1992-09-23
ORIGINAL
QUEENSBURY ZONINB BOARD OF APPEAIß
SECOND REGULAR lIEETING
SEPTElIBER 23RD, 1992
INDEX
Notice of Appeal No. 2-92 Lake George Association, Inc. 1.
Use Variance No. 35-1992 Ronald L. Newell 20.
Garfield P. Raymond
Area Variance No. 94-1992 Double A Provisions 44.
Area Variance No. 95-1992 William T. Vosburgh 51.
Area Variance No. 96-1992 Kenneth M. Noble 51.
Mary Frances Kusior
THESE ARE NOT OFFICIALLY ADOPTED MINUTES AND ARE SUBJECT TO BOARD AND STAFF
REVISIONS. REVISIONS WILL APPEAR ON THE FOLWWING MONTHS MINUTES (IF ANY) AND
WILL STATE SUCH APPROVAL OF SAID MINUTES.
\
~_/
QUEENSBURY ZONING BOARD OF APPEAIß
SECOND REGULAR IŒETING
SEPTElIBER 23RD, 1992
7:37 P.II.
lIElIBERS PRESENT
THEODORE TURNER, CHAIRMAN
JOYCE EGGLESTON, SECRETARY
FRED CARVIN
CHARLES SICARD
CHRIS THOMAS
MARIE PALING
IŒlIBERS ABSENT
THOMAS PHILO
'l'aiN ATTORNEY-PAUL DUSEK
STENOGRAPHER-MARIA GAGLIARDI
OLD BUSINESS:
NOTICE OF APPEAL NO. 2-92 LAKE GEORGE ASSOCIATION, INC. APPEAL BY LAKE GEORGE
ASSOCIATION FROII A DECISION OF THE ZONING ADIIINISTRATOR (DAVE HATIN) DATED FEBRUARY
20, 1992 IN THE MATTER OF THE FRANK PARILLO APPLICATION. LAKE GEORGE ASSOCIATION
RECEIVED NOTICE OF DECISION ON APRIL 2, 1992 STATING THAT THE BOAT LAUNCH IIAY
CONTINUE AS A PREEXISTING NONCONFORJIING USE AS THERE HAS BEEN NO CESSATION OF
USE. SECTIeN 179-80 DISCONTINUANCE STATES: "IF A NONCONFORJIING USE IS
DISCONTINUED FOR A PERIOD OF EIGHTEEN (18) CONSECUTIVE IIONTHS, FURTHER USE OF
THE PROPERTY SHALL CONFORJI TO THIS CHAPTER OR BE SUBJECT TO REVIW BY THE ZONING
BOARD OF APPEAIß. PROPERTY LOCATION: CORNER OF BAY ROAD AND ROUTE 9L TAX IIAP
NO. 23-1-19
MR. DUSEK-I had indicated, John, to the Chairman, that you had asked for an
adjournment, at one point. You no longer wish that? Is that the idea?
JOHN RICHARDS
MR. RICHARDS-I thought it would have been a good idea, but apparently everyone
else doesn't agree wi th me, and we're prepared to go ahead and address the issues
tonight. Just give me a few minutes to talk to the Board.
MR. TURNER-All right. Mr. Dusek has some remarks for the Board.
MR. DUSEK-Yes. As the Board knows, this matter has been adjourned on a couple
of occasions, for a couple of different reasons. One of the reasons, I guess
one of the ini tial reasons, and then one of the reasons it got popped back up
again as a result of further letters that were exchanged was the issue of a
conflict of interest charge, or concern that had been raised by Tom West, in
his letters. I spent quite a bit of time going over this, because conflict of
interest charges, of course, are very important, that in the event that I have
a problem in terms of a conflict of interest, I should excuse myself, and you
should also want me to excuse myself from representing the Board in connection
with the matter. On the other hand, if there is no conflict of interest, then
there's no problem, and also I should mention that recently there have been some
decisions that have been rendered that say that in certain instances, even if
there is a conflict, a Board or an agency of government can consent to that
conflict if they don't think that the interest of their board or the Town will
be harmed. So, going, then, to the heart of the conflict, first, I know that
we've addressed this once before with the Board and the Board felt that they
didn't have a conflict at that point. However, I thought, because it had been
raised again, I should do a detailed investigation and address it with you, at
least once more. In looking at this matter, I looked at a number of things.
I went through the Attorney's Code of Ethics, of course, to see if there's anything
there that stands out to indicate a conflict. I could find nothing. Looked
for cases that might have been case notes or opinions that might have indicated
this type of circumstances being addressed, I could find nothing. What I did
find, interestingl y enough, is tha t, according to Tom West, a t the DEC level,
it's not unusual, if I have this correct, that the attorneys will counsel the
Administrative Law Judges, and then when the appeal is made to the Commissioner,
they will, in turn, counsel the Commissioner. So, it's not like these types
of si tua tions don' t arise already
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and are existing out there, and of course what I'm referring to in this instance,
I just realized there may be a couple of new members that might not be familiar
with what the concern was, is that when Dave Hatin made his decision in February,
he sought out my advice in connection with that decision, and now, of course,
I'm advising the Board. His decision's been appealed to the Board, and there
was some concern as to whether tha t was improper. In addi tion, though, to looking
at just the bare bones law to try to find something, in addition to seeing what
they're doing, at least in other governmental agencies, I also spoke with a couple
of attorneys who could not give me anything that would say that, yes, there is
a conflict. In addition to that, I also took a look at it from the framework
of what is my job here as Town Attorney. I looked at the fact that I represent
the Town of Queensbury, a corpora tion . I don't represen t indi vi dual members,
but my services should go to the heart of the corporation representing the Boards,
the people in that capacity. I also looked at the fact that the whole mechanism
of a zoning Board, if you look at the history of zoning, was developed not to
put you here in the sense of a court, although that is part of what has happened,
quasi judicial, as they call it, but it was also devised in an attempt to save
zoning ordinances from attacks of unconstitutionality. The fear was that if
a zoning ordinance was simply put out there as a law, with no board overseeing
it, that people could attack it right and left, take it to court, and destroy
the concept of zoning, and also perhaps hold the municipalities liable for
constitutional attacks on no due process, wrongfully taking people's property.
So, they thought if they put zoning boards in charge that would provide a check
mechanism to help actually save the zoning ordinance. So, when you look at the
history in that regard, you look at my responsibilities, and I looked at everything
else, I don't see, first of all, I don't see a conflict. However, as I indicated
to Ted just br iefl y before the meeting, I think it's important, though, to let
you, the client, also have a say in the matter, and if you feel that you do not
want me to counsel you, please sa y so. If you don't see a conflict or you aren't
concerned about, even if there is a conflict, that's fine. I'm prepared to go
ahead tonight. I've taken quite a bit of time to look at this issue and talk
about it with you because I consider it very important. I take any kind of
concerns about a conflict of interest very, very seriously, as I indicated just
today to Tom West, and I know I've indicated that to John Caffry, and to John
Richards earlier at a meeting. My goal in advising you is to give you advice
that I feel would be upheld by a court of law, if, in fact, we were challenged.
So, that's where I'm coming from. So, I guess at this point, I would steer it
to you to ha ve your sa y.
MR. TURNER-Okay. Does anyone have any comments?
MRS. EGGLESTON-I have always felt comfortable with Paul. I think he's always
done right by us. I don't have a problem with it. It doesn't mean I don't ask
questions of him, but I ha ve, as long as I've been on the Board, I don't think
we've ever been given bad advice, I have to say, so I trust what Paul tells us.
MR. TURNER-I think the issue really evolves that he does represent the whole
Town and doesn't represent any individual board or whatever. He represents the
Town of Queensbury, as counsel. So, therefore, I don't have a problem wi th it
either. Anyone else? Okay.
MR. DUSEK-Okay. If that's the consensus of the Board.
MR. SICARD-Should that be a matter of record, Mr. Chairman, for the Board?
MR. TURNER-I think we could vote on it, if you want to.
NOTION THAT fiE RETAIN OUR LOCAL COUNSEL, Introduced by Charles Sicard who moved
for its adoption, seconded by Marie Paling:
Duly adopted this 23rd day of September, 1992, by the following vote:
AYES: Mr. Carvin,
NOES: NONE
ABSENT: Mr. Philo
Mrs. Eggleston, Mrs. paling, Mr. Thomas, Mr. Sicard, Mr. Turner
MR. DUSEK-Okay. Now that that issue's been addressed, we have a series of issues
that are going to come before you tonight that are very complicated, a number
of legal issues that are coming up, and I'd like to do two things. One is I'd
like to go over just briefly with you, the other counsel, I'm sure, would like
to have an opportunity to address the Board on these issues. The other thing
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I would like to say is this, that these are complicated issues, but unfortunately
the decision, or fortunately the decision is yours. So, you have to understand
the issues. You have to make the final decision. If can't be what Paul Dusek
wants. It has to be what the Board wants, and what the Board feels comfortable
with. In addition, I'm glad Joyce said what she said, because that's what I
want you to do is ask all the questions that you need to ask to get an
understanding of the laws, and you can, obviously, feel free to talk to the other
attorneys that are present as well, and listen to everything, in terms of making
your final decision on this. Ma ybe starting off, the first issue tha t was raised,
and it's appropriate, I guess, to get back into it, is the issue I had raised
at one of the last meetings, and that is, I was concerned because I saw the issues
in this appeal focusing on the authority of Mr. Hatin as Zoning Administrator,
or whatever capacity he was, doing what it is that he did in connection with
this case, which gave rise to the appeal. The question that arose was did he
have the authori ty to do it. Wha t concerned me, as I outlined in a letter to
the other counsel, was the fact tha t I fel t tha t the applicants were improperly
asking this Board to review another Town official's authority, which is not what
this Board, if you look at the Statute, was set up to do. This Board has the
ability to review decisions, determinations, but it doesn't talk about having
to review the authority of the individual. Other counsel objected, in their
letters and response, and probably the most significant arguments that were raised,
except for Mr. Richards. He did agree with the position that I had indicated,
and he also went on to ci te some addi tional cases in his letter, but Mr. Caffry
and Mr. West disagreed, and probably the most significant thing that they said
in their letters, at least as far as I was concerned, was the fact that, well,
they didn't think that that made any sense, because the Board had the ability
to review the decision, the interpretation. Mter much thinking about this,
reading, and even talking with some other attorneys with the state, the Secretary
of State's Office, all of a sudden I realized that it wasn't even necessary,
really, to get into this issue of Mr. Hatin's authority, and if the Board sidesteps
that issue of whether or not he had authority, you could get right into the merits
of his determination, and the reasoning behind that is that the Board, when you,
as a Zoning Board, sit here and take an appeal, you have all of the powers that
Mr. Hatin originally had. You can stand in his shoes and you can make any decision
that you want to make, as you think it should have been made based upon the facts
that were before Mr. Hatin. You're not like a court who will be reviewing you,
looking to see if your decision is backed up either by the law or by substantial
evidence. You can actually do anything that Mr. Hatin could have done when you're
looking at the decision. So, as a result, what I thought of is the fact that,
regardless of how this matter got to you, it's here. It's properly here before
you, and you can get to the main issues that are presented to you, which are,
first instance, whether or not you can even rehear the case, the arguments of
res judicata, and secondly, if you decide that you ~ rehear the case, then
getting into the merits of the evidence that has been presented, and why you
should change the decision that you had made, originally, in June of 1989, but
before we go on, maybe we should stop at that point, and I would recommend to
the Board that we take these step by step. I've given you !!!1l view on the fact
that I think you can deal with this case without dealing with the question of
authority of Mr. Hatin, but it may be appropriate for the Board to either ask
questions or hear from other counsel on just that issue.
MR. TURNER-Okay. Does anyone have any questions of Mr. Dusek, first of all?
MRS. EGGLESTON-I guess, Paul, as far as his authority, we would be, whether he
had the right to change his opinion, because at first he said it had been used,
and so he denied the permi t. Now he's changing his opinion and sa ying there
~ a continuous use, not a lapse of that l8 month thing?
MR. DUSEK-Right, and what I'm saying to you is that rather than getting into
the issue of, can he do it or can't he do it, why not just get into the issue
of, did he make the right decision, putting yourself in his place and shoes and
looking at the facts and saying, well, we wouldn't do it that way, or we would
do it that way.
MRS. EGGLESTON-Oka y.
MR. DUSEK-The beauty of that is it gives you the full authority, I think, as
far as the Board goes, and I think it's correct under the law, but like I say,
you might want to hear from other counsel on that as well.
MR. TURNER-Anyone else?
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-
MRS. EGGLESTON-So, if we take it one step at a time, do we do that issue first?
MR. DUSEK-I think you'd like to hear from other counsel on that issue, because
we're going to have a series of issues that you have to get into, I think, to
deal with this case.
MRS. EGGLESTON-All right.
MR. SICARD-Mr. Chairman, I'm just wondering whether it would be advisable to
have Dave Hatin here at our meeting. There might be some question, we're not
judging him, but we're bringing this up and he isn't here, and I just have the
feeling that if I were Dave Hatin, I'd like to be here and hear what's going
on, if this concerns me, where my authority lies. I'm not questioning whether
he had the authority or not. I'm just saying I would, if I were Dave Hatin,
I'd rather be here, but it's a matter of opinion, probably.
MR. DUSEK-Well, I think I should say to the Board this, that if you finally get,
because this is a series of steps, if you get to the point where you're going
to actua1l y, after this first decision, after the issue of res judica ta, which
is, are you barred or aren't you barred, when you get into the actual merits
of Dave Hatin' s decision, looking at what he looked at, what evidence that he
did, if you get that far, you may not, but if you do, I think other counsel will
agree that the proposal is to request a separate meeting night for just addressing
that issue, to get through the first couple of issues, first, and then get into
that issue later, and then, of course, Mr. Hatin could be present for that.
MR. RICHARDS-I don't agree with that entirely. My name's John Richards and I'm
here on behalf of Frank Parillo, the property owner in vol ved, and I don't agree
entirely with what Paul said, but what I was going to just briefly say is that
I prefer to address, certainly I don't object to the authority of Dave to issue
the letter, and I'd prefer to address my comments at once, because I think it
makes it more coherent whole if I do it at once, rather than chopped up, but
at any rate, I don't have that much to say to the Board when I do get there.
So, if you'd just give me a few minutes a little later, I'd appreciate it.
MR. TURNER-Okay. Mr. Caffry, do you have any remarks for the Board, in respect
to that?
JOHN CAFFRY
MR. CAFFRY-Just for the record, I'm John Caffry, the Attorney for the Lake George
Association which brought this appeal. I agree with Paul. I think, that his
new opinion on this ma tter reall y makes a lot of sense, and tha t ' s the wa y we
should proceed, and get away from some of these procedural issues, because if
the matter had been handled properly from the start, it would have been brought
to this Board by Mr. Parillo at the time, presumably back in February, and you
would have been sitting here making the same decision you might be making a little
later tonight, should we re-open this or not. So, lets forget about whether
or not Dave Hatin should have done it, since now it's before the proper Board,
and you have the power to overturn his decision anyway.
MR. TURNER-Any questions of either counsel? Okay.
as to res judicata?
What's the Board's feeling
MRS. EGGLESTON-That's whether we have the right to rehear the case?
MR. TURNER-To rehear.
MR. DUSEK-Maybe I could help in this regard. This first phase was this authority
issue wi th Mr. Ha tin, and I think the first question reall y before the Board
is, before you even get into res judicata, and that is, do you feel, as a Board,
that it would be acceptable to hear this case without getting into the authority
aspect of Mr. Hatin, and just simply consider the determination, the decision
that was made?
MR. TURNER-What do you think?
MR. CARVIN-Well, my feeling is that we do have the right to rehear this case.
I guess the authority, I think Dave Hatin had the authority to make the decision,
but we also have the right and privilege to review that. That does not necessarily
mean that we have to review it, but I think that, if I'm understanding the volume
of papers here, that his decision in February did reverse a Board decision back
in 1989. Am I correct on that?
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MRS. EGGLESTON-Yes.
MR. CARVIN-Which almost mandates that we have to review this. I guess that's
my feeling. In other words, that there was a Board decision, right or wrong,
back in 1989, and in February he did take a position that, apparently, did reverse
that, which, I think we are mandated, that we can review it. I mean, we don't
have to review it, but we can review it if we want, and my feeling is, I guess
there's so many complex issues here that I feel that the Board should review
this thing, and we probably should do it starting at four o'clock in the afternoon
and have lots and lots of coffee.
MRS. EGGLESTON-We
litigation on this?
wouldn't be overstepping our bounds since
In some areas, isn't there still litigation?
there's
still
MR. DUSEK-The only item of litigation that is outstanding is the fact that, at
least as far as I know, and counsel in the room can correct me if I'm wrong,
but the only thing that's outstanding is the fact. that the decision that was
made by Judge Dyer and then overturned by the Appellate Division. There's never
been a final order filed from that decision, which means that, I would imagine,
that if that order is ever filed, theoretically, somebody could take an appeal
from that order to the Court of Appeals, at this point, if they could get leave
to appeal to the Court of Appeals on the issue, but, I think there's a bi g but
here, and that is that the issue that the court decided, or the Appellate Division
decided was not the issue that's before you now, but rather what the court decided
was that the proceedings that had followed 'the June of 1989 meeting, all the
proceedings that came after that point, they claim, the courts have told us,
that they were improper, that they should have been conducted by unanimous votes,
and that the June of 1989 decision was not a nullity, but rather it was a valid
decision. So, if anything, as the Board proceeds now, you would be acting
consistent with that decision in reviewing it. The only issue is, do you want
to, when there is a chance of an appeal still outstanding. This Board has
previously made a decision that it did not want to go beyond the Appellate Division
order. Since that was the case, I think, here again, it's all together proper
tha t you can move ahead on this. I don't think you're in viola tion of an y court
orders. In fact, like I say, you're probably consistent with what the Appellate
Division has stated, and this is a serious enough issue that you may want to
hear from co-counsel on this as well. John, do you have anything to add to that?
MR. CAFFRY- I wasn't in vol ved in the 1i ti ga tion, al though my client was. It was
my understanding that somebody did make a motion for leave to appeal, but I would
have already, in that that was exhausted.
MR. DUSEK-What happened on that, John, just for the record, the last that I saw
of it anyway, the motion was made for leave to appeal to the Court of Appeals
by Mr. Richards on behalf of his client, and the Court turned it down on the
basis of the fact that it was a non final order. So, I believe that that would
still leave a door open for a further application after an order was filed.
MR. CAFFRY-Well, I'm not so sure that that still exists, but I have no objection
to the Board proceeding, because basically what the Appellate Division said was
it's remanded back below for further proceedings, in accordance with appropriate
procedures.
MR. TURNER-Any further discussion from this side, anyone?
MRS. EGGLESTON-I'd make a motion, then, that we move ahead and review the merits
of the original decision.
MR. DUSEK-Before you do that, you've got another issue to get into. If you make
that motion, what you're really saying, then, is you're going to go back and,
basically, do everything allover again that you did back in June of 1989.
MRS. EGGLESTON-Start from scratch?
MR. DUSEK-Start fresh and look at everything, basically, like what Mr. Hatin
did when he made his decision. Before you get to that point, though, there's
a very important issue of res judicata that has to be considered, and the counsel,
Mr. West and Mr. Caffry, have argued that you should not do that. Not only should
you not, but they're saying you cannot go back and review the decision, that
once it's been made, it's final, and everybody has to live by it and what they've
said in their letters to you is that they've cited some cases saying that, if
5
there's new evidence now, that still isn't a good reason to re-open the case,
and the reason they're citing is they cite a couple of cases, probably the most
notable of which, at least in my opinion which is most notable, is a case entitled
"Jensen versus the Zoning Board of Appeals". That's a 1987 case. It's the case
that occurred in the Village of Old Westbury which, I don't know where that is,
Nassua County. So, it's in the Second Department. We're in the Third Department
of the Appellate Division, but that doesn't make a whole lot of difference, I
don't think, at this point, unless there are some other cases to the contrary
to this one in our Department, but in any event, in that case, people came to
the Zoning Board, applied for a variance, and the Board turned them down, and
they turned them down because of, what you're familiar with, we have in our own
Ordinance, is because of an adjoining lot, that they sold off one of the adjoining
lots, and they said, well, you had the adjoining lots, now you're coming in for
a variance on a smaller substandard lot. We're not going to give it to you.
They thereafter re-app1ied for a variance again, a few months later, and the
Board, again, turned them down. The matter went up to the Court, and the Supreme
Courts dismissed the whole thing, saying to the people who were trying to get
this variance, we don't want to hear from you. The principals of res judicata
apply, and they apply not only in courts, but they apply to administrative
functions, such as what the ZBA does, and they said that, I can read from the
decision, because I think it's important that you hear this. The Court said,
under traditional principals of res judicata, the determination, this is the
first determination, of the Zoning Board, which was confirmed by the courts,
served as a complete bar to the instant proceeding. So, they said, we don't
want to hear from it again, and it said that, further, the petitioner failed
to show that there was anything that occurred, in terms of a material fact, which
might be permitted by the Zoning Board to reconsider. So, in other words, they're
saying, although res judicata will normally block it, sometimes there's a way
to get around it, in terms of some exceptions, and some of the exceptions are,
where there's an illegality, where there's an irregularity, where there's fraud
in the information that came before the Board of some nature. Also, though,
there's another way, in terms of, it may be possible when there is new evidence
that wasn't considered by the Board. However, the decisions of the Court, in
this regard, have typically looked at new evidence being truly new. For example,
there was a case involving a hearing before, concerning some police officers
down in New York City, a Board. At the time of the hearing, there was a witness,
supposed to be a witness, who would not speak at the hearing. He, at one point
was going to give testimony and later on he decided not to give any testimony.
The hearing went ahead without his testimony, because he wouldn't give it, and
the officers who were charged with certain allegations in misconduct at that
point were relieved, or they weren't found guilty of it. Then the Board held
another hearing, because they found that the witness would speak, and the witness
came before the Board, gave the testimony, and then the officers were, in fact,
found on the charges that they were charged with, and the court held, in that
case, that that's okay, res judicata doesn't apply to block it. Even though
you heard it once, this is the new type of evidence that is so significant and
so new and something that nobody had any control over, that it was proper to
come before them. Another case, just to give you the type of feel for this res
judicata issue, involved the State Liquor Authority, I'm sorry, not the State
Liquor Authority. This one's the Sullivan Harness Racing Association. They
applied to the Commission for certain racing events to be held on certain days.
They got their permission to do that. Later on, there was a decision made to
televise some of the races and some people objected to the Commission saying,
well, now there's an agreement to televise races. That has a bearing on your
decision, because they didn't want to televise races back then, that they shouldn't
have granted the permission to have those races on those certain days. The Board,
then, re-opened it's decision to sa y you could race on those certain da ys, and
based on the fact that they were going to be televised, change it's mind and
said you couldn't have the races on those days, and the Court found, in that
case, again, just to read it to you it says, prior to considering the appellants
second contentions, we digress briefly to consider whether the Commission lawfully
reconsidered Monticello's application for additional racing days. The authorities
are in agreement that upon a change in circumstances here, the Monticello OTB
contract coming after the fact that the first review was done, constituted such
a change, or new information an agency may reconsider or alter a prior
determination. Basically, then, that's the type of new information that the
Board has to be confronted with in order to feel like it can overturn its decision,
or go back in and rehear the case. I think you're going to want to hear from
the other counsel, as far as what their views on that matter are before you decide
whether or not you want to rehear the case, but in addition to that, let me throw
one more little thing out to you, which makes this even a little bit more
complicated, but the Board, back in December or January, I believe, of this year,
and the record will prove whatever the date was, Joyce
6
and Ted, you were here, I think, at the time, adopted a resolution by unanimous
vote, setting forth this matter for a rehearing, which resolution was subsequently
tabled because of all the litigation that was going on. The question that arises
now is, since that resolution was made, and that was made under laws properly,
at the time, can the Board look to that resolution and rehear the case? Now,
this one's going to be a good one, because the problem is, in Jul y of 1992, the
State changed the laws. They took away that rehearing right. It used to be,
all you needed was a unanimous vote, and as long as there wasn't, I think, an y
severe prejudice or something, you could rehear anything. You didn't have to
get into this res judicata stuff, okay. The reason why we're into it now is
because, part of the reason is because they took away that part, okay. So, now
you have to analyze it like you would under any other administrative law type
of matter, but now with that hearing privilege gone as of July, a legal question
arises as to whether, because the resolution was passed before the expiration
of the Statute, whether or not you could, in fact, continue down the process
to hear the case, and use that as your mechanism for rehearing. So, that's one
thing you want to give some thought to. The othér thing, of course is, forgetting
about that for a moment, is there a res judicata block, or do you feel that this
is a case that should be excepted from that rule? Now, to give you any kind
of consolation of this res judicata business is that this is a rule that was
developed by the courts. It's not something that's written up in the laws.
It's been developed by case laws, and there are exceptions to the rule. There
are different applications to different facts. It's a tough rule to deal wi th,
in terms of whether or not you think it applies to any particular case, and I'm
sure the counsel will argue both directions on that for you, but maybe if you
hear from them, that might be able to help clear up some of the confusion.
MR. TURNER-All right. Mr. Caffry, do you care to address that issue?
MR. CAFFRY-Yes. I think, in a wa y, there's reall y two issues there, and I'll
take them in the same order Paul did. As we've said from the beginning, regardless
of who it applies to, whether Dave Hatin or the Zoning Board of Appeals, res
judicata or administrative finality when it applies to an administrative agency,
whatever you want to call it, we think, prevents this decision from being re-opened
and reheard at this time, because the Board made a decision in June of ' 89.
The applicant didn't choose, at tha t time, to challenge it in the courts, and
missed its chance to do so. The court did hold, though, in the litigation that
occurred, that Mr. Parillo had a fair hearing at that time. He objected to some
hearing procedures and the court held that he did get a fair hearing. He didn't
make any other objections to the hearing at that time, and now they're trying
to get a second shot at it because they wish they'd done things differently at
the time, or they wish the Board had done things differently at the time, but
the reason for the res judicata rule is that there's got to be some finality
to these things. you can't keep re-opening them and re-arguing and re-1itigating
them, and since Paul is reading from cases, I'll read from a real recent one
that was decided by the Appellate Division in Albany just this past June. The
same court that decided the appeal in the case on this, it says, public officers
or agents who exercise judgement and discretion in the performance of their duties
may not revoke their determinations nor review their own orders once properly
and finally made, however much they may have erred in judgement in the facts,
even though injustice is the result, and the name of that case was the Centennial
Restorations Company against Attorney General Abrams. As far as the issue of
new evidence goes, I have reviewed, and it's in the record, what Dave Hatin said
he relied upon as new evidence, back in February of '92. Really what was there
was a few form letters signed by some people who said, well, back a couple of
years a go, I la unched my boa t there once upon a time, and tha t ' sail it sa ys.
There's not really anything new and different there. It's just kind of piling
on more evidence. It's not anything new and different. It's not like there
was a witness, like Paul was saying, who refused to speak or something. If they
had tried, they probably could have come up with that same evidence in June of
, 89. Getting back to the Jensen case that Paul cited, it really addresses that
issue. It says, just because a petitioner has improved the quality of his proof,
that doesn't give him another shot at it, okay. If you have a variance application
and the applicant gets denied, and then they go back and change the application,
make the project smaller, then they come back and ask to have that approved,
it's not like you can't ever hear somebody again, but in this case, it's the
exact same issue. The facts as to what occurred during the period when this
boat launch was abandoned, the facts haven't changed. Just because Mr. Richards
and Mr. Parillo did a little more homework that they should have done back in
June of ' 89 doesn't entitle them to have this re-opened now and keep bringing
it back before the Board. As a practical matter, if that was the case, every
time you voted something down, two weeks later the applicant would be back in
7
with another application. You'd have to hear him allover again. As to this
issue of this resolution that was tabled and then the law was changed, it's our
feeling that once the law was changed, that that option no longer exists, that
now you do have to deal with the res judicata issue, and I'm not so sure that
even under that old procedure where you could vote to re-open something on a
unanimous vote, that res judicata didn't apply there, too. So, I really think,
no matter how you slice it, that Mr. Parillo isn't entitled to have this matter
reheard, and the Board's original June of ' 89 decision should stand, and that
should be the end of it. Any questions?
MR. TURNER-Any questions of John?
MR. DUSEK-I have a question for Mr. Caffry, one I just thought of, John, quite
honestly, as I'm thinking about this. What do you think of the possibility that,
the fact that the law has changed, the rehearing law has changed, and the fact
that we have this unique situation, together with the facts that have been
previously alleged, obviously, that you were referring to, but most notably the
fact that the law changed and the rehearing is no longer there, but yet the Board
had previously voted and then tabled. Is that a sufficient circumstance, maybe,
to qualify for the res judicata?
MR. CAFFRY-I don't think it changes the facts any, and as I said, I think that
you still would have had to consider res judicata all along. It doesn't change
the facts, nor does it change the standard. For instance, if the law said, if
it was abandoned for 18 months and then it was changed to a 12 month abandonment,
maybe then that kind of change of law would give them a right to a rehearing,
if he could prove, if before it had been 13 months closed, and now he came in
and showed 12 months, that kind of thing, but I don't think that's the kind of
change that allows a re-opening. It's really more procedural than a substantive
rule.
MR. DUSEK-I just raised the question.
MR. SICARD-Pa ul, isn't ita fact tha t when we table an issue such as this, tha t
we intend to rehear it, and that's why we tabled it for more information, that
we intend to go back at it later on. We didn't totally abandon it.
MR. DUSEK-No. You didn't.
MRS. EGGLESTON-But how long does it stay tabled, indefinite?
MR. DUSEK-It can. Yes.
MR. SICARD-I think it stays tabled until we decide to hear it. Are we deciding
to hear it tonight?
MRS. EGGLESTON-Well, we decided to rehear it in December. Then we tabled it.
MR. SICARD-Well, then it's still in a tabled state until we decide to hear it.
Is that tonight, or whatever night.
MR. TURNER-There's no law that says that we can't rehear it.
MR. DUSEK-Right. Well, as far as I know, once you table a matter, it stays tabled,
and it doesn't, like, end. The tabling stays there permanently until such time
as the body should decide to, or if the body, ultimately, leaves, disbands, then
it would go away, but if the body didn't disband, which yours did not,
theoretically, it stays on the table permanently, it would seem.
MR. CAFFRY-Well, as far as I'm concerned, I would feel that that resolution is
now really moot since the change in the law on July 1, because it's a two step
process, under that old procedure in the Town Law. First the Board had to re-open
and rehear, then it had to vote unanimously to reverse its prior decision. It's
very possible you could vote to re-open and rehear, and then vote to uphold your
ori ginal decision, and even if you have tha told resol ution out there, and it's
still valid, it's just been tabled, the power to reverse on a unanimous vote
under that old procedure, the second step has been taken away, and the Board
never got to the second step, and it's now, that power's gone. So, even if you
could do that without considering res judicata, or without deciding what level
of new evidence was available, I don't think you could, but even if you could,
the power to take that second step, under that old procedure is now taken away.
So, the fact that there is this tabled motion sitting there, doesn't really matter
an ymore beca use it's a dea d end. You can't take the second step. Thank you.
8
MR. DUSEK-You may want to hear from Mr. Richards, at this point, maybe, before
you ask any questions.
MR. TURNER-I will.
Richards, comment?
An Y further questions of Mr. Caffry?
None?
Okay.
Mr.
MR. RICHARDS-Thank you, Mr. Chairman. I had asked for an adjournment because
I thought that there were a number of issues, here, raised out of one of our
attorneys meetings with Paul that might help to clarify before we got before
the Board. Instead, I've spent some time, I've tried to outline them clearly,
so that I hope I'll be able to explain, at least our position to the Board, and
the Board will consider the merits of it, and I think to do that I'm going to
just take a few minutes, but I'm going to ask you to bear with me. I think to
do that it's important to review the circumstances of the June ' 89 letter, and
I just want to correct for the record, the actual meeting that we're talking
about here was July of ' 89. The letters leading up to it were June of ' 89, and
you can't really understand the circumstances without a map. So, if you'll bear
with me for a second, I'll put this map up. Just to orient everybody, and
particularly the new Board members, the launch that we're talking about is right
to the south of 9L, and it's indicated here running almost north/south near the
Dunham's Bay Brook. You can see in the heavy lines the way these parcels are
segregated. These dark lined parcels were part of the property that Mr. Parillo
bought from Alison Ellsworth in 1988, the fall of ' 88. Previously, some three
or four years before that, he had purchased the middle, smaller piece with docks
as well from Robert Ellsworth, who I understand was a rela tion of Alison, but
not a partner or anything. He didn't operate Alison Ellsworth's marina, nor
did he operate the launch. As I say, he purchased the property in the fall of
1988, and I'm just kind of summarizing some things that came out in the course
of all the hearings we had on this. In June of ' 89, as the actual season began,
Dave Hatin advised Frank Parillo that he had had some concerns, that he had
received certain complaints about Frank's intention to put a sign up there.
I think he might have already had the sign up for a launch that would be open
to non dock renters officially, and Dave at the time, and I can tell you from
my own experience, because I was involved at this time. Dave was very concerned
that the matter be heard immediately because the season was upon us. There's
a great time pressure to get this thing heard, and we did some research on the
law, and I sent a letter to Dave in June saying that I didn't feel that any
variance was necessary, and the thrust of my letter at the time was that it did
not constitute an expansion of the nonconforming marina, and I stressed that
the marina constituted a number of things, docks, land, other facilities, and
it actually has three launches on it, and that this was not, the mere usage of
the launch by non dock renters certainly wasn't expansion of the marina, and
that was the position we took. Dave issued his letter, and we appeared before
this Board in July of '89. Now, the basis of my concern at the time was whether,
again, it constituted an expansion. I felt very strongly it did not. I might
add at the outset of that meeting, I stated it was not a public hearing, and
Mr. Turner, as well and he stated that in the past, stated that it was not a
public hearing. This is July of ' 89. I said that, as I say, that you could
not isolate the launch, and I just copied, I pulled out, the minutes of that
meeting are only about two or three pages, as compared to some of the later
meetings, and I passed one around. You'll see, I highlighted right down there,
I said in there that really the key was that it was not an expansion of a launch.
As a matter of fact, the question of non continuation or abandonment wasn't even
discussed at that meeting, because that was the thrust of it, and the full minutes,
there's only another page or two, indicate that. It was not even discussed,
certainly by us it wasn't discussed and wasn't really the basis of our appearance,
I'll call it. The Board did indicate, at that time, that we needed a variance,
and we proceeded accordingly, but I want to emphasize the circumstances of that
meeting, because that's important, as I'll show you in just a minute. Again,
no discussion. No one for the LGA or anyone else appeared. I believe Mr. West
tried to speak, and Mr. Turner said it was not appropriate because it wasn't
a public hearing. No cne from the public spoke at all, not even Mr. Parillo.
So, that's kind of the background of where we're coming from. That's the June
'89 letter and the subsequent July meeting that we're talking about. Now we're
here today on an appeal by the LGA, and I want to emphasize that the LGA is the
appellant. They have the burden to show that Dave was wrong in issuing that
letter. I might add that Andersen, the zoning authority, says that in variance
applications before the Board that the burden of proof is just about equivalent
to beyond a reasonable doubt, and even if it's not that high, I want to emphasize
it's their burden to show there were mistakes made. They have to show that res
judicata, or whatever they, something similar to that, that prevents the issuance
of Dave's letter, and of course the majority of this
9
Board must agree with them in order for that position, that appeal to be
successful. Now, turning to the issue of res judicata. Res judicata really
doesn't appl y here, and here's where I'll take issue a little bi t wi th Paul.
Something similar, perhaps, can apply, but not res judicata. In the Jensen case
cited, it was the applicant, went ahead, tried to get a variance, was denied,
waited a little bit, turned around and came in and gave the identical application
and of course he was denied again, but Parillo's not the appellant here. The
LGA is, and clearly there's something different, and the difference is that your
zoning inspector has felt that there was a change that was appropriate, and that
something had been shown tha t was sufficient for him to give a letter. Tha t' s
a major and fundamental difference, and although this Board has the power to
decide, as Paul kind of said, step into the shoes of the Building Inspector,
that doesn't make the letter go away. That letter is extremely important. It
doesn't lose its identity, and that is the basis for this appeal. It's a different
action. What I don't believe Mr. Caffry has said, or Mr. Dusek, perhaps, but
a closer analogy, in a legal term, MOuld be what's called a collateral estoppel,
where it's not the same case, and it's not, but perhaps there were similar issues
that were decided beforehand that control how the Board should decide tonight,
and I think just to follow it up a little bit more, and maybe this is something
that we've already gone by, but in the information I submitted is that res judicata
doesn't apply to, or I should say it only applies to judicial like forums. The
same thing with collateral estoppel. There has to have been an initial hearing
where the issue was heard and decided and everyone had a chance to speak, in
order to have the basis to control a subsequent hearing of that issue. Inspector's
letters certainly aren't that, and there's no indication in any law that an
Inspector can't change his mind, but lets say that collateral estoppel does apply.
If it does, we don't ha ve to go an y farther. The LGA loses wi thout me ha vin g
to say anything else, and the reason is that this Board decided in December of
, 89 that there was no discontinuance. That was the first time that there was
ever a full hearing on the question of discontinuance, where witnesses were heard,
where the public was allowed to speak, that, and there was an earlier hearing
in October that was kind of adjourned and then we just reheard the same evidence
in December, and I want to emphasize that the merits of that December decision,
and when I say merits, I mean whether or not the evidence was right or not, the
merits of that decision, to this day, have never been challenged by Mr. West,
Mr. Caffry, in any of the long court proceedings. They never said, this Board
made a mistake in judging the evidence. They took issue with the vote to allow
them to judge the evidence, but they never said that the actual judgement was
wrong, and Mr. Caffry doesn't say, even in this appeal, that it was wrong. Well,
there is the matter in collateral estoppel that when a decision has been reversed
or changed, after a full hearing, if it's overturned by a technical or procedural
flaw, it can still bind subsequent hearings as to the issue that it was heard
on its merits. Paul may wish to address that, but it's my strong position that
that's the case. So, you have the December, if there's going to be any kind
of res judicata or collateral estoppel controlling here, it's going to be the
December meeting, Mr. Caffry loses, and we're done. We don't have to go any
farther at all on this whole issue, rather than rehear the evidence at some later
date. That's not even necessary. Lets say, for purposes of discussion only,
because I think I could sit down with that one, lets say that the June letter
is controlling, the December's not controlling, the June is. How do we handle
that? Well, looking at the carmody lake, which is an encyclopedia of legal
procedures, so to speak, they sta te very clearly tha t the question of when
collateral estoppel applies, as I read it, says, the question involves a practical
inquiry into the realities of litigation, when our case in hearing procedure.
You, as a Board, have to give your practical knowledge to take in the totality
of the circumstances as to that previous hearing, and what are the factors that
you can consider to allow something to be heard again, or to not be binding on
a subsequent decision, is maybe a better way to put it. Paul had enumerated
a few, and let me just say that some of them, and I just took it right out of
the encyclopedia there, are the circumstances of the prior forum, another one
is the confusion or compromise that might have been indicated in the result,
and then the third, of course, is the availability of new evidence, and would
it have changed the result that was reached, had it been heard. So, lets look
at these factors and how they apply here. First of, the circumstances. This
is why I wanted to go back and take a look at what that meeting ~s like. As
I said, there was no hearing. There were no witnesses. No members of the public
were able to speak. It was a different issue. Number One, it was appealing
Dave's letter that went beyond just the continuation question, but into whether
you could segregate uses. Whether it was an expansion. We talked about parking
briefly. I remember that was a concern of this Board. As I showed you in the
minutes, there was no discussion of whether there was ever a discontinuance.
It just wasn't discussed, wasn't heard. Next, the confusion and the compromise
that was there. I explained how
10
it was done under the rush of time pressures by the Town and our efforts to comply
with that, and the fact them, and the fact that you had a result, in July, and
a different result in December certainly indicates that there was some confusion
or compromise in there, and then of course we have new letter from Dave himself
indicating that there'd been substantial confusion or changes in the interim,
and finally, and I think very te1ling1y, is the question of new evidence, which
Paul talked about and John Caffry talked about, and I want to emphasize on this
new evidence, John had said, well, he just showed a few form letters. We're
talking about evidence that was available to Dave Hatin and to this Board,
subsequently, in June, and then early July of 1989, nothing subsequent to that,
if we're going to say that hearing controlled. So, what evidence did Dave review
to issue his letter in February of this year, that wasn't available in June of
'89, and again, the evidence, and this is right out of what Paul had emphasized
in his initial comments to the Board back in 1989. For the purposes of
discontinuance, you only have to show one use, one time, isolated use, once a
year, is enough to keep it from being abandoned. So, what did Dave have
beforehand, in the way of discontinuance, that he didn't have, excuse me, what
did he have in 1992 that he didn't have in 1989 in order to issue his opinion?
Well, here are the things that I got, running through the minutes, and Dave's
own letter. First off, he stated, it was stated in one of the hearings after
June of ' 89, that the launch had been open to anyone three weeks in the spring
and three weeks in the fall. There was an indication which was not clear in
June of ' 89. We demonstrated that Frank Parillo owned the middle piece for three
years prior to June of ' 89. That his boat renters used the Alison Ellsworth
piece, remember, he had the little piece, Alison the big piece, that both Robert
Ellsworth, and then subsequently Frank Parillo's boaters used the launch in Alison
Ellsworth's piece, and they were not Alison Ellsworth's dock renters. So, that
shows a continuation of use by non dock renters. We indicated, and these all
came out in the October and December hearings. There was a statement from a
Don Gauger and a Peter Gaylor, saying they'd seen boats use the launch, and saying
they'd seen trappers use the launch. They said there were duck hunters that
use the launch. One letter indicated that he gave Mrs. Ellsworth, I think, some
firewood as compensation for using the launch. In December, and this is extremely
important, when witnesses and the public were allowed to contribute to this,
three separate people stood up, who we had no idea were even available, didn't
even know that they were going to speak, spoke on Mr. Parillo's behalf. They
were John Salvadore, who indicated that trappers had used it, that contractors
had launched equipment, that might have been dredging equipment or something,
off the launch. There was a Mr. Gilchrist who said that other people used it,
and that he had discussed this with Alison Ellsworth. There was a Mr. Kilmartin
who said he had launched a boat there in 1987. This was information we had no
idea was available. It was only made available once the hearing was opened up
to the public, and so that was in November and December. When Michael Muller
prepared the resolution which this Board adopted, he indicated that a lot of
the reasons for his resolution were the testimony he'd heard that night, both
the information ~ had given, the statements given by people on our behalf that
we had, like these, no idea existed, as well as information given by Mr. West
and the opponents who had indicated that they had seen occasional uses. So,
he based his resolution in December on evidence that he heard in December and
October that wasn't available in July and June. Moreover, the two or three letters
that John has kind of disdainfully referred to as the only additional evidence,
are actually 12 letters that we had indicating usage in 1987 and 1988, that
demonstrated that there was no discontinuance. I brought extra copies. We
certainly have much additional evidence if necessary, but these are the things
that Dave Hatin had in front of him in 1992, February, when he issued it. These
letters, of course, were something, they were format, to the extent that they
were set up as a format, but we didn't know, or Frank didn't know, these people
existed until he had the launch and started talking to people using it. If he
didn't have the launch, he wouldn't know whether they were renters or not because
he wasn't running it. So, the new evidence is overwhelming that Dave had before
him, that changed from June of '89 to February of '92, and I've just outlined
it for you. One final thing I'd like to stress here, too. As I said, I think
you don't have to go any farther than tonight to put this to bed, and to allow
it to continue, because of the collateral estoppel effect of the December meeting.
I think, even if you don't agree with that, the new evidence more than justifies
Dave's right to issue the letter, but finally, I look at John Caffry's appeal
on behalf of the LGA, and I talked to both John and Paul briefly on this, in
one attorneys conference that we had, but I went back, looked at it in more detail,
and it just convinces me all the more that his appeal is strictly a jurisdictional
one. It's not on the merits, once again, of whether Dave's right to issuance,
whether he had the right, as opposed to whether he was right, and Mr. Tom West,
when he submitted one of his letters to you, and I think Paul indicated it in
one of his letters to you, said that the issue was
11
not his right, but whether he had the right to do it, and then John, if you might
recall, back in the first meeting here, in June of ' 92, he objected to the form
of the public notice, and he said, and I'm reading right off of the minutes of
that meeting, John's talking, he's talking about the notice, it says the appeal,
but our appeal was basically the jurisdictional issue of whether Dave had the
basis to appeal it, and the notice instead says it cites the definition of
nonconforming use, discontinued for 18 months. We're not here tonight to argue
that issue on the evidence. That's not the legal issue, and it's really too
late to do that. That's been his position, and they just said over and over
again, and now to try and pull that appeal up to the level of an appeal on the
actual merits, on the substance of the evidence, it's too late, as John said
in his own words, to do that, and I think this Board should decide, for any number
of reasons, that this matter is over, that the launch can continue to operate
as a valid and nonconforming use.
MR. TURNER-Any questions?
MR. DUSEK-I have a couple of questions for Mr. Richards. John, am I to understand
you correctly that, basically, you're saying that the July of '89 decision of
the Board, because it did not have all of the elements of a hearing, although
the court, and I think it's very important to note, the Appella te Division has
said that that decision, I guess, they said, assuming that, the language out
of their decision was, assuming that the July 1989 hearing was not in accordance
with the open meetings law, it was not void, but rather voidable. Am I
understanding you correctly that because of the circumstances of that meeting,
although it may be a valid meeting and have been a valid decision, because the
courts have actually said it was a valid decision, so I think we have to honor
that at this point, but are you saying, because of the nature of that, that that,
in and of itself, gives reason for a rehearing of the matter, in terms of being
something that constitutes sufficient reason to ignore the rule of res judicata,
or collateral estoppel?
MR. RICHARDS-What I'm saying is that the nature of that hearing precluded us
even discovering certain evidence, much less offering it, that the issue that
we're talking about was never even decided then. So, you don't have collateral
estoppel, and that, I'm not saying that it's void, because the courts have said
it wasn't void, but they haven't, I don't think you could ignore the December
of '89 meeting either, for the issue of whether or not there was a discontinuance
of the use.
MR. DUSEK-Then I had asked John a question, and I'll ask you the same question,
just so that we have everything on the table here fairly, and John, I'm sure
you'll want to respond to the question I just asked the other John, but I had
asked John Caffry about the issue of res judicata, it could be collateral estoppel,
res judica ta. I think for our purposes, they're so close, whether you're usin g
one term or the other, and dependin g upon how you see it, in this case, the
application of both of them would probably be very close, but what about the
issue of the rehearing, and the change in law as constituting sufficient grounds
to avoid the rule of res judicata or collateral estoppel.
MR. RICHARDS-I don't see that they're mutually exclusive, if that's what you're
saying.
MR. DUSEK-What do you mean?
MR. RICHARDS-I don't think the fact that there is a pending motion to rehear
under the old law excludes this Board from saying that it can be reheard, if
that's the decision it wants to take, because of the problems with the earlier
hearings. I just want to emphasize, it's not a mere technicality of the res
judicata, collateral estoppel. I think it's important to note these are different
appeals. We're not the appellant here, and when the courts and when the legal
commentators talk about collateral estoppel, or for that matter res judicata,
and they want you to go back and analyze the previous hearing, they want you
to be practical, and to see what was, I say the totality of the circumstances.
What kind of a hearing was given, and that's my point.
MR. DUSEK-Okay. I'll turn it back over to the Board.
MR. TURNER-Okay. Any further questions of John? Mr. Caffry?
MR. CAFFRY-First, I'd like to ask if Mr. Richards would mind filing this map
with the Board so it will be part of the record. Do you have any problem with
tha t?
12
MR. RICHARDS-I think it already is, John.
MR. CAFFRY-This is a copy of a map already in the record?
MR. RICHARDS-At least an early one, not in this appeal.
one. Absolutely.
I'd be glad to file
MR. TURNER-I do believe we have that map, because I remember seeing it.
MR. DUSEK-It may be a good idea to make it part of the record tonight, though,
if that's all right.
MR. CAFFRY-I'm really rather surprised to hear John get up here and say that
this issue of the 18 month di scon tin uance wasn't part of his appeal in Jul y of
'89. I wasn't directly involved at the time, although according to the minutes,
I was here that night on another matter, but I think I may have left before you
got to this one, but I'll read Dave Hatin's letter of June 27th, '89. "Dear
John:" (and it's addressed to John Richards) "This letter is to confirm our
conversation, at which time I stated that Mr. Parillo would need a variance to
maintain his public launch site because it has been discontinued for a period
in excess of 18 months. Mr. Richards appealed that decision. It went before
this Board in July of ' 89. Now, just because Mr. Richards chose not to discuss
that issue, doesn't mean it wasn't part of the appeal. It doesn't mean it wasn't
part of that hearing, and if he chose not to discuss it, that's his problem.
Further, Paul expressly raised this issue, and Mr. Richards, apparently, didn't
deny what he said, didn't object to it, and I'll read what Paul said. In
particular case, it's originally a nonconforming use with that of a public boat
launch facility plus the rental of dock space, as I understand it. At some point
along the line, he discontinued the public boat launch, and continued to rent
dock space and the people who used the dock space could also use that launching
facility. Once he discontinued that use for 18 months, which he indicated he
had, he meaning Parillo, you may now go back and very strictly look at
nonconforming uses. Paul made this statement on the record. It's here in the
minutes. Parillo didn't deny it. Richards didn't deny it, and now they're saying,
we changed our mind, when they had a full chance to address it at the time, and
without getting into legal technicalities too much, the doctrine of res judicata
says it applies to any issues which were adjudicated at the time, meaning July
'89, or which could have been. It was in Hatin's letter. If Richards wanted
to challenge that part of the decision in July of ' 89, he could've. He chose
not to, it's too la te now. He sa ys the burden of proof is on us. I would
disagree. This is really an issue of law. It's not an evidenciary issue right
now, this issue of res judicata. I would agree with Paul that res judicata is
the applicable doctrine here. Now, he's again going back and trying to re-1itigate
this issue which he tried to litigate and the Appellate Division shot him down,
as to whether or not he got a full and fair hearing. Just because my client,
the LGA, and Tom West, on behalf of various parties, wasn't allowed to speak,
doesn't mean that Mr. Richards didn't get a fair hearing. He was allowed all
the time he wanted. If it was a short meeting, that was his choice. He could
have called witnesses. The Board never told him he couldn't call witnesses.
The Board said, this isn't a public hearing. As I understand it, you can still
have a proceeding. The applicant can call their consultant and whoever, you
know, whatever witnesses they want before the Zoning Board without it being a
public hearing. If he didn't call witnesses, that's his problem, and again the
Board said nobody who was prejudice by that, or the courts in the Appellate
Division said, is objecting to the hearing. Mr. Richards can't object to the
hearing now. Again, he was the applicant at that time. This issue of the December
, 89 decision being binding is just silly. I mean, I'm just flabbergasted by
that one. The Court of Appeals ruled that that decision was not valid, or the
Appellate Division did, and how he can raise that now, I have no idea. He says
that the merits of that weren't challenged. It wasn't necessary. It's already
been voided by the court, and I think Paul would agree that that resolution is
no longer in effect.
MR. DUSEK-I think maybe just to briefly address that, I do have to agree with
John that that December meeting, the court says quite clearly that the hearing
was not held in accordance with Town Law, and that's based on their decision
that the June hearing was valid, or if not valid, voidable, but not void. It
would seem that because it was not, when a Board acts, it has to follow the law
in terms of having whatever it decides valid. For instance, if a case comes
before you, and normally you can decide the case by a four three vote, but if
the County has objected, you must have a five two vote. If you were to adopt
it by four three, you wouldn't do anything. you wouldn't have approved that
13
decision, because you haven't complied with the necessary requirements of the
law that it be a five to two vote, and I would think that the same would apply
with the December hearing. That I would have to agree with. I don't think the
December hearing stands for anything at this point.
MR. CAFFRY-As to the issue of new evidence, again, the courts are quite clear.
If the evidence was available and they failed to dig it up and present it, again,
that's their problem. If it was available because some witness was hiding
somewhere or something and refused to come forward, that's one thing, but if
they had done their homework, they could have found some of these people. Also,
it's quite clear in the record, in December of '89, Dave Hatin said, I've heard
all this new evidence, and I stand by my decision, and that was at the beginning
of that hearing, and then John Richards got up and presented some more witnesses,
some more evidence, but he at that time, this is basically the same stuff you
heard back in October, and at' that point, Hatin had obviously heard that October
evidence. So, nothing Hatin heard at that time changed his mind, until all of
a sudden February of '92. As to whether or not we challenged this on the merits
or whatever. When I said, in June of ' 92, that we were basically looking at
jurisdiction and not at new evidence, what that means is that we're looking at
issues including res judicata, these procedural type issues. We did not, at
that time, want to hear new witnesses, new evidence. We weren't prepared to
go forward with that, and as Paul has said, if the Board decides to re-open this,
all the parties are going to want an adjournment so we can get our witnesses
here. That's what that meant at the time. In our appeal, it quite clearly says,
along with other things, that Hatin's decision wasn't supported by the evidence.
So, that's part of this appeal, no matter how John wants to twist our words.
If it ever does go to hearing, we have new witnesses, too. We have new evidence.
We think we can prove that the thing ~ shut down, regardless of what they can
come up with, but we don't think it should ever have to go that far because it
was already done back in July of '89, when they had a chance to hear this. That's
really all I have to say, unless the Board has any questions.
MRS. EGGLESTON-Mr. Caffry, or Paul, would you have the motion we made the first
time, in June?
MR. DUSEK-In June of 1989? Yes. That was part of the record in the case.
MRS. EGGLESTON-I don't find it in this file. Could you read it?
MR. CAFFRY-I can read it to you right now. This kElS a motion introduced by Daniel
Griffen, seconded by Mr. Turner: This is a public launch site, not used in excess
of 18 months. They are now requesting a public launch site without a variance
and this would be an expansion of a nonconforming use substantially changing
the facility with a large impact on the surrounding area. We're referring to
Article 9, section 9.014 of the Zoning Ordinance of Queensbury, whereby we feel
that this request for the use should be handled as a variance request before
the Zoning Board of Appeals. So, the Board's decision was, this is a public
launch site not used for 18 months.
MRS. EGGLESTON-And what was the vote?
MR. CAFFRY-Six to zero, with Mr. Muller absent, and for John to get up here and
say that that wasn't part of that hearing, when that was the first sentence of
your resolution, I don't know what he was talking about, and regardless, if he
disagreed with that decision, his remedy at that time was to bring an Article
78 against the Board. The Statute of Limitations ran out on him, and then he
was like, what are we going to do? Well, he tried to get it reheard and that
didn't work. So, that's really what's behind all this is, he didn't present
his case in July of ' 89. He didn't bring an Article 78, and now he keeps trying
to come back and beg for forgi veness from the Board, and I real1 y think tha t ' s
why we have rules that say that decisions have to be final at some point.
MR. CARVIN-Actually, Mr. Chairman, I think there's three valid ways that we could
rehear this case. The first is the tabled motion. I think that that by itself
would be a legitimate reason to re-open. I think the decision that Dave Hatin
made in February is another justification, because you can take a look at it,
that he did have the authority to make the decision that ran counter to the June
decision, and we do have the right to rehear these things, which I think he would
have to present his new evidence why he changed, and I also think there's an
awful lot of irregularities in the original ' 89 decision, which I think could
be used to rehear this whole thing. So, I think there's, really, three valid
reasons vily we should rehear this vilolè thing.
14
MR. 'fURNER-Yes.
MR. SICARD-Mr. Chairman, I think there's another reason, a very valid reason.
We've got a number of new members on the Board, and after hearing what we've
heard tonight, they've heard just a part of what happened, and I think they should
hear the rest of it.
MR. TURNER-Yes. Right.
MR. SICARD-There's much more to it that we didn't hear tonight, with all the
meetings we've had, and to rehear now would bring out the facts, and in view
of the fact that we have four new members, I think, my opinion would be that
we reall y should hear it.
MR. TURNER-Yes. I would like to rehear it, because like I said, the first time
around, there was no evidence that supported anything.
MR. SICARD-I heard a couple of things tonight that I don't think I've heard before,
and I haven't missed a meeting.
MRS. EGGLESTON-Well, I don't know about that. We listened to an awful lot of
people. Now, I hope if we rehear this thing again, there is some major new
testimony, because we listened to hours of testimony. I mean, to say they didn't
present enough, we had a lot.
MR. TURNER-No. I mean, the first time around, the first thing in June when nothing
came before the Board.
MR. SICARD-I don't want to drag this out, because God knows it's been dragged
out enough.
MRS. EGGLESTON-If we were to rehear it, and make a decision, that's the end of
it, right, Paul, and within my lifetime this case will end.
MR. DUSEK-I can't guarantee that. It's been going on quite a while now.
MRS. EGGLESTON-It has, yes.
would start allover again.
Of course, they could appeal our decision, and it
MR. CARVIN-If we decide to rehear this, and to try to prevent an all night session,
could the lawyers submit to Paul a list of, you know, give us some kind of idea
about, I guess what I'm trying to sa y is to have an agenda or docket of these
witnesses. Is that possible?
MR. DUSEK-I think that, if you wanted, I think you have the ability to ask for
a list of the witnesses, but I'll tell you, what happens in these hearings is
that they are public hearings, so conceivably there could be members of the public
that would want to speak, and they wouldn't know that.
MR. CARVIN-Can they give us at least a brief description of the arguments of
the areas, whether it's going to be a preexisting use, and I know we can't shut
down public hearing, but I just wouldn't want to see both sides loading up on.
MR. TURNER-I don't think we can take any evidence previous to the hearing.
MRS. EGGLESTON-It's going to be difficult for the Lake George
their witnesses have all gone south or home for the winter.
a hardship on them.
Association, because
So, it kind of puts
MR. DUSEK-Part of that could be addressed in terms of scheduling the hearing,
as far as that issue's concerned, but I think the other thing to keep in mind
is that you could, forgetting about whether you should or should not rehear the
case, but just if you did rehear the case, you would not have to make a decision
that night. You could ask for the supplemental information after the fact, to
help sort out some of the issues. In other words, if you wanted further briefs
from the attorneys or something, I'm sure you could ask for that that evening,
and not feel that you have to make a decision on the spot.
MR. TURNER-Yes. It doesn't put you under the gun.
MRS. PALING-Can we have an evening just for this?
15
MR. TURNER-A special meeting, yes.
MRS. PALING-Just a special meetin g.
MR. DUSEK-That's up to the Board. That's wi thin your power.
MR. SICARD-We've done that before.
MR. RICHARDS-Mr. Chairman, could I say just one thing real briefly? I just want
to clear up one mistake, and I think borders on misrepresentation. I've heard
tonight from John Caffry and continuall y in the letters that were addressed to
this Board, that Dave Hatin had heard all the evidence in October. Well, the
record shows Dave Hatin was not there in October of ' 89. So, when he made those
statements they keep referring to, he hadn't heard any of the evidence yet, and
I've corrected that time and time again, and they continue to say that, and I
just want to make it clear, he wasn't there in October.
MR. CAFFRY-I'm just reading the minutes as to what Dave said in December. If
he's saying Dave's lying, that's his call.
MR. RICHARDS-You know I'm not saying that.
MR. TURNER-Oka y. All right.
MRS. EGGLESTON-Do we open a public hearing for this?
MR. TURNER-No.
MRS. EGGLESTON-On an appeal we don't.
MR. TURNER-Well, we do, yes, but this has already been addressed.
MRS. EGGLESTON-No, but I meant for our records, here.
it or an ythin g?
Do we open it or close
MR. TURNER-No, because we already had closed it, the public hearing.
MRS. EGGLESTON-Oka y.
MR. TURNER-This was to just to either decide or.
MRS. EGGLESTON-Oka y.
MR. CARVIN-Does this require a unanimous vote, or is this just a majority vote?
MR. TURNER-A majority vote. Yes, to rehear.
MR. CARVIN-Before we make a motion, if we decide to rehear this, what would the
vote have to be to overturn. I guess is there any stipulations, lets say we
rehear all of this and we decide that we want to stay with the original decision.
Does it have to be, again, a unanimous decision?
MRS. EGGLESTON-Unanimous, if we rehear it?
MR. DUSEK-Well, the problem we have is that the motion that was originally made
was a unanimous motion under the old Town Law. The old Town Law, if it still
applied, or had any application, would require that the second decision would
have to be unanimous as well. It's unanimous votes on both counts. That's if
it applied. The problem you have, of course, is that's an issue, because of
the fact of the change in law, and this has got to be a unique case. I'm sure
that no courts have addressed this because it's too close to the time that the
law has just changed, unless there's some comparable cases out there in other
subjects, but, so that's going to be a problem that you're going to have to wrestle
wi th. One suggestion for the Board, and tha t is, or not suggestion, but I guess
advice that I think you have a couple of options at this point. One is you could
decide the issue of res judicata at this point, and whether or not you feel that's
a bar to rehearing the case, or, two, you could go ahead with all of the proof
on the rehearing and then make one final decision at that time addressing all
of these issues, res judicata, everything, you know what I'm saying, in terms
of having, instead of, I had you break it apart this evening so you could get
through the issues, but in terms of making a decision, I don't think that you
16
are required to make a decision now. You could hold on those issues and go ahead
with the rehearing and then decide all of the issues at the end. Now, I think
Mr. Caffry will probably object to that because he'd like to have, probably,
a decision on the res judica ta immedia tel y. Al though I don't mean to put words
in your mouth, John, or don't you care?
MR. CAFFRY-You might as well put it on the record
MR. DUSEK-But I think you have an option, because sometimes courts will do that.
They'll go ahead with the hearing because maybe the hearing will resolve the
matter for you. In other words, you might find things that happen during the
hearing that everything comes together all in once nice, do you know what I'm
saying, or you may find that you still have a conflict and you'll find that you
have to make a decision, but what I'm saying to you is you could go, you don't
have to make a decision tonight on one aspect of it. You can move ahead and
hear the rest of it. You can vote tonight and say, we want to hear everything,
and then we'll make one final decision.
MR. CARVIN-Okay. So, in other words, we could conceivably make a blanket motion
just to rehear the whole thing again, without having to decide this res judicata
issue.
MR. DUSEK-Well, what you'd be saying is that we're going to go through the entire
process before making any decision.
MR. CARVIN-Okay. Would there be any problem because there is an appeal in the
courts currently? In other words, would us rehearing this have any bearing on
that, or would that have any bearing on a future vote?
MR. DUSEK-Well, theoretically I think it could if somebody decided to do something
with that final order out there. That's hanging out there in limbo. I mean,
theoretically, here's what could happen. Somebody could file that final order.
They could move for leave to appeal to the Court of Appeals again, and this time
the courts, say, could grant it, and then maybe the court, in turn, would say,
we disagree with the Appellate Division. We overturn the Appellate Division
and the June of ' 89 meeting was nothing and the December meeting was right.
If they ever did anything like that, that's going to throw this case into a.
MRS. EGGLESTON-Well, when does their time run out to do that?
MR. DUSEK-It's 30 days after the final order is filed and served.
MRS. EGGLESTON-And nobody ever filed the final order?
MR. DUSEK-Not that I know of, and if my understanding of the law is correct,
I think the time to appeal from that order still is out there in limbo because
it's never been filed, a1 though there are some other CPLR rules wi th regard to
the timely filing of orders. So, maybe there's a bar there, at this point.
I'm not quite sure, but that's out there, but my feeling was that I think you
have to comply with the Appellate Division case that is on the books right now.
The Appellate Division case has said, June, at best was voidable, it wasn't void.
That's the decision you have to live by. Everything that happened after that
wasn't done properly. That's, as I understand the court's decision, that's it,
and my advice to this Board would be that the court has spoken, and that I would
not want to go against that court decision.
MR. CARVIN-Paul, would you suggest that we untable the motion to rehear this
from before, and then make an additional motion, or is that belts and suspenders?
MR. DUSEK-I think you can feel free to use all the belts and suspenders that
you want. you certainly can't, when you're in a tough situation like you're
in, you're best to cover all of the bases on why you're doing what you're doing.
MR. TURNER-Well, there's no case la w tha t sa ys tha t we can't rehear it on the
original rehearing motion.
MR. DUSEK-Yes. This has been a change in the law. I know of no ruling on that.
MR. TURNER-A change in the law doesn't decide whether this can't be heard again.
It was under the old law.
MR. DUSEK-I think you could go ahead and that could be addressed as part of the
overall procedures that'll be coming up before you.
17
MRS. EGGLESTON-Paul, may I ask you a question? Do we just make a simple motion
to rehear, or do we have to get the words fIres judicata" in there?
MR. DUSEK-If your choice is to rehear, if that's the motion you're trying to
make, it seems to me that you would be indicating that you are holding on any
decisions concerning res judicata, and you're going to continue with the rest
of the hearing to hear out the evidence that was supposedly, this new evidence,
right, and that you'll make a decision concerning all ma tters after you've heard
out everything, and then if you want, you can tie in the fact that you were also
following up on that earlier tabling, that, in addition to just simply continuing
with this, this is also meant to join that motion.
MR. RICHARDS-This is different.
MR. DUSEK-I think you can combine the two, can't you?
MR. RICHARDS-There are different appellants.
MR. DUSEK-I don't know that the appellants make a difference, John.
you have any thoughts on that?
John, do
MR. CAFFRY-They can make any resolution they want. If it's a resolution to rehear,
we're going to disagree with it, no matter how they frame it.
MR. DUSEK-Okay. I think you can combine the two.
MR. CARVIN-Mr. Chairman, I'd like to make a motion.
lIO'rION ro REHEAR NOTICE OF APPBAL NO. 2-92 LAlΠGEORGE ASSOCIATION, DlC.,
Introduced by Fred Carvin who moved for its adoption, seconded by Joyce Eggleston:
Because of all the complex issues being raised, including but not limited to
res judicata, and in conjunction with a previously tabled motion to rehear, and
to allow the Board to reach a decision, it must rehear all new and relevant
informa tion .
Duly adopted this 23rd day of September, 1992, by the following vote:
MR. DUSEK-Could I just ask a question? Is it your intent that, essentially,
what you are scheduling for a hearing is not only this ' 92 appeal that has been
raised, but also the previously moved rehearing motion of the June decision?
In other words, you're addressing both issues, or are you sa ying you're rehearing
the ' 92 because of the June? In other words, you had a motion on the floor before
that was tabled, that was voted unanimously to have a rehearing on the June vote,
and are you saying you want to continue with that and then also continue with
this hearing? IS it your intent to do both?
MRS. EGGLESTON-Yes, we were trying to tie them in together.
MR. TURNER-Yes.
MR. DUSEK-Okay. So, basically, you're going to have one hearing where both of
those subjects are addressed?
MRS. EGGLESTON-Yes. Is that all right?
MR. DUSEK-I don't see any problem with it. I just wanted to make sure that was
your intent.
MRS. EGGLESTON-That was our intent, to cover the bases of both.
MR. TURNER-Yes. It has to be a unanimous vote to rehear.
AYES: Mrs. Eggleston, Mrs. Paling, Mr. Thomas, Mr. Sicard, Mr. carvin, Mr. Turner
NOES: NONE
ABSENT: Mr. Philo
MR. DUSEK-Okay. Now you need a date. I presume they'll want time to get their
witnesses together.
MR. CARVIN-Mr. Caffry?
18
MR. CAFFRY-I'd request that the Board, at this time, not set a date until the
parties can see when they get their wi tnesses together. As Mrs. Eggleston said,
a lot of our witnesses are summer people, and we may be able to get them up here.
Maybe we're going to just have to settle for written statements, but that could
take a while, and I would suggest the attorneys maybe contact Paul and come before
the Board to schedule a hearing when, as soon as everybody's ready. We don't
want to delay unnecessarily, but I just don't know right now when we're going
to be able to pull everybody together.
MRS. EGGLESTON-That's fine with us. That's fair.
MR. RICHARDS-Mr. Chairman, I don't want to be a problem, here, but we had suggested
an adjournment originally and Mr. Caffry said it was important to hear this
immediately, and we don't want this to go indefinitely. If you wanted to hear
it promptly, lets hear it promptly. It doesn't take that long to get letters
from people wherever they live, a month, six weeks would certainly be enough.
MR. CAFFRY-Mr. Richards is comparing apples and oranges, here. I wanted to get
this part of it done tonight to find out if we were going to have a hearing.
I didn't want to wait another month to find out that then we're going to have
a hearing. I thought there was a chance the Board would vote the way it did,
and I didn't want to have to wait another month so we'd be here in October and
you'd make this vote, and we'd be, who knows when we'd be able to schedule it,
with the holidays coming and everything. So, I think the two things are not
inconsistent.
MR. SICARD-Mr. Chairman, I think it's up to the schedule. If we're goin g to
put on our regular hearing, then it's up to the people that set these hearings
up and put it in where they can, because I know they're pretty well loaded, but
if we're going to have a special hearing on a special date, then it's up to you
to set it when the Board members can come to the meeting, because we have a full
Board now and it isn't always easy to, especially coming into this Christmas
season.
MR. TURNER-Is 60 days enough?
MR. CAFFRY-More than enough.
MR. TURNER-That's fair.
would be the 18th and
Thanksgiving.
It'll have to be a special meeting. Our regular meeting
the 25th, and usual1 y we don't have them the da y before
MRS. EGGLESTON-SO that would be moved around.
MR. CARVIN-December 9th?
MR. TURNER-How about December the 2nd?
MRS. EGGLESTON-December 2nd?
MR. CARVIN-Will we have a meeting if they, will they move the November the 25th
meeting to the 2nd?
MRS. EGGLESTON-No. We'll have it in November.
MR. TURNER-If we have one the 25th, which we don't generally have, we might decide
to move it one way or the other, either after it or before.
MR. SICARD-This will have to be advertised.
MR. DUSEK-Yes.
MRS. EGGLESTON-How about the first week of December.
MR. TURNER-How about December the 2nd? That's a Wednesday.
MR. CARVIN-Is it agreed the second, then, Ted?
MR. TURNER-Is the second fine, gentlemen?
MR. CAFFRY-7 :30?
19
MR. TURNER-7:30.
MRS. EGGLESTON-Unless you want to start a little earlier.
MR. TURNER-Do you went to start a little earlier?
MRS. EGGLESTON-Yes.
MRS. PALING-Lets start at 7:00.
MR. TURNER-7: 00.
MR. DUSEK-December 2nd?
MR. TURNER-December the 2nd.
MR. RICHARDS-Mr. Chairman, one thing on the map. Can I get another map that
shows the area better? I didn't realize that that one was the one I was supposed
to keep.
MR. TURNER-Yes.
MR. RICHARDS-So, I'll get a different map that will indicate the same launch.
MR. TURNER-Okay. Are you going to furnish the same map, John, as that one?
MR. RICHARDS-It's a similar map that will show exactly the launch. I'm not sure
if it's exactl y the same.
MRS. EGGLESTON-Mr. Caffry asked you to make that part of the record. So, is
that all right with you?
MR. CAFFRY-That's fine. There's going to be another hearing anyway.
MRS. EGGLESTON-All right. Okay. (9:24 p.m.)
USE VARIANCE NO. 35-1992 '!l'YPB= UNLISftJ:D UR-1it RaiAUJ L. NllfiBLL GlJRFIBLD
P. RAYIlOllD 0iilfllR = SNIB A$ MarIE BAY ROAD, ADJN:æ1W f'O GLIIf$ FMJ.'$ BM.LllT CBln.flR
Fœ CONsrRl1CrIœ Œ it PROFBSSI((JlIAL ŒFIŒ:. 1l@T" ALI/lJJ1lJ:D USE IN rut" ZCI.fB.
(WARRBli COUNTY PLANNING) t"U MAP NO. 61-1.-41.1. & 44 LOr SIZB= 30~ lICRBS SBCrION
179-17
RON NEWELL, PRESENT (9:24 p.m.)
St"M'F IlIJPUr
Notes from Staff, Use Variance No. 35-1992, Ronald Newell/Garfield Raymond,
September 2l, 1992, Meeting Date: September 23, 1992 "The applicant is seeking
a use variance to allow the construction of a professional office in a UR-1A
zone. 1. The applicant has not sufficiently supported his argument that he
is unable to get a reasonable use of the property. Other uses such as health
care facilities and day care centers are also permitted uses. The property does
not have to be sold, used or marketed as a strictly single family use. 2. The
area is not unique, as with many properties along this portion of Bay Road; it
contains wetlands, is laced with streams and is part of aquifer recharge areas.
The property has many of the same characteristics as those properties in the
adjacent SFR-lA zones. 3. The area is currently a mix of open space, residential,
commercial and professional office. Each of these uses reflect the environmental
constraints that are particular to each parcel. Development of this site should
reflect to physical and environmental constraints; if it does not, there will
be an adverse effect on the neighborhood."
MR. TURNER-Mr. Newell.
MR. NEWELL-My name is Ron Newell, and the first thing I'd like to clarify is
that we're not dealing with the entire 30 acres. There's a map which was attached,
I think, to the application which specifies the area that we're concerned with,
and that is two one acre lots in the front which border Bay Road, 150 by 300
feet, 150 on the Bay Road and 300 feet going back. Those are the two lots that
we're concerned with, not the entire 30 acres, and if we're clear on that, then
I'd like to proceed with the presentation of testimony.
MR. TURNER-We're all set.
20
MR. NEWELL-I'd call Mr. Levack. Mechanically, how do you want to work this?
I'm used to asking questions and getting answers. I can either put the microphone
in front of him, or.
MR. TURNER-If he knows the issues, then he can address them.
MR. DUSEK-Before Mr.
you're referring to,
separately deeded, or
Newell leaves the microphone, though,
are those lots that have a meets and
something of that nature?
the two lots that
bounds description,
MR. NEWELL-Right now they're not separately deeded. They're part of the main
parcel. They've been surveyed, and they're part of the plan that was submitted.
MR. DUSEK-Have they received subdivision approval?
MR. NEWELL-No. We're really not at that stage at this point.
MR. TURNER-They're asking to segregate these two lots out of the whole parcel.
MR. DUSEK-Okay. I wanted to make sure I understood the facts.
MR. NEWELL-Right.
MR. DUSEK-SO, really, what you're asking the Board to do is zone part of the
parcel?
MR. TURNER-Right.
GARFIELD RAYMOND
MR. RAYMOND-I want to address that, because when we made out the application
we were told by the Planning Board that that's the steps that we should follow.
First, make the variance application. After the variance application, then come
up here.
MR. TURNER-Yes, if you get the variance.
MR. NEWELL-Right.
You said re-zone.
a use variance.
yoU mentioned a phrase here that I don't think is correct.
We're not talking about a re-zoning here. We're talking about
MR. DUSEK-I stand corrected. you're absolutely correct. you're absolutely right.
Sorry.
MR. NEWELL-Now, Mr. Levack, would you state your name please.
MR. LEVACK-Mark Levack.
MR. NEWELL-And you're affilia ted wi th a firm which has as it's primary business
the sale and marketing of real estate?
MR. LEVACK-Tha t ' s correct.
MR. NEWELL-And the name of that concern is?
MR. LEVACK-Levack/Burke Real Estate Incorporated.
MR. NEWELL-Are you licensed by the State of New york to sell real estate?
MR. LEVACK-Yes.
MR. NEWELL-And you're a licensed realtor?
MR. LEVACK-That' s correct.
MR. NEWELL-And how long have you been licensed by the State of New york?
MR. LEVACK-Since 1985.
MR. NEWELL-And are you familiar with the subject property which is located on
Bay Road?
21
MR. LEVACK-Yes.
MR. NEWELL-And how long have you been involved with the marketing of this property?
MR. LEVACK-Three years.
MR. NEWELL-And it consists, the entire parcel, of some 30 some odd acres?
MR. LEVACK-That' s correct.
MR. NEWELL-And you're familiar with the proposed program of selling two lots
each 150 by 300 feet?
MR. LEVACK-Yes.
MR. NEWELL-One hundred and fifty on Bay Road and three hundred back?
MR. LEVACK-Yes.
MR. NEWELL-And there's a 50 foot section which would enable access to the back
area of this property?
MR. LEVACK-Right.
MR. NEWELL-Now, when you first started to market this property, some three years
ago, did it have a different zoning designation than it does today?
MR. LEVACK-Yes. It was my understanding that was MR-5.
MR. NEWELL-Toda y it's UR-1?
MR. LEVACK-Correct.
MR. NEWELL-Now, under MR-5, does that have any distinction between what it's
currently zoned as?
MR. LEVACK-Yes.
MR. NEWELL-And how does that effect the marketing, if any, of the property?
MR. LEVACK-I think it effects it greatly because of the specific character of
Bay Road being cultural professional and office oriented, commercial oriented.
MR. NEWELL-You're familiar with the different structures and uses of this property,
and structures on Ba y Road?
MR. LEVACK-Very familiar.
MR. NEWELL-And that starts from the corner of Bay and Quaker and goes up to the
Country Club Road?
MR. LEVACK-Correct.
MR. NEWELL-Now, starting with where this property is located, is there property
across the road which has another zoning designation?
MR. LEVACK-Yes. It's zoned HC-lA.
MR. NEWELL-Is that Highway Commercial?
MR. LEVACK-Yes.
MR. NEWELL-And on either side of this particular piece of property, do you know
of the use in the zoning designation of that property?
MR. LEVACK-I'm familiar with both the north and south zonings, yes.
MR. NEWELL-And what are they?
MR. LEVACK-I believe it's UR-lA on the north, and I believe it's HC-lA on the
south.
22
MR. NEWELL-Now, are you also familiar with the sale of the different types of
property on Bay Road that have taken place over the years?
MR. LEVACK-Yes. We've been very involved with actively marketing and selling
Bay Road properties. I currently have one Bay Road property sale pending right
now, which we're seeking approval for a cultural professional office building
and we hope to be granted approval on that tomorrow night. We're hopeful.
MR. NEWELL-Now, there's been some talk about this property in particular being
marketed or susceptible to being marketed as residential, for residential use.
Now, do you have an opinion as to whether or not this property could be marketed
for residential use?
MR. LEVACK-I don't think that it is conducive to residential use.
MR. NEWELL-When you say, "conducive", is the property marketable as lots that
could be used for residential?
MR. LEVACK-We've been marketing the property, as I said, for the past three years,
and never has there ever been an interested party, not ~, that's interested
in using this property for a residential piece of property.
MR. NEWELL-SO, are you saying that the property literally could not be sold for
residential use?
MR. LEVACK-I would have to say no, based on my experience of the activity and
the interest of activity for residential use.
MR. NEWELL-Now, you've been privy to certain DOT, Department of Transportation
information relative to traffic on Bay Road?
MR. LEVACK-Yes. We have done some studies for some projects on Bay Road.
MR. CARVIN-Could I interrupt, here.
residential?
yoU said that you have not marketed it as
MR. LEVACK-we1l, we've marketed the property in its prior zone, and we've marketed
the property in its current zone and I can tell you unequivocally that never
has there been an interested party that wants to buy this property for residential
use.
MRS. EGGLESTON-But were you using the whole 30 acres, you know, when you advertised
for residential use, the whole 30 acres?
MR. LEVACK-Well, it's always been that the front property has been the property
of interest, and there has never been anyone interested in building a residence
on tha t propert y.
MR. TURNER-Yes, but I guess her question KBS, did you advertise the parcel as
one piece?
MR. LEVACK-AS a 30 acre parcel, yes, that's correct, and even to that extent
there was never anyone interested in using that property as a residential property.
MRS. EGGLESTON-But conceivably that could make a big difference. I mean, if
you were to sell one lot residential, as opposed to a 30 acre, you ma y have had
nibbles.
MR. NEWELL-Well, as a follow up to that question, I think I know where you're
going. you've marketed that property as 30 acres, correct?
MR. LEVACK-Right.
MR. NEWELL-Also not restricted the marketing attempts to 30 acres, but rather
to one acre, to two acres, to any kind of acres, is that correct?
MR. LEVACK-That' s correct.
MR. NEWELL-And you've not had any interest shown, either a half acre, acre or
any type of acreage?
MR. LEVACK-There has been no interest for residential use on this property.
23
MRS. EGGLESTON-Okay. I'll ask you the same question I asked at the last hearing.
Was the advertised price reasonable for a residential?
MR. LEVACK-I'm really glad you brought that up, because I'd like to expand on
that question a little bit further. I believe that the property, when we were
marketing it and advertising it at that price, was a realistic asking price based
on the prior zoning. That's changed.
MR. TURNER-When you advertised the property as residential, did you put in there.
MR. LEVACK-We never advertised the propert y in an y set vein, whether it be
residential, D.R, MR, we just advertised it as 30 acres.
MR. TURNER-Did you break it down, that maybe the property had to be, if it was
split, it would have to be approved by a variance?
MR. LEVACK-I'm not sure I understand your question.
MR. TURNER-Well, you're saying you I18nt these two houses on Bay Road, and you're
going to market the 30 acres, and you I18nt to sell those two houses, did you
market it with the assumption that maybe the applicant could acquire those as
residential by variance?
MR. LEVACK-I still don't follow your question. I'm sorry.
MR. TURNER-It has to have a variance to live there because it's UR-l acre, so
you've got less than an acre.
MR. NEWELL- I don't think you're correct on tha t .
MR. TURNER-Wha t ha ve you got, 300 by wha t?
MR. NEWELL-You've got 100 in the front, and going back 300.
MR. RAYMOND-One hundred and fifty in the front by three feet depth. That's just
a little over an acre.
MR. TURNER-All right. you were just over an acre.
advertised it as a 30 acre lot, D.R-l.
Okay. So, again, you just
MR. LEVACK-RÍght. That's correct.
MR. TURNER-Oka y.
MR. NEWELL-I've got to go back, because I don't think we're making the record
clear, here. U'lless I misunderstand you, are you suggesting, Mr. Turner, tha t
the property was just marketed as a 30 acre lot, or that there are 30 acres for
sale, be it 30 acres or one acre.
MR. TURNER-It's kind of like that, yes.
MR. NEWELL-Now you've lost me.
MR. TURNER-Well, he said he offered it at 30 acres, all right. So, that's it.
You didn't offer it any other way?
MR. LEVACK-I would probably reserve to go back and take a look at my advertising
before I comment on that, but I can't believe that if we have a total parcel
to sell, that we're going to try to sell it in any other vein than as a total
parcel.
MR. TURNER-Okay, then is it fair to say, based on, if it was based on 30 acres
for sale, then the market price was, what?
MR. LEVACK-We had the market price at $800,000.
MR. TURNER-Okay. So, that's a detriment to anybody buying it, in a sense, in
this economy as bad as it is now.
MR. LEVACK-Well, not when you took a look at the zone that did apply at that
time.
24
MR. NEWELL-We're not talking about the säme thing, Mr. Turner. Back when that
was marketed at that price, the property was zoned MR-5. It's not zoned that
way anymore, so back then it was an entirely different ball-game.
MRS. EGGLESTON-So, what is the asking price today, under the new zone?
MR. NEWELL-Well, under the new the current proposal that we're talking about
tonight, we're talking $55,000 a lot. In other words, the two lots, $55,000
for one, and $55,000 for the next. We had a potential buyer the last time we
were here. As a result of the action of this Board, that sale did not take place.
MRS. EGGLESTON-And what if it were to be sold as a whole, what would the price
be now?
MR. NEWELL-You can't even reach that point because the property can't be marketed
as a whole, not at this juncture, because of the way the property is situated.
You have property in the front which is adjoining Bay Road which has a high traffic
count which is not conducive to residential. We have property further back which
conceivably might be residential, and then you have wetlands, which, with the
wetlands effectively dividing the property, and then you go back into dry land
again, which then borders, ends up on the Country Club Road. So, you can't reall y
say, we want to sell the whole lot because you have sections Which just can't
be sold. The wetlands can't be sold, as a practical matter, because the only
thing it's good for is farming ducks. The back side conceivably might be able
to be used for residential, but then you've just got a limited access onto the
Country Club Road. So, the property itself is not just one lot that can be said,
here's 30 acres, you can buy it. It's broken up into three separate sections,
basically, the front which borders Bay Road, which is not residential because
of the high traffic count, the wetlands Which is in between, and the dry which
is, again, borders the Country Club Road which conceivably could be residential.
MRS. EGGLESTON-Are the wetlands so designated by ENCON?
MR. NEWELL-Yes.
MR. LEVACK-They've even been flagged.
MRS. EGGLESTON-Flagged and everything on them. So, that's a part of the.
MR. NEWELL-$), what we're stuck with here is a difficult situation. you've got
two lots on Bay Road, which I think Mr. Levack would indicate, the last time
they did a DOT count, they had something like 8,750 cars go down there a day,
and you can't honest1 y expect someone' s goin g to come in there and build a home
and put a family on a one acre lot fronting that type of traffic activity.
MR. LEVACK-I would go one step further than that and go on to say that I'm familiar
with a couple of interested developers on the Highway Commercial property across
the street, and I would actually recommend that these people do not build
residences on this property based on that knowledge of the activity that I have
across the street.
MRS. EGGLESTON-Do you know, did Mrs. Larabee ever sell her house?
MR. LEVACK-To my knowledge, that house is not sold.
MR. RAYMOND-I can address that. It has not been sold.
MR. NEWELL-This is the woman that lives next door to Mr. æ.ymond?
MR. LEVACK-Correct.
MR. NEWELL-I think she testified that at the last hearing and indicated that
her property has been on the market for some three years?
MR. LEVACK-That's correct.
MR. NEWELL-And has not had any interested individual present an offer, an
incredible offer, to purchase her home as a residence, is that correct?
MR. LEVACK-That's correct.
25
MR. NEWELL-I started to put on the record your information, or your, well, the
information you have as to the DOT study, traffic on Bay Road.
MR. LEVACK-Yes. I do have information regarding that study.
MR. NEWELL-And what was that traffic study indicating the number of cars that
went up and down there on a day.
MR. LEVACK-That it was a busy road.
MR. NEWELL-Do you have actual numbers?
MR. LEVACK- I could produce actual numbers. I believe it's a ma tter of public
record. I don't have actual numbers on me this evening, no.
MR. NEWELL-When we had a discussion earlier, you indicated that it was in the
neighborhood of 8,750 cars?
MR. LEVACK-Yes, I mean, to my knowledge, 8,000 + is the number of cars traveling
Bay Road, and that section of Bay Road, on any given day.
MR. NEWELL-Now, be it one acres or 30 acres, since the time you started marketing
this property, have you had anybody express an interest to purchase this property
for residential use?
MR. LEVACK-No.
(END OF FIRST DISK)
26
MR. NEWELL-Now, as far as return itself, as far as actual dollars and cents are
concerned, I've indicated that there has been avrice set on these lots of $55,000
a lot, assuming that it can be used for professional use to create a structure
for a professional use. Is that a fair and reasonable value for that lot?
MR. LEVACK-I think in that location that is a fair and reasonable value for that
lot.
MR. NEWELL-Now, assuming that those two lots were restricted to residential use,
can you think of any figure that would be paid for those particular lots?
MR. LEVACK-No, because I haven't ever had anybody that has interest, that we
could determine a value on those.
MR. CARVIN-Excuse me. Would you feel that $55,000 would be an adequate price
for a nursing home or a nonprofessional use, incidental to residential use?
MR. LEVACK-I couldn't expertly testify on that, because I'm not familiar with
what those uses are conducive to paying. So, I quite honestly couldn't testify.
MR. CARVIN-How about a church or a synagogue?
MR. LEVACK-Again, I've never dealt with a church or a synagogue, so I couldn't.
MR. CARVIN-A laboratory or a physical therapy facility?
MR. LEVACK-I have never dealt with either of those.
MR. CARVIN-A day care center?
MR. LEVACK-I've never dealt with a day care center.
MR. CARVIN-A duplex?
MR. LEVACK-I've dealt with a duplex.
MR. CARVIN-Would $55,000 be an adequate price for a duplex?
MR. LEVACK-On Bay Road?
MR. CARVIN-Yes.
MR. LEVACK-I would have to say that $55,000 would not.
MR. CARVIN-Would not be an adequate price? More or less?
MR. LEVACK-Wou1d the duplex lot be more or less?
MR. NEWELL-Well, perhaps, not to interrupt, but I'd like to keep the record
straight in this regard. What I believe Mr. Carvin is indicating is whether
or not there are other uses that this property can be put to, and the question
then is, since you've been marketing this property, have you had any inquiry
for the purchase of this property with the idea in mind that it was going to
be used as a planned unit development?
MR. LEVACK-No.
MR. NEWELL-How about a school?
MR. LEVACK-No.
MR. NEWELL-How about a church?
MR. LEVACK-No.
MR. NEWELL-Synagogue?
MR. LEVACK-No.
MR. NEWELL-Hospital?
MR. LEVACK-No.
27
MR. NEWELL-Nursing home?
MR. LEVACK-No.
MR. NEWELL-Day care center?
MR. LEVACK-No.
MR. NEWELL-Duplex?
MR. LEVACK-No.
MR. NEWELL-Multiple family dwelling?
MR. LEVACK-No.
MR. NEWELL-Now, again, using your expertise as a licensed realtor in the state
of New York, particularly in Warren County in the Town of Queensbury, do you
have an opinion as to whether or not it is feasible that any of these uses that
I have just mentioned would be appropriate for the two lots in question? Do
you ha ve such an opinion?
MR. LEVACK-Based on my first hand knowledge of marketing the property and the
activity that we've generated while marketing that property, I can unequivocally
say that none of those other uses have been proposed nor has there ever been
anyone that's approached us that wanted to put those uses on that property.
So, based on that, I would have to say that those uses aren't, in !EJl. opinion,
have not proven themselves to be feasible at that location.
MR. NEWELL-SO, you're saying not only have you not received any credible offers,
or any offers for any of these uses, but it's your opinion that the property
is not suitable for any of these uses?
MR. LEVACK-Based on my past experience of selling property on Bay Road, marketing
property on Bay Road, I don't believe that it is.
MR. NEWELL-All right, and is it your opinion that, based upon your experience
and your knowledge of the market, the only feasible use for this property at
this time is as a cultural professional use?
MR. LEVACK-AS it is, the only offer that stands on the property is cultural
professional use. I would determine that's the only feasible use.
MRS. EGGLESTON-There are other multi family dwellings up and down Bay Road.
MR. LEVACK-Right.
MRS. EGGLESTON-SO, why do you think it would not be compatible to this particular
spot?
MR. LEVACK-Wel1, because I feel that it does have a Highway Commercial, there's
10 acres right across the road from this, and I don't believe that a residential
use is conducive, across the street from this particular HC-lA zone.
MRS. EGGLESTON-Could you tell us exactly how you advertised it, how your ads
read?
MR. LEVACK-No. I couldn't tell you exactly, but again, if you care to have that,
we keep all our ads. I'm sure we'd be able to find something on that.
MRS. EGGLESTON-You can't remember, Mr. Levack.
MR. LEVACK-I cannot.
MRS. EGGLESTON-You remember all these other details, but you can't remember how
you advertised the place?
MR. LEVACK-I cannot because I am not my ad manager. I had an ad manager doing
that specifically for me.
MRS. EGGLESTON-How about you, sir?
28
MR. NEWELL-Yes. I can tell you we marketed it.
MRS. EGGLESTON-How the ads read in the paper, the advertising.
MR. NEWELL-The ads that ~ put in, along with Mr. Levack indicate that there's
30 acres of property for sale, but in any event did not restrict the property,
the sale of the property to 30 acres. It's either 30 acres, or it's one acre
or two acres. It's any kind of acres that anybody's willing to pay for this,
or anybody's interested in.
MRS. EGGLESTON-Oka y, but you didn't sa ywha t uses, or like, an ad usuall y doesn't
just say 30 acres. you have a detailed.
MR. NEWELL-Actually that's all it does say, because you don't really want to
put a restriction on what a particular buyer may want to use the property for.
MR. CARVIN-Okay, but somebody calls up and says, I have an interest in the 30
acres. Do you tell them at that point?
MRS. EGGLESTON-Do you not say it's a commercial?
MR. LEVACK-We simply told them what it was zoned at the point in time they
addressed the ad, and then you get into it a little bit further, they say what
they want to use it for, and either they like it or they don't, and as I said,
it's not been my experience that any of those uses were requested, purchasers
were requesting the property for those uses. They were not.
MR. CARVIN-How many phone calls do you think you might have had on the property?
MR. LEVACK-Numerous, and most of them, quite honestly, came from our sign on
the property, which still stands today.
MR. CARVIN-What were some of the other uses that these folks got turned off by?
MRS. EGGLESTON-Or do you think it was cost prohibitive?
MR. LEVACK-No, because I believe, I sold property on Bay Road. I sold the Aronson
farm, 80 acres, that was a million four hundred and fifty thousand. That buyer
paid cash for it.
MRS. EGGLESTON-How long ago?
MR. LEVACK-That was in January of '89. So, I feel that in those prices, it's
been ~ experience that somebody's going to make an offer on a property, no matter
what the price is, if they like the location and it fits their use, and so I
don't feel the price was at all a deterrent to this property selling. It's just
that we hadn't had the buyer that would fit the use for this property, or they
didn't have the use that would fit the zoning for the property.
MR. CARVIN-Again, I guess that's my question. A guy calls up, and you've had
numerous calls on the property, and either the price turns them off because you're
selling the whole 30 acres.
MR. LEVACK-Right, that eliminated them.
MR. CARVIN-Or the guy says I want to build a cement plant there.
these some of the things that have been presented? I mean, has
to you, I want to put a cement plant there? Is that a problem?
I mean, are
an ybody said
MR. LEVACK-No, no one has ever said I want to put a cement plant there.
MRS. EGGLESTON-How far have you gotten?
MR. CARVIN-I was going to say, in other words, how far into the conversation?
I mean, is it just the $800,000 has turned them off and they're gone?
MR. LEVACK-No.
MR. CARVIN-Or if they say, I'd like to use it for something, and you say, well,
it's not zoned for that.
MR. LEVACK-Right.
29
MR. CARVIN-You're here saying that, out of the numerous calls, they've all been
for professional uses, in other words, excl usi vel y?
MR. LEVACK-I would say that's correct. We have not had anybody that has wanted
to put a single family residence on the 30 acres.
MRS. EGGLESTON-Or make a housing development of any kind?
MR. LEVACK-That' s correct. No. That's correct.
MR. CARVIN-Or a duplex?
MR. LEVACK-That's correct. We have not had a single call on a duplex.
MRS. EGGLESTON-Well, what have you had calls on?
ascertain. What has the interest been shown in?
That's what we're trying to
MR. CARVIN-I mean, has a guy called up and said, I want to put an office building
there. I mean, have you had 30 calls?
MR. LEVACK-Yes. We have had those telephone calls.
MR. CARVIN-You've had 30 or 40? I mean, how many numerous?
MR. LEVACK-I can't say exactly the number, I'd say more than 10.
MR. TURNER-But isn't it a fact that Mr. Raymond occupies one of the houses and
has an office on it, right now?
MR. LEVACK-Not on this property.
MR. TURNER-On this property?
MR. LEVACK-No, not on this property.
MR. TURNER-The one next to it, the one house next to it?
MR. LEVACK-I believe, next to it, your property?
MR. RAYMOND-I'm in the middle. I own a
to do with this. It's a separate piece.
pieces.
place in the center. It has nothing
It never had anything to do with these
MR. TURNER-Oka y.
MR. LEVACK-It' s a separate and distinct parcel.
MR. DUSEK-Could I ask Mr. Levack a couple of questions? Mr. Levack, have you
formed an opinion as to what the reasonable return would be for the two parcels
that are being requested to be subdivided out?
MR. LEVACK-The reasonable return? with what zoning?
MR. DUSEK-As currently zoned.
MR. LEVACK-The current zoning? We're marketing a 70 acre parcel on East Sunnyside
Road that's a very beautiful piece of residential property sandwiched in between
two residential subdivisions, and that property, in between the Stonehurst
Subdivision and the Brookside Subdivision, and I believe she's down to $2,300,
$2,400 an acre right now, and she can't sell it at that, and I would say that
property's more desirable than this property. So, I would have to say somewhere
in the vicinity of a couple of thousand dollars an acre.
MR. DUSEK-Is the reasonable return for this parcel?
MR. LEVACK-I would have to say it's probably a lot less than that, and I would
really opt for a low number on that, based on it's location and it's current
zone.
MR. DUSEK-Okay. What would be the reasonable return for the entire parcel, if
it was used as one parcel, the 30 acres?
30
MR. LEVACK-To what use?
MR. DUSEK-As current, for any use that's permissible as currently zoned.
MR. LEVACK-Again, I would have to say that would be a very low number, based
on the fact that nobody wants to live across from a Highway, because it's currently
zoned residential, nobody wants to live across from a Highway Commercial future
project.
MR. DUSEK-Do you have an opinion as to what that reasonable return would be?
What would the return be as currently zoned?
MR. LEVACK-I've learned that a property is only worth what the highest and best
ready willing and able buyer is ready to pay, and to this date, I would have
to say zero, because there is no one that has made an offer based on that current
use.
MR. DUSEK-In
usual for you
selling price
the practice of being a real estate broker, is it customary and
to ascertain and recommend to sellers of a property what a reasonable
would be for that property?
MR. LEVACK-No. It's, I have a fiduciary to the principal. One the principal
lists the price, that's the only price that I can quote on the property.
MR. DUSEK-Okay. If somebody comes to you, you don't assist them on what a
reasonable price would be?
MR. LEVACK-Again, we have fiduciary to the principal, and once the price is
established, that's the only price that we can recommend on the property. If
somebody comes to me and wants to hire me as the buyer/broker, and work for them
in that regard, then it's clearly my duty to ascertain, to do comparable studies,
and I'll research out the sales to make all the recommendations that I can.
MR. DUSEK-As to what the appropriate value of the property would be.
MR. LEVACK-Right.
MR. DUSEK-And you have that ability to do that?
MR. LEVACK-Yes, that's correct.
MR. DUSEK-And with that ability having been stated, is it your professional op~n~on
that the property is not worth anything, as currently zoned? I think that was
just your statement a little earlier.
MR. LEVACK-As currently zoned, I mean, to say zero, sure, somebody will pay
something for it. There's no question about that.
MR. DUSEK-And have you been able to form a professional op~n~on as to what the
reasonable amount would be that somebody would pay for that?
MR. LEVACK-I have not, because, again, no one has made an offer on the property.
There's nothin g to go on.
MR. DUSEK-But I think you just indicated in your testimony that you could draw
an analysis by using comparables for example.
MR. LEVACK-Right.
MR. DUSEK-Have you done that?
MR. LEVACK-Based on, yes, we have, based on the other properties that are on
the market, we could come up with a number, but on this specific.
MR. DUSEK-Have you come up with a number?
MR. LEVACK-Again, based on this particular property, it has been zero. There
has not been any interest. So, the property is only worth what the highest and
best ready willing and able buyer is ready to pay, and no one has demonstrated
that they're willing to pa y anything for this property. So, everything else
is speculative, is purely a judgement call that doesn't mean a lot.
31
MR. DUSEK-Your testimony as you've just given refers to it as being used for
residential purposes I believe. IS that correct?
MR. LEVACK-Being used or being zoned?
purposes.
It's currently zoned for residential
MR. DUSEK-Zoned. Right, and when you give your evaluations, you're thinking
of, in terms of putting residences on the property, is that correct?
MR. LEVACK-When I'm giving my determination?
MR. DUSEK-Your opinion as to it's not being v.orth anything because there's nobody
willing to pay for it. you've assumed a use that would be residential in nature.
Is that correct?
MR. LEVACK-Not necessarily.
MR. NEWELL-I think he's also indicated, in my inquiry, that he also feels the
same way as to its value for a planned unit development, schools, churches,
synagogues, day care center, hospitals, nursing homes, duplexes, and multiple
family dwellings. I think he said that he feels the same way about those uses
as well, and values.
MR. DUSEK-Have you done comparable or market studies as to those particular uses
for this property?
MR. LEVACK-In establishing the asking price?
MR. DUSEK-Yes.
MR. LEVACK-No, we have not.
MR. NEWELL-Would it be fair to say that you can't establish a figure because,
as a practical matter, there is no demand to purchase the property there?
MR. LEVACK-There has not proven to be a demand for those uses.
MR. CARVIN-Would it be fair to sa y tha t the wa y it's bein g advertised, the onl y
people that are coming to the surface are folks that don't fit under the zoning?
MR. LEVACK- I don't think tha t would be safe to sa y, no, I don't, beca use I feel
that's marketing in enough of a blanket manner that if anybody has interest in
the property, they're going to surface, no matter what use they're requesting.
MR. CARVIN-But you've already indicated you've had numerous calls and none of
them fit the current zoning application.
MR. LEVACK-That's correct.
MR. CARVIN-$), can't I infer from that that the advertising might be faulty?
In other words, if all you're gettin g are professional folks tha t don't fi t the
zoning calling up, maybe you should change your advertising so that you get people
that fit the zone.
MR. LEVACK-$) that we advertise for a church, or that we advertise for a health
care center?
MR. CARVIN-I don't care.
you've had no other calls
bi t 1a ckin g?
I'm just saying, is it safe for me to infer that if
on any of this, that the advertising may be a little
MR. LEVACK-Genera1ly speaking we advertise by zoning. If it's zoned a specific
zone, we say 30 acres zoned UR-lA, or 30 acres HC-lA, or whatever the zoning
is, and again, without having a copy of the advertising here, I can't say exactly
how we did advertise it, but I can say that we don't always specifically set
out to sa y zoned for a certain use.
MRS. EGGLESTON-Have you tried lowering the price at all?
MR. LEVACK-That's not my call to lower the price. That's the seller's call.
MRS. EGGLESTON-But has there been any lowering of the price since the time it
was put on the market?
32
MR. LEVACK-We've always recommended that any prospective purchaser submit an
offer. We've opened the door wide open to any prospective purchaser, and I guess
I hope that this Board doesn't get hung up on the asking price and how that's
prohibited a sale here, because clearly there have been some reductions in price,
and that hasn't produced the buyers. It's purely the zone, the location, and
people not wanting to purchase the property based on that.
MRS. EGGLESTON-And when was the property purchased? I don't remember from our
last records. When was this bought by the applicant?
MR. LEVACK-I don't know exactly when this property was bought by the applicant.
MR. NEWELL-Off the top of my head, I don't know. I think it was about five or
six years ago. I think 1986 would be a fair statement.
MRS. EGGLESTON-And what did you pay for it, sir?
MR. NEWELL-I think we paid $25,000 for one section and $25,000 for another section.
MRS. EGGLESTON-So, $50,000 total?
MR. NEWELL-Back in ' 86.
MRS. EGGLESTON-Oka y.
MR. LEVACK-Which I might add were one year prior to peak market prices. So,
it was a good price for the property at that point in time. It was not a low
price.
MR. DUSEK-That was for 1986?
MR. LEVACK-Right.
MR. DUSEK-Okay, and in 1989, what was the advertised price?
MR. LEVACK-$800,000.
MR. DUSEK-And do you recall giving testimony on a prior occasion before this
Board?
MR. LEVACK-Yes.
MR. DUSEK-And do you recall that you indicated that the price was not reasonable
at that time?
MR. LEVACK-Again, I'm glad Mrs. Eggleston asked that question again because I
would have gone on to say that I don't believe that that price is a reasonable
price based on today's zoning. That's what I had hoped to have said at that
point in time, but based on the past zoning, I would still contend that that
was a reasonable asking price on the property because clearly properties on Bay
Road in the MR-5 zone were bringing $17,000+ an acre and to ask the price that
we were asking was not prohibitive and they were hoping that the trend was going
to continue at that time period. It was peaking out and clearly the trend went
the other way, but I don't believe that the price as advertised, based on the
past zoning, was high.
MR. DUSEK-That would be in 1989.
MR. LEVACK-That' s correct.
MR. DUSEK-How about currently?
MR. LEVACK-I believe currently that the price advertised, based on the current
zoning, would be high, but as I said, we haven't been advertising it right along
at $800,000. So, that clearly has not been the reason why this property has
not sold. It's just been that I don't feel that the current zoning allows for
the highest and best use of that property which is clearly, in my opinion, cultural
professional in nature. It's been the history of all the contacts that we've
had, and I'd like to just say at this point that this particular property is
in a vacuum. It's in a void. It fronts Bay Road. It's zoned UR-lA, and it
doesn't, currently, allow for an office building when you have office buildings
33
on the south side. You have office buildings on the north side. I feel if you
prohibit the applicant to strictly residential use on this property, you're going
to end up with another Main Street Queensbury, where you have a very busy corridor.
It is an entry-way, a major avenue, and you're putting a house on that. I think
that that is improper zoning. I don't think it's conducive to Bay Road, and
I'd just like to digress and say regardless of what the property is zoned today,
it's not, it is clearly not a residential piece of property.
MRS. EGGLESTON-What is the current selling price? You said it has not, in the
last few months, been at $800,000. What is the current selling price?
MR. LEVACK-The current asking price?
MRS. EGGLESTON-Yes.
MR. LEVACK-It's been to $165,000, I believe, was the total that we were asking
for the total property.
MRS. EGGLESTON-$165,000?
MR. LEVACK-That' s correct. This is exclusive of the front properties.
MRS. EGGLESTON-SO, it's not the whole total lot? It's not the whole 30 acres?
MR. TURNER-It fronts on Country Club road and comes to the back of this property.
MR. LEVACK-see, you're kind of asking us questions that are hard to answer because
we in our own minds have been dividing this property.
MRS. EGGLESTON-SO, taking all of the 30 acres into consideration, what is the
current asking price?
MR. LEVACK-Do you kEint to add that up?
MR. NEWELL-If you can sell the two lots at $55,000 each, that would be $110,000.
MRS. EGGLESTON-Yes.
MR. NEWELL-The remaining acres ¡.¡:)uld be around $29. I think right now there's
some people who are looking at it but have not expressed any offers by way of
signed documents or otherwise, but I think the price, what is the price, $100?
MR. LEVACK-For the remaining 28 acres? $100,000.
MR. NEWELL-About $100,000. So, you're talking about an asking price, at this
point, of at or about $200,000, and that's assuming that you could get the use
variance on the front two lots. If you can't get the front two lots changed,
then the whole asking price, as you're looking at it, changes dramatically.
The $110 presupposes you could put two offices on these two front lots. If you
can't put two offices on these two front lots, then it's no longer $200,000.
you're probably under $100,000 at that point.
MRS. EGGLESTON-SO, since you purchased the property for an approximate $50,000,
have you done any improvements to it or does it stand as you purchased it?
MR. NEWELL-It stands as we purchased it.
MR. LEVACK-You've put a lot of soft costs into it, engineering, surveys.
MR. NEWELL-We haven't put any buildings on it, but we've had surveys. We've
had engineers go out there and try and tell us vi1at we have. So, we can talk
with the Department of Environmental Conservation and have, supposedly, a
knowledgeable discussion with them as to where the flags are to be. That didn't
do a vi10le lot of good, because they wanted to flag the whole lot.
MRS. EGGLESTON-see, the zoning says you have to show that you can't show a
reasonable return on the property as zoned.
MR. NEWELL-You cannot go back and say you only paid X number of dollars, and
as such, since you're getting a few dollars more, that's reasonable. What I
paid for it is irrelevant. The point is vi1at I'm able to get for it today on
current market values is vi1at controls. I think Mr. Dusek would back me up on
that. What I paid for it is irrelevant.
34
'~
MR. DUSEK-Yes. I would agree that the actual price, certainly, I don't know
if I'd go so far as to say it's totally irrelevant, but it's certainly not as
significant as HiJat the reasonable return is today, under the circumstances,
and what it would be if there were a use variance granted.
MR. NEWELL-I could have inherited this property and not paid a dime for it.
MR. TURNER-Okay. The last time around you indicated that between the two lots
you were going to put a roadway 50 foot wide to service the lot in the back.
MR. NEWELL-Tha t ' s correct.
MR. TURNER-SO, the lot in the back was going to be residential. Is that correct?
MR. LEVACK-RÍght. That's correct.
MR. TURNER-Now you're saying that since they flagged this portion of the property,
then the only place that you can put any residence is right here. Is that what
you're sa yin g?
MR. NEWELL-That's the only area that
residential, because then these two lots
Bay Road.
has any type of potential use as a
fM)u1d give this back lot a buffer onto
MR. TURNER-Oka y.
MR. NEWELL-This is all wet, and then you get back over here again.
MR. TURNER-All right.
right here?
Where's the division line of the wetlands? IS this is
MR. NEWELL-Well, I don't know how accurate that is.
let me see, is this from DEC?
I would venture to, well,
MR. TURNER-No.
MR. NEWELL-I don't think this is
of bowls out and then cuts over.
some time ago, by the surveyor.
DEC. I would venture to say DEC probably kind
I think that was a r,.a1kover map that we used
MR. TURNER-Oka y then, my next question is, how man y residents do you think you
could get on the back lot there?
MR. LEVACK-I wouldn't be in the position to comment on that with a lack of the
DEC flagged, an exact determination of DEC wetlands and a site planner's
evaluation.
MR. TURNER-You're saying that under the UR-1 acre zone, that because it fronts
Bay Road, that to exit there with the 8,000 cars a day creates a safety hazard?
MR. LEVACK-I'm not a traffic engineer. I wouldn't be in a position to determine
on an expert basis whether it's a traffic bay or not. All I know is we've been
marketing the property and nobody wants it as a residential property because
of the busy aspect of the road.
MR. TURNER-Okay.
What would make this change any different in the back, then?
MR. LEVACK-I don't know that that's even what's at issue here, is it?
MR. TURNER-I think it is. It's part of the overall picture. you want to split
thi s up, thi s 30 some odd acres, and di vi de it up in to two lots and put
professional offices on the road, and then you're saying to me that you're going
to put residences in the back.
MR. NEWELL-Mr. Turner, you're missing the point.
you toda yare these two lots.
The onl y thin g tha t ' s before
MR. TURNER-I understand that fully, but what I'm saying to you is, you're saying
to us you can't market these residences, but you can market these in the back
as residences.
MR. LEVACK-They're not even saying that. All we're saying is we would like to
have the ability to put offices on the back, on Bay Road, to get a reasonable
35
rate of return out of the property and that's all I believe the applicant's are
asking you for right now is the ability to do that, to get a reasonable rate
of return on their land.
MR. TURNER-Yes, but you're maintaining 50 feet of right-of-way here so that you
can build a road in there to further develop the property. Is that not correct?
MR. NEWELL-That's the absolute truth, but that's not the point.
MR. TURNER-No. I know, but I'm just addressing that issue.
MR. NEWELL-The point is those two lots in the front, and that's what we're trying
to deal wi th .
MR. TURNER-I understand that.
MR. NEWELL-Now, you may very well be able to market the back property because
of the two buffers that we have in the front, potentially, as residential. I
don't know. All I know is that from the day we acquired this property until
today's date, we cannot market this property, any portion of it, as residential,
period. So, with that idea in mind, we're doing this before this Board, and
have to cut out two one acre lots on Ba y Road to market those as cu1 tural
professional. That's all. We're not asking to put up a mill. We're not asking
the Cumberland Farms or a trailer park. All we're saying is r,ye'd like to put
an office building there that does not require a residence attached to it, period.
MR. RAYMOND-Garfield Raymond, part of the applicant, application. I'd like to
add the fact that the only offer that we have ever had was for a one acre parcel,
for professional use on Ba y Road. Tha t ' s the on1 y offer. Tha t ' s kh y we came
here, and that's khy we're addressing this, because that's the only interest
we have ever had on this piece of property, and in terms of what we're going
to do in the back, we have no idea. We don't know at this juncture, but as r,ye
keep indicating, we've had it. We've marketed it, and no one's had any interest
in it. The onl y interest tha t we've had shown in the last three to four years
is this front piece, and that's khy we're here.
MR. TURNER-Oka y.
MR. LEVACK-I'd like to just end my comments by saying that often times, and maybe
this isn't the objective of this Board to do a planning, okay, but sometimes
you stick to the strict adherence of your zoning, and that's khat you're here
for. I would say, you have the ability, here, this evening, to do the right
thing for the Town of Queensbury and the right thing for Bay Road, and I think
the vision of Bay Road that I have is one of a cultural professional Main Street
Queensbury, and not to allow the applicant to do that and to try to fulfill that
vision that I think a lot of people, and I know that the government here, on
higher levels, shares that vision, it would be a mistake. I would just urge
you, again, to try to see the vision of Bay Road, and I believe that's a vision
of cultural professional Main Street Queensbury.
MR. TURNER-Didn't you petition for a change of zone? Did you petition for a
chan ge of zone?
MR. NEWELL-What I did was, after the property was re-zoned, I filed the necessary
papers to take issue with that re-zoning, and with stipulations with the Town
Attorney that grievance procedure was put on hold, assuming and hoping that maybe
someday the Town 'ÑOuld come to its sense and re-zone this property the way it
sho u1 d be zon ed , beca use it's cl ea r 1 y, I think an ybod y who'd been in vol ved wi th
this particular recognizes that the property is not properly zoned. Be that
as it may, I'm stuck with it at this time until the powers that be re-zone it,
but for me to go to court and try to force a re-zoning is not a practical solution,
but right now I don't think the minds of the individuals kho could re-zone it
are such that they will re-zone it. This property is kind of an island. It's
UR-lA, when it's surrounded by other uses that are more intensive than that.
you've got, a cross the street, Hi ghwa y Commercial. you've got, on the southern
side, cultural professional. you've got office buildings. The thing doesn't
'ÑOrk any other way, but for cultural professional. They've re-zoned it this
~y, so I'm stuck with it, but as opposed to trying to get the whole property
re-zoned, all I'm trying to do at this point is to say, under the current state
of affairs, in order to have an office in that building, you've got to have a
residence attached to it, and what I'm saying is, I don't want to change the
world. All I want to do is to have someone be able to come in there to build
36
an office, and not have to live in it, because there's no one that's going to
come in there and build a home and have his wife and children living on a street
where there's 8,000 cars going up and down every day and have his office there.
It just doesn't make sense.
MR. TURNER-What happens to the value of the other properties that are adjacent
to you, that ~ residents.
MR. NEWELL-Well, there's two there, right?
MR. TURNER-Mrs. Larabee's one.
MR. NEWELL-Mrs. Larabee's been trying to sell hers for three years and she can't
sell it, and the people next door don't ob ject to this. So, the onl y people
we're talking about, and Mr. Raymond, he owns the property next door, and he
certainl y doesn' t object to it. So, there's onl y three people in vol ved, Mrs.
Larabee, who can't sell her propert y beca use it's zoned the wa y it is, and Mr.
Ra ymond who doesn' t object, and the lady who 1i ves next door to us, north of
us, doesn't object. So, you say, what happens to those people, I think they'd
be tickled to death to know that they finally could potentially market their
property so that it could be sold in cultural professional state because right
now you can't.
MRS. EGGLESTON-Mr. Raymond, these people say nobody would want to live, or these
people say nobody would want to live, a residence on Bay Road. You live there.
MR. RAYMOND-I also have another residence besides that one. I mean, but I'm
there. I'm single. It's just a question of economics for me, but you would
not want to raise any kind of family there. You would not want, it really is
not conducive to any kind of family environment, and I would like to point out
that Mrs. Larabee was here last time. She testified, stated that she couldn't
sell it. The lady next door, I've talked to her in the past, and she doesn't
care. There were restrictive covenants on this piece of property which prohibited
anything other than a residence. All these people joined in to remove those
restrictions. So, they know that it's basica11 y a.
MRS. EGGLESTON-Is the lady next door who doesn't care, is her property for sale,
or is she going to stay there as a resident?
MR. RAYMOND-The last time I was aware of, what she was going to do is she planned
on staying there until she couldn't function any more, then she was going to
go live with her children.
MRS. EGGLESTON-Okay.
MR. RAYMOND-She does not own it. Her children own it at this stage.
MRS. EGGLESTON-Oka y.
MR. NEWELL-I've got a few more questions for Mr. Levack, and I'll be satisfied,
for the record. Now, you're familiar with the property across the street being
Highway Commercial?
MR. LEVACK-Correct.
MR. NEWELL-And you're familiar with the property adjoining this particular lot,
or these lots, the zoning designations?
MR. LEVACK-Yes, that's correct.
MR. NEWELL-Do you have an opinion as to whether or not, if this use variance
was granted, whether or not this will adversel y effect the character of the
locality? In other words, if this Board saw fit to grant a use variance, would
this adversely effect the property across the street?
MR. LEVACK-No.
MR. NEWELL-Would
MR. LEVACK-No.
it adversely effect any of the properties surrounding it?
MR. NEWELL-Would it adversely effect the locality, any of the property in the
immediate locale?
37
MR. LEVACK-No.
MR. DUSEK-Mr. Chairman, may I ask Mr. Levack just one more question?
MR. TURNER-Yes.
MR. DUSEK-The area, I think you testified a little earlier, the area to the north
is zoned UR-lA as well?
MR. LEVACK-I believe it is. Yes. correct.
MR. DUSEK-And how far does that zone travel up Bay Road, do you know?
MR. LEVACK-How many feet? How many parcels?
MR. DUSEK-Whatever gJu know.
MR. LEVACK-I believe it runs up to the property where Bay Bridge Townhomes are
loca ted .
MR. DUSEK-Okay, and Bay Bridge Townhomes, that's residential as well?
MR. LEVACK-That's correct. It's multi family residential.
MR. DUSEK-Okay. The problems that Mr. Newell and Mr. Raymond have raised with
regard to their particular lot, would you say that the other parcels have the
same type of problems, in terms of, that they're just not practical for
residential?
MR. LEVACK-No. They're definitely not the same types of problems. I think they
have a unique set of problems here.
MR. DUSEK-And could you maybe expand on that? How is it that they're unique,
as opposed to?
MR. LEVACK-Wel1, the other parcels are zoned MR-5, which a110w.& for a multi family
density, which is, I think, conducive to the Bay Road corridor. The Newell and
Raymond property is zoned UR-1A, which is more of a residential zone. Even though
it does allow for a duplex, it is more of a residential zone than the MR-5 majority
of Bay Road.
MR. DUSEK-And how is the difficulties that Mr. Newell and Mr. Raymond have
different than the other properties that are zoned UR-lA?
MR. LEVACK-Wel1, they are directly across the street from a Highway Commercial,
zoned HighTM3.Y Commercial property, directly across the street from it.
MR. RAYMOND-Can I clarify something here. In terms of the other properties,
I believe the UR-lA, there's only one additional parcel that's zoned UR-l acre,
to the north of us, and that is the land which has been designated as a wetland.
So, that, I don't think, is really conducive to anything, because basically that's
the floodplain area. So, that the UR-l acres, for some reason, the Town found
that when they changed the zoning, they carved out a nice little niche which
was £££ property, the property adjacent to us on the north, and I think a little
parcel behind us, and that's the only UR-l acre property in all of the Town of
Queensbury. There is no other UR-1 acre.
MR. LEVACK-Which I think makes their situation a little more unique, and how
they're adversely effected a little more unique, and I think that's ~y they're
here makin g their claim.
MRS. EGGLESTON-And on the other side of the road, how far north does the HighTM3.Y
COmmercial zon ego?
MR. LEVACK-It ¡¡pes, I should have brought a map, because I don't have those exact
distances.
MR. WRNER-It's right here on the map, cronin ROad.
MR. LEVACK-From cronin ROad north, you're asking how far north up Bay Road it
does go HighTM3.Y Commercial.
MR. WRNER- It ¡¡pes up about where Pa tt y Lupo' s .
38
MR. LEVACK-Lupo's boat service, right.
MR. RAYMOND-I'd also like to add that when they put in Baybridge, Valente, when
he was here, they did their proposal, if you're familiar with Baybridge, they
did all the residentia1s way in the back, and I think the long term plan of that
is where they're going to have their, I don't know if you'd call it the commercial
portion, but the swimming pool, the tennis courts and such, are going to be up
by the road. I believe that that was part of the original plan, and that was
one of the reasons, because of the high traffic area, and that would not be
sellable, even though that is an MR-5 now. So, I think that that was part of
their reason.
MR. LEVACK-I'd like to comment on that further, in that I have spoken directly
to Liz Valente and it is their desire to view that frontage parcel as a cultural
professional development. So, again, it would conform with the use that they're
asking for, and how it is conducive to Bay Road. I don't think anybody that
owns property on Bay Road right now, with an MR-5 zone that allows for cultural
professional office building, has any desire at all, whatsoever, to put a residence
on the frontage property on Bay Road. It's not been my experience.
MR. TURNER-You said there's a UR-l acre north of that piece of property?
MR. RAYMOND-Yes.
MR. TURNER-How far north?
MR. RAYMOND-It's right adjacent to it.
MR. CARVIN-But it's a total wetland.
MR. TURNER-The Moeller property?
MR. RAYMOND-Yes. That piece is UR-l acre.
MR. TURNER-Okay. yes, but that encompasses that whole zone. It's not separate.
It's just all tied in together.
MR. RAYMOND-That's rJ1at I'm saying.
acre area.
It's a1 together.
That is the only UR-l
MR. TURNER-Okay. Any further testimony? Okay. I'll open the public hearing.
;;QIJC ¥III:1flUNG oPØIIlD
MR. MOELLER
MR. MOELLER-Well, I'm kind of neutral. Moeller, to the north of this. I've
heard some things here tonight that I totally disagree with. It doesn't mean
that I necessarily object to their proposal. First of all, it's my understanding
that along Bay Road now, in subdivision, the minimum length is 300 feet. Is
that correct, not 150 feet?
MR. TURNER-Twice the lot width, yes.
MR. MOELLER-Okay. Now, I live on Bay Road. I'm north of this property,
residential, very happy there, very happy. I would move there any day of the
week. I can put up with a little traffic. It's a little bit heavy at times,
but it's a perfectly nice area to live in, and I'm very happy to have all those
wetlands around me, and this piece of property here, it's my understanding quite
a considerable amount of that is wetlands, and that's essentially what I wanted
to tell you.
MR. TURNER-Mr. Moeller, can I ask you a question? You came here one time for
a variance for what, your property? Didn't you come for a variance?
MR. MOELLER-This ~s for my brother. My brother and I inheri ted tha t propert y
down there, and there was a consideration, here, of me giving him half of his
property, half of the property going in, but considering all the rules and
regulations and what have you, it was easier for me to buyout his interest.
MR. TURNER-(j{ay.
MR. MOELLER-He wasn't particularly interested.
He lives down in Tennessee.
39
MR. TURNER-Oka y.
time.
I knew you weren't the same gentleman that came that other
MR. MOELLER-How long KaS this, now?
MR. TURNER-Ten years, maybe.
MR. MOELLER-Tha t was my fa ther.
MR. TURNER-Oka y.
MR. MOELLER-see, my brother and I inherited that property.
MR. TURNER-Oka y.
MR. RAYMOND-You raised an issue that I'd just like to make a comment on. Garfield
Raymond. In terms of the, they did make an application for a variance. They
were going to be putting a professional building, which was going to be a
professional office building to the north of them. Up to your property, to where
your residence was. That' s ~en Carusone and Muller were dealing with it to
put a law office up there, and I know that that was here.
MR. TURNER-Yes, I do, too.
MR. NEWELL-The lot sizes, I think some reference was made to, we're in conformity
with the Town Law which would permit us to cut it up at 150 in the front, 300
in the back.
MR. TURNER-Yes, you've got the width.
the public hearing is closed.
An yone else wish to be heard?
Okay.
Pl1MJC lfIIEMJtlfG CUJS'/l:D
MRS. EGGLESTON-Should this have gone before the Planning Board?
MR. TURNER-No.
MRS. EGGLESTON-This doesn't have to cp?
MR. TURNER-No. They haven't cpt it yet.
MR. RAYMOND-It was previously before the Planning Board.
MR. TURNER-It was before them.
MRS. EGGLESTON-Yes, the last time it was.
MR. TURNER-Yes.
MR. RAYMOND-But this KaS on a remand to come here.
MR. NEWELL-The Planning Board unanimously approved this use, the County Planning
Board.
MRS. EGGLESTON-Yes, the warren County Planning Board, but this time we didn't
do that. Should we have? Should it have gone to the Planning Board?
MR. TURNER-Did it cp?
MRS. EGGLESTON-Back in April.
MR. RAYMOND-I don't think it's required to cp back to the Planning Board.
have already unanimously approved it.
They
MR. TURNER-Right. If they adopted it, it wouldn't have to cp, I wouldn't think.
MR. DUSEK-Yes, I think you're all right.
MR. TURNER-Oka y.
MRS. EGGLESTON-Okay.
40
MR. TURNER-Any discussion?
MR. CARVIN-Well, the on1 y thin g I'd like to add, I guess, is tha t I know tha t ,
as a fairly newcomer to the Board, that the Board has shown in the past, at least
my experience is that they've been very reluctant to allow other uses that aren't
already described, as this l«>u1d be. I also, I guess not satisfied with the
efforts to advertise this as it is currently zoned, and I just have a lot of
problems granting that up in there, at this point.
MR. TURNER-Okay. Anyone over here?
MRS. PALING-I have one question.
that correct?
When you purchased it, it was zoned MR-5, is
MR. NEWELL-That's correct.
MRS. PALING-And what did you intend to do with that, then?
MR. NEWELL-At that point, we gave some serious consideration to developing it
ourselves. Shortly after that, the zoning changed, which created, to say a serious
problem would be the understatement of the year.
MRS. PALING-Okay. Thank you.
MR. RAYMOND-We had multi problems.
it, the DEC came in. That was not
it. So, that made it even two fold,
It was originally UR-5, before
a desi gna ted wetlands, and then
after we purchased it.
they changed
the y fla gged
MR. DUSEK-The Board may wish, on this one, because it is a use variance involved,
there's two things I think I would recommend to you. One, you may wish to just
briefly discuss the criteria that are listed for the use variance before you
try to formulate a motion. The other thing you should do, though, is there a
SEQRA Review as part of your packet here?
MRS. EGGLESTON-I believe there is, yes.
MR. DUSEK-You l«>u1d have to entertain your.
MR. TURNER-It's an unlisted action, so we'd have to address that.
MRS. EGGLESTON-The Short EAF FOrm.
MR. DUSEK-That you could do at any time, but you should definitely do it before
the motion is made, one wa y or the other, on the project.
MR. TURNER-All right. Lets address the issue of the criteria for a use variance
first, then we'll. All right, A. will there be exceptional or extraordinary
circumstances applying to the property and not applying generally to other
properties in the same district? Unnecessary hardship to the applicant?
MRS. EGGLESTON-Well, Mr. Levack says it's lUJique in that there's Highr,oay Commercial
across the road from it, if that makes it unique or exceptional or extraordinary
circumstances. Would you say?
MR. TURNER- I don't know. It's not developed yet.
MRS. EGGLESTON-That's true.
MR. TURNER-AI though it's zoned Hi ghwa y Commercial, it's not developed yet.
MRS. EGGLESTON-Tha t ' s true.
MR. TURNER-If there was something there, I'd say.
MRS. EGGLESTON-Maybe that would make it exceptional or extraordinary, like if
there was a bar across the street or something that made it offensive to the.
MR. TURNER-Well, you know, my problem with it is there's residents right along
there. That's my problem with it, and just to single that out, like I said before,
if they should go for are-zoning, if they feel strong about it.
41
MRS. EGGLESTON-There's no change in
which the applicant has had no control.
the lot size or shape or topography over
So, that hasn't changed, right?
MR. TURNER-Right.
MRS. EGGLESTON-The property in question cannot yield a reasonable financial return
if used for any permissible use or site plan review use applicable to the zoning
district, and I agree with Fred somewhat with a little bit of a problem here
in the word "reasonable financial return", and there seems to be something about
the advertising that people are immediately turned off, and I don't know the
reason for that because Mr. Levack couldn't tell us exactly how. Would he be
deprived of his property rights without, if we didn't give the variance, and
I don't think he would be because there are other people right next to him with
residential home, in fact, one's going to stay residential.
MR. TURNER-Yes.
MRS. EGGLESTON-SO, what would we be doing to that property, are my thoughts,
as well, just my own thoughts.
MRS. PALING-Joyce, didn't those houses there, though, long before the character
of, they were changed, and they're home to those people, and that's where they're
going to stay, but would they, if they had a choice, stay there in those
residential homes?
MR. TURNER-One has indicated that she will.
MRS. EGGLESTON-I guess !:pur question might be, would they buy there today?
MRS. PALING-Yes.
MRS. EGGLESTON-Yes, would they buy there toda y, but still you have to protect
their rights. I mean, that doesn't mean they have to move away because you want
to change the neighborhood, do you know what I mean? Would it conflict with
the objectives of any plan or policy of the Town? Ted, you might answer that
in that, what, you were on the committee that made this the zone that it is.
MR. TURNER-It's an Urban Residential zone which encompasses environmentally
sensitive land and areas of intense development pressure.
MRS. EGGLESTON-SO, it is environmentally sensitive, right, with the wetlands
and whatnot?
MR. TURNER- Ri ght .
MR. CARVIN-I just think that I'm more comfortable seeing it, like you said, Ted,
re-zoned to MR-5.
MR. TURNER-If there's a great concern up and down that alleyway that they're
zoned wron g then they should go to the Town Board and get it re-zoned. yOU don't
have to come to us and ask us to pick out two parcels and and give them the use
of it.
MRS. EGGLESTON-And actually in a kElY it's
whole subdivision process vJ1ich in a way
gone through the subdivision process, at
and en gineers and roads and wha tever .
subdividing without going through the
isn't fair to other people who have
great expense, with topographic maps
MR. DUSEK-Well, in the subdivision process, they'd still have to go through that.
MRS. EGGLESTON-But not to the extent of the whole section.
MR. DUSEK-Right, but I don't think you rMJuld want to, from a legal reaction,
I just don't see how that's relevant to the criteria. Just to caution you on
tha t .
MRS. EGGLESTON-All right.
MR. TURNER-Any further discussion? We've answered all the questions. All right.
Do you have a motion?
42
---"
IIOfiOll ro' DENY USE VARIANCE NO. 35-1992 RONAIJJ L. NBWBLL GARPIBUJ P. RAYMOllD,
Introduced by Joyce Eggleston who moved for its adoption, seconded by Fred Carvin:
I don't believe that strict application of the Ordinance would result in any
unnecessary hardship to the applicant, and at this point in time, I don't believe
that there's anything exceptional or extraordinary applying to the property and
not applying generally to other properties in the neighborhood. I don't think
the applicant has demonstrated that a reasonable return cannot be met if he were
to advertise the property as zoned, and I believe denying the variance is necessary
for the preservation of the property rights of the adjacent private residential
dwellings. I believe the variance would be detrimental to the purposes of this
Chapter in that it's not within the TOM1' s overall master plan.
Duly adopted this 23rd day of September, 1992, by the following vote:
AYES: Mrs. Paling, Mr. carvin, Mrs. Eggleston, Mr. Turner
NOES: Mr. Thomas, Mr. Sicard
ABSENT: Mr. Philo
MRS. RAYMOND-Now, at this stage, we have a right to ask for reasons to be set
forth on the record as to each one's decision. I'd like to have that done of
those that vote against it. I want you to state your reasons, on the record,
as to wh y you decided.
MR. DUSEK-What are you relying on for that?
MR. RAYMOND-Wha t am I re1 yin g on?
MR. DUS8K-Yes, what section of the law requires that?
MR. RAYMOND-I couldn't tell off the top of my head. Well, I'm going to make
that request. They don't have to do it if they don't want to, as part of the
record.
MR. DUS8K-Yes, I just didn't know of any section of the law that requires that.
MR. RAYMOND- I don't know of an y ei ther , but I'm goin g to make tha t request.
I'm going to ask that they explain it. If they don't want to give their reasons
as to wh y they made their decision, I think tha t they have to have bonafide,
legitimate reasons to set forth their decision. All we have is a proposal, a
resolution, and if we're going to take another appeal, I want to have that as
part of the record.
MR. DUS8K-Wel1, now I think the resolution that was adopted set forth reasons
~y they were denying the variance. Prior to adopting the resolution, they had
a discussion.
MR. TURNER-Do you withdraw it?
MR. NEWELL-No. He made his application.
and we're going to let it go at that.
The Town Attorney has made a ruling,
MR. TURNER-Okay.
MR. DUS8K-I haven't made a ruling on this.
make the rulin g.
Tha t ' s up to the Zonin g Board, to
MR. RAYMOND-Well, you made a recommendation that they not do that.
MR. DUSEK-No. I haven't said that. What I'm merely suggesting is that in the
resolution that was adopted, they stated reasons.
MR. RAYMOND-Well, I'm only asking, make a ruling on it.
to answer or they're not.
Ei ther the y , re goin g
MR. TURNER-I don't think we have to, Mr. Raymond. The reasons are well stated
in the motion, wh y the peti tion was denied, and therefore the motion stands as
submitted.
MR. RAYMOND-That's fine.
43
MR. TURNER-Yes. (10:43 p.m.)
MR. DUSEK-Mr. Chairman, before you take this next applica tion, could I just ask
the Board one brief question? There was an application before the Board at the
last meeting, entitled, Evans. I can't remember the exact item, but it got brought
to my attention that, and I just wanted to be sure I got this correct, but I
believe the Board intended to rehear that application next month. Is that my
understanding?
MR. TURNER-I was going to discuss it at the end of this. We didn't get a chance
to do it last time, because it was 12:30 before we got out of here.
NEfi BUSINESS:
AREA VARIANCE NO. 94-1992 TYPE II CR-1.5 DOUBLE A PBOVISIONS CMNER: BENJAMIII
L. ARONSON CORNER OF liMN AND SECOND STREET PROPOSAL IS FOR PIJICBIIIJrr OF A
COOLER ADJ1ICElfT TO EXISrING FRBllZllB MID COOLER. PERlIæ:NJILITY fiILL BB LESS TH1Il6/
THE REOUIRED 30 PBRClllfr. (fiARREII COUIII'W PLMlfING) TAX MAP 1110. 134-6-1. Lal'
SIZE: 26,400 SO. Fr. SllC'8TOlI 179-24
LOU ROTH, REPRESENTING APPLICANT, PRESENT (10: 43 p.m.)
MRS. EGGLESTON-And the W!irren County Planning Board returned, "No County Impact".
srgl' INPUr
Notes from Staff, Area Variance No. 94-1992, Double A provisions, September 21,
1992, Meeting Date: September 23, 1992 "project Description: The applicant
is proposing to construct a cooler adjacent to an existing freezer. The applicant
needs an area variance to allow less than 30% permeability on the site. variance
Anal ysis: 1. The practical difficu1 t y re1a tes to the fact tha t the propert y
is currently over-developed in terms of percent of permeable space. Any new
construction on the site would not conform to current permeability standards.
2. This appears to be the minimum necessary to alleviate the practical difficulty.
The other alternative would be to make interior modifications for the cooler
or convert the existing dock, which is adjacent to the location of the proposed
cooler. 3. The only probable detrimental effect to the neighboring property
is drainage. Care should be given to ensure that the addition will not alter
drainage patterns and cause runoff to go onto adjacent properties. 4. The
proposed variance should not effect public facilities or services."
MR. ROTH-I'm Lou Roth appearing here for the Double A Provisions tonight, and
as I said, to have mercy on you folks, I've done up, I think, a prett y concise
statement that will answer the questions that you may have, and I have copies
of it that I can give you afterwards if you'd care to have it. Would that be
the most expeditious ~y to go about it?
MR. TURNER-Yes. I would say.
MR. ROTH-Benjamin Aronson, owner of Double A Provisions, located at the corner
of Main and Second Streets in Queensbury, seeks an area variance to place a 14
foot by 40 foot produce cooler next to an existing freezer and cooler. The
business site and vicinity is zoned residential commercial, and the additional
cooler conforms to existing use. The additional cooler will not be detrimental
to neighboring properties, nor to any town plan or policy. It'll have no effect
on public facilities or services. The reason we need the variance is because
of Section 179-24 of the Zoning Ordinance. The business site is developed and
already does not meet the 30 percent permeability requirement of the Town of
Queensbury. The site has the building, freezer, and cooler, loading dock and
parking facilities for trucks, customers and employees. There's a 25 foot by
25 foot area of grass rJ2ich will be maintained. The parking is on stone, not
blacktop. There's no ~y the land can be more economically used or that drainage
facilities may be added. There has not, at any time in the past, been a drainage
problem on this property. The additional cooler will not alter existing drainage
patterns nor cause any runoff on adjacent premises nor effect public facilities
or services. The cooler will not release water and any condensation will drain
into the internal drain system of the cooler. It can barel y be seen from Main
Street and will not be unsightly. We'll make certain that it matches the existing
facilities, and it will be built in and built according to the plan submitted.
There will be no outside doors or windows, and traffic will not be impacted either
by trucks driving up to this cooler or otherwise. This is the least we can ask
of the
44
Town to alleviate the difficulty we face. Double A cannot modify the interior
of the premises to accommodate this additional cooler. Virtually the entire
building is a cooler and there's no space inside in which to place this cooler.
We cannot convert the existing dock as it is the only dock, and it is essential
and it's used to the maximum, at this time. We have no alternative but to seek
to add the cooler in this KaY. Double A needs this provision at this time because
it deals in wholesale meats and provisions, and has been in business for many
years. This is the age of the full service supplier. Before, a business like
Double A would simply supply meats, while another company would supply produce
and another different items, but now businesses, for the sake of time and price,
want to receive a variety of goods from one company. This additional cooler
will allow Double A to supply that greater variety of goods and fill the needs.
It really will be a hardship to remain competitive in this business market without
the additional cooler. And that's basically our proposal, ladies and gentleman.
We have Frank Leo here who's a local contractor. He's available at any time,
to this Board. He will supervise the construction. He'll answer any specific
questions Ipu have about the construction. I hope that was brief enough for
Ipu.
MRS. EGGLESTON-I just was going to say, Mr. Dobert was here for a variance less
than a year ago, I believe.
MR. CARVIN-He was here on April 15th of this year.
MRS. EGGLESTON-April 15th, and at that time, we gave him a variance for the cooler
that's there within tl\O feet of the back property line, and we really hated to
do that, but we did it out of a sense of him needing and trying to help people
to keep their businesses and whatnot <;ping without intruding on the neighbors,
and I think at that time we told him if he came back again we would be hard pressed
to give another variance, and in fact, I think we said, get it this time, because,
and now I see signs in the yard where trucks are driving on the neighbors lots,
across the road. I mean, I know there's problems there with traffic and I just
can't see another variance here. The property is just maxed.
MR. ROTH-Well, we have the tl\O existing coolers. We want to put another one
on. The sign you saw was, a neighbor ~ protesting that certain trucks were
pullin g into his Iþlrd and so on.
MRS. EGGLESTON-Legitimately so.
MR. ROTH-Well, that was immediately dealt with by Mr. Aronson, here, and I believe
there's been no repetition of that problem.
MR. CARVIN-Well, if I might expand on ~at Mrs. Eggleston has commented, in the
discussion on that cooler, the previous cooler, we did ask if it could be put
where you are proposing to put this cooler, and the argument at that point was
that the trucks back into there, and because the equipment was a $20,000 piece
of equipment, we're going to have difficulty maneuvering into that back loading
dock, and now here it is four or five months later, and you're coming before
the Board requesting a much larger cooler in a spot that was unsuitable four
or five months ago. I mean, that's the problem I have with this application.
MRS. EGGLESTON-Exactly.
MR. ROTH-I see. Frank, do you have any thoughts on that, with regard to the
traffic pattern of what happened four months ago?
FRANK LEO
MR. LEO-As far as the traffic pattern, it really isn't changing much. It's just
that his business is expanding so much that we need the room.
MR. CARVIN-Well, that was addressed also.
MR. LEO-We're not putting any trucks or loading docks in the back of where we're
putting this cooler.
MR. CARVIN-The question that comes up in E!Jl mind is, if
cooler before, would we have this 50 percent problem?
it looks like we've got about 15 coolers goin g in there.
we had not allowed that
I don't know. I mean,
MR. ROTH-Well, no.
one other cooler.
There's only the existing cooler and freezer, and this is
45
MR. TURNER-Do you still have an option on that piece of property?
MR. LEO-The piece of propert y in the back, right.
MR. TURNER-Yes. can he exercise his option or not?
MR. LEO-Well, he's trying to exercise his option, but the people who OM1 it aren't
exercising real fast. So, he's sort of waiting on them.
MR. TURNER-All ri ght. Well, do you know where it is, as far as progress?
MR. LEO-As far as progress, I guess the owner's supposed to be up some time ei ther
later this month or the beginning of next month and they're supposed to come
to some kind of agreement on tha t. Tha t ' s as far as he's gotten.
MR. ROTH-I don't know the state of that, as far as the legalities. If it would
he1p~, I could find out.
MR. TURNER-Is this the house that fronts Main street, or is this the house that
fronts Second street?
MR. LEO-The house that fronts Second Street.
MR. TURNER-(j{ay. That's this one over here. That's not that one.
MRS. EGGLESTON-Yes. That's the same one, right in back, that we let him put
the cooler within tkO feet of his property line.
MR. THOMAS-Is that what that, down at the bottom there it says proposed new cooler,
that's the one you gave the variance for in April?
MR. TURNER-Yes.
MR. THOMAS-All right.
MR. SICARD-What's this existing dock, here? What does that dock feed?
that feed the back end of the store or the back of?
Does
MR. TURNER-There's a set of doors there, isn't there, Frank?
MR. THOMAS-What's this with the house here and this over here? I'm lost. you've
got this house at 162 Main.
MR. LEcrThat has nothing to do with us. This is ~ere we are over here.
MR. SICARD-What is this?
MR. LEO-I don't even know what that is, to be honest with you. There's a house
there. This is the loading dock we've got here.
MR. SICARD- I kno w tha t .
MR. LEO-This is ~ere we're adding, the house here, and the property we're trying
to buy is here.
MR. TURNER-What are the contents proposed for that cooler?
MR. ROTH-It's produce, sir.
MR. TURNER-Produce?
MR. ROTH-Yes, sir. We have a meat cooler, and now we need the produce. As I
told you, you've got to ha ve it all if you're goin g to sta y competi ti ve.
MRS. EGGLESTON-Well, sometimes !pu can't have it all.
MR. CARVIN-It maxes out at some point.
MRS. EGGLESTON-There comes a point when there's just no more room left on the
property.
46
MR. ROTH-You see, Frank is doing the construction. I'd ask him, though, isn't
this more or less going to square off that back area?
MR. LEO-It's goin g to square off the ba ck of the bui1din g, but we're not comin g
towards the homes.
MRS. EGGLESTON-But that's vi1ere we wanted their cooler to go, and they had, he
said it absolutely could not go there.
MR. CARVIN-That was the argument that was presented, that a tractor trailer comes
in there and dings that, and you've got a $20,000 piece of equipment.
MRS. EGGLESTON-Yes, because we didn't want to intrude on the back neighbor.
We didn't want to go within two feet of the back property line.
MR. LEO-Well, the other cooler that we just built is an altogether different,
you know, it's got it's own refrigeration system and everything else. The one
that we're proposing to put on runs off the refrigerat;.ion of the existing
buildings. So, there's no coolers or equipment outside.
MR. TURNER-Yes. How are you going
here that's marked "deck"? 'Phis
How are you going to access that?
to access the deck in the back, this one right
kSS the contention of the argument before.
MR. LEO-Okay. He's got a doorkSY here, and he's going to come in through here.
There's going to be no trucks or anything back here. He's going to run everything
from the inside.
MR. TURNER-You're going to run a doorr,.ay in here, and then out here?
MR. LEO-There's a doorkSY here now. Okay. There's a little cooler here right
now. The doorway here would go right through.
MR. TURNER-Are you going to load this from that side or this side? 'Phe front
or the side?
MR. LEcrGoing in through this door. There's going to be no outside doors. There's
a doorway here that goes to the inside. There's another door that goes into
the cooler that's here.
MR. TURNER-Right.
MR. LEO-It's goin g to come through, and then ri ght through here.
MR. TURNER-You're goin g to load tha t cooler from there?
MR. LEO-From there, more or less.
MR. TURNER-You're going to back your trucks in here or what?
MR. LEcrNo. We're not putting any trucks back there at all.
MRS. PALING-SO that everything that goes in here gets loaded out here? I see.
MR. TURNER-It's going to get unloaded here. It goes through this hallway, through
that door, through that door, and into this cooler, and then the same wa y when
you take it out.
MR. LEO-The same thing with the cooler we just built here.
MR. TURNER-Yes, but it's all coming back out here.
MR. LEO-There's no outside doors.
MR. TURNER-Okay.
MRS. EGGLESTON-Did they just say there's a little cooler in here?
MR. TURNER-Yes, right here.
MRS. EGGLESTON-When kSS that put there?
MR. TURNER-Tha t was there.
47
MRS. EGGLESTON-No. When was that put here?
MR. LEO- I real1 y don't know.
MRS. EGGLESTON-wi thin the past year?
MR. LEO-No, no.
MRS. EGGLESTON-A long time ago.
MR. CARVIN-It's been there quite a while.
MRS. PALING-There's going to be no trucks coming in here?
MR. TURNER-No trucks there.
MRS. PALING-They're all going to be over here.
MR. TURNER-They're going to rmload from the front loading dock to service those
two coolers in the back and this one, the one tha t faces Main street.
MR. THOMAS-I just want to make sure that there's going to be no truck entrance
in off of Second Street.
MRS. EGGLESTON-There already is trucks in there, though. I don't knowhow you're
going to stop them. They're in there all the time.
MR. LEO-Right. There's trucks in there that are parked, but we're not loading.
Loading and unloading is through the back of the building. They're going to
be parked there like they're parked there now. They all back in there and they
park there, but they don't load and rmload there.
MR. SICARD-Do they have to back in there when they park there? You can understand
what we're thinking about is trying to keep trucks out of there early at night
and early in the morning ~en they get in and out of there, and you do start
early.
MR. LEO-Well, they don't back way in the back of the building. They're on the
side over on second Street. They back up against the building on the Second
Street side, is ~ere the trucks usually come.
MR. SICARD-You're talking about up next to the new cooler, in this area back
here.
MR. LEO-We're not backing any trucks in there. They way we park the trucks now.
MR. SICARD-I know where they park. I know about this. I'm talking about this.
MR. LEG-No, there's going to be no trucks backing in there.
MR. SICARD-NO trucks there, parked or otherwise?
MR. LEO-No.
MR. SICARD-Would you be willing to put a couple of posts up there to indicate
tha t there won't be an y t rucks there?
MR. LEO-I don't see any problem with that.
MR. THOMAS-Why couldn't you take that cooler and slide it doT¡>l7. this we y?
MR. LEO-Because there's a dock here now which accesses us back here.
MR. SICARD-But you said you r;..eren't gJing to have any loading or unloading.
That's an a1ley...,ay, really, doT¡>l7. there now.
MR. LEO-No. What we do is r;..e bring the stuff to here with on cally jacks.
MR. SICARD-That doesn't ansr;..er his question, though. Why couldn't this cooler
be pushed do T¡>l7. in there. you're not usin g thi s we y a tall.
48
MR. LEO-Because of one construction reason, this ~uld all have to be ripped
out to be pushed over here. The way a cooler is built, versus the way a dock
is buil t, there's no insula tion or an ythin g for this dock to be built on here.
All this ~uld all have to be torn out to move it over that way.
MR. TURNER-You're going to have to destroy the dock, but you're still going to
have to put the foundation in for the cooler no matter what, whether !pu put
it put front or whether !pu put it in the back. The onl y thin g !pu' re goin g
to eliminate is the dock. correct, if you go back.
MR. LEO-Right.
MR. SICARD-Mr. Chairman, he's indicated that they'd be willing, up at the end
of the proposed new cooler, that they would put a couple of posts so that there
would be no traffic back there at all, no parking any trucks of any kind. So,
that would alleviate noise to the neighbors parked right there.
MR. TURNER-Frank, is this going to cp the full height of the building, that the
coolers are there now?
MR. LEO-No. The whole height of the building, I think, is about 25 feet now.
The height of this cooler is only eight foot.
MR. TURNER-(jcay.
MR. SICARD-How about fans. Will they be on the top of that cooler?
MR. LEG-No. Ever ythin g' s on the inside the cooler.
MR. SICARD-They'll be no outside motors or fans?
MR. LEO-No. No noise at all?
MR. LEO-No noise at all.
MR. TURNER-(j{ay. Any further questions of the applicant? Okay. I'll open the
public hearing.
~ llUlUlllG 0'HJØ:þ
lIfIJ· caN1œIfJf
NlaUC lI.llMDIG Cli/I'J/$Jßþ
MR. TURNER-Any further discussion?
MR. CARVIN-Ted, can I get a clarification on the permeable?
MR. TURNER-It's 50 percen t.
MR. CARVIN-(jcay. What does that take into consideration?
MR. TURNER-The open land, nothing covering the blacktop, no blacktop.
MR. CARVIN-Well, I mean, if he were to take do~ this other one and put this.
MR. TURNER-Which one?
MR. CARVIN-The little one. Would he be close to the permeable, or is this thing
so far over?
MR. TURNER-That's a brand new one. He's not cping to take that one down. He
won't take that one do~. We've already granted him a variance for that one.
MR. CARVIN-Well, I'm just looking at how to make it conform. I don't know.
MR. TURNER-I don't really think you can, Fred. They've just run out of room.
They're maxed out. They're really maxed out. That's the question, do you grant
him the relief on the permeability and not violating any setbacks.
MR. SICARD-Do you propose to have a grassed in area on a corner, where the trucks
are parked now, with the sign on it? IS that we're you're talking about, retain
that grass area there?
49
MR. LEO-Yes. Right.
MR. SICARD-What size would that be, 25 by 25?
MR. LEO-About 25 by 25.
MR. SICARD-What are you going to do with the truck, with the sign.
MR. LEO-There is no sign there. He had a truck there.
for probably six months to a year.
It hasn't been there
MR. SICARD-I can see no parking in the rear of the new cooler, the whole rear
of that building, no parking and no traffic.
MRS. EGGLESTON-It's not goin g to happen.
MR. SICARD-I know it, unless !:pu put the two posts up there, but in view of the
fact that they're getting ready to buy that property, I don't know how closer
or how far away they are. It would make a big difference, permeability wise
and everything else.
MR. WRNER-Yes.
MR. SICARD-I don't know how big that property is. I can't visualize it.
MRS. EGGLESTON-It's probably only a 50 foot front lot, I think. I mean, it's
small, but still and all, it would make a difference to the Double A lot.
MR. SICARD-In the meantime, they're not using is for business. This is the problem
that we're faced with.
MR. WRNER-All right.
They're coming up this month, I think you indicated?
MR. LEO-That's ki2at he said.
MR. SICARD-That freezer could almost fit in there, wouldn't it?
MR. WRNER-Where's that, charlie?
MR. SICARD-Q:l the front, right next to the loading dock. It would stifle the
loadin g dock down to just.
MR. WRNER-Yes, but they load from the end and they load from the front.
MR. SICARD-The cost of having a freezer, though, they could load from the front
only, couldn't they?
MR. WRNER-Yes.
21 feet.
It wouldn't change anything, only just the distance back here,
MR. SICARD-It would get it out from behind.
MR. WRNER-Yes.
MR. SICARD-The permeability wouldn't be effected, but at least.
MR. WRNER-Yes. Well, it's only 50 feet from the road, and he's got 14 there
and he's got 14 proposed for the cooler. He'd eliminate his ability to load
trucks in the fron t , bein g tha t he's got so man y trucks. He's not goin g to be
able to process the stuff through there fast enough to get it in and out.
MR. SICARD-see, that dock is 14 feet and so is the cooler. So, it would fit
right in there, but I realize that they would lose the end loading dock, but
it's case of losing that or losing everything. I don't know. There's no
permeability in there now because they're loading trucks there now. So, you're
not losing any permeability, actually, are you?
MR. WRNER-No.
MR. SICARD-They've got 21 feet of loading space, so they could back at least
tAA? trucks up there in the front.
50
MR. TURNER-Yes.
MR. SICARD-It would alleviate any more traffic than they've got there now, as
far as noise to the neighbors is concerned.
MR. TURNER-Would you consent to tabling the application until we get a
determination as to the outcome of the other piece of property, at this point?
I think that's a smart way to go.
MR. ROTH-Yes.
MR. TURNER-I think to table the application until we get a determination from
them as to the outcome of the piece of property that's.
MR. SICARD-Then they can put the freezer where they want to put it, and still
use that back alley there. Do you ~nt a motion?
MR. TURNER-Yes.
MR. CARVIN-Does that mean that they will have a freezer there?
MR. TURNER-No. They won't have the freezer until we know the outcome of the
property in the rear.
II(Jfß.XOll1I 'Jl(J "ABU Nœ.A t'ARIMCli: lfO. 94-1.992 lJJ(JUBU A ØlO'Ø1tSJlOlIIS, Introduced by
Charles Sicard who moved for its adoption, seconded by Chris Thomas:
At the consent of the applicant, until we find the outcome of the building next
door.
Duly adopted this 23rd day of september, 1992, by the following vote:
AYES: Mr. Thomas, Mr. Sicard, Mr. carvin, Mrs. Eggleston, Mrs. Paling, Mr. Turner
NOES: NONE
ABSENT: Mr. philo
MR. SICARD-Would you notify here?
MR. TURNER-As soon as Ipu know.
MR. SICARD-As soon as Ipu know. So, if it's something that's going to come up,
we can get it on the agenda and work it in. (11:11 p.m.)
MR. TURNER-The next item, NtBA VM1t1lllCE lIIf'J. 95-1992 fi1tUIM r. ~RGH, is
not on the agenda. It hasn't been removed permanently. They have some questions
to ansVßr at the County, and we took him off the agenda until the County made
a decision on the application.
.AIJIU VM1tNfICB lIIf'J'. 96-1. 992 la1f1Jø:Jfll II. ~ur 1I&Br PBMJ/ClC'S lWSJt(JR 0IlIJ1JjIR: 5MB
AS MfIRÆ :uJ'r 586 EtJK l'ß('J£;CØi UIlIIE ADDDIG» NlJDrn:t1lLfA£ 480 ~. n'. EfJR A J"Ø'.u.
f/2E' 1,126 ~. n. ~ FOR A lJ'Ø1tNG Roaf iJl//!JDI'IlffJ/1/. rJa MJrP lIJ(J'. 77-1-1.41
Ul!r snE~ 37,826~. n. sæ£'Jl:pQJ1¡ 1.79-7
KENNETH NOB IE, PRESENT ( 11 : 11 p.m.)
STM'F IIIIWT
Notes from Staff, Area Variance No. 96-1992, Kenneth Noble & Mary Frances Kusior,
september 21, 1992, Meetin g Da te: September 23, 1992 "project Description:
'Phe applicant is seeking a variance to allow construction of a second 480 sq.
ft. garage. In a SFR-lA zone, only one accessory'garage is permitted. Variance
Analysis: 1. The applicant did not sufficiently support any claim of practical
difficulty which relates to the property or structures on the property. The
need for additional garage space to store 4 vehicles is personal in nature and
not related to the propert y. 2. This is not the minimum variance necessary
to alleviate a practical difficulty. Since the applicant has not established
that a practical difficulty exists, there is no minimum variance necessary to
alleviate it. Furthermore, the applicant could enlarge the existing garage to
accommodate an additional vehicle and not need any variances. 3. The granting
51
of this variance could be detrimental to adjacent properties. The property is
part of the Rush Pond Critical Environmental Area. Additional impervious area
should be avoided in order to limit unwanted runoff. The additional garage would
be facing the neighboring house. The neighboring property owners kOuld be forced
to look at over 50' of garage frontage from their windows and yard. Access to
the garage requires substantial grading of the side yard to alter the existing
grade. Such grading and paving could create runoff onto the neighboring property.
4. The variance should not have an impact on public facilities and services."
MR. TURNER-Okay.
staff?
Mr. Noble, would you care to anSk€r those comments made by
MR. NOBLE-Yes. I've got a statement here that I'll read and maybe that will
anSk€r some things. Basically, the overall project, and we discussed this, there
wasn't evenþody here that's here tonight, is an addition to my living space,
and what we want to do is have our cars inside garage space. The way we have
it now, we do not have enough room to house the number of cars that we'd have
there. My niece, because of circumstances, is going to be living with us, and
my parents come up for a couple of months in the summer time, from Florida.
So, we don't want to have the vehicles sitting in the driveway and outside.
We need the additional space in the house. We asked for a variance for the
increased garage space in August and the Board voted tkO for and tkO against.
Therefore, we were denied. Due to the tie, we went back to the Town and discussed
the problem, or reluctancy of the Board to approve this modest square footage
increase. Mter these discussions, we felt there may have been a reluctance
due to a business rental. We weren't sure. you'll note in our new application
all of Fox Hollow has deed restrictions to an y business. Also, we decreased
the garage size by approximately 100 square feet, to 1162, betk€en the current
garage area and the increased area. In deciding how to add the additional living
area and garage area, we used the house and garage next to our house as it has
three bays and a storage area on its k€st side. Our plan is not obtrusive at
all, and is, to our knowledge, not a problem to any of our neighbors. In our
planning, we looked at many new homes in the area constructed in Queensbury this
year. At Hi ghland park, we found gara ge areas in excess of 900 square feet.
Also, a new home being built at Garrison and North Road appears to be over 900
square feet, and on our own Fox Hollow, a new stand alone garage is added to
an existing home. We bring this up because in all cases these homes or additions
are not obtrusive and are practical in use. We would hope that you find our
addition practical and meaningful and ask that you grant the variance.
MR. TURNER-Okay. Does an!pne have any questions?
MR. THOMAS-HOw would you access this garage, and the new one in the back?
MR. NOBLE-From the right side, if you're coming up the drivev.ay, we would extend
the drivev.a y around to the side.
MR. THOMAS-Around the side?
MR. NOBLE-Yes.
MR. THOMAS-And you'd have to fill into that, or would you just cut into the
existing grade?
MR. NOBLE-We'd have to bring in fill. I don't know if you've been up there?
MR. THOMAS-I was up there today.
MR. NOBLE-It would come up around to the side, and it would come behind the stone,
you'd come in here, behind the stone wall, and into here. We would have to bring
fill in here to make sure tha t the wa ter ran a v.a y from the nei ghbor' shouse.
MR. THOMAS-You'd be putting in tkO overhead garage doors?
MR. NOBLE-ale.
MR. THOMAS-ale, and that would be directly in the back, it wouldn't be on the
side?
MR. NOBLE-It would be right here on the side.
MR. THOMAS-It would be on the side?
52
MR. WRNER-Yes, facing the other property.
MR. NOBLE-Right. Bill Herlihy lives next door. He has no problem.
MR. THOMAS-You're not going to have any living space over the top of that garage,
are you?
MR. NOBLE-Yes. I want to add to my home, yes.
MR. THOMAS-Okay. You just want to put a garage, a two car garage, and then put
a living space over the top of it?
MR. NOBLE-Tha t ' s correct.
MR. CARVIN-Well, I think, in your previous discussion, you said you were going
to convert the front garage, down the line.
MR. NOBLE-Both. I have living space. I'm going to put in an additional bedroom
and an addi tional den, over the.
MR. CARVIN-Downstairs, where the current garage is?
MR. NOBLE-Upstairs, above both garages. I need both garage spaces. I'm trying
to be able to put two family cars tJ1.ich are four wheel drive. My wife's a
physician, and she needs, we both need four wheel drive vehicles due to the nature
of our jobs. We also have an expensive family car and also my niece will be
living with us.
MR. THOMAS-SO, what you're, in reality, doing, it's like putting in an apartment
on top of the two garages.
MR. NOBLE-No. I'm putting additional living space onto my house.
MR. THOMAS-How many bedrooms did you say you have?
MR. NOBLE-Right now, I have four.
MR. THOMAS-You're putting one bedroom?
MR. NOBLE-Right.
BOB NOBLE
MR. BOB NOBLE-I've been working on the project with my son. Bob Noble. The
current garage, the roof would come off, and there would be a second floor put
over the roof, which would be tied into his part of the house and the new part
of the house. In other words, you'd come from, I guess ~ bedroom, into a
den.
MR. KEN NOBLE-that's correct.
MR. BOB NOBLE-Which would be over the existing garage. In other words, they'd
take the roof right off the current garage, and then there would be another
bedroom, and another room upstairs, over the second garage, the new addition,
or the new garage. In other words, it would be a two story L. The house is
now like this. There'll be an L off the back.
MRS. EGGLESTON-How many people live in your house?
MR. KEN NOBLE-My wife, myself, my two children, and my niece.
MRS. EGGLESTON-HOw would you answer Staff's input that the neighboring property
owners would be forced to look at over 50 feet of garage frontage from their
windows and yard, which is true, but from ~ windows, you're going to be able
to see trees on either side of you?
MR. KEN NOBLE-If can you see how it works, it's not facing Herlihy's house.
MRS. EGGLESTON-I understand.
MR. KEN NOBLE-It is, but it's facing tov,ard the back. I suppose I could have
had him right a note saying that he didn't care, but he doesn't.
53
MRS. EGGLESTON-This is a relatively new development.
any other four car garages in your.
I don't believe there are
MR. KEN NOBLE-That's not true.
MR. BOB NOBLE-No, no. you just gave them a variance up there for a brand new
two car garage added to a four car gross, three houses from there.
MR. KEN NOBLE-They didn't get a variance.
MR. BOB NOBLE-Somebody up here, within the last year.
MR. KEN NOBLE-No. I looked it up. It was signed by the Town, not by ~ Board.
MR. TURNER-Yes, but by a building inspector.
MR. KEN NOBLE-Right. Plus our next door garage is well over 1100 square feet,
right next door.
MR. TURNER-That's fine, but this is personal in nature. This is ~ decision
to buy four vehicles and store them on the property. you're allowed one accessory
use, and that's all you're allowed.
MRS. PALING-Who gave them permission to do that?
MR. KEN NOBLE-I can tell you rdlo did. I went and looked it up, crayford. I
mean, that doesn't make ours right. I'm not saying that, but my point is, it's
not obtrusi ve to the nei ghbors in the area. There's over 900 square foot gara ges
in the Town of Queensbury and they're not obtrusive, and really that's rdlat we've
cut it do~ to is a three car garage, with the other one car garage door in the
back.
MRS. EGGLESTON-How would you prevent the runoff going over onto the?
MR. KEN NOBLE-It doesn't g:J that way. It already goes off to the right, now,
the way it is. It wouldn't change.
MRS. EGGLESTON-Wait a minute. They're down hill from you.
MR. KEN NOBLE-They are now.
MRS. EGGLESTON-That's rdlat I'm talking about.
MR. KEN NOBLE-Right.
place it's going now.
It's not g:Jing to change.
It's goin g to go to the same
MRS. EGGLESTON-But you're going to bring in fill and the grading is going to
g:J back further in order to put this new garage. So, where will the water?
MR. KEN NOBLE-Where it's going now.
MRS. EGGLESTON-But you're going to have additional water, because you're going
to have where the back part of the garage is.
MR. KEN NOBLE-You can't have any more water than gJu have now.
MR. BOB NOBLE-Look at this picture.
do~ into a.
The water now in back of this house comes
MRS. EGGLESTON-Isn't there grass back here now?
MR. BOB NOBLE-Yes.
MRS. EGGLESTON-SO, that retains the water, really, the grass.
MR. BOB NOBLE-There'll be less kBter, as a matter of fact.
MRS. EGGLESTON-Well, no, because you're going to make a drivekBy through here,
right?
MR. BOB NOBLE-Yes, but this is all high here, this is much higher here.
54
MRS. EGGLESTON-That's my point exactly.
MR. BOB NOBLE-I don't know where they've got the drainage going off, because
it's going to be less than.
MRS. EGGLESTON-It can't possibly be less.
MR. BOB NOBLE-It can't be more. I can guaran tee tha t .
MR. KEN NOBLE-It can only rain so much, and we're not changing the direction
of the grade.
MR. BOB NOBLE-Whatever comes off the side hill now goes down there, period, and
as a matter of fact, that is a drainage area that goes back down into the wetlands
down below it. So, it isn't going to change that at all. I don't know who has
that opinion, but I don't think that that's true.
MR. THOMAS-I imagine that the addition will match the existing house, siding
wise?
MR. KEN NOBLE-Tha t ' s correct.
MR. THOMAS-Roof?
MR. KEN NOBLE-Same roof line.
MR. THOMAS-Same roof line. Same roof tile?
MR. KEN NOBLE-Exactly. It'll all match. I'm not changing a thing, but I want
to add more room and keep my cars inside, in a safe manner, that's the hardship,
if there's a hardship.
MR. CARVIN-You're going to have five bedrooms with the addition, when and if
you put the addi tion on?
MR. KEN NOBLE-That's correct.
MR. CARVIN-And there was a cellar under the house, is there?
MR. KEN NOBLE-There is, under the main house, not under the garage.
MR. CARVIN-Is it a converted cellar, or is it just a cold cellar?
MR. KEN NOBLE-I don't understand the question? It's sheetrocked.
MR. CARVIN-In other words, is it a family room?
MR. KEN NOBLE-No.
MR. CARVIN-I mean, is it sheetrocked?
MR. KEN NOBLE-Yes, it's sheetrocked.
MR. CARVIN-You could put a bedroom down in the basement?
MR. KEN NOBLE-Yes.
MR. CARVIN-Oka y, and there is not one there now?
MR. KEN NOBLE-No. There's an office. No. There's an office down there.
MR. CARVIN- I guess, cutting to the quick here, with the addi tion , could this
be, in any way, conceived as a duplex?
MR. KEN NOBLE-No.
MR. CARVIN-In other words, are you building an extra apartment for another family?
MR. KEN NOBLE-No. I'm not putting another kitchen.
MR. THOMAS-I think with an extra apartment you'd have to have another kitchen.
55
MR. KEN NOBLE-I'm not putting in a kitchen. It'll all be joint.
MR. THOMAS-How about the septic? I mean, the septic is determined by the number
of bedrooms in the house.
MR. KEN NOBLE-We'll do whatever we have to do for the building inspector.
MR. BOB NOBLE-The fellow that worked on your plan, they would put a new 1,000
gallon tank, plus a drywell. We didn't want to take a chance of, we looked at
the current one, which is 1,000 gallons with X number of feet, the septic tank
people thought that it would not be good to tie into that. We probably ought
to add an additional one.
MR. THOMAS-You're not adding anymore water usage.
in, a laundry or anything like that.
You're not putting a bathroom
MR. KEN NOBLE-There will be a bathroom.
MR. THOMAS-One more bathroom. Okay.
MR. BOB NOBLE-The suggestion was that they put an additional, either add on to
the current leachfield and/or put in a new separate unit in so there couldn't
be any problem.
MR. THOMAS-This new addition wouldn't be going over the septic tank or into the
1eachfield would it?
MR. KEN NOBLE-No. It's out fron t .
MR. THOMAS-Away from it?
MR. KEN NOBLE-Yes. It's out front now.
MRS. EGGLESTON-What will the other area be used for? You're going to have one
bedroom. What is the rest of the area over to the garages?
MR. KEN NOBLE-It's recrea tion .
MRS. EGGLESTON-And what will the size of them be, the one over the, what will
the square footage over the existing garage be?
MR. KEN NOBLE-Eight hundred and fifty square feet, whatever it is now.
MR. BOB NOBLE-It would be double the size of the garage. It would be about 1200.
MR. KEN NOBLE-Yes.
MR. BOB NOBLE-We'd be adding about 1200 square feet.
MR. KEN NOBLE-The same as the two garages added together.
MRS. EGGLESTON-The two garages together would be an addition 1200 square feet?
MR. KEN NOBLE-Right.
though, not for the.
We're here for the additional square feet of the garage,
People add to their houses all the time.
MR. TURNER-Any further questions? I'll open the public hearing.
PUBLIC HEARING OPENED
NO COJIJIENT
PUBLIC HEARING CLOSED
MR. TURNER-Any further discussion?
MR. THOMAS-One thing, here, the Staff Notes states that they could expand the
existing garage?
MR. TURNER-Yes.
56
MR. THOMAS-Isn't that, in reality, what he's doing, plus putting a second story
on?
MR. TURNER-No. He's putting a second story on an existing gara ge and then he's
adding a garage in the back. What they're saying is he can expand that garage
and do the same thing.
MR. THOMAS-Isn't that what he's doing, expanding the garage in the bottom?
MR. KEN NOBLE-Basically, yes.
MR. TURNER-Yes, but he's only allowed one accessory use.
MR. BOB NOBLE-Would he be taking up, in that, of going longer with the house,
adding to the house and going over?
MR. THOMAS-I don't know what they had in mind, to tell you the truth, because
it looks like you're just adding on, well, not really adding on to the garage,
beca use it shows.
MR. KEN NOBLE-We are adding on, but we're trying to do it so it doesn't come
out to the front. So, it fits more into the character of the neighborhood.
MR. THOMAS-Is that what Staff is trying to do, instead of going back with the
garage, come forward with the garage?
MRS. EGGLESTON-No. They're saying that without any variance, you could make
that two car garage into a three car garage, and you wouldn't need any variance.
That's what they're saying.
MR. THOMAS-Just add another garage to the side.
MRS. EGGLESTON-Yes. Just enlarge the width of it so it would accommodate three
vehicles instead of two.
MR. TURNER-That's what the Ordinance says.
MRS. EGGLESTON-And then he wouldn't need a, he could meet the setbacks and wouldn't
need any variance.
MR. TURNER-He's allowed on accessory use on the property, one private garage.
He has that. Now he's asking for the second one, and that's what the Ordinance
sa ys, he can't have the second one. You can have up to 900 square feet.
MR. THOMAS-Well, then how did the guy three doors away get a permit?
MR. TURNER-He didn't get it through here.
MR. KEN NOBLE-How is Charlie Wood building his house on Garrison Avenue?
MRS. EGGLESTON-He came before this Board.
MR. BOB NOBLE-It's not obtrusive. It's going to be some house. It really is.
You wouldn't have a little tiny garage on a little house. Do you know what I'm
saying? Not one neighbor has said anything bad about this, that ~ know of.
As a matter of fact, Bill Herlihy's been over two or three times, and he's the
guy that's going to look at it, and says it's fine.
MR. TURNER-I still don't like it because I think it's setting a precedent.
MR. BOB NOBLE-The Town has set a precedent.
MRS. EGGLESTON-Not in your neighborhood we haven't.
MR. KEN NOBLE-How did Charlie Wood get his garage?
MR. TURNER-He came for a variance.
MR. KEN NOBLE-And you gave it to him, so there's the precedent. His is a lot
bigger than 900 square feet I'm sure, and I'm sure it's bigger than 1186 square
feet.
MR. CARVIN-His was to be constructed, too, so it wasn't an addition.
57
MR. BOB NOBLE-Wait a minute.
big new.
When the Town allows, three houses from Ken, a
MR. TURNER-Every case is an individual case, Mr. Noble, and it's based on its
merits, and that's it.
MR. BOB NOBLE-Yes, but that's nonconforming.
ago in his neighborhood.
That new garage was built a year
MR. TURNER-That's fine, but we had nothing to do with that.
come before this Board, it would have probably gotten denied.
If had properly
MR. BOB NOBLE-It would have?
MR. TURNER-Yes, sir. It didn't get here.
MR. KEN NOBLE-So, how do we get it signed like he did?
MR. TURNER-Who?
MR. KEN NOBLE-The person that who built the garage?
MR. TURNER-You're not going to get it signed. You've already asked for a building
permit and you've been denied. That's why you're here.
MR. KEN NOBLE-How did Charlie Wood get a building permit to build probably a
1500 square feet?
MR. TURNER-He came here. I didn't sit in on it. I don't know.
MR. KEN NOBLE-How did you decide that he could do that?
MR. TURNER-I didn't decide it.
MR. KEN NOBLE-You just said it came here.
MR. TURNER-It came here, but I didn't si t in on it.
MRS. EGGLESTON-I think we're getting far abreast of the whole thing, here.
MR. TURNER-We're getting far abreast of the issue, and the issue is based on
the individual merits of each case, and that's it.
MR. SICARD-It's a much bigger lot, to begin with.
MRS. EGGLESTON-Yes.
MR. SICARD-And I guess that would be one reason.
MR. TURNER-Oka y. A motion's in order.
BOTION TO DE1fY AREA VARIANCE NO. 96-1992 1Œ1IlfETH Be NOBLE IIARY FRANCES lWSIOR,
Introduced by Joyce Eggleston who moved for its adoption, seconded by Charles
Sicard:
I don't believe the applicant has asked for a minimum variance. He has asked
for maximum variance, and it's his obligation to seek minimum variance necessary.
There are other alternatives that could work for this applicant without any
variances. I believe that the variance could be detrimental to adjacent properties
and would set a precedent in a neighborhood that's fairly new.
Duly adopted this 23rd day of September, 1992, by the following vote:
AYES: Mr. Sicard, Mrs. Eggleston, Mrs. Paling, Mr. Turner
NOES: Mr. Carvin, Mr. Thomas
ABSENT: Mr. Philo (11:39 p.m.)
MR. TURNER-Okay. We've got a couple of issues to take up, here, before we leave,
and I don't want to take up a lot of your time. What I want to do first, Robert
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and Cheryl Evans, the variance, Area Variance No. 81-1992, of which they claim
they submitted a modification of their existing, their plan from before, and
I took it off the agenda, as you know, last month, because I thought it was the
same plan that they had submitted before. There is some variation here, and
I would pass this down the line, and the issue was over the driveway which faced
to the north, and we mitigated the issue with the agent, Mr. Howland, in which
he agreed to turn the garage to face Mason Road, and they're not in agreement
with that, and as you look at the plans, you can see the modification that they
propose, Driveway C, B and the apron over here is the carport. Carport and shed
to be removed.
MR. SICARD-Mr. Turner, isn't the reason that he didn't want to turn the garage
because of the existing hedge that ran out towards the street, and he was afraid
they'd come right out in front of the cars? There was no space there at all.
MR. TURNER-That might be part of it, but also here is the design of the proposed
new house. Take a look at that.
MR. SICARD-But the permeability is just the same, isn't it? He reduced some
of the driveway.
MR. TURNER-He reduced some of the driveway. If you remember before, it came
in like this and entered the garage this way, then he had another apron that
went in like this.
MR. SICARD-He's going to take that out.
MR. TURNER-He's going to take that out.
the agenda. Do you people think there's
back on the agenda?
So, the question is, I took him off
enough modification here to put them
MR. CARVIN-Again, I guess I missed it, Ted.
Where are they proposing?
MR. TURNER-They want to propose to put the garage to face to the north, as
originally planned, and before they had this apron coming in like this and they
had a big apron going like this, all right. So, they've modified it to some
degree. So, is it your opinion that they've modified it enough to rehear it?
MRS. EGGLESTON-Well, he can't do it that way without being reheard, right?
MR. TURNER-No.
MR. DUSEK-Yes. I think tha t' s the issue. In order to modify a condition, they
would really have to have another hearing before the Board and Mrs. Evans has
been in to see me, I might as well tell you, too. She was very upset over the
fact that they were pulled from the agenda last week, and I guess part of it
goes back to the fact that they were first advised by Mr. Parisi that that was
the proper mechanism, to come back before the Board, and they thought they were
on, then they were off, and I guess the other thing that's really hurting them
right now is the fact that they're trying to build this thing before the winter
sets in. I think that, under the circumstances, the Board ma y want, and I know
this is an unusual situation, but you may want to consider a special meeting
to take a look at that one, just because of the mix ups that have happened over
the past couple of weeks with that one.
MR. SICARD-Of course the problem was that they didn't appear themselves. They're
contractor appeared, and he made the changes.
MR. TURNER-They designated him as the agent, and that was my comment to Dr. Evans,
that he was their agent, and if he thought that he couldn't answer any of the
questions, then he should have so indicated, or else the doctor should have been
here to address the issues, and he wasn't.
MR. DUSEK-Well, there's no question that that started the problems off. I think,
though, the problem followed, though, is that they did, in fact, apply, in my
opinion, properly, to come back before the Board, and they didn't get back before
the Board. So, if they were heard last week, and I'm not saying you have to
decide this one way or the other, by the way. That's totally up to you. It's
just, from a procedural standpoint, I think tha t they, I don't see an y reason
why they could not come back before a Board. It's not a res judicata question,
by the way, because what they're asking to do here is modify a condition of a
variance. So, they're asking for something new.
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MR. SICARD-Do you remember me asking the contractor, twice, if he thought he
should make the decision about that garage and he said, yes.
MRS. EGGLESTON-Yes, because I said to him, the doctor said he wanted to keep
that one little one.
MR. SICARD-And I asked him once again, and he said, yes, I have complete permission
to change the plans, and I thought it was peculiar, at that time, that he would
make such a decision.
MRS. EGGLESTON-I don't see any reason why we shouldn't look at the modification.
MR. SICARD-They have an engineer, I guess, for the septic system, to desi gn it.
MR. DUSEK- I don't know all the facts on it.
MRS. EGGLESTON-What kind of a precedent would we be setting by doing this, let
me ask you that, Paul? Would we be getting more of these people coming back?
I mean, would we be sa ying to people, if you don't like?
MR. DUSEK-I don't think it's a question of a precedent. I think it's a question
of, do they have a right to make an application, and I think they do. You have
the right to decide, once it comes before you, whether or not you want to grant
it or not. I mean, you don't have to grant it. It'll be up to you to determine
whether they prove a case for a variance.
MRS. EGGLESTON-I don't see a problem with them coming back and asking for a
modification, myself.
MR. SICARD-Actually, there's going to be no change to it, is there, the garage?
MRS. EGGLESTON-Just the garage will face the other way.
MR. TURNER-It's going to face the way they wanted it originally, instead of Mason
Road. They're not going to leave it where it's proposed to go, where the
contractor mitigated the garage would end up, facing Mason Road.
MR. SICARD-The garage has not been touched at this point. So, what you're saying
is.
MRS. EGGLESTON-Well, Charlie, they're talking about the new garage.
MR. SICARD-You're talking about the ~ garage?
MRS. EGGLESTON-Yes, not that little existing green thing that sits there. They're
talking about the new garage that was going to face Mason Road and go right
straight into it. Now they want to face it toward that little garage and go
around in front, right? So, do you think that's enough of a modification to
come in for us to hear it is the question?
MR. SICARD-I really don't think so.
MR. THOMAS-Yes, which way the garage faces really doesn't, you know.
MRS. EGGLESTON-It only adds to the permeability though, because they're going
to have more blacktop.
MR. THOMAS-Do they maintain the permeability percentage?
MR. TURNER-Yes.
They can maintain it, but I mean, they mitigated the issue.
MR. CARVIN-It seems to me there was a public dissent on that, 1:00. Some guy,
didn't he say he didn't like blacktop at all out there? I think that was the
one.
MR. SICARD-No. They're not. I think that that was one thing that he said they
weren't going to do, but maybe we ought to get him in here.
MR. TURNER-The real issue is the design of the house and the way the garage fits
in with the ridge plan of the house, if you look at it. That's the real issue.
It's not so much the concern of, that is the real concern right there, is how
that fits in with the design of the house.
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MR. CARVIN-Well, certain1 y, wi th the desi gn of the house, I don't see how he
could turn the garage.
MR. TURNER-No. He can't. Well, he could, but I mean.
MR. THOMAS-Just, the door wouldn't go in under the overhang.
on the gable end.
It would go in
MR. TURNER-That's right.
MRS. EGGLESTON-There's no way we could approve the modification without them
coming back, like approve it to go with this?
MR. DUSEK-Well, the problem is, is that, if I understood it correctly, there
was a reason why the garage was wanted in the fashion that it was wanted, and
when you made the decision, you made it after a public hearing, where everybody
was there who had a reason to be there. There may be somebody who has a problem
with changing the garage around, and if you don't have a public hearing, you're
acting without any authority.
MRS. EGGLESTON-Oka y.
MR. DUSEK-But like I say, I think you could certainly, in light of the confusion
that has happened, if you wanted to hold a special meeting and just expedite
it, I think you could do that.
MR. TURNER-What do you want to do?
MRS. EGGLESTON-I think we should hear it. That's my own personal opinion.
MR. TURNER-All right. It is the consensus of the Board that the variance for
Robert and Cheryl Evans will be reheard, the modifications which concern the
garage. We've got to set a date.
MR. DUSEK-You need at least five days notice for the hearing.
MR. TURNER-Yes, so that puts us into next month.
MR. CARVIN-We can't really wait until the next session, right?
MR. DUSEK-Well, the problem is they're fast approaching their building season,
here.
MRS. EGGLESTON-But can't they start their house, even without?
MR. DUSEK-Yes. I told them that.
MR. TURNER-They could start the house and put the footing in for their garage
after.
MRS. EGGLESTON-Yes.
project, right?
That's what I mean.
So, we're not holding up the whole
MR. TURNER-I mean, they could start their digging.
MR. DUSEK-When I spoke to her today, my advice to her was that they could start
construction so long as their construction stayed in full compliance with your
variance, as it is written, I said, and what you should try to do is construct
so that you can make a change if the Board decides. If they don't, you can still
comply with that. I told her, keep both ends open until they hear from you.
MR. SICARD-They've got to take the old one down first.
MRS. PALING-Did she agree to do that? I feel so badly for these people.
MR. DUSEK-I don't know, from a practical perspective, how it's going to work
out for them, but that was what we talked about today.
MRS. EGGLESTON-Where are we up to, Ted?
MR. TURNER-Can we do it the 1st of October, that's a Thursday night?
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MR. DUSEK-Yes, because I think you can get the notice into the paper.
MR. TURNER-Yes, that's plenty of time.
MR. DUSEK-Well, wait a minute, it'll get in Sunday, right?
MR. TURNER-Sunday.
MR. DUSEK-Wait a minute.
Saturday, yes.
Today's Wednesday.
They could probably get it in
MRS. EGGLESTON-So, what are we looking at, the 1st of October?
MR. DUSEK-We can try, tomorrow morning, to see if you can get it in the paper
Saturday. If you can't, can you give an alternative date?
MRS. EGGLESTON-It would take us into the week after?
MR. DUSEK-Yes.
MR. TURNER-How about the 7th? Can everybody come the 7th?
MR. CARVIN-Wednesda y' s fine wi th me.
MR. TURNER-So, it's October 1st, which is next Thursday, if we can do it. It's
October 7th otherwise. what time, 7:00, 7:30?
MR. TURNER-Do you want to do it at 7:00? Okay.
MRS. EGGLESTON-October 1st at 7:00?
MRS. PALING-If we can get it advertised.
MR. TURNER-October 1st at 7:00 or October the 7th at 7:00.
MR. DUSEK-Since the Planning Office is not here tonight, I will make sure I talk
to them and take care of the arrangements for you.
MRS. EGGLESTON-Oka y.
On motion meeting was adjourned.
RESPECTFULLY SUBMITTED,
Theodore Turner, Chairman
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