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1992-12-08 SP ?\ QUEENSBURY ZONING BOARD OF SPECIAL MEETING DECEMBER 8TH. 1992 INDEX APPEALS '- o ~G I N A L Notice of Appeal No. 2-92 Lake George Association RE: Parillo Boat Launch 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. QUEERSBURY ZbølRG BOARD OF APPEALS SPECIAL MEETIRG DECEMBER 8TH. 1992 9:30 P.M. MEMBERS PRESERT THEODORE TURNER. CHAIRMAN JOYCE EGGLESTON. SECRETARY MARIE PALING THOMAS PHILO CHRIS THOMAS CHARLES SICARD FRED CARVIN PLANNER-ARLYNE RUTHSCHILD EXECUTIVE DIRECTOR-JAMES MARTIN STENOGRAPHER-MARIA GAGLIARDI NOTICE 01' APPEAL RO. 2-92 LAKE GEORGE ASSOCIA'1'IOII. IIIC. APPEAL BY THE LAKE GEORGE ASSOCIATIOII FROM A DECISIOII 01' '1'HE ZOHING ADHINIS'1'RATOR (DAVE HATIII) DATED I'EBRUARY 20. 1992 III '1'HE HAT'l'ER 01' THE FRANK PARILLO APPLICATION. LAKE GEORGE ASSOCIATION RECEIVED NO'l'ICE OF DECISIOII OH APRIL 2. 1992 STATIIIG '1'HA'l' THE BOAT LAURCH HAY CONTINUE AS A PREEXIS'l'ING IIONCORI'ORHIHG USE AS THERE HAS BEEN NO CESSATIOII 01' USE. SEC'1'ION 119-80 DISCOII'l'IHUAIICE S'1'A'l'ES: wII' A NONCOIII'ORHIRG USE IS DISCON'l'IIIUED I'OR A PERIOD 01' EIGH'1'EEH (18) CORSECU'1'IVE HOIITHS. I'URTHER USE 01' THE PROPERTY SHALL COIII'ORH 'l'0 THIS CHAPTER OR BE SUBJECT TO REVIEW BY THE ZOHIIIG BOARD OF APPEALS.w PROPER'l'Y LOCA'l'IOH:' CORIIER 01' BAY ROAD AIID ROUTE 9L 'l'AX HAP NO. 23-1-19 MR. TURNER-This is the continuation of Notice of Appeal No. 2-92 Lake George Association. Inc. As you know. the last time around. the lawyers were well aware that 11 o'clock was the cut off. So therefore we didn't get into the correspondence that was in reference to this case. So. our first order of business is to read that correspondence into the record. CORRESPORDEIICE MRS. EGGLESTON-The first letter is from James M. Blake. MD. "I am Dr. James M. Blake a resident of Antigua Road Plum Point. I have lived here since 1955. During this time I have been interested in and observed the changes which have and are occuring in the area. Specifically related to environmental changes as such effect the lake. I have also for several years taken and recorded clarity readings of the waters of the lake for the Freshwater Institute. You are familiar with these reports especially the south portion of the lake including Dunhams Bay. I called this to your attention previously. If the quality of Lake George including its economic value is to be maintained it must be the responsibility of every individual as well as the government agencies. The present problem of mil foil is well known also that the seeding of such is from the interchange of boats from other infested lakes without proper inspection and cleaning. Refering to history the Dunhams Bay Wetlands Marina as you may know was in prior years was a small personal family service with only a few boats involved and to my knowledge was never advertised as a public boat launch. It was operated intermittenly as observed and was fully closed for many months as recall seasons by the original owner during the time I have observed. The increase in the resident docks for boats poses a potential problem including the associated parking and traffic in the area. I sincerely hope and suggest in view of the above that you do not permit ever increasing open uncontrolled launching in this area." And this one is from Winton I. Catlin. "I am a property owner on the shore of Lake George in Dunham's Bay and I oppose the opening of Mr. Parillo's boat launch to the public. I 1 can attest to the following statement. In July, 1987, I sold a boat to a buyer who is not a property owner on lake. After inquiries regarding a boat launch where the buyer could remove the boat from the lake to place it on a trailer we were informed that the site now owned by Mr. Parillo was closed to the public. It was therefore necessary for me to drive the boat to Fischer's Marina where the buyer took possession. I was then, and am now, adamantly opposed to any uncontrolled boat launch in Dunham's Bay. Yours truly, Winton I. Catlin" Richard Waldron, "As a summer resident on Dunham's Bay, I oppose any special use variance that would allow daily use of the boat launch site of the former Ellsworth Marina on the creek leading to the Bay. Mr. Ellsworth had closed it to the public. I was denied access on at least 3 occasions prior to the Fall of 1985. At that time. a Spring and Fall launch was convenient; but Mr. Ellsworth told me that to let me launch, he would have to let everybody launch. It is a busy bay now what with the Dunham's Bay Boat Co. and four existing marinas. Speeding continues to be a problem. Turning props stir the bottom leading to further milfoil spread. For the first time, there is milfoil growing near my dock on the east shore. Water quality continues to deteriorate, and soon we will be faced with the threat of the zebra muscle which will enter the Lake - probably on a day-launched transient boat. Oneida Lake is infested now, and it is spreading east along the canal. Enough is enough I Please don't allow it." Elwyn Seeley, II "Several people have told me that the Boat Launch was closed from '83 to '89. This can be proven by photos in which the Boat Launch was blocked by a log post in the center of the ramp. These pictures are available if you wish to see them. I ask that your board close the boat launch. Sincerely. Elwyn Seeley, II P.S. My property is on Dunham's Bay." And from Dr. Edwin Brown, "On reviewing my letter of November 17, I feel that you may misunderstand it. On the summer previous to this one. we were able to launch our boats at other sites than Mr. Parillo public launch si te. Last summer, since the launch site was open for public business we used it. I am not in favor of the public launch site owned by Mr. Parillo because of the impact it has on the Dunham's Bay Wetland. As you all realize. those people coming in for a "one day launch" do not understand nor could they be expected to, how fragile this wet-land is. As a home owner on the East side of Dunham's Bay. I would appreciate not having a public launch site approved in this wet-land. Yours truly. Edwin A. Brown" And from John T. Brothers. "This is to express my concerns about the Parillo Boat Launch Expansion Project. For 21 years we have resided in summer at the mouth of Dunham's Bay, and for the last several years we have been here year round. Prior to Mr. Parillo's purchase of the property, the launch facility. as a public launch. was closed for at least a year and a half. It is no secret that people may have succeeded in getting a few boats around the barriers to get them into the lake. but the launch was ~ operated during that time as a.LEGALLY SANCTIONED LAUNCH FACILITY. One has no objection to a legitimate business operation. but why is Mr. Parillo allowed to have a facility that on occasions has miles of garbage & trash, overflowing from a few receptacles? Why is he allowed to operate without sewage pump-out facilities for boats? Where is the required public restroom for such a business? Turn this lake into a cesspool, and all commercial interests in the area will be devistated. Your Town included. Why does the Town not give us support to maintain regulations that will help preserve Lake George? A reply will be appreciated. Sincerely. John T. Brothers" MR. PARILLO-What was the date on that letter? MRS. EGGLESTON-11/27/92. and this one is from Carl Kroetz, "I am writing concerning the Public Hearing on the Parillo Boat Launch to be held on December 2nd. 1992 at the Queensbury Town Center. My objections to this uncontrolled pUblic boat launch facility in Dunham's Bay Wetlands remain the same as was stated in my letter to you dated December 27, 1989, a copy of which is attached. I respectfully request that copies of this letter and my December 27. 1989 letter be made part of the testimony at the hearing. The 2 continuation of this public boat launch in the Dunham's Bay Wetlands should be stopped for all of the reasons stated in my letter of December 27. 1989. The Zoning Board of Appeals has a responsibility to its citizens to enforce its owns rules to protect Lake George. Respectfully. Karl C. Kroetz" In the letter of December of 1989. Mr. Kroetz says. "I am writing as a concerned ci tizen and also as a member and secretary of the Queensbury Citizens Advisory Committee for Lake George. and want to say that I am opposed to the re-opening of the boat launch in Dunham's Bay wetlands because this would adversely effect the water quality in Lake George. Everyone is greatly concerned about the continual decline of water quality all around the lake and especially here in the southern basin. We see a steady decline in water clarity. an ever increasing number of pollution hot spots. beaches closed to swimming because of pollution. more sitings of millfoil. etc.. etc. All of these problems have occurred because of relentless pressure on the natural resources of the lake from the unprecedented over- development from both the commercial and residential sector. The solution to these problems involves the support from everyone. including State Agencies and Commissions. local planning Boards and Zoning Boards of Appeal. There was a time when we did not understand thet very important that wetlands play in cleansing the water entering the lake. We now know that the huge Dunham's Bay wetlands serves as a retention system for nutrients such as phosphorus and nitrogen. and also is an important source of food for fish and wildlife. There are now approximately 100 motor boats berthed at docks at this marina in the Dunham's Bay wetland. These boats churn up the bottom sediments which disrupts the normal cycling of nutrients and leads to nutrient loading out into the bay and into the lake in general. Opening this boat launch to the general public. after it being out of operation for a period of at least 18 months. could easily result in double or quadruple the motorboat activity that now exists in this critical area. This greatly increased boating activity will adversely effect the water quality in the wetlands. Dunham's Bay. and the entire lake. I therefore respectfully ask the Queensbury Zoning Board of Appeals to deny the application to re-open this boat launch. Sincerely. Karl C. Kroetz" And from Elizabeth S. Williams "I have been informed that your Board will meet on December 2. 1992 to consider Mr. Parillo's application to open his Boat Launch in the Dunham's Bay Creek. to the public. Further. I understand that it will be crucial to your decision. to establish whether the Launch was ever closed to the public. I have talked to a number of people who confirm my opinion that the Launch ~ closed to the public during most or all of the period from 1983 to 1989. This closing off of the Launch can be proven by pictures showing the Launch to be blocked by a log post in the center of the ramp. These pictures can be made available to your Board. As a property owner on Dunham's Bay. I am appalled by the continuing degradation of its waters and of the adjacent wetlands. You will be aware that there is a center of Milfoil infestation in the Bay which is attributed to bits of the plant being brought in from other lakes. on the hulls and propellers of boats trailered to the Launch. Also the churning up of the Creek bottom by boats traveling from the Launch into the Bay. has brought harmful nutrients which have stimulated the overgrowth of aquatic vegetation in the Bay. Finally. oil and gasoline have been added to the once clear waters of Creek and Bay where they can easily be seen during the boating season. lying on the surface of the water when it is calm. I trust that your board will see the wisdom of mandating the closing of the Launch in the Dunham's Bay Creek. Sincerely. Elizabeth S. Williams" MR. PHILO-The date on that? MRS. EGGLESTON-They're all November. MR. PHILO-Of ~ year? MRS. EGGLESTON-November 21. 1992. And this one is from several people. dated November 19. 1992 "Florence Smith. Herbert Smith. 3 -- Lucille V. Cross. Edwin J. Cross. Seeley Road. Cleverdale. NY 12820 We wish to express our concern and disapproval of the proposed expansion of the Dunham's Bay Boat Launch facility. We believe this project would have a very negative impact on the Quality of Lake George." And November 14. 1992. from gdward E. Seeley. MD "It is my understanding that your Board will meet on December 2. 1992 to consider Mr. Parillo's application to open his boat launch in the Dunham's Bay Creek to the public. I further understand that it will be crucial to your decision to establish whether the Launch was ever closed to the public. After talking to a number of people. it is my understanding that the Launch was indeed closed to the public during most or all of the period from 1983 to 1989 and that such closure can be proven by pictures in which the Launch was blocked by a log post in the center of the ramp and which pictures can be made available to your Board. You will be aware there is a center of Milfoil infestation in Dunham's Bay and that it has been suggested that this got it's start by being "imported" from other lakes on the hulls of boats using the Launch. Furthermore. the stirring-up of the Creek bottom by boats using the Launch has resulted in the pouring in to the Bay of harmful "nutrients" which have promoted an overgrowth of aquatic vegetation in the Bay. In addition. oil and gasoline have been added to the waters of the Creek and Bay by boats using the Launch. For all of the above reasons. I would suggest your Board mandate the closure of the launch. Sincerely yours. Edward E. Seelye. MD Dunham's Bay Property Owner" And November 16. 1992 from Paul Kasselman. "In regard to the upcoming hearing on Parillo Boat Launch. I will not be able to attend but would like my opinion known to the Board. I have a home (in Queensbury) on the lake around the corner from the Marina. Most of the boat traffic in our area is from the Marina (at least they go in and out of Dunham's Bay). As it is now. you must be very careful swimming off your dock and not go out very far for you may be run over. I don't know what sort of an impact on the environment this launch has. but I am sure the experts will address this. But the safety factor for homeowners in this area is considerable. Thank you for your consideration. Sincerely. Paul Kasselman" And December 2. 1992 from Carol Collins. "In the interest of preserving the water quality of Lake George. I would like to address what I consider the most important mechanism the lake has in protecting its 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 and back. as far as Pickle Hill." MR. TURNER-That's it. Her testimony identified what she's talking about now. MRS. EGGLESTON-So we don't have to read? Okay. 12/1/92 Douglas Wrigley "I understand that the Board will again consider the application of Mr. Parillo to open the Public Boat Launch in the Dunham's Bay creek in Lake George. If the issue is whether or not the public launch was closed for at least 18 months prior to the reopening. there is no question that it was. Dave Hatin was right when. at the earlier hearing. he stated emphatically and repeatedly that it was closed. Why he changed his mind is not clear. The key word is "Public". The Ellsworths had a log in front of the launch and a Closed sign. The possibility of occasional launchings for a friend or use by trappers in the fall do not. in any way. constitute Public launchings. Neither do the launchings for those who rented the docks in the creek. I trust the Board will set aside legal nuances and reach the same judgment that Ms. Goetz and Mrs. Eggleston did in the last hearing. Once that is settled. the Board can take up the most important issue of the effect of a Public Launch on the wetlands and Dunhams Bay. This vital resource is under growing pressure and you can see it every year. This Board has an opportunity to take a stand and draw the line on further damage to Queensbury' s most important resource. The consideration is whether a single commercial operator seeking larger returns can effectively place this area and Lake George in jeopardy. I urge the Board to declare the launch closed 4 --- immediately and require Mr. Parillo to seek a variance with a full Environmental Impact Statement. I am confident the Board will reach this conclusion. Sincerely. Douglas A. Wrigley" This is from Dick Waldron. Dunham's Bay Association. Inc. "The annual meeting of the Dunham's Bay Association. Inc. was called to order by President Ellie Strack at 11:15 a.m. on Sunday. September 6, at Dunham's Bay Lodge. Ellie dispensed with the reading of the minutes since all members received a copy in the mail..... Doug Wrigley raised the issue of the sewer." I don't see anything in there on the, nothing in there pertaining to this. They're just general things about marina requirements. So, the comment they're asking us to read here is. "Several members commented on the clarity of the water which is much improved over last year. We feel this is due to the lack of boats being launched under the bridge." MR. TURNER-Okay. Paul. did you wish to address the Board? MR. DUSEK-Well. I think. just to be helpful to the Board. I mentioned something at that last meeting. and that was briefly describing the issues. and it seemed that the attorneys were. I guess. in some agreement that I had, in essence. capsulized some of the issues for the Board, and it seems to me that this is a complicated matter that I would encourage you to consider pulling it apart and dividing it up into pieces. and the pieces that I see here. the first piece is the question of this decision that Mr. Hatin made and whether or not, I think you can decide. in the first instance. whether or not you feel that that decision is in any fashion binding or whether the matter should have come back to your Board first. and not gone to Mr. Hatin. The second issue that I see is that. that issue. no matter how you answer it. the matter is still before you because you had a double motion of both a rehearing and also considering that decision. The second issue I think that's important for the Board to address, before you even get into anything else. would be the issue of this res judicata argument that the attorneys have raised. Basically. I think that if you find that res judicata applies, then you would stop at that point and you would not go any further, and you'd say. that's it. that's the end of our hearing. You're not going to decide anymore because you're stopped from deciding. On the other hand, if you feel that res judicata does ~ apply. then you would go on to the next question that I see, and that is is this launch. or is this situation allowed. and it seems to me that if you get into that question. you would then consider what was there to begin with. was it abandoned. or was it improperly expanded in some fashion. Now if you were to find that it !!.ä§. abandoned. then obviously that would in turn control what could go back. because the Ordinance provides. or the zoning laws that we have adopted in the Town provide that if a nonconforming use is discontinued, then you lose it. On the other hand, if you find that it was not abandoned. then I think you should also consider the issue of whether or not it's. in some fashion. been improperly expanded from what it was. In addition to that. I think you can also consider. by the way, if you find that it was improperly expanded. then obviously you should come in for a variance of some sort or he should stop the use. or if you find that it was not improperly expanded. then you would just leave it as it is. In addition to that. I think it's my recollection that Mr. Parillo's attorney. Mr. Richards, raised an argument. and I hope I'm capsulizing this correctly. just very briefly, but something to the effect that aside from those reasons. I believe he would argue that he has a right to maintain the launch because it's an integral part of the marina. that if you find that he has a marina there. then he automatically has a right to the launching site. and he has an automatic right to open that to the public. That's a summation of the various points that you have to consider, and as you can see. there's a lot of them here. I have obtained some legal provisions to help in the process, as you go through each step. Also. just, I think. to orientate you in this matter a little bit. I also pulled out the Zoning Board's original decision that was made back in July of 1989. because that is, 5 depending upon how you treat Mr. Hatin's decision. that's the only other possible thing that's in the middle. here. but this thing really goes back to that date. because the courts have held that everything that happened after that date. the decision of December of '89. is not properly made. So. you can't rely on that decision. in my opinion. because the courts have told you you can't. and they have told you that this July decision is the proper decision of the Board. as it last addressed this issue properly. and in that motion. the Board's. I'll read it to you. here. it says. Motion To Deny Notice of Appeal. and that. by the way. was an appeal from Mr. Hatin's decision. at that point. his decision of '89. where he said that you can't continue what you're doing over there. You've got to go get a use variance. and Mr. Parillo. then. appealed to the Zoning Board. and the Zoning Board. after hearing the case. said Motion To Deny Notice of Appeal AP189. Frank Parillo. Introduced by Daniel Griffen. who moved for its adoption. seconded by Mr. Turner. and the rationale was given. this is a public launch site. not used in excess of 18 months. They are now requesting a public launch si te without a variance. and this would be an expansion of a nonconforming use with substantially changing the facility with a large impact of the surrounding area. We were referring to Article IX. Section 9.014 of the Zoning Ordinance whereby we feel this request for a use should be handled as a variance request before the Zoning Board of Appeals. So. at that point. the Board then. in essence. agreed with what Mr. Hatin had said. and said that if you want to have this use. you have to go and get a variance. not. obviously. indicating whether or not he could get the variance. but otherwise you have to discontinue the use. Now. the only other thing I'd like to just read to you. because this is also. obviously. the very foundation of this thing. or at least one of the points of foundation. and that's the discontinuance provision under your Zoning Law. for nonconforming uses. and it says. "If a nonconforming use is discontinued for a period of eighteen (18) consecutive months. further use of that property shall conform to this Chapter or be subject to review by the Zoning Board of Appeals." So. with that having been said. I think the first issue is to take a look at Mr. Hatin's most recent decision. unless the Board has any questions on anything that I just tried to summarize for you. This would be his. the May of this year appeal. You should have it attached. MR. PHILO-Do you have a copy of that decision? MR. TURNER-That's what we're getting out now. MR. DUSEK-I do. yes. if you'd like it. Just maybe also to help the Board. maybe just summarize the two positions in this regard. I think it would be a safe summary of the Lake George Association's position that Mr. Hatin shouldn't have made that decision. because the matter was on appeal to this Board. and this Board had voted to rehear that appeal. So. they're saying that because the Board had done that. Mr. Hatin should have deferred this to the Board and not made his decision. Secondly. they argue that it's blocked. in any event. by this res judicata business. in terms of that. once it's been decided. Mr. Hatin should not be able to go back on either his decision or the Board's decision. As I understand Mr. Richards' arguments. on the other hand. he. I think. is indicating that there is nothing that restricted Mr. Hatin from going back and redeciding the case on new facts. He cites a New York City case dealing with a building inspector who revoked a building permit. granted a building permit and then revoked it later. causing a need to tear down six stories of a building. or something to that effect. He also. I think, argues that the previous decision of the Board, al though I don't think he can dispute the validity of the June decision at this point, because the courts have ruled on that, but he sees this as a new action by Dave Hatin, based on new facts, and doesn't feel he should be bound by that decision, and please don't hold me exactly to this. I'm just trying to help you. The record can speak for itself, obviously. on these issues. You've received numerous papers from the attorneys. You've heard them. Please 6 rely on your own recollection. I'm just trying to help through the process, here. MR. TURNER-Okay. I'll open that one up for discussion. agree with Dave Hatin's decision, or his letter? Do we MR. DUSEK-The issue, too, at this point, is not whether you agree with his letter, but whether you feel the matter should have come back to you first, and he should have waived the matter on to you. That's, I think, the issue at this point, and I think no matter, at this point, how you decide that, you're still going to graduate to these next steps, but it may have an impact on how you deal with the next steps. MRS. EGGLESTON-Well, I know I, myself, felt that Dave, once this had been in the courts and all we had gone through. that Dave should have stayed out of this. That was my own opinion. I don't know how the rest of you feel, but it had gone so far, and then to do a complete turn around and just reverse the decision. right in the middle of the whole process. it seemed to me like something that shouldn't have happened. and that maybe it should have come back to us. MR. PHILO-What do you mean by that. Joyce? MRS. EGGLESTON-Well. he made a decision to begin with. and it went through the courts from, I think we started in '89, to the end of , 90. it went through the courts, and it still had never been settled. It had been settled by the courts, but no motions were ever filed in the Clerk's Office or anything like that. Is that right. Paul? MR. DUSEK-No. that's not quite. I think that what they were trying to point out in that regard was that. there's no question that the Appellate Division for the State of New York has said that that December meeting is not proper. and they go back to the June meeting. What has happened, though. there's a question. now, as to whether any party has a right to appeal that Appellate Division decision to the Court of Appeals at this point. and I'm sure John Richards will argue that he has that right to still appeal that order because it's not final. I'm not sure where John Caffrey would be on that issue, maybe disagreeing. I don't know, but. and I don't proport to know the answer to that question at this point, but I think we're past that issue. and I think you honor the Appellate Division's decision in this case. because the Town has chosen not to appeal. You haven't chosen. as the ZBA. So, I think since you have not appealed, I think then, unless, until somebody else does and changes the ballgame for you. I think you have to operate with the Appellate Division as the law of the case at this point, and what the Appellate Division is telling you is that your June decision was valid. MRS. EGGLESTON-Where we upheld Dave's decision. that it had stopped use. MR. DUSEK-Right. at that point. So. I think it's safe to start wi th that assumption. and then from there. the next question becomes is when, if somebody wants a change of that decision, or they want to have this matter reconsidered. should it have come back to your Board, or should it have, or was it proper just to simply go to Mr. Hatin, and one of the things I guess I can point out, as your attorney. is I see that Section 267-4. which says that everything is staid once you've agreed to consider a matter. and you did. in fact, pass a resolution in December that said you would rehear the matter. and I guess it's up to you to decide, at this point, whether you feel you had assumed the matter at that point. and Mr. Hatin should not have made the decision. or whether he still is free to do what he wanted to do. In an effort to help the Board, I can tell you this much. I think that. and I can render an opinion and you take it for what it's worth. but you 7 -- still have to make the decision. and that's what I'm trying to. I'm trying to help you. but I'm also trying to leave the final decision to you. because it's not my job to decide the case. nor is it proper for me to decide the case. but I think I can safely say this. that I think that that 267-4 argument. because you had moved to rehear it. I mean. to me. that seems pretty compelling. in terms of your right to maintain jurisdiction and control over the case at that point. and here again. I don't think. though. that. in order words. if you did decide that. what would happen is Mr. Hatin's decision then would not be binding. and you would basically be saying he shouldn't have decided it. and he should have come back to you. but at that point. then you still get into all the rest of the stuff anyway. MR. CARVIN-If I might interject here. Ted. I've written down some comments and thoughts on the issue. So. in order to get this thing off the ground. there have been several issues that have been raised. including. as Paul has indicated. the Zoning Administrator's ability to make decisions. and his right to issue those decisions. There's also the issue of new evidence. the issue of the doctrine of administrative finality. obviously the big one of res judicata. the idea that once a decision is made. it is generally considered final and cannot be changed. unless there is substantial new evidence or a change in the law to indicate injustice. obviously. the issue of the 18 month discontinuance. and the definition of the terms of Marina and Launch. both public and private. These appear to be the legal issues. in my layman's way. to understand these things. Also. there are some secondary considerations. There's obviously the safety issue of the increased use in volume of the marina. the environmental concerns which have been expressed. the issue of Mr. Ellsworth's intentions. what his intentions were as to discontinuance. also the Appellate Court decisions and some of the procedural matters that have been conducted on the Board. here. Now. as a brief summation. and this is not to be construed as accurate and factual in all cases and matters. as I see it. are as follows. Essentially. in July of '89. the Zoning Board turned down Mr. Parillo's application for a boat launch on the basis of discontinuance. based on Dave Hatin' s decision and observations. In December of ' 89. after reconsideration of "new" evidence. the Zoning Board decided to overturn it's July decision by stating Mr. Parillo. and I'm quoting out of the original motion. "Mr. Parillo not be required to obtain a variance in that there has been a continuous use of the facility." Our Ordinances. and this is semi quoting Mr. Muller on this. he indicated that the Ordinances do not speak to a boat launch as a separate use. and launching is. practically speaking. an integral part of the operation of a marina. Due to some procedural situations of not having a unanimous vote. the Appellate Court vetoed or voided the December vote. with the issue of res judicata and administrative finality. In July and/or September. again. I get a little bit unclear. here. motions to rehear the Parillo case were passed unanimously. and then tabled. pending the decision of the Court of Appeals. That decision eventually was reached in December of '91. and that decision. basically. was to maintain the status quo. In other words. there was no movement forward or backward. That status quo apparently was broken in February of 1992. when Mr. Hatin. upon advice of Counsel. issued his letter reaffirming. basically. the December of '89 decision. So. the question really is. was Mr. Hatin right in issuing this letter. and my feeling is. in this matter. yes. It is his job to make these determinations and render decisions. subject to review. at the Board's discretion. When his decision was appealed. the proper mechanics were instituted by the Board. which has been involved in this process. or in this review process. We have since decided to rehear the whole Parillo decision. In other words. basically going right back to Square One. bringing in all of the issues and essentially rehearing the whole case. which is what I believe we conducted here the other night. Now as far as the issue of administrative finality and res judicata. I think that this strikes at the core of our judicial system. and I feel that one of 8 the strongest~pects of our system. is that we do have t~ ability to say that we made a mistake. I feel that the Board. in its December of 1989 decision. was saying that. essentially. they had made a mistake in the July of '89 decision. The issue is discontinuance. Originally it was believed that a cessation had occurred. However. after review. then and now. has indicated that there really was no cessation of the boat launch. I agree with Mr. Muller. in that there are no accurate definitions of Marina and Launch. and by that. the mere fact that the Launch was used. whether by Marina renters or by the general public. indic~s use. My feeling is that the boats in the Marina were launched from some place. from all the indications that I have that there really was no cessation to the Marina. In other words. there always were boats in that Marina. So. therefore. it's a high probability that those boats were launched there. I go on. in my comments here. basically. I think a boat launch is a part of a marina. In other words. not all marinas have boat launches. nor do all boat launches have marinas. I kind of use the analogy of a gas station. There are a lot of gas stations out there with just gas pumps. There are some out there with lifts. Now. just because a person pumps gas does not mean that they can't use the lift. If somebody needs to have their tires changed. certainly they can come in and just use the lift. and basically it is the general public who uses these facilities. and according to their needs. they pay accordingly. There is the question of whether Mr. Ellsworth wanted to discontinue his boat launch. and again. there is no question in my mind he wanted to get out of the business. However. because of his unique personality. would lead me to believe that under certain circumstances. boats were launched up to the time that Mr. Parillo took over. I think if you hit him on a good day. you probably got a boat launched. If you hit him on a bad day. you probably got told to take a hike. As far as some of the secondary issues of safety and environmental impact. we may have a safety problem up there. because of the parking aspect. The parking areas and general launch areas. as far as I can tell. have not been expanded. So. as far as 1. know. there has been no additional parking. However. from some of the photographs and so forth. there looks like there might be parking along the highway. So. I think that there may be an enforcement issue here. as far as the Town maybe putting some restrictions on parking in the roads there. or if we can somehow control that aspect. but certainly. from all indications. there's been no expansion. The parking has been there. The boats. the abili tv to launch those boats has always been there. As far as the environmental concerns. again. this particular situation should be monitored. but I feel that these problems may be preexisting. and are really inherent to all areas of Lake George. and again. to say that this particular launch or that particular launch is more instrumental or less instrumental in the spread of milfoil. I just don't. I have not seen any hard. conclusive proof. at this point. that would substantiate that. I certainly am concerned about wetlands and all that sort of stuff. but. at this point. I am not convinced that there is a major economic. or ecological problem up there. I also feel that whatever decision this Board reaches. we should try to. obviously. make it in a unanimous manner. I think that by doing this we would be sending a message to the Appellate Courts. I have a feeling that no matter what decision we render here today. that somebody is probably going to appeal it. and I really think we should all come down on the same side of the fence as this. and I'd conclude by saying that I would support a motion in favor of Mr. Parillo and supporting Dave Hatin's decision of February. MR. TURNER-Okay. Any comment over here? MR. THOMAS-Yes. I more or less go along with Fred. right up to he hit the parking issue and the environmental issue. I don't think that's part of the case. here. the parking and environmental. You've got to keep this thing focused on the boat ramp. Was it launched. or wasn't it launched. I mean. I know Dr. Collins made a nice presentation last time. very informative. but it had nothing 9 -- to do with thiS-boat launch. You've got to keep focused on this. You start going off on these tangents, we'll be here forever. MR. CARVIN-Well, as I said, I think that these are secondary considerations that should be addressed, because of the general concern. MR. THOMAS-Well, they shouldn't be addressed at this point, because we're talking about a boat launch, nothing else. MRS. EGGLESTON-Well, I originally voted, I felt that there was a cessation of use, and then they came out with this little book which was published by the New York Planning Federation, and they've got a couple of articles in here, Abandonment and Discontinuance, and they said a Discontinuance connotes a complete cessation. So that a minimal nonconforming function of itself would not constitute abandonment. So, even if they used it, they took even once, like he used to say, they'd let people across with their rowboats, whatever. It's still putting a boat in, and, to me, it's not complete discontinuance, and then the other little thing they have in here, abandonment in law depends upon the concurrence of two, and only two, factors. One, an intention to abandon or relinquish, which I think he did by putting up the sign, and then the second one is some sort of action or failure which implies that his interest in the sUbject matter is abandoned, but his interest didn't abandon. He'd still come down there on a day. We've heard it from everybody. He'd let one person in, and then the next day, not let anybody in, or it just seemed if he liked you, whatever, but it wasn't a complete abandonment of the whole thing, and these cases say, this is Bammel Realty versus the State of New York, a discontinuance connotes a complete cessation, so that a minimal nonconforming function of itself would not consti tute an abandonment. So, that's why, because I did vote against it to begin with. I thought it was a cessation of use, but, as a I say, we didn't have this book for help. MR. PHILO-First of all, I want to thank Fred. He put a lot of time into this, and he said just about basically everything that I would say. The only thing I see different. Fred said he went by some pictures of the environment, and the parking area. I've seen nothing but an improvement. You couldn't back your truck up there and you'd get stuck. There's gravel. It's cleaned up, and I've never seen, somebody was talking about dumpsters overflowing and garbage allover the place. I've never seen that. Mr. Parillo, I want to thank you very much. As somebody up from Lake George all my life. That has turned to a plus. I can't say enough about what has been done there. I think it's a nice looking job. Earlier, when the surface was bad, we used to park out on the road, but we've gone up there fishing, after Mr. Parillo has taken over, as a bunch of guys, just as a party boat, go in there, we could park our vehicle and trailer, go fishing, and come back and not worry about getting a tow truck to get our truck out of there. Everything that Mr. Carvin said, I agree with him, but that one point. I don't know if Mr. Carvin was referring to earlier or later, but at the present, it looks pretty nice. There's lights up there so you could go up at night or come in at night. There's a lot of good improvements. That's all I've got to say. MR. SICARD-I pretty much agree with Freddy. MRS. PALING-I would like to say that I think that I agree with Chris in that we need to stay focused on the ramp. I think we certainly have environmental issues that we talked about last we7k and that we all feel strongly about, but that's not really with1n our province here to decide. We've got to stay focused on the launch and then those other things can perhaps be taken care of anothe~ time by somebody else, but not by us, I don't think. MR. TURNER-Okay. Again, I voted, initially, to deny the appeal of Frank Parillo, at the July 1989 hearing, and I voted to rehear it 10 -- -" in December. and I voted in favor of it in December. In JUly. I don't think the evidence was in front of us to adequately hear the appeal. We didn't hear from witnesses at the time. They weren't presented. but as of the December meetinq. they came forth. from both sides. and I voted in favor of it. As far as the marina qoes. again. the marina is identified in the Zoninq Ordinance Definitions. but a launch is part of a marina. in my estimation. The Ordinance doesn't identify the subject of public launch. It doesn't identify the subject matter of a private launch. It does identify public wharf. and it does identify a quick launch. which are separate. I think. aqain. Dave Hatin has a riqht to make that decision in his letter of February 20th. but I also think it should have come back to the ZBA. That's my statement on that part of it. MRS. EGGLESTON-So. have we cleared Issue Number One yet? Do we have to make a formal resolution. as Mr. Hatin? MR. TURNER-Well. I think we should identify each of the issues. MR. DUSEK-I think one resolution would be your decision. but you should identify in that resolution how you aqree to address each of those issues. and your reasons why. You should qive reasons to support what you decide. in each instance. MR. TURNER-As far as the res judicata. I think there's enouqh new evidence. forwarded by both parties. but I don't think. you know. res judicata does not terminate. as far as I'm concerned. not in this aspect. on this appeal. MR. PHILO-When they say it's over. it's over. Riqht? Is that the terminology? MR. TURNER-Well. that's their terminology. Yes. MR. DUSEK-Well. on the res judicata issue. I may be able to be somewhat helpful to the Board on that. We have an interesting situation here. and that is that before July of 1992. you had. as a part of the Town Law. a right to rehear cases. and according to Robert Anderson. who has written the book on zoning for New York State. he points out in his book. on this rehearing it says that the Board of Zoning Appeals of a town may. under the Statute. reopen a case and reconsider its previous decision without any showing that circumstances have changed or that new facts have been discovered. It can revoke a variance which it approved at an earlier hearing. or reconsider an earlier decision granting a special exception. So. basically. it's indicating. at least in Andersen. as I understand it. that res judicata. in that instance. wouldn't apply. that's if you have the benefit of that Statute. The problem you have. though. is that that Statute chanqed in July. There are no court decisions on this issue. as to how a court's going to react to a situation where a Board made a motion to rehear a case before the law was changed. and then finished it up afterwards. So. I think at this point I can let you have that call of which way you want to deal with it. If you want to rely on that rehearing portion. or take that opportunity to feel that that's good enough to rely upon. that's one way of dealing with the res judicata issue. Res judicata. on the other hand. if you did not have the benefit of that. then res judicata says. basically. that once you have a hearing. that's it. and if the person didn't present all his proof. that's too bad. that they had that opportunity at that hearing. Now. in some instances. though. the courts have said. we won't block it if it can be shown. for instance. where it wasn't the applicant's fault that he didn't have all the proof. or if there was a change of circumstances. In other words. if there was something special about this that just smacks of a situation where you say. you know. justice here demands that you go back in and you reopen the hearing. One case I read. for instance. just to give you an example. was a situation where a witness wouldn't testify. It was known about him. apparently. but they wouldn't testify. Later they turned around and they did 11 "-- testify, so they gave that person an opportunity for a new hearing when that witness decided he would speak, because the applicant had no control over that situation, but I think you have a unique situation, here, as I mentioned, though, is that you can deal with the res judicata issue, on one hand, but on the other hand, I can't sit here and tell you that you can't rely on that rehearing part of it, either, but I also can't guarantee you what the outcome will be on that, because we just don't know. MR. CARVIN-Well, I guess I need some clarification, here. I mean, by the mere fact that we reheard it kind of has determined which path we've already taken. MR. DUSEK-That you utilized that rehearing motion. MR. CARVIN-Yes. MR. DUSEK-I think, though, at the time, my recollection is you, basically, reserved all your rights, pending the rehearing. So. in my opinion, I don't think your bound to any course of conduct, just by virtue of the rehearing itself. What you did is you put everything on the table, and now you can decide whether or not you want to utilize that or not utilize that, because you had several ways that this came before you. Basically, it was on appeal from Mr. Hatin. You had a rehearing motion that was there. I think you could even interpret the request to Mr. Hatin, no matter how you interpret that, but you could say that caused it to come properly before you in any event. So, I think, you know, it gets before you, and then the issue is. okay, now that it's before us, what do we want to do with it? Do we want to utilize this rehearing mechanism and feel that because we started it before the Statute changed that we ought to be allowed the opportunity to utilize that? Do you want to try to make a case for why you feel that res judicata shouldn't apply, and I think you've done that, to some extent, Fred, in what you were saying earlier. MR. TURNER-Yes, we did that. MR. CARVIN-Or a combination of both. MR. DUSEK-You can. That's your call. MR. CARVIN-The issue still comes down to whether we're going to, I think it goes back to that December of ' 89 decision. I mean, I still think we have to come down either on one side or the other, and stick to it. Either he's allowed to have a boat launch up there or he's not. That's. basically, the way it looks like to me, it comes down. MR. TURNER-Well, I still say that the motion that was made JUly 24, 1991, to rehear, is still a valid motion, and I think we have the right to rehear it. MR. CARVIN-Absolutely. I couldn't agree with you more. MR. DUSEK-One correction on that. You, eventually, rescinded that resolution, but you adopted another one in December. So, it's the December one you're looking for. MR. TURNER-We adopted another one after that, in December. I'm looking at the wrong one. Yes. MRS. EGGLESTON-Yes. December of '91. MRS. PALING-Paul. I have a question. Whatever we decide tonight, can, then, it be changed again? I mean, where does this end? MR. DUSEK-Well, whatever you decide, both sides have the right to, if they so choose, challenge you in court, and then once a court gets involved again, they could change your decision. They could 12 send it back to you for another matter. MRS. PALING-I understand it could go into court. certainly. I'm just wondering. could someone like Dave Hatin. again. change his mind again. or does other evidence come forward and we're back to where we are now? MR. DUSEK-I think that's one of the things you may want to consider as part of your decision. and I guess. what I was trying to suggest to you in the beginning. and I guess I feel compelled to say this much. concerning that issue of Mr. Hatin. because he did say he acted on advice of Counsel. and there's no question. obviously. everybody knows that I'm the Counsel. and I will tell you that at the time Mr. Hatin had this matter before him. and the issue was. hey. can you do this? Can you decide it? You're talking. in terms of a time sequence. a very quick opportunity to take a look. see if there was any authority for him to do what he wanted to do. and we couldn't find anything that said he couldn't do it. so we said. well. I told him. go ahead. Reconsidering it now. I can tell you this. and I feel compelled to say this. that I think I would have advised him to let it come back to the Board as opposed to making that decision. and that's just based on everything that I've read and heard and studied on this subject. and I think that's in partial answer to your question about. can this keep coming on. and I would say. in the future. I would advise Mr. Hatin. that once this Board has made a decision concerning a matter. that he should not. you know. if it's the exact same question. he should just defer it to the Board. as opposed to. MRS. PALING-And can that be part of our motion? MR. DUSEK-Certainly. MRS. PALING-Okay. I think that should be part of our motion. MR. PHILO-Very good. Marie. What's the next step. Mr. Turner? MR. TURNER-We've already decided the issues of the launch. was it allowed. was it there. was it abandoned. we decided that it was not abandoned. the right to have the marina. we already said yes. Okay. before we go any farther. the other night. the issue was raised on the rehearing. that in the rehearing. the two docks to the south were incorporated into the appeal. and that's not the case. I don't think those two docks have any standing in this issue at all. Mr. West raised the issue and I think Mr. Caffrey raised the issue. The other two launches that are in the marina are part of this appeal. they suggested that they are. but that's not the case. They don't have any standing in this appeal. MR. DUSEK-So. you're saying. when you look at the facts. you're looking at just that one launch? MR. TURNER-That one launch. MR. DUSEK-The activities concerning that launch. MR. TURNER-We're not looking at the other two. That was never raised the first time around or any other period. MR. DUSEK-I think that's you prerogative. on that call. as far as the facts go. I leave that to your judgment. as to whether it was or wasn't raised. and what the basis of your decision. that goes to the very heart. by the way. of your decision in this matter. In terms of. and then the other thing is. that I might mention to you is the issues. too. that are circulating around here are more than just use of a launch. but it's public versus. you know. public launching versus only dock owners launching. MR. TURNER-Right. 13 MR. CARVIN-But are they. in essence. dock owners? MR. TURNER-No. They're not owners. They're renters. MR. DUSEK-Dock renters. the people. well. that was what they went to the proof on. The proof that you heard. and I think you were mentioning that earlier. was that you felt. Fred. when you gave your dissertation. there. that people who were launching boats. now. I guess. when I think back. I don't know if you clarified whether you felt they were renting docks. or whether you felt that people were just coming up there and launching a boat. MR. CARVIN-I think they're both the general public. so I don't know if you can really differentiate one from the other. In other words. when you pull in to a gas station. you might only want to use the gas pumps. Another time. you might need to use the lift. MR. DUSEK-And here again. I'm going to leave that to your call on that. based upon this Board's. MR. CARVIN-I don't want to expand another can of worms here. Ted. but I guess I need a little more clarification on. we've gone from one launch to three launches. and I know one of the issues is. has there been an expansion. and is it improper. MR. TURNER-No. because they identified the launches as being there. as part of the original marina. MR. CARVIN-Part of the original marina. MR. TURNER-Right. and those are not at issue. The only thing that is at issue is the north launch. That's their first contention and their last contention. That's what this is all about. That's what it's been about from the very begin. nothing else. MR. CARVIN-In other words. there's been no mention of any of the other. because as I said. all of a sudden. we went from one launch to three. MR. TURNER-No. it wasn't mentioned the first time around or the second time around. I guess not to belabor this any longer. I think we can get a motion going here. I think you've got it right there. I think what you've said is just about it. MR. CARVIN-You don't want me to read all of this. do you? MR. TURNER-No. but I think you can highlight it. MR. CARVIN-I'm not opposed to making it. I just. certainly. would like to make sure that all the wording and everything is proper. MR. TURNER-First of all. I think we've got to identify whether the decision that Dave made was binding. and does it come back to us. or what? That's one of the issues. Maria. just for the record. you should indicate. where I made the comment about. to rehear. the date should be September 23rd. 1992. That was the date of the motion to rehear the appeal. MRS. EGGLESTON-Paul. is our motion. when we start out. a Notice of Appeal? Do we have to answer that first. because that's what. or are we starting over? We have to answer the Lake George Association's appeal? MR. DUSEK-Well. you've got two. really. You've got the rehearing. because you conducted the hearing on that. MRS. EGGLESTON-Okay. but first issue. answer the appeal. their notice of their appeal? MR. DUSEK-Right. You can do them in either order. whatever's 14 -- easier for you. MRS. EGGLESTON-Okay. All right. MR. TURNER-Okay. We have a motion by Mr. Carvin. MOTION TO DENY NOTICE OF APPEAL BO. 2-92 !!£.:... Introduced by Fred Carvin. who seconded by Joyce Egglestonl LAKE GEORGE ASSOCIATION. moved for its adoption. In challenging the decision of February 20th. 1992 by Dave Hatin. with regards to the Parillo boat launch. It is felt that Mr. Hatin was within his rights to issue this letter. as it is his job to make determinations and render decisions of this nature subject to the review by the Zoning Board of Appeals. The issue of res judicata does not apply as it is felt there has been additional information disclosed to warrant a rehearing of the entire matter. By setting aside res judicata. the issues now become. is the launch allowed. what was there to begin with. was it abandoned. and has there been any expansion or improper use. As to the issue of the launch being allowed. the answer would be yes. as a launch can be considered an affiliated part of a marina. in that our Ordinances do not speak to a boat launch as a separate use and launching is an integral part of the operation of a marina. As to the issue of what was there to begin with. it has been established that a launch has operated at this site for uncounted years. In addressing the issue of abandonment. testimony has indicated that at no time was there a complete cessation of use. and there is no evidence of increased expansion or improper use of this launch. The issue of whether the Zoning Board of Appeals can rehear does apply since the law did not change until July of 1992. with regards to rehearing an application or an appeal. and this is another reason why the issue of res judicata does not apply. After rehearing the entire matter. it is our determination. that Mr. Parillo not be required to obtain a variance and that there has béen a continuous use of the facility. Duly adopted this 8th day of December. 1992. by the fOllowing vote I MR. DUSEK-The question I would have is. what about issue of the rehear. that was raised by one of the Board members. The question was. could you decide to deal with the res judicata issue. and also decide that you're utilizing your power to rehear. since it was adopted before the change of law. MR. CARVIN-We didn't cover it by just saying we felt it warranted a rehearing? MR. DUSEK-No. The only reason you gave for the rehearing was the fact that you felt res judicata did not apply. but that did not address the issue of whether you felt you had the ability to rehear it based upon the fact that you adopted the rehearing motion before the change in the law. MR. TURNER-Just add a paragraph. MR. DUSEK-At the very beginning. you indicated that you were denying the Notice of Appeal of the Lake George Association. Later. though. in your resolution. you clearly get into the rehearing motion. I guess the question in my mind was. was that adequately addressed up front? In other words. did you make it clear in the very beginning there that you were actually addressing. then you were denying that and then upon rehearing making a decision. too? In other words. doing two steps at once. Is that clear in the beginning part. Fred? MR. TURNER-The issue of the appeal is separate. MR. CARVIN-Should I put in there. and after rehearing this whole issue. it is felt that Mr. Parillo not be required to? I'd like to 15 -- put another addendum on there. MR. DUSEK-I just wanted to make sure if that was your intent to address? MR. TURNER-That was our intent. MR. DUSEK-You have two issues here. You have the appeal, and you have the rehearing issue. I think that does it. Duly adopted this 8th day of December. 1992, by the following vote: AYES: Mr. Philo, Mr. Carvin, Mrs. Eggleston, Mrs. Paling, Mr. Thomas. Mr. Sicard. Mr. Turner NOES: NONE MR. TURNER-It's denied. MR. DUSEK-Just a quick report. There was a case entitled the matter of Polk versus the Zoning Board of Appeals, that was in court, and the court has ruled in your favor. MRS. EGGLESTON-That was the three lot subdivision. On motion meeting was adjourned. RESPECTFULLY SUBMITTED, Theodore Turner. Chairman 16