1992-12-02 SP
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QUEENSBURY ZONING BOARD OF
SPECIAL MEETING
DECEMBER 2ND. 1992
INDEX
APPEALS
Notice of Appeal No. 2-92
Lake George Association. Inc.
1.
THESE ARE NOT OFFICIALLY ADOPTED MINUTES AND ARE SUBJECT TO BOARD
AND STAFF REVISIONS. REVISIONS WILL APPEAR ON THE FOLLOWING MONTHS
MINUTES (IF ANY) AND WILL STATE SUCH APPROVAL OF SAID MINUTES.
QUEENSBURY ZONING BOARD OF APPEALS
SPECIAL MEET' -;
DECEMBER 2ND.-1992
7:14 P.M.
MEMBERS PRESENT
THEODORE TURNER, CHAIRMAN
MARIE PALING
CHRIS THOMAS
THOMAS PHILO
CHARLES SICARD
FRED CARVIN
MEMBERS ABSENT
JOYCE EGGLESTON
EXECUTIVE DIRECTOR-JAMES MARTIN
PLANNER-ARLYNE RUTHSCHILD
STENOGRAPHER-MARIA GAGLIARDI
NOTICE OF APPEAL NO 2-92. LAKE GEORGE ASSOCIATION. INC., Appeal by
Lake George Association from a decision of the Zoning Administrator
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 may continue as a
preexisting nonconforming use as there has been no cessation of
use. Section 179-80 Discontinuance states: "If a nonconforming
use is discontinued for a period of eighteen (18 ) consecutive
months, further use of the property shall conform to this chapter
or be subject to review by the Zoning Board of Appeals." Property
is located at the corner of Bay Road and Route 9L on the Tax
Assessment Map as 23-1-19. This Zoning Board voted to consider the
said Appeal and rehear all new and relevant information in
conjunction with a previously tabled motion to rehear.
MR. TURNER-I would say to the lawyers representing both applicants,
if you have a statement to make, make the statement up front, then
call your witnesses, and then I'll open the public hearing to the
public. after that. So. Mr. Caffry.
JOHN CAFFRY
MR. CAFFRY-My name's John Caffry. I'm the attorney for the Lake
George Association. Since I know there's some new members on the
Board that aren't necessarily familiar with the case, I will go
back briefly, what this is all about, and then explain the position
of the Lake George Association. About a decade ago, Allison
Ellsworth closed his public boat launch and marina on the Dunham's
Bay creek. He did apparently, at certain times, allow his dock
customers, the people renting docks, to use the boat launch to
launch their boats, but it was not a public boat launch. There was
some evidence submitted in 1989, when this was before the Board,
that there were also a few people who were allowed to use it on
occasion. Apparently for free. It wasn't open to the general
public, because many other people who tried to use it at the time
were told it was closed, and they weren't allowed to launch there.
Probably it was just friends and relatives. It certainly wasn't
open to the public. In 1989, when Frank Parillo purchased this, he
tried to reopen the public launch. Dave Hatin, who was the
Building Inspector, or whatever the title was at the time and is
now, determined that that was not permitted because the launch had
been closed for over 18 months, and determined that the use had
been terminated, and could not be reopened without a variance, that
came before this Board which at first supported Dave, and then
there were various other hearings and attempts to rehear it and all
of that, that's been gone through. The Lake George Association
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still believ~~ that the launch was closed in excess of ~ months.
and therefor,__ the use is terminated and it cannot b~reopened
wi thout a variance. During the entire period in question here.
basically the 80's, a marina was not an allowed use under the Town
Zoning Ordinance, and that would include a boat launch as well as
any other type of marina operation. It's zoned residential.
They're not permitted in there. The marina itself. the boat
docking was never terminated or closed down. So that's still
grandfathered. but to reopen the boat launch would constitute the
addition of a new use or the expansion of the marina. and therefore
that's not permitted without a variance. You can't expand a
preexisting nonconforming use without a variance. The burden of
proof to prove that the marina is a valid, preexisting.
nonconforming use and it was not abandoned is upon Mr. Parillo, and
I'm sure Paul's familiar with the case that the Town had involving
Mr. Harris up on Pickle Hill Road, where the Appellate Division. in
that case. found Mr. Harris had met his burden of proof and his
preexisting nonconforming use was allowed to continue, but it was
quite clear from that decision and the other court decisions the
burden of proof is on Mr. Parillo here. It's not up to the Lake
George Association to prove that the use was abandoned. It's up to
Mr. Parillo to prove that it wasn't abandoned for 18 months. We
believe that it was not continuous and that it was discontinued for
18 months. We also believe that the original decision of this
Board should stand. that there is not sufficient new evidence to
justify reopening of the Board's prior decision, and that that
original decision should stand. We went through a lot of meetings
and hearings on whether or not we should even be rehearing this.
We still. for the record. believe that there is not sufficient
evidence to reopen this and rehear it, but the Board decided to
rehear it. and so here we are. We also believe, again, the Board
should be bound by its prior decision. under doctrine of res
judicata. Mr. Richards filed a letter yesterday saying what he
thinks the legal issues are here, and I hope the Board's all had a
chance to see that. I'd just like to take issue with some of the
statements. He's trying to basically reopen some of the legal
issues here. that were decided in 1989.
MR. CARVIN-Excuse me. Can you reference that letter, please?
MR. CAFFRY-This is a letter December 1 . 1992. from John Richards to
Ted Turner.
MR. THOMAS-I haven't seen it.
MR. TURNER-I haven't seen it. either.
MR. CARVIN-I was going to say. this is a new piece of
documentation.
MR. CAFFRY-It was addressed to Ted and I got it by fax and it came
in the mail today. and a copy was sent to Paul Dusek.
MR. DUSEK-I got a copy of it yesterday.
MR. TURNER-I didn't get it.
MR. DUSEK-You didn't get it. Ted?
MR. TURNER-It's right here in the file. I haven't gotten a chance
to read it tonight.
MR. CAFFRY-Well. maybe you'll pass it around and read it, but, if
you don't mind. I'll respond to it. He said that he thinks the
boat launch is an integral part of the overall marina operation on
the site and cannot be isolated as a separate use. Dave Hatin. and
then this Board in '89. determined that it did have to be looked at
separately, and I think there's two reasons why. One is that it
can be looked at as a separate use. and that to reopen it would new
use. Secondly. even if it's not a separate use. even if it's part
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of the marina ,0 reopen it is an expansion of a nonconfc ing use.
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and again. you~can't expand a nonconforming use without a variance.
and this is separate and apart from the other marina operation of
renting dock space and allowing those dock customers. once a year.
to launch their boat. to put it at that dock space. This is the
operation of a public launch open to anybody that comes along.
The other thing is that it's too late to reargue this issue. This
legal issue was determined by the Board in 1989. It was never
challenged in court by Mr. Richards. Now. what the Board has
basically decided to do is rehear the factual issues. Essentially
a whole new trial on the issues of fact. was it closed for 18
months or not, but you can't reopen the legal issues. That's
separate and apart. The only way you can reopen any of this is by
Mr. Richards. Mr. Parillo's attorney. presenting new evidence. and
that's the basis. he's asked for this, too. but he can't reopen the
legal arguments. Those. essentially. have already been decided.
He also said there's no cessation of the launch use. That we
disagree with. and I'll discuss those facts in a minute. He says
that there's no change in use. He says that this is only an
increase in the volume. but again this gets back to, that was a
legal issue decided in '89 that can't be reopened now. It's more
than just a change in volume. It's a change in the nature of the
entire launch operation. to allow the customers. once a year. To
put their boat in and then put it in their spot right there is
entire different from opening it up to the public. to anybody that
wants to come in and pay their 10 bucks, or whatever the charge is.
That's an entirely different use. It's not just a question of an
increase in volume. If that was the only question. I don't think
there'd be any disagreement among the lawyers. but that's not what
the issue is. So far as the closure goes. I owe most of that to
some of the nearby residents who are here tonight to speak or who
filed letters. We would like to request that the entire prior
record from 1989 and all the prior comments be considered to be a
part of the record of this. because some of those people who were
there then can't be here tonight. and so we'd like to have that
incorporated by reference. I hope the new members might have had
a chance. or will. in the future. go and read the minutes before
they actually decide this.
MR. DUSEK-John. excuse me. When you say the entire record, there
was a meeting which a decision was reached in June. I believe. or
July. of '89. and that's the decision that the Appellate Court has
said that is a valid decision to go by. The Appellate Division has
thereafter said the decisions that were made in December of that
year are void. or improperly made. The question I have is when you
say you want the record reconsidered. are you saying that you want
everything. the June and all the way through to the December. or do
you only want what was brought through to the June meeting? The
other thing I'll remind you is the fact that the fall meeting
consisted of. or the several fall meetings that occurred. my
recollection was. consisted of not only discussing this issue of
expansion of a nonconforming use. but it also entailed. I think at
one point where a variance application was made. and proof was
given in connection with a variance application.
MR. CAFFRY-It's really a blanket request. so far as factual
evidence goes. okay. even though that decision made in December of
'89 was overturned by the Court. The factual evidence still is in
the record. especially since we're talking about. here. whether or
not there is sufficient ~ evidence. Really you've got to bring
all that in so you can see what's new and what's not. So far as
the evidence on the variance hearing. probably a lot of that's
really irrelevant. in terms of. the economic evidence is irrelevant
to this question. but there might be something in there that might
be pertinent. So. it's just really a blanket request.
MR. DUSEK-So. basically. every meeting.
the Board had on this particular matter.
through until basically the end of
witnesses and facts and information
and all the minutes that
from the first day forward
that December. whatever
that comes out of those
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minutes. that~ what you wish to have as part of the re~d?
MR. CAFFRY-Yes. Since it's a rehearing. you really have to know
what you're comparing it to.
MR. DUSEK-I just want to make sure it's clear as to the Board's
understanding. so that they know that you're not asking that the
decisions themselves be made part. but you're saying that there was
a lot of facts that came out during that time period. and you feel
that all of that should be considered by the Board when they
consider all of this new information tonight?
MR. CAFFRY-Correct.
MR. DUSEK-Okay.
TOM WEST
MR. WEST-Mr. Turner. if I could just add something at this point.
Let the record reflect that my name is Tom West. I'm here tonight
representing myself. as a property owner in Dunham's Bay. as well
as Mrs. Ireland. who is also a property owner in Dunham's Bay. as
well as the Joshua's Rock Corporation. which also owns property in
Dunham's Bay. I think that the decisions themselves. whatever
their legal status. should also be a part of this record. because
it's my recollection that the Appellate Division determined that
the December 1989 decision did not meet the requisite unanimity
requirements. but not that the decision was void. and so when I
make my presentation. I will discuss the fact that that decision is
one of the bites at the apple that Mr. Parillo has already had. and
has to be considered as part of the legality of what happens
tonight. So. I just want to clarify that. that's it's not only the
July 1989 minutes. and the decision. but the efforts in the fall of
1989 to readdress the issue of whether or not there was a
termination of the nonconforming use. or an abandonment of it. The
fact that this Board voted upon that. and as the Appellate Division
told us. because unanimity was not achieved on either the decision
to rehear that or on the rehearing itself. that it didn't meet the
requirements of the Town Law. to constitutes a decision reversing
the July 1989 determination. So. both the minutes underlying those
decisions. as well as the decisions themselves. should be part of
this record.
MR. DUSEK-Okay. From the Town standpoint. as your attorney. don't
have a problem with that. I think that's a fair request.
MR. TURNER-Yes.
MR. CAFFRY-I'd just like to also discuss some documents that I'll
give to Mr. Turner in a moment. and I've already given to the other
attorneys so they've had a chance to check them. and Kathy Vilmar
from the Lake George Association. under the Freedom of Information
Law. got from the Lake George Park Commission their relevant
documents. related to Mr. Ellsworth's. and now Mr. Parillo's
marina. and we want to submit them with some affidavits to explain
what their about. but what they show is that in 1988. when the Park
Commission first got going again. got revitalized under its new
law. they went around and they inspected every marina and every
commercial facility on the lake. Mostly to see how big th~ docks
were so they could see how big a fee they could get out of them.
So they sent a staff person named Tracey Clothier around to
virtually everyone of those places. and I spoke to Tracey. and we
have her reports in here. and she interviewed a member of the
Ellsworth family at the time. and was told that the boat launch was
closed. There was no public boat launch. and that's what her
records reflect. that it was never used by the public. okay. and
this was in May of 1988. Mr. Parillo tried to reopen it
approximately a year later. Considering that boat launches don't
operate in the winter. if you go back from May of '88 and forward
to the spring. when Mr. Pari 110 tried to reopen it. that right
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there is an 18 month closure. There's also in there Park
Commission documents. The original marina permit that Mr.
Ellsworth got in 1982, when the first marina regulations were
adopted. There's nothing there about a boat launch. When the
docks were registered, that document's in there. In 1989, Mr.
Parillo filed an application to the Park Commission for a Marina
Permit, apparently after he bought the marina. In there he
described the operation as docking 95 vessels and launching of 20
boats a day, okay. That was a change from the existing permit, in
1989. The prior permit issued in 1982 said nothing about a boat
launch. So, apparently in his mind, at the time, he thought this
was something new. Now he'll probably get up tonight and say
that's not what he thought. Now he's going to have to say that,
but in 1989, he filed this application for permission to operate a
boat launch. That permit was never issued by the Park Commission.
All they did was transfer the existing permit that Ellsworth had
had, that said nothing about a boat launch. It just said 95 boats,
and it also said all terms and conditions of that permit remained
in effect. So, when he reopened thi s in 1989, that did not
necessarily have the consent of the Lake George Park Commission.
Later in '89, after this had been before this Board several times.
the Park Commission Staff said they had not yet made any
determination on whether or not the boat launch was grandfathered.
but they certainly had made no finding that it was, and the fact
that there was never a permit issued to operate that boat launch
by the Lake George Park Commission, nor. I don't think there was
ever one issued by the Town of Queensbury.
MR. DUSEK-John, excuse me. I just want to clear up a couple of
points. Is it your position that the Lake George Park Commission
Rules and Regulations require a permit to operate a boat launch?
MR. CAFFRY-At the present time, it's quite clear, under the Park
Commission Rules and Regulations, that a boat launch is a distinct
aspect of a commercial operation, okay, whether it's part of a
marina that docks boats, or whether it's the only thing you're
operating. It is a separate and distinct aspect. It's a defined
term. Operation of a boat launch. in and of itself, can be a
marina, under the Park Commission Regulations.
MR. DUSEK-When you have a marina with a boat launch, do they issue
separate permits for each?
MR. CAFFRY-It's one permit, but it describes what you have there.
If you apply for a marina permit right now. they will review each
and every aspect of it. how many boats do you have. and that
determines how much parking you need. Do you have a quick launch?
Are you renting Jet Skis? Are you operating a tour boat? Each of
those aspects is considered separately. They're all separate
aspects, and if you have piece of property with nothing on it but
a boat launch, that makes you a marina. under the Park Commission
Regulations at the present time. The regulations in place in '82
did not get into that much detail, but the current Park Commission
Regulations are quite clear that those aspects, each and everyone
of them are identified separately. and if you were to apply for a
permit right now for, I mean. a marina that ~ad boat storage and a
boat launch and gas sales. they could turn down any distinct aspect
of that. They don't have to approve it completely. or partly.
Just like a site plan review, they can deny any particular aspect
of it.
MR. DUSEK-So. in this particular case, though, to finish off the
sequence for the Board. there was not supposed to be a separate
permi t, but I think rather your position is that a permi twas
issued or transferred in hands, and that permit shows, in theory,
what is going on on the property. Is that your position?
MR. CAFFRY-Right. Not only that, there is presently no Park
Commission permit to operate a boat launch on that property, and
there never was.
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MR. DUSEK-And your argument is based on the fact that it's not
referred to in the current permit.
MR. CAFFRY-Right.
MR. DUSEK-It's not that there would be a separate permi t, but
rather it would be referred to in the existing permit?
MR. CAFFRY-Right.
MR. DUSEK-Okay.
MR. PHILO-Excuse me, John. Could you tell me what date the Lake
George Park Commission started this?
MR. CAFFRY-Started which in particular?
MR. PHILO-When did they start having a permit?
MR. CAFFRY-Their first regulations were passed, I think, in 1981,
and they went around and issued permits to all the existing
operations at that time, and in this case, they didn't get around
to it until 1982. In 1987. they got new powers from the
legislature. In 1988, they passed new regulations, and then they
went around and implemented them in 1988. By 1989, when Mr.
Parillo came along, those regulations had been in effect for over
a year. So, at that time, they were applying the regulations that
are in effect now. The one's that specify what's a boat launch,
what's a dock. or if it's a quick launch, all these other
commercial operations that kind of go together to make up a marina.
MR. PHILO-Okay. You stated that Mr. Parillo, when he bought the
boat launch, or marina, that ~hey just handed him a blanket permit?
HR. CAFFRY-No. When he bought it, he applied for a permit, and
what they did. rather than issue him a new permit. with everything
he asked for, was they just transferred the old permit to him,
okay, and in fact. you'll see when I hand this over and it's passed
around, the took the old permit, took a typewriter. typed over
Allison Ellsworth's name. and typed in Frank Parillo's name. That
was the permit they issued. It did not say anything about a boat
launch. either the old one. or when they typed it over. One other
thing I'd like, now when Mr. Parillo applied for this permit in May
of '89, it was his statement that none of these operations had
already been begun or completed. at the time there was already a
permit for the storage of 95 boats. So, all I can assume is, when
he said that things hadn't been begun or completed, that what he
meant was the boat launch.
HR. PHILO-But they were a boat launch there, is that right, under
Ellsworth's?
HR. CAFFRY-There was. physically, a ramp, but it's our position
that that had been closed for many years at that time, and it
therefore was no longer validly in operation. and when he came
along. he wanted to reopen it.
HR. CARVIN-In 1982, was there a public boat launch at Ellsworth's.
at that point?
MR. CAFFRY-I think that the situation in '82 was the same as it
was, physically in '89 there was a launch there, but my
understanding, from talking to some of the neighbors who I think
some of them will be talking tonight. was that even as early as '82
it was closed.
MR. CARVIN-But you don't know whether there was a public launch
there or not?
HR. CAFFRY-Not myself. I wasn't there. I think. though, you will
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hear from some of the neighbors who will say that in the early
80's. that the public launch was closed. and was not open to the
public.
MR. CARVIN-In any of your correspondence there. is there any
reference to a specific denial of the boat launch in the '89
permit. or is it just your contention?
MR. CAFFRY-It's my contention. Again, the fall of '89 letter from
Carl Parker of the Park Commission said. we have made no
determination on whether or not this is grandfathered. but
certainly there was never any consent by the Park Commission to
operate a boat launch there.
MR. CARVIN-But there was no denial. either.
MR. CAFFRY-No. but if you're applying for something and you don't
get the permit. then.
MR. CARVIN-Okay. but if the guidelines were set up in 1981. is it
conceivable that they weren't fully developed in 1982. when the
original permit was issued?
MR. CAFFRY-The regulations in '81 are different than the ones now.
in that they didn't go into as much detail as the present
regulations. but the transfer took place under the new regulations.
and I would think that if they intended to allow something
different from what was done before '89. that they would have said
so.
MR. CARVIN-Well. that's what I'm asking. but there is no
documentation that the Lake George Commission specifically
addressed the boat launch. in either an approval or a denial.
MR. CAFFRY-No. In fact. it did not go before the Commission. Mr.
Parillo requested a permit to operate a boat launch. okay. which
was not in the old permit. Rather than grant that request. or deny
that request. they took no action on it. They just transferred the
old permit. okay. did not specifically grant or deny his request.
to open a boat launch. They transferred the old permit. which did
not mention a boat launch.
MR. CARVIN-Okay. but it is your contention that by just
transferring it they were. in effect. denying the boat launch?
MR. CAFFRY-They were taking no action on the boat launch.
Technically. it's probably still pending.
MR. CARVIN-Then why are we listening to all of this?
HR. CAFFRY-Because I think that this is evidence. okay.
iron clad. It's another piece of evidence.
It's not
MR. CARVIN-It's just a piece of evidence that somebody has made no
decision. as far as I'm concerned.
MR. CAFFRY-It's evidence that it was not grandfathered. The fact
that Mr. Parillo put it on his application. rather than just ask
for a transfer. I think. shows that he thinks he's doing something
new.
MR. TURNER-Yes, but they didn't distinguish the difference between
a boat launch. I think. if I heard you right. you said that a
marina. a boat launch. and so forth. were all incorporated under
one heading. Is that correct?
MR. CAFFRY-No. not in '89.
MR. PHILO-When did it start?
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MR. CAFFREY-In '88.
MR. DUSEK-If I could interrupt, to put this in the proper
perspective, I think, John, correct me if I'm wrong, but I think
what you're trying to te 11 the Board is, obviously, one, your
position is that there was no boat launch that was being actively
used in the 80's, at some point.
MR. CAFFRY-Right.
MR. DUSEK-And what you're trying to tell the Board is, as proof of
this, not only do we have some witnesses that are going to come
forth later, but you're saying as proof of this, I want to show you
a permit that came from the Lake George Park Commission in 1982,
which doesn't refer to a boat launch. So, he's trying to say, this
is evidence that there was nothing active there, because if it was,
you're trying to say that it would have showed up on the permit,
and I think you're going to have to see the permit to really see
what he's referring to, because I'm looking at it here, and I can
see what he's trying to argue. He's just saying, our contention
is, there was no active boat launch, because if there was, it would
have showed up on this permit. That's what he's trying to say.
MR. CARVIN-Okay, but he doesn't really know if there was an active
boat launch in 1982?
MR. CAFFRY-Well, I think the other witnesses will establish that
there was not. Why I suggest this. I'm going to hand this up to
Ted, and maybe you can all look at it while everything's going on.
and I hope to speak again at the end, if you have questions, I can
answer them. That's. I think, all I have to say at the moment, but
I may want to respond to other witnesses. The other thing I'd like
to reiterate, aside from these documents and the facts of this,
was. again. when the Park Commission staff went there in 1988, they
were told by the Ellsworth's, there is no public boat launch, okay.
Aside from what ever permits were issued, aside from what Mr.
Pari 110 applied for and got, or did not get. When thi sPark
Commission staff went there on May 24th, 1988 they were told, there
is no public boat launch. They interviewed the Ellsworth family
and were told that.
MR. CARVIN-I'm going to clarify this, no public boat launch.
MR. CAFFRY-Right. It's clear. or as we understood it all along.
that the people who kept their boat at the Ellsworth Marina were
allowed to launch their boat there once in the spring and take it
out once in the fall, okay. That was put it in and move it 50 feet
up the creek and put it at that dock. It was not open to them on
an in and out kind of basis. It was not open to the general
public. okay, and as Dave Hatin said, he used to launch his boat
there, and then he was told he couldn't anymore, and a lot of
witnesses have said that, but it was determined. back in '89. by
Dave and by this Board, that there's a difference between allowing
your customers, once a year, to put their boat in. A lot of
marinas, they put their customer's boat in for them, these are all
trailer boats, so it's easy enough for the customer to do it
themselves, but that's very different from a public boat launch,
open to anybody who wants to come along and pay 10 bucks and pop
their boat in for the day and take it out at the end of the day or
the end of the weekend. That's really the big difference here.
I don't think anybody's disputing that the Ellsworth dock customers
launch their boat once a year.
MR. PHILO-John. what is the technicality, if the guy had an honor
system there. and he had a drop box, and he said that when you come
in, or anybody uses it. put the money in. Is that still for the
public. or is that for private?
MR. CAFFRY-I would say that that would probably be public. I'm not
aware that that kind of system ever operated.
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-
MR. TURNER-Yes. it did. I used it myself.
MR. PHILO-And I did. myself.
MR. CAFFRY-During what period?
MR. TURNER-Back. before that time, but it always was there. It was
the honor system.
MR. CAFFRY-And when did that cease, though?
MR. TURNER-I can't tell you that.
MR. CAFFRY-If the public was using it and paying money, instead of
giving it to a person. putting it in a drop box. I'm not sure if
there's a difference there. but the question is when it was open to
the public. however you paid your money, okay, and there was a
substantial period in the 80's when many people say they wanted to
launch their boat and they were told they can't. It's closed, if
I let you, I have to let everybody. So, when the honor system was
running, I don't know. but I don't think that's really. what's at
dispute here when it was closed. and that's different from the
customer's. once a year, putting their boat in, and taking it out
at the end of the year.
MR. PHILO-There was also a post at the end of one of the launch
pads. I believe it's the north pad.
MR. CAFFRY-Yes.
MR. PHILO-But also they had a. I put my boat in there, and it was
at the end of where the building is. they had a portable one there.
and they had one south of there.
MR. CAFFRY-I know there was one where there was a post in.
that myself.
I saw
MR. PHILO-And the only thing, the guy told us they were working on
it at that time. There was some work being done. If we wanted to
go over and use the other dock, we could.
MR. CAFFRY-When was that?
MR. PHILO-That was in the '88. '89.
MR. CAFFRY-That may have been after Mr. Parillo reopened it.
MR. PHILO-That post was in there for two or three years.
MR. CAFFRY-At least. Yes, I remember it myself. You'll see here
on the sketch that the Park Commission staff did in May of '88,
when they inspected the place and interviewed the Ellsworths. that
it shows that the north one, by the bridge there was closed. okay.
and that's what they were told. Then there was the other one to
the south, on their sketch. based on what they were told by the
Ellsworths, that says. launch. customers only. So that's the one
where the customers would put their boat in.
MR. PHILO-Well, they had one right next to it. There was a little
building where they sold fish gear. bait, or whatever. There was
a small building there, and there was one right next to that. too.
MR. CAFFRY-Yes.
customers only.
That's the one that, according to this, was for
Let me hand this up, and then you can look at it.
MR. DUSEK-Before John leaves, could I just ask a question, here.
John. are there two boat launches here? Have there always been two
boat launches?
MR. CAFFRY-As I understand it, and I'm sure somebody's more
familiar with the place than I am and can clarify it. There's two
9
ramps.
MR. PHILO-Three.
MR. CAFFRY-The one on the north was closed. was the one that had
the post in it. okay.
MR. DUSEK-When you say the one on the north. this would be the one
closest to the bridge?
MR. CAFFRY-Closest to the bridge. the one you can see right from
the bridge. That's the one that had the post in it.
MR. DUSEK-And is that the one that's in dispute tonight?
MR. TURNER-That's the one that's in dispute.
MR. WEST-Well. they're both in dispute.
MR. CAFFRY-Yes. basically. they're both in dispute.
MR. PHILO-Three of them.
MR. WEST-All three of them are in dispute. and prior to the record
opening tonight. I asked a question. if some photographs that were
submitted in 1989 are still available. and to the best of my
understanding. they have not been located in the files. Is that
correct?
MR. TURNER-Yes. I can't find them. Tom. I haven't found them.
MR. PHILO-I saw them.
MR. TURNER-Well. those are not the ones he wants.
MR. WEST-There were photographs taken the summer of 1988. of each
one of these launches. by my wife. following her discussion with
Mr. Hatin. which lead to his personal inspection. They were
submitted to this Board in the fall of 1989. I don't recall which
meeting because we were in the middle of the variance proceedings.
when they were transformed into reconsideration of the termination
of use proceedings. but during one of those meetings. I submitted
those to the Board. as being the best evidence of the closed nature
of the launches. and I think it's very important that we try and
find those photographs. Just to respond to your comment. Mr.
Philo. I recall that there were posts in the north ramp that
blocked access. and that the one closest to the shed. or the old
store. had an eye beam or something like that across it that was
removable. Generally. that eye beam was up all summer. In the
spring and the fall. people who docked their boats there. could put
their boats in and out there. and that eye beam was removed for
that purpose. but it would be wonderful to have the photographs.
They're the best evidence.
MR. PHILO-There was even a sign there that said it was closed.
MR. WEST-It said no launching. or something to that effect.
MR. PHILO-That one launching. but it was just for that one ramp.
while they were working on it. they had a post in there. I had a
boat there myself. and I can't say that launch was closed. because
they said just come in. around the post. and you could use it if
you wanted to. but we have two other launch sites that are open.
and the one next to the building was not. it was too steep. We had
to go down on the south one and put our boat in.
MR. CAFFRY-You were docking a boat there yourself?
MR. PHILO-Yes.
10
MR. CAFFRY-So, you weren't just quick launching it? You weren't
trailering it in. You were keeping a boat there and launching it.
MR. PHILO-No. I put it in every weekend.
MR. CAFFRY-But you were keeping it there?
MR. PHILO-I had a dock there, myself and another person.
MR. CAFFRY-Okay.
MR. PHILO-But the other person had the other side of the dock, and
he used it most of the time. We'd take our boat up to the river,
and we'd go in maybe once a week or two weeks.
MR. CAFFRY-But you were a customer? You were paying to dock your
boat?
MR. PHILO-Jointly, we were paying it.
HR. CAFFRY-Yes.
MR. DUSEK-One more question, John. Then what's in contention then
is all three ramps or unloading facilities, or whatever they're
called, and it's the LGA' s position that wi th regard to those
three, you're going to submit further proof tonight, yet, that you
feel demonstrates that all three were not available to the public
for quick launch purposes, for a period of at least 18 months, is
that the idea?
MR. CAFFRY-As I understand it, right from these documents, and also
from talking to neighbors and reviewing the whole record of
everything, that it was Ellsworth's policy, there is no public
launch here on my place. It was a specifically ramp by ramp kind
of thing. Yes, this one's open to the public, at 10 bucks a pop,
and this one isn't. It was, the whole place was closed to public
launching.
MR. DUSEK-And what time period are you saying that this covered?
MR. CAFFRY-I think generally through the entire 80's, and that will
have to come from the witnesses, and all that, but I think also
there's the evidence that I read in the transcripts from the prior
hearings would sustain that. I can't say if it happened in '79,
'81, whenever he shut it down, but I think through the entire 80's,
that they were shut down. That's my understanding of it.
MR. PHILO-Through the entire 80's? Say that again.
MR. CAFFRY-Through the entire 80's, there was no public launching.
That's my understanding. Exactly when it was ' 79, ' 80, ' 81, I
can't be sure. Maybe some people are. It doesn't mean that people
like you who were docking a boat there couldn't put their boat in
and out, but that the public was not supposed to come in and pay 10
bucks a pop, or whatever, and launch their boat for the day, and
then take it home, and I think, again, there testimony that will
show that that was the case, that people tried to launch their boat
and were told by the Ellsworths, it's not open. I can't let you
launch at it whatever. So there's two sets of people, here, the
people who were customers, and the people who were just general
members of the public. Any further questions?
MR. TURNER-John, are you done?
MR. CAFFRY-Yes, I am.
MR. TURNER-Mr. Richards.
MR. DUSEK-Mr. Chairman, I take it, from the fact that Mr. Caffry
just went, and then now Mr. Richards is going, these are kind of
11
like opening statements type of things?
MR. TURNER-Yes.
MR. DUSEK-And then they'll go back to introducing the people that
they have. that they want to call?
HR. TURNER-Yes.
JOHN RICHARDS
MR. RICHARDS-Thank you. My name is John Richards. and I represent
Frank Parillo. I have just a couple of things on what John said.
At least part of this proceeding is an appeal from Dave Hatin's
February '92 letter. and as far as the burden of proof is
concerned. we're not objecting to any enforcement action of the
Town or anything like that. In fact. the Town has agreed with us.
So. we certainly don't have the burden of proof to prove anything.
Even if we did. we can more than demonstrate that. and I will in
just a minute. A couple of other things that John said. and I
didn't say anything while he was speaking. but some of the stuff
was just out right wrong or irrelevant. I got this affidavit from
John right before we walked in the room. so I just had a chance to
read it as he was talking. The affidavit says that he spoke to a
Tracey Clothier. who in turn interviewed Allison Ellsworth in May
of 1988. My understanding in talking to both Frank Parillo and to
the person who managed the marina for Allison Ellsworth. this would
be the last year of his life. I believe. 1988. is that he was an
invalid. I know that the manager said he was not always lucid. and
Frank said that he never came to the door and never said a word to
him. never met the man in all the discussions they had. So it's
hard for me to imagine that she could have a discussion wi th
Allison Ellsworth about the marina shortly before he died. I don't
know if he had a stroke or an auto accident. but in any event. he
certainly was not in a shape to discuss this with anyone. it is my
understanding. Second. John has made a large issue out of the Lake
George Park Commission's role in all of this. I want to emphasize
that their regulations are completely irrelevant to the Town's
regulations. but we do have a letter. there was an inquiry from a
neighbor questioning the marina and the launch. and a letter dated
January 9th. 1992. by Michael White who was the Executive. or was
certainly at that time. the Executive Director of the Lake George
Park Commission. He said that based upon the. that he conducted a
review of the reference facility. in terms of issue. It involved
a comparison of registered docks. and was present at the site. and
also the required facili ties were evaluated against regulatory
criteria. and he went through and checked all through it. and down
here at Number D he said. our records indicate the presence of the
launch. when the original marina permit was issued to Mr. Allison
Ellsworth. in 1982. and it says. contrary to your statements. we
find a limitation on the maximum number of launches which may occur
on a particular day. I'd like to submit this. I don't have copies
of this. because I didn't realize this was going to be an issue
this evening. but clearly the Park Commission has checked and has
confirmed the launch existed and has an objection to its current
operation. I thought it might be helpful. I'm trying to be brief.
here.
MR. DUSEK-Can I just interrupt. John. for a quick moment. on that
point. Did the Lake George Park Commission. by any chance. make
any reference as to whether that is just an existing launch. or
whether it was a public launch? Did they distinguish that point?
MR. RICHARDS-I quoted you the exact language.
MR. DUSEK-Okay.
MR. RICHARDS-It was not discussed public or anything. The launch
was there.
12
MR. CARVIN-Okay. What was the date on that?
MR. RICHARDS-That letter was January 9th, 1992, from the Director
of the Park Commi ssion. Now, if I could just take a second, I
think it's always helpful on these, and probably I should have
suggested it before John spoke, to put the map up so you have that
in front of you. The reason why I put the map up is I think it's
important to remember throughout this, that at least until this
evening the key launch that was at issue, that people were
questioning, was the northern launch, and what makes it confusing,
a Ii ttle confusing, is that this section in here, this middle
section, is the part that we refer to as the Robert Ellsworth
parcel. There were these two Ellsworths, Allison, who owned both
north and south of the Robert Ellsworth parcel. There are no
launches on the Robert Ellsworth parcel. Frank Parillo purchased
that from Robert Ellsworth, and by the way, I believe you may know
yourselves, they were related, but not father son or brothers, I
don't think, and there are no launches at all on the Robert
Ellsworth parcel, and Frank Parillo purchased that, I believe, in
1985, and ran it, and then purchased the Allison Ellsworth parcel
in 1989, put in a contract in '88. John has also said that the
letter that I sent up, and apparently didn't get there in time, but
that the letter dealt with some legal issues that were not properly
before the Board. I can't for the life of me understand why in the
world it shouldn't be before the Board, to determine how you make
your decision, and I just want to repeat those ever so briefly,
that there are three reasons why we feel that this launch is a
protected nonconforming use, or that advertising a launch to the
public, I should say, it's a protected nonconforming use. The
first part of this is that it is, in fact, an integral part of a
marina. You really can't pullout separate uses, any more than you
could pullout this shed there, or one or two particular docks.
You can't isolate these separate uses in a marina. There was a
case about two trailers which constituted a nonconforming use in
one town and they removed one trailer and several years later went
to put it back, and they said, no, you can't do that. It's a
separate nonconforming use, and the courts said, no, that's not
true. Trailers themselves are the nonconforming use. Putting one
back is not a problem. Also, John did bring up the Lake George
Park Commission by saying that they recognized launches and I don't
know if he said this, but I believe they do have separate
definitions for certain types of launches. I would note, unless my
Queensbury Ordinance is out dated, that there still has been no
separate definition of a launch in the Queensbury Ordinance,
despite the 100 plus or 200 plus definitions that they have. I
know that the Board was surprised, several years ago, when they
learned of that, and still there's been no change. So, clearly the
Town has not deemed a launch and the Board, a separate use, in and
of itself, has to require a separate definition. My point being,
in summary that you've got a marina. A marina includes, obviously,
launching, and there's no reason why should be able to pull a piece
out of that and say that's not a nonconforming use, but the marina
is. It just doesn't make sense. Second, and we'll get to the
discontinuance issue in a minute, there's been, in order to require
any permit, a separate permit, a nonconforming use has to be
changed, and there's certainly been no change or even in the time,
the last couple of years while this proceeding has been ongoing.
There is no change. There was never a physical change done, other
than cleaning up the area and maybe improving the lighting. The
launch that is at issue, that's being used, actually all the
launches, are the same now as they were before. There hasn't been
one change whatsoever. It's que stionable even if the volume is
that much greater, and as Mr. Philo just indicated, people renting
docks who launched their boats there may have done it a couple of
times a month. It doesn't necessarily mean it's in for the season
and out at the fall, as John seemed to intimate. There was another
case, called the fish case, in the zoning, where a man operated a
wholesale fish store, and then eventually made it a retail, from a
wholesale fish to a retail, seafood type operation, extended the
hours, and all of that. The courts said that was not a change in
13
use, that was just an increase in volume. So, even if there is a
slight increase in volume, that doesn't indicate that there's a
change in use. Now on to the discontinuance situation, in that
that really is the one that I think the opponents and these
appellants have been hanging their hat on, and that's clearly where
we can demonstrate that there has never been a discontinuance.
HR. DUSEK-I hate to do this to you, John, but I just want to
clarify one point before you left that other area, and actually
it's before that, even. It's when you were talking about the
integral part of the marina, the boat launch. Are you essentially
arguing, and I just want to see if I can help the Board crystallize
this. Are you essentially arguing that the launch is an accessory
to an existing nonconforming use, as opposed to an expansion? Is
that what you're trying to say?
MR. RICHARDS-What I'm saying, and I think Dave even referenced it
in his letter that's the subject of this proceeding, is that you
can't pull" out one part of an ongoing operation and say that's a
separate individual use, any more than you can pullout the kitchen
in a restaurant or a room in a hotel, anything like that. I'm
saying it's part and parcel of the overall operation.
MR. DUSEK-Okay. So, you're saying, essentially, that if you have
a marina, that has to, by definition, mean that it's a public, open
for all purposes?
MR. RICHARDS-I'm saying, if you have a marina that's an ongoing,
operating launch, open to the public, it would certainly be a
natural part of that, a marina may not have it, but many do. On to
the discontinuance, and the key thing on the discontinuance issue
is that there must be an absolute 100 percent cessation of use.
The case that I refer to in that letter is a very interesting case
in that the facts are so similar to this in a lot of respects.
Down in Long Island there is a marina, and a marina was put up for
sale, and no one docked there at all. As a matter of fact, there.
As a matter of fact, there was some litigation that held up the
sale for a couple of years, and during that time period, the only
person who docked the boat, from what I can gather from the brief
case notes that there are, absolutely the only use for this marina
was the attorney for the marina's owner kept a boat there and used
it twice one summer and twice the next summer. The entire marina
operation, not just launching, and the courts said, well, that's
still a use, it still does not constitute, breaks the idea that
there was a cessation, and the use was not discontinued, as the
town alleged. Now that's a very minimal standard, and one that we
can more than defeat. I kind of pulled together exhibits that have
been offered to this Board in the past, some things that were given
to Dave Hatin, before in his letter, and in which he based his
letter, as we 11 as some additional information, and I've made
copies here, and what I thought I'd do is pass these out and run
through them again very briefly with you, but I think will
demonstrate that he certainly has, there's never been a cessation,
public or non dock rents, for use of that launch. Again, some of
this is things that this Board or people on this Board have already
seen. I've included just an extract from the minutes of that
December meeting, in which Hr. Salvadore said that the trappers
used it and contractors used it. Then I've included an affidavit
from Frank Parillo, and of course he's here tonight if you'd like
to ask him personally, just confirming that during the four year
period when he had first hand knowledge, when he bought the Robert
Ellsworth piece, that his boat rentals, or his dockers, used the
Allison Ellsworth launches all the time, and that in and of itself
is enough to show discontinuance, because they were not renters
from Allison Ellsworth, and I think there was a certain
arrangement, I think Frank took care of the dumpster and trash
removal in exchange for the launch rights, and I think in exchange
for Allison Ellsworth's, around the launching, and I think he also
took care of the sanitary situation with the porta johns. So,
14
right there. there's 30 slips used frequently who weren't dock
renters from Allison Ellsworth. and that's enough right there to
let us keep using it in a way we plan to. Second. we've got a
statement. at the end. that was given back in '89. from a gentleman
named Peter Gaylor. He used the launches. He was a duck hunter.
He paid Mr. Ellsworth by leaving firewood. I want to emphasize
these people. you saw the launches. a lot of times would act
informally. Well. he left some firewood with the Ellsworths. in
exchange for launching there. Remember. anyone of these is enough
to defeat the idea of the total cessation. There's a statement
from a Don Gauger. He worked at Dunham's Bay Boat Company. said
he's seen other boats use that. and then one of the statements.
I've got nine statements here that were given to Dave Hatin in 1992
by persons that said they were not seasonal dock renters from
Allison Ellsworth. and they still launched their .boats there. I've
got statements from three people. I should say copies of those
nine. because Dave had the originals. and then I've got three
original statements of people who used it during 1987. Another
nine statements of people who used it in 1987 and '88. and then I
obtained a few aff idavi ts as we 11. and I want to call your
attention to one or two of these in particular. The first one is
toward the back. Virgil Shear. said that he didn't rent. the only
time he rented a slip. not at the marina. but he rented a slip from
Mr. Ellsworth from Dunham's Bay itself. and that was just for two
summers. all the other times. he didn't rent anything from Mr.
Ellsworth. and he used it for 20 years continually. from 1972. to
date. every summer. and launched a boat there. Again. anyone of
these is enough to show that. James Denton used it in '87 and '88.
I'd like you to look at the James Dickerson affidavit. which comes
after that. which says that he has a fishing boat and he fishes in
Lake George. and during the summers of ' 85. ' 86. and ' 87. he
launched it at the northern most launch. the one they're talking
about in particular near Route 9L. and that on some occasions he
had to back his boat around a post. and we're not ever saying that
there wasn't a post there. We know there was a post. and he back
right around it and paid the Ellsworths $100 each summer for that
right to launch. So. this person is not a boat docker. He's an
individual coming in from Ticonderoga to launch his boat there.
paying money for it. Gordon Quicken. who was the manager of the
marina for three years. and said that he also. the barrier there.
that was to cut down on the unsupervised launching when he was not
around. but even when he was around. he said he personally
witnessed five or six fishing boats being launched from the
northern most launch. Again. they used all the launches. So. five
or six fishing boats. and those. people did not rent docks from
either Allison Ellsworth or Robert Ellsworth. During the summer.
the manager launched at least six boats that he's aware of. He
also says other people backed around it. but the one's that he's
aware of. there were six of them. and I've also included. we have
a petition with 126 signatures. not saying that they used it. but
in support of this having the launching open to the general public.
So. that's really it. You've got the copies there to look through
if you'd like and summarize the key parts of it. but there are over
30 people documented just in there who use the boat. launched boats
on it. did not rent slips from either Allison or Robert. and
launched boats there during the time we're talking about. Anyone
of those people would be enough to defeat the cessation issue, and
it's clear that this facility has been continually used for at
least 20 years that we're aware of by people other than rents of
Allison Ellsworth's slips.
MR. TURNER-Any questions? None? Okay. John. Thank you. Any
questions of Mr. Parillo. before we get into the hearing?
MR. CARVIN-Is James F. Parillo any relation?
FRANK PARILLO
MR. PARILLO-My father.
15
HR. CARVIN-Itìs your father. Okay.
HR. PHILO-Hr. Parillo, was that drop box still there when you
bought the marina?
HR. PARILLO-For the record, Frank J. Parillo, Ballston Spa. The
answer to your question is, no, it was not.
MR. PHILO-When you purchased the property, did you see it at all,
when you walked up there?
HR. PARILLO-It was the re in ' 84, when I bought the, or ' 84, ' 85,
when I bought the Robert Ellsworth parcel. To tell you what year
the box was discontinued, I really don't know because my customers
just use it at will. So, I really have no reason to use the box,
but I know that it was there when I purchased the Robert Ellsworth
piece.
HR. PHILO-Thank you.
HR. PARILLO-The other thing I might add is that I believe in 1985
Allison Ellsworth and Habel Ellsworth, that's his wife, who was the
subject of a sales tax audit, for the launch fees, so it did go on
in '85 on a regular basis.
HR. PHILO-What year was it that you bought it?
MR. PARILLO-The first piece, or the?
HR. PHILO-The second, Allison Ellsworth's.
HR. PARILLO-We closed on it in March, April, or May of '89. When
we contracted to buy it in '88, Allison Ellsworth was an invalid.
He could not come to the door. I mean, I've never spoken a word to
the man in my entire life. So, my dealings were all with his wife.
MR. SICARD-Do you know what year that Allison died?
MR. PARILLO-He died before the closing.
MR. SICARD-I think that was around '84, wasn't it?
HR. PARILLO-No, no, '88. He died in 1988.
HR. CARVIN-Just one question, Mr. Parillo, have you done any, and
I know Mr. Richards indicated that there's been no expansion. Does
that include parking? Is the parking about the same as it's been
over the last few years?
HR. SICARD-That hasn't changed.
MR. CARVIN-That has not changed?
HR. PARILLO-No.
HR. CARVIN-Okay.
MR. PHILO-It's actually the same. In fact the house, they've just
remodeled that little, where you had that fish and tackle gear,
where they sold it there. They've spruced that up. It looks
better.
HR. PARILLO-That's on the Robert Ellsworth piece.
the Allison Ellsworth piece.
That's not on
MR. TURNER-Any further questions? Okay. Thank you. Mr. Caffry,
do you have your witnesses? Do you have somebody that wants to
testify on your behalf? Did you bring anybody here in particular,
before we get to the public?
16
MR. CAFFRY-Yes. First I'd like to respond to something that Mr.
Parillo said about Allison Ellsworth being sick in ' 88. In my
discussions with Tracey Clothier. I may be confused as to exactly
who she spoke to. but she was quite clear on the fact that she went
there. She interviewed people. Maybe she spoke to the wife and
the manager instead. or something like that. but she interviewed
people who presented themselves as the owners and operators of the
facility. Maybe it wasn't Allison Ellsworth himself. but it was
quite clear to me. she recalled going there and talking to people.
She didn't just wander around herself with a tape measure and
nobody there to tell her what the situation was. She did interview
with the operators of the marina. and if I was mistaken as to the
first name. or she was. then that may not be entirely correct. but
it was qui te clear that she did interview people when she was
there. and those were the answers she got. and that's why she put
that down on the forms. As far as wi tnesses go. there's a Hr.
Waldron from Dunham's Bay. a letter from him. and plus he'd like to
speak.
MR. TURNER-We'll get that to the public. Do you have anyone here
on your behalf?
MR. CAFFRY-Well. he will be testifying on behalf of the Lake George
Association.
MR. TURNER-Anyone else?
MR. CAFFRY-There are other people from the public who the Lake
George Association has asked to be here. but I'm not going to
present witnesses. in terms of cross examining them. I'll let them
say their piece at the public hearing.
MR. TURNER-Okay.
behalf?
Mr. Richards. do you have anyone here on your
MR. RICHARDS-No. Mr. Turner. I believe there's some members of the
public that might speak to that. I'd just point out that this. if
there's confusion about Allison Ellsworth. regardless of what was
said in an affidavit. you got an affidavit of our own first hand,
from the manager who worked there at the time.
PUBLIC HEARING OPENED
TOM WEST
MR. WEST-Good evening, Mr. Chairman. I think, first and foremost.
I would like to set out some legal issues that I think have to be
addressed by this Board. I mentioned earlier that there was some
evidence in the nature of photographs that were submitted. and I
would hope that this Board would make a diligent search. not only
of your own files. but the Town Attorney's file. and ask that the
Town Attorney review the court records. and the Warren County
Clerk's Office. if necessary. to try and locate those photographs
because. again. I think they are the best evidence of the nature of
the site.
MR. CARVIN-Can I interrupt you on that? Who has the negatives? Do
you know who presented those photographs?
MR. WEST-I presented them. My wife took them. I will go back and
see if there are any negatives or any copies that were kept. but I
don't know that there are.
MR. CARVIN-Can you identify these photographs? I know Ted and I.
were these from the original '89 stuff? I mean. these are not the
photographs in question?
MR. WEST-I saw those photographs for the first time tonight. and
prior to this meeting. when we were both reviewing the file. with
a list of my photos that I submitted in 1989. I cannot identify
17
those photographs specifically.
Getting to the legal issues.
MR. DUSEK-Tom. can I just interrupt? I think that Tom's request
that we search for the photographs is certainly reasonable.
HR. CARVIN-I'm not disputing that. I just know that there are
photographs in the record. so I don't want this to seem like it has
disappeared. You wonder if those are the photographs?
HR. CARVIN-I don't know. I wasn't here in 1989. I know there are
photographs in the records. It appears that they are from the '89
time frame. There are no direct dates.
HR. WEST-Those are not the photographs that I'm referring to.
Specifically. I believe I submitted two. if not three photographs.
I think there may have been three. one of each one.
HR. CARVIN-Yes. Ted has indicated that he thought that there were
loose photographs. but I do know that in my short tenure on this
Board here. occasionally people bring photographs. show us the
photographs. and then take them back. So. I want to be kind of
specific that these are not the photographs that are in question.
because these ~ in the records.
HR. WEST-Having considered those to be the best evidence at the
time. and wanting them to be a part of the record. I am quite sure
that I did not take them back.
HR. CARVIN-Okay. Well. again. as I said. we will make. I'm sure.
a strenuous effort to locate those. but if you have copies of them.
certainly we would appreciate your assistance in that matter.
MR. PHILO-Mr. West. would you please explain to me what the point
of these photos are? I'm new.
MR. WEST-Okay. I'll put them in perspective. I was going to get
to a statement of the facts as I know them at the end of my
presentation. after addressing some of the legal issues. but I will
instead address the facts from my own personal knowledge. as well
as what occurred in 1988. leading up to Mr. Hatin's decision of
1989. I would like to also call Mr. Hatin and ask him some
questions tonight to confirm some of the things I'm about to tell
you. Now. I have been a life long summer resident of Dunham's Bay.
and in fact my family has owned property in Dunham's Bay for some
200 years. except for the short period of time when they lost it
during a poker game. I don't know. but in any event. we've had
property in Dunham's Bay for many. many years. Being a life long
summer resident. I have had many occasions to personally witness
the Dunham's Bay marina. and I do recall very specifically that
there were time periods. and I would think back probably in the
early 80's. maybe in the late 70's. but I'm not entirely clear.
when Mr. Ellsworth did operate a public boat launch. and let me
make the distinction. I think that what the Lake George
Association has proposed. and what we residents of Dunham's Bay are
concerned about is the ongoing public boat launching at that
facility. We're prepared to ask Dr. Carol Collins. who is a PhD
Limnologist with extensive experience on Lake George. to explain to
you why the operation of a public boat launch and the traffic
associated with that is detrimental to both the Dunham's Bay
wetland. Dunham's Bay. and Lake George. and I would hope that this
Board would hear her position on that tonight, but getting back to
the facts, we, as neighbors, have always been concerned about the
public boat launch operations as opposed to the seasonal docks.
The seasonal docks have been there as long as I could first paddle
a canoe, and there were times when Mr. Ellsworth made attempts to
expand those. I be 1 ieve, in the late 19. or early 1970' s. There
was an attempt to. or some discussion about dredging between the
two sets of docks. and essentially cutting off the bend in the
creek and adding more docks. and that lead to some proceeding
before the Town. I was in college at the time. and I recall this
18
-'
To\m taking a very progressive step and being very progressive
about trying to protect that Dunham's Bay wetland, adopting some
interim stop gap zoning, declaring that to be 10 acres, and
essentially stopping that project. So, there's a long history that
the docks were there. There was also a period of time when there
was some public boat launching operations. There was always
concern to the residents, because the people who come in there
generally are not familiar wi th the lake. There are a lot of
people who come in on the weekends. Once the speed limit was put
in in Dunham's Bay, you find that the people who most frequently
violated are the people who launch at the now Parillo boat launch
that come out. They don't obey the five mile an hour speed limit.
These kinds of issues are all concerns of the residents of Dunham's
Bay. My own personal observations are that in about the mid
1980's, Mr. Ellsworth discontinued the public boat launching
facilities as we consider them and as Mr. Parillo is operating them
today, and what I mean by that is that there were no trailers
parked there or boats that were coming in for boat launches or
weekend launches and utilizing anyone of his ramps for that
purpose. Instead there were these seasonal docks, and there may
have been some seasonal dockers and there may have been some of his
friends or firewood vendors, I don't know, who put their boats in
from time to time, but clearly there was a change in that use, a
marked change in that use, and I think all of us were very glad to
see when Mr. Ellsworth or his manager or whoever was running the
facility went to the step of putting the pillars, and I wish we had
the pictures, because the pictures are worth 1,000 words, if not
10,000, but what there was, in 1986, '87, and '88, as I recall,
there were actual timbers that were placed in the ground near that
north, or in front of that north launch, to prevent people from
using it as a public boat launch. I believe there was a sign to
the effect of no launching, and the other ramps had barriers that
were not quite so permanent. As I mentioned before, Mr. Phi 10,
when we had the discussion, during Mr. Caffry's presentation, it
was my recollection that there was an eye beam type structure that
was placed between two pillars and that that was removable to allow
for the periodic type launching that was occurring for the seasonal
dockers.
MR. PHILO-Was that while they were working it? I want to be as
fair about this as possible, and everything, I've talked to
contractors that worked up there on that site, at that time, when
they were remodeling, they were fixing that north ramp, the
docking, they put the post out something like 35 feet, 40 feet from
the water, and you could go in either side, and they let you, this
Hr. Ellsworth was a different type man. I agree, okay.
MR. WEST-I could tell you some humorous folk lore about my
grandfather's encounters with him over some of these signs. Yes,
I would agree with you. He was a different type of man, but the
fundamental fact remains, based upon my own personal observations
and the observations of many other people, they say he made an
attempt, in the mid 1980's, to shut down that public boat launch.
I don't recall that. I recall there was a time when that launch
was put in, first put in, and the pavement was not very good, and
there was a later point in time when the pavement was repaired, but
that was not in '86, '87, or '88, when the pillars were there. To
the best of my knowledge, the pillars were not put in to facilitate
construction. They were put in for the defined purpose of
terminating the public boat launch activities, and there were signs
put up, no launching, to reinforce that fact. That's the way we
interpreted it. That's the way we saw the operation changing
character.
MR. PHILO-I remember that sign was on a tree, Mr. West, and I asked
him, what about this sign up here, we can't launch here anymore,
and he said, no, the liability, this is the old man, said the
liability, if they went past that, they were on their own, but he
still took a dock fee from us. He still took the launching fee,
and we were south of that, we could go in next to that building.
19
There was a ramp right there. and then south of that. there was
another ramp. We could go in either one of them. but he didn't
want us to go over there. he said the liability. He put a post up
there. and it was 30 feet. I could take a tractor trailer and put
it in there.
MR. WEST-I believe there were two posts. as I recall. not just one.
MR. PHILO-Well. the only one. I remember that sign.
birch tree.
It was on a
MR. WEST-I don't recall there being any trees out by that. the
north launch. There may have been signs by other ramps. but you
asked me what the significance of the photographs in 1988 was. and
I've gotten into a long winded explanation to tell you just that.
Recognizing that there had been a change. and knowing that Mr.
Ellsworth was sick. having heard rumors that the property was for
sale. had the occasion to talk to Mr. Hatin in 1988. and I didn't
personally do it. but my wife did. and Dr. Collins. who is present
here tonight did talk to Mr. Hatin in 1988 about some Lake George
issues in general. and during the course of that conversation. they
brought to Mr. Hatin's attention that there was likely to be. going
to be an issue concerning the public boat launching at the
Ellsworth marina. whether it's the Queen's Marina. as it was called
in the Park Commission Regulations. That's the first I've ever
heard of that. We always called it the Ellsworth Marina. As a
result of that. Mr. Hatin suggested to my wife and to Dr. Collins
that they take photographs of that situation. He also made the
representation that he would personally investigate and inspect the
condition of that marina himself. Now exactly what he did in the
course of his investigation. I don't know. I would like to call
him as a witness tonight and have him explain to the Board what he
did in 1988. because I think that's relevant. Mr. Hatin. like many
of us. had occasion to go by there during the course of the summer.
I know he was aware of this issue. and I believe he made a number
of observations. not just a singular observation. So. the
photographs are significant in that they are evidence that was
gathered at the suggestion of the Town official. dealing with the
likely occurrence of this issue. and the fact that it would
probably come up in this kind of situation. I'm not going to
repeat everything that was said earlier this year. about the legal
status of where we are. I will just say this. sitting in the
audience tonight and hearing you. Paul. make some statements and
very clearly taking the position with the LGA that the burden is on
the LGA. come forward with evidence at this time. I think. it made
me wonder. had I missed something. We came here on several
occasions this past spring. and over the course of the summer. and
we had briefing scheduled. and we raised a number of legal issues
regarding the legality of Mr. Hatin's February 1992 reversal of
this Board. while the judicial proceedings concerning this case are
still pending in court. and after this Board had already voted at
least three times. once in the summer of 1989. unanimously
determining that there had been a cessation of the nonconforming
use. the public boat launch. Failing to meet the required
unanimity in the fall of 1989. when they reconsidered that issue.
wi th much of the very same evidence that Mr. Parillo and his
attorney have presented here tonight. and then in 1991. after the
Appellate Division ruled. there were a number of meetings when this
Board decided to rehear this. and then tabled it. and decided to
rehear it. It got to the point. in Decembe r of 1991. I recall
specifically being here. asking this Board to render a decision on
the rehearing. They had voted unanimously to rehear it. We knew
that the Board was changing. because Mrs. Goetz was going on to
greener pastures. and we thought that before the composition of the
Board changed further. that it would be important to have the issue
decided. The issue, over our objection. was tabled at that time,
then we get to 1992. Mr. Hatin takes charge of the situation, by
himself. makes what we consider to be an illegal determination.
while this matter was pending both before this Board and before the
New York State Supreme Court. and reverses it. and now I'm hearing
20
from the Town Attorney. through the comments that were made
tonight. that the burden has shifted to the LGA as the Appellant.
to come forward and prove.
MR. DUSEK-I've got to stop you right there. Tom. Correct me if I'm
wrong. and the Board members. I never said that tonight.
MR. TURNER-He didn't say that.
MR. DUSEK-No. Let me make it absolutely clear. I heard a couple
of parties raise that issue tonight. as to who has the burden of
proof. I believe Mr. Caffry might have made a statement in that
regard. and I believe that John has made a statement. I have not
advised the Board whatsoever. and nothing that I've said tonight
should be interpreted as any interpretation as to who I believe has
the burden of proof at this point. I haven't rendered any kind of
an opinion on that.
MR. WEST-Has the Board rendered a decision regarding that. because
it's very important. because it's important to know whether or not
Mr. Caffry has to come forward with evidence at this point in time.
or whether or not Mr. Caffry and the public can rely upon the
quali ty and quantum of proof that Hr. Richards has offered. I
think very clearly what Mr. Hatin did in February of 1992.
attempting to reverse this Board. on his own. was illegal. and
therefore this Board has decided to rehear this matter. it goes
back to the original appeal. and it is clearly Mr. Parillo's burden
to establish that there was no cessation. We have raised, in prior
correspondence and in prior meetings, a number of issues as to why
Hr. Parillo cannot legally have another bite at the apple. This
is, I think. his fourth or fifth bite at the apple. and he had the
opportunity in July of 1989, in the fall of 1989. He had the
opportunity when the matter was reopened in 1991, and then he's
taken the opportunity to convince Mr. Hatin to readdress the issue,
and so this is the fourth bite at the apple. For all the reasons
that were decided, for res judicata. administrative finality. all
of those legal reasons we think Mr. Hatin's decision is illegal.
That issue should be put to rest by this Board, and if you're going
to rehear this, you should rehear it with the burden being on Mr.
Parillo. Once you've properly established who bears the burden.
I'd just like to say the following. regarding Mr. Richards'
statements. First of all, we do not agree that a public boat
launch is an integral part of a marina. There really are two
distinct operations, and what I was getting at before in my long
winded answer to your question of the relevance of the photographs.
and by the way, are you voting, do you intend to vote on this, Mr.
Philo. or are you disqualifying yourself. based upon your personal
use of the boat launch?
HR. PHILO-I'm going to say this. The Town put me in here to do
justice, and I'm going to do the best I can. I'm going to look at
everything. I've gone to all the neighbors. I put a lot of time
in this.
MR. WEST-And we certainly appreciate that.
HR. PHILO-And I want to be fair with everybody. Because I went to
the Grand Union, doesn't stop me from looking at his situation.
Now. would you please answer how important those pictures are. and
\'lhat they mean. to me. You've circled around, and you haven't
answered, really. what I want to know.
MR. WEST-The photographs are demonstrative of the overt actions
that were taken by Mr. Ellsworth and his wife, in 1988, to
discontinue the public boat launch activities. There were barriers
erected and signs posted, indicating that there was no launching.
Now. what people did on their own. or as part of their seasonal
boat rental. is not at issue here. What is at issue is the fact
that for about three years, as I recall. based upon my own personal
recollection. having lived near there. and having driven by there
21
many days during the summer. Hr. Ellsworth had made a distinct
effort to discontinue and abandon public boat launching activities.
and that is the relevance of the photographs. Do you want further
clarification?
HR. PHILO-Thank you very much. To answer your question. you asked
me if I was going to abstain. I'm going to ask our attorney over
here. should I abstained because I rented a space or launched a
boat up there? I want it honest. and I want to do an honest job.
HR. DUSEK-I've been in this business a while now. and I've learned
one thing. and that is not to shoot from the hip. I think what we
ought to do is consider that issue. I think we should definitely
go over it and figure out what the appropriate response would be.
As you know. it's been my advice that you don't render a decision
tonight anY\'lay. So. I think there's time to address that issue
concerning that. unless Tom has an objection to you even sitting.
I don't know. Do you have an objection as to that. Tom?
MR. tiEST-No.
I just raise the issue and think it should be.
MR. DUSEK-I think it's a fair issue. Tom. and we ought to take a
look at it.
MR. PHILO-I want to be honest.
MR. DUSEK-Yes. and I want to do the right thing. too. and I think
we want to take a close look at it and not shoot from the hip
tonight. Dealing with Mr. Richards' comments. first of all. we do
not agree that the public boat launch facility is an integral part
of the seasonal dock rental activities that Mr. Ellsworth
maintained. They were two distinct operations. He made a very
significant overt attempt to discontinue public boat launching
activity. We thought he was successful. We asked an official of
the Town to personally investigate. and the official of the Town
has personally represented to this Board. on several occasions.
that through his investigation he concluded that the public boat
launch activities were terminated. and we think that those
activities are definitely separate and distinct from the seasonal
dockings. We believe that there has been a change in the
nonconforming use. When Mr. Parillo bought it. he reopened the
public boat launching activities. Some of the photographs that I
have reviewed. that have been submitted by interested members of
the public. show the extent of the operations. On certain
weekends. it's cro\..¡ded and congested there. There are traffic
hazards. It is a far different situation than that which existed
in 1986. 1987. and 1988. \..¡hen Hr. Ellsworth made his attempt to
shut down public boat launching activities. and in terms of the
discontinuance issue. we also disagree with Mr. Richards' analysis.
We do not believe the Appellant Division's Second Department case
is relevant. If there were no docks rented. but if Frank Parillo
\'lere to have a bad year. and John Richards were to be the only
renter of one of its dock. then that case would be relevant to your
consideration. but that doesn't have any relevance to the two types
of distinct operations that we're talking about here. The public
boat launching activi ties that go on all summer long. and the
safety problems in Dunham's Bay can lead to environmental issues
with both the Dunham's Bay wetland and Dunham's Bay itself. They
are clearly two distinct issues. Finally. dealing with the
evidence that has been submi tted by Mr. Richards. I think the
evidence established by the Lake George Association. through their
review of DEC files and the Lake George Commission files. show
that. once again. Mr. Ellsworth made a very distinct attempt. and
a public attempt. to discontinue the boat launching activities.
Somebody. I don't know whether it was Allison Ellsworth. I don't
know whether it was Mrs. Ellsworth. I don't know whether it was
the manager of the operation. made a statement to the Lake George
Park Commission. when they conducted their investigation in 1988.
that these launches were only open to customers. That's another
nail in the coffin. which this Board should consider. establishing
22
that the Ellsworths ,had tried to discontinue public boat launching.
They went as far as making representations to a public agency that
that was their intent, and that's really what this Board is looking
at. They're looking at whether or not there was intent to abandon.
The fact that somebody snuck a boat in once in a while or gave them
some firewood, does not controvert the fact that it was the
Ellsworths intent to shut down public boat launching activities as
demonstrated by the barriers that they erected, and as demonstrated
by their s~atements to the Lake George Park Commission when they
conducted an actual investigation into those operations in 1988.
At this time, Mr. Turner, with your permission, I'd like to ask
Dave Hatin to step up, and I'd like to ask Mr. Hatin to explain the
nature of his investigation in 1988.
MR. DUSEK-Before you do that, can I interrupt for just a moment?
Tom, just to clarify a couple of points, I think we cleared up the
other area already, but in terms of the proceedings tonight, it is
my understanding that the Board reserved its decision on some of
these other legal issues that you've pointed out tonight. That
it's still the Board's option to decide those issues, and it
probably can be argued that they have to decide them. As I see the
issues that are before the Board, the leqal issues, the first one,
of course, is the issue about Mr. Hatin and his secondary decision.
The second issue is that if the matter is before them, how it's
before them. I think that's partially answered by their motion,
obviously. They refer back to that rehearing motion that they had
previously made, but then even once they get to that point, I think
they also have to look at the res judicata arguments, as they apply
to them, not just Mr. Hatin, but whether they're blocked by those
arguments, and then the third issue is, if they decided, obviously,
one way, then the case is over. If they decide it the other way,
then they have to take a look at this whole issue of the facts and
everything else that are coming out before the Board tonight. So,
there's several different tests or issues that the Board will have
to resolve as they go along, and that's the way I see it as for the
Board. Do you agree with that, or is that a fair statement?
MR. WEST-I agree with you assessment. I would add one minor point,
and that is that even if they get to considering whatever evidence
comes into the record tonight, the still have to consider that in
the context of the res judicata issue, in other words, whether or
not it's just more of the same kind of evidence that was before the
Board before, or attempted to be brought before the Board before.
MR. DUSEK-Yes. I think I've said that the res judicata issue is
something that they have to deal with as it applies to their own
Board, not only as it applied to Mr. Hatin. In fairness to Mr.
Richards, I guess we should check to see if he disagrees. Are
those not the issues before the Board?
MR. RICHARDS-Well, just to clarify, the public notice, my
understanding was that this was some kind of combined or hybrid
proceeding, Number one, to hear the appeal. The Board did decide
to hear the LGA appeal, to carryon with the previously tabled
rehearing motion. So, to that extent, I would agree, but I don't
think it was ever intended to get into another discussion, after
three or four meetings of this, of the whole res judicata issue.
I presented evidence on that as to why I think that, whatever
standards may be applicable. I think we really should get on and
hear the facts.
MR. DUSEK-And I'm not saying that we should get back into the res
j udica ta issue. I'm just mere lyre ferring to the fact that the
Board has postponed their decision on that issue until after this
hearing.
MR. WEST-And I think it's clear that that issue is still
outstanding, and I think what you were attempting to do is clarify
that I was raising those issues again for the Board, which I am.
I'm saying that they are still outstanding. They still apply to
23
the facts and circumstances here tonight.
MR. TURNER-Okay.
You want to ask Mr. Hatin some questions?
MR. vlEST-Yes.
DAVE HATIN
MR. HATIN-Perhaps I can short cut some of Tom's questions. He
wants to get into the point of what my investigation was back in
1988. I believe it was in June or July of 1988. somewhere around
there. It wasn't much of an investigation. I have to say that.
It was basically personal observations. because the Wests had heard
that the marina may be purchased by Mr. Parillo. They were
concerned that the launch was going to reopen. At the time. I
don't recall the facts. of course it's not the only investigation
I've dealt with since 1988. but I do believe. I did advise them to
take some pictures and make any documentation they felt was
necessary. should it become an issue. and I al so observed the
launch. Tom. to answer your question. there was a post or posts in
the ground. That I do recall. There's no question about that.
Tom refers to the photos we can find right now. I think those
photos show that. Whether there was one or two. I don't remember.
I do recall the sign that says no launching.
HR. PHILO-It was on a cedar tree there. am I right?
HR. HATIN-No. It was a post.
HR. PHILO-The sign. I say the sign was on a.
MR. HATIN-The sign. I assume you're referring to the building next
to the small building. That I don't recall. because at the time.
the issue that I felt the Wests were concerned about was the
launch. the north launch. Obviously. being the easiest launch to
get in and out of. and having the parking area right adjacent to
it. and I felt that was the issue. Perhaps I was wrong. I did not
check the other two launches. although I do. at some point in time
in the 80's. when I used to go to Lake George and use my other boat
that I keep at that marina. I do recall seeing something at one of
those launches next to the small building.
MR. CARVIN-Not to interrupt. Dave.
you posi ti ve it said no launching?
closed?
The wording on the sign. are
Could it have said. launch
MR. HATIN-I' m pretty sure it said no launching. I'm pretty
positive of that. Unfortunately. we don't have those photos. I
don't know if the photos you have before you show that or not.
HR. CARVIN-It doesn't appear to.
unauthorized launching?
I mean.
it wasn't, no
MR. HATIN-No. I think it said no launching. If I remember right.
it was kind of handwritten on a sign, although I wish you did have
the photos of that. The real issue here. and perhaps I got
sidetracked a little. This was the issue that was before the Board
back in '89. was did commercial boat launch mean the paying or
monetary fees being exchanged. versus the private person just using
the launch. and the Board ruled along with me at that time. because
we had no proof otherwise. What I'm surprised to hear tonight is
the LGA has John Caffry. as the attorney for the LGA. saying that
they now don't dispute the fact that the launching was used by dock
renters. because it was my understanding. and I maybe should have
gone back and read the records. that the dispute was back then. no
use of the launch. period. by anybody.
MR. WEST-I think it's fact. Mr. Hatin. you were here in July of
1989 with the original appeal. and I believe you will recall. as I
do. that the Appellant at that time. Mr. Parillo and his attorney.
24
-'
did not offer any evidence of any launching activities at all.
MR. HATIN-That's correct. and that's why I'm surprised to hear that
everybody agrees that there \'las private use of this launching.
'dhich. to me. was something that I 'dished I had before me back
then. because. at the time. my assumption was. and assumptions are
bad in some respects. maybe this is one of them. that there was no
use of the launch. period.
MR. WEST-Well. I'm not saying that I. as a resident of Dunham's Bay
concede that fact. I didn't think ther~ was any launching going
on. I had heard. from Mr. Parillo's customers. and the affidavits
that he's offered. that that is alleged to have occurred.
MR. HATIN-To make it clear to the Board. the evidence. or the facts
that lead up to the July 1989 hearing before this Board was the
fact that there was no use. period. Now. tonight. we're hearing
contrary to that. and through the proceedings that lead up to the
December 1989 motion by Mr. Muller. who is here tonight. those
facts were presented otherwise. Something else I'd like to put up
to you tonight. just to get this straight for the record. is my
February 20th. 1992 letter was based on consultations 'dith counsel.
It's not just something that I did. I knew what the ramifications
were by acting on my own. This was under a meeting with Paul and
myself. discussing the issues. knowing what was going on. I was
advised by counsel that I did have that right to make that
decision. and I was also deferred by Pat Crayford. who was Zoning
Administrator at that time. I was not the Zoning Administrator at
that time. It was deferred to me. which she had the right to do.
because I had dealt with the issue. She had not. So. there's some
things that should get set here tonight before this Board. for the
record.
MR. WEST-I'd just like to ask you a couple of questions. Dave. For
the record. following the conversation with my wife and with Dr.
Collins. did you go to the si te and personally investigate it
yourself?
MR. HATIN-I went to the site and observed. I think. the posts that
are in question. Tom. that everybody refers to. They were
definitely there. I'm not going to dispute that.
MR. WEST-And about how many times during the summer of 1988. after
that event. in June or July. would you have gone by that location?
MR. HATIN-To be specific would be hard. I would have to say. on
the average. in my travels. it would have to be. four or five times
a month. at least. constantly being up at the lake. especially
during the summer time. because that is when a lot of our activity
occurs.
MR. WEST-And at any time. when you went by the Ellsworth Marina in
1988. did you observe any pUblic boat launching?
MR. HATIN-I don't recall seeing any trailers or cars parked there
or any boats being launched. Again. mine is a two minute drive by.
MR. WEST-Prior to 1988. what was your position with the Town?
MR. HATIN-Prior to 1988?
HR. WEST-Yes.
HR. HATIN-I worked at alds Town Car in West Mills. New York.
MR. WEST-Did you ever have occasion to go by that area prior to
that time?
MR. HATIN-I would have to say. prior to that. no. Early 1980's.
yes. but from I would say about 1982. I moved up here with my wife.
25
until I took over this job, I really didn't pay attention to the
launch. I won't say from ' 82 to ' 88, I really didn't pay much
attention to the launch.
MR. CARVIN-Okay. I'd like to ask you a question. In some of your
drive bys, did you notice boats at the dock?
MR. HATIN-At the dock, next to the boat launch?
MR. CARVIN-Yes, in the marina.
MR. HATIN-Specifically, I can't answer that. I really can't.
MR. WEST-I would venture a recollection here that I think that
there may have been a boat parked in the slip at the north ramp, in
one of those photographs, and I think that boat had a cover on it.
I think that that dock was rented out for the season.
MR. CARVIN-Okay, but I guess what I'm trying to find out is that in
some of the drive bys, if there were, indeed, boats, a number of
boats, how many boats, and would it be safe to assume that those
boats had to have been launched at some point, and also, I think
it's an unfair question to Mr. Hatin, if he had seen a launch,
whether it was a public launch, because unless he stopped and asked
them specifically whether they were renting dock space or not, it
would be very hard for him to determine whether it was a public
launch.
MR. WEST-One of the reasons I wanted to ask him the questions, Mr.
Carvin. is because I don't know what he did, in his capacity, to
investigate it. I don't know whether he stopped and talked to
people, asked those very same questions. I want to get the facts
on the record here. I do know he was asked to personally
investigate it. I do know that he has represented to me and other
people, on occasions, and has stated tonight that he did personally
investigate it. The extent of that investigation was unknown to
me, and I wanted to clear it for the Board, what exactly he did.
MR. CARVIN-Okay, but the nature of your question was, if after the
July decision was rendered, if he had noticed.
MR. WEST-And I think that's a fair comment.
question. After the issue was brought to your
or Jul y of 1988, did you observe any boat
facility in 1988.
Let me repeat the
attention, in June
launching at that
MR. HATIN-No, as I just stated, as I drove by, I would see the
posts in there. I did not observe any boats in the launch, any
empty trailers parked in the lot. I don't recall seeing any of
that. That's not to say that there weren't any there. I just
don't recall it. To clarify Tom's first question, though, what the
investigation entailed was like I said in my first statement, it
was very minor. It was just an observation of the site, which, if
you were to put the posts back in the ground right now, and put the
old docks back that Mr. Parillo has replaced with new wood, you
would not see much difference, other than the lights and it's been
spruced up a little. The site itself has not changed. The site is
basically the same as it was back then, other than a post is
missing.
MR. PHILO-Can I ask you one question?
HR. WEST-Sure.
MR. PHILO-You're attacking this guy. Mr. Hatin. and you're asking
him questions that I don't think, just like Fred said. Where do
you live?
MR. WEST-Where do I live?
26
MR. PHILO-Yes. permanent. every day.
MR. WEST-Every day? Hills Road in Loudonville.
MR. PHILO-Do you drive by there? Could you tell if there was any
traffic in and out? That's about the fairest question I can ask.
right back. I don't think you're being fair with this man.
MR. WEST-First of all. Mr. Philo. I'm not attacking the man. I
called him as a witness to ask him questions about facts that I
consider relevant for this Board's consideration. The only person
I think who has been attacked here tonight is me by you. which is
why I asked you earlier whether or not you intended to disqualify
yourself. because there are a number of us that have summer
residences on Lake George. Now. you may not consider that to be of
any s igni f icance. in terms of asking me where I live. I do
consider it to be of significance. I consider the fact that my
family has owned property on Lake George since the 1700's to be of
great significance. and I care a lot for the lake.
MR. PHILO-I do. too.
MR. WEST-So. why do you consider anything to be adversarial?
MR. PHILO-No. I said. is it fair that you're asking this man a
question. I came back and asked you a question. if you drove by
there every day? You did? You couldn't tell me. How do you know
that there weren't people in there?
MR. WEST-Okay. I will answer that question that on many occasions
in the summer of 1986. 1987. and 1988. I was commuting back and
forth from Lake George to work in Albany. and I would drive by that
location every day. I also would drive by that location for a
number of reasons. I've jogged past that location. I've ridden my
bicycle past that location. and at no time during that time period
did I ever see anybody launching a boat. In fact. Mr. Philo. as I
now recall more clearly. during the summer of 1988. there was a
maroon colored boat with a brown cover parked in the slip between
the two docks that extend immediately from the north slip. and I
interpreted that as being another bit of evidence that the
Ellsworths had discontinued public boat launching activity or all
launching activity of any kind. I never saw anybody launching a
boat there.
HR. TURNER-Tom. do you
MR. WEST-No. I don't.
MR. HATIN-Ted. at the
MR. PHILO-Thank you.
have any further questions for him?
end. I would like to make some comments.
HR. TURNER-Okay. Come right up here.
DICK WALDRON
MR. WALDRON-My name is Dick Waldron. and I am a summer resident on
the east side of Dunham's Bay and I have to say I'm a new kid on
the block. because my fami I y' s only been here since 1880. As a
matter of fact. the building is dedicated by Richard Philo. August
something. 1880.
HR. PHILO-That's what I said. I want to be just. and I want to do
the right thing. here.
MR. WALDRON-Well. I think you have my letter. I'm not going to go
through reading all that. I mentioned in that letter that on three
occasions I was denied the use of the launch site. Now that was by
Mr. Ellsworth himself. I would talk to him, because at that time.
the summer and fall launch was very convenient for me. My wife
27
doesn't drive._nd I \'lould like to use that launch. becauo.-....< I could
walk one way. and when I'd see him. I'd ask him. hey. look. can't
you let me launch? I'll pay you now. I'll put the boat in. He
said. if I let you launch. I have to let everybody launch. Now.
there were many other times I would have liked to go there. but he
wasn't there and the post was there. and I wouldn't try to sneak
in. I remember that post being there. I think the north launch.
and I remember a boat being dock bet\.¡een the slips. and on the
other. north/southern part. down towards the building. I don't
remember an eye beam there. but I do remember chains stretched
across there. AnY\-lay. that's mY. testimony. I'm opposed to the
thing because of milfoil spread. because of the water quality. and
the things you guys haven't seen yet. the Zebra Mussel. you're
going to see it. Now. I believe you also have a letter from a Dr.
Brown who said that he could not launch. prior to 1991. and he's
opposed because of the effect on the wetlands. I think you have a
letter there from Dr. Seeley. and he's saying that he remembers it
be ing closed from 1983 to 1989. and again. he's opposed to it
because of the milfoil reproduction. and the spread of it. I don't
know if you have a letter from Catlins yet. or not.
MRS. PALING-Yes.
MR. WALDRON-All right. and they're testifying that I believe they
could not launch in July of '87. when they bought a new boat. and
I would like to submit one other new thing for you tonight. and
that's the minutes of the Dunham's Bay Association meeting of
September 1981. Now. I'd like to read you just two sentences from.
I'm going to submit the whole minutes to show you it's not taken
out of context. and this. remember. was in September of 1981.
"Several members commented on the clarity of the water. which is
much improved over the last year. We feel this is due to lack of
boats being launched under the bridge." And since all the letters
and everything else, I talked to a man named Dick Lennox. who is
sort of my neighbor up there. also. in the summer time. He could
not launch in '87 when he bought a new boat. He had to launch it
at the village. and he remembers the posts. He remembers the
chain. and he remembers the boat parked in the slip. the same as I
do.
MR. TURNER-Okay. Dick.
MR. PHILO-Just to help me out a little bit. Did you see any boats
in there at that time?
MR. WALDRON-Well. no. I'd have to say I didn't. I'm sure that
some people were using the southern most launch. but it appeared to
be renters that were putting their boats in for the season. and
parking them at the docks.
MR. PHILO-Did you see any boats docked there?
MR. WALDRON-At all the various docks? Yes. The docks were almost
always full of boats. Is that what you mean?
IIR. PHILO-Yes.
MR. SICARD-Sir. would you say that. if those docks were full of
boats. how did they get their boats in? Would you know that?
MR. WALDRON-Well. yes. I assume that they would launch them there
at either of the two ramps. Someone has mentioned the third ramp.
I don't remember a third ramp.
MR. SICARD-The third ramp was Robert Ellsworth' s private. It
wasn't really a launch ramp. I'm very familiar with the area. I.
too. had a boat up there. and it was a very steep bank. Unless you
had a four wheel drive or something. you didn't launch there. or
you got stuck. too.
28
MR. WALDRON-Waš that just north of the small building?
---
MR. SICARD-It was right out in front of his house, where Bob lived.
Bob lived there summers.
MR. WALDRON-Well, I had seen boats being launched from that ramp.
MR. SICARD-It's pretty steep, but I didn't know how those boats did
get in, whether they got in at Dunham's Bay, or how they did get
in, if they weren't using the launch. Of course, that would have
been legal at that time.
MR. WALDRON-I assume he permitted his renters to launch there. The
trailers were very seldom left around.
HR. SICARD-Yes. There's a launch up above, which I don't know
whether you'd call ita south launch. That wasn't much of a
launch. It was actually a place to put a boat in and out. I had
launched it there myself at times, and you better have a pretty
good truck to get it out. That was a place to put a boat in. You
could call it a launch if you wanted to, but they didn't use that
very much. That's why I just wondered at the time, because I was
pretty familiar with Allison. He was on this Board for quite a
while. So, I used to listen to him a lot. Thank you.
HR. DUSEK-Could I just ask the Board members a question. Has
anybody else launched boats up there? I think, in fairness, maybe
we should just note for the record. I mean, we know that Hr. Philo
launched a boat up there. We know Hr. Sicard did. Did anybody
else launch boats?
MR. TURNER-Yes, I did, a long time ago.
MR. DUSEK-And all three of you, that was while Hr. Ellsworth ran
it?
HR. TURNER-It was when I launched mine.
MR. DUSEK-And did it continue after Mr. Parillo took over?
HR. SICARD-No.
MR. TURNER-No. I only launched there one summer.
HR. PHILO-After Mr. Parillo took over, I didn't have any, I'd go up
with friends, we'd go fishing, and they asked us to park the cars
back in the parking area while we would go in there and launch a
boat, and at that time, we'd just, the post was out at that time,
but that's why I asked about the post and different things. I
think it's like Mr. Sicard said, Mr. Ellsworth was an individual
that, you'd take him one day, he'd be one way. When I stated
something about the Grand Union, I meant like, he figured he owned
that, and he could almost control who he wanted in and out of
there, but if he got upset at somebody, he would say, drag, and he
was very blunt, and I'm very surprised that somebody interviewed
him in '88. He was in the hospital. They had to feed him oxygen
to get an answer out of him.
MR. TURNER-Okay. Who's the next one in support?
JOHN B. CUSHING
MR. CUSHING-I guess I'm in support of it. I'm not sure. I think
I'm opposed to us ing it as a boat launch. John B. Cushing, 8
Orchard Drive in Queensbury, and I also own a home in Cleverdale.
So. I go by this location practically on a daily basis. I rented,
when I first moved up here from Philadelphia, in the early 80's.
I rented from Bob Ellsworth, who had the middle section, and at the
time I rented it, I asked about the launches, either the southern
launch near the house, the big house, around the bend, or the
29
----
launch on the north side, and I was told very bluntly by Bob
Ellsworth that I couldn't launch the boats there, that I would have
to find some other means of getting my boat in and out, and he
talked to me at length about liability. He was always talking
about liability, and that's one of the reasons that he told me that
he sold his property, eventually, was the liability was becoming
such a burden, he didn't want to fool around with it any longer.
Until this evening, I'll be very frank with you, I didn't know that
there was a third launch, which evidently was in front of Bob
Ellsworth's house, because there was always a boat there, as far as
I could see, always a boat there, and during the years that I
rented that, and when it was sold to Mr. Parillo, I rented from Mr.
Parillo for a number of years, and never once was I communicated by
Hr. Parillo that the other facilities could be used for boat
launchings anywhere along the line. I just assumed that it was not
open for the public, and I launched, and took my boat out at
Hillion Dollar Beach. I would have given $25, $30 each year if I
could have launched it and taken it out up there. It was my
opinion that you could not take the boats in and out up there.
There was nothing ever said, so far as any contract that I had, of
course I never had a contract wi th Bob Ellsworth. With Mr.
Parillo, there was never anything in the contract saying, by the
way, we've got launching facilities for our renters, and one year
I actually went down to the southern most ramp because somebody
said, you can launch the boat down there. It's open, because they
had a big four by four across the thing, and locked. This day it
was unlocked, and as I was turning the trailer around to get it in,
somebody came running down to the house and said, it is not allowed
to launch any boats, and I said, well, I'm a renter. I rent from
Parillo. He said, I don't care who you rent from, you can launch
the boat here. It's not open. I said, thank you very much, and I
went down to Million Dollar Beach and put it in. Many, many, many
times, and I can't give you the exact amount of times, but there
was usually a boat with a cover on it at the north launch, which
meant, to me, you couldn't launch a boat there. It was used as a
dock space, and that was for most of the part of the 80's, as I
recall. There \.¡ere many, many boats there. I've never seen
trailers up there. I've never seen a boat launched, in all the
time that I was there, and I don't recall seeing trailers, maybe
one or two, but I couldn't say whether the trailers were launching
boats there or maybe launching some place else and just putting it
back in an open field because it was there, but I've never seen a
boat launched.
MR. PHILO-What years was that, sir?
MR. CUSHING-'82 to about '88, but this is the first time I've been
to this meeting. I was remiss in getting to it before, but I did
want to get on the record, and there it is. Any questions for me?
MR. CARVIN-When you tried to launch and were told you couldn't
launch, do you know who the person was? Was it Ellsworth?
HR. CUSHING-No, it was not an Ellsworth. It was somebody that was
living in the house, a big white house up on the hill, as you came
into the section of the Bay. Not across the road, the same side of
the road, by the southern dock. There's a big white house up
there.
HR. TURNER-Okay.
That's the Ellsworth's house.
MR. CUSHING-And that was after it had been sold.
MR. CARVIN-Okay, late in the 80's. Do you recall seeing any signs
indicating no launching, or anything like that?
MR. CUSHING-There were signs, but I can't recall where they were,
or what they were on or anything like that, but I do know that
there were some obstruction signs, or chains and things like that.
As I say, that southern launch, they had two poles up on either
30
-'
side of the launch with a great big four by four running across the
whole thing. and a hole through it with chains down through it.
locked. so that you couldn't use it. The only reason I went down
there that day is somebody said. hey. it's open. go ahead and use
it. I didn't get there soon enough.
MR. CARVIN-Now. I want to get a little bit of the time frame. here.
Okay. you currently are renting or have rented from Parillo. dock
space?
MR. CUSHING-I did until I purchased property at Cleverdale. Right.
MR. CARVIN-Okay. That would have been. what. that must have been
in '89. '90?
MR. CUSHING-The last time I used it up there would be the summer of
, 88.
MR. CARVIN-Okay. Well. when did Parillo take over. in '89?
MR. TURNER-In '89.
MR. CUSHING-But he had the Bob Ellsworth section.
MR. CARVIN-Okay. That's where I'm getting confused.
MR. CUSHING-Probably from '85. something like that.
MR. CARVIN-Okay. all the while that you were renting from Parillo.
you never saw anybody launching from the site under discussion?
MR. CUSHING-Never.
MR. CARVIN-Okay.
MR. TURNER-Okay. Any further questions? Okay. Thank you.
LOUIS STONE
HR. STONE-Hi. I'm Louis Stone. I live on Assembly Point. and
we're newcomers. My father-in-law has only been here for 46 years.
My statement's very quick. I can only comment about the north
launch. We go up and down Bay Road every weekend for the past. and
now that we're residents. but we used to go up and down that road
all the time. and for the period in the middle of the 80' s. ' 86.
'87. '88. there certainly was a post in the middle of that launch.
There was a boat in there most of the time. and I used to remark to
my wife that the lot itself looked like it was deserted. There was
nothing in that lot any time I went by it. There were no boat
trailers. There were no cars. There certainly wasn't that shed
that exists there now for the protection. I guess. of the person
who takes the money. but there was nothing like that in the middle
80's. There was nothing going on. with the exception of the boat.
in the launch itself.
MR. PHILO-You're saying that shed wasn't there?
MR. STONE-The shed was not there in the middle 80's. not the little
house. Now there's a shed to the northern most part of the lot.
There's a shed and just a covering. like a picnic covering.
HR. PHILO-But the place where they had the tackle and stuff. that
was there for years.
HR. STONE-That was there.
HR. TURNER-Yes. Okay. Anyone else? Okay. Thank you.
DR. CAROL DESORMEAU COLLINS
31
DR. COLLINS-Good evening. My name is Dr. Carol Desormeau Collins.
I'd like to give my personal observations. first of all. on the
boat launch. In December of 1988. as Dave mentioned. we were
involved in a conversation concerning the water quality of Lake
George. and at that time. we made the observation that the boat
launch was closed at the Dunham's Bay wetland. and we were very
concerned that there may be a reopening of it. At that time. my
sister Rene West and Dave Hatin went down. took a look at the site.
and made their observations. and Dave said to Rene. my sister. that
you really should take pictures of this. A picture is worth 1.ØØØ
words. We were concerned primarily because of my great interest in
wetlands and protecting Lake George. Prior to that time. probably
for the previous three years of '86. '87. '88. I had not observed
any boat launching at that site. As many people have testified. it
seemed deserted. but yet we were aware that there may be some
pending change in that character. and I was concerned about that.
My concern stems from the fact that I am a Limnologist. I have a
PhD in what is called Water Science and the study of lakes. which
is Limnology from the Rensselear Polytechnic Institute. I've been
studying Lake George probably since 1976. and have been the
principal investigators on many studies on Lake George. from
Natural Science Foundation. Environmental Protection Agency. and
other agencies as well. In the interest of preserving the water
quality of Lake George. I would like to address what I consider the
most important mechanism that the lake has in protecting it's
future. The Dunham's Bay wetland is an invaluable resource which
reduces the pollutant load of nutrient rich water into Lake George.
It is part of a large wetland that extends over to Warner Bay. as
I've indicated on the map in green. back to perhaps as far Pickle
Hill. As you can see. it effuse into Lake George. primarily
through the Dunham's Bay area. Like most wetlands. it's function
is to trap the nutrients before they enter the lake. It does this
in several ways. each of which are equally important and
interrelated. The wetland reduces the flow of the incoming water
which thereby reduces the energy and prevents the sedimentation of
the suspended sediment. The wetland vegetation then uses the
nutrients that are in the sediment. and in a well balanced wetland.
much of the nutrients remain tied up in the sediment and in the
plant biomass. The sediment is an important physical factor
governing water quality. It is the action zone for most uptake in
the initial storage within a wetland. Disturbance of this sediment
water interface has been demonstrated to have profound
significance. In a 1974 study. by the US Environmental Protection
Agency. scientists examined the impact of power boating in shallow
waters. the impact of stirring up bottom sediments which increases
trebidi ty and accelerates algae growth. That study and a later
study detected an increase in phosphorus that ranged up to 73
percent. Phosphorus is known to limit the growth of algae in Lake
George. This problem is particularly acute in soft bottomed lakes
with sediments rich in nitrogen and phosphorus. These signs were
confirmed in a 1988 study which found increases in trebidity of
more than 1ØØ percent during and after power boating activity.
Trebidity is the reduction of water clarity that results from the
re-suspension of bottom sediments. I refer to these findings
because of the peril that the proposed Parillo boat launch has on
both the integrity of the Dunham's Bay wetland and on Lake George
itself. I consider the proposed site of the boat launch the most
strategically important site in the wetland to fortifying the
beneficial role of the wetlands in Lake George. His site
represents a critical zone in the trapping of nutrients in the
wetland. This is an area where the wetland empties in the lake.
When this region is disturbed. the nutrients and sediment normally
contained in the wetland become released into the lake. Increases
in the disturbance of the sediment layer in this zone will
accelerate the movement of nutrients and organically enriched
sediments trapped in the wetlands. Dunham's Bay is the immediate
region to suffer. Once these sediments are stirred up by the
boats. the sediment and the associated nutrients are transported
into the Bay by the water flow. Dunham's Bay is showing serious
signs of water quality degradation. In an intensive study of the
32
~
aquatic plant population in Dunham's Bay in 1987, milfoil was
considered a minor component of the native plant population. It
ranked 14th of the 20 plant species present. In 1992, milfoil has
become a dominant member of the total plant population. It now
ranks 3rd of the 23 plant species present. The change may be
attributed to the increase in enriched sediment transported from
the wetland into the Bay. Milfoil prefers nutrient enriched soft
bottomed sediments. This increase coincides with the expanded
Parillo boat launch operation, in the past few years. The points
I have discussed on the value of the wetland protecting Lake George
are more important than you can imagine. Dunham's Bay wetland is
a deep water wetland that requires protection. Further discussion
of this critical site imperils the major cleansing mechanism of
Lake George. Loss of this refuge would be an immeasurable loss to
the future of Lake George and to everyone who uses the lake.
Tonight, the members of this Board take on the responsibility of
determining the future of the lake for all who are here and those
who are yet to come. I trust that in your wisdom, you will restore
our role as stewards of this great and gracious lake. Thank you.
I'd be happy to answer any questions you may have.
MR. CARVIN-Could you give me the dates of the studies? In other
words, there was a study run prior to Parillo and then after
Parillo, is that correct?
DR. COLLINS-There was a study done in 1987, and then there was,
that was part of an intensive milfoil investigation, and then there
was a study done this year, sort of a follow up to that intensive
study.
MR. CARVIN-Okay. Again, I need a little clarification,
I think a number of folks have commented tonight that
1988, that there were not many boats docked at Parillos.
a safe assumption? Am I off on that?
I guess.
up until
Is that
DR. COLLINS-Launched.
MR. CARVIN-All right. Have there always been boats docked there?
DR. COLLINS-Yes.
MR. CARVIN-Okay. So there's always been between 60 and 80 boats in
there, or however many dock spaces? Is that correct?
MR. RICHARDS-There's a permit for 95.
DR. COLLINS-I'm really interested in what I see as an increase and
what they've stated as an increase in volume, which occurs with the
increased use of the boat launch.
MR. CARVIN-Okay. Well, that's what I'm trying to determine. In
other words, I guess I'm a little bit unclear as to whether we've
always had 95 boats utilizing that area, because I think
everybody's in agreement, if I' m getting everybody on the same
page, that there's always been between 95 to 100 boats, depending
on the length of time that they're there. In your best guess, how
many boats, additional, are going in and out of that launch, in
other words, since the launch?
DR. COLLINS-I'm sure somebody has numbers on that,
observation is on weekends, there's very intensive use
site. The parking lot is filled with boats and cars and
and there is not a time, this summer or last, that I can't
seeing the boats.
but my
of that
trailers
remember
MR. CARVIN-Okay, but I guess what I'm saying is, there was a study
in '87 and again a study fairly recently. In your best guess, how
much damage is being done? In other words, how much utilization?
I mean, if this utilization were to continue, what length of time
would go by before we would have a real economic disaster there, I
33
guess is what I'm trying to find out.
DR. COLLINS-I think the people of Dunham's Bay are starting to see
an economic disaster now. It's my opinion. I think that there is
one now.
MR. CARVIN-Okay, but what kind of numbers are substantiating that?
DR. COLLINS-Milfoil, extensive milfoil population in the Bay.
MR. CARVIN-Okay, but could that be attributed, again, I'm not a
boater, so I'm not familiar with milfoil. From what I read in the
papers, and this is just information, because I'm certainly not a
milfoil expert, but I understand that milfoil can be transported
via boats, right?
DR. COLLINS-Right.
MR. CARVIN-So that milfoil spreading by itself may not be mandated
to the increase in usage. In other words, we could have had some
of those 95 boats come in with milfoil on the bottom. Am I correct
on that?
DR. COLLINS-I'm almost not even addressing the spreading of
milfoil, and I probably should have been clearer. What I'm talking
about is the creating, milfoil won't grow on like a nice, clean,
sandy bottom, okay, but when you transport nutrient rich sediments
from the wetland into the Bay, now lets just imagine an area where
the sediment is calmly laying on the bottom of a wetland. Now,
what you do is you launch boats in that area. You allow that
access. It stirs up that sediment, which should be trapped there.
Now, with the water flowing, it brings it down into the Bay, this
nutrient rich sediment. This provides a wonderful growing media
for the milfoil. So, it's more so creating a niche, an
environment.
MR. CARVIN-Okay. I guess what I'm coming back to is that we've got
boats in there already. So, I'm trying to figure out whether there
has been a dramatic increase in usage or could the milfoil have
been spread by one of the "allowable" boats that is docking there,
because you're going to have that sediment stirred up anyway,
because we've got 95 boats in there.
DR. COLLINS-My point, in any of these actions, is that the
increased use, the increased hazard or cumulative impact of more
intensive boat use is going to contribute to further degradation.
Everyone knows that, and it's been part of the plan for the future
of Lake George, which was adopted in 1987, that the worst place to
put a boat marina or boat launch, is in a wetland. I doubt that it
\-lould ever be allowed again. It's just the worst. I can't
describe anything worse than that. So, what I'm saying is, by
adding insult to injury, it's further exacerbating the problem of
milfoil growth in Dunham's Bay, further reducing the water clarity
in Dunham's Bay.
MR. TURNER-What is the depth of water?
DR. COLLINS-In which section?
MR. TURNER-In that section where the marina is.
DR. COLLINS-It varies, but it can run to about 10 feet, 6 feet,
different amounts in that area.
MR. PHILO-Now, we're talking right in the docking area, how deep is
that.
DR. COLLINS-It varies, but around six feet.
MR. PHILO-In that docking area?
34
DR. COLLINS-Well, I mean, it goes down to a couple of feet, but
there are some areas where it's a little deeper.
HR. PHILO-I love Lake George, and this situation with this milfoil,
it's been a topic back and forth. They've got it all the way up
through the lake now, right?
DR. COLLINS-Right.
HR. PHILO-Could these other boat launches be doing the same thing?
DR. COLLINS-Now remember, what I'm specifically referring to is
creating the type of, Lake George, if it didn't have pollution, and
areas that aren't impacted have more of a clear, sandy bottom.
Plants like milfoil do not prefer that kind of area. It doesn't
usually grow there. It likes the mucky, soft, organic sediment to
grow in. So, if you transport that mucky sediment into a bay and
now you have a considerable depth of water in a bay, milfoil will
take over there. Is that sort of answering that?
HR. CARVIN-Well, was there milfoil in 1987 in that area?
DR. COLLINS-Yes.
MR. CARVIN-Okay.
DR. COLLINS-It was the 14th out of 20 top plants.
MR. CARVIN-All right. Now, assuming that all the testimony that
we've heard this evening, that there were no boat launches from
1982 to 1989, when Mr. Parillo took over. The milfoil must have
gotten in because of the docked boats there. Is that a correct
assumption?
DR. COLLINS-Well, probably, initially, that's how it got in there.
MR. CARVIN-Okay. How fast does milfoil spread, assuming that we
have not had any addi tional boats since 1989? I mean, can you
gauge how quickly this thing has deteriorated?
DR. COLLINS-The boat launch has been opened for the last couple of
years.
HR. CARVIN-\-lell, that' s ~·,hat I'm
milfoil was there in 1987. So, vie
milfoil to the boat launch.
saying, since 1989, but the
can't directly attribute the
HR. RICHARDS-Well, Hr. Chairman, we can discuss this.
HR. TURNER-I know. We can talk about it all night.
HR. RICHARDS-This really isn't relevant to the point.
DR. COLLINS-Well, I think it is relevant because we've talked about
an increase in volume of the activity that's going on.
HR. CARVIN-That's what I'm trying to determine.
increase in volume?
How much of an
DR. COLLINS-That's just it, I can't put an exact number on that,
okay, but I have this correlating information, and I'm not afraid
to say that I think that the increase in the boat launching
activity is a contributing factor to the increase of milfoil in
Dunham's Bay. That's my feeling, as a professional Limnologist.
HR. TURNER-Does milfoil have a depth at which it does not grow?
DR. COLLINS-Around 27 feet it will stop growing. So,
because of. like, it does pretty good in Lake George,
feet. We do have a kind of record in that regard.
primarily
up to 27
35
MR. DUSEK-Dr. Collins. for the purposes of the Board. you indicated
that the boat traffic you felt was a contributing factor towards
the growth of milfoil in the Bay area. What else contributes to
the growth of milfoil. or would in that particular Bay. more
specifically?
DR. COLLINS-The development pressures themselves would contribute
to that.
MR. DUSEK-What do you mean by development pressures. house building
around the lake. developing shorelines?
DR. COLLINS-Developing shorelines.
MR. DUSEK-Okay. and do you have any idea of what percentage each
contributes to the milfoil?
DR. COLLINS-Not for that. I didn't do a study on that particular
si te. in terms of contribution of each individual. but from my
ecological expertise. and knowing. my familiarity with literature.
I feel confident in saying that I can attribute a certain amount of
growth. or expansion of the milfoil to these kinds of activities.
MR. DUSEK-And can you assign a percentage to it?
DR. COLLINS-I don't want to do that right now.
MRS. PALING-I have a question. I was up at Huddle Bay this summer.
which is at Bolton Landing. and there were whole areas roped off.
You could see the white buoys all in a row. milfoil. People with
homes there couldn't take their boats in or out. nor could you do
much boating right there. if you had your own boat. Is Huddle Bay.
is the milfoil in Huddle Bay in relationship to a wetland there.
also? That appeared to be a very heavy infestation of milfoil.
DR. COLLINS-Yes. It is a heavy infestation.
MRS. PALING-Yes. and did it come from boats bringing sediment in
from wetlands there?
DR. COLLINS-It's likely that this disruption in the wetland
associated with that has a lot to do with it.
MRS. PALING-Is there a boat launch there. because I didn't see one.
DR. COLLINS-In that particular site. I believe there is a problem
with an upland site. I can't remember where it is right now.
MRS. PALING-Because I don't remember any launches there.
remember a whole number.
I just
DR. COLLINS-I'm not saying that. you know. it's not always a boat
launch.
MRS. PALING-Yes.
DR. COLLINS-But I will say this. if it wasn't milfoil going in that
Bay. what you would see and have seen is a large growth of algae.
What I'm saying is that the nutrients that are transported out of
that wetland by increased activity brings nutrients that should be
trapped in the wetlands into the lake. I'm saying more of them.
There are no ultimatums in ecology. Everything is amounts of this
from that. but then there would be an increase in algae. That.
too. is a plant that uses up nutrients. So. in ei ther case.
they're both things that contribute to would you would consider the
economic demise of an area.
MRS. PALING-Well. they told me that that was milfoil.
DR. COLLINS-Yes. that is milfoil over in Huddle Bay.
36
'--
--
MRS. PALING-Okay.
DR. COLLINS-I can't specifically address the site.
MRS. PALING-Okay. Thank you.
MR. TURNER-Any other questions? Okay. Thank you.
JOHN MATTHEWS
MR. MATTHEWS-My name is John Matthews. I live on the east side of
Lake George. on Route 9L. since 1971. I go by the Dunham's Bay
launch site tvlO. three. four times a day every day. I would
testify that during the period of. say. 1980 to ' 83. on up into
, 87. the boat launch areas were closed. I have a small Boston
Whaler that I use for the kids. and on many occasions. I've asked
both Bob Ellsworth. prior to the sale of his property if I could
launch the boat. and he said no. and I knew Allison Ellsworth. I
had done some work for him. took some trees down and what not for
him. and even though I was a friend of his. he would not allow me
to launch my boat. During that period of time. I also rented slips
from Roger Howard. who rented from Allison Ellsworth. to use. I had
a barge. which I did work on the lake. I loaded and unloaded timber
and whatnot from it. and we used to use the launch areas to put
lumber and whatnot onto the barge. and after '82 or '83. the posts
went up. and the barricade on the furthest launch ramp. way down in
the s\-1amp. went up. and the cable has always been across Bob
Ellsworth's place. It's been there for many. many years. That was
the first place I ever launched a boat was at that ramp. and there
were several occasions there. in the late 70's and early 80's. that
he would come up and open the thing up for me to launch it. I was
just a neighbor. and I wanted to put it in in the spring and out in
the fall. I'd also like to say that I own property on Dunham's
Bay. and I have noticed a severe change in the water quality during
the later 80's. and especially on a weekend. or a day. a holiday
when there is an excessive number of launches or excessive use of
the lower part of the Bay. boats coming in and out of the creek.
If for some reason the launch is able to continue. I would like to
see some kind of education to the public who launch their boats
there. as to t.he critical nature of the wetlands. and why they
shouldn't go fast and go racing in and out of there, why jet skis
shouldn't be launched in there and go bounding up and down through
the creek. which I've seen. Dealers will come in from out of town
and launch a trailer load of jet skis and off they'll go. up in the
wetlands. back and forth. This is the kind of activity that should
be curtailed there. and that's basically all I wanted to say.
MR. TURNER-Any questions?
HR. CARVIN-You run a barge you said?
MR. MATTHEWS-I used to.
HR. CARVIN-You used to?
HR. MATTHEWS-In the late 70's and early 80's. I had a flat bottom
boat that I used for hauling timber up and down the lake.
MR. TURNER-John. you said you saw some increased degradation of the
Bay. in what respect. clarity?
MR. MATTHEWS-Clarity. and on an active Sunday afternoon. or
Saturday. floating plants on the surface. coming out to the south.
flowing up to the creek area. you'll noticed continued flow of
disturbed plants that come out from under the bridge. They get
clipped off by the props and whatnot, and that just increases the
spread of milfoil.
HR. PHILO-John. did you say that has to do with the jet skis?
37
MR. MATTHEWS-Not only the jet skis. but fast boats from fisherman
that are in a hurry to get up in the creek. I've seen them racing
in and out of ther~. They launch their boat and they take off up
into the creek. going a lot faster than five miles an hour. Now.
boats that are moored there on a regular basis. I think that people
have a little bit more concern for the lake than the people that
come in Saturday morning. put their boat in. go up in the marrows.
have a picnic. leave their garbage. come home. put their load on
the trailer and go. and I've seen this. I've seen them go by.
That's not to say that it's not the people that are docking their
boats there. but I definitely feel that the transient people have
to be educated as to the qualities of the lake and what should be
expected of them.
MRS. PALING-Do you have people up there on the lake. this seems to
be an enforcement problem. I mean. this isn't really up to us to
decide if someone is going more than five miles an hour. Don't you
have some. I see sheriff patrol boats and that kind of thing.
MR. MATTHEWS-Yes. there are patrol boats continually racing in and
out of there.
MRS. PALING-Isn't that their province to say. I mean. don't they
issue citations or whatever you do? Like. I get tickets when I go
fast. Don't they get tickets?
MR. MATTHEWS-Certainly they do. They definitely do. but. you know.
you've got four or five boats on the lake watching 32 miles of
lake. and it's difficult to have somebody sitting in Dunham's Bay
all the time.
HRS. PALING-Well. I understand that. but I don't think it's our
province. I'm sympathetic. but I don't see how we can help you
\'lith that.
MR. MATTHEWS-I realize that's not your province. and I have also
talked to ENCON about doing something in the wetlands. trying to
keep to curtail the areas back up in. there should be ways of
saying. no. you can't go any further up into the creek.
MR. CARVIN-You indicate you go by there two to four times a day?
MR. MATTHEWS-Yes.
MR. CARVIN-And during the time frame from what. approximately '82
through '87 or '88.
MR. MATTHEWS-It was like a ghost town.
MR. CARVIN-It was like a ghost town.
MR. MATTHEWS-Except for the cars that were parked in front of the
individual boats.
HR. CARVIN-Okay.
MR. MATTHEWS-The docks were always filled. or pretty much filled.
MR. CARVIN-Did you ever launch a boat there?
HR. MATTHEWS-Prior to when I was told not to launch a boat. I
launched a boat there ever summer.
MR. CARVIN-Which would have been?
MR. MATTHEWS-Through the 70's. on up through the early 80's.
MR. CARVIN-I just want to know who John Creede?
HR. HATTHEWS-Yes. he's a dock builder.
38
HR. CARVIN-Oka~,_
HR. HATTHEWS-He lives up in Pilot Knob.
HR. CARVIN-Yes.
yours?
I didn't know if he was in a related business as
HR. MATTHEWS-Somewhat.
HR. CARVIN-Because he had indicated that he had loaded materials
onto his work barge. and that's why I was just wondering if there
was a relationship. or similar?
MR. MATTHEWS-It's the same type of business.
MR. PHILO-John. I know you'd be honest with me on this.
those boats get in there. those 80 or 90 boats?
How do
HR. HATTHEWS-The boats that are docked at the 80 or 90 boats were
either. I know that during the period of time when Ellsworth had
it. he would open up the pipe. or iron 4 by 4 that was bolted
across the pillars on the furthest. southern most ramp. way down by
his house. and that's where they would launch the boats. They
\'lould put the boats in and out there. in the spring and in the
fall. and there was always a boat docked in the slip by the bridge.
It had a tan colored canvas on it with a couple of sticks holding
it up so the rain would run off. I definitely remember that. Now.
the post that's in the ground was 30 or 40 feet out. because they
didn't want to chop a hole through the blacktop to put it in. The
put it in right in front of the blacktop.
MR. PHILO-And he would say to us. somebody mentioned something on
liability there. He would say to us. if you want to back in. you
can use it. He would say. just put the money in the box. I don't
know if he was beating the income tax thing. or what. but he'd say
to us. money in the box.
MR. MATTHEWS-Well. I remember a box being there. and prior to the
early 80's. you were allowed to launch a boat there. and it was an
honor system. You go. you put your money in the envelope. you put
it in the box. Bob Ellsworth had the same. right next to the
little shed. that used to be for fishing tackle and whatnot. there
used to be a little box on the tree. and that's where. the tree is
where the sign was put up. He put the sign up there. because he
got sick of the people hollering at him because he had the cable
up. and he wasn't there to let them in because. so that's why he
decided. he said. I don't want to be bothered with this anymore.
MR. PHILO-You could be his best friend. and two days later he'd
tell you to get the hell out of there.
MR. MATTHEWS-Exactly.
MR. PHILO-But the next morning you'd go in there and see another
neighbor down the line going in.
MR. TURNER-Thanks. John.
MR. PHILO-Thanks. John.
LINCOLN CATHETERS
MR. CATHETERS-Good evening. I'm Lincoln Catheters. I'm an officer
in the Lake George Association. also a resident of North Queensbury
in the winter and a resident of Lake George in the summer. I just
wanted to talk briefly about the comment made that launch is an
integral part of a marina. I'd just like to mention that there's
two marinas I'm aware of in the general area that have launching
ramps. but do not have public access. namely the Yard Arm. on
Cleverdale. The public cannot go there and launch. Likewise, the
39
launch at Pilot 'Knob Marina is avai lable only to people -...-ílO use
Pilot Knob Marina. It's not a public launch. So. my only point is
that a launch is not. a public launch. is not an integral part of
a marina. That's the only question I have.
MR. TURNER-Anyone else wish to be heard in support of the appeal?
MR. WEST-Mr. Chairman. I'd just like to call to the attention of
the Board. and ask Mr. Hatin to clarify the following: referring
to the minutes of the December 27th. 1989 meeting. under the
heading. Old Business. dealing wi th this matter. Mrs. Eggleston
asked the following question: "I have one. In the course of your
investigation (referring to Mr. Hatin). you said you did your
investigation. did you find any cases at all. even minute. or one.
where it was open to the public. or did you find absolutely none?
MR. HATIN-At the time. there were posts in the ground blocking the
launch for the general public's use. That had been there from
previous knowledge of mine. before I even became Director of
Building and Code Enforcement. when I used to dock my boat at the
lake during the late 70's and early 80's. I knew the launch was
closed then. because I used to launch my boat there. Knowing that.
that summer. some concerned residents had heard that the boat
launch was going to open back up and asked me to take notice.
particular notice. I think it was in July of 1988. to the launch.
\-lhich I did. and noticed that there were signs that said no
launching. I know there have at least been a year up to that
point. and as far as I know. they were there from the spring of
that year. So. therefore. that's how I can prove that there was at
least an 18 month gap. I saw no public launchings no. I guess you
could say. person collecting money or fees to launch boats at that
time". and I just would ask Mr. Hatin if he would clarify for the
record if what he said in '89 is. in fact. what his prior
experience was regarding this launch?
MR. HATIN-Yes. As I told you. Tom. I believe that's what I stated
earlier. that I docked my speed boat there in the mid 1970's. and
in the late 70's. early 80's I shared a boat with my brother at the
Lake George Boat Company. I used to drive by there. so I knew it
was closed. I think that does speak to what I said back then. One
thing I would like to clarify though. and this is something that
kind of gets to the root of this issue. public launching. I saw no
public launching. and by that I mean. what we see now. where people
come in and pay to launch their boat. Like I said before. that is
the issue before this Board. really. is public and private
different. and we feel that is the issue. but public launching I
saw none of. Private launching. I can't tell you. I never saw it.
I don't know if it occurred. There's been testimony even by the
LGA's attorney. tonight. that it did take place. So. that's all
I'd like to say.
MR. WEST-Thank you.
HR. CAFFREY-I just wanted to clarify and respond to a few things
that have been said since I spoke. and most recently what Mr. Hatin
just said. I didn't te stify to anything. I have no personal
knowledge of private launching there. I was discussing previous
testimony that had been in the record that I understand it. I
don't necessarily kno\.¡ if there was or wasn't a public launch.
private launching there. private renters. but some people have said
that. What's important is. if there was no private launching. then
that's even more of a. that it was closed. but if there was this
private launching by the renters. I think there should also be a
distinction between the private launching by the renters and the
public launching. That's the change of the use. So that. even if
this private launching existed. that there is an important
distinction there. and that does represent the change from when
there was a public launching. when there wasn't. with the
possibility that there may have been private launching. and now
again. since Mr. Parillo came into the picture. there is. again.
public launching. and that's the distinction. but if there was no
40
private launching. that's even more evidence that it was closed.
and there may well have been periods when there was no private
launching. It's up to them to prove that there was a continuous
use of this boat launch during the entire period in question. A
fe~l other things. I had said this once before. but perhaps Mr.
Philo didn't hear me. As regarding who the Park Commission
interviewed in 1988. May of '88. I said I may have been confused
as to exactly who Tracey Clothier interviewed. but she was quite
clear that she did interview the people who ran the marina. She
believes some of whom were the Ellsworths. I don't know if she
spoke to Allison. Maybe she spoke to someone else. but this wasn't
something she made up. This was based upon her interviews with the
managers. the owners. whoever. of the marina at the time. If it
wasn't Allison Ellsworth. it might have been his wife. It might
have been somebody else. I may have made a mistake on that. Mr.
Richards has referred to a case. a couple of times. about a marina
on Long Island that was closed for a while. except that the lawyer
rented a dock there. and he said that that case shows. all you have
to do is show that there was one dock rented. and that's enough.
Assuming that a rental case is analogous to a boat launch case.
that case still doesn't mean that you only need to show that one
person launched a boat there. and in that case. it was quite clear.
if you read it. The reason it was closed down was. it was only
used by the lawyer. was there was a contract to sell the marina.
There was some litigation going on. it doesn't describe the
litigation. but it was really shut down. except for that one
person. for reasons beyond the control of the owner. Here. as the
\.¡i tnesses have te sti fied. there was a conscious effort by Mr.
Ellsworth to shut this down. He put those signs up. I don't think
anybody forced him to. That was his decision. Paul and Tom West
discussed what the issues were. the legal issues. I just want to
go on record. on behalf of the Lake George Association. as agreeing
that those are the basic issues to be decided. in that order. and
if you decide it based on some of the earlier issues. then you
don't get to some of the earlier issues. but I did want to go on
record on that. One other thing I wanted to point out. When Mr.
Waldron testified and gave you the minutes of the Dunham's Bay
Association. I spoke with him previously. I believe he's presently
President of the Dunham's Bay Association. So. that would be how
he has access to their minutes. and you can. I think. be assured
that those are the actual minutes of the Dunham's Bay Association.
When Dr. Collins was testifying about the boat launching and the
milfoil. and she didn't have any exact numbers. the one thing I can
say about that is. when Mr. Parillo filed his application with the
Lake George Park Commission. he said he expected an average of 20
boats a day. So. if you just assume 20 boats a day. and they each
go in and out. that's at least 40 trips in and out. on the average.
\'leekdays less. weekends probably more. I think there's been
previous testimony that it's a lot more than 20 boats on some of
those days. When you think about there being 95 boats in there
now. well. not everyone of those boats goes in and out every day.
Even if you go by on the Fourth of July. half the boats that are
docked there are still there. They're not all out on the lake
every day. So that really an extra 20 or 30 trips a day in and out
of there is really a significant increase beyond the amount of
traffic in and out, transported by boats. I'm not an expert. but
you just look at the number of boats and calculate how many boats
are going in and out. There was a question about the possible
effects of development on the milfoil growth there. I think
anybody who is familiar with Dunham's Bay knows it's been pretty
\.¡ e 11 b u i 1 t 0 u t for a Ion g t i me. The rei s n ' tal 0 t 0 f new
development going on there. You're not getting a lot of land
stripped and houses built and runoff into the lake and that. So.
again. without being an expert. I can't tell you for sure that for
sure. but that would be my observation. and I do go up there fairly
frequently myself. My family has a place on Assembly Point. I'm
not going to pretend to have been there as long as some of these
other people. though. and that's all I just wanted to say. I may
want to respond after the witnesses. on behalf of Mr. Parillo. but
that's all I have to say at this point.
41
'..-,,-.--------:-.,
--
MR. PHILO-John, what was his time frame on the
boats, they were launching? ' you said 20 or 25
---~
~:~k C~:::~:;~;n si~i~ 89 ~n h~i:ai¿Ph~i:~tp~ocnt'edthat he filed wi th the
d 20 l' an average of 20 boats
~t,ay. p us or mlnus, and you have to assume on a weekday that
1 ~ not 20, on a weekend, it's probably a lot more and a ~in
don t recall exactly, however I think there' S 'b g., I
testim d . " een preVl0US
dony. an lt s probably somewhere in the old minutes that on
many ays there's a lot more than 20 boats in there S; th '
going to be some days more, some days less. . ere s
MR. PHILO-John,
application in,
what you're telling me
it was for 20, 25 boats?
is,
when
he
put
the
MR. CAFFREY-Twenty.
MR. TURNER-No. Twenty. Twenty I .
p us or mlnus, Tom.
HR. PHILO-Okay. That's what I wanted to get clear.
MR. CAFFREY-There never was a permit issued for the boat
It was on his application. launch.
MR. TURNER-It says launch. On the affidavit, it says 20 plus or
minus launch. Now where are they going to launch them from?
MR. CAFFREY-All right. That was his application. That's what he
asked for. It didn't say which launch he would use, but I assumed
it meant the north launch. the one that he's using.
MR. PHILO-Are they going to throw them off the bridge, or where
could he?
MR. CAFFREY-You have to assume he filed this in May of '89, that he
opened up probably June or July of '89, and ever since then. so far
as anybody knows, they must have been going off that north launch
there, the one that used to have the post in front of it, and you
assume that's the one he's talking about, in that application.
MR. TURNER-Okay. All right. Those who wish to be heard in support
of Mr. Parillo's application.
GEORGE PENSIL
MR. PENSIL-Thank you. I am George Pensi I, and I grew up in
Dunham's Bay, along with Mr. West. He and I used to water ski in
that Bay, and I'm a resident of Queensbury. I own the boat
business on 149 in Queensbury. My first observation that I'd like
to point out this evening, in growing up in the Bay, we used to
water ski in Dunham's Bay. We used to see how close we could come
to the Dunham's Bay bridge, to see if we could get a spray up on
the bridge. In fact, I remember a day when Torn almost skinned
himself alive running into that bridge with his boat. but anyway,
in the days we used to water ski in that Bay, the closer we'd get
to that bridge, the more yellow the water would get. and I
associate the yellowness in the water with sort of pollution, and
as time passed. nothing seemed to change. The major part of the
Bay, as you water ski through it, you'd see a white wake behind the
boat. until you got near that bridge, and then all of a sudden,
there was a five mile an hour zone put in, where that you could not
water ski in the Bay anymore. You would have to water ski outside
of the Bay, and all boats would move slowly through the Bay, and I
observed, ever since that time, the yellow water, even when you'd
go S10\'1, you'd see it, and the water taint in that Bay. I don't
know if this has any relevance to what's going on, the
conversations here, but to me, I see a direct correlation between
the propeller actions, and the slower motion of the water, to the
additional pollution in that Bay, or discoloration in the water.
and I observed this from Day 1. The weeds grew out further into
42
''--
the Bay. Now. relative to. also. in discussing the pollution
problem, 14th on the list being milfoil, in 1987. We know that
milfoil migrates very. very quickly. That's something that I've
read about milfoil. I don't have to be a doctor or study water to
know this. It's in all the newspapers. If that were the case. and
it were caused by boats, it was already there when Mr. Parillo took
over the marina. So, therefore, once it's there. it grows very
quickly, and ideal conditions are non-sandy. murky water. It moves
very quickly. Where did that milfoil come from. if it's attributed
to boats being launched at a launch ramp, if it was very limited in
1987, and if. therefore. it was caused by boats being launched from
another body of water. carrying it in. it had to come from the
launch ramp when it was owned by the EIIsworths. Now. another very
interesting thing is we have a gentleman here who would have paid
$30 to launch his boat there. at that ramp. because he had a dock
there. and it was inconvenient for him to have to go to the Million
Dollar Beach. Now. all of a sudden it's interesting that this
individual comes in and testifies that he would like to see it
closed. because he now owns a piece of property in Cleverdale. He
doesn't need to have access to the lake. He owns property on the
lake. He wants to launch to an elite club. okay. You go on to the
next issue. which is really what we're here for tonight. We all
have. when we're in business. we have. basically. a choice to make.
how we decide to run our business. how we decide to bill our
customers for our services that we render, how we would choose to
size our business. A lot of it depends upon. maybe, what our mood
is at the time. If I were a marina on the lake. and I sold boats.
which I'm not a marina on the lake. I do sell boats. it would be
my right to decide how I wanted to sell my boats. It would be my
right to decide. I make this decision, just for, say, an example.
I'm only going to sell boats to the people I can dock at my marina,
because I can service their needs better, and I made that decision
because I don't want to work too hard anymore. Maybe I'm getting
a little older. Just like the Ellsworths, although I know for a
fact. that it depended on their mood. on a particular day. if you
called them. in South Glens Falls. whether or not they would give
you permission to use their ramp or not. They would. on occasion,
give permission to people to use the ramp. other than their dockage
people. very moody, hot and cold. However. they did. never. close
that ramp for a period of 18 months. In fact. in 1982. when I
founded my boat dealership. beyond that time. we used to have
customers that would dock their boats at the ramp. at that
facility. and they used to have us pick up their boat in the fall.
or put it in in the spring. summerize it. and get it ready. put it
in. and we would be told that we could bring it on certain days.
that it would be more convenient, it was made more convenient. and
that post was literally removed for us to put boats in the water
and customers to put their boats in at that time. Their choice. at
the time. was to decide when the ramp was used and when it wasn't.
but it was used for a fee, inclusive of your dockage fee. So.
therefore. they selected to pick and choose, and the ramp was open.
and we used it. and the northern ramp was open. and we used it.
Now. if I were a marina. and I decided that I wanted to treat my
business a certain way. such as limit my boat sales to the people
that dock. because I could serve them better. then that would be my
choice. and if I decided to sell my marina, and the people who
bought my marina opted to sell boats to anybody that walked in the
door. that would be my choice, as the new owner of this facility.
This is not something for government to get in the middle of. how
people do business, and I believe that's really what the issue is
here tonight. I also believe that there's been a lot brought up
here that, really, is totally irrelevant. The bottom line is. this
ramp has never been closed. from what I have seen, for a period of
even a month. There have been people in and out of that facility.
but the maximum would be a period of maybe, spring launch and fall
haul out, which is not a period of 18 months, and there is a fee
associated with it. It was part of the dockage fee. Thank you for
listening, everybody.
MR. TURNER-Anyone have any questions? Okay.
Next.
43
-_._--~--~.._...._--------
MARK LEVACK
MR. LEVACK-Good evening. My name is Mark Levack. I'm a resident
of Queensbury, and I've had the opportunity to sit here on many
evenings, having had projects before this Board myself, and having
been forced to sit through and listen to a lot of the dissertations
on this project. So, I feel a little compelled to get up here and
just be very brief and make some comments and representations of
fact. To begin with, I was born on Cleverdale in 1962. That makes
me a newcomer, but I've been on the lake my entire life, not as a
lake front property owner, but as a local person and one that
enjoys the lake greatly. In 1985, I worked for a marina in Lake
George Village. So, I'm very familiar with in and out boat
traffic. So, I feel that makes me qualified to add some comments
here, and also in 1986 and 1987, my family rented a lake front
house on the east side of Lake George. I can definitely say that
between 1986 and '87, as I had the occasion to commute by the boat
launch every day, twice a day, on my way to work in Queensbury,
that I did witness the launches taking place. I cannot say
specifically whether those launches were to the public or to
paying, or to members that had marina slips there, but there is no
question, unequivocally, there were launches that had taken place
in that northern ramp and in the middle ramp, the next ramp south.
I can also personally attest to the fact, on three different
occasions, that monies were paid to either the Ellsworths or people
that lived, or worked for the Ellsworths marina to launch boats and
jet skis and a wet bike at that ramp. I cannot personally attest
to whether that money was paid to Mr. Ellsworth. I don't know Mr.
Ellsworth. I know that on three occasions while I was standing
there, when people that I know of launched boats there, did pay
someone to launch a boat at that site, and as far as that post
being there, I would object to a couple of comments that were made
this evening, and I cons ide r myse 1 f an observant pe rson. My
evaluation of the whole situation here is that Mr. Ellsworth. in
his later years, didn't want to be bothered with the "tourists",
and boat launching at that location. I feel, as has been described
here this evening, that Mr. Ellsworth did have his club or did have
his, if you got him on the right day persons, that he would allow
to launch boats at that space. and I fee 1 that, as it's been
applied here this evening, that if Mr. Ellsworth wanted to make a
specific, overt action by closing down that boat ramp, he would
have put posts on either side of the ramp, and chained them, but I
feel that because Mr. Ellsworth wanted the ability to pick and
choose, as to who would launch slips there. he put the posts in
such an area as that even trailers could maneuver around the posts,
of which I have personally witnessed. In closing, I'd just like to
say that I've been scuba diving in Lake George since 1979. I can
personally attest to the degradation of the water quality in Lake
George, and every time my friends and I go scuba diving, we take
along a mesh sack, and we're constantly pUlling garbage out of the
lake. It's disgusting. It's appalling, and there's no question
that it's happening, and I'm not g,oing to profess to being an
ecologist or someone that can comment on silts and milfoil foliage.
but it just seems to me that where that ramp is located, if someone
were there to police the left turn only onto the lake, that there
isn't anymore silt that's being stirred up and brought into the
lake, from that point of the launch onto the lake itself, than is
already being brought on by the current boats which are in
conforming use, south of the launch site. In closing, I'd just
like to reiterate that I think that in order to have a solution to
the problem, is not limiting access to the lake, because people are
going to get on the lake in one location or another. The answer,
as was mentioned here this evening, is education, and I think if
the LGA spent as much time on educating the public and policing the
public on water quality as they do trying to deny access, I think
the lake, that the water quality would be better off as a result.
MR. TURNER-Any questions? None? Okay. Thanks.
MR. LEVACK-Thank you.
44
MR. TURNER-Who wishes to be next?
MICHAEL MULLER
MR. MULLER-For the record. my name is Michael Muller. and I'm a
resident of Queensbury. I wish to speak this evening merely as a
proponent for what had been my motion back three years ago. which.
apparently. has spawned three years worth of litigation. I had
served on this Board for seven years. and I believe that was my
last motion on December 27th. 1989. and I see there's only two
survivors left from that Board. The issues that I heard here this
evening. I guess I would just like you to understand some of my
thinking on why I would make such a motion. It was Mr. Parillo who
asked me to come here this evening. He saw me the other day. to
explain it to you. Basically. I could find no distinction in the
Zoning Ordinance. pertaining to a launch. That is. it didn't talk
about a private launch. It didn't talk about a public launch. So.
a launch is a launch. That is. allowing the presumption of the
applicant or the owner. I think that. as a Board member. I also
troubled myself with the issue of. was this a change in use. or was
this merely an increase in volume. and as Mr. Philo brought up this
evening. how are they getting boats in there. are they just
throwing them over the bridge? We've heard testimony that they
were launching the boats there to get them into the docks. and I
think that the instructions that I followed was that I had to look
very closely to see if there was a cessation of total use. So.
basically what I saw was boats coming in at some point in time. and
boats leaving at some point in time. and I was left with the
impression that there was activity there. I really didn't exclude
it as an exclusive club to only people that put boats in their
docks. That is that. a launch being a launch. it was basically
boats coming through the launch. I don't understand how you can
pull it down into its component parts. That is. if a motel owner
suddenly changed the rooms from single beds to double beds. that
presumably increases the activity. There's a lot more interesting
things done on a double bed than a single bed. but it's true. and
is that a change in use. or is that a change in volume. I leave
you with that thought.
\'lILLIAM '^lALKER
MR. WALKER-My name is William Walker. We have a summer place at
the lake. Years ago. when we came up. that launch was in
operation. and I never used it. but I know my cousin used to use
it. and he would put a dollar in the box. and I was appalled to
hear somebody say tonight that it was $20 to cross. today. but with
all of the legal wrangling and gobbledy gook that people have to be
put through. maybe Mr. Parillo. needs $20. Maybe he'll need more.
I don't know Mr. Parillo. I never have met him. but when I first
heard about this. it was as a member of the Lake George
Association. and I heard that they were very much opposed to this.
I kind of wondered why. When you stand on that ramp. you can
probably throw a rock and hit the bridge where the boats go under.
Now. it's not as if it was up at the other end of the wetlands. and
the boats came charging all the way through down the creek and then
under the bridge. You put them in the water. and they're
practically under the bridge. So. how are they going to hurt the
wetlands? And the people that put boats in there. because the
bridge is low. are people. usually. that have slower boats. and
maybe I'm speaking. tonight. for the fellow in Yonkers that has his
boat wrapped up in tarps. and he certainly isn't here. Because of
this thought that access to small boats is maybe quite a bit better
than the leviathans that we have on the lake with ship to shore
telephones and log hailers and people living on them. and the Lake
George Association doesn't seem to be concerned about that. but as
I said. I be long to the Lake George Assoc iation. So. I wrote a
letter. and I asked the question. \~hy are you opposing this so
vehemently. and this went in with my dues. a couple of years ago.
I never got an answer. I sent another letter. and I never got an
answer. It kind of appears to me tonight that you have some people
45
~"ho are qui te i '.uential, who own land in Dunham's Bay, ìd who
seem to have th'e- Lake George Association carrying the L~l for
them. I, for one, as a Lake George Association member, don't
particularly like this. I would like to see their attention a
little bit more on possibly milfoil, maybe some of these big boats
control, and what I have heard, it seems that definitely you have
a whole lot of boats which are parked there, and give and take on,
one says this, and one says that. It pretty much appears to me
that the people who rent the space do put their boats in there, and
they certainly do it at least twice a year, which it would be three
times in 18 months. It isn't as if there are some private docks,
with private people, with private launch. Those docks are rented
commercially. So, they're commercial customers, and again, I
haven't heard it said, until Mr. Pensil said it. You're talking
about a question of volume, not a question of use. It's a
commercial use, and again, it's how he wanted to run his business.
He wanted to curtail it. I don't see how you can separate to say
it is open to the general public, and anybody that comes along, if
he restricts it. It's just a restriction of use. You might say
even the same thing as, we'll go back to the motel. A lot of
motels put up their No Vacancy sign at 9:00 p.m. because they want
to go to bed. Now, that doesn't mean that they can't run their
mote 1. It's not clo sed, but the ir not accepting anymore room
rentals for that night. Thank you.
MR. TURNER-Anyone else wish to be heard? Okay.
thoughts are, if we leave the public hearing
making the decision.
Paul, I think my
open, we reserve
MR. DUSEK-I think under the Ordinance, whether it be old or new, or
whatever, you had at least 30, and you may have 60 days now, to
make a decision. I don't think you have to leave the public
hearing open to preserve that, because I presume you'll make a
decision within the next 30 days anyway.
MR. TURNER-I would hope so.
MR. DUSEK-The only other thought I had on it, Mr. Chairman, was
that when I went over the issues with the attorneys earlier, and
for the purposes of the Board, there were several issues that had
to be decided by the Board. The last of which is the one that we
spent most of the time on, of course, this evening. and that is, if
you got that far, the issue of whether that 18 month period, in
fact, subsided. There was a very, I think it was a very
significant point made here this evening, legally, with regard to
what type of use must occur to preserve a public boat launch. Mr.
Richards has indicated that all you need is just one time. as cited
in the Long Island case. Mr. Caffrey or Mr. West, one of them, I
believe, indicated that that case was not appropriate, and that
there were other criteria that the Board had to consider, and I
don't mean to suggest that work should be thrown around, but it
certainly seem that if the attorneys were willing to brief that
issue for the Board, it would be very valuable to the Board, in
terms of having the law in front of you. when we ultimately do take
a look at applying the facts to that law. It was also the issue of
burden of proof, which was mentioned. Both attorneys had taken
opposite views on whose burden of proof it is. as far as I can see.
It seems to me that when you consider everything you've heard
tonight, and you've heard the facts, the other elements that are
going to be considered is the laws in this regard, and it seems the
burden of proof. as well as the cessation issue of how much use is
necessary, those are important legal issues that you're going to be
considering. So. my suggestion would be. for the Board to consider
asking the attorneys to furnish a brief legal outline on their
positions on those issue, citing some appropriate cases.
MR. MARTIN-Could I offer something. too. as Acting Zoning
Administrator? I know that there's been testimony made, or
statement made that the Ordinance doesn't really define launch
facility, but I would. maybe it doesn't per set but I would bring
46
the Board's attE:._...ion to t\vO definitions that may help you 1 your
-
consideration of this matter. A Quick Launch Facility. "A
commerc ial fac i 1 i ty located wi thin a marina where ve sse Is are
stored and launched and stored again. individually. for periods of
less than one week at a time." And that's on 17938. Page Number.
and then the other definition would be Private Wharf or Private
Mooring. "A privately owned wharf or mooring which is not used for
commercial purposes and is not rented." So. I think those two
things. as you're mulling this over in your mind. may give you some
useful guidance.
MR. TURNER-Okay. John. do you want to sum up. and then we'll get
to the rest of it.
HR. RICHARDS-Yes. just a couple of real qUick thoughts on some
things vJe've heard tonight. I know Tom's sister-in-law talked
about the milfoil. and everyone's concerned about that. I think
it's important to keep focus. that's not the issue tonight. No
one's. obviously. advocating environmental damage. We're talking
about. was the use discontinued, and can you pull this out as a
separate use. This is a preexisting use. not what is the
environmental effect here tonight. Second. there's a lot of talk
about intent of the Ellsworths. if there was any. and when you have
an Ordinance that has a specific discontinuance provision like
ours. you just go by whether the use stopped or not. One other
thought I had about Mr. Philo's role. and really anyone who's ever
launched a boat there. you're appointed members of the Board
because of your knowledge in the community. You're certainly
allowed to use your own personal knowledge of the community in
making your decisions. If you couldn't allow anyone who launched
a boat to do it. then you could never review any retail store plans
or anything else where you purchased anything. That just doesn't
make sense. So. finally. on the whole idea of the discontinuance.
frankly. I did brief that some time ago. and you should have this.
back in.
MR. TURNER-We've got it in the file.
MR. RICHARDS-Dredging up the record. there was a memorandum of law
submitted. which is still valid. It doesn't have the marina case
in it. but it has everything else. It has all the points that I
mentioned. I'm not going to review them right now, but I would
urge you to read that, and I do, obviously, believe that that one
slip used to save a marina in Long Island, it certainly applies to
our situation here. To post a sign, we'd never disagree with that.
The key thing I want to stress at the end is, the launch, the
northern launch, was always used. It was used by renters of the
Allison Ellsworth parcel. It was used by renters of the Robert
Ellsworth parcel, and it was used by members of the public for a
fee, at other times. and the one affidavit in particular I urge you
to look at in my exhibits is the one by the manager of the
Ellsworth marina for three years. who said he used that. I didn't
even include the launchings of Allison Ellsworth's people because
I figured that was assumed here. because that was the issue. He
says right in the affidavit that he used it for the Robert
Ellsworth people and for the nonmembers. fishing boats were
launched there. too. It's there. it's there, and at least. I think
we documented 60 launches by people not renting from Allison
Ellsworth. The evidence is overwhelming. and I urge you to find
that it's a continued use.
MR. TURNER-Okay.
suffice for you?
Then you're satisfied that that brief will
MR. RICHARDS-Well, if we're going to have a brand new submission,
I just wanted to be sure that the Board is aware of this.
MR. TURNER-Okay. We've got it. We'll review it. Do you want to
submit your brief. and. John, you submit your brief.
47
PUBLIC HEARING CLOSED
MR. TURNER-Obviously, we'll wait for those submissions, and then
we'll notify everybody as to when the decision will be made on the
appeal.
MR. DUSEK-Is there going to be a summation by the other side, Mr.
Chairman?
MR. RICHARDS-I thought he already had his.
MR. TURNER-He already had his, I think.
you summed up?
Mr. Caffrey, I thought
MR. CAFFREY-I would say what I did and what John did wasn't really
a summation, it was more just rebutting a few specific points. I
think that's what we both did. I would hope maybe when we brief
this. or maybe when it's heard again, that we may have a chance to
sum up all the evidence, briefly, but comprehensively. I was more
just rebutting a few specific points. I think that's what John was
doing, too.
MR. TURNER-Yes. Okay. We'll await those.
MR. DUSEK-Could I recommend maybe a time period be agreed to, so
that we know when, because the Board does meet again on the 16th.
MR. TURNER-We meet the 16th. We meet the 17th. but the agendas are
full. We can't handle it. We wouldn't handle it until January.
MR. DUSEK-Would this be part of a regular meeting, Ted. or would
you do it as a special meeting again?
MR. RICHARDS-Why do we need another meeting?
MR. DUSEK-Well, the Board will have to reconvene in order to decide
the case.
MR. MARTIN-It shouldn't take you very long, I don't think.
MR. CARVIN-I mean, we're going to be losing Charlie at the end of
the month.
MR. TURNER-Yes, and he knows the history of it.
MR. CARVIN-I mean, my personal opinion is, Ted, that. I don't know
what else they can sum up. I mean, we've got 14 pounds of paper
here.
MR. TURNER-Lets look at the calendar, here, and see.
MR. CARVIN-If anything, I think the only thing that I'd like to
hear is from our attorney, and I've got his three or four points,
I think, that we really have to address, and I certainly have the
minutes.
MR. RICHARDS-If we're going to do that, I'd like to make a very
brief closing statement, and I would opt for no briefing.
MR. TURNER-You don't want to brief? Okay.
MR. CAFFREY-My question is, when is the Board going to vote? Will
it be in December or in January?
MR. TURNER-Well, that's what we're going to try to decide right
here now.
MR. CARVIN-This would be just to render a decision. is that
correct?
48
MR. TURNER-Yes.
MR. CARVIN-In other words. we would not.
MR. TURNER-I've closed the public hearing. There's going to be
some discussion about this amongst the Board members themselves.
MR. DUSEK-I think that's what I would envision. Mr. Chairman. that
you'd probably discuss it among yourselves that night. You
wouldn't entertain any comments from the public or anything.
MR. TURNER-No.
MR. DUSEK-And you may have legal questions that you want to talk
over with me. as your attorney. but that would be about it. and
then you would vote and make a decision.
MR. MARTIN-The other thing I offer you is you have your Special
Meeting the 8th. also.
MR. TURNER-Yes. I know.
MR. CARVIN-What time is that? Is that 7:30?
MR. MARTIN-7:30 p.m.
MR. CARVIN-Any idea how long that's going to be?
MR. MARTIN-Hour. hour and a half. maybe. You could get together at
7:00. prior to that.
MR. TURNER-You won't make that decision in a half an hour.
MR. CARVIN-No. I was going to say. you probably would want to do
it afterwards.
MR. MARTIN-Afterwards then. yes.
MR. TURNER-Does everybody feel comfortable. that we want to do it
after the meeting with the Town Board. on the 8th. and get it done?
MR. CARVIN-Is there any way we can get the minutes before then.
before we meet?
MR. DUSEK-As I'm thinking about it. it would be helpful to me. at
this point. if you could wait until the 16th or 17th. because I
have a trial that's starting on Monday the 7th. which I believe. so
far as I know. it's still on. and it'll probably be at least a two
day trial. So. I could very well be in the midst of that on the
8th. and I may not have enough time to be fully prepared for you
that night. or if the trial gets delayed. and it goes over until
Wednesday. I'd be right in the middle something that I'd hate to
take time.
MR. TURNER-Okay.
MR. DUSEK-Although it could be canceled. to be honest with you. I
don't know. right at this point. but right now. it's still on. and
I'm preparing for it.
MR. TURNER-The 16th and the 17th is out. I don't even want to get
it on the agenda. because we're just too busy. We've got to pick
some other night.
MR. DUSEK-How about Wednesday the 9th?
MR. PHILO-Well. somebody set a date. and we'll go by it.
MR. TURNER-How about right after Christmas?
49
~
'----
MR. DUSEK-Do you want to try to set it for the 8th. and if we have
a real problem. cancel it. but otherwise. try to shoot for the 8th?
MR. PHILO-That would be fine.
MR. TURNER-Yes. I'd like that.
MR. DUSEK-Because I don't want to hold it up on you.
MR. TURNER-No. I don't want to hold it up. either.
MR. DUSEK-Hopefully. maybe this thing will settle before we try it
anyway. So. you probably won't convene until about 9 p. m. that
night?
MR. TURNER-Yes. Where are we going to hold the meeting. that's the
next thing?
MR. MARTIN-You could do it right here. The joint meeting is here.
So. you'd just simply stay here afterwards.
MR. TURNER-Yes. Okay.
December the 8th.
All agreed December the 8th?
Okay.
MR. DUSEK-December the 8th. 9
comments entertained by anyone.
that the idea?
p.m. there will be no further
No briefs to be submitted. Is
MR. TURNER-No further comment. no briefs to be submitted. Right.
On motion meeting was adjourned.
RESPECTFULLY SUBMITTED.
Theodore Turner. Chairman
50