing. MR. RICHARDS-I'd just like to reiterate. This occasion, tonight, I don't think it's a hearing, tonight, certainly. I'm hesitant to get into that, but it's really a courtesy to Tom West, who had requested that the thing be held this month. I don't think there's any necessity for this Board to do anything tonight, make any motions of any kind. MRS. EGGLESTON-Could I just clarify something? When we were asked whether we wanted to rehear it or not, wasn't that the request of Mr. Richards? Didn't he ask that we rehear it? MR. SHEA-No. Paul asked us what we wanted to do, in light of the appeal. MRS. EGGLESTON-But didn't we have a letter from him? MR. DUSEK-I gave you all of the options that you had. If you remember, we discussed. MRS. EGGLESTON-We had a letter from him that said would we rehear it. MRS. GOETZ-I think he wanted the Town to appeal, that was part of it. MR. CARR-John, didn't you, in July, you ask this, before the appeal? MR. RICHARDS-I honestly don't remember. I don't recollect. MR. CARR-I want to find out. MR. SHEA-But we rescinded as a result of the meeting that we had with Paul, as a result of waiting for the appeal. MR. CARR-Right, but why did the first one, why, in July, did we vote to rehear? What prompted that? MRS. EGGLESTON-I think we had a letter from John Richards, through the attorney. MR. CARR-Paul, do you recall? MR. DUSEK-I'm trying to remember back, I don't even remember the two motions, but now that it's been mentioned, I do remember. MR. RICHARDS-The only thing I'm aware of is a letter from Tom West to Mr. Turner, right after the original Appellate Division order in June, now. MR. CARR-But what's that date? MR. RICHARDS-June 28th of '91. MR. CARR-Okay. MR. RICHARDS-When we first got word, as a matter of fact, I think I got a copy of Tom's letter before I got a copy of the order, but when that order came down from the Appellate Division. MR. CARR-Now, what did the order say. 20 -. -' MR. DUSEK-That may be the letter, though, to short cut that a little bit, that may be the letter everybody's thinking about, now that I'm recalling, because there was a letter sent by Tom directly to the Board, right around that time frame. MR. RICHARDS-And Tom, I think, requested or suggested that an immediate variance hearing was in order. It says, yes, according, this matter should be placed on the July agenda for a final decision on the variance application, and I think that's the only letter that, and I don't think I wrote anything along these lines at all, right after that Appellate Division order came down. MR. WEST-Yes. Just to clarify for the facts, that the Appellate Division handed down its decision and order June 27th. We're right in Albany. We happened to get the slip opinions the same day they're handed down. So, we happened to pick that one up. The following day, I wrote Mr. Turner to suggest, particularly since we were at the start of another summer of boat launch operation, and particularly since one of the difficulties for the summer residents is that a lot of these hearings carryon into the winter, and it's difficult for them to participate. I suggested that you immediately return to the variance hearing, which we were in the middle of, when the rehearing issue came up, and because there was some confusion about that, I think it can be very briefly stated, there was the July issue, a meeting, I won't call it a hearing, because I don't want offend anybody, but there was a July meeting where the issue of whether a variance was necessary was decided, and then we went into, I think, three or four meetings, on the variance itself. It was in the October meeting that the decision to rehear the July issue came up, which was ultimately heard and determined in December. That precipitated the court dispute, that first went to Judge Dier, and Judge Dier ruled in the Town's favor. It then went up to the Appellate Division, and the Appellate Division ruled, on June 27th, reversing Judge Dier, saying that unanimity was required for both the October and the December meetings, and indicating that it was not proper to go back and nullify that, that we are where we are. My response was, lets get to a hearing on the variance issue, not on the rehearing issue, because we were in the middle of the variance hearing process, when the rehearing came up, and on behalf of the summer residents, we wanted to try and get it heard and determined in July, when they were there and could explore the issues fully at that time. Then some sort of process transpired after that. Apparently, there was a vote in, I guess, what, July or August, to rehear, and then resci nded, and then another one to rehear, and I understand the practicalities. It's the holidays. I don't really want to spend any time on this if I don't have to either, but if we're going to go into the New Year with a new Board and let it go its due course, as Mike suggests, I think we should just do it with a clean slate. MR. RICHARDS-The bottom line is, neither Mr. West or I made the motion for rehearing. I think that was the question. MR. DUSEK-I'm trying to look through my records, quickly, here to see if I can find any indication as to what transpired at those earlier meetings, but my guess would have been that, chances are, unfortunately, I don't see anything definite, here, but my guess is that when we received the letter from Tom, when I saw the letter, and I have a copy of it here, as well, that that would have triggered, I'm not saying that that would have triggered, that you asked for the rehearing, but what I'm saying is that that would have triggered, most likely, my comments to the Board that you had several options. You had the right to continue the appeal. You had this. You had that, and, in fact, I remember, we struggled with the issue of whether or not to file an appeal with the Court of Appeals, and, ultimately, the Board decided to go ahead with a motion to re-argue, and then when that came back, we decided not to go ahead, but if I remember correctly, I think at one point, even before the motion to re-argue, the Board was contemplating not doing anything and then, for some reason, we spoke again and said, well, decided to go ahead with the motion to re-argue. Maybe I was exploring legal options for you at the time. MR. CARR-I think, in July, we voted to rehear. That's the option we chose, because we weren't going to go ahead with the appeal. MR. DUSEK-Right. MR. CARR-Then you came back and said, well, we could do something short of that. We could re-argument the motion. So, we said, okay, lets rescind the other one and authorize you to do the re-argument motion, which was denied, right? MR. DUSEK-Right. MR. CARR-And then think we went back to the rehearing and we must have tabled it. MR. DUSEK-In fact, I just found a letter to the Chairman, which would have been around that same time frame, July 1st, 1991. So that would have been just before the July meeting, and at that point, I indicated that, I made several comments about the decision to the Board, and I closed the letter with the thought, I said I would like an opportunity to explain this more fully to you and the Board at your meeting, meaning that we would tal k about the decision. So, then I think my recollection is probably correct, that what happened is we explored all of the options, came up with a selection, re-explored them later, came up with another selection, which meant rescinding, went ahead with the re-argument. We didn't succeed, at that point, and the Board decided that the case didn't warrant going any further, 21 -- -- and I think it was mentioned earlier, primarily in economic motivation, I guess, but it was a conscious decision that was made by the Board not to proceed any further, and at that point, the hearing was set, with the thought that, at that time, that we didn't know Mr. Richards was going to proceed. We found out later, much like what the first one happened, I guess, you know, the type of thing, events transpired which changed your mind. We found out that Mr. Richards was filing an appeal to the Court of Appeals. You decided, at that point, then maybe the best thing to do would be to hold off on the hearing until the Court of Appeals was completed. MR. CARR-I'd like to have Paul just look into the issue about leaving it tabled, as opposed to rescinding it, and what effect it's going to have, or, if Mr. Richards or Mr. West, if either of you guys have anything to add, why don't you send it on to Paul, and he'll distribute it to the Board, on that particular topic. We have a meeting coming up in two weeks, right? MR. DUSEK-Yes. You want the issue concerning, at thi s point, then, if the Board deci des they want me to research this out, I just want to point out a time frame practicality, then, you're basically saying that you don't want to hear it until the Court of Appeals is resolved, but you want me to check whether you should rescind it, in the meantime, or just keep it tabled? MR. CARR-Right. MR. TURNER- Yes. MR. DUSEK-And, basically, you want to know from me, just a further clarification, so both attorneys know what I'll be looking at, in terms of law, you want to know if this Board is acting improperly, by simply tabling it, or if it must rescind it, okay, or if you have the option, and that's what I will do my legal research and get back to you on whatever I find. MR. SHEA-Ted, we have one more meeting this month, the 18th, is it? MR. TURNER- Yes. MR. SHEA-And then that's it for December? MR. TURNER-Right. Okay. We have our answer. MR. WEST-Okay. Thank you very much. MR. TURNER-Thank you. On motion meeting was adjourned. RESPECTFULLY SUBMITTED, Theodore Turner, Chairman 22