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1994-03-23 o ~,¡ GIN A l QUEENSBURY ZONING BOARD OF APPEALS SECOND REGULAR MEETING MARCH 23RD. 1994 INDEX Area Variance No. 11-1994 Stephen A. Kuruc. Jr. 1. Dianne M. Kuruc Taco Bell Corp. s. Harris Bay Yacht Club. Inc. 12. Use Variance No. 12-1994 Use Variance No. 111-1993 RESOLUTION 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 SECOND REGULAR MEETING MARCH 23RD. 1994 7:30 P.M. MEMBERS PRESENT THEODORE TURNER. CHAIRMAN LINDA HAUSER. SECRETARY FRED CARVIN CHRIS THOMAS ANTHONY MARESCO MEMBERS ABSENT ROBERT KARPELES DAVID MENTER EXECUTIVE DIRECTOR-JAMES MARTIN PLANNER-SUSAN CIPPERLY TOWN ATTORNEY-PAUL DUSEK STENOGRAPHER-MARIA GAGLIARDI NEW BUSINESS: AREA VARIANCE NO. 11-1994 TYPE II WR-1A CEA STEPHEN A. KURUC. JR. DIANNE M. KURUC OWNER: SAME AS ABOVE CLEVERDALE ROAD APPLICANT PROPOSES TO BUILD A SINGLE-FAMILY HOME ON A PREEXISTING. NONCONFORMING. VACANT LOT. SECTION 179-16C REQUIRES A LOT WIDTH OF ONE HUNDRED FIFTY (150) FEET. APPLICANT PROPOSES ONE HUNDRED ( 100) FEET. SO SEEKS RELIEF OF FIFTY ( 50) FEET IN LOT WIDTH. SECTION 179-16C ALSO REQUIRES SIDE SETBACKS TOTALLING FIFTY (50) FEET. WITH A MINIMUM OF TWENTY (20) FEET ON ONE SIDE. APPLICANT PROPOSES A TOTAL OF FORTY-EIGHT (48) FEET. WITH FIFTEEN (15) ON ONE SIDE. SO SEEKS RELIEF OF TWO (2) FEET FROM THE TOTAL AND FIVE (5) FROM THE REQUIRED TWENTY ( 20 ) ON ONE SIDE. (ADIRONDACK PARK AGENCY) (WARREN COUNTY PLANNING) 3/9/94 TAX MAP NO. 13-2-25 LOT SIZE: 0.41 ACRES SECTION 179-16C WALTER REHM. REPRESENTING APPLICANT. PRESENT STAFF INPUT Notes from Staff. Area Variance No. 11-1994. Stephen A. Jr. & Dianne Kuruc. Meeting Date: March 23. 1994 "APPLICANT: Stephen A. Jr. & Dianne M. Kuruc PROJECT LOCATION: Cleverdale Road PROPOSED ACTION: Applicant proposes to build a single-family home on a preexisting nonconforming. vacant lot. CONFORMANCE WITH USE/AREA REGULATIONS: Section 179-16C requires a lot width of one hundred fifty (150) feet. applicant proposes a width of one hundred feet (100). so seeks relief of fifty (50) feet in lot width. Section 179-16C requires side setbacks totalling fifty (50) feet wi th a minimum of twenty (20) feet on one side. The applicant proposes a total of forty-eight (48) feet. with fifteen (15) on one side. so seeks relief of two (2) feet from the total and five (5) feet from the required twenty (20) on one side. The other side setback would then be thirty-three (33) feet. REASON FOR VARIANCE REQUEST AND BENEFIT TO APPLICANT: The size of the lot pre-exists the Zoning Ordinance. so no more footage is available for lot width. The allowance of a fifteen (15) foot setback on one s~de would allow the applicant to build his house while preserving a stand of mature trees on the other side of the house. FEASIBLE ALTERNATIVES: There do not appear to be any alternative sitings of the house which would not require a variance. and this proposal appears to be the most advantageous in preserving the natural buffer between dwellings. IS THIS RELIEF SUBSTANTIAL? It does not appear that the relief requested would be considered substantial. - 1 - considering the potential benefit. EFFECTS ON NEIGHBORHOOD OR COMMUNITY: It does not appear there would be any adverse effects on the neighborhood. It seems the preservation of the trees would be a positive factor. IS THIS DIFFICULTY SELF-CREATED? It does not seem that this difficulty would be considered self-created since the pre-existing lot size is a major factor in the need fo; variances. PARCEL HISTORY: Parcel was previously owned by Robert and Lydia Edwards. and was sold to the applicant on November 12 1993. Applicant states that water is available from Lake George: via an easement across the lake front property to the east. STAFF COMMENTS AND CONCERNS: There do not appear to be any detrimental effects associated with this project. There has been no verbal or written comment from the area to date. The Warren County Planning Board approved this proposal with the condition that 'the building stays where it is proposed. minimizing the impact on the lot.,n MR. REHM-Thank you. Mr. Turner. This is a parcel of land that's located on the westerly side of Cleverdale Road. in Cleverdale. If you knew where Bob Edward's house was. Bob Edward's was located across the road on the lake shore side of the road. The parcel is a little over four tenths of an acre. There's one hundred feet of frontage on Cleverdale Road. and it's about 180 feet deep. It is completely vacant now. The Sunsoval. John Mason's storage area. is located immediately behind the parcel. The parcel is substantially wooded. as you can see from the maps that were submitted. and I also have an amazing photocopy. three photographs that were taken that show the wooded nature of the parcel. The reason I say amazing is I had no idea that there were photocopy machines that could do that. Mr. and Mrs. Kuruc propose to construct a new residence on this. and the outline for the residence is shown on the map that has been submitted. The setback from the road will be approximately 50 feet to the house. The required setback is 30 feet. and there are some decks in front of the house. and the proper setback will be met. The lot being only 100 feet wide and then the house being. I think. 52 feet wide. requires a two foot variance from setback. The setback from the northerly boundary is sufficient. As you know. there needs to be a total of 50 feet with a minimum of 20. but from the southerly boundary. a small variance of five feet is required. Also. since this is a prior nonconforming lot. the amendment to the Zoning Ordinance that took place some time ago. that talked in terms of prior nonconforming lots being legalized again. did not include lot width. apparently. and this is the zone where the minimum lot width is 150 feet. and so. technically. a variance from the lot width is also required as has been shown on the map. The primary reason for siting the house in the location that it's sited is to preserve a stand of fairly mature trees that run along the northerly side of the property. and that prevent a buffer zone between Cleverdale Road and the Sunsoval property. and also this property and the property to the north. These are mature trees. They're visible from out in the lake. probably visible from Rockhurst. and this house is sited in this location so that a minimum number of trees would have to be cut. The Kurucs are very concerned about those trees. and you will see on the map that it shows the major trees. However. in the photograph. you will see that there are substantial additional trees. Also. there's a survey that was completed by Coulter & McCormack that locates a number of additional trees on this lot that don't show on this map. It seems to me that it is a particularly good plan. in terms of planning. So many times. as we have seen. particularly on these points. people have found it necessary to substantially clear lots. This is an opportunity to maintain the existing mature tree cover. I think it would be very beneficial to the neighborhood. I think there's probably. the people to the south could be concerned with the small setback variance that is requested from the south line. but I think even those that own property to the south will benefit more from the continued existence of these trees on this lot than would there be a detriment from the small variance that has been requested. We've had an engineer take a look at the lot. and I know that this is not something that you're normally concerned with. but. in terms of - 2 - sewage disposal, we have been assured that it is an appropriate lot for sewage disposal, within Park Commission Regulations. MR. TURNER-Any questions? MR. THOMAS-I have just one. Could that house be reconfigured so it would fit on the lot, side line setbacks, because the plans show no elevations of the house, or anything like that, any kinds of pictures. MR. REHM-A smaller house, obviously, could fit on the lot, and it would be possible to cut, how many ever square feet it would be off the southerly side of their house, to make it fit, but the particular house, this is a house that a lot of planning has gone into over a number of years, and I asked Mr. Kuruc if he could live with a couple of less feet right here, and we looked at the floor plans, and what that does is it narrows the house up, really substantially, and it is not impossible, but, as far as the Kuruc's are concerned, it is not a practical, and certainly not a desirable, proposal. MR. THOMAS-How many square feet is that house they propose? MR. REHM-I can't tell you that. The Kurucs were going to be here tonight, and I don't know if it's snowing in Syracuse or what's happening, but we were second on the agenda. MR. TURNER-Well, if you want to hold off. another application until they arrive. We can go ahead with MR. REHM-No. That's not necessary. Let me say this. The house that is proposed complies with the Zoning Ordinance, in terms of height, and so on. It's not an excessively large house. This will be a second home. The width is 52 feet, as you probably know, which is not an excessively large house. MR. CARVIN-Do you know if there's plans for an internal garage on the house? Have you seen the plans by any chance? MR. REHM-I have seen the plans, I don't know. I can't honestly answer that. I believe that there plans for an internal garage, but I don't have the plans. MR. MARESCO-Are there any trees? Is there a buffer on the south side? MR. REHM-There are existing trees, and the plan would be, these are the maior trees that you see here. The plan would be to maintain as much vegetation around all three sides of this, actually, around all four sides of this as possible. The thing is, the house could be moved just a few feet this way, and it would solve some of our problems, but by doing that, we would have to cut a major, they would have to cut, several major trees in this area, and they really want to avoid that, and the idea was to seek the variance was a reasonable compromise that would allow for the continued existence of, particularly, the mature trees. MR. MARESCO-And cut down as little as possible. MR. REHM-As little as possible. MR. TURNER-Okay. Anything further? Okay. Let me open the public hearing. PUBLIC HEARING OPENED MRS. KEIS MRS. KEIS-I'm Mrs. Keis. I live on the south side of this area, and our main question is the size of the building to be constructed - 3 - ------------ and. want will out. as much as we would also like to be bUilding next door. we to get some idea as to what the structure will be. what it look like. and the height of it. and how far it will extend So I was concerned about maybe seeing a diagram of some kind. MR. REHM-I don't have the elevations. MS. CIPPERLY-I believe Mr. Kuruc was planning to bring the house plans with him. So you really can't answer that question right at the moment. It's not something that we normally require for a variance application. MRS. KEIS-Well. that was just our main concern. Because actually. bringing the house that close to the property line. I believe that would be (lost words) feet off the southern line (lost words) any large existing trees. Most of it's shrubbery. That could be. probably. removed. a lot of overgrowth. I don't know when we could possibly look at. but before this all takes place. it would be nice if we could see what will be next to us. because. hopefully. we will be planning to do something in the not to distance future ourselves. MR. TURNER-The height limitation in the zone is 35 feet. That's as high as they can go. MRS. KEIS-Well. actually. there's nothing to see too much. really see the lake from there. So. actually. it wouldn't be that so much. It's just knowing about the existing boundary lines. and how close they would be able to come. and would it be the side of the home that would be there. or the side of the garage that would be there. on this side of the building? MR. TURNER-No garage shown on the plan. not yet. driveway there. There's a MRS. KEIS-I think the existing drive is. MS. CIPPERLY-It does appear that there's a garage door on that front. MR. TURNER-Yes. it looks like it. yes. MRS. KEIS-That would be the north side? MR. TURNER-Yes. That would be your side. MRS. KEIS-That would be. that's just fine. I think that this will be fine. It will be beneficial. MR. TURNER-It's contained wi thin the building that's proposed. That's what it looks like at this point. without a clear cut answer from the applicant. MRS. KEIS-That sounds perfectly fine to me. I just wish them well. MR. TURNER-Okay. Thank you much. MR. CARVIN-Excuse me. would you have a problem with the 15 foot off the property line? MRS. KEIS-Actually. no. I don't. because we may be looking for the same kind of variance. Thank you. MR. TURNER-Okay. Thank you. MR. REHM-And we would support that. PUBLIC HEARING CLOSED MR. TURNER-Any discussion? Any comments? - 4 - MR. CARVIN-I think Chris asked a very good question. whether the house could be reconfigured. I mean. to get it within the five feet or so. but I'm looking at the existing house to the north and that's only ~ feet off the property line. So. I mean. it'~ not like we're breaking virgin ground here. MR. TURNER-No. MR. CARVIN-I would like to see a floor plan. just to see if there would be some modifications. but I'm not posi ti ve that that's essential. That's mY feeling. MR. TURNER-Do you have anything further. Chris? MR. THOMAS-No. nothing. MR. TURNER-Are you all set. Linda? MISS HAUSER-Yes. MR. TURNER-Tony? MR. MARESCO-Yes. MR. TURNER-Okay. All right. Motion's in order. MOTION TO APPROVE AREA VARIANCE NO. 11-1994 STEPHEN A. KURUC. JR. DIANNE M. KURUC. Introduced by Fred Carvin who moved for its adoption. seconded by Theodore Turner: The applicant is proposing to build a single family house on a preexisting nonconforming vacant lot. That we grant them relief of 50 feet from Section 179-16C. which requires a lot width of 150 feet. I would also grant relief of two feet from the total. and five feet from the required 20 feet on one side. as outlined in Section 179-16C, which requires side setbacks totalling 50 feet, wi th a minimum of 20 feet on one side. The reason for this variance is that this lot is a preexisting lot, and that there is no more footage available to gain the lot width. It does appear that the applicant is trying to utilize to the best of their abili ty the area that they have to deal with. There does not appear to be any other alternative sitings of the house which would not require a variance, and this appears to be the minimum relief necessary to solve this dilemma. There does not appear to be any adverse effects on the neighborhood. This does not appear to be a self-created situation, and there does not appear to be any effects on public services or facilities of the Town or community. Duly adopted this 23rd day of March, 1994, by the following vote: AYES: Mr. Carvin. Miss Hauser, Mr. Thomas, Mr. Maresco, Mr. Turner NOES: NONE ABSENT: Mr. Karpeles, Mr. Menter NEW BUSINESS: USE VARIANCE NO. 12-1994 TYPE: UNLISTED PC-1A/MR-5 TACO BELL CORP. OWNER: BERNARD C. ROGGE 704 GLEN STREET APPLICANT PROPOSES TO REMOVE THE EXISTING THREE THOUSAND (3.000) SQUARE FOOT MIXED-USE COMMERCIAL BUILDING AND REPLACE IT WITH A NEW FREESTANDING TWO THOUSAND (2.000) SQUARE FOOT FAST FOOD RESTAURANT WITH A DRIVE THROUGH WINDOW. THE MAJORITY OF THE PROJECT WOULD BE SITUATED IN A PLAZA COMMERCIAL 1A ZONE. A SMALLER PORTION OF IT WOULD BE IN A MULTIFAMILY RESIDENTIAL 5 ZONE. FAST FOOD RESTAURANT IS NOT AN ALLOWED USE IN SECTION 179-22 (PC-1A) OR SECTION 179-18 (MR-5 ZONE). (WARREN COUNTY PLANNING) MAR. 9. 1994 TAX MAP NO. 99-2-1 TAX MAP NO. 102-1-1 LOT SIZE: 0.505 ACRES SECTION 179- l8D. 179-22D - 5 - JON LAPPER. REPRESENTING APPLICANT. PRESENT STAFF INPUT Notes from Staff. Use Variance No. 12-1994. Taco Bell Corp.. Meeting Date: March 23. 1994 "APPLICANT: Taco Bell Corporation PROJECT LOCATION: 704 Glen Street PROPOSED ACTION: Applicant proposes to remove the existing three thousand (3.000) square foot mixed-use commercial building and replace it with a new freestanding two thousand (2.000) square foot fast food restaurant with a drive through window. CONFORMANCE WITH USE/AREA REGULATIONS: The majority of the project would be situated in a Plaza Commercial-1A zone. A smaller portion would be situated in a Multifamily Residential-5 zone. Fast food restaurant is not an allowed use in Section 179- 22 (PC-1A) or Section 179-18 (MR- 5 zone). REVIEW CRITERIA. BASED ON SECTION 267-b OF TOWN LAW: 1. IS A REASONABLE RETURN POSSIBLE IF THE LAND IS USED AS ZONED? Applicant indicates that the current owner marketed the property for lease over a period of years. The current lease agreement is at a rate below the going rate for commercial space. This is believed to be due to the shape and small size of the parcel. It may also be due to the age. style. and configuration of the building. 2. IS THE ALLEGED HARDSHIP RELATING TO THIS PROPERTY UNIQUE. OR DOES IT ALSO APPLY TO A SUBSTANTIAL PORTION OF THE DISTRICT OR NEIGHBORHOOD? The surrounding parcels are zoned Plaza Commercial-1A. as well. but it appears the lot size and shape could be considered unique. and make marketing difficult. The bUilding is outdated and would be difficult to make useful. 3 IS THERE AN ADVERSE EFFECT ON THE ESSENTIAL CHARACTER OF THE NEIGHBORHOOD? A portion of the existing building has been used for the sale of food. both as retail and individual servings. The proposed drive- up window would be a new use. would mean increased traffic on the site. and may be cause for concern with regard to traffic circulation. both on the site and in terms of ingress and egress. As mentioned in the application. there would be improvement with regard to meeting the setbacks from Glen Street if the new building were constructed. Addition of landscaping along Glen Street would also be an asset. 4. WAS THE ALLEGED HARDSHIP SELF-CREATED? It does not appear to have been self-created. rather it seems to be a matter of deterioration of the building over time. coupled with the changing nature of the area. 5. IS THIS THE MINIMUM VARIANCE NECESSARY TO ADDRESS THE UNNECESSARY HARDSHIP PROVEN BY THE APPLICANT AND AT THE SAME TIME PROTECT THE CHARACTER OF THE NEIGHBORHOOD AND THE HEALTH. SAFETY AND WELFARE OF THE COMMUNITY? It appears to be. since attempts to market the property for other uses have been unsuccessful. PARCEL HISTORY: In 1963. this was the location of the Imperial Cocktail Lounge and Restaurant. As of 1984. the Carvel store was utilizing the building. STAFF COMMENTS AND CONCERNS: This project. if granted as Use Variance. will need an Area Variance due to the zone line bisecting the property. A 50 foot buffer is required between the Plaza Commercial zone and the Mul tifamily Residential zone. If the variance is granted. the owner of the Glen Square property will purchase and merge the Taco Bell parcel so no further Area Variances appear necessary. ATTACHMENTS: Copy of definitions regarding types of restaurants is provided for reference." MISS HAUSER-Okay. On March 9th. 1994. the Warren County Planning Board approved this application for. "a Use Variance to demolish the existing structure and construct a smaller free standing fast food restaurant with a drive through window." MR. TURNER-Okay. Mr. Lapper? MR. LAPPER-Good evening. I think that most of my arguments have just been summarized. With me. tonight. is Dave Barlow from Clough Harbour. the Project Engineer. sitting next to me. and John Nigro. who is the owner of the Glen Square Plaza. immediately behind the Carvel site. and he'll be able to testify. after we've gone through. explained the project to you. I also have an - 6 - affidavi t to read. from Bernard Rogge. who's the owner of the Carvel site. who's in Florida for the winter. I think. to start out. I'd just like to say that we feel that this is going to be a substantial improvement. in terms of the land use. in terms of the impacts on the neighborhood. taking down a building that's way too large. and way too Glen Street. The new zoning requires a 75 foot setback along Glen Street. By moving the building back and making it 2.000 instead of 3.000 square feet. and eliminating the roof line in this case. which is just really unsightly and really old- fashioned. in terms of the style. we feel that this is going to significantly help Glen Street. make Glen Street look a little bit nicer. in terms of the commercial strip that's done in 1990's style instead of 1960's style. We're also going to be moving a lot of green space up front. which is what the Ordinance calls for. To start off with. I'd like to have Dave go through the proposed site plan which we have. This is a concept site plan. We know that. if we're approved. we'll have to go through a rigorous site plan review with the Planning Board and we've also talk to the County Planning Department. We're real pleased that the County Planning Board unanimously approved this. We had a lengthy discussion about impacts. and they felt that this was positive. The County Planner offered to sit down with us ahead of time and talk about the site. if we get through the Use Variance. So. we'd be willing to do that. MR. TURNER-Could I ask just one question. before you start? This is going to be owner operated. or franchised? MR. LAPPER-Owner operated. Taco Bell operates all of them. DAVE BARLOW MR. BARLOW-Pretty much all of those. MR. TURNER-Pretty much. or for sure? MR. BARLOW-Absolutely on this one. There are some Taco Bell franchises. and they are trying to get away from the franchise. but I know this is not a particular restaurant that will be franchised. but there's some franchisee's that have license agreements. and Taco Bell still has (lost words). I took some pictures of the existing site which might clarify some of my presentation. What I'd like to do. before I describe what Taco Bell's proposing. is kind of orient everybody on how this rendering is set up and talk about the existing site a little bit. Route 9. or Glen Street. is right down in this area. Right next door to Taco Bell. or the proposed Taco Bell. is a Chase Manhattan Bank. and the main building for the Glen Square Plaza is situated about where my hand is. The existing parcel is drawn so that it does contain the Carvel restaurant. which I know you can't see it from here. It's kind of denoted by this dashed line. The restaurant sits right now 24 feet back from the Route 9 right-of-way. and the parcel Carvel sits on is roughly a little bit over a half acre. and is somewhat of a unique configuration. The parcel is triangular. in this matter. So the existing Carvel building is probably about 10 feet off the rear property line. What Taco Bell is proposing is to develop a freestanding restaurant with a drive through window. and they plan on leasing approximately 39.000 square feet from Mr. Nigro. once the property transaction goes through. if the variance is granted. Taco Bell will be situating a building almost right in the middle of the site. or the middle of the lease area. right where this orange square is. This building is what they call a 70 seat restaurant. but in actuality. with New York State Building Code. I think they fit 64 to 68 seats within the building. The site will have a drive through window. and we have shown on the plan a drive through stack of nine cars. Typically. a six car stack works fine during the peak hour. and there is just a little bi t of extra room for potential overflows. Also. if the drive through. nine cars. for some reason. absolutely doesn't work. it would stack onto private property and is kept clear of public - 7 - right-of-ways. Taco Bell plans to share the parking with Glen Square Plaza. We immediately have 35 spots right in front of Taco Bell. and overall. with the Plaza parking. and we feel we could comply with the Ordinance. Just a couple of comments about the Carvel building. As I said. it's situated about 24 feet on the road. We're proposing the Taco Bell building to comply with the front setback of 70 feet. and we would meet all of both requirements of the zone. Is there any question on the site layout? MR. THOMAS-What kind of roof is on there? Is that a flat roof? MR. BARLOW-It's a flat roof with a parapet. It's about, I think the top of the parapet's about 18 feet high. MR. THOMAS-What about the stormwater coming off that? How do you plan to? MR. BARLOW-That's captured in a subsurface collection system. We haven't gone through a design yet. but it will be piped to an underground system. MR. CARVIN-The grey area. is that the rented area. or is that the actual property line? MR. BARLOW-The rented area is kind of shown with a dashed line around the site. That's the parking that would probably be designated for. MR. CARVIN-I see. In other words. that's just your parking area? MR. BARLOW-Yes. MR. CARVIN-Okay. MR. MARESCO-It's going to be all landscaped? MR. BARLOW-Yes. There is a substantial amount of green area. I should explain this a little bit. Right in front of the site. there is an existing island. We're approximately going to double the size of that island. We're also putting about eight to nine hundred square feet of green right in front of the building. probably pretty close to 2.000 square feet behind the building. plus the green islands. Out of the lease area. it'll be. approximately. 35 percent green space. MR. MARESCO-What kind of traffic is going to be generated. do they figure will? MR. BARLOW-Well. that's something we're going to be working on with the site plan review. We are going to be starting that project very shortly. MR. TURNER-Okay. I guess that's the amount of questions. MR. LAPPER-I guess I'd just like to say. with respect to traffic. right now. it's a fast food use. which, obviously, is not utilized to the extent that the Taco Bell fast food would be. and we're prepared. when we come back for full site plan review. that that's one of the impacts that we're going to have to look at. They will do a traffic study which will analyze all of the points of egress and ingress along Glen Street. and traffic counts. That will have an engineer to handle that. That might mean that we'd have to make some changes to the plan than what's proposed in the concept plan. but that's something that we'll address at the Planning Board. As Dave mentioned. the hardship in this case is. basically. premised upon the size and shape of the lot. It's a triangular lot. half acre. and the building itself. which is just old-fashioned in style. 30 years old, built in 1961. I'd like to read the affidavit of Mr. Rogge. and I have copies for everyone. "BERNARD C. ROGGE. being duly sworn deposes and says: 1. I am the owner of the - 8 - premises known as 704 Glen Street. Queensbury. New York (the "Premises"). 2. I make this affidavit in support of the request by Taco Bell Corp. for a use variance to allow fast food use on the Premises. 3. I am fully familiar with all the facts and circumstances herein discussed. 4. The Premises cannot be used for any use permitted under the Town of Queensbury Zoning Ordinance due to the size and shape of the parcel and the design and condition of the existing approximately 3.000 square foot building located on the premises. 5. I currently have a lease for the property with Carvel and Carvel has subleased a portion of the property to the Masters Self Defense Center. The lease rate is $8.80 per square foot which is significantly less than other lease rates in the immediate vicinity. 6. The tenant has indicated that it will not exercise its option to extend the lease and therefore the lease will terminate as of September 1. 1994. 7. The building is not presently suitable for any of the uses which are permitted in the PC-1A zone because approximately one half of the building is designed to be used as a fast-food restaurant. It contains a large kitchen area. I cannot financially justify the expenditure of funds which would be required in order to convert the existing building into a building which could be used for a permitted use because of the small size of the parcel (.505 acre). Moreover. the building was constructed in 1961 and it is now in poor condition. It is extremely inefficient with respect to heat loss and its design is out of date. It is as a result of these factors that the building remained half vacant for over six years although Carvel was continually advertising for a tenant. I believe that as a resul t of the condition of the building it would have to be completely removed and a new building constructed to replace it. However. the size of the lot would not permit the construction of a new building which would be in compliance with the required set backs. parking spaces and permeable green space. By removing the existing building and constructing a new significantly smaller Taco Bell Restaurant pursuant to a purchase agreement with the owner of the adjacent parcel to the rear. John Nigro. I believe that the character of the neighborhood will be significantly improved because the existing unsightly building will be removed and the set backs. parking and permeable green space requirements can all be complied with." John Nigro is here. I would like him to say a few comments. He's owned the property to the rear. since 1984. MR. TURNER-Okay. JOHN NIGRO MR. NIGRO-My name is John Nigro. I'm the owner of the Glen Square Shopping Center. which adjoins the subject parcel. I purchased the Glen Square in 1984. and as some of you may remember. it was in great distress condition at the time. and we developed the center into what you have today. and I have been very hopeful. from that time. that I could purchase the existing Carvel structure. It's an unsightly building. It certainly doesn't blend in with the aesthetics that I feel we have with the rest of the property. and I've very desirous of purchasing it and taking the building down. and allowing Taco Bell to construct a much nicer bUilding for the area and my Shopping Center. MR. LAPPER-John. as a real estate broker and (lost words) for a number of years. you're familiar with the condition of the Carvel building? MR. NIGRO-I am. MR. LAPPER-Can you verify for the Board that with the condition of the construction of the building. there's not much that can be done with it? MR. NIGRO-No. there really isn't much. The foundation. everything is (lost words). - 9 - MR. TURNER-Yes. Mr. Rogge had a restaurant there. the Imperial Lounge. because I remember it. and I recall it. and there was a cellar downstairs. and there was. it seems to me there was coolers and everything down there. at the time. when he ran the restaurant. and he ran that for quite a while. and then when he got out of the restaurant business. he tried to rent it. and he finally ended up with Carvel. and he had martial arts studio in there at one time. as I recall. and a number of things. and I know he's had a tough time trying to deal with that piece of property. I know that for a fact. MR. LAPPER-We're hoping that this is something that, rather than not being a negative impact on the neighborhood. would be a positive impact on the neighborhood. I think that's pretty much our presentation. We'd answer any questions. MR. TURNER-Okay. Does anyone else have any further questions? Okay. All right. not at this point. I'll now open the public hearing. PUBLIC HEARING OPENED NO COMMENT PUBLIC HEARING CLOSED MR. TURNER-Okay. Any discussion? MR. CARVIN-I just have one question of Jim. I know. Jim. you've been working on the traffic study for this area. Do you see any adverse effect with the drive through there? Do you think that this will add or detract substantially from the study that's being conducted right now? MR. MARTIN-I don't think there'll be much impact from a restaurant of this size. I don't see that as a major effect on the area. I'm glad to hear that they're preparing a traffic study. I think the Planning Board will have some questions on that. The only thing I can see that miqht be an improvement. and I just got confirmation from DEC last week. I wasn't aware of. was that. and I mentioned this to them when they came in to see the staff. that we may look at removal of one of those curb cuts on Route 9. if that were possible. We're trying to do that wherever we can. because everything's so diced up there. I think they're willing to investigate that. and whatever the outcome of the study is. and DEC's review of that is where we'll take it. but in terms of the overall traffic plan for this area. I don't think this use is going to have even a minor effect on the traffic pattern. MS. CIPPERLY-Could I ask a question. just to clarify? You've been talking about merging the lots. and then you mentioned leasing. Could you clarify that? MR. LAPPER-The lots would be merged. Mr. Nigro would own both parcels. in terms of the title. He would then be leasing. it would be a ground lease. So it wouldn't just be leasing the building. but it would be the building and the required parking. the green area. drive through. etc. He would own the whole thing. and it would just be a lease. that's something that doesn't effect the title. MR. MARTIN-Would the nature of that deed be to totally absorb this parcel into his existing holding. so there'd be no more two lots. Okay. MR. LAPPER-There' s no benefit of leaving this triangular small parcel as a separate parcel. MR. CARVIN-I guess I have one other question. I know. it looks like six months or eight months ago. we did approve a variance for - 10 - ~_.- Taco Bell right across the street. I assume that, are we going to have two Taco Bell's right across from each other, or has there been a change of plan there? MR. LAPPER-I also do represent the owners of the plaza across the street, and that variance was sought in an attempt to fill up that plaza, and it's possible that they may find another fast food use, but in terms of Taco Bell, basically, they weren't able to come to an agreement with the owners of that plaza to site the Taco Bell where Taco Bell wanted it in that plaza, and then they found this parcel, and they prefer this parcel. MR. CARVIN-Okay, because I'm looking at that motion, and we kind of left the door open, and I think that was done deliberately, because I think that was your argument back then, was that we did not specify Taco Bell, but we just said, fast food restaurants within the plaza. Now, is that being sought here, or would this, can we narrow this right down to Taco Bell? MR. LAPPER-No. We would be asking for it as fast food as a permitted use, only because you never know, in five years, mexican food goes out of style, and then somebody comes in with a Boston Chicken or what have you. So, in terms of, once the site's reconfigured to suit fast food, in terms of impacts, I would argue that it wouldn't matter what type. MR. CARVIN-Well, no, I guess, if we grant a variance for a fast food and Taco Bell goes out, I mean, it goes with the land, not necessarily the business. MR. LAPPER-Right. MR. CARVIN-But what I'm trying to avoid is the fact that, you know, Taco Bell bounces allover Town and we have fast food variances. MR. LAPPER-Well, I can understand, I think, in terms of precedent, it's certainly unique. I can certainly understand your sensitivity, in terms of precedent, and it's certainly unique to have asked for a variance of this type for two sites virtually across the street. Obviously, on the one hand, it's because there is a tenant that's looking for a site in the heart of the commercial district in Queensbury, but in addi tion to that, in terms of justification for the Use Variance, I think that we had two very unique sites, the other site, because it's been vacant for all this time, and this site, really, because of its size and shape. I think that that justifies, in both cases, some sort of relief. MR. CARVIN-No. I'm not arguing your points. I think they're very valid points. I just don't want to leave a whole lot of variances allover the place. MR. TURNER-Just narrowing it down a bit. MR. CARVIN-Just narrowing it down, and if we can condition it that the Area Variance, that these lots will be merged. I mean, that's the other thing. MR. TURNER-Yes. MR. LAPPER-That's fine. MR~ TURNER-All right. Okay. A motion's in order, then, if there's nothing else. MOTION TO APPROVE USE VARIANCE NO. 12-1994 TACO BELL CORP., Introduced by Fred Carvin who moved for its adoption, seconded by Chris Thomas: The applicant is proposing to remove an existing 3,000 square foot - 11 - mixed use commercial building and replace it with a new freestanding 2,000 square foot Taco Bell Fastfood restaurant with a drive thru window. The applicant is seeking relief from Section 179-22, Plaza Commercial lA, or Section 179-18, which refers to MR- 5 zones. As outlined in these Sections, a fast-food restaurant would not be allowed. The applicant has demonstrated, through financial records and affidavits presented, that a reasonable return on the plaza is not possible as it is currently zoned. Because of the age of the existing building, and the unusual shape of the lot, precludes almost all of the accepted uses, and the applicant has had no indications by any of the accepted uses to lease or rent the property. By granting of this variance, there would not be an adverse effect on the character of the neighborhood. This hardship is not self-created, and by granting this Use Variance, I think we can provide for the needs of the applicant, and at the same time preserve and protect the character of the neighborhood, and the health, safety and welfare of the community. This variance is contingent upon the owner of the Glen Square properties to purchase and merge the Taco Bell parcel in an effort to limit the number of additional Area Variances that may be necessary. That there is no negative environmental impact in the Short Environmental Assessment Form. Duly adopted this 23rd day of March, 1994, by the following vote: AYES: Mr. Thomas, Mr. Maresco, Mr. Carvin, Miss Hauser, Mr. Turner NOES: NONE ABSENT: Mr. Karpeles, Mr. Menter MR. TURNER-Okay. The next item of business that we have to address is the resolution pertaining to the Use Variance for the Harris Bay Yacht Club. Is there any discussion relative to the procedure of the, or a motion? MR. CARVIN-Mr. Chairman, I have some comments I'd like to make for the record, before we move the motion. Once again, we are confronted with a number of complex issues, the first of which is the criteria for the Use Variance. The Board, by motion, has determined that the Use Variance is needed, because of the cumulative nature of the changes proposed will result in an increase in utilization, by both the membership of the Harris Bay Yacht Club and the general public. The applicant has argued that there will be no increase in the total membership of 271 members, and that there is no change in purpose, that the preexisting, nonconforming activities will continue whether the improvements are made or not. However, I disagree that there has been no growth of activities, as the boats have become larger, there are more people using the boats who are staying longer, and in general placing greater demands on the facilities. So that any expansion of the facilities or amenities will only, in turn, lead to further expansion of the activities. This expansion could be somewhat more manageable if the Harris Bay Yacht Club were truly a private club. However, they have demonstrated that they do serve the general public, and that the general public contributes a significant amount of funding to the overall upkeep and maintenance of the Club. It should be noted that the general public access to the Harris Bay Yacht Club is not monitored. So that the general public's participation in the planned improvements could be considerable, which again leads directly to an increase in usage. We must now look to the criteria that this Board must follow in the granting of relief for a Use Variance. Our first test is if the applicant can show an unnecessary hardship, and that by this unnecessary hardship, the applicant is deprived of all economic use or benefit from the property, and that this economic hardship be supported by competent financial evidence. The applicant has not demonstrated any financial hardship, nor provided proof of any economic hardship, but has indicated that business will continue, whether the changes are made or not. Number Two, that the hardship - 12 - relating to the property is unique and does not apply to a substantial portion of the district or neighborhood. I guess it could be argued that this is a unique situation, in that it is a marina. However, marinas are not an approved use in the Town of Queensbury, and exist only because they preexist the Ordinance, but if a Use Variance is granted, it cannot alter the essential character of the neighborhood, and I feel strongly that if we were to grant this variance, there would be a change in the character of the neighborhood. Certainly the testimony of the area residents indicate that there has been a change in the character of the neighborhood. Our next test is if the hardship is self-created. I feel that this is self-created hardship to the extent that they may have to comply with federal and state statutes regarding handicapped access, but in that vein, the relief requested would not be the minimum necessary to eliminate this difficulty. There may be plans which could incorporate the necessary ramps and modifications for the handicapped access without the need of a Use Variance, and even if this is deemed the minimum variance necessary and adequate to address the proven hardship, I do not believe that we can, at the same time, preserve and protect the character of the neighborhood, and the health, safety and welfare of the community. I fully realize that the activities of the Harris Bay Yacht Club will continue, and in all likelihood, will still result in an increase in usage by both the membership and the general public, whether this variance is granted or not, but because of the delicate ecological siting of the Club, and the potential health and safety issues which have been raised, I cannot support this application. That is my comment, and I would ask for a motion, and if not, I can make a motion, unless somebody else has some comments. MR. TURNER-Does anyone have any further comments? MR. THOMAS-Yes. I'd like to just answer, or comment on one of Fred's statements, about the unnecessary hardship. Even though there's no financial proof of a hardship, is that the only thing that determines a hardship? What about the fact that it is preexisting, nonconforming? Isn't that a hardship imposed by the Ordinance? And Number Two, this marina has existed for years. So it has a right to be there, even though it is not, in the Ordinance. So your financial hardship isn't the only one that has to be proven, and I think the applicant did prove that since it was preexisting and nonconforming, that the Zoning Ordinance did, in fact, impose a hardship on the Harris Bay Yacht Club. MR. CARVIN-To what respect, financially? MR. THOMAS-For just being there. The hardship is that this Harris Bay Yacht Club existed before the Zoning Ordinance. The Zoning Ordinance goes into effect. The marina is not an allowed use. So, therefore, the Ordinance created a hardship for the Harris Bay Yacht Club, because it says in the Ordinance that a Yacht Club is not allowed in this zone, which the Ordinance made the hardship for the Harris Bay Yacht Club. MR. CARVIN-Okay, but I think it's the use. In other words, I think the Ordinance, the zoning was put in because there's no place, and, again, I can't second guess what the original intent was, but I think that because there are no allowed marina uses in the Town of Queensbury, I think they're saying, in essence, that they do not want marinas at all in the Town of Queensbury, so the only reason that that marina exists is because it is preexisting, but they wanted to monitor the growth of that marina, in other words, by imposing, at least certain safeguards and checks on the increased use. Now, it's not that the membership is increasing, but as I indicated, it is the use that is increasing, which is adding to a lot of the other problems out there. Now it's fine, 25 or 30 years ago, when the average size of the boat was 18 or 20 feet, and probably did not have a pot, or a head, but now those boats are being used as, in essence, second homes and second camps, so that - 13 - the folks are coming more often. They're bringing their friends more often, and they're staying longer. So that these, in essence, we now have an additional 241 camps located, or the potential for 241 camps, on the boat, and we have no control. I mean, there's nothing in our Ordinances that says that somebody can't put a 50 or 60 foot boat up there, and you can't argue, or at least not to me, anyway, that a 50 foot boat can accommodate 25 people. You have one member, and he can bring all of his friends, and that those 25 people, in essence, increase the whole activity, and I think that that's what is happening out there, and I think by upgrading the facilities, all we do, in effect, is encourage more activity out there. I would have, probably, less opposition to this, if I knew that this was just a private club. MR. TURNER-Right, yes. MR. CARVIN-The problem is that it is not a private club. It is basically a public facility, so that any increase of desirability will only increase the public's participation out there. I think that they said that part of the funding of this is going to come from the fact that they have public folks buying gas and using the stores. There was no indication that they would finance the total package just strictly from the membership, and I think it's that aspect. Now, I fully realize I can't control that. They still can go out there and they still can increase the public activity, but eventually, there's going to be some, I think, more severe problems out there, which will have to be addressed by the community, and that, and I think that we fall back to two issues, here, that they have to prove, at least beyond a shadow of a doubt. Number One, that they will suffer an economic hardship, and they have not shown that, because of the very nature of the Club, the Club is not in financial difficulty. It's not like the guy who owned the bUilding here, who couldn't rent the building for the approved use. They certainly have an approved use out there, at least by default, if nothing else, and they are not going out of business, so that they have to upgrade the facility to keep attracting more and more boats. That's not the case, and the second, I think, big issue is the last one, is the health, safety and welfare of the general community out there. This has grown over the years, and I think the health issue has not adequately been addressed, and I still am not convinced that there is not some basis for the ecological concern of the fill and the whatnot. I also know that pretty much every spring that whole area gets flooded, and I think in some of the correspondence the neighbors have raised, I think, some very good points about their safety out there. So, it is on that basis that I would move that this application be denied. MR. THOMAS-Lets take the health thing, there. Case scenario, the seven thousand gallon gas tanks in the ground leak. What happens now, they shut the place down? MR. TURNER-No, no. We're not even talking about that. MR. THOMAS-Well, that's part of the. MR. TURNER-No, no. That comes as a different application. MR. THOMAS-Yes, that comes as an Area Variance. MR. TURNER-Right. MR. THOMAS-But we have to get this Use Variance through to get to the Area Variance. MR. DUSEK-That's not my understanding. I understand that no matter what you decide, tonight, on the Use Variance, there will be another proceeding on the Area Variance. MR. TURNER-There's another application on it, Chris. - 14 - MR. MARTIN-The shed and the deck expansion are subject to the Use Variance. and I believe the work along the shoreline and the relocation of the gas tank is subject to the Area Variance. MR. TURNER-Yes. MR. THOMAS-All right. the question. I've got them backwards here. I withdraw MR. TURNER-As it happens to most applications. that's the way it happens. but not so in this case. because the tank could fail and they could come to us and say. look. we proposed an Area Variance to move the tanks somewhere else. or above ground. or whatever. and that would be a separate issue. MR. DUSEK-Perhaps. just to clarify an early comment that was made. just so that the Board is clear as to the legal requirements. it indicates here. in the Town law. that in order for the applicant to prove an unnecessary hardship. the applicant must or shall demonstrate to the Board. and then it lists four items. and the fourth item is included with an and. In mY opinion. when you read that. that means he has to prove all four items. That's his obligation. as I mentioned in the last meeting. is to prove that to you. He has to prove that he cannot realize a reasonable return. and it says. provided that a lack of return is substantial. as demonstrated by competent financial evidence. So. if he's arguing to you that he doesn't have reasonable return. he has to prove a lack of return that is substantial and documented. So you have to ask yourselves whether he proved that to you. The second thing is. that he has to allege that the hardship is unique. as was mentioned. the third being that it will not alter the essential character of the neighborhood. and the fourth being that the hardship has not been self-created. but. in mY opinion. he has to show you all four of those. in order for you to grant the variance. MR. TURNER-Yes. he does. It has to survive on all counts. Yes. MR. THOMAS-So. if it doesn't survive on just one of them. MR. TURNER-It's gone. Yes. MR. MARTIN-I stand corrected. The gasoline tank would require the Use Variance. I just reviewed. the work along the shoreline would even not. That's just subject to site plan. MR. THOMAS-All right. So. can I re-instate my question. here? Since it does require a Use Variance. what happens if that gas tank leaks? Does the marina shut down? MR. CARVIN-I think it becomes a bigger problem than this Zoning Board. MR. TURNER-DEC shuts it down. MR. CARVIN-Yes. MR. THOMAS-Shuts it down. Now. how do 271 people get fuel to their boat? Five gallon cans. and how do they get it in there? They dump it down the hole. How much of that's going to go in the lake? A good chunk of it. MR. MARTIN-Well. there's other gas pumps and other marinas on the lake. MR. CARVIN-That's what I was going to say. but he hasn't told us that his gas tank is failing. MR. THOMAS-Yes. but how long has it been in the ground. and what's the average length of a gas tank in the ground in this area that lasts. especially if it's metal? Not very long. - 15 - MR. MARTIN-The focus right now is the Use Variance. and the gas tank's not a concern. MISS HAUSER-I thought you just said it was? MR. THOMAS-You just said it was. MR. MARTIN-No. I said. the gas tank is subj ect to an Area Variance. The shoreline stuff is not. MISS HAUSER-Okay. MR. DUSEK-So what is it that's on for the Use Variance. just so the Board is clear? MR. MARTIN-The deck and the shed expansion. MR. TURNER-Right. MR. THOMAS-You just said the gas tanks were. MR. CARVIN-You said the gas tanks. MR. MARTIN-I mis-spoke. then. I meant to say. I first said that the gas tank and the shoreline work was subject to an Area Variance. While you were discussing. I was looking through the Ordinance. and shoreline filling is only subject to site plan review. MR. TURNER-Yes. MR. THOMAS-Right. MR. MARTIN-So. therefore. only the gas tank will be subject to an Area Variance. MR. THOMAS-All right. I withdraw my question. and comments. MISS HAUSER-Good. Mr. Chairman, I'd like to make a motion. MOTION TO DENY USE VARIANCE NO. 111-1993 HARRIS BAY YACHT CLUB. INC.. Introduced by Linda Hauser who moved for its adoption. seconded by Fred Carvin: In the matter of the application of Harris Bay Yacht Club. Inc.. for a Use Variance with respect to the Town of Queensbury Zoning Code: After hearing testimony of the applicant and any arguments concerning this application and holding a public hearing on application #111-1993 on March 17th. 1994. I find the following: The applicant proposes renovating existing facilities over a seven year period which includes. but is not limited to. expansion of an existing nonconforming use by construction of 1) a deck with handicapped access to the north side of the clubhouse which includes expansion of two existing deck areas and picnic area for a total expansion of 1516 square feet and 2) an addition of 216 square feet for a preexisting nonconforming shed and 3) expansion of the parking area into the eastern boundary of the property. I move to deny the proposed relief. The applicant has not demonstrated a hardship exists. It has not been proven satisfactorily that reasonable financial return cannot be realized with utilization of the property "as is". Although an argument may be justified that a marina operating in a residential zone creates a hardship that is unique to the neighborhood. it is this uniqueness that has the potential to adversely alter the character of the neighborhood. It is felt that the proposed expansion. while improving the existing HBYC facilities. will subsequently increase public usage of the marina facilities which will consequently over tax antiquated sewage facilities already overburdened by present usage. It is felt that due to these two reasons: lack of substantial financial data indicating undue hardship and adverse - 16 - impact on the neighborhood which is in a Critical Environmental Area necessitates denial of Use Variance #111-1993. Duly adopted this 23rd day of March, 1994, by the following vote: MR. MARTIN-Just as a point of clarification, now. The original advertising, and the original presentation was that the parking area off to the side also represented an expansion. The applicant has presented evidence that that was all used for parking, and really it was an expansion of the gravel into that area. Now is that something the Board accepts as being true, or, you want to make sure, you know, that would then be a third component to the Use Variance. MR. TURNER-I think they have used that area in the past, and I agree wi th the fact that they have, and I have no problem with that. MR. MARTIN-Right. MR. DUSEK-So you're saying that a Use Variance is not needed for the parking? MR. TURNER-Not for that part of it, no. MR. CARVIN-I don't know how we can monitor it, because it's all gravel. It's not lined and it's not designated. MR. TURNER-Yes, how can we tell? MR. CARVIN-Do you know what I'm saying? Because if we're going by a grass line, the grass line will change by nature. MR. TURNER-Yes, that could change with the seasons. MR. DUSEK-I think. I would recommend that you somehow address that in your motion. however the Board would desire. but just as a tail end statement on your motion, just address that issue then. because Jim says that the Use Variance, then, is actually three. MR. MARTIN-The original determination was that there were three components to the Use Variance, the shed. the deck. and that parking area. and I want to make sure that all three are addressed in some fashion. MR. CARVIN-Yes. I think the parking should be addressed. because you could have, and I hate to use the term "creeping expansionism" out there. MR. MARTIN-Well. yes, I just wanted to make sure it was acknowledged in somehow dealt with. MR. CARVIN-Yes, I agree. I think there should be something on the parking in there. MR. MARTIN-That's a good point. It could also reflect on the Area Variance. too. If the Board is accepting the argument that that was always used that way. then neither one would apply. MR. CARVIN-See. if we turn down. if the parking is part of the variance application, and we turn down the variance. do we not, in effect. turn down the parking? MR. DUSEK-No. If what I just heard two members of the Board say, I don't know what the whole Board would decide, but if you're saying, in your motion. we deny this because of the reasons that you've said. and then if you clarify. at the end of your motion, as to what the denial of the Use Variance was for. and clarify. then. I guess what I'm hearing. like I say. two members of the Board say that if this was the Board's choice to say that the parking spot - 17 - was not needed, or did not need a Use Variance, in other words, you're saying, we're denying the Use Variance, but we're also saying, this one element didn't need a Variance, if that's what I understood you to say just a minute ago. In other words, I don't think your motion. then. would. an affirmative vote for the motion. would be a denial of the variance for the two items, but an approval of the fact that the one parking spot didn't need a variance. MISS HAUSER-If I remember right, their parking facilities aren't increased in number. MS. CIPPERLY-The way it would reflect on the Area Variance would be the encroachment onto the wetland buffer. MR. TURNER-And I thought that was the reason for the parking, was the encroachment into the wetlands. MR. CARVIN-Will this also be addressed in the Area Variance, then? I mean. is the parking? MS. CIPPERLY-But if they're parking there already, and that's the extent of their. MR. MARTIN-I think if you're going to accept the evidence that parking had occurred there, and the expansion of the parking into that area is. in fact, not an expansion. but just graveling an area that has always been used for parking. then neither a variance would be needed. MS. CIPPERLY-You wouldn't need the Area Variance. either. because they've already been using. MR. CARVIN:"It' s going to corne up under the Area Variance. The applicant is proposing expansion of an existing parking area. That comes under the Area Variance. I think we can address that parking right there. MR. TURNER-That's the setback from the wetland. MR. CARVIN-Yes. MR. MARTIN-But what I'm saying is. if they've advanced the argument that parking has always been going on there. then it wouldn't even be subject to an Area Variance. It would be a preexisting condition. MR. TURNER-No. but I mean. how do you qualify. and make them corne for an Area Variance anyway. when they don't need the parking? MR. MARTIN-Well. it was represented when the application first carne in. MR. TURNER-Only because they violated. MR. MARTIN-It was unclear. that was not said. That evidence was not known. So. the night of the presentation. this carne in this way. and it appeared that they were expanding into an area that was previously not used for parking, and now they're saying it always was. but if one just looks at the site plan, without that knowledge, it looks like the gravel was to one point, and now they were expanding that area, and now they're presenting evidence that it always used for parking and that simply was the end of the gravel, but they parked on the dirt beyond the gravel. MISS HAUSER-So we don't have to cover that tonight, because it's subject to the Area Variance. correct? MR. TURNER-It's the setback. - 18 - MISS HAUSER-That's the way it was advertised. MR. MARTIN-Yes. It was advertised that way because the application came in with that appearance. but what they're saying is. that parking as a use always did occur in there. MR. TURNER-Why don't we just deal with it when they come for the Area Variance. deal with it right then and there. say. either you don't need one or you do need one. MR. CARVIN-I think we have to go back to the original plans. in other words. because if it's lines on a plot some place. then that's the parking. Now. remember. we don't have a delineated parking lot there. So that. if I'm looking at a plan. then the parking has to end right there. and I think it's the applicant's responsibility to make sure that they don't encroach. I think that that's the way you address that issue. and that they are encroaching. at least via a map. whether the grass is there or not. I mean. I can't prevent grass from not growing. In other words. I don't know whether the grass died there and turned into sand. MR. MARTIN-What I'm saying is that. if parking preexisted as a use in that area. then it doesn't matter. even to the Area Variance. MR. CARVIN-What I'm saying is that the parking did not exist there because it was delineated that parking could not exist there. Do you follow what I'm saying? MR. MARTIN-Yes. MR. CARVIN-I know what you're saying that if we can go out there and we're going to look. yes. they've been parking there for 55 years. because you can see that the ground. but. technically. there should be a. if we had blacktop out there. that's where the parking ends, but each year that floods on the roads and everything else. I mean. I think that's the only way you can address that, because you do not have hard surface out there. So I think it has to be addressed under the Area Variance. and I think they have to come back. because what they're saying is that on the map. they're going to. mathematically, go into the wetlands by another three or four feet. MR. MARTIN-I'll read the advertising for the Use Variance that you're now considering right now. and this is the end of it. "Applicant proposes expansion of existing gravel area to create six (6) additional parking spaces. Expansion intrudes into wetland buffer, and requires an Area Variance." So I think if you say that this is not a preexisting case, and you deny the Use Variance for that, then the Area Variance is a moot point. MR. CARVIN-I agree. In other words. if we say that the parking. that we're not allowing the additional six spaces of parking as a use. then the Area Variance goes out the window. MR. MARTIN-Right. MR. CARVIN-So that's why I think it should be attached. MR. MARTIN-All right. Well. then. it's up to you which way you address it, naturally. but I just want to make sure it's in your motion. so that we're not left with a loose end. MR. CARVIN-But my question still comes back to. it has to be specific. In other words. if we don't address it. then even though we turned it down. MR. MARTIN-It was advertised as needing a Use Variance. that aspect of it. the expansion of the parking. MR. DUSEK-Well. I guess the issue goes to what your motion - 19 - -- ---.-,~..~---------_...._.. ---- previously said it was addressing. I don't know that I caught all of it or can remember all of it now. but I guess the issue is. what does your motion say that they can't do. is the question I have at this point. Just so the Board is clear on it. MR. CARVIN-Any of what they've applied for. I'm saying if they apply for five different items. we don't have to go through and say that this. Item One is because of this. MR. DUSEK-Just as long as that's clear that that's the intent of the Board. then, that's fine. MR. MARTIN-I just wanted to make sure that the parking was included in that. so that's clear. MR. CARVIN-That was mY question. if we turn down the application. then we turn down everything. MR. DUSEK-That's right. MR. CARVIN-So I think that even though we identify certain items. and the reason that we're turning it down is because they can't show us the reasons for us to pass it. MR. DUSEK-And when we say everything. we mean everything for which the Use Variance was applied. MR. CARVIN-That's correct. MR. MARTIN-So that would be the shed. the deck, and the parking area. MR. CARVIN-And the parking. MR. TURNER-She's going to highlight it in her motion there. MISS HAUSER-I think maybe I should include that. I'm talking about. in the first paragraph. the shed and the deck. MR. CARVIN-Just say. all aspects of the Variance. including but not limited to, in case there's something else in there that we missed. AYES: Mr. Maresco. Mr. Carvin. Miss Hauser. Mr. Turner NOES: Mr. Thomas ABSENT: Mr. Karpeles. Mr. Menter MR. THOMAS-I have a question of the Chairman before I vote. What's it take to pass this. a majority plus one? MR. TURNER-Just a majority. The County approved it. MR. DUSEK-When you say. the County approved. what do you mean? MR. THOMAS-The County approved the denial. MR. TURNER-They approved the variance. the request for the Use Variance. I'm sure they did. They approved the Use Variance. the Area Variance. and the Sign Variance. MR. THOMAS-So in order for us to disapprove it. we have to have a majority plus one. or just a majority? MR. TURNER-Just a majority. MR. DUSEK-Now I think the overriding provision. and this is dangerous. because I'm speaking without the Statute in front of me. but my recollection is. that the overriding provision applies when they disapprove and you seek to approve. - 20 - ---~-- -------"-- ------.---, MR. TURNER-It's a majority plus one then. MR. DUSEK-It's a majority plus one in that event. but when they approve. and you disapprove. I don't believe that that overriding vote is needed. MR. TURNER-No. It's just a majority. I know it isn't. It's just when you have to approve over their disapproval. Everything else is a majority. MR. DUSEK-That's my recollection. MR. TURNER-Yes. Four to one. it's disapproved. It's denied. MR. DUSEK-The Board also needs to address the issue of setting a date for a public hearing on the Area Variances that are left. MR. MARTIN-There's only one now. There's only one. that would be the placement of the gas tank. MR. TURNER-Right. MR. MARTIN-And the Sign Variance. MR. TURNER-Yes. All right. how many have we got so far, four? We've got four already. right, and then we've got Bergeron, and then we have Seeley. That's two there. two major ones, and Linda's not going to be here in April. and Bob's not going to be here in April. MISS HAUSER-Unless you want to have it a different week. MR. MARTIN-It might not be a bad idea to consider setting a meeting the first week in May, at least one of them. MR. TURNER-Yes. MR. MARTIN-I just get nervous if we have an opportunity to get seven, and only have five. I'd like to take the opportunity to get seven. MR. CARVIN-A full Board. yes. Well. Harris Bay. really is just the gas tank. right? That's the only thing that the Area Variance. and the Sign. So that shouldn't be a major situation. so I think that one could be scheduled. but I think these other two, I think Bergeron and Seeley. that's going to be a real. MR. TURNER-Seeleys are two major applications. MR. MARTIN-Well. Seeley. you got my letter. That's now changed from an expansion of a nonconforming to establishment of, in mY view, based on the up to date information from the surveyor. MR. CARVIN-I have a couple of questions on that Seeley that I think were raised that night. I mean. now that Paul is here. there was a question, at least in mY mind, are we moving on. or is this open discussion at this point? MR. TURNER-It's open discussion. Go ahead. MR. CARVIN-With Seeley. if memory serves correct, back at the turn of the Century, they applied for a variance and it was turned down, and it went to, I guess, Supreme Court, and Supreme Court upheld our Board's decision to turn down the application. I believe you started a civil procedure against them. In other words, a cease and desist, in City Court or Justice of the Peace Court. MR. DUSEK-I can't remember, now. how that got started. whether it was ~ that started it or somebody else. but I remember finishing it up. - 21 - --..-...-- MR. TURNER-I think how it started was that they brought a map Up. and they showed you guys that. hey. we have information here that told us that we could operate there. because it was zoned industrial at the time. That's how it got started. MR. CARVIN-I think my question really boils down to that. for whatever the reason. you or someone from the Town decided to withdraw the procedure of enforcement. in other words. to go out and physically tell them. look. it's gone through. It's not an approved situation. My question to you is that. when we withdraw something like that. does that reverse the decision of the denial of a variance? MR. DUSEK-No. MR. CARVIN-Then my feeling is that that already has been resolved. that that is an enforcement problem. in other words. that goes back several years. that has never been followed up. MR. DUSEK-Well. no. I think the problem in the case is that at the time it was before this Board. and also at the time that the litigation was occurring in Court. the thought was that nothing on the premise was allowed. in terms of Light Industrial use. and that was the premise. and I think. here again. I hate speaking without going back to the record. and I would defer to the record of the Zoning Board. but if you look at that. I'll bet you you'll find. and I think we should. that it probably was looking at nothing ever being allowed on that. MR. CARVIN-I think that that's where we're going to head with this. Paul. MR. DUSEK-Well. that's what happened when we were in Court. too. However. what turned out was during the course of the Court proceedings. a map surfaced which actually showed that a portion of their property was. indeed. in the Light Industrial zone. So the issue then became. or the issue. now. I think. before this Board. is a little different than what it was before. Before it was. do we let them have any kind of a use there. assuming that they have no rights whatsoever. Now the issue is. well. they do have rights to Light Industrial use. and the question is. should they be allowed to expand. not whether or not they have a nonconforming use. or not whether or not we should grant them a total use variance. but rather. should we grant them a right to expand. MR. CARVIN-Okay. I think that that's incorrect. MR. TURNER-No. He's taking a different position here. MR. TURNER-There's a fine point. here. in that. the preexisting. or the old zoning line for the M-l zoning. or M-2 zoning and Light Industrial. whatever it was. has just recently been determined by Leon Steves to run through only a small portion of the lot. enough so that the new barn in the northeast corner of the lot is in that old district. MR. DUSEK-That's my understanding. MR. MARTIN-But they have come in to expand the old garage in the center of the lot. to run their machine shop business in. or continue to do so. That building. now. based on that information. has been determined to have never been in the Industrial zone. MR. DUSEK-That's correct. MR. MARTIN-So. therefore. it has no preexisting nonconforming status. It is simply nonconforming. So even to have that as a machine shop use without any expansion. just as it is today. requires a Use Variance from this Board. - 22 - _.._-----~ MR. DUSEK-Well, no, I'm not disputing that. I guess what I'm saying, though, is that, as you just said, a portion, what was not, here, again, I'll defer to the record, but I don't believe the issue of any portion of that property being in the Light Industrial Board was previously before this Board. In other words. it was assumed that it was never Light Industrial, that no part of it was in the entire, but the issue now before this Board is a little different in that. yes, a part of it was Light Industrial. I don't know whether it was used Light Industrial or not. The facts will have to be examined to look at that, but you have, in other words, what I'm saying to you is you have different information now than what you had. perhaps, before. MR. CARVIN-Well, what was the reason that the original application, back in 1977 or 1980. or whenever it was. it was prior to the new law, the one that we took to Court. I mean. I think that was the expansion. .. MR. MARTIN-The action started in '87, I believe, with a visit from an enforcement officer. MR. CARVIN-I'm looking at. really, two buildings. There was the first building. which Jim indicates that was where the business started, all right. That was behind the guy's house. MR. MARTIN-The newer structure, the newer barn in the corner. MR. CARVIN-No, it's right behind his house. MR. TURNER-It started in the garage behind his house. Let me just tell you the history of the property. because I probably know it better than anybody. What started there was, when he bought the house. he tells us that he took and built that garage, I guess it was attached to the house, all right. So he separated that from the house. So what he started to do. he did not have a business there. What he was doing. he was working on antique cars. evidentally. for himself, right. So then that generated the other type of business that he's into now. all right. He furthered the business. He never came for a variance for any change of use or anything. He just went ahead and did it. Then he came and got a permit for the barn, which he. I think if you look at the permit, it says garage. garage and barn. Then he took the machinery and moved it into the barn. The machine shop is in the barn. and the other part of the business is in the old garage. MR. MARTIN-The barn is in the old Light Industrial zone. MR. CARVIN-Okay. MR. TURNER-Yes. but I'm saying he transferred it over there, all right, the machine shop. MR. MARTIN-In the mid seventies, when that zoning was in effect. MR. TURNER-Maybe yes. but maybe no. Anyway, I know that's what the record says, but anyway. that's basically how it happened. Then he got a visit from Bert Martin, who told him he was in violation of the Zoning Ordinance, and that's when the application came forward, and the application was denied. and then the court procedure and so on and so forth. So that's where it's been. That's how it got started. and that's where it's been. and that's where it is now. MR. CARVIN-So we had, basically. an expansion off something that couldn't have been expanded. it was never expanded with first. MR. TURNER-It couldn't have been expanded anyway. MR. CARVIN-So, I mean, the egg gave birth. MR. DUSEK-Well, no, that's the issue. The issue is whether or not - 23 - ....._~,_.------------ .__.__._..----~_.__.-.__.---- he had a use in the, there's no question that the Light Industrial zone included a portion of his property. I mean. obviously. you'll make that final determination. I shouldn't say there's no question. That's up to this Board to determine. ultimately. but Leon Steves has drawn a line depicting what. supposedly. the Zoning Ordinance revealed as what is in the Light Industrial zone. and that line. according to Leon Steves. includes a portion of the Seeley property. So the question then becomes, all right. if that's true. then. and like I say, I defer to your Board. because your Board ultimately makes that final call. but if that is true, then the question becomes. well. what was occurring when,~n that parcel. and if, in fact, he was using that for Light Industrial purposes. then the question becomes, for your Board, again. what. if any bearing, does that have on what he wants to do next door? Do you see how they're related? I think you've got to really take a look at those. MS. CIPPERLY-The original variance, the record on that, says that that was only a residential parcel. and that's what you're trying to decide. MR. DUSEK-No. no. The zoning for that parcel was residential. not the variance. the zoning was. The ~zoning that occurred in '82 changed the corner of that property to Light Industrial, at least that's the argument. Like I say. that's for your Board. MR. MARTIN-The Town changed the zone. by resolution. in 1968. and when they did that. that line ran through that northeast corner of the lot. and took in the area of the lot where. now, the new barn si ts. That zoning over that portion of that lot was in effect through 1982. So if he did. in fact. at some time before 1982. move that machine shop business into that new barn. then that. in mY view is a lawfully existing. preexisting. nonconforming use. MR. DUSEK-No. You're still not quite right. The Town Zoning Ordinance came into effect in '68. or '67. but there was a ~zoning after the Town Zoning Ordinance came in. and that's when that line was established. MR. TURNER-In 1982. Then it was rezoned again in 1988. a resolution rezoning a property for CR Bard. There was MR. DUSEK-Right. that's where it got picked up. MR. MARTIN-Right. and when that rezoning took effect in 1968. the industrial zoning went into effect over that northeast corner of his lot. like I just said. MR. DUSEK-And that stayed until 1982. MR. MARTIN-1982. That's what I just said. and the barn was built in. I think. the mid seventies. or something like that. We have the permit on it. It was built in the mid seventies. MR. TURNER-You've got the permit anyway. I think it was 1972. MR. MARTIN-Yes. and he's saying that's when he put the machine shop business into that barn. MR. CARVIN-Okay. but then continuing along that same argument then the only portion that could be used would be the portion of that building. the rest of it could not be utilized. MR. MARTIN-That's what I said. and so any use of any other portion of that lot for a machine shop business has no preexisting status. MR. DUSEK-That's correct. MR. CARVIN-So, we have to go out there and paint a line on the floor and tell them that he has to stay on that side. essentially. - 24 - -----_."-~....----._~".- MR. DUSEK-Well. that's up for your Board to ultimately determine. He's made a decision. as Zoning Administrator. that. there's the line. You don't have any rights over here. You do have rights here. and now he's coming to your Board. MR. TURNER-He's looking for an expansion. a major expansion. that comes into the residential zone of that lot. and that's where Jim is coming from. you know. that he needs a Use Variance. but the permit for the barn was for. garage. a garage and a barn. MR. MARTIN-I think what Fred was trying to drive at was. is this a case that we might need to first make a decision. is this a substantial enough change to re-hear an application that was already made. MR. CARVIN-And denied. MR. MARTIN-And denied. MR. DUSEK-I don't know. was that your question? MR. CARVIN-It could be. MR. TURNER-I think that's his question. MR. DUSEK-I think. here again. the Board has to make that kind of decision. not me. but I certainly would think that if you were inclined to feel that that. there's no question there's a change of facts there and a change of circumstances. I think. as long as you go back and take a look at your previous resolutions and make sure we're correct in all of this. but if there is. then. I mean. I think it's up to your discretion as to whether that's a sufficient change of facts to warrant a re-hearing. and. actually. it could either be treated as a re-hearing. First of all. if it's treated as a re-hearing. you can just do that as of right. okay. I think that's been pretty much been cleared up now. as long as you do it by unanimous vote. If it's a change in circumstances or a change in facts. then you can treat it as a brand new variance application. MR. CARVIN-Well. I think we're going to have to mull this one over. because I think these people have been pushed from pillar to post on this. because. according to Mrs. Seeley. there. they've "acted in response to information that was given to them by Town Officials". and it's a real sticky wicket. MR. MARTIN-Putting on my Planner hat now. I think that. as much as the Beaty's are on the front line here. what should be born in mind here. that the property that has been actually on the front line of the commercial zoning is the Seeley property. MR. TURNER-He's no different than the guy on the other corner. MR. MARTIN-Yes. but. Ted. he's the one who's had residential zoning and been living next to commercial zoning since 1982. MR. TURNER-That was his choice. He bought the house. He knew it was commercial. MR. MARTIN-The fact of the matter is. his property. as residential property. is being impacted by commercial zoning right next door. MR. TURNER-That's fine. but when he bought the house. MR. MARTIN-He's got the same situation that Mr. Beaty is so fearful of. He's living that today. and I think that deserves some consideration. MR. TURNER-Right. that's fine. but if I was so concerned about having a residential use next to a commercial use. I wouldn't even - 25 - .~------. buy there. MR. MARTIN-So. therefore. the ultimate answer lies in trying to set some sort of buffer in here. and some sort of transition. rather than just sticking it to one person and not the other. MR. TURNER-No. but I'm not saying stick it to him. He's already got the use there. He's using it. been using it. MR. DUSEK-The only comment I would make is that it might be. other than answering a couple of legal questions. I think that's okay. but I don't know that you really want to get into a full blown discussion on the planners opinions and everything else. I think. in fairness to the public and the applicant and everybody else. you really ought to put that in writing. so that it's in writing and before the Board the next time. MR. TURNER-All right. I've got a question for you. What about Di Palma? MR. DUSEK-Yes. I would like to move. if the Board would move into an Executive Session so I can discuss matters relating to what I would consider an attorney/client relationship. and also a matter involving that. as well. plus potential litigation. MR. TURNER-Okay. I'll make a motion to go into Executive Session. HOTION TO GO INTO EXECUTIVE SESSION TO DISCUSS HATTERS RELATED TO AN ATTORNEY/CLIENT RELATIONSHIP. AND A HATTER INVOLVING THAT. AS WELL. PLUS POTENTIAL LITIGATION. Introduced by Theodore Turner who moved for its adoption. seconded by Fred Carvin: Duly adopted this 23rd day of March. 1994. by the following vote: AYES: Mr. Maresco. Mr. Carvin. Miss Hauser. Mr. Thomas. Mr. Turner NOES: NONE ABSENT: Mr. Karpeles. Mr. Menter HOTION TO COHE OUT OF EXECUTIVE SESSION. Introduced by Theodore Turner who moved for its adoption. seconded by Fred Carvin: Duly adopted this 23rd day of March. 1994. by the following vote: AYES: Mr. Maresco. Mr. Carvin. Miss Hauser. Mr. Thomas. Mr. Turner NOES: NONE ABSENT: Mr. Karpeles. Mr. Menter On motion meeting was adjourned. RESPECTFULLY SUBMITTED. Theodore Turner. Chairman - 26 -