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1995-09-28 SP ~f1<i ,..,,\....I~ ,.., ., . ~ lj :... ,"""..'" ~ í..~ QUEENSBURY ZONING BOARD OF APPEALS SPECIAL MEETING SEPTEMBER 28, 1995 ·1 NDEX . I:·' Use Variance No. 69-1995 Tax Map No. 51-1-36 Phyllis M. Bucklin 1. Use Variance No. 70-1995 Tax Map No. 59-1-7 Tax Map No. 59-2-8 Peter J. Phair 3. THESE ARE NOT OFFICIALLY ADOPTED MINUTES AND AR~ SUBJECT TO.BOARD AND STAFF REVISIONS. REVISIONS WILL APPEAR ON THE FOCLOWING MONTHS MINUTES (IF ANY) AND WILL STATE SUCH APPROVAL OF SAID MINUTES. .:".'j ., , , '.' i ~ j: :~ :'.-: " -, ".¡ t ~ --",. ,I . Queensbury ZBA Meeting .9/28/95 QUEENSBURY ZONING BOARD OF APPEALS SPECIAL MEETING SEPTEMBER 28, 1995 7=00 P.M. MEMBERS PRESENT FRED CARVIN, CHAIRMAN CHRIS THOMAS, SECRETARY ROBERT KARPELES WILLIAM GREEN MEMBERS PRESENT DAVID MENTER THOMAS FORD EXECUTIVE DIRECTOR-JAMES MARTIN STENOGRAPHER-MARIA GAGLIARDI NEW BUSINESS: USE VARIANCE NO. 69-1995 TYPE: UNLISTED RR-3A PHYLLIS M. BUCKLIN OWNER: SAME AS ABOVE APPLICANT SEEKS A USE VARIANCE TO ALLOW A TWO-FAMILY DWELLING ON SUBJECT PARCEL, WHICH IS NOT AN ALLOWED USE UNDER SECTION 179-15, RURAL RESIDENTIAL 3-ACRE. (WARREN COUNTY PLANNING) 9/13/95 TAX MAP NO. 51-1-36 LOT SIZE: 5.30 ACRES SECTION 179-15 PHYLLIS BUCKLIN, PRESENT MR. THOMAS-"At a meeting of the Warren County Planning Board, held on the 13th day of September 1995 the above application fora Use Variance to construct a two family home on this lot was reviewed, and the following action was taken, Recommendation to: No County Impact" Signed by C. Powel South, Chairperson MR. CARVIN-Okay. Are you Mrs. Bucklin? MRS. BUCKLIN-Yes, I am. MR. CARVIN-Okay. Before I begin, we only have four members, out of a Board of seven, actually six. We would need four votes to approve or deny. If it appears that I'm not going to get a consensus of four votes, I would recommend that you consider tabling the application until we have a fuller Board, and that's just in the way of a footnote at this point, because we are very limited. So if you'd come to the microphone, is there anything that you'd care to add to your application here? MRS. BUCKLIN-No, I don't. I don't have any questions. I would like to know what the time element is, when we're to be meeting aga in. MR. CARVIN-Well, we're not tabling it. We're going to move on this application tonight. MRS. BUCKLIN-I misunderstood. MR. CARVIN-I said if it looks like we're not going to get a consensus, then I would suggest that you table it. So, in view of that, is there anything that you'd care to add to the application? MRS. BUCKLIN-No. I think it's completely stated. MR. CARVIN-Okay. Does the Board have any questions of the - 1 - - Queensbury ZBA Meeting 9/28/95 applicant? I just have one question. Has the property been marketed, or is it being marketed? For approximately how long? CATHERINE GERICKE MS. GERICKE-I believe the date it went on the market was May 1992. It presently is not listed. We're waiting to see how it's going to sell. MR. CARVIN-Okay, and it was listed as a single family residence, was it.? MS. GERICKE-Yes. MR. CARVIN-Approximately how long was it listed. MS. GERICKE-Three years. MR. CARVIN-So, '92 through. It's not currently listed. So it was de-listed at some point this year? MS. GERICKE-Yes. MR. CARVIN-Okay. The two family house that you're proposing on here, is it going t.o be a duplex, or what type of two family? Do yq~ hav~ any pl~~s or ? diagrpm~ '. ¡ MRS. BUCKLIN-No. The reason t.hat we're asking for a variance is that in order to, those people who showed interest in purchasing this five acre parcel wanted to, the only people who showed interest wanted to put a residence that was a two f~mily residence. I, personally, do not intend t.o build, but I would like to have the leeway in order t~ meet people's criteria in order to build. MR. CARVIN-Okay. Any questions, gentlemen? MR. GREEN-I guess just a q~estion for Staff. Is appropriate way to do it, or should we wait until actually wants to build somet.hing on it? It. seems t.o short period of time, we've always, we've had. this an someone me, in my MR. CARVIN-I don't. have a probl~m with moving on it because we're dealing with quite a sizeable piece of pfoperty h~re, Number One, and the only thing that. might play in would be a size issue, and that really doesn't matter whether it's a single family or double family. I think the thing that we have to look at is, has it been marketed for a reasonable time, in other words, going back t.o t.hecriteria, is it a Dnique situation t.o that particular neighborhood, or would it conform? Will it alter any character out there, and so forth? So I don't have a real problem, I guess, with that. We've done that before in the past, so that's not a problem, shouldn't be a problem, I don't think. MR. THOMAS-No. The variance goes with the land. MR. CARVIN-I'll open up the public hear~ng. ! 'I>j-:: .J PUBL1'C'H;E~RING O,F?ENEP f '). ~ .H,R. CARVIN-It's p~~~~x str,.:iight f:orwafq~ MR. KARÞELES'-YoÙsay there..~$ q th/ee family house U)e)~e nO~<J, directly north of it? MRS. BUCKLIN-Three apartments in it, and is a little, a business, some sort of a directly north of that is a hardware directly north of that store busine~s, and store, and then a - 2 - ~-' ~,^ Queensbury ZBA Meeting 9/28/95 restaurant. PUBLIC HEARING CLOSED MR. CARVIN-Okay. this, questions? Any comments, gentlemen, or any thoughts on MR. THOMAS-If this were here. This is 5.3. problem with it. a six acre lot, she wouldn't be sitting So it.'s real close. I don't have any MR. KARPELES-No. It looks okay to me. MR. GREEN-I guess it's all right, since there are some other ones in the area that have more than one family, I guess it's all right. MR. CARVIN-Yes. I didn't see a real problem. It's a vacant lot. I mean, it.'s five acres. MR. KARPELES-Nobody seems to oppose it, the neighbors. MR. CARVIN-No. I'd like to restrict it to just a two family. I wouldn't want to see an apartment complex or three family or anything else like that. MOTION TO APPROVE USE VARIANCE NO. 69-1995 Introduced by Fred Carvin who moved for Karpeles: PHYLLIS M. BUCKLIN, its adoption Robert The applicant is proposing to construct a two family residence in a Rural Resident.ial Three Acre zone, and in order for the applicant to complete the project, she would need relief from Section 179-15, which indicates only a Single Family,Residence allowed in this area. The applicant has indicated that the land has been for sale as a Single Family Residence for approximately three years, and that they cannot realize a reasonable return on the land as it's currently zoned. By allowing the two family residence of approximately 5.3 acres, this would not create a unique situation. By allowing a two family home and only a two family home, we will not be altering the essential character of the neighborhood, and this would be the minimum relief necessary to adequately address the hardship proven by the applicant and at the same time preserving and protecting the charact.er of the neighborhood and the health, safety and welfare Qf the community. That there has been no public comment against this particular project. Duly adopted this 28th day of September, 1995, by the following vote: AYES: Mr. Green, Mr. Karpeles, Mr. Thomas, Mr. Carvin NOES: NONE ABSENT: Mr. Menter, Mr. Ford USE VARIANCE NO. 70-1995 TYPE: UNLISTED SFR-1A PETER J. PHAIR OWNER: JAMES PETER & CAROL PHAIR 131 MEADO~BROOK ROAD APPLICANT PROPOSES TO CONDUCT A LANDSCAPING BUSINÈSS AT 131 MEADOWBROOK ROAD, WHICH IS IN A SINGLE FAMILY RESIDENTIAL ZONE, SECTION 179-20 WHERE THIS USE IS NOT ALLOWED. (WARREN COUNTY PLANNING) 9/13/95 TAX MAP NO. 59-1-7 TAX MAP NO. 59-2-8 LOT SIZE: 2.26 AND 1.24 ACRES SECTION 179-20 JOHN CLEMENTE, REPRESENTING APPLICANT, PRESENT STAFF INPUT - 3 - Queensbury ZBA Meeting 9/28/95 Notes from Staff, Use Variance No. 70-1995, Peter J. Phair, Meeting Date: September 28, 1995 "APPLICANT: Peter J. Phair , U~E VAR~AN.C;:E NQi" 70-1995 PROJg,CT LOCATION: 131 Meadowbrook Road . P'ROJ'~CT ¡}?ESCRIPTÍON AND CONFOR"'!~NÇE. WITH THI~' ORDINANCE: Appllcant pr~pos~s ~91,on?uct a la~dsfap~n~ 9;u:,iryrss qn sqbj~ct property, WhICh IS In a SIngle FamIly ResIdentIal zoné, SectIon 179-20 of the Ordinance, where this use is not allowed. PARCEL HISTORY: The following is based on Dept. of Community Development and Town of Queensbury Assessor's Office records: Parcel 59-2-$, 1.24 acres, t.wo-family residence, detached garage Purchase price, $95,000. Assessment, $147,800 Previous owner, 19~2 -',! 1993 .w~s A.lan M~rcure~ ..., Pu)~c;:hase price, $35,000 . ÅssessmeDt$:I,8 ,700' - .!~5 ,400 ; 'o'u~~¡¡g'~is . ow'r1ers~~p, the following applications 'we~~ 'fíl~¿ with thé to~n: Si~e Plan 17-83 - 'I :: PrQposed 3 single-family units, plus garage and storage. Applicat.ion denied, with the comment that. they were not sure 'whether it is for commercial or residential use', as it came out that the garage was b~irig used as office space for Mr. Mercure's business, and that Mr. .Mercure's son had been living in it. Mr. M~rcyre ,.¡".JaIS' adv i.s~d that S'uch lJse IrJou.1c;1.., ,requ ire. a var iance . (Resólutióri attached) Úse Variance 11263- June 19S7. Proposed to utilize 'vacant garage' as a 'minor aut.o repair - tune up' shop. Application was withdrawn by the applicant, June 17, 1987. I,n. August. of 199:;3, those representi ng the property asked for a qetermina,tio.r,¡from. f;,þe 4,qni ng Admi nistr ator as to whe.ther this p);qp~r1:.y.· :(:5!9~2'-8: only, L.. coulq be used for a la,ndscapi n9 busi néss, Pr\.~ í~drGateq !th~t. :l~'~~,s. "¢urrently be,ini,use::t for .alegallY- eXIstIng constructIon bUsIness, and had been SInce 1982.' Oh the basis of the information provided, the Zoning Administrator made the determination that a landsbaping business would be allowed on this parcel. He also indicated that no expansion of the business could occur. His August 30, 1993 letter is attached. During the Spring,qf 1995, complaints were received from the neighbors in regardtó machine noise, traffic, dumping activity, etc. associated with the site. Mr. Phair was issued an order to remedy violation, which resulted in a Use Variance being applied for. The application currently under consideration also indicates parcel 59-1-7, as included in this request. This pa)"cel is currently being transferred to Mr. Phair so was not addressed by the original Zonin~ Administrator letter. The parcel is zoned SR-1A and is almost entirely within a DEC designated wetland area. STAFF COMMENT: It appears that: 1. Information provided to the Zoning Administrator in seeking a determination was incorrect.. There had not been an approval for a const.ruction company on the site and, based on application materials submitted for the previous Site Plan and Variance applications it did not exist on the site beginning in 1982. 2. According to Assessor's records, this is a 2-family house. The Site Plan application to make it a 3-family situation was denied by the Planning Board in 1983. Line 10 of the current. appliçations describes the proposed use as a 3-family residential, which would require further approvals. It may be that the current use is for three units -- perhaps Mr. Phair could elaborate on this. 3. The original letter from the Zoning Administrator was for a landscaping business, not for a nursery, as listed under Item 9 on page 1 of the application as a current use. There is a difference in impact between a service-oriented business and a nursery, where products are grown for sale. 4. Further information is needed regarding exactly what is proposed for the site, and where it will take place. If ipproved, it is recommended that. this project be sent to the Planning Board for Commercial Site Plan review. A Wetlands permit may also be needed from both DEC and the Town, if activity is to take place on the rear parcel. 5. During a site visit on September 26, staff observed an area on the front parcel where concrete blocks, a truck battery, construction (roofing and lumber) material, metal racks, grass clippings, and tree branches had been dumped and were apparently going to be covered with sand. This is not an allowed activity. - 4 - ',- ~. Queensbury ZBA Meeting 9/28/95 On the rear parcel, in the woods, there were piles of plant mat.er ial, such as hem.lock branches, yew cl ippi ngf;3, and hardwood tree branches that d,ld, no~ originate on-site ,ê¡.S. th~se. species are not present Qn ~he sit.ø: USE VARIANCE REV¡EW CRITERIA1 BASED ON SECTION 267-b OF TOwN LAW: 1. IS A REASONABLE'RETURN POSSIBLE IF THE LAND IS USED AS ZONED? Applicant intends to prqvide more financial information at the Board meet.ing. As stated above, the property was purchased for $95,000, is assessed at $147,800, and contains two, or possibly three, rental units. If there was a financial hardship involved with one parcel, it does not seem to make sense that another parcel was purchased, as well, with the same type of limitations on it, plus the wetland issue. 2. IS THE ALLEGED HARDSHIP RELATING TO THIS PROPERTY UNIQUE, OR DOES IT ALSO APPLY TO A SUBSTANTIAL PORTION OF THE DISTRICT OR NEIGHBORHOOD? This property is south of a pre- existing construction company. A vacant, 98-foot-wide parcel separates it from the Highway Commercial zone, where there is currently a mix of residential and commercial uses. To the east are Multi-Family residential and Single-family residential zones, which contain apartment buildings and single family residences. 3. IS THERE AN ADVERSE EFFECT ON THE ESSENTIAL CHARACTER OF THE NEIGHBORHOOD? Complaints to the Compliance Officer have involved the noise created by a chipper, pneumatic hammering, grinding, and t.ruck t.raffic, much of which is not during what could be considered normal business hours. 4. 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? The business could be limited to the front parcel, rather than letting it expand to the additional SFR parcel to the rear, as well, as the front parcel is what t.he original proposal was about. The variance could also be limited to a service activity, where most activity takes place somewhere else, wit.h no on-site nursery activity, materials processing, etc. SEQR: A Use variance is an unlisted action. A Short form EAF is attached to the application. The Board has the option of asking for a Long Form EAF if there is not sufficient information on the Short Form to make a determination of significance." A letter dated August 30, 1993, addressed to Peter Phair, "Dear Mr. Phair: It is my determination, in my capacity as Zoning Administrator that a landscaping business to be located at 94 Meadowbrook Road (Tax Map Parcel Number: 59-2-8) is an allowedus~ under the Town's current zoning code. I make this determin~tio~ based on the understanding that a construction business (County Wide Systems, Inc.) has actively operated from this site since 1982. Therefore, Section 179-79 (Continuation of Nonconforming Uses and Structures) allows construction of the site as landscaping business providing no expansion of the business occurs. Sincerely, DEPT. OF COMMUNITY DEV. James M. Martin Executive Director Zoning Administrator" Also attached is Site Plan Review No. 7-83 for Alan Mercure. "At a meeting of the Warren County Planning Board, held on the 13th day of September 1995, the above application for a Use Variance to operate a landscaping, nursery and lawn care business. was reviewed and the following action was taken. Recommendation to: No Coµnty Impact" Signed by C. Powel South, Chairperson. A letter dated August 26, 1995, addressed to Paul Dusek, Esq. "Dear Mr. Dusek: MR. CLEMENTE-Excuse John Clemente, and That's my letter. put it on record. me, I'm I'll Mr. Thomas. Good evening. My name is representing the Phairs this evening. waive the reading of it. You can just MR. THOMAS-It's up to you. That does it. MR. CARVIN-Okay. your application? Is there anything that you'd care to add to - 5 - .- Queensbury ZBA Meeting 9/28/95 MR. CLEMENTE-I've introduced myself. I have with me the Phairs, Carol, Peter, and Jim, and we would like to add to the application. We have with us this evening, Preston Jenkins, to my right. He is an account,nt, with an office in South Glens Falls. W~ asked him to take a look at the financials for this business for the year 1994, and he has done that for us. We asked him if he could make any conclusions, in respect to the viability of the business with or without t.he variance. Mr. Jenkins is a CPA. He's practiced locally for many, many years, and his credentials are attached. Let me give you a second just to look at this. If you have any questions, he's here to answer any questions that you have about it. MR. CARVIN-What is a "Pressure Washer", is that a hose? CAROL PHAIR MRS. PHAIR-A Pressure Washer is a piece of equipment, high pressure water, which we use to clean the (lost word). MR. CARVIN-Okay. MR. CLEMENTE-For the record, that was Carol Phair. introduce everybody. I ought to PETER PHAIR MR. P. PHAIR-My name is Peter Phair. business, 131 Meadowbrook Road. I'm the owner of the MRS. PHAIR-I'm Carol Phair, and I assist Peter with his business management. ]11"1 PHAIR MR. J. PHAIR-I'm Jim Phair. money. I'm the one that keeps all the MR. GREEN-These expenses you have here, on Page 4, the rental income, and then there's depreciation and cleaning, insurance, and so forth. Are those merely on the building or on the entire list of assets? PRESTON JENKINS MR. JENKINS-These expenses are merely on the real estate. MR. GREEN-What is auto and travel? MR. jENKINS-I think Mr. Phair can answer that better. Based on mileage expense which was ch;,Hged against the prOpe1"ty. I didn't actually prepare the return. This information was extracted from the tax return. It's a certain number of miles at 29 cents a mile. I know that much. MR. GREEN-To and from the Phairs house to the rental property? MR. JENKINS-I would assume t.hat, and other types of maintenance wor k . MR. CARVIN-Repairs. Are these a one time item? $7200, or is this goin~ to be an ongoing situation? You've got MR. JENKINS-Well, t.hink quite often every two years, expectation for the I think because of the type the turnover occurs quite and I would say that's (lost word) property. of rental it, I frequently, maybe not an unusual - 6 - - Queensbury ZBA Meeting 9/28/95 MR. GREEN-How much more depreciation have you got, how many year? MR. CLEMENTE-The depreciation is probably another 27 years. MR. MARTIN-Do you have any information as to how the three apartments aYe there, if they were denied by the Planning Board? It's a single family zone. MR. CLEMENTE-We do want to answer that question, and we can take that up now, Mr. Carvin, but we'd like to finish with the financial statement. MR. CARVIN-Okay. Does anybody have any questions on the financial statement, here? MR. GREEN-Yes. I've got just one more statement. I don't know. Maybe I'm just being a stick in the mud, here. How far away do you live from the rental property? MRS. PHAIR-Six miles. MR. GREEN-If you take $2,000 mile, that's 6,896 miles, at That seems a little high. and you divide it by six miles. That's 29 cents a 1 , 149 t 1" ips. MR. CLEMENTE-Well, I believe that we're talking about expenses associated with repair, and not merely commuting to the building to see if it's there and to see if it's okay. There was a great deal of work done on the building this year. Trips t.o get materials, trips to do all kinds of things. So it's not once there, and once back, only to the house. I don't know where the lumber yard is. I would assume he had the records. This is on the tax return, and it's what we're using. MR. CARVIN-What was your total mileage, 6,000 miles? MR. CLEMENTE-Six thousand miles, which is about. MR. CARVIN-Half of the allowable. 15,000 miles? Don't they normally allow MR. CLEMENTE-I would say, this is average. MR. CARVIN-For normal automobile use. MR. CLEMENTE-But it might be 4,000 miles or it might be 8,000 miles. The point is that it.'s not only not making a reasonable return, which we would say would be 20 percent of this business, it's losing money on a cash basis, and it's even more money if you take depreciation, and that's for all three units. I didn't mean to cut off Mr. Martin. If you have any questions about the numbers, we deal with those. MR. MARTIN-My only reason for asking about the three apartments was that I think t.hat's a fundamental issue. We have to first establish if those are allowable there, because if they're not allowed, then I don't see how a loss on t.hose apartments can be considered. MR. CLEMENTE-Well, we're up front about it. We've been straight up with the system all along. We use three apartments. They've always been in there. It was represented that they were lawful and they're being used, and we could t.ake the rental of the third apartment out, and your loss would be greater. So, as to the accounting question, there is attributed rent to a third apartment in there. If we take it out, it would increase the loss. We believed it was legal, from Day One, and I think Mercure, to this day, believes it's legal. I think that's part - 7 - Queensbury ZBA Meeting 9/28/95 of the problem. Perhaps you could ask Mr. Jenkins how much the loss would increase if we took the rent for the third apartment off. MR. JENKINS-Well, the rent for the third apartment for 1994 was $2400, and the projected amount is the same. So it would increase the loss from $1.3,600 to about $16,000, and without any rent in¿ome, the projected loss would be, in the future, would be around $11,000, which would include depreciation. MR. CARVIN-All right. Well, I'm not an accountant., and I'm a long ways from an accountant, but does depreciation come back if you sell the house for a profit? Is there any recaptuye on that? MR. JENKINS-Well, I think, depending on the particular piece of real estate, that may be true, but if we take the real estate you're talking about, the real estate was purchased for $95,000, which st.ill can't support, and it's appraised for something in excess of that, $147,800. So I would say in that case, that I doubt that that's true, there will be true depreciation. If it.'s strictly as a two family, it. really doesn't have very much value. Two families are a pretty expensive buy for the t.ype of rentals that are available. MR. MARTIN-Again, I don't mean to harp on this, but the question is can t.here be a reasonable return as zoned. The zoning on this property is not for three families. The zoning on this parcel is for single family. So the comparison of reasonable return should be against the single family home, not against the use that e:, ists there. MR. CARVIN-This is single family, isn't it? MR. CLEMENTE-With all due respect, we could go down to one unit and see what it would rent for, and whether a person who construct.ed it could make a profit in the business of renting a single family unit, and the numbers would simple be greater. We would have a case which is . more profound that this case. We believe that a two family use is prior nonconforming Clost words). We believed the three units were legal. That's how it is being used. We could remove the rents from two of the units and show you how bad t.he losses are. If we only had the right to build a single family home there, we would never make anything like this kind of money for this property, because it couldn't generate any income. That's the point, and that's why we're asking for this variance, which we hope we can establish for the record, and for you, that we're entitled to under the provisions of 267-þ of the Town Law. So I'll concede Mr. Martin's point, Single Family. That's what the zoning is in the latest Code. We're not sure we're in violation of that, because of a whole bunch of other things, which we don't need to get into, but we can establish that we meet the criteria of 267-b, and you all agree, but by removing the income, our case is more compelling. MR. CARVIN-Okay. Does anybody else have any questions? Is there anything that you'd care to add to the application? MR. CLEMENTE-Yes, we have a good bit more, but if there's no more for Mr. Jenkins~ with your permission, we'd like to let him go. MR. CARVIN-I guess I just have one question. Would these be standard? I'm assuming that the auto and travel is probably going to figure out. to be a standard deduction, in other words, a non supported deduction. How about some of the others? The repairs, would that be a non support.ed situation? In other words, if you were called in on audit, would the IRS give you a credit, for example, of $7200 on a piece of property like this? MR. JENKINS-Probably, based on the general condition of the - 8 - ~.. Queensbury ZBA Meeting 9/28/95 property. MR. CARVIN-Okay. So that could be a real figure, or it could be just an accepted figure by the IRS, under normal circumstances? MR. JENKINS-Yes. I would believe that's right. MR. CARVIN-Okay, and the same would be with the utilit.ies? Is that a hard number, or is that an accepted number? MR. JENKINS-No, that's a hard number, I mean, that's actual payments, yes. MR. CARVIN-Okay, and taxes is a hard number? MR. JENKINS-Yes. MR. CARVIN-Repairs? Well, we figured repairs at $7200, you said could be an accepted number and not a hard number? MR. JENKINS-Yes, I believe those would be accepted, based on the general condition of the property. MR. CARVIN-Okay, and interest is a hard number? MR. JENKINS-Yes. MR. CARVIN-Insurance, obviously, I would assume is a hard number? MR. JENKINS-Yes. MR. CARVIN-Cleaning and maintenance? MR. JENKINS-Yes. MR. CARVIN-And depreciation? MR. JENKINS-Depreciation is something, you question whether it's real or unreal, and I really don't know the answer to that. MR. CARVIN-I don't think anybody dòes, except the IRS. MR. JENKINS-It's an allowable number, and it's over a life which probably exceeds the real life of those depreciated. period of assets if MR. CARVIN-Okay. Well, I know depreciation covers a multitude of sins. I know that you can have a positive cash flow and show a negative return on a tax form, and I guess the other side of the coin is the appreciation of the property over time, and I guess my question to you is, does, and maybe I'm not asking it in the right fashion, but is t.here an offset on depreciat.ion where we have that situation? In other words, we have to assume that the value of the property, over time, goes up, while you are actually, in essence, depreciating it. So that you have an appreciating asset, but a depreciating tax schedule. MR. JENKINS-I think that a lot of people think that. I think it's really a misnomer, because we ignore the fact that maybe in 20 years when we sell this property we're dealing with discounted dollars, and the dollars that we paid 20 years earlier were worth much more. In fact, the government was thinking about confusing our depreciation code a lit.tle bit more by allowing us to use a cost of living adjustment when we take depreciation, but they're not going to do that. They have been looking at that. So, I think that's a difficult question. If the property is restricted to two family use, I doubt that the value over the years would exceed any inflation factors. - 9 - Queensbury Z8A Meeting 9/28/95 MR. CARVIN-Okay. Well, I guess my point is that if you tak~ out those three items, and I'm not saying that they're not legitimate items as far as the IRS is concerned, but if you back out the depreciation, the repairs, and the auto and travel, that evaporates a good portion of the net loss, which, if we were to do that., and I'm not saying that we're right or wrong here, but it would make the argument that $11,000 of income is probably pretty close to a bre~k even, and I guess you have to determine whether that's a reasonable return to break even, and I, unfortunately, don't have an answer for you there, but I guess my point being that if we take those three into consideration, that the house, under normal circumstances, certainly is not losing money. MR. JENKINS-Well, I don't think it's safe to assume that there would be zero maintenance, because I do many rental income schedules when I do tax returns, annually, and most of the properties of this type do have significant repair problems. MR. CARVIN-Okay, but would that be, on average, of about one- third of the total revenues? MR. JENKINS-I would say it's not be unusual that it could be that, but again, most of the time, you have to realize that a lot of these properties are bought at very, very low cost, and there's a heavy turnover and lots of damage done. So, it's not unusual to have to do that. MR. CARVIN-Okay. MR. GREEN-I understand your point, because I took the $7204, divided it by three apartments, divided by twelvemonths, and that's $200. How much monthly rent do you get from each apartment.? MR. JENKINS-If you look at the projected figures, one apartment's at $450. One's at $435, and the third one is at $200. In 1994, there was some vacancy while there was repair work being done. So it doesn't divide out. t.o anything in part.icular. MR. GREEN-Even if you take the $6,ObO as a maximum projection, annually, for the life of the property, and you divide that by 12 months, and you divide that by three apartments, that's still $166 a month per apartment. MR. CARVIN-Well, again, I want to caution that the repairs is an accepted figure by the IRS and not. MR. GREEN-I understand exactly what you're saying. MR. CARVIN-I'm not disputing t.hat that mayor may not be a hard number, but I also know that with rental units like this, it's normal to carry a loss for a long period of time, when actually you have positive cash flow off those units. MR. JENKINS-I think I could, basically add, as a financial person, that if I had $95,000 to invest in something, I would look for a much better return than what this real estate would do, and right now this real estate would not give a return (lost word). MR. CARVIN-Okay. Well, I think that that will probably segway int.o the real reason that the property was bought, and I think that that was not necessarily for the rental income, but for another purpose, but I think the record should be clear that at least in fiX mind, I'm not totally convinced that, whether they're allowed or not, that the revenue that's being generated by the three apartments may not be a reasonable return, and again, as I - 10 - ..........>¥ Queensbury ZBA Meet.ing 9/28/95 said, I don't know all the facts here. I don't know if these are reasonable rents. I don't know what the condition of the apartments are. I don't know what the financing arrangement on the mortgage interest is. I don't know what all the little quirks and jigs and jags of these thing are, but lÓoking at these numbers, and as I said, just backing out those three, certainly I think we can come to a, at least I'm coming to the conclusion, that we're looking at, at a very minimum, a break even situation, and I guess I want, that's what I'm looking at here. So if anybody else has got no other questions of Mr. Jenkins. MR. KARPELES-I do about taxes. property? Are taxes for the ent.ire MR. JENKINS-The entire property, yes. MR. KARPELES-So the houses are carrying the burden of the taxes, according to this? MR. JENKINS-Yes. MR. CLEMENTE-Mr. Carvin, I would like to ask Mr. Jenkins a couple of questions for the record. MR. CARVIN-Sure. MR. CLEMENTE-Mr. Jenkins, would you state for the record how long you've been practicing in the South Glens Falls area. MR. JENKINS-I've been practicing in the Glens Falls/South Glens Falls area since 1970. MR. CLEMENTE-Do you have clients who are businesses in any approximate way you might say are this size or of this nature? MR. JENKINS-I have many businesses very similar to this. MR. CLEMENTE-In reviewing the numbers here, that you need a number for repair, and that it tends to be higher, is this consistent with your clients, having rental income and properties? you've already said on older properties, with your experience do not live in the MR. JENKINS-I would say it's not very unusual. normal, and usually the properties are not properties that would. It's fairly high quality MR. CLEMENTE-With respect to travel, is it the case that most of these owners do claim some travel and are you able t.o make any judgements about whether $2,000 for three units is something that is high, low? Do any of your clients eveT claim no travel? Can you offer any opinions on that, based on your experience? MR. JENKINS-Well, to say it's probably all of the above, most people have travel expenses when they own real estate. Some people have that in Florida and t.ry and deduct it. Some people have it in Hawaii, usually that's not reasonable, but it's not unusual for people who have real estate, they take mileage deductions, because it's a true business expense and allowable by t.he tax code. MR. CLEMENTE-So, in any event, even if it wasn't $2,000, it would be something, as long as the records were kept. MR. JENKINS-Yes. MR. CLEMENTE-Anyone else? Thank you very much. We'll let Mr. Jenkins go now. On the subject of the financials which have been - 11 - Queensbury ZBA Meeting 9/28/95 submitted by Mr. Jenkins, the observation would be that, in the market, if one had $95,000 to invest, and didn't v¡ant to do any work at all, it would be a relatively safe investment that you could make approximately $8,000 at int.erest rates for a long term (lost words) $8,000 on the plus side, and that, in my experience representing clients who have real estate residential units, they invest when it looks like they can make between 15 and 20 percent on the plus side. Even without depreciat.ion, the maximum optimistic projection, that still loses, in cash, $5,000 a year, with three units, and we respectfully submit, others may have different views, that this is a substantial loss, that this property cannot return anything that's reasonable, just. renting residential units. We have nothing more to add on the financials. (lost words) of our obligation to establish financial burden. If the Board has no more questions, we'll move on. I'd lik~ to submit, for the record, an affidavit of Al Mercure, a sworn affidavit. The affidavits have been submitted for the purpose of establishing that the conditions in the letter were, in fact, met, and this a matter that we simply want to get into the record. It's not really relevant to this Board's determiriation under 267-b, except with resPect to Number Four. It ~oesbear on that. Number Four, the thing we have to establish~ on 267-2b(4), is that the alleged hardship has not been self-created. In addition, we would like the record to indicate that the Board had available to them the photographs which I~m st.arting with Mr. Green. They're photographs of the property from the front, from the side, from the left and the right, and the rear, and we have, for the record, an indication of whether the Board members have visited the site, individually_ MR. CARVIN-I know I have. MR. THOMAS-I'll state for the record I was there today at 2 p.m. MR. KARPELES-I was there the day before yesterday. MR. GREEN-I was there yesterday morning. MR. . CLEMENTE-Any questions on the affidavit? MR. CARVIN-I don't. MR. CLEMENTE-Since you've all seen the site, I'd just like to leave the photographs for the record. MR. GREEN-I've got a question about this affidavit. the Staff., Do we have any record of Town Officials property a~dknowing that Mr. Mercure's business was at that time? It's more to visiting the in operation MR. MÁRTIN-I have not seen any~ no. MR. GREEN-So, as far as the Town was concerned, there was no authorized business there? MR. MARTIN-I think the Staff Notes accurately reflect all the records we found on this site, and I have them here tonight. There was a site plan applied for, for three single family units. It was denied. There was an application for minor auto repair in '87 that was withdrawn, and that's all we found. MR. CARVIN-Do you know the reason why that was withdrawn? Was there any public record on that, or was it withdrawn before it reached the Board? MR. MARTIN-It was withdrawn by the applicant. I don't have a copy of the minutes of that meeting, but the minutes from that time frame are, I don't know, they're kind of spotty. They're - 12 - -' Queensbury ZBA Meeting 9/28/95 not verbatim minutes like we keep now. Withdrawn on June 17th, and the public 11th. So it was after the date of the what happened, what transpired. They're summary minutes. hearing was held on June meeting, but I don't know MR. GREEN-So there's no variance for the apartments either, at this point? MR. MARTIN-No. MR. CARVIN-I'm not quite sure I understand. In this affidavit, it basically says, that there was, visits in the back of the garage, the business operation. Now, I'm not sure if he's referring to the garage as a minor auto repair and tune up shop, or if he's referring to the fact that there was somebody who visited it prior to June of 1987 when this application was being considered. MR. CLEMENTE-With all due respect, Mr. Carvin, before this Board, the only purpose for this affidavit is to establish that ~.¡e believed what we were told before we bought the property, and experience that Mr. Mercure was, in fact, operating the business, and that we felt we met, we inquired into, after we received the letter, we inquired into whether he had done what the letter said was the condition necessary to be able to operate a long time business, and we satisfied ourselves that. he had, and he still says he had. So the only purpose here, this affidavit might be relevant at other points and what not. The only purpose here is we have an obligation to satisfy you, among other things, if we have any hope of getting the variance, that this hardship was not something we created, and the delicate matter of the letter, and (lost word) public employee, and public employees work hard, much more than they can do, particularly in times of tight budgets. We're not raising that issue here. We're just dealing with what the Town did and telling you how it impacted us. Before you, we don't. really want to get into too much of that, unless you think it's relevant. MR. CARVIN-Okay. Well, I think your point is well taken, that certainly you bought the property under the assumption that Mr. Mercure was conducting an approved business. MR. CLEMENTE-And we still believe that. MR. CARVIN-And you still believe that. Okay. point is made. So I think the MR. CLEMENTE-Now, with all due respect, the building is old, and this zoning is new. This was not Single Family Residential prior to the last Code. Mr. Dusek may have addressed this. I think it was Urban, I think if you go back far enough, you'll find some multi family use. So there might be prior nonconforming for the two units. Have you looked into that, Paul? PAUL DUSEK, TOWN ATTORNEY MR. DUSEK-For the record, I haven't, I'm not firm, in ~ mind, what the zoning was prior to 1988. In fact, I don't even know what the zoning is now, except to the extent that they. MR. CLEMENTE-I've got all three Codes, back to the 50's, and this Single Family Residence came in in the latest Code. Prior to that, it was a UR, Urban Residential 10,000/5,000, and prior to that, it was something, I think, that would have permitted two dwellings. So, although since the last Code, which was relatively recent, the building is 40, 50 years old. So, as to the two units, we'd have to look into it. I don't think there's an issue there. As to the one units, your records reflect that - 13 - .....~ " ',- Queensbury ZBA Meeting 9/28/95 it was built by when he came in I-Jas occupied. the fact that wor d) of this Mr. Mercure, and that he told you he lived there, to see the Board, and that he did live there. It He built the garage, and he built the unit, and he lived there was a matter of record in the (lost office. MR. MARTIN-I think, to provide some rationale behind what he's saying, I think that would explain why there was a site plan application received in '83 for multi family, because if it was UR, and providing that use schedule is the same as our current UR zone, that does permit multi family with site plan review. MR. GREEN-But t.hat review was denied. MR. MARTIN-Right, but that would explain why the application was made, I would think. MR. CLEMENTE-Since it goes back to the 30', I guess we'd have to take a more careful look, if that became an issue. MR. ,MARTIN-I mean, '82 was also a time that the Code was updated. So, it's a matter of what month did that occur, the change over to the new zoning district. I forget when it was in '82. MR. CLEMENTE-I think the Code prior to '82 was even less restrictive. MR. MARTIN-'67 was the last update prior to that. MR. CLEMENTE-So we have the phot.ographs, and I hope the Board feels they represent approximately what they saw. The affidavit is submit.ted to further explain why we feel that we have nothing t.o do with creating the hardship. I'd like, if I might, now, to turn to Carol Phair and ask her to explain the circumstances surrounding the Phair's decision to buy this property at this price. MRS. PHAIR-Peter began his business in 1991. He operated from South Glens Falls for. two years, and at that point, because of his equipment and so f¿rth, we began to look for a place where he may have an opportunity to store his equipment, and service it t.hat was more convenient than the location down in South Glens Falls. We discovered the house in Queensbury with the commercial size garage, and it seemed perfect for Peter's proposal to try and grow in the area in which he already had been working. He had been doing some landscaping and lawn care, and he began to see that it would be beneficial to him to have a location where he could advance and buy additional equipment, and buy supplies, perhaps, in larger quantity. Minimize his traveling expenses, running for supplies for customers, and trying to enlarge his equipment, available equipment, because we were having a very difficult time with one crew, trying to meet all the requests we were gett.ing for landscaping and lawn care services, and because that house had that commercial size garage, we considered it. It had rental income which would help with the expense of the property, and that is the reason we purchased that property. MR. CLEMENTE-Did the presence of the third unit have anything to do with your decision? MRS. PHAIR-Yes~ Peter spends time after hours working for the benefit of this business on his equipment and his trucks, and he sometimes stays late. He may get ¡n from lawn care services and landscaping, eight thirty at night, nine o'clock in the evening, in the early part of the summer, and then he would spend some time working on the equipment or' the trucks, which may need repair, and so we found that the third apartment offered him the chance to stay on the location, especially when he was working - 14 - ~ Queensbury Z8A Meet.ing 9/28/95 late, and so that he would not have to drive to South Glens Falls to catch some sleep and t.hen be back to the location in the morning ready for the arrival of his crew. MR. CLEMENTE-So, for the record. We don't want anything to be ambiguous. We'll tell you what we did, what we're doing, and what we plan to do, if you approve the variance. That is a unit that is used and occupied as a residence. Is it also used as an office? MRS. PHAIR-Yes. It serves a dual purpose, for his office. MR. GREEN-The third unit is not a rental unit? MRS. PHAIR-No. It is for Peter's occupation. He does pay a rent to the income of the property. MR. CLEMENTE-The question, Carol, was, is it rentable, if Peter moved out? Is it an apartment you can rent? MRS. PHAIR-It is a small apartment. It is what you may consider, perhaps, a studio apartment. There are two rooms, a kitchen area, and there is a bathroom. MR. CLEMENTE-And let us be clear about the application. We are asking this Board to do what's necessary to have that as a legal apartment under the zoning law in the Town of Queensbury. That's our request. Now, you talk about the price of this property. Would you have paid $95,000 for this property, if you were told that Peter couldn't operate his business out of there? MRS. PHAIR~Absolutely not. Initially, we were told that the appraisal of the property was somewhere around $115,000, when we started to look at it, and we thought, well, the asking price of $95,000 might make it a worthwhile buy. When it appraised by the bank, the banks came through with an appraisal of $97,000. We knew that, ordinarily, we would be very stupid to purchase a house at this price, if it was appraised for this much money, but we wanted the area for Peter's business so badly, that, for that reason, we decided not to walk away from it. MR. CLEMENTE-Do you own other two residences that you don't occupy, that you rent, in the City of Glens Falls? If you do, how much did you pay for them, and how much would you sell them for today? MRS. PHAIR-We do own two other homes, both of which are two family homes. One is our primary residence. We purchased it for $12,500. Today it is appraised at approximately $102,000. We also purchased a two family home in Glens Falls for $7,000, and today it is appraised at approximately $70,000. MR. CLEMENTE-And what could you sell those properties for today? MRS. PHAIR-I believe we could sell both of those buildings for at least 85% of the appraised value of those buildings. MR. CLEMENTE-Could you describe the condition of the residential units you found, when you inspected them, prior to purchasing them? MRS. PHAIR-You're referring to Meadowbrook Road? There were tenants in the house at the time that we purchased. The tenant upstairs was very elderly, and she had been there, perhaps I guess, for more than twenty years. She had acquired so much clutter that my husband came home and told me, this is a serious fire hazard. We cannot keep this tenan~ if we buy this house. What occurred was that the tenant became ill, I mean, on the day - 15 - '" Queensbury ZBA Meeting 9/28/95 of the closing, and she had to leave the house. She was hospitalized for a period of t.ime, and she never returned. Her relatives had to come in and sort through all of the garbage which she had acquired and saved in her residence. There were only narrow walkways through the floors, from one room to the next, and her relatives threw, approximately, seven dump truck loads of garbage out from the upper apartment, and we took it to the dump for them. and then at that point, we had to begin, and this was in the fall of 1993. We had to begin renovating that apartment. This home still has plaster walls. It has wood floors. We refurbished all of that. We started with the upstairs apartment, and in 1994, approximately in early April, we started on the downstairs apartment. The floors were sanded. The plaster walls have been resurfaced and painted. Appliances were purchased. We did as mu6h as we could to clean the interior of the apartment. We did have infestat.ion with rodents and insects, and we had to hire Terminex to exterminate the house. Now I believe it's very comfortable and liveable for our tenants. There was a lot of work to be done. MR. CLEMENTE-Does the Board have any questions about t.he circumstances, I have one more question. Could you describe the circumstances surrounding the receipt of Mr. Mercure's let.ter? I'm interested in whether, Mr. Martin's letter to the Town, did you ask the Town to send a letter? Under what circumstances was the letter obtained, and what part did the letter play in your decision, and, lastly, did you have any questions about the letter and what did you do about that? MRS. PHAIR-Initially, when we started to look at the property, we all believed that it was a Highway Commercial location. We found out, approximately mid-July that, no, in fact, this property was zoned residential, which was, initially, very upsetting to us. We decided t.hat we could not seriously be interested in this property if we could not operate a business there, and we told the real estate agent that that was exact.ly the way we felt, but. due to the fact that Mr. Mercure had been operating there, the real est.ate agent felt that he may be able to get assurance for us that'we could continue to operate a business at that location, and he approached the Town for a letter indicating that a landscaping,. lawn care business would be in line with the type of business that. was already locat.ed there. We would not consider purchasing the house without that letter, and that letter was given to us prior to the closing for the house. I read the letter, and I did ~ote that there was a condition that said the business could not, or that there may be a consideration if t.he business ever expanded, and I wondered to what degree we would be limited, as faT as expansion was concerned. Because the letter came from the Planning Board, I called the Planning Board, and spoke to a secretary that. answered the phone. I explained that we had' just received a letter which would support a business on the property which we were about to purchase, and that the letter stated that there were conditions as far as expansion of the business, and I said, what does this mean? What. kind of limitation does this put on us? And I was told that the business would have to go in a completely different direction in order for it to be, not to conform to what the present business condition was, and what would be considered permissible. MR. CLEMENTE-I guess that's all we have on the circumstances leading up to it., and again, this is offered merely to establish that we didn't self-create· the haTdship. That's the only purpose for which it's being offered~ We're not making any comment in front of this Board on' the circumstances, other than as they affected us. Now, I understand there are communications from the public, and if you have no objection, Mr. Carvin, I'd like them read into the record. - 16 - ~ Queensbury ZBA Meeting 9/28/95 MR. CARVIN-Okay. Does anybody have any questions of the applicants, at this point, before we go to the public? MR. THOMAS-Not me. MR. CARVIN-Okay. MR. CLEMENTE-I'd like to observe, what you probably already know, since you visited the site, on the second numbered paragraph 267- 2(b) "That the alleged hardship relating to the property is unique and does not apply to a substantial portion of the district or neighborhood." That this is a piece of property that is bordered on one side, as the summary said, by a heavy construction business, with heavy trucks going in and out, and a great deal of act.ivity, a long standing, substantial heavy highway and building construction business in Glens Falls, and the other side there's a vacant lot, and then there are two or three houses, and you will, I believe, find letters in the record supporting this application from the people who live at those houses. Beyond those houses is a commercial facility where one would rent storage. I don't know what you'd call those, those sort of tinny shacks that people rent, and then you get to the corner, there's no further structures. Behind the property, it abuts a car dealer (lost words) on that main highway. Across the street is an apartment complex, with hundreds of units, and that's about all you can see when you're here. So the only single family residences are next door, I believe, you'll find that at least two or three of them have sent you letters that say they support this application. So that's the character of the neighborhood, commercial activity nearby. So, we submit, respectfully, that this unit, if granted, would not substantially alter the essential character of this neighborhood. If you have any questions? There's some comments, we'd just like to add to the comments you already have. It's a comprehensive, the Staff comments were thorough, covered all the issues. With respect to the second parcel, Staff observes, if we have a hardship, how could we buy that? We're not saying we can't (lost word) business, and that the property is valuable for the business, and Staff observes there's a wetland. That doesn't mean it's not very useful to the business. Wetlands doesn't mean we can't do anything. There's a lot of uses which are exempt from wetland regulations, and part of the property' is not a wetland. MR. CARVIN-Can you give me a couple of examples of what. might be used? MR. CLEMENTE-Agricultural use is exempt. It's defined in 6NYCRR663. It's a very flawed definition. You can selectively log a wetland. You can clear the brush from wetland to use for agricultural uses. You can, about all you can't do is build a structure and fill. Secondly, the boundaries have never been surveyed. This is this map which is attached for this parcel, was prepared on the basis of (lost word) a photograph. The next step, if something was to be done, is we'd ask DEC to come and give us the precise boundaries of the wetland, if it exists. It could be greater or lesser than the map indicates, but to me, that wetland is not a useless piece of property. We expect to return from it. The only way we can make a return from this property, frankly, is agricultural, and that's what we propose, and the definitions within 6NYCRR663, for agricultural activity, which is exempt from wetland )"egulation, clearly cover the storage over the winter of (lost words) trees, the purchase of two or three inch (lost words) which might be left there for a few years until it's useful, and things like that, to be used in the landscaping business. So we're frank about it. It was purchased for $1700 in May. It was purchased for the business, and if it can't be used for the business, it can return anything, and I'm not even sure that (lost words), and lastly we intend to - 17 - Queensbury Z8A Meet.ing 9/28/95 put no structures on it, nor to fill it. MR. MARTIN-While we're on that topic, there is a Wetlands Permit required from the Town, and I would look into the local wetland law. MR. CLEMENTE-I believe, if we propose to do any regulated activities, that's absolutely correct. However, I think if you look at the Town regulations or DEC regulations, there's no permits necessary for agricultural act.ivity, but in any event, this Board's jurisdiction is as to use. We would comply with the law, the St.ate and local law, should we seek to undertake any activity on the property. MR. CARVIN-Okay, but I think that this, and I don't want to open up a can of worms prematurely, but I think this may eventually lead into the expansion of the use. MR. CLEMENTE-We're applying for lawn care, landscaping, and nursery. and without limitation on the property. The use is the use. We would respectfully submit you can't paint with a very fine brush here and say that, well, you have to limit your business to $100,000 a year or $200,000. As long as the use is precisely that, we can fully use the property for that use. We intend no retail sales. The plant material that would be there, if it was put in the ground, would be there temporarily, because it could be purchased cheaply from a major nursery in Pennsylvania or New Jersey, because they're dumping something, and we would hold it until it could be sold as part of the landscaping end, for some person in the area that was employed in the business. That's the only plant material there would be. If there would be, if you get 600 bare root, eight inch whatever, that somebody was giving away, might put them in the ground, because you know when they get to be four feet high, and they're cherried and they're flowered, we can add them to the landscape, people that employ you, and they would virtually cost' you nothing. That's the kind of use we're t.alking about. in connection with this business. That's what we would intend to do. You say expansion. Yes. He could conceivably expand into every usable inch that's authorized. That would be our right, we believe, to be successful. So we're asking to have that. parcel, we're not really sure that we'd need your permission for the agricultural activit.y on the parcel. There's no structures and no fill, and if you have no objection, we'd like you to indicate that you have no objection. Whether it's necessary or not, I don't know. We intend no structures. MR. KARPELES-And you say there'd be no retail sales? MR. CLEMENTE-No retail sales. The only nursery use is the, I was over there, saw it for the first time, four weeks ago, and the driveway was all green because Peter was storing sod for a week that he was using on the job, grass sod, but it's temporary storage of plant material, but that's not to say we're not going to put trees there for a bunch of years, if something needs to grow a little bigger. So, yes. There is a wetland. It's valuable to us, probably to nobody else, and we paid $1700 for it, and we'd like to make a return on it, and we don't know if we need your permission just to put a plant in the ground. Does Mr. Martin have a view on that? MR. MARTIN-Well, I was just reading the definition of regulated activity from our wetland law. "Any form of draining, dredging, excavation, removal of soil~ mud~ sand, shells, gravel or other aggregate from any freshwater wetland, either directly or indirectly, any form of dumping, filling, or depositing of soil, stone, sand, gravel, mud, rubbish of any kind." - 18 - - Queensbury ZBA Meeting 9/28/95 MR. CLEMENTE-We wouldn't propose to do any of that. We propose to dig a hole, put a tree in it, and put it back. That's agricultural use, which under the statute and the regulations is exempt under the wet.land regulations. The matter for this Board is whether the use of 1,2,3, and 4 under the statute. We comply with the law, as to that wetland, fully and completely. With further respect to the memo, I want to make sure that where she said she needed more information from Mr. Phair, we'd give it. I think we've told you where we think we are on the third unit and how we got there, unless you have any questions on t.hat.. We could explain paragraph five, if you'd like, although we don't think it relevant, and I hope you agree, it's not as bad as it's written there. We'd like to announce that Peter sold his camper. It's going to be moved out tomorrow. He's had his hunting camper out there, and it's sold. So that's going to be gone. I don't think that was an illegal use, since he lives there, and h~ put it out on his lawn. He is trying to be a lot more sensitive as to how the place looks, and to deal with people's concerns. On the matter of the recommendation, if it is a recommendation, in paragraph four, that we be limited to nursery activity in the area, and other places, the only reason we're here is because we want to do those things here, and we plan to do them, and they're integral to making money in the landscaping business. If you can get a good buy on twenty rhodies, you buy them, and just hold them until, dress them up and keep them pruned until you can use t.hem in somebody's yard. Doing all this stuff elsewhere would make this property useless for the business. So we think Mr. Jenkins test.ified that you can't make money in lawn care, something Peter learned four years ago, and that's why he went into landscaping. Perhaps I'd like Carol Phair to address whether, in her (lost word) she's kept the books all these years, you can make money if you just cut grass. MRS. PHAIR-No. Mowing prices are very competitive. With our expenses, related to our employees, we have three full time employees, we have perhaps two part time employees in the early part of our season, when we have a heavier workload. Things such as compensation, unemployment insurance and so forth make it e:.:tremely difficult to cover your employee expenses and your machine expenses and still be able to mow a person's lawn for $20. It's almost impossible to make any profit at all doing that. Our employees are laid off. Our business is approximately nine months a year. Our employees are laid off during the winter months. They do have some limited work when snow comes, but that's not. a major focus of our business, and so we do have higher unemployment expenses, as far as insurance is concerned, than the average business which operates twelve months a year. MR. CLEMENTE-We want to be as frank and open can. We've tried to address everything that application. Call it our omissions because word). If you have any other questions. and factual as we we left out of the we weren't (lost MR. THOMAS-Not right now. MR. KARPELES-No, not. at the moment.. MR. GREEN-Just one quick one here about the branches and grass clippings and whatever, that probably didn't originate on the site, according to our Staff, it's not a permitted thing to do, to bring off-site refuse on to your property and dumping it. If you want to address. MR. CLEMENTE-We would submit that part of the landscaping business is when the trucks come back, they may temporarily store the clippings and the grass, and Peter has a dump permit, and t.akes it to t.he dump when he collects enough for a truck, and it might have been left over. That use, we would respectfully - 19 - Queensbury ZBA Meeting 9/28/95 submit, is appropriate to landscaping and nursery business, that you need a place to store your sod before you sell it, or you need a place to bring your clippings back to. If the law doesn't permit a dump, and Peter turns out. to be dumping, that somebody should bring an enforcement action that precludes him from doing that. He does not believe he's dumping. He's temporarily storing the stuff, and it goes where it's suppose to go. Yes. There's stuff in there that came from elsewhere, that's going to the dump. MR. THOMAS-Does that include the cement blocks, the wood? MR. CLEMENTE-No. Pet.er, do blocks are there for? The there for. you want to tell us what the cement wood, I don't know what that wood's MR. THOMAS-It's lumber, not wood. MR. CLEMENTE-Or Carol? MRS~ PHAIR-The construction material we've been sorting and cleaning. Some of it was used in the repair of the house. We do have a person in construction who wanted to come by and look at it, see if any of it was useful to them. If not, it will go to t.he dump. A lot of what was back behind the garage is being sorted, to t.ry and organize the yard and get things in shape, and we will be taking things that are not useful to us to the dump. MR. THOMAS-Where'd the cement blocks come from? MRS. PHAIR-The cement blocks we were using to help level the parking area behind the garage. We were under the understanding that it's considered clean fill, and that's what we were going to do with it, was to level that parking lot. MR. CLEMENTE-Were you going to break them up and make them gravel, basically, and spread them out into a big puddle there? into back MRS. PHAIR-Yes, because we are trying very hard to get as much as of the equipment behind the garage as possible. That way, none of it is visible from the road. MR. CLEMENTE-What about the battery? What's that? MRS. PHAIR-The battery is going to the dump. It happened to come in in a truck which bought the concrete blocks. When we sorted through it, we found it. In fact, it has gone to the dump. My husband took it. MR. CARVIN-Okay, any other questions, gentlemen? MR. MARTIN-I just. want to add, in reading our local wetland law, I think Mr. Clemente is right, that it would be an exempt act.ivity, from our permit. MR. CLEMENTE-Yes. I have 663.2, the definition agricultural activit.y, which runs a page and a half. of C, MR. MARTIN-Well, I'll read our section. It says, "The activities of farmers and other land owners in grazing and watering livestock, making reasonable use of water resources, harvesting natural products of wetlands or adjacent areas, selective cutting of timber, draining land or wetlands for growing agricultural, products, or otherwise engaging in the use of wetlands or other land for growing agricultural products." MR. CLEMENTE-We plan to do no draining, but there's also - 20 - -' Queensbury ZBA Meeting 9/28/95 selective cutting of trees, clearing cutting vegetation other than trees for growing agricultural products, and I believe the local rules have to be consistent with the State rules, but there's a bunch of things that make this property valuable, probably only to a nursery or a farmer, but in any event, we've talked to you about what we plan to do. MR. CARVIN-Okay. Is there anything else that you'd care to add to your application? MR. CLEMENTE-Yes. We'll get to the incoming letters, we ask that the tabling proceeding be preserved, so that we could have a copy if we so choose. We've addressed the expansion of the business, and I would like to reserve (lost words). MR. CARVIN-The format, normally what we do is we allow the applicant to add any additional information after the initial reading into the record, then open up the public hearing, in other words, allowing the public its opportunity to either support or oppose the application. We then read in the correspondence, and then we close the public hearing, and then we have additional, we may have additional questions of the applicant., and at that point, if t.here were any additional comments. MR. CLEMENTE-I want to offer Peter a chance to speak for himself, here. MR. P. PHAIR-I would just like to say, personally, right now, I feel I've been used by the system. I've tried to comply from the very beginning, and I've been up front with people. I received a letter, I put myself out on the line, financially. I've got my parents backing me. I've tried to do everything nice.' I mean, I've gone across the street, offered out my hand. I was bitten. I've gone to my neighbors. I've asked how I can improve. I've done that. I was asked by the Town to clean up my property, and I took care of that. Basically, I was forced into cQming before the Board, which I didn't feel I had to, because I already had agree with the Town, what I was going to do, how I was going to do it, where I was going with my business, and that's what brings us here today. That's about all. MR. CARVIN-Thank you. MR. CLEMENTE-I think that's it, probably more than enough for us. Thanks for bearing with us. We had to make the record clear. MR. CARVIN-Okay. hea ring. At this point, I'd like to open up the public PUBLIC HEARING OPENED MR. CARVIN-Any correspondence? MR. THOMAS-Yes. We have four letters. A letter dated August. 9, 1995, addressed to James Martin "Dear Mr. Martin: This letter is in reference to a severe problem that the residence of Regency Park are suffering with, namely the occupants of 94 Meadowbrook Road. Apparently a lawn care business is operating from this residence. The place is cluttered with large trucks and flat bed vehicles. They are in and out all day long to unload their rubbish. A chipping machine is in constant use sometimes until 10 PM. The residents of building 6 have had to keep their doors and windows closed during these hot days to deaden the sound of loud grinding and pneumatic hammering. Recently, two county dump trucks made many trips to this address and deposited fill in the rear and side of the building. I could go on furt.her, however I think you must get the picture. We have a large number of people - 21 - Queensbury ZBA Meeting 9/28/95 in this building that are conducting a business, and do not have any consideration for others. I am looking forward to t.he proposed hearing at the Queensbury Town Court on August 28, 1995. Thank you for your cooperation. Sincerely yours, Mary K. Zibro Accredited Resident Manager" A letter dated September 1995, addressed t.o Mr. Fred Carvin, Chairman "Dear Mr. Carvin: I am a r~sident of the Town of Queensbury, located at 121 Meadowbrook Road. I am aware that Peter Phair of 131 Meadowbrook Road is requesting a use variance for his business to operate from that location. I feel I can support his application. My comments regarding this matter are as follows: I currently reside next door to Mr. Peter Phair's. I have no objections at all against his business being run from 131 Meadowbrook Road, Queensbury, NY. Since he has purchased the property he has made improvements to the property and the home. The house has been cleaned up and painted. The vacant lot bet.ween us has been cleaned up and mowed for the first time ever. There is a buffer of trees between us, which is fine. I do not want any fence on any of our property lines between us. We get along as neighbors and I expect it to continue. The business has created no problems with my residence. Please forward my comments to the Zoning Board for their consideration. Thank you. Michael D. Cleveland" A letter dated September 1995, addressed to Mr. Fred Carvin, Chairman "Dear Mr. Carvin: I am a resident of the Town of Queensbury, located at Meadowbrook Road. I am aware that Peter Phair of 131 Meadowbrook Road is requesting a use variance for his business to operate from that location. I feel I can support his application. My comments regarding this matt.er are as follows: Mr. Phair has been a good neighbor and his business has not caused us any problem. Please forward my comments to the Zoning Board for their consideration. Thank you. Russell E. O'Connor, E & T O'Connor, Inc." Another letter dated September 1995, addressed to Mr. Fred Carvin, Chairman "Dear Mr. Carvin: I am a resident of the Town of Queensbury, located at Meadowbrook Road. I am aware that Peter Phair of 131 Meadowbrook Road is requesting a use variance for his business to operate from that location. I feel I can support his application. My comments regarding this matter are as follows: Since Peter Phair moved to 131 Meadowbrook Road two years ago, he has improved both buildings and grounds. The business he )"uns from there invo.lves only his trucks in and out only a few times a day. So I have no problem wit.h him being allowed to operate from there. O'Connor is his next door nei~hbor and they have a lot more trucks and big equipment in and out and no one seems to mind them. Please forward my comments to the Zoning Board for their consideration. Thank you. Edward Oudekerk 117 Meadowbrook Road, Queensbury, NY 12804" MR. CARVIN-Okay. MR. KARPELES-Could somebody indicate on the map where these people are that are objecting, and where the people are located that are not objecting. MR. CLEMENTE-We have a map which we can present. MR. KARPELES-Sure. I'd like to see that. MR. MARTIN-I have a map with names on it. apartments are across the street. Obviously, the MR. CLEMENTE~For the record, one of the individuals lives directly next door, in a single family house, not the objecting one, one of the favoring residents. MR. CARVIN-This is O'Connor, here, and this is Cleveland, and this is Oudekerk's. - 22 - - Queensbury ZBA Meeting 9/28/95 MR. CLEMENTE-The only opposing is the manager of the apartment complex across the street. I'll note for the record, t.here's no record of any statement from any resident of the complex, other than the manager. MR. CARVIN-Okay. I just have a question of Staff. The letter from the apartment complex indicates a court date back in August. MR. THOMAS-August 28th. MR. CARVIN-All right. Were they, again, were all the residents notified? How did you notify of this application? MR. MARTIN-It would have been sent to the owner, which probably would have been the Apartment Manager, the Apartment Management Off ice. MR. CARVIN-Okay, but it was sent, to the best of your knowledge? MR. MARTIN-Yes. MR. CARVIN-We wouldn't send it to all the residents, under normal circumstances? MR. MARTIN-Typically, they're not reflected on a, you know, this is based on the tax rolls, and they're not reflected as the owner's of that parcel, obviously. So they would not be notified directly. MR. CLEMENTE-For the record, the Phairs went to the manager and asked them if there was any changes they could make that would minlmlze on the apartment complex, and were told by the person who signed the letter that they weren't going to talk to them, that this was being handled by the Town Attorney. So, although we reached out in an attempt to discuss with the apartment complex what we might do to make their perception of their life better, they weren't prepared to have a conversation. We also talked to all the other neighbors. We didn't find any neighbor that was opposed. MR. MARTIN-Is there anything that can be done in terms of hours of operation? Because that's what .I've heard continually, is the chipper and things like that. Could that be done between nine and five, or something like that? MR. CLEMENTE-Well, this is seasonal, and it.'s dawn to dusk. work very hard. They start when it gets light, and they when it. gets dark. They quit MR. MARTIN-I understand that, but I think you have to recognize that you are, to some extent, surrounded by residences. MRS. PHAIR-Actually, the chipper, we do not own the chipper. We rented a chipper. It. is an occasional operation. In fact., we were using it to clear some brush behind the garage. It was not that we were in the process of chipping brush from our customers. It was for our own use, trying to prepare. MR. CARVIN-What about the pneumatic hammer? MRS. PHAIR-We do, we have pneumatic tools for truck repair. MR. P. PHAIR-And a compressor. hasn't been around since last because we were clearing the basically from nine until five. a late night, seven o'clock. nine o'clock in the morning. As for the chipper. the chipper year. It was before the winter, back lot. My business runs My employees don't work, if it's They don't leave the site until - 23 - \-J Queensbury ZBA Meeting 9/28/95 MRS. PHAIR-I do think that if they are in the process of truck repair, we can try to be aware of the fact that if we are, if the doors are open, that the sound may carry across the road, and we can make an effort to, as far as pneumatic tools are concerned, to tTY and make sure we work inside the garage and shut the door. MR. CARVIN-Okay. There was reference to County trucks. MR. CLEMENTE-Yes. The County trucks brought in sand from the roads. They have a place to dump it. We spoke to them. We offered them the opportunity to put the sand in the driveway and help level it out, and they brought as much sand as they wanted to give us, and they gave it to us, and that's what the trucks were there for, to level out the driveway, which is almost done, by the way, a little more concrete, a little more sand, and we're able to put the trucks behind the 9arage. MR. CARVIN-I guess my only real question is, do you feel that we have adequately noticed this? Because what I'm hearing is that there was another action before coming before this Board, and I truly do want to be fair to all parties concerned here. MR. CLEMENTE-With all due respect, that woman could have turned out 20 people if she could have gotte~ them here, and she didn't even come herself, although she said in her letter that she was. That. person who wouldn't. tal~ to us knows ~ull well she could at least could have been her herself. MR. CARVIN-Okay. Well, that.'s what I'm trying to establish. MR. DUSEK-For the record, Paul Dusek, Attorney for the Town. There was an act.ion that was brought. in connection with this matter, by the Code Compliance Officer, and it was brought to my at.tention, I don't. know, a few weeks before it was supposed to go to trial. During the course of preparing the case for trial, I had conversations with the Code Compliance Officer. I also had conversations with, of course, the applicant's attorney. I also, though, h?d a brief conversation with a gentleman who lived in Regency Park Apartments, who was objecting to the activities, who I have ~ot heard anything from or about tonight. So I'm not sure whether he knew about this or not. I believe he was a resident in the apartment. So I guess, to ans\.<Jer your question, I'm a little surprised that we haven't heard from him, because he was really quite concerned about the activities. MR. CLEMENTE-He's a retired policeman. He comes across the street and photographs the place. He's had videos of it. He won't speak to Peter. Peter wants to talk to him about what he can do to make life easier, and he won't speak to him. MR. P. PHAIR-This gent.leman's outside three or four times a day. He'll walk a couple of feet, look at my property. If I come out, he'll continue on. He'll move to the other side, and then he'll look at my property again. This goes on three, four times a day. His next door neighbor, when I was painting the house, she came out and said, looking nice, great color. MR. CLEMENTE-This is a resident of Regency. MR. P. PHAIR-I've spoken to many of them. When I was painting the house, I pressure washed in April, it looked awful. I mean, I lost 80, 90 percent of the paint. It was white and brown. It looked so commercial, and now it's beige with light green. I mean, I'm trying to soften the effect. I put up 50 feet of fence trying to ease the appearance from the front to the back. I'm just trying to be friendly, make my residence look better. Obviously, I'll get a better rental price for it. I mean, I've been more than compliant. If he has a problem, I would have - 24 - '-- Queensbury Z8A Meeting 9/28/95 gladly accepted him coming across the street, and I would have tried to make him happy. MR. CARVIN-Okay. Well, again, just for the record, I want to make sure that our bases are covered, that we don't have somebody come back and say that they weren't properly notified, and I just want to make sure that we are very comfortable with the fact that we have published this in the newspaper. MR. DUSEK-That's the next point I was going to lead to. I cannot give you, as I sit heré right this minute, an opinion that your publication was, in fact, in compliance with the law. I did not handle the publication. I have not seen the publication. I don't know who was noticed. I haven't even read the provisions of the, I mean, I know I've read them in the past, but I haven't, certainly, reviewed the provisions of the Ordinànce to make sure that they were, in fact, complied with, as would be required. So I can't give you that right this minute. Certainly I can give it to YOU at a later date, once I've had an opportunity to examine t.he facts and the law, but right off the top of my head, I can't tell you that it's been done or that it hasn't been done. MR. CLEMENTE-For the record, the people that talked to us said that they had àlready heard from the Town, and obviously, the manager of Regency Park, the record reflects she knew of this hearing tonight, and she has communications with all the people that live in Regency Park, and she is not here. JIM PHAIR MR. PHAIR-Jim Phair. I'm Pete's dad. Tuesday afternoon, at approximately 3:50, I approached Mrs. Zibro at Regency, in her office. I sat down. I worked at Regency Park, doing apartments and their landscaping, in fact, 1983. I specifically asked her if there were any complaints of her tenants, and she came up with nothing. She did come up with one complaint, and it was her complaint, simply saying that the noise of sanding cars when she t.akes a walk in Regency. That was her complaint. Now, if you look back in the records of 1983, you're going to find that Mrs. Zibro made the same identical complaints against Mr. Mercure, almost verbatim. So it's not unheard of, and she's a chronic complainer. Thank you. MR. CARVIN-Okay. MR. KARPELES-Well, Jim, in your opinion, was proper notification given? MR. MARTIN-Again, we did our standard notification. feet notices off the tax map. We do 500 MR. KARPELES-That was done? MR. MARTIN-Yes. They were done, as to the exact content of that notice, I have to say, like Paul, I don't know exactly what was written, but it was standard procedure like we do with every application. MR. THOMAS-I could tell you exactly what was written. MR. MARTIN-Yes, the list is in the file. MR. THOMAS-The list is in the file and there's the notice, right there, or a copy of it.. MR. MARTIN-The list is in the file, of the property owners notified. - 25 - Queensbury ZBA Meeting 9/28/95 MR. THOMAS-There's the list of the property owners notified. MR. CLEMENTE-Let the record reflect that one of the people who wrote the letter, the man in the house next door, attached the notice he received. MR. THOMAS-That's right, it right there. MR. MARTIN-What's the notice say, Chris? MR. THOMAS-It says "Notice of Public Hearing Pursuant to Section 179-103 of an Ordinance of the Town of Queensbury entitled Zoning Ordinance of the Town of Queensbury and Sign Ordinance, NOTICE IS HEREBY GIVEN that the Board of Zoning Appeals of the Town of Queensbury will conduct a public hearing on Thursday, September 28, 1995 at 7:00 p.m. at the Queensbury Center, 742 Bay Road, (reasonably accessible to persons with mobility impairment) to consider the following variance application: PETER J. PHAIR Owner: same as above Applicant proposes to conduct a landscaping business at 131 Meadowbrook Road, which is in a Single Family Residential zone, Section 179-20 where this use is not allowed. Location: 131 Meadowbrook Road, Tax Map No. 57-1- 7, 59-2-8 in a SFR-1A zone. TOWN OF QUEENSBURY DATED: Wednesday, September 20, 1995 SIGNED: Christ.ian G. Thomas, Secretary - Zoning Board of Appeals Town of Quee~sbury, WaTren County, New York THIS NOTICE IS GIVEN IN ORDE~ THAT YOU AS OWNERS OF PROPERTIES IN THE IMMEDIATE VICINITY WHICH MIGHT BE AFFECTED MAY APPEAR AT SAID HEARING AND BE HEARD WITH RESPECT THERETO. Use Variance No. 70-1995 Type: Unlisted Home of Natural Beauty...A Good Place To Live Settled 1763" MR. CARVIN-Okay, and I do have an indication that a letter was sent to Regency Park Associates, 800-19 New Louden Road in Latham, NY 12110. It looks like another letter was sent to Plaza at Latham Associates, again, at that same address of 800-19 New Louden Road in Latham, I'm assuming ~hat that must be a dual par cel, ma)ibe? MR. MARTIN-Yes. I think the apartment actually exists on two parcels, OT the holdings for that contain two parcels. MR. KARPELES-When was that sent? MR. CARVIN-Well, interestingl~ enough, I don't see a date on here. MR. THOMAS-It was probably sent the same day it was published. MR. MARTIN-I t.hink they were sent at least two weeks, ten days ahead of time. MR. CLEMENTE-I think if you look at the post mark. You have not only the notice, but t.he envelope. MR. THOMAS-You're right. It was postmarked September 22, 1995. MR. CARVIN-I was going to say. I've got a date here, it looks like Wednesday, September 20th. MR. MARTIN-That's probably about right. MR. CARVIN-I'm not positive on that. I don't see a date on, I do see a tick mark, and I'm assuming that indicates a letter being sent~ . MR. CLEMENTE-With all due respect, Mr. Carvin, whether she got a letter or not, she's clearly on actual notice of this hearing, because in her letter to you, she says she looks forward to - 26 - - - Queensbury zeA Meeting 9/28/95 seeing you here. MR. CARVIN-Well, no, actually, that's the reason I'm asking the question. In her letter she indicates a court appearance back in August. MR. THOMAS-Yes. That's when she says she looks forward to seeing us. MR. CLEMENTE-Now that letter, what's the date of that letter? MR. THOMAS-August 9, 1995. The last. sentence is, "I'm looking forward to the proposed hearing at the Queensbury Town Court on August 28, 1995." MR. DUSEK-And appearances. that court hearing was adjourned without MR. CARVIN-So, she wasn't there either, is that what you're saying? MR. DUSEK-I wasn't there. MR. CARVI~-You wéren't there. MR. CLEMENTE-We're willing to accept that opposed. the apartment's MR. CARVIN-Well, again, I'm somet.hing should come back, properly notice this meeting. just, that by for the record, in all appearances, we case did MR. DUSEK-The other thing I should mention, because I am aware of it, Regency Park changed hands not that long ago, and was also going through, a few months ago, some bankruptcy proceedings. So, although I hate to belabor the applicant, I am a little concerned as to whether or not notices were successfully del i ver ed . I have to say t.hat. That's the only thi ng I'm concerned about. MR. THOMAS-Here it is right here. notification. Date mailed 9/20/95. Five hundred feet legal MR. GREEN-And once they're mailed, doesn't that satisfy what we need to do? MR. THOMAS-Yes. MR. DUSEK-And also, just so I can advise you of the law in this regard, the law does not require absolute and actual notice of every single person. What the law requires is that there is a general compliance with the requirements. Like publication would be absolutely essential, for instance, in the newspaper. That would have had to be done. Notification to the neighbors would have to be done. There have been cases where one neighbor didn't receive notice, and that was not sufficient to overturn the case. It's a matter of substantial compliance with the requirements of the Ordinance and the requirements, the only reason I mentioned what I mentioned earlier is because the Board made inquiry as to a concern as to whether or not. the Regency folks got notice. MR. CARVIN-Okay. Well, my only is of the applicant, of the receive, they do appear to be letter that was proposed by the other question is that, and this other three let.ters that we did a form letter. Is this a form applicant? MR. CLEMENTE-It certainly was. wanted to know if they wanted us We visited every person. We to do anything. We told them we - 27 - Queensbury ZBA Meeting 9/28/95 wanted their support, and I would note in the letter that the only part that's a form is the first sentence, and that the rest of the letter is in the hand and the words of the individual. MR. CARVIN-Right, and I can confirm that. Did you approach, just as an aside, any of the individual apartment people? MR. CLEMENTE-Yes. We talked tried to talk to the old man, who has been filing the complaints, and we tried to talk to the woman, who the records indicated had opposed Mercure's application, and who we knew, who Mr. Phair had worked for in the past, to see if we could do anything that would minimize the impacts on her, and see if we could resolve any of her problems. So, in essence, we talked to everybody who would talk to us. MR. CARVIN-Okay. MR. CLEMENTE-And the record reflects that we talked to other t.enants who praised the fact that the property has been cleaned up and pai~ted, tenants at Resency Park. Mr. Phair made that statement. MR. CARVIN-Okay. No additional correspondence? MR. THOMAS-No. MR. CARVIN-Then I will close the public hearing, if there is no other public comment. PUBLIC HEARING CLOSED MR. CARVIN-Okay. here? All right, gentlemen, what's your pleasure MR. GREEN-Well, I have to ask Mr. Martin a question. Typically, in a situation like t.his, when someone comes in and gives you some information as to an existing condition. MR. CLEMENTE-With all due respect, Mr. Green, unless you think it's relevant, we think we've made the showing in the statute, independent of Mr. Martin or his letter, only for the purpose that this.didn't have anything to do with us, and that the property probably would be entitled to a Use Variance, even if we didn't have the letter, and there's no evidence opposing any of the evidence we've given on the four points. So we're not. asking you to get into this. MR. CARVIN-Well, I think this is ~ opportunity to explore any other facets that we may feel relevant in rendering our decision to approve, deny, or table this particular motion. MR. CLEMENTE-We just want to make clear that we're not inquiring, we don't. think you need to get into this proceeding to the specifics of Town action, but that's your prerogative, clearly, but we're not asking for that. MR. GREEN-To continue, if someone were to come in and give you some information, is there a research procedure involved to verify that information? MR. MARTIN-There is now, and there was some time after this point. Ido make an attempt nOvJ, vJhen a parcel comes in, and a use lik. this is proposed, I would research it. At the time, that was not the procedure, and I went on the information that was given to me then, I think it was a realtor at the time, that represented it, and he represented that. a variance was in place on this property, and I took that at its face value, and the letter was writ.ten. - 28 - Queensbury ZBA Meeting 9/28/95 MR. GREEN-A question for Mr. Dusek. We had something very similar to this, not too long ago, with a building permit. A permit was issued on incorrect information, and it was revoked by this Board, and the permit was taken away. Are we having that same situation? MR. DUSEK-Well, I think every situation's a little different. This one is different, again, in terms of what you have before you. I think, here, you have an established use, or not est.ablished use, but lets say established buildings that. exist on a site that have not been changed or altered. I don't think that's the issue here. The issue is, is that whatever was going on on the site before these people purchased that property lead them, apparently from their testim6ny, to purchase the property, which is kind of a different situation, in terms of what transpired here, and I think that what you have to look at is that, plus the fact that they did come to the Town and ask for, you know, look at what were the uses that are allowed on this property? Can we do this nursery lawn care business, and obviously the letter in the record speaks for it.self, that the Town did give some indications. That's, I think, different than the other situation I think you were thinking of. I don't. see a comparison there. I will say this, though, for the record. A municipality is never estopped from enforcing its Zoning Ordinance, I mean, even if there were errors made. MR. GREEN-Well, that was my question, is what type of ground are we on here, to not allow the variance because, lets say, I feel that it's not allowable, simply because the letter was there. I mean, what sort of rights does that give th~ Phairs? I know L feel they acted in good faith from th~ star~, but. I'm just curious as to what sort of legal ground. MR. DUSEK-I think in terms of the application that's before the Board, you really want to take a look at the Use Variance criteria, that test, and that should be your guidarice as to whether or not a Use Variance is granted, because that's what they're here for. They're not here, really, contesting the issue of Mr. Martin's decision. Rather what they're here for is they're saying, we want a Use Variance, and I think your Board should look at that criteria, and make a determination as to whether or not you feel they've proved that criteria. Now, legally, if you feel that they have proved those elements, then I think you're legally bound to grant them a Use Variance, but if you feel that you shouldn't grant them a Use Variance, you have to be able to look at one of those criteria and say, well, here's where I think, or more than one, as to why they should not have a Use Variance. MR. GREEN-Okay. Thank you. MR. KARPELES-I've kind of switched my opinion since I've come in here. When I came in I wasn't overly impressed with the property, when I walked back there, but listening to the letters and so forth, that you've improved it. Evidently, it was worse than it is now at one time, and the favorable opinions of the neighbors, and looking at the criteria for Use Variances, I think I could go along with this. MR. THOMAS-The only thing that bothers me is, where did that third apartment come from, and when? MR. CLEMENTE-The third apartment was built by Mr. Mercure. The records of the Town indicate clearly that it was constructed and lived in, in his applications I believe, which I've reviewed with Mr. Dusek, for each of these Vaì" iances, he said it was there and he lived in it. - 29 - Queensbury ZBA Meeting 9/28/95 MR. DUSEK-I may be able to be helpful, though, for the Board in that regard. I not.ice, when you read the advertisement, which to me would be controlling as to what your consideration is, that the only matter before the Board is a Use Variance for t.he nursery lawn care business. I don't feel, I mean, it's up to the Board, but I don't see ~.Jhere that matter W3S made before you as part of the Use Variance. So, if there is an issue or a concern about the third apartment, I think that the Town could certainly continue to pursue and investigate that, as well as address that as some fut.ure date. I don't think your decision has to incorporate that third apartment or somehow indicate it's allowed. MR. CARVIN-Well, I normally agree with you, Paul, but I think on his application he says, proposed use of the property, the changes you will be making, and it's got residential/three units. MR. CLEMENTE-We expressedly applied to this Board to legalize that (lost word) that wasn't legal already. MR. CARVIN-That third apartment. MR. DUSEK-The problem you have, though, is I didn't hear that read in the advertisement, unless I missed it. MR. THOMAS-No.; Well,I read you the advertisement, right down to "A good place to live". MR. DUSEK-I would be concerned about the notice requirements of the law in that regard. MR. THOMAS-"Applicant proposes to conduct a landscaping business at 131 Meadowbrook Road, which is in a Single Family Residential zone. Section 179-20 where it is not an allowed use." That's all it says. It doesn't say anything about the third apartment, as the application does. MR. CARVIN-I was going to say, the application does. MR. MARTIN-I did go back and look at the old zoning. It was UR- 5, and Duplex was a permitted use, mult.i family was subject to sit.e plan. MR. CLEMENTE-So maybe we have a prior nonconforming use. MR. MARTIN-I think you may, in terms of the two units. MR. THOMAS-Yes. What ~ was getting at, Paul, was the applicant had used the third unit to prove the Number One criteria for a Use Variance, applicant. cannot realize a reasonable return. MR. CLEMENTE-With all due respect, Mr. Thomas, if you take the rent from the unit out, it gets worse. So, if you say we can only use it as a two unit, we'd have a bigger loss. MR. THOMAS-The point is, you included it. MR. CLEMENTE-I included it to establish that, even with the rent, I have losses. I need the business and I want the rent. The rent, under no circumstances, unless I'm missing something, under no circumstance, do you have a property that can give you a reasonable return as the Statute sets up that criteria. The rent from the apartment helps us get there. MR. THOMAS-But, see, it was included in your presentation. MR. CLEMENTE-Yes, and I amended it to tell you what the numbers were if we took it. out. They're bigger. - 30 - - Queensbury ZBA Meeting 9/28/95 MR. THOMAS-Yes. Right. MR. CARVIN-I think that supports the landscaping and nursery lawn care argument, but I think we may have a challenge on the other. MR. THOMAS-Yes. MR. CARVIN-I'm almost thinking that, you know, we might want to move ahead. Again, I don't have a real challenge on the landscaping. I mean, I guess I don't have a real challenge on the three units, because of the long term, but I do have a problem with the legality of the whole thing. MR. THOMAS-Yes. How's that going to wash? in the application, residential/three nursery, and lawn care, and it was only nursery, landscaping. Because it says right units, landscaping, advert.ised as the MR. DUSEK-It's my opinion that you're controlled, or you should be controlled, by the advertisement, that that is the relief that is properly before this Board, even if the application should ask for something different. To give you an example, if an applicant comes in and says, I need a 10 foot setback from, say it's a 30 foot setback requirement, and he needs to be 20 instead of 30, and when he gets done through the process, it turns out that instead of being only 20 feet, he needs to be 15, or another 5 feet closer. I don't think you could grant relief in that instance, because it wasn't. advert.ised for that. On the other hand, if he comes in, and he says, I need to be 20 feet away, and you find out you can get him 22 feet away, I think that's permissible, because you're going with less than what was asked for. When you go with more than what was advertised, I really think you could have some legal problems. Because you know what's going to happen, the people out there could complain that, well, we didn't know about this. Had we known that the apartment was the issue, we would have been in here, but we thought it was just the business. MR. CLEMENTE-Could I consult with Mr. Dusek for a second. MR. CARVIN-Well, I don't know, Ch,- is, what was your idea here? MR. THOMAS-My idea was to table it and re-advertise it, so that. the three units were included in the advertisement, just to keep everything legal. MR. CLEMENTE-With all due respect, we would rather have this come as a separate mat.ter. MR. CARVIN-I was going to say, we actually have two separate courses, I think. We can move on what we've got. In other words, I'm assuming that, and again, I've only got four members here, out of a seven Board. MR. CLEMENTE-I would say that, if you feel there's a consensus, we would like you to act.. If there's no consensus, and we hope there's a consensus, we'd like to table, but we really don't want to have to go through this again. We've already paid surveyors, accountants, lawyers. MR. DUSEK-Well, just so, when you say you don't want to have to go through this again, so everybody is clear, in my opinion, if this matter was tabled, although we don't know that's going to happen, but if it was, you would not have to re put forth all that proof. That stands as part of the record. MR. CLEMENTE-I understand that, but I believe that I would do it, because I would want the people in the empty chairs to hear it. - 31 - Queensbury ZBA Meeting 9/28/95 MR. KARPELES-The other course of action is to act on the nursery part of it, right? MR. CARVIN-Yes, the nursery, and then re-submit at some point. MR. GREEN-Why don't we do that, if we can split it in half, let the apartment work itself out, whatever the Board feels it needs to do, or Zoning Administrator or what have you, concerning that third apartment, but I think we should be able to act on the nun3ery. MR. CARVIN-I'm just wondering if, I think it comes out, essentially, the same spot, because they'1"e not going to get the whole five either way, tonight, and I'm just wondering if we tabled this, re-advertised, and then made the record part of the record, that he doesn't have to come back and go through the whole schmeel again. MR. CLEMENTE-Mr. Carvin, if ,there areq·o~þeí people in those cha i rs , my advice to th~ ç 1 ient wquld be, to IDa ke sure, those people here our case. MR. CARVIN-Okay. Well, we would, and do, supply them with the minutes, and we would poll them if they feel comfortable having read the minutes, that they can render a good decision, based upon that.. So it.'s not necessary, in all cases, that you'd have to go through the arguments, as long as the other empty chairs have read the minutes. Now we've done that on several occasions, and that doesn't seem to be a problem. MR. DUSEK-The other thing you may not. be aware of, these minutes are done wo-rd for word. MR. CLEMENTE-We would respectfully ask that you would act on the business tonight, and (lost word) file a new application on the residence itself. MR. THOMAS-It sounds good to me. MR. CARVIN-All right. I'm going to kind of take a straw poll. MR. GREEN-Could apartments off of point? he amend his applicat.ion and remove the there, say it's just for the nursery, at this MR. CARVIN-Well, that's all we can move, is just the business, as Mr. Dusek has indicated. That's all that was advertised. So, a straw poll of the Board here, if no one has a problem moving the nursery landscaping lawn care section, I think w~ can move that, and then have the applicant re-submit for the three apartments, or the third apartment anyway. MR. CLEMENTE-Yes. I would like to make clear that you're not questioning the two family. MR. CARVIN~Again, I was going to say that that would give Staff a chance to really research that, whether it's a pre-existing. Okay. Does anybody have a problem with that, with the landscaping? The only thing that I wanted to, the noise I think you've addressed. You seem to indicate a willingness to work with the neighborhood and hopefully minimize any noise impact. You have no plans for signage at this point? MR. CLEMENTE-No. That's not the nature of the business. We're not asking for a sign. If we needed a sign, we'd have to come back. MR. CARVIN-Okay, because I've got to be honest with you, I drove - 32 - '-.-' Queensbury ZBA Meeting 9/28/95 by the place three times before I found it. to try to keep it that way, I think. Okay. All right. Does anybody have a motion? No offense, I'd like So there's no sign. MR. DUSEK-Before you get going on a full steam motion, I'd hate to have you do all that, and then tell you you've got to do SEQRA after you're all done. You do have to complete the SEQRA evaluation first. MR. THOMAS-The Short EAF. MR. MARTIN-Also, Fred, in your motion, I would make sure that you reference that second parcel in the back. MR. CARVIN-In what fashion, Jim? MR. MARTIN-I'd refer to them both as Tax Map parcel numbers. I think that would be the best way. It's 59-1-7, and 59-2-8. MOTION THAT HAVING REVIEWED THE SHORT EAF FORM I FIND THAT IT COMES UP WITH A NEGATIVE DECLARATION, Introduced by Fred Carvin who moved for it.s adoption, seconded by Chris Thomas: Duly adopted this 28th day of September, 1995, by the following vote: AYES: Mr. Green, Mr. Karpeles, Mr. Thomas, Mr. Carvin NOES: NONE ABSENT: Mr. Menter, Mr. Ford MOTION TO APPROVE USE VARIANCE NO. 70-1995 PETER J. PHAIR, Introduced by Fred Carvin who moved for its adoption, seconded by Robert Karpeles: The applicant proposes to conduct a landscaping business on two parcels ident.ified by Tax Map No.'s 59-1-7 and 59-2-8, which is in a Single Family Residential zone, and in order for the applicant to proceed with his project, he would need relief from Section 179-20. I feel the applicant has demonstrated that a reasonable return is not possible if the land is used as zoned. The applicant has indicated by competent financial evidence that to receive a reasonable return at best off the property as it's currently zoned would be a break even situation, and that by allowing the landscaping, nursery, and lawn care operat.ion, that a reasonable return could be accomplished. By allowing the applicant this relief, it does not appear that this would be a unique situation, as the property does abut a Highway Commercial zone, and it is currently in the midst. of a mixed Residential and Commercial use, which contains apartment buildings, single family residences, and commercial uses. The applicant has demonstrated a willingness to minimize any adverse effects on the essential character of the neighborhood by consciously making an effort to limit noise and upgrade the current buildings, and quite literally have a minimal effect in the neighborhood. It does not appear that this hardship is self-created. That the use of this property in the past, and as demonstrated by the applicant, has had commercial activities associated with the property, going back as far as 1982 anyway, possibly longer. The applicant has also agreed that no signage indicating the commercial use will be posted on the propeTty, and by granting of this relief, I do feel it is the minimum relief necessary to adequately address the hardship proven by the applicant, and at t.he same time preserve and protect the character of the neighborhood and the health, safety and welfare of the community. This Use Variance is only in reference to the landscaping, nursery and lawn care business on the property, and the issue of the residential three units - 33 - Queensbury ZBA Meeting 9/28/95 will be addressed at a later point by the applicant. Duly adopted this 28th day of September, 1995, by the following vote: MR. KARPELES-Is that going to be a new variance? MR. CARVIN-Yes. MR. KARPELES-It will be an entirely new variance. MR. CLEMENTE-Yes. We're agreeing having to go through all of this problem, and we'd like the record the three unit application, and we to do that to facilitate not again, because of the notice to reflect we're withdrawing will re-apply. AYES: Mr. Green, Mr. Karpeles, Mr. Thomas, Mr. Carvin NOES: NONE ABSENT: Mr. Menter, Mr. Ford MR. CARVIN-We have another issue coming before the Board, if someone wants to address the Board. EDWARD CARR MR. CARR-My name's Edward Carr. I was here a couple of months ago representing Mr. and Mrs. Keis on a variance for a garage. Having reviewed the Staff notes after the meeting and what not, we felt that there were some inconsistencies and some things that were, might influence the decision, might have been flawed, and pretty much we want to come here on a, basically, informal basis and see if there was some way we could work out a compromise and get them their garage. They had previously gotten a variance to construct a shed in pretty much the same location, and we came back the next month because after the application was filed for the shed, the feeling was, well, he would really rather have a garage rather than a shed, and pretty much I wanted to bring Mr. and Mrs. Keis in and let them speak to you and go through and, I think one of the things that was brought up was the possibility of a drainage easement. Since that meeting, both the Town and ourselves have researched it, and I have a letter from C.T. Male, and I think the Town has confirmed this, that there was no drainage easement through the propert.y. Jim, I think I have given you a copy of this for your files? MR. MARTIN-Right.. MR. CARR-Changing the character of the neighborhood actually would up there, of 12 lots. I believe two of them don't have garages, that are located within inches or feet of the side line. It's ~ consistent thing through that portion of Cleverdale that this is how it is. The one thing that I was made aware of after the meeting, one of the people that had voiced opposition was Mrs. Kurac from across the road. Last year, the Kurac's got a variance to move their house closer to their southerly line, which would put any structure on Mr. and Mrs. Keis' property more in their view. So, in a sense, that's a bit of a self-created difficulty on their property, that they can get a variance to move their house into this line of view. We did go through and take a fair number of photos from all directions, and, basically I just wanted to sit down and talk with you and see if there was any way we could work something out. MR. CARVIN-Well, I guess the procedure would be, there's two ways, and maybe Paul will correct me if I start to drift far afield here. We can take a look at the old application, if you - 34 - Queensbury ZBA Meeting 9/28/95 think that there's a significant enough amount of changes, in other words, that weren't. brought to light in the original hearing, and that would require a unanimous vote of the Board to re-open the prior variance. The other would be, obviously, to submit a new variance, and if it's the same variance that we had looked at before and the Board, again, feels that there's no significant change, then we would not necessarily even have to hear that, and, obviously, the third way would be to submit a totally new project. So, I guess I'm going to ask you, I don't know what. you're looking to do, because, for us to hold a discussion on a variance, and I've got to be honest with you, that happened two or three months ago, with having no records here. I remember the case, bits and pieces, but I'm not versed in all of the wherefores and why ends. I guess my suggestion would be, if you, and again, it's up to the Board, here, but if you have a proposal that is significantly different, then we can take a look at it, and certainly we can move forward on that, if the Board feels that it's a significantly different application, but as far as re-opening the old one, I think that that's, you know, I mean, we're going to be spinning our wheels on that. So I don't know if you have, you know, as far as giving us any new information and what the neighbors are all doing, it has no bearing, at this point, on the situation. MR. CARR-Well, once again, I think it was brought up, after the meeting when I got to read the Staff notes, because, in going through the discussion, that possibly a lot of your decision is based on, possibly, flawed information, and consequently, I think we've looked at the property. Jim Martin and John Goralski have come up and looked at it from the owner's use, of what they're trying to accomplish, there's very little that we can do to prevent a different plan. You don't have a lot of room to work with. MR. CARVIN-Well, I don't remember all the reasons why we turned it down, is my problem. There was a format that we followed at that meeting, and I, quite honestly, don't remember what the triggering items were, and I don't even remember how I voted on it. So that's what I'm saying. I think that if you have significant points, that to list those, and what would happen, and again, I guess, Jim you can correct me, we can dig out the files, and you can get it to us, and then we can take a look at it at a regularly scheduled meeting. MR. MARTIN-For example, like easement thing, if that. was longer, it doesn't appear difference. That's up to the an example would be this drainage a consideration, and now that's no to be there, that would be a Board how great that is. MR. CARVIN-Yes, but without me looking at what the minutes were, and why the application was turned down and the rest of the Board, it's futile, I guess, because as I said, I know, sitting here, I don't exact remember what was significant and what wasn't significant, but I think that, obviously, you've done your homework there and you have a list of these things, and what I would ask you to do is, certainly, get us a copy, and allow Staff to get us, you knöw, all the appropriate materials, and again, what we do is we can, in a regularly scheduled meeting, we can say, well, yes, okay, fine, there's a significant change, here. Lets re-open this case, or ask you to submit a new application. In other words, you can get a general feel for what the Board is, whether, because as I said, for us to go back and re-visit the old application, we would need a unanimous vote, but on the other hand, maybe there's five out of the seven that says, well, maybe there's a significant change, here, and maybe there's enough for you t.o re-submit another application and, again, we might be able to move there. - 35 - Queensbury ZBA Meet.ing 9/28/95 MR. CARR-That's what we're trying to do, is we're trying to come up with a way that we aren't wasting your time. You have enough to do, and to submitting, in letter form, if we list out what. we feel the differences are, and request the Board to either re-open or advise us to re-submit. Would that be appropriate? MR. CARVIN-Yes. Again, I don't think anybody on the Board is, you know, opposed to, you know, if you've got a list of specific items, and, obviously, if you can get it to Staff, because I used to keep my minutes, but then I ran out. of house, and what they do is that they have all the files, and they can pull those out and then they can photograph and get us copies of the pertinent information, and then we can take a look at itin our regularly scheduled packet of material. Is that a problem, Jim? MR. MARTIN-No, not at all. We can have it for October. The sooner you get me that letter the better. MR. CARVIN-Paul, am I on course here? MR. DUSEK-Exactly. MR. CARVIN-Those are really the couple, three courses of action that are open to you. I can't say to you what, if any of them, are going to bear fruit or not, but certainly if you've got a list of significant changes, get it to Staff and they'll get it to us, and we'll be more than glad to look at it. MR. CARR-Okay. Do you have anything you'd like to say? MRS. KEIS MRS. KEIS-No, except that in ihis meeting, we were not here that meeting, and we went over the Staff Input, and it's very visibly clear that what was presented was certainly not the case at all, and if I had been hereJ I probably would have been able to set things a little straighter than they are, because there were just things that were said that had no bearing on whether or not we should be able to build a garage instead of a shed. As far as that much difference in size, it doesn't seem that it involves that much more, especially if the Board were to examine all these photos of our immediate neighbors and see that their property lines are hardly any different than ours, insofar as visibility to the "lake, as far as creating all these problems that someone put down here that we would be creating, by lot line to lot line coverage, we have more visibility than the majority of our neighbors, and if you were to examine those photos, you would actually see how much more visibility we have. When we did s:ornethi·ng about enlargi ng¡ ~ our house, we were told way back. in 1988, that we could not go forward, we Goµldn't extend our bui Idi ng forward. W'e had to stay exactly where we wer e . So ~"e had no alternative, but to add, it was only a seven foot addition to our house. So it elongated it this way. Now the homes are all taking up the whole lot this way. So we have all this propert.y in front of us facing the lake that's just beautiful lawn to mow, but we can't put anything on it. So I think we're being penalized because of the way the original structure was, and now just to put a garage, it's really not going to take away from the view of the lake. In fact, if you were to look at some of these photos, you would see the people, some people who were here and criticized and put things in people's heads. We have pictures of their property. You can't even sea their, the lake at all. So there's many differences. MR. CARVIN-Yes. Again, all and what I'm saying is that and I don't remember all that's what. I'm saying is the Board members visit the sites, we went through a specific procedure, the reasons, all right, and again, that, certainly, this is a relevant - 36 - - Queensbury ZBA Meeting 9/28/95 issue, possibly. So, I mean, if you could put these down, and allow Staff to at least get us the information so that we could review it, and again, like I said, if the Board feels that there is a significant change or if there was additional information that should have been brought forward that wasn't, and again, I don't know what, you know, we had a public hearing, and maybe some of these questions were raised and addressed. I don't know, without going through all the minut.es and everything, but if you feel that this was an issue that was not raised and the Board goes through and finds that maybe this issue was raised and addressed and they're still comfortable with the original decision, then we can let you know. That's what I'm suggesting that you do, put down the, and you have access to the minutes. So you can go through the public hearing, and if there's inconsistencies or errors or what have you then, fine, bring it. to our attention. MRS. KEIS--I easement to could put a about it.. think one of the the water, and it garage because of main things, of course, was the was left that there's no way you the easement. So we'll find out MR. CARVIN-Again, you've got a letter here and I guess I would refer that over to Staff, if you want to put it in the file. So, I mean, again, if you can put that into the packet, that's something that's additional information that we have, and that way, as I said, we can give you an honest appraisal of whether we think it warrants moving ahead. MRS. KEIS-We'll do that. MR. CARVIN-As I said, I'm not closing a door here. I'm just saying, we don't have any information on it, and we can get that, but give us your list, and let us take a look at it, and like I said, it.'ll become a Board decision whether, you know, we want to re-open the old one, or if there's a viable alternative out there for you. It becomes an agenda item, right? MR. MARTIN-Yes. You'd come and have this exchange, but you'll have the benefit of all the information and your list, and you'll have this same type of discussion. MRS. KEIS-That sounds fine to me. Thank you very much. MR. CARVIN-Okay. Thank you. We have one other item of business. I'd move that we go to Executive Session to discuss a lawsuit being filed, or has been filed, regarding Kladis. Do we have to vote on that? MOTION TO GO INTO EXECUTIVE SESSION TO DISCUSS A LAWSUIT BEING FILED. OR HAS BEEN FILED. REGARDING KLADIS, Introduced by Fred Carvin who moved for its adoption, seconded by Chris Thomas: Duly adopted this 28th day of September, 1995, by the following vote: AYES: Mr. Green, Mr. Karpeles, Mr. Thomas, Mr. Carvin NOES: NONE ABSENT: Mr. Menter, Mr. Ford MOTION TO COME OUT OF EXECUTIVE SESSION, Introduced by Fred Carvin who moved for its adoption, seconded by Chris Thomas: Duly adopted this 28th day of September, 1995, by the following vote: - 37 - vT - oj' Queensbury ZBA Meeting 9/28/95 AYES: Mr. Karpeles, Mr. Thomas, Mr. Green, Mr. Carvin NOES: NONE ABSENT: Mr. Menter, Mr. Ford On motion meet.ing was adjourned. RESPECTFULLY SUBMITTED, Fred Carvin, Chairman - 38 -