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1995-02-22 ........ ORrGIN/~l .': .'. ,! ì QUEENSBURY ZONING BOARD ~ff, A~PEAI.¡$ ",' SECOND REGULAR MEET!NG ' FEBRUARY 22, 1995 INDEX , , . .-,": ¡:.'I Area Variance No. 71-1994 Jeffrey & Debra Godnick 1. Use Variance No. 4-1995 William Threw 2. Use Variance No. 9-1995 Robert E. Orban, Jr. 2. Notice of Appeal No. 3-95 John P. Cushing 18. Notice of Appeal No. 4-94 Margaret Bleibtrey 49. THESE ARE NOT OFFICIALLY ADOPTED MINUTES AN6:~RE SUBJECT TO BOARD AND STAFF REVISIONS. REVISIONS WILL APPEAR ON THE FQLLOWING MONTHS MINUTES (IF ANY) AND WILL STATE SUCH APPROVAL OF SAID MINUTES. :;'1 ' : ~,' j ¡"¡¡ , <, ;! <~ ,t " .~ '} I : r: ~ , j 11",) ,¡ ".'1 . 'j!, . ~ .....,i QUEENSBURY ZONING,ßOARD SECOND REGULAR MEETING FEBRUARY 22, 1995 7:30 P.M. OF APPEALS MEMBERS PRESENT FRED CARVIN, CHAIRMAN CHRIS THOMAS, SECRETARY ANTHONY MARESCO DAVID MENTER MEMBERS ABSENT ROBERT KARPELES THOMAS FORD EXECUTIVE DIRECTOR-JAMES MARTIN PLANNER-SUSAN CIPPERLY TOWN ATTORNEY-PAUL DUSEK STENOGRAPHER-MARIA GAGLIARDI OLD BUSINESS: AREA VARIANCE NO. 71-1994 TYPE I WR-1A CEA JEFFREY & DEBRA GODNICK OWNER: SAME SOUTH SIDE OF GLEN LAKE ROAD THIRD HOUSE EAST OF DOCKSIDER REST. APPLICANT PROPOSES TO REMOVE A PRE- EXISTING NONCONFORMING TWO-STORY CAMP AND CONSTRUCT A NEW TWO- STORY HOUSE ON THE PRE-EXISTING, NONCONFORMING LOT. SECTION 179- 60, REQUIRES A SEVENTY-FIVE (75) FOOT SHORELINE SETBACK, APPLICANT IS PROPOSING FORTY-FIVE (45) FEET. SECTION 179-7 LIMITS GARAGE SIZE TO NINE HUNDRED (900) SQUARE FEET, APPLICANT IS PROPOSING NINE HUNDRED SIXTY-FOUR (964) SQUARE FEET. (WARREN COUNTY PLANNING) 12/14/94 TAX MAP NO. 38-4-6 LOT SIZE: 0.44 ACRES SECTION 179-7, 179-60 MR. THOMAS-A letter was sent to Mr. James Martin, dated February 16, 1995 "Dear Jim: Please ask the ZBA to table this matter until its March meeting in order for the applicants to provide an elevation drawing showing the proposed house which has been significantly reduced in size. Very truly yours, Jonathan C. Lapper" MR. CARVIN-Okay. What I'd like to do, at this point, is open up the public hearing. This is in reference to an application that was tabled at the request of the applicant in the January meeting, where he requested seeking legal counsel. My understanding is that the applicant did notify this Board that he now ~ have legal counsel, and is in the process of submitting additional information. MR. MARTIN-We have some of it, but we didn't receive all of it. MR. CARVIN-Right. It is also my understanding that the information that is being submitted is still incomplete, and that we have a letter from the applicant, and I assume, from his lawyer or legal counsel, requesting the tabling. As I said, what I'd like to do is open the public hearing, with regard to this application, to allow any of the public that is going to have questions with regard to this application to make their comments, and then it is likely that we will move to table this application. So, I will now open up the public hearing for anyone wishing to speak in favor of the application? All right. Seeing none, I will now ask if there is anyone wishing to speak in opposition to the application? PUBLIC HEARING OPENED - 1 - MR.' CARVIN-Seeing or hearing none, I will, I don't know if we left the public hearing open before? MR. MARTIN-Yes; we did. It was even opened since December 21st. MR. CARVIN-Okay. With that information, then, I will leave the public hearing open, and move to table this application at the request of the applicant. MOTION TO TABLE AREA VARIANCE NO. GODNICK, Introduced by Fred Carvin seconded by David Menter: 71-1994 JEFFREY & DEBRA who moved for its adoption, At the request of the applicant to the March meeting, so that he might submit additional information to the Board with regard to this var ianoe.'. . Duly adopted this 22nd day of February, 1995, by the following vote: AYES: Mr. Menter, Mr. Maresco, Mr. Thomas, Mr. Carvin NOES: NONE ABSENT: Mr. Karpeles, Mr. Ford USE VARIANCE NO. 4-1995 TYPE I WR-1A/CEA WILLIAM THREW OWNER: JEFFREY THREW EAGAN ROAD, WEST OF BIG BAY ROAD APPLICANT PROPOSES TO UTILIZE A PARCEL IN A WATERFRONT RESIDENTIAL ZONE ON THE HUDSON RIVER FOR A CONSTRUCTION AND DEMOLITION DEBRIS LANDFILL. LANDFILL IS NOT AN ALLOWED USE IN A WATERFRONT RESIDENTIAL ZONE, AS STATED IN SECTION 179-16, SO A USE VARIANCE IS SOUGHT. (WARREN COUNTY PLANNING) 2/8/95 TAX MAP N.O. 137-2- 9.8 LOT SIZE: 7.02 ACRES SECTION 179-16 LEAD AGENCY: ZONING BOARD OF APPEALS MR. MARTIN-Fred, just the Threw matter. We need a resolution from the Board. Just to update the Board, the Town Board, in its consideration of consent for lead agent status, decided to claim lead agent status in theSEQRA review, and if it's the Board's desire, we would need your consent to their intentions. MR. CARVIN-We did that last week, Jim. MR. MARTIN-You did that last week? Okay. MR. CARVIN-We did that. age nda . So that's why this should be off the MR. MARTIN-Okay. NEW BUSINES~: USE VARIANCE NO. '9-1995 TYPE: .UNLISTED SFR-10 ROBERT E. ORBAN, JR. OWNER: ROBERT LEFEBVRE 93, DIXON ROAD APPLICANT PROPOSES TO UTILIZE A CURRENTLY VACANT BUILDING FOR PRQFESSIONAL OFFICE USES, AND SEEKS RELIEF FROM SECTION 179-20, SINGLE FAMILY RESIDENTIAL ZONE, WHICH DOES NOT LIST PROFESSIONAL OFFICE AS AN ALLOWED USE. (WARREN COUNTY PLANNING) 2/8/95 TAX MAP NO. 101- 1-14, 15 LOT SIZE: 20,550 SO. FT. - LOT 14 11,250 SO. FT. - LOT 15 SECTION 179-20 ROBERT ORBAN, JR., PRESENT STAFF INPUT Notes from Staff, Use Variance No. 9-1995, Robert E. Orban, Jr., Meeting Date: February 22, 1995 "APPLICANT: Robert E. Orban, Jr. ADDRESS: 93 Dixon Road SUMMARY OF PROJECT: Applicant seeks to utilize an existing structure for a dental office and - 2 - J '---" -- rent remalnlng space to another professional office use. One possible use mentioned was a beauty parlor. CONFORMANCE WITH USE/AREA REGULATIONS: This parcel is curTently in a Single Family Residential zone. Planning Department records show that this property was used for a convenience store until September 7, 1977, which was a pre-existing, nonconforming use in a R-4 zone. The next use was a Date Processing Service Center and related retail business allowed by Variance No. 602, approved by the Zoning Board of Appeals on December 27, 1978. While that application mentioned rental of unused space for office or store, the primary intent appears to; have been to allow a Data processing Service Center, rather than a broad permission for Professional Office use. This was confirmed by Ted Turner, Zoning Chairman at that time. Staff research regarding this site indicates that the building has been vacant for more than 18 months, so any previous variance would have lapsed. REVIEW CRITERIA, BASED ON SECTION 267-b OF TOWN LAW: 2. IS A REASONABLE RETURN POSSIBLE IF THE LAND IS USED AS ZONED? This property does not appear suitable for residential use, considering the nature of the st)-ucture, which was built to serve a commercial use. 2. IS THE ALLEGED HARDSHIP RELATING TO THIS PROPERTY UNIQUE, OR DOES IT ALSO APPLY TOA SUBSTANTIAL PORTION OF THE DISTRICT OR NEIGHBORHOOD? The apparent hardship is due to the unique character of the structure and the fact that it was in use as a commercial structure before zoning was instituted. 3. IS THERE AN ADVERSE EFFECT ON THE ESSENTIAL CHARACTER OF THE NEIGHBORHOOD? The use of the building for a professional office would not ~ppeaT to tonstituté an ad~etse effect on the neighbo)-hood: -The amount of traffic generated by the various types of' profe~siénal office uses' could be a concern. Communication from'nei·ghbors to date have expressed concern over 'the amøunt 'and frequencý of traffic stemming from a ;beauty 'patlór~' but not from the dentist off ice. 4. IS THIS THE MINIMUM VARIAI'4G:E NECESSARY' TO ADDRESS' 'THE UNNECESSA~V HARDSHIP PROVEN BY THE APPL.ICANT'AND AT THE StlME TIME PROTECT THE CHARACTER OF THE NEIGHBORHOOD AND THE HEAL,TH, SAFETY, AND 'WELFARE OF' THE COMMUNITY? Relief from the Ordinance is necessary in order to use this property. Professional office use would be more compatible in this residential area than other potential uses of this site would be, so could possibly be considered to be less relief. STAFF COMMENTS AND CONCERNS: Staff concern is not with the use proposed for this site, but with the practical aspects of its use. Access and egress, parking, and landscaping are issues which ought to be addressed via site plan review by the Planning Board, as it is with other non-residential uses. It appears that the site is usable for the proposed project~ but ought to have the additional review to address these issues. SEQR: Unlisted action. Short For-en EAF should be reviewed. II MR. THOMAS-"At a meeting of the Warren County Planning Board, held on the 8th day of February 1995, the above application for a Use Variance to utilize a currently vacant building for p)-ofessional offices uses. was reviewed and the following action was taken. Recommendation to: Approve Comments: Approve with the còndition that it cOme back fo)- Site Plan Review consistent wi th . a staff recommendation from the Town 'of Oueensbury. II 'Signed by Thomà!S' Ha¡L"t~y ,Chäirperson. MR. CARVIN-Dr. Orban,is there anything you care to 'add regarding the application? DR. ORBAN-No. I think that is accurate as far as I've filled out for now. I did mention on the (lost word) that 1-87 is close (lost word). MR. CARVIN-Are you the owner of the property, Dr. Orban? DR. ORBAN-No. MR. CARVIN-Do yOu know whO is the owner? - 3 - --..;' DR. ORBAN-There are three owners, as I understand now. One is deceased, the other is a Robert, LeFebvre, and ;the other, I don't know. MR. CARVIN-Yes. Do you know if they've advertised this as a residential area, or as a residential property? DR. ORBAN-You mean through the realtor? MR. CARVIN-Right. SANDRA ORBAN MRS. ORBAN-The realtor's here. DR. ORBAN-Would you like to take that one? PATRICIA BOYLE MS. BOYLE-No. property. It has not been advertised as a residential DR. ORBAN-This is Patricia Boyle, Century 21, Boyle Realty. MR. CARVIN-Okay. So it's never been listed as a residential, in a residential zone? It's always been marketed as commercial? Okay. Any other questions from the Boaird? MR. MARESCO-Yes, I do have one question. In one 'paragraph, it had stated that, property hasn't currently been used for 18 months, and then over here, there's another paragraph that states it's an existing business, some computerized billing service? DR. ORBAN-I don't own the property. I don't know how long it may have, I know it's vacant now. That's as accurate as I can be, as far as any use going in there. That information must have come from within your (lost word). MR. CARVIN-Okay. ,Well, I guess to answer Tony's question, has the building beèn vacant for 18 months, okay~ so that any commercial use, at this point, has ceased. Is that correct, so it does revert back to the residential zoning? Okay. MR. MENTER-I have one question. I'd just like to ask applicant to, looking back at the apþlication, there's question, Number 13, which wasn't answered, which is, reasonable return possible if the land is used as zoned. what would your answer to that be? the one Is a Just DR. ORBAN-I don't understand what reasonable return? understand the nature of the question? I don't MR. MENTER-Okay. One of the criteria that we .have to go by, as a Board, in determining whether to allow a Use Variance, is whether or not the land, in a sense, has a value, if there is no variance given. In other words, is it possible to receive a reasonable financial re.turn within the Ordinance, without granting a variance, without using it commercially? DR. ORBAN-If I understand your question, the answer would be no, because within the Ordinance, as it exists now, you can't have a commercial enterprise there. Am I correct? MR. MENTER-That's correct. DR. ORBAN-So the answer would have to be no. MR. MENTER-Okay. DR. ORBAN-No return, because you couldn't have a business in - 4 - ----' '- there in the first place. MR. MARESCO-But can you sell that property as a residential property and receive a, you know, a gain on it? MR. CARVIN-You see, our here is that this piece residential unit. It's in a residential area. problem, I think, where we're leading of property has never been presented as a always been presented as commercial unit DR. ORBAN-Are you then asking me, is that property viable as a residence? MR. MARESCO-Exactly. MR. CARVIN-That's correct. DR. ORBAN-As it stands now, absolutely not, because actually the only value of the structure that's there is the shell, the walls and the roof. One could not have a residence inside the bu i 1 ding. MR. MARESCO-Why? DR. ORBAN-The walls have holes in them. It's not set up as a residence. It's got nothing, by my eyes, (lost word). MR. MARESCO-When was the last time you were in there? DR. ORBAN-Within a month. MR. MARESCO-Because I peeked in there today, and as far as I can see, just from visibly looking through an open window, there's a gentleman there fixing the glass, it looked like it was finished. Finished meaning, there were rugs. There was telephone. There were electrical outlets. There were walls that were painted. DR. ORBAN-The front tier. The front tier is finished. There is carpeting on the back and tiled floors in there, but, to my mind, the way it's set up is non viable as, I guess you could, (lost word), but it's not set up, in my mind. It could be re-done, but I still think it would take, my honest opinion is that it would still take completely refinishing the inside, or a great majority of the interior of the building, completely redoing it. MR. CARVIN-I don't know. Maybe I should address this question to, is it Ms. Boyle. What would be your opinion of that property as a residential? Do you think it would? MS. BOYLE-The structure is a single story, 4590 square foot, single level structure, built on a slab. In order to convert it to a residence, you're looking at 4500 square feet, if you wanted to use the existing buildings. The only reasonable thing, actually, would be to tear that building down, in which case you're looking simply at the value of the land. To convert that building into a residence would be cost prohibitive, given the location. You'd never see a return on it, given the amount of money you'd have to put into it. Really you'd have to tear the building down, and then you're looking at the expense of taking a building down, and then what can you sell those two, you know, conceivably, you could have two lots there, but what would you be able to sell those lots for? Nowhere near the value of the building as it stands, for a commercial use. MR. CARVIN-Okay. So return would not be residential lot? it would be your opinion that achievable if it were to be a reasonable marketed as a MS. BOYLE-No. To go back to what you were saying about the building, perhaps one third of it is completed up front. It's - 5 - -- ---- pretty much a major disaster area behind there, and it has been abused and vandalized over the last couple of years quite badly. MR. MARESCO-I know. I pass by it frequently. It is an eyesore. MS. BOYLE-It is definitely an eyesore. MR. CARVIN-Okay. Any other questions? MS. CIPPERLY-Could I ask, is this currently under contract to Dr. Orban? MS. BOYLE-Yes, it is. MS. CIPPERLY-And I even a duplex or because it's. just wanted to also mention, in this zone, multifamily would have to get a Use Variance, MR. CARVIN-Single Family? MS. CIPPERLY-Yes. MS. BOYLE-There is a duplex next door. MR. MARESCO-Right. MR. CARVIN-Okay. Well, hearing no other questions from the Board, I'd like to open it up to the public. Anyone wishing to be heard in favor of the application, please come forward. PUBLIC HEARING OPENED MICKEY CHOPPA MR. CHOPPA-Do you have a third category of just questions? You said you have for and you have against. I'm not necessarily either way, but I have questions. MR. CARVIN-Okay. MR. CHOPPA-My name is Mickey Choppa, and I live right next door to this building, okay, and I've been there for 20 some odd years, and the building is definitely an eyesore. There's no question about it. The best it ever was was when Mr. LeFebvre was actively involved in the computer work"because there was people there. Things were taken care of. It wasn't bad. When I first moved there, it was a store, and that was not good at all, because you had glass, papeT, everything there. My question is, for the past couple of years, nobody has maintained anything, including the lot next door. If you went there today, you know there's a lot and then a building, and my house. We complained, about three years ago, and màybe they mowed it twice, and for the past two years, I got tired of complaining. I just mowed it myself. So I want to know if this is going to be maintained, what kind of 'landscaping they're going to do, what the plans are. I'm not against it, because I think it's the only thing that can be done. As far as the dentist's office goes, it would be wonderful. A beauty parlor? I'm not so sure about that. I guess that's my question to Dr. Orban. If you buy it, are you going to maintain. I don't mean once a month. I'm not saying you've got to plant grass and fertilize it. DR. ORBAN-I would keep that as a residence would be kept. There are no plans for landscaping (lost word) at a minimum (lost word). There would be something there, some type of minimum landscaping. The back lot will be kept (lost word), 4nd as far as the exterior of the building, the change that would occur is that probably (lost word) some type of a facade would be put up there (lost word). - 6 - , "'-- -' MR. CHOPPA-As I said, my concern is, I'm sure the building would be taken care of, but it's easy to forget that lot, the one that's between the building and where I live, and all I want to know is what he would do to take care of it, and it's on the record, and if it doesn't get done, I can complain. DR. ORBAN-Once again, that would, at a minimum, be kept (lost wor d). MR. CARVIN-Any other questions from Mr. Choppa? MR. CHOPPA-No. MR. CARVIN-Anyone else wishing to be heard in favor of the application? BARBARA BENNETT MRS. BENNETT-I'm basically backing what he said. Barbara Bennett of 83 Dixon Road. My interests parallel what he's talking about. I have one other question. If the businesses you're talking about don't work out, does changing the zoning allow something else in that we're not anticipating tonight, that we might not want in, some more serious form of a business? MR. CARVIN-Yes. I'm not positive I have a total answer Dn that, but my understanding would be that it would leave open the commercial aspect, but I believe it would, any other use other than a dentist's office, for example, would have to come for approval, but we cannot turn it down on a commercial aspect, as long as it happens within an 18 month time frame. Does that answer your question? MS. CIPPERLY-It ought to be pointed out that this is not a zoning change. It's a Use Variance. MR. CARVIN....Right. This is a Use Variance. MS. CIPPERLY-Zoning will not change. MR. CARVIN-So that that is still zoned as a residential. So any use other than the dentist's office would have to come back for approval as an approved use in that zone. MR. CHOPPA-It could never be a store, correct? Like if it in half, and say, the lease doesn't work, out, couldn't put a auto parts store in there? he cuts somebody MR. CARVIN-That's what we're going to, we're going to address that. I think, at least my opinion at this point is that, that we are only looking at a dentist's office, and that any additional use in theTe is going to have to come back for review. That's ~ opinion, and that's the way I think we're going to probably approach this. DR. ORBAN-I have a question for the Board, at this point, with regard to this issue, too. My intent, in any other rented space in that building will be limited to professional use, as defined in one of your Codes. Ms. Cipperly showed me. So I have respect for the neighborhood (lost word) retail business in there. What I would like to, because (lost word) to professional use, this is an issue that is of importance to me to define, as soon as reasonably possible, for financial considerations, obviously, that I would want to be able to utilize that in any approved manner. MR. CARVIN-Okay. Well, I appreciate your concern. ~ concern is that, and I'm only speaking for myself. I don't know how the other Board members feel, but I have a very difficult time putting commercial aspects into residential areas. As I said, I - 7 - -- may not have a problem with the dental office, but I do have a problem in just giving blank checks. So we'll ,:äddress that issue, maybe, at a little later point. At this point, I'd like ta try to keep the public hearing moving along. Are there any other folks wishing to be heard in support of the application? Okay. Seeing none, I will now open it for any general public in opposition to the applieation. JAMES DAVIDSON MR. DAVIDSON~My name is James Davidson. My wife Rosemary and I live and owh property at 16 Northup Drive, which is around the corner from the premises involved. We have lived there for over 30 years. We've lived there before the Zoning Ordinance, at the time when there was a!1ittle neighborhood store there, back when you could walk across Dixon Road without threat of being killed. Since we've been there, we've seen the neighborhood grow up, and I have three words to say to this Board, and that's traffic, traffic, traffic. I've heard nothing here said by the applicant how many people are going to be at this location? How many cars are we going to have? How many employees are there? How many patients are going to come and go?' If he rents this space as a beauty parlor, how many people aTe going to work there? How many cars are going to come and go? I've tried to cross Dixon Road the other day about 4:30. I stayed on my side of the street and counted 25 cars going by. The speed limit is 35 miles per hour. That's a joke. I think once last year I saw a sheriff's car there. People speed up and down this road. There are no sidewalks. There's a school on that road. School children are on this road. Are you prepared ta see a story in the paper of a school child being killed because of the excess traffic? This particular lotation is at the corner of Dixon Courtj which T's into Dixon Road. Right across the street from it is another street, Hughes Court, which T's into Dixon Road. It is an area that you do not need additional traffic. You don't need one more car on this road. Now, the people who drew up the Zoning Ordinance, way back when, when this little neighborhood store was there, sought not to zone this commercial. They saw fit to zone it as residential. This is the only, or was the only spot used as a commercial, between the City line and the Northway. Everything else on that road is residential. Going back to that time, they decided that this should be zoned for residential. This area, of course, was a nonconforming use and was allowed to continue. Now, we're going back, probably, 20, 25 years. I'd venture to take a guess that traffic has increased five times on Dixon Road since then. You have numerous housing developments. You've got Hidden Hills. You've got Dixon Heights. The traffic on that road is unbelievable. It's a narrow, two lane road. Any further use to create traffic on that road would be a travesty of justice. I beseech this Board to what the original planners in the Town of Queensbury did, to keep this a residential area. It's the only logical thing to do. If you don't do that, then why make plans? Why have zoning, if anybody can come and petition the Board, and the Board keeps saying, yes, yes, why not, do whatever you want? Now, what I've heard, 'here, from a broker involved, who I assume, and correct me if I'm wrong, is going to get a commission on this sale., that opinion expressed was just as not marketable as a residential area. However, I also here that it's never been marketed as a residential area. There's a lot of space there. All around it are residences. True, there is a building there, but as was said before, buildings can be torn döwn. This would be a prime residential area. That's what it's meant for. That's what it's zoned for, and that's what I ask the BoaTd to leave it alone, as a residential area, and again, I suggest, traffic, traffic, traffic. Anybody tried to walk on Dixon Road, anybody tried to jog on Dixon Road, everybody's seen children going to school, Kensington Road, on Dixon Road, think about it. Thank you. MR. CARVIN-Okay. Anyone else wishing to be heard in opposition? - 8 - ',,-, --./ Any correspondence? CORRESPONDENCE MR. THOMAS-Yes. I have two. A record of telephone conversation, dated 2/21/95, between Nevin Weiner, owner of property at 12 Northup Drive, and Pam Whiting, Planning Office, subject is Use Variance for Robert Orban, "received public hearing notice. Will be unable to attend the meeting. Would like to state that he is opposed to the project. Feels that it is not setting a good precedent to start changing the use because it will generate more traffic, etc., in a residential area." And another record of telephone conversation, dated February 16, 1995, between Sue Cipperly, Assistant Planner, and Donald Bodack, subject is the Orban application, "Caller stated that he had received notice of the public hearing but would not be able to attend. He did not object to the dentist's office, but had concerns about the amount of traffic that could be generated by a beauty parlor. Mr. Bodack also mentioned traffic in relation to commuting and Kensington School as peak periods of concern." And that's it. MR. CARVIN-Okay. I guess I'd like to ask Mr. Orban exactly how many dentists, how many receptionists, in other words, how many people, what type of traffic do you anticipate there? DR. ORBAN-There is one dentist, myself. We currently have a compliment of both full and part time staff of five. So there would be, at a maximum, six cars there, or staff, that would not be then moving, necessarily, in and out, aside from coming to work and leaving work, staying in for lunch, aside from occasional errands that they run, what have you. The current patient flow, total on a daily basis, is fifteen to twenty. Some of those are relatively short visits for postoperative procedures, what have you. Others can be up to an hour or two. So the traffic pattern would be variable, but fifteen to twenty patients per day would seem an average day. I had spoken with the gentleman who may be interested. The reason the beauty parlor came up is I have a friend and neighbor who might be interested in this location, and he thought that, possibly, in the space of that size, eight individual for eight cars (lost word), with possibly a maximum of five employed people in that space as a beauty salon. This is not anything that's finalized either. This is just a business (lost word), but that would be the projection there, 15 to 20 patients a day, in ~ practice, staff of six, including myself, and if there were to be a beauty salon, possibly eight customers an hour, and a staff of five, at a maximum. MS. CIPPERLY-We probably ought to clarify, too, that you're an oral surgeon? DR. ORBAN-Correct. MS. CIPPERLY-Rather than just a normal dental practice. MR. CARVIN-Okay. So you don't have any plans of opening up a, I don't know, I guess a dental center type of thing, where there's two or three dentists, things like that? DR. ORBAN-No. I have no plans, at this time, at all. The potential is there to bring in one partner down the line. If the practice would permit the size of that space would permit that. I have no plans, at this time at all, to put a practice that would support that. The practice is relatively young at this point. It's not even reached its full capacity, myself as the single practitioner there. MR. CARVIN-Okay. Now you, on your plan here, indicate, I foresee no freestanding signs or outdoor lighting fixtures at this time. Is that a correct statement? - 9 - '- ...-' DR. ORBAN-The outdoor lighting fixtures, as far as something up on the roof, or something out by the road, absolutely no. I wouldn't see a need for that. My signs would be of a minimum size. (lost word) somebody with normal vision could read them reasonably well driving, maybe, from the road, without having to try to squint, but not having any freestanding, you know, big sign right out by the road. The only (lost word) was that maybe just for visibility, or, to keép people's eyes on the road maybe I'll have a typical thing somewhere out in the front there, but that's not even a necessity, and if there would be a large objection to a small sign, small freestanding sign, in the community, then I wouldn't have a particular problem not having that there, as long as I was able to put a reasonable sign on the outside of the building. The same would be true for any other business that might going in there. The lighting would be kept, essentially, for the side of the building you're saying is a residence. The only lighting I could foresee there, at night, would be, perhaps, in the foyer, and maybe over, you know, just around the entrance way. So that I don't plan on having flood lights on anything particular at all at night. In the winter time, I would need to, obviously, light the exterior walkways and the parking lot, to the degree it would be appropriate or necessary for business hours that might be after dark. Our normal business hours run until five o'clock. Sometimes we're there until six o'clock, rarely until six thirty or seven. MR. CARVIN-Okay, and what is your time frame, at this point, in other words, if you were to get a variance, how soon would you be looking to move on this? DR. ORBAN-I'd like to in and working in the beginning of August. MR. CARVIN-Okay. Any other questions from anybody on the Board? MR. MARESCO-I have one more. anything to the front of upgrading? Do you have any intentions of doing the building at all, as far as DR. ORBAN-The mansard, where it's (lost word) shake shingles needs to be replaced. That will be replaced, and at this point, I have not even reviewed all my options, as far as replacement of windows. Something that would look appropriate and professional. That's all I can tell you about that. The steel support (lost word) need re-finishing, painting. The obvious things need to be cleaned up. The batten and board that's there, like I said, you're talking about the front? MR. MARESCO-Mainly the front, because that is very visible to the road there. DR. ORBAN-The batten and board will get restained. We are probably going to be putting in maybe some different windows in the front of the building, and then whatever I need to do, at a relative minimum. Like I said, it's been brought up that there be no ingress and egress into that lot off of Dixon Road. The ingress and egress would be off of Dixon Court. So whatever I need to do there to frame out some type of barrier along Dixon Road, and have it probably, you know, once again, minimally landscaped, something landscaped there. MR. MARESCO-Is there only one entrance into the front of that building? DR. ORBAN-As of now, there are, there's one entrance into the front. There will be two planned in th. front. Essentially one along the right hand side, if you're 'looking at the building, like there's one to the left now, and then also one from the west side, maybe 15 or 20 feet back from the front of the building. MR. MARESCO-Thank you. - 10 - '- '--./ MR. CARVIN-Okay. Do you have a, on your plan here, it just shows the total dimensions of the building. It looks like 77 by 61. Do you have a rough idea of how much of that building you're going to be utilizing, like 2/3rds, 3/4ths? DR. ORBAN-My usable inside space works out to about 2850 square feet. There is a relatively substantial loss of the internal square footage compared to the outside dimensions of that, only because of the thickness of the block wall, and there is also a thick block wall that divides that third tier back. I think I have indicated. MR. CARVIN-There's just a line here. office space on the plan here. So, you just have other DR. ORBAN-Between that and where I have the other area designated, that's also a thick wall. So my 2850, and then 1250 in the back, does not come up to the total that you get by multiplying 78 by 61~ and that's the difference in the, essentially, the two foot thick wall. It just about makes up any inaccuracies there, but the usable space as it's been roughly proposed is 2850 square feet, inside wall to inside wall. MR. CARVIN-Okay. Any other? MS. CIPPERLY-One other reason the sign was mentioned in this application was that we've had Use Variances before where people had to come back to get a Use Variance for the sign, essentially. That's why we try to include it all in one application. MR. CARVIN-Okay. Any questions? I'd like to probably table the decision on this. I just nèed a procedural, should I leave the public hearing open or closed? MR. DUSEK-I think if you feel you've heard everything, you can close it. MR. CARVIN-Okay, and then we'd have 60 days to make a decision? MR. DUSEK-Correct. MR. CARVIN-Okay. I'm going to ask the public, one last time, for any comments, if there's any for or against. HAROLD KATZ MR. KATZ-My name is Harold Katz. I live at 10 Dixon Court. I have lived there probably longer than anyone else, as a matter of fact, 40 some odd years. So, we built our house when that little store was there, and then enlarged it, watched it develo~. I agree with Jim Davidson. The biggest problem is traffic. As I listen to Dr. Orban here, now I'm becoming concerned with a number of other issues. One is, there is no way that I think a beauty parlor, of all things, should go in there. As a matter of fact, I'm amazed at Mickey Choppa. He owns a beauty parlor. He didn't say a word about it, but that's his business. Now, Dr. Orban says, if we're going to do it, divert traffic away from Dixon Road to Dixon Court. So ingress and egress will be at that corner, which is a busy corner. There are not a lot of homes in Dixon Court itself. I think there are probably 15 homes at best, but that means all of us who live in Dixon Court are going to be affected by the traffic coming off Dixon Road, to get into Dr. Orban's practice. Originally, when I listened to this, only part of the building was going to be used possibly for a beauty parlor or some other business. Now, as I listen, it looks like about half of it will be used by the doctor, and the rest of it will be used by some other business. He also says, and I have no objection to his going in there. My objection to the manner in which traffic is going to be handled and routed. Also, the fact that he anticipates fixing up the outside, but isn't sure how - 11 - "-" '- he's going to do it. He's going to improve the mansard siding, but isn't sure how he's going to do that. He's going to do a lot of things, but he isn't sure how he's going to do them, but he wants to be in by August. Now it seems to me if you're going to grant this variance, that you ought to have more information. Exact 1 y what the docto,-' s going to do, how he's goi ng' to improve the exterior of that building, the exact size of these signs he's talked about. He's talking, now, about changing the front of the building, adding windows, changing the entrance onto Dixon Road from one entrance two, and All of these are somewhat of a variance from what was originally indicated in the notice that was given. So it's the intangibles that concern me. It's the indefiniteness of what's going on here that concerns me, and as, again, to re-emphasize Jim Davidson's comment, the traffic problem that will be created, not necess,arily by the limited number of patients that the doctor might have, but by the rest of what goes on there, if you grant a variance now that is going to include the entir~building. What's going to go in there? I don't think a beauty parlor's considered a profession, anyway, under the Code. I could be wrong, but the fact is that all of these affect those of us who live and must drive by this building every day. Right now, I agree. It's an eyesore. That's because the owner has not maintained it. Something should go in'there. It's impractical for residential purposes, but at least if we're going to continue a variance here, for the use of it, lets do it so it is a benefit to the neighborhood, and doesn't continue as an eyesorè. There's a huge parking lot bounded by the area between Choppa's house and this property. It's an eyesore, and the Town ought to be grateful to Mickey Choppa because he does go out there and he does mow that, and he's maintained it for the owner for a long time now, but I think, gentlemen, before you make your determination, here~ there àre a lot of unanswered questions. I think this information should be given to you, and to those of us who live in the vicinity, before you make your final judgment as to whether or not you're going to grant this variance. Tha~k you very much. MR. CARVIN-Okay. Thank you. Okay. Any other comments? MS. CIPPERLY-To answer the question about professional occupation, the definition in the Code is "One who is engaged in professional services, including but not limited to, all members of the field of medicine, a lawyer, architect, engineer, surveyor, licensed beautician or barber, real estate broker, or accountant". People do tend to be surprised at the beautician, but it is a licensed, it's licensed by New York State. DR. ORBAN- I have some ref i ned like, from Mr. Ray Mallony, constructing the dental offices. square footage figures, if you'd who is the design consultant MR. CARVIN-Okay. Yes. DR. ORBAN-Ray, if I read this, correct me if I'm wrong, but the total inter ior spaoe comes to 4,047 square feet, for the enti ,-e structure. My office is 2,793 square feet. MR. CARVIN-Okay,. Now that 'sinter ior measurements, notexter ior? DR. ORBAN-Thesé are the interior measurements of this dental office, and the remainder is 1,254 square feet. MR. CARVIN-Okay. I just have one more question of Ms. Boyle. Have you always represented this property, or were there other real estate people that had represented this property? MS. BOYLE-There were others. MR. CARVIN-Okay, and do you know if they were all commercial, or if this has ever been represented as a residential lot? - 12 - ',,--/ ---- MS. BOYLE-I don't believe it's ever been presented as residential property. MR. CARVIN-Okay. So, to the best of your knowledge, it's never been represented as a residential lot? Okay. Thank you. DR. ORBAN-If I could make just one more response in light of one of the last gentleman's questions, regarding the egress and ingress pattern on Dixon Court. That was what was suggested to me, suggested by a person at the township office, that because of the traffic pattern that exists right now, that that's probably what would be advisable from the Town of Queensbury, to limit, or eliminate access immediately off of Dixon Road. That would be safer than having traffic, than the have an access right off of Dixon Road. I'm certainly not bound to that. Obviously, (lost word) what the Planning Board's suggestion was up to Code. MR. CARVIN-Okay. Again, Jim, a procedural thing. referred to site plan review, they would look at issue and traffic flow and patterns? If this is the traffic MR. MARTIN-Yes. configuration on issues. They would look at that, as well as the site, landscaping, and all those parking types of MR. CARVIN-Okay. MR. MARTIN-That's why it's Staff's recommendation that it go to that, should the Board see fit. MR. CARVIN-Okay. MR. CHOPPA-One final thing. I do agree with some of the people that have spoken. The beauty salon does create a lot of traffic. There's no question about that. I know. I also know that I have clients that are CPA's and such, that have expressed interest in that location, but wouldn't do it because of the amount of money that would have to be spent. I guess my question to Dr. Orban is, how about looking at another profession, such as a CPA, who has very little traffic flow, like yourself? I don't think the neighborhood would object to you, but I think it's pretty obvious, from what you've heard, they're concerned, as well as ~ am, about the other half, and a beauty parlor just isn't going to make it. A CPA or something like that, I don't think we'd have a problem. DR. ORBAN-Once again, I have no problem with your suggestion in any way. If it's deemed the neighborhood absolutely opposes one type of business there, and if that's deemed by the variance from the Board, I'm not going to say, no, I'm not going to go through this, because that business would not be permitted in there. It's like my idea is, on an overview, that I would consider renting that to any other profession. The only reason the whole beauty parlor issue came up at all is because I was approached by someone who said, look, if you're going to (lost word) that, I might be interested, and that person happened to be a beautician. MR. CHOPPA-Would you grant him an okay to go in with that, if he doesn't have the other side rented. Then say six months down the road, what happens when he wants to rent it? Does he have to ask you to just start allover again, or does he, then, have carte blanche to put whatever he wants in there? MR. CARVIN-Well, again, I can only speak for myself. I would be opposed to a carte blanche situation, but that would have to be addressed in the motion. In other words, if a motion is made to grant the variance, I think that should be spelled out, that this would be only fo," the dentist and no other situation, at this point. Okay. I'm going to ask, one last time, for any public - 13 - '- ~! comment. SANDRA ORBAN MRS. ORBAN-I'm Mrs. Orban, and just to put your mind at ease, think about it. Would you go to a surgeon that had a trashy looking office? We take very good care of our home. The office will be taken care of. It will be presentable. It has to be. We don't have a choice. We have an image to' keep Lip, too. Patients won't go to an office that isn't taken care of, because they're going to wonder what the surgeons are like if the office isn't taken care of. So the office would be presentable. As far as having exact plans for you right now, we really couldn't. We were initially told there wouldn't be a variance problem, and then we found out there WðS, and that's why we've taken this approach first, because we didn't even know if we would get past he)"e. DR. ORBAN-That discussion, in regard to the other gentleman's question about what are the specifics of the exterior of the building. I can't be sure because I need to know that I'm going to be able to safely use the property for my purposes, before I can draw up a final set of plans, and made final decision, find out what's being done, exactly, with regard to the appearance of the building (lost word). MR. CARVIN-Okay. redundant. I hate to say, one last time, again, it's WALT REYNOLDS MR. REYNOLDS-I'm Walt Reynolds, at 17 Northup Drive. I would go along with one thing. I think that you really should consider the other applicant of this building. Looking down the line, what could happen, in other words, if somebody moved in and somebody moved out, and you've got people coming and coming out, being different tenants. I think that's one of the considerations to go along with the traffic study. If all this traffic is coming, being deviated down from Aviation Road, you come down there in the morning, or in the afternoon, you can see a tremendous amount of traffic. MR. CARVIN-Okay. I will now close the public hearing. PUBLIC HEARING CLOSED MR. CARVIN-Okay. I'm also going to address the Board here, first. I think that I'm going to move that we table the vote on this, until we have a little bit fuller Board, but I will open up the discussion, if the Board has any discussion that they wish to make comment on at this point. MR. MARESCO-I do. I would definitely like to see some, actually, I'm going to re-phrase that. I would like to see some definite plans on the up-grading of the building, the landscaping, the signage, things like that, what exactly is going to be done to the property. Also, definitely would put some restrictions on exactly what the back of that property is going to be used for, definitely no carte blanche to do anything, but I'd like to see that property upgraded, but I would just like to know exactly how it's going to be. I have no problem with putting a dental office in there at all, but I'd just like to see some definite plans on exactly what's going to be done. That's m.z::.. view. MR. CARVIN-Okay. Dave, any comments? MR. MENTER-I would, in answer tò some of those issues, 1 like to see it sent for site plan review, regardless, which take cafe of a lot of those questions, in terms of what was to be done with the property, access and egress, etc. The would would going other - 14 - '- -" thing is, since, and I agree with Fred that what we should be doing with this is tabling it. I would, personally, like to see a little more evidence, in terms of the lack of reasonable return as residential, primarily because it is, if I'm not mistaken, large enough to be two lots in that zone. Is that correct? DR. ORBAN-That is two lots. MR. MENTER-But can it be utilized as two residential lots, or am I missing something? MS. CIPPERLY-Well, they're pre-existing lots. The one next to Mr. Choppa, I believe, is 50 or 75 feet wide, which is difficult, 75. MR. MENTER-So it's two separate lots now, deeded two separate lots? MS. CIPPERLY-Yes. The advantage to that, in terms of this project, is that, as far as permeability requirements and buffers between residential zones, that extra lot, that's what that would be, normally between a, if this were in two separate zones, you'd require a 50 foot buffer between these sorts of things. So that has a nice aspect of maintaining a separation between the use, but the perméability, because the major corner portion is paved, the permeability is virtually none. So that additional lot helps satisfy that permeability requirement. MR. CARVIN-Anything else, Dave? MR. MENTER-Am I right in that there's two separate lots, one is 75 by 150, approximately. Is that how it's drawn on the scale? DR. ORBAN-Yes. MR. MENTER-That's where those numbers come from? Okay. all i would have to say. That's MR. CARVIN-Chris? MR. THOMAS-Yes. I have no problem putting the dentist office in there. I do have a problem giving an open ticket for any other business going in that back lot, and before I'd vote on it, I'd really want to hear what the Planning Board has to say about this, mostly about the traffic, the landscaping, what the building's going to look like, and any other criteria that they can come up with. MR. CARVIN-Okay. Planning Board for plan review? Are you saying that we should send this to the an opinion, or just send it to them for site MR. THOMAS-Send it to site plan review. MR. CARVIN-Okay. I guess my comments are I think that the Board has to address a couple of issues, here. The first is, this is a residential zone. This particular use has been discontinued for 18 months. I am extremely concerned about the lack of marketability as a residence. I still do not have a real grasp whether that property can be sold as a yesidential lot. I think one of the neighbors has a very valid point, that this is a residence, a residential zone, and driving up and using my memory along Dixon Road, I think he is correct. I think if we were to allow this to go in, that really would be the only business, until you get up to the Evergreen Park, which is on the upper portion there. So I do have, a real concern about putting a commercial venture in a residential zone, but if the Board moves in that direction, I think that the other points that you have brought out really have to be addressed. So I would be totally in favor of referring this to site plan review. I think that - 15 - ---- there should be some severe restrictions, as far as signage, parking, landscaping, and so forth, in other words, some of the issues that have been addressed by staff. So I think that we have our homework cut out for us. Is there anything that the Board wants the applicant to submit between now and then. I mean, Tony, you indicated you'd like to see some landscaping plans and things? MR. MARESCO-Yes, landscaping, and exactly what's going to be done with the frontal building, signage. I'd like to see something 11 ke that. MR. CARVIN-Is that a problem to come up with the floor plan, in other words, exactly what you're floor plan's going to look like, what your lot ~lan, as far as, you know, some of these issues? DR. ORBAN-A floor plan is an expense of several thousand dollars. I can submit a tentative floor plan to you tonight, if you'd like that would probably not vary significantly from my office, but might have some minor changes. It wouldn't be the final plan. To draw actual plot pl~ns up with all the details, like I said, that's an expense of several thousand dollars. MR. CARVIN-Well, I think what I.Q..ID:. is referring to is that he would like to see, you know, at least a rough idea, certainly a being point, if nothing else. DR. ORBAN-Then I can give you more of a rough idea. MR. MARESCO-Were you speaking about the interior? DR. ORBAN-Yes. MR. MARESCO-I'm speaking more on thè exterior. DR. ORBAN-The floor plan, to me, is interior. MR. CARVIN-Yes. I'd like to know exactly how much of the interior space you plan on utilizing, and how much space is going to be allocated to "another type of business". DR. ORBAN-We have those figures. MR. CARVIN-Okay. The other thing that I would like, or suggest that you get, is, from maybe two or three other real estate agents, and again, I don't know if this can be done, but ~ would like to see more documentation what the real value would be if that was as a residential site, as opposed to a commercial. I thi nk we need to get some ha,"d numbers there. If this, indeed, is a viable residential lot, I'd like to see some kind of substantiation of that. MR. MENTER-And if it's not, you know, we'd like to be shown that, too. MR. CARVIN-Yes, and if it's not, you know, just documentation. DR. ORBAN-Okay. Concerns are? MR. MARESCO-Landscaping, facade of the building. DR. ORBAN-Traffic. MR. CARVIN-Yes, parking, and again, the signage. I don't want to have a neon sign flashing in a residential area, you know, some kind of rough idea. DR. ORBAN-Okay, landscaping, facade. MS. CIPPERLY-Operating hours. Do you do evening appointments at - 16 - '--' .-- all, or is this purely day time? DR. ORBAN-No. Our scheduled hours are until five o'clock, but, yes, like I said, we get out of there sometimes, on rare occasions, until seven, that may happen a couple of times a year, and then sometimes until five thirty. There are no scheduled eveni ng hours. MR. CARVIN-Okay, and I would also suggest maybe contacting some of the neighbors, just to, a lot of times they'll make comments in private that they won't make in public, and I think anything that you can do to address any of their issues, to alleviate some of their concerns and fears, and so forth, will go a long ways in maybe convincing this Board to grant a variance in that site. DR. ORBAN-I'm not sure how to quite read that, talk to people and ask them to indicate to you. MR. CARVIN-Well, not necessarily to us, but, I mean, we've had some public comment, and I don't know who else is, I'm sure that there's neighbors out there who mayor may not have an opinion on this, but if you can come up with a viable plan to alleviate a lot of their concerns, I think it will go a long ways in promoting your cause, because as I said, ~ biggest, and this is only me, I just have a very hard time putting commercial ventures into residential areas. DR. ORBAN-The submission of these items go to this Board? MR. CARVIN-I guess is goes to. MS. CIPPERLY-To our office. MR. CARVIN-To their office. We normally table for 60 days. Do you think that that is an appropriate time? MS. CIPPERLY-You can come back sooner. MR. CARVIN-You can come back sooner. DR. ORBAN-I'd like to come back sooner. MR. MARTIN-Well, what I'd like to establish is a date for submission, so we can reasonably get these in and review them, get them in your packets in time, and that type of thing. MR. CARVIN-Well, we table for 60 days. I think that that really depends upon the agenda, right, and how fast? MR. MARTIN-Well, today was the submission deadline for March, for example. If you want to give special consideration, we can accommodate that, but I don't want it to get out of hand, either. MR. CARVIN-Yes. What's March look like? I'm afraid to ask. MS. CIPPERLY-There's not much. MR. CARVIN-Okay. Well, if we can put it on March. I mean, if the applicant can come back with his plans. MR. MARTIN-When can you get this information to us by? DR. ORBAN-I don't know. MR. MARTIN-Okay. That's an honest answer. DR. ORBAN-I have no idea, really. I've not been through this, as far as, you know, getting landscaping plans, stuff like that, and I really don't know. - 17 - -- .~-" MR. CARVIN-Well, if we can do it for March. DR. ORBAN-I will certainly know by, I certainly would hope to do it by next month. MR. CARVIN-I've closed the public hearing. So, I mean, this is just submission for additional information. So if we don't make March, the~ we'll make April. DR. ORBAN-As far ás the landscaping, that's going to all be tied in with the traffic patterns, the parking spaces. MR. CARVIN-A lot of this the planning Board will be looking for .it anyway, so you'll be ahead of the curve as far as that's concerned, because I suspect that if this goes through, that it will be referred'to site plan review. So this is information that you will have to eventually gather anyway. All right. Then I will make a motion to table. MOTION TO TABLE USE VARIANCE ~O. 9-1995 ROBERT E. ORBAN. JR., Introduced by Fred CaTvin who moved for its adoption, seconded by Anthony Maresco: Pending no later than 60 days. This means that any new information requested by this Board must be submitted by the filing deadline for that month. The applicant may appear on the agenda in the previous month if the filing deadline for that month can be met. Duly adopted this 22nd day of February, 1995, by the following vote: MR. MARTIN-In this submission for the Wednesday in March, essentially, have a case, that means you have until the March April meetin9s. That would be the last to get all this information together. You, month. DR. ORBAN-So you're telling me that submitting and everything ready for the March meeting here is out of the question? MR. MARTIN-No, no. I'm not saying that's out. I'm saying that's the absolute final date. DR. ORBAN-Okay. MR. MARTIN-If you can make March, great. If you can't, then April would be your absolute limit. MS. CIPPERLY-We've closed the public hearing on this, right? MR. CARVIN-That's correct. All right. That is my motion. AYES: Mr. Menter, Mr. Maresco, Mr. Thomas, Mr. Carvin NOES: NONE ABSENT: Mr. Karpeles, Mr. Ford NOTICE OF APPEAL NO. 3-95 JOHN P. CUSHING APPEAL BY JOHN P. CUSHING REGARDING PROPERTY OWNED BY DOROTHY HODGKINS, CLEVERDALE, ASSERTING THAT CURRENT SITUATION VIOLATES SECTION 179-12C, WHICH STATES THAT THERE SHALL BE NO MORE THAN ONE (1) PRINCIPAL BUILDING IN A RESIDENTIAL ZONE ON ANY SINGLE LOT LESS THAN TWO (2) ACRES IN SIZE. LOCATION: 'TAX MAP NO. 13-1-10, CLEVERDALE ROAD JOHN AND MARION CUSHING, PRESENT STAFF INPUT - 18 - '-'"' '- Notes from Staff, Notice of Appeal No. 3-95, John P. Cushing, Meeting Date: February 22, 1995 "Cushing Appeal concerning Hodgkins property Reason for Appeal Appellant believes that the garage/guest house situated on the Hodgkins property constitutes a second dwelling, and that it is in violation of Section 179-12C of the Zoning Ordinance, which does not allow more than one principal structure on less than two acres. Background A building permit was issued to construct a two-story garage on 9/9/93. Certificate of Occupancy 1/10/94. A ZBA decision on expansion of the existing house was made March 16, 1994, followed by Planning Board approval on March 22, 1994. The resolution provided for an 800 s.f. addition to a 608 s.f. house. There was discussion of the garage, and the potential for guest rooms on the second floor of it. There was no mention of the garage in the resolution. A building permit for alterations to the second floor of the garage to create guest bedrooms and a bathroom was approved 5/23/94, CO on 7/29/94. At the request of the appellant, Jim Martin, Zoning Administrator, issued a letter December 19, 1994, confirming his decision, made when the permit was issued, that this did not constitute a second dwelling. It was also explained several times p~ior to December why this did not constitute a second principal dwelling, the main factor being the lack of a kitchen. A building permit for the house expansion was issued on 1/23/95. When work began on the house, it was realized that the existing house could not be readily utilized as a base for the new structure, and it was demolished. This does not agree with the variance as granted, but is a separate issue from the question posed by this appeal. Zoning Ordinance- Sections which may be applicable Section 179-12C - Use regulations (5) Principal buildings in residential zones. There shall be no more than one principal building in a residential zone on any single lot less than two acres in size. Subdivision approval shall be required for more than one principal building on such lot, which shall not be granted if the zoning district maximum density is not met. Section 179-7 - Dwelling Unit A building or portion thereof providing complete housekeeping facilities for one (1) family. Section 179-7 - Single-family dwelling - A building, not including a mobile home, of one or more stories of height above the main grade level, which is designed or used exclusively as the living quarters for one family, whether seasonal or year round. Section 179-7 used or families, their own - Multiple-family dwelling - Any building designed as a residence for two or more living independently of each other and doing cooking therein,.... Section 179-7 - Family - One or more persons occupying the premises and living as a single housekeeping unit, as distinguished from a group occupying a boarding house, lodging house, club, fraternity or hotel." MR. THOMAS-A letter, dated January 26, 1995, ,addr.essed to Mr. James M. Martin "Dear Mr. Martin: We are in receipt of your letter of December 19, 1994 regarding the newly built structure on the property of Dorothy Hodgkins on Mason Road, Cleverdale. In your letter, it is your Judgement that this structure is being used as a garage and not as a residence. It is our strong feeling that this structure is not being used as a garage but as a residence and therefore is in violation of Queensbury's Zoning Code. At a hearing that I attended last year on the proposed expansion of their current home it was stated that this structure - 19 - would be used for a garage and for strictly storage i~ the upper level. As it is now being used as a residential property and their original home is being expanded for residential purposes, it is my strong feeling that the violation is two (2) residential properties where the Code calls for one (1). We therefore strongly disagree with your decision of December 19, 1994 that this is a garage and appeal your decision. Sincerely, John P. Cushing Marion S. Cushing" A letter dated'December 19, 1994, to John P. tushing, "Dear Jack: I am writing this letter in response to your inquiry of December 13, 1994, regarding the possibility of a zoning violation at the garage of Dorothy Hodgkins on Mason Road in Cleverdale. This garage was built earlier this year. The garage plan as approved indicated two garage bays with utility room on the first floor and a living area with two bedrooms and a bathroom on the second floor. The plan was approved in that the area of the footprint of the garage does not exceed900 sq. ft. and the use as proposed does not constitute a second dwelling unit on the parcel. To accurately assess the situation, Sue Cipþerly from our planning office visited the site on December 15, 1994. Her findings indicate the use of the structure is consistent wi t,h the plan as approved (see attached memo). We will continue to monitor the situation to assure that compliance is maintained. Should you have any further questions please feel free to call me at 745-4440. Sincerely, James M. Martin, AICP; Zoning Administrator Executive Director Community Devélopment" A correspondence to Jim Martin from Sue Cipperly, regarding the Hodgkins property, Cleverdale, "Per your rèquest, on December 15, 1994, I reviewed the Hodgkins garage site and the file, with the neighbors' cöncerns in mind and found the following: Outside - There are two white birch trees with blue marking paint on them, apparently indicating intent to remove them. One is a good-sized tree,leaning over the garage, and appears to have some holes i~ it. The other is also bending in nature, though not as big in diameter. Neither of these trees is within the 35-foot no-disturb zone of the lake. There are graveled areas below the eaves where normal runoff from the roof would fall. In fact, there was melt water doing exactly that while I was there. It did not appear that the existing topography was such that water would leave the property under normal weather conditions. InteriOr - The utility room contained a deep laundry sink on one wall, a washer, dryer, and refrigerator on the opposite wall. No cooking facilities were evident. A freestanding 3-4 foot long counter unit was near the laundry sink -- apparently salvaged from the house. As the Cushings stated, there is an antenna hook-up on one wall, and the outlets are placed at 'counter height' on all walls. Neither of these featuTes would have bearing on defining a kitchen or living space. The outlet height bould be out of concern for the grandchildren who will be using the space. A ground-fault outlet was at the same height, on a wall that wàs impossible to use for anything. Fire-rated sheetrock applièd to the garage area is required by the building codè where living areas are adjacent to a garage." MR. CARVIN-Okay. Mr. Cushing, do you have anything to add? MR. CUSHING-Are you going to read letters into the record, or is this? MR. CARVIN-This is your opportunity to add anything to appeal. As I said, the format of the meeting will be that would give you an opportunity. We would give Mr. Hodgkins opportunity. I then would open it up to the public. After public hearing, we would then read any correspondence into record. So, if we have letters, they will be read in. your we an the the MR. CUSHING-Okay. Thank you for having me here this evening and allowing me to speak. I am going to represent myself. I have no lawyer engaged in this activity. So, I'll be my own lawyer, so to speak. My name is John Cushing P. Cushing, and I reside, and - 20 - ',-, ---' my mailing address, is at 8 Orchard Drive in the Town of Queensbury. I have a summer home on Mason Road in Cleverdale, in the Town of Queensbury, and this home is next to the Hodgkins property, to the north. Although I call our Mason Road home a summer home, it is fully insulated, and could be used year round. I have come before you this evening with a very heavy heart. I am not one to argue with our neighbors. I am not vindictive in any way, and I have delayed this action until now simply because I was hoping against hope that I was wrong, that my eyes were deceiving me, but I can no longer hold back, and I have been urged by many neighbors to take action. We, and I mean most of the residents of Cleverdale, have been deceived by the lack of good faith and duplicity and it is getting worse. Allover Cleverdale, and especially as we approach Ripley Point, is considered a Critical Environmental Area. There are very strict rules and regulations regarding this environmentally sensitive area, by the Town of Queensbury, by the Lake George Park Commission, and by the Adirondack Park, but when residents do not follow the rules, and the governing bodies let them slide through, then we have unregulated growth, and it is detrimental to all the residents. The key phrase here is that growth must not adversely affect the integrity of the neighborhood, but I maintain that that is happening. Number One, it's hurting the environmentally sound, sensitive area. It is adversely affecting the integrity of our neighborhood, and it is violating the Town of Queensbury's Zoning rules, just to name a few, and as a result, I am here this evening to stand up and be counted and say, STOP. Do not let these travesties continue any longer. Common sense must prevail. Logical judgement must be adhered to and maintained, and at this point, I would like to review for the Zoning Board of Appeals a chronological history of what has happened. Back in early summer of 1993, the late Mr. John Hodgkins invited me over to his house to discuss his plans for expanding, and I emphasize the word "expand", for expanding his present residence. He explained that he wanted to expand 20 feet toward my property, as he desperately needed more space. Now he said emphatically that he wanted to expand on his present house, and that he would not be any closer to the lake. He did not mention any additions to the back of the residence or make any mention of a garage at that particular point in time, and I, at this time, nothing else was discussed except that. I, at that time, agreed, that this minimum expansion was a good idea and would simply not bother my wife or myself in any way. I agreed that I viewed this positively. We parted, and we said no more, and later that year, in 1993, we were awakened by bull dozers, chainsaws on trees, and earth removal equipment, all within 20 feet of our home. This was the beginning of the garage and storage building. I immediately went to the zoning codes office and looked at the plans and all was in order, insofar as Codes were concerned. Twenty feet from our property, back from the lake, closeness to the road, all those things, but the dimensions just flabbergasted all of us. Twenty-eight by twenty-four feet with a height of twenty-four feet, with a square footage of six hundred and seventy-two square feet, if you multiply that times two, because it's two stories, that's thirteen hundred and forty- four square feet. As this magnificent edifice grew, our modest home shrank in comparison, as it was towered over. It towered over our second floor and our roof and the other neighbors' buildings also. No longer could we see our modest home as we came down Mason Road. Only when we turned into the driveway could it be seen, and the topography of the land further meant that the back of our, the interior of our house was flooded in heavy thundershowers. Sue Cipperly was correct when she said that normal rainfall doesn't bother, but we get a lot of thunderstorms off, that lake, and every time we get a severe thunderstorm, our back of our house is inundated, and it's caused by the runoff from the structure, and the lack of permeation. No downspouts or gutters, might I add, but there was nothing any of us could do at all. It was all legal, said the Town. So we watched in dismay, and our neighbors watched and commented, and - 21 - -' we cried silently. I might add, never a word from the Hodgkins. No neighborliness. It's ou)' right, so take or leave it, and ~..¡e had to take it. Next, March 16, 1994, came the hearing before this Board on the variance to expand their current home, and I bring this up because everything is intertwined, and if you'll bear with me, you'll see how it is intertwined. Remember the word "expand", for I'll mention that later. I attended that meeting, and I said absolutely nothing. The garage was still a garage, and a storage space, I thought, and I had originally said okay on the extension or the expansion of the original home. A variance was granted for 800 additional square feet, and the original 608, giving them 1408 square feet, and the variances were granted for the lake setbacks. Now I think now is a good time to review some of the minutes of that meeting, and answe)' the questions that were raised regarding the garage. On Page Two of the minutes, which I would like to réad from here, on Page Two of ,the minutes, where it talks about the effects of the neighborhood or community, and I )"ead, these are the Staff Notes, by the way, that were given to the Zoning Board of Appeals. "Concerns have been expressed by neighbors regarding the two story garage constructed on the property last year, since there appears to be intent on the part of the applicant to utilize the upper floor as a guest room. Research into the building permit files and thé conversation with the applicant show that their intent to útilize the úpper level as à storage space. The space could be utilized for sleeping in, but is not been proposed to have toilet or cooking facilities". The key words here, in those minutes, simply are "èuest room", "perhaPs som~ sleeping in", "no toilets or cooking facilities", "storage only". This was March 16th. Going down further on this page just a tiny bit, was the comment, and they were talking about trees, and Mr. Hodgkins said, "very possibly in the construction the)'e is maybe, as I mentioned, a six inch one there, because, so they can get in, doing the work". I would like to just give to the Board a copy of this photograph of the little sapling that has grown to a huge birch, and that's a picture of what was really taken down, and I simply bring that up to show that all through this whole mess that we've got here, is what they say they're going to do, and what they do are two different things, all the time. On Page Three of the minutes, Mr. Carvin asks two questions, and I would repeat these questions, "I guess this is a one story, is it? Mr. Hodgkins - This would be a one story. And this", Mr. Carvin says, "would be a one story also, 6r would this be two? No. We're talking about one story, cathedral ceilings." And I'll leave that, bring that up again, just talking about duplicity. Going further, on page Fi0e, which is very pertinent to the garage, Mr. Turner, who was then the Chairman of the Zoning Board of Appeals, said, "I guess I would have one comment, on the remarks made by staff about your garage. Is there an intent that that is going to be made into sleeping quarters upstairs? Mr. Hodgkins - At the present time, it coul-d be used, at the present time, it was put in for storage and a garage. You've got two cars, and it's also a great place to store a boat", and I might add right here, that the year and a half that the building has been up, it has never seen a car inside it. It's never been used as a garage. "but that is not the intent at the moment", said Mr. Hodgkins. "At some point, if our kids come up, they might sleep up there, but at the present time, there is no bath facilities in there." Those are the only things I want to quote from the minutes, because most of them hàve to do with other things. Now proceeding on this, the variance was granted and you heard what was said in the minutes, but on May 16, 1994, just a few short months along, this variance was given. This variance was given and a new building permit application was submitted and accepted by the Town. It never came back to the ZBA, but out of courtesy, I, personally would have thought that that would have been done. Now we have an extensive alteration, two sho)'t months after they had said nothing was foreseen. So how can you believe anything that's said? Further, upon examination of the original application for the garage, the new alteration, eight months - 22 - '- --' later, the building has suddenly grown. It's grown from 672 square feet to 728 square feet, and you times that by two, because of the two floOTS, that goes from 1344 square feet to 1456, over 100 more square feet than the building. Who are we to believe? The dimensions from the old dimension of 28 times 24, grew from 28 to 26. Again, who are we to believe? The height changed, these are the building permits, from 24 feet to 23 feet. Again, who are we to believe? Also, on the building permit dated May 1994, for alterations to the garage, it states, nature of the proposed work, alterations to building, that's residence. Now I didn't put the word "residence" in there. They did, and they knew it was a residence, but someone forgot to tell them not to put that word in there. Also, on the architect's drawings of the renovated garage residence, I show the following, and I would like to share this with you, and we are talking about Northern Design drawings, and they are public records. I've made copies of this, and it's rough, but in the notes, the general notes that each builder or architect has, to go along with the drawings, I quote, I quote the fourth note, the fourth general note, "Kitchen, 8ath, dryer, exhaust all to vent to the exterior". Now, again, I didn't write that. I didn't put it in there. This clearly shows the intent, and who are we to believe? I'll believe the architect on this one. On Number Four, the door from the house to the garage to have three quarter (lost word) rated fire rated, and Number Eight, it talks about the common walls between the house and the garage. Throughout the architect's plan, they distinguish between the house and the garage. Why the distinction? Because they are different. It's not a garage. Not storage. The dictionary states that a house is a structure serving as a dwelling for one or several families, a residence. Again, who are you to believe? I go with the architect who really knew what the intent was, and I would like to pass this copy up to you, so that you can take a quick look at it. This is the architect's drawing, and as you look at that, what a magnificent second floor, what a huge living room, and two bedrooms, and a complete modern bathroom with full tub, and only two short months ago, a storage area. I ask you to think about intent. Other facts that you should know about this residence, Dorothy Hodgkins lived there most of last summer. It is a total living environment, a residence. As a matter of fact, Mrs. Hodgkins has referred to this abode to neighbors as "my new home". This has been reported to us by neighbors. It may not have a stove yet, but hot plates, microwaves and other technologically advanced equipment, which are portable and would allow even gourmet meals, I have observed people eating and drinking while looking out of their magnificent picture windows, facing the lake. Again, think of intent. Also, they have a 50 amp fuse installed into the building, and this kind of fuse calls for heavy duty equipment, like a range or a welding unit. Now I don't believe they're going to use a welding unit. So, again, what is the intent? Again, the key thought here is a total living environment. In remodeling, please note, the very large picture windows facing the lake. It appears to be ceiling to floor. Made for storage boxes? I think not. Again, look at intent. I want to pass out some pictures to you that will depict this structure, and as they say, a picture is worth a thousand words. As you look at these pictures, I can only ask you, does that look like a garage to you, and storage space? It is clearly a residence and, again, the dictionary states a residence, a place in which one lives, a total living environment, including refrigerator, sinks, washer, dryer, full bathrooms, blenders, coffee makers, etc. In addition, I bring the following to your attention. When the bathroom was put in, the pipe for water source were already in, the cap, that the original statement, no toilets planned. If one were to look closely, you will probably and undoubtedly other pipes, water pipes, to the upper level, staffed and ready to go. What is the intent? In addition, I bring to your attention that last June the 29th, 1994, the Town of Queensbury Appraiser visited this residence and appraised the property on the basis of two bedrooms, living room and dining - 23 - --' --- room, one bath, kitchen down, electric base board heat. It is approved RG7 Garage with Apartment. Need I say more. In talking with the Appraiser, he was told by a person working there that the kitchen would be downstairs. In addition, I bring your attention to the municipal certificate, electrical approval, dated 7/18/94, for the garage residence expansion. In installing electrical equipment, they have 27 switches and 35 receptacles. Does this sound like a garage and storage? But it does sound like a total living environment. With everything that I have said, let me draw an analogy. If it smells like a rose, if it feels like a rose, and it looks like a rose, then it is a Yose. If this structure looks like a residence, has all the conveniences of a residence, it is used as a residence, with people living in it, and it is a total living environmental, then by golly it is a residence, and the last chronological order of events, the last building permit application was submitted and approved in December of 1994, and work began in January. This is the house, but it's intertwined with the garage, and again, intent and duplicity is my motive here. The discrepancies that I found when I was studying this is that the square footage has increased from the original variance given from 1408 feet to 2200 square feet, and a second floor has been added, where the original milÎutes it said one. I understand that it is now being investigated, but again, changes made in the hopes of getting it through unnoticed. So who do you believe? I would also ask that the ZBA, the Board, in light of the demolition, without a permit I might add, of the old home, is this now truly an expansion, or a whole new structure from ground up? I was led to believe that the original structure would remain and just be expanded upon. In my request to the Director of Community Development in December of 1994, I asked for another determination, and because Mr. Thomas has already read those letters, I will not ask to read them again, but his answer to me was not satisfactory, in that no one visited thè second floor of the residence. It was a visual inspection from the outside looking through the windows on the ground level. To me, that is not due diligence. It is a residence, a total living environment. I appealed this, and in my appeal, I said that in light of some errors that took place, and I would just like to go over a couple of errors, in the letter from Mr. Martin to me saying that it was not to be determined as a residence, in the letter, this letter was dated December 19, 1994, to me, all right. He states, this garage was built earlier this year. Wrong. It was not built in 1994. The garage was b8ilt in 1993, and they got a Certificate of Occupancy for their garage, and the garage was built in 1993, and then he goes on to state, the garage plan, as approved, indicated two garage bays with utility room on thè first floor and the living area two bedrooms and a bathroom on the second floor. That was not the intent, and that was not what was in the original garage plan. That came only in 1994, when they went over the expansion of the garage and gave approval of it. Yet this letter appears to say that these were part of the original plans for the garage, and then lastly, the plan was approved, in that the area of the footprint of the garage does not exceed 900 square feet, and the use proposed does not constitute a second dwelling unit on the par cel . I have tal ked with legal counsel' abòut" thá.t, ahd t'her e is some ambiguity in that, but some people are saying that you count both floors, so far as not just the footprint, so that the total square footage of both these floors and this building would be 1456 square feet, not the 728 that finally came out of it. So, in light of these areas, I feel that the answer to my letter, as determined, letter of determination is flawed, and not consistent with the facts. Làétly, I and ~y neighbors feel that these buildings are in violation of Section 179--12C of the Zoning Code, that you do not allow more than one principal building on a lot which is less than two acres, and of course this one is less than a half acre in size. Remember some of the key phrases that I have used, Critical En~ironmental Area, Environmentally Sensitive Area, growth that will not adversely affect the integrity of the neighborhood, a total living environment, and - 24 - '~ '--'c intent, intent, intent. I request that the Zoning Board of Appeals, which is a body of common sense individuals, looks closely as to what has happened and correct the situation. That's my statement. Mr. Chairman, I think Marion would like to make a statement. MRS. CUSHING-We feel that the 1456 square foot building at the top of the hill, which was built with a permit for a garage with storage, has been, in fact, converted into a total living area. The contention that a stove makes the difference between a house or a garage is easily negated by the fact that numerous portable cooking facilities can be purchased to do a complete cooking and baking on the premises. A trip to the hardware store found a portable roaster oven which can roast a 22 pound turkey, cook up to 18 quarts of chili, bake fish, breads, pies, and a large ham or slow cook a full course meal. Also, available was a duel burner buffet range. It's a very elegant two burner hot plate with burners identical to those on the stove. So with four burner units and a portable oven, a complete portable stove is created, add the usual plug in appliances of a microwave oven, coffee pot, toaster, electric skillet, food steamer and rice cooker, deep fryer, crock pot, wok, waffle iron, toaster oven and broiler, and any family can eat well on a variety of foods. Also there is a laundry tub in the utility room which contains both hot and cold running water and a drain for waste water. By purchasing a brand new stainless steel sink, just that size, and placing it over the edges of the laundry tub, you can create a kitchen sink. Granted, it isn't as attractive a sink as one set in a lovely wood quaker made cabinet, but the use is the same. Meals can be prepared, washing vegetables and other food preparations can be done, dishes washed and kitchen cleaned up and there is a facility for the disposal of waste water, and all these portable situations can be made permanent in the future. Nowhere in the Queensbury Building Code book does it say you have to put in a conventional stove in a house. What it does say is, a dwelling unit is a building or portion thereof providing complete housekeeping facilities for one family. This is the Code on which this situation is being judged. Ninety-five percent of the house is acknowledged by all as being completed. We feel that the last five percent of use can be completed with plug in appliances, thus providing complete housekeeping facilities as the Code states. There is a say, do what I say, not what I do. They are saying it is a garage, but what they are doing is using it as a house. They lived in it last summer. They will live in it this summer while building the other house, and they will live in it or probably rent it each and every summer down the road, and that is the point. Their intended use of this building is as a house. MR. CARVIN-Okay. Thank you. Any questions? MRS. CUSHING-Thank you. MR. CARVIN-What I'd like to do, at this point, is open the public hearing. Anyone wishing to be heard in support of the appeal? PUBLIC HEARING OPENED BILLINGS WHEELER MR. WHEELER-My name is Billings Wheeler, and I live in Rutland, but I own a camp next to the Cushings', two houses up from the Hodgkins. What we seem to have here is not a problem of the Zoning Board's, but with the person, Dorothy Hodgkins, who blatantly flaunts the laws and regulations regarding variances, zoning and building regulations on Cleverdale and Lake George. She requested a garage with storage space, and built a garage with an apartment above it. She requested a variance to expand the original house more than 50 percent, and when this was granted with a one story limit, now plans to include a two story - 25 - "--' house, 12 feet from the lake, which violates the variance plus the required setbacks from the lake. To violate these agreements with the Zoning and Planning Board is a breach of public trust. It is unethical. I think it brings a tone of anarchy to this environment. It's very frusttating for us, and for those of us who attempt to abide by the rules and regulations, to see this happening. We do not know to whom to turn, and, the)-efore, make a plea to you set things right. Thank you. MR. CARVIN-Okay. Anyone els-e wishing to be heard in support? I'll now open it ûp to anyone wishing to oppose. MARTIN AUFFREDOU MR. AUFFREDOU-Good evening. My name is Martin Auffredou. I'm an attórney with the law firm of Bartlett, Pontiff, Stewart and Rhodes, and I represent Dorothy Hodgkins, the owner of the property. Here tonight with me, sitting by me, is Lee Horning, who is the contractor or the builder involved in this project from Day One, including as far· back as the public hearing and variance application and building permits and Certificates of Occupancy, etc. Dorothy Hodgkins is sitting here. Her son John Hodgkins the Third is sitting here, and her son David Hodgkins is sitting to her left. I think rather than address Mr. Cushing's statement piece by piebe, it woûld make a lot more sense and save us a lot more time if we just simply say, we deny it. We deny each and every word of it. We've heard words such as "anarchy". We've heard words such as "outrageous", etc., etc., and I just want to state for the record that we don't mean to mean-spirited here tonight. That's not our intent, but it really gets ~nder my skin when I hear people come to a public hearing and make accusations about people who are otherwise fine people, 900d people, well intentioned people, and people who have done everything according to permit process, done everything according to your Staff. There's absolutely no allegation by anyone on your Staff, no evidence at all from anyone from your Staff that they've done anything in violation at all, with regard to their garage, nothing at all, not one iota of evidence, not one shred of evidence, nothing. What we're left with is accusations from the public about this and about that. Mr. Hodgkins didn't tell me he was going to do this. Mr. Hodgkins didn't tell me he was going to do that. It's really irrelevant, is what it comes down to. I think one of the most important things here that must be considered by this Board is the timeliness of the appeal. We're talking about permits that were issued a long, long time ago. The Certificate of Occupancy was issued for the garage, was issued in July of 1994. Mr. Cushi ng did nothi ng for 'many months. We went ahead and built, all in compliance. The plans were there. Everything was there. It wasn't as if we were hiding something. It's outrageous for someone to say that we've misrepresented something. I'm offended by that. Everything was with your Staff. They may not have known about it, because they didn't look at it. Maybe they did know about it, but they didn't do anything about it, 'and we've gone ahead and built in accordance with the plans, the approved plans. We've gotten the permits. We've done everything that we've had to do. Everything is to Code. There is no allegation at all. There can't be any allegation at all, that this is a complete housekeeping unit. Are there bedrooms there on the second floor? Sure. Is there a bathroom there? Sure. Is there living space? Sure. Is it a residence? No. Has Mrs. Hodgkins staYed there? Sure she has. Shortly after the variance was granted. As a matter of fact, on March 26th, her husband, who was at the time of the variance representing himself, passed away, and at that time, she decided, after he died, that one of the things that could be done was to add some of the bedrooms on the garage~ There was talk about that all along~ One of the important points that Mr. Cushing failed to mention, in the minutes, had to be intentional, he stopped, on Page 5, he stopped. "At some point, if our kids come up, they might sleep up there, but at the present time, there is - 26 - '- -....,/ no bath facilities in there." That's where he stopped. Mr. Hodgkins went on to say, "I believe the general thing of it is up here, as long as there is no kitchen, and if there is no intent of ever having a kitchen, this would not be made into a second residence." It was discussed. It was well known that what they intended to do was put bedrooms up there. It was discussed. They went back. They got a building permit for it. They did it in compliance with the plans. It was done. There's no suggestion whatsoever that this is not in compliance with the issued permits. To even suggest otherwise is completely outrageous. Sue Cipperly went to the project site on December 15th and made a thorough review of it. It's my understanding that both Sue and Scott went through this entire structure. Sue reported to Jim exactly what she found. She found absolutely no evidence of a complete housekeeping unit. She found exactly what was called for in the plans. She found exactly what was called for in the amount of square footage. She found exactly what was called for by way of a foundation. She found exactly what was approved. Now if there is a problem with that, then I suggest that there was a problem with the original approval, but the fact of the matter is that this Zoning Board granted the approval. We went through site plan review with the Planning Board. We got our building permits. We did everything we had to do, and now it's costing my client a heck of a lot of money to be here tonight, a heck of a lot of heartache, a heck of a lot of stress, when we see absolutely no evidence at all that anything has been done wrong. Accusations that anybody can make. It seems to me, I don't know what's going on here, but it seems to me, and I hate to use the word "personal", but it seems to me that there's got to be something personal here. I've reviewed this. I've gone up and down it. I just don't see what the gripe is. MR. CARVIN-Okay. Anything else? Is that it? MR. AUFFREDOU-I just wanted to say, if you have any questions at all, as to what is in the second floor, what is there, Mr. Horning is here. He's be delighted to answer any questions that you have, delighted to testify as to what he built there, delighted to testify as to what's there, what isn't there, and how long it's been there. MR. CARVIN-Okay. Any questions? MR. AUFFREDOU-I'd just like to point out, I really want to stress this issue of timeliness, and I question whether the appeal is timely, and my client has every right to make that request. MR. CARVIN-I'm going to refer the timeliness issue to our Attorney. PAUL DUSEK, TOWN ATTORNEY MR. DUSEK-As far as the issue of time is concerned, I had an opportunity, recently, to do some study on that issue, and from what I'm finding is that, although normally you would simply measure, and the Ordinance provides for that, I believe, 60 days from the time that a decision is made by the Zoning Administrator. For instance, lets say that an applicant comes in and says, I want to build a garage, and the Zoning Administrator says, no, you can't build it because it's not allowed in that Zoning Ordinance, and he denies the building permit. The applicant, then, would have 60 days from the date that that building permit was issued, in which to contest that decision. Lets assume, for the sake of argument, that a building inspector says, the Zoning Board makes a decision, or a Planning Board does. Once again, this is 60 days from the decision making process or the permit being issued, if you will. However, what I have also found is that in the instance where a neighbor is concerned, they are not bound by that 60 days from the date of the permit. I find that you would measure the length of time - 27 - -- -- from a reasonable time period from which they received notice and took appropriate action. For instance, I came across one case where a neighbor found out that a permit was issued for a structure. The neighbor said, once he found out about it, and I think it was like within a reasonable length of time, maybe 30 days after it was issued, or whateve~ the time was, it wasn't until he saw something going on at the site, though, and when he noticed it, he contacted the Zoning Administrator. The Zoning Administrator, in turn, led him into a hearing, and the thing got dragged out for quite a while. Ultimately, the Zoning Administrator rendered a decision, or a decision was rendered by the ZBA. I can't 1"emember the exact fácts of the case, but the bottom line is that a decision was ultimately rendered on the complaint of the violation. The court said that the time period did not run from the date of the original permit, but rather from the date of the answer to the complaint that was given to that applicant. Applying those same facts to this particular case, I think that there's a strong case to be méde that the time runs from the time that the complainant had a response, which would be this past December, I believe, Mr. Martin formally responded to the complaint. However, having said that~ I think that the Board also has to examine all of the background facts to find out whether or not there was any reaso~ to believe that Mr. Cushing did not act at a proper time. Did he act at such a time that, in other words, I think you've got to take a look at the background circumstances, when did he find out, how much did he know, look at when a reasoflable time frame would have started at that point. Was it reasonable from December when he got the final decision, that that's when he should appeal to this Board, or should he have appealed to this Board sooner? I think you have to look into the facts a little bit more. I~ve noticed, just sitting here tonight, I'm a little unclear myself exactly what the transgression of events were herej because I'm hearing, I thought I heard that there was a permit for a gayage issued with storage. Then I guess I'm hearing something, some activity occurred with the ZBA. Then I'm hearing that there was yet another permit issued for the bedrooms, I guess. So I think that chain of events is important to establish, and I think it's important that you get a feel for exactly what happened and who did what when, and who knew what when, and when is a reasonable time for Mr. Cushing to have made that appeal, and I think you need to take a look at that. MR. CARVIN-Okay. I will continue the public hearing for anyone wishing to speak in opposition to the appeal? DOROTHY HODGKINS MRS. HODGKINS-My name is Dorothy Hodgkins. Yes, I love my garage. It's brand new, and my little house of 600 square feet was very small and very old, very cold. When my husband dropped dead in March, I decided shortly thereafter I didn't think I could sleep down there by the water all by myself. So I, therefore, decided to put the bedrooms and bathroom into the garage, and while I was doing it, I decided I was going to have laundry space up there, because there wasn't going to be much room for that in the addition of the house. So I went ahead and did that, and I love that garage. It's all brand new, and I made the larger windows because you couldn't see the lake if you sat down any time, we found out when we were up there one day, my son and I, having a sandwich while we were trying to decide what to do. You could not see the lake, and I said, what good is a spot at Lake George if you can't see the lake. So I enlarge the windows, in the living room, which is a play area, basically, for grandchildren, and went ahead and did that. So, anyway, this is what happened. However, the garage'got finished, and all summer I slept down by the water, and I wasn't afraid. I thought I was going to be, but I wasn't, and I stayed there, until my children from Georgia carne in August. They said, we're all goi ng to sta)l in one spot. Well, there's no room in a little house. So we all - 28 - ',,---, --../ went up and slept in the garage for the three nights they were there, and then after that, after Labor Day, it gets too cold. We've never stayed at 21 after Labor Day, and that's what we call the little house. We never stayed there because it's just plain too cold to sleep down there. So, I said, when I came up on weekends or whenever I came up, I slept up in the garage. I still had my kitchen down at the little house. I won't say I never made a cup of coffee. I actually don't drink regular coffee. I drink instant, so I went down and used the stove in the main house, heated my water, and sometimes I'd bring it up in a container to keep it hot. You will see in the upstairs in the garage, you'll see a microwave. That came from the main house. You'll see a toaster oven. That came from the main house. I put a plaid clothe from the table in the main house, it was on the kitchen table, over the mahogany table in the bedroom up there to set these things on, so they wouldn't be destroyed, they wouldn't destroy the table over the winter, while the house was being constructed. So if I'm guilty of anything, I'm guilty of loving Lake George. My husband loved it. He loved this side. He didn't like the other side. We were on the other side of the lake for many years, and he loved this west side, and my plan was to go ahead and expand the house, as he got the permission to do, and the extra bedroom and the space up there was so, if my children come, or if I have guests come, there's room, but I was really looking forward to using the new house, and the way things are going, I don't know if that's ever going to be either. Right now, I have nothing. I don't have a kitchen. r don't have any water. I have nothing. I have two bedrooms, a useless bathroom, a useless laundry. The refrigerator you see there was the one I purchased for the new house, because I got a good buy by buying three items at one time, instead of buying just the washer and dryer. I bought the large refrigerator for the new house, and that's what I'm guilty of, but, yes, I've said I love it, and I do love that garage. It's just so nice to have everything shiny and new, and I love to have people see it. I've taken people in to see it, and people have loved it. I have, by the way, if you'd like to know, I have three married children, and I have five grandchildren, and I hope that they will be spending a great deal of time. Three of the grandchildren are local. The other two are in Georgia. My oldest grandchild is turning five on the 26th, and she was planning on coming up to Lake George and spending a week or two with me this summer. Now, that's what's going on, and r also have some, I'm a widow now, and I have many widow friends, and I hope they were going to spend time with me also. So that's what it's all about, but what one person can do to occupy two places all time, I can't imagine, and I did not plan on renting it out. There's no way to rent it out. There's no way for anybody to live there. I mean, we lived over on the other side for many years. We have another place there. There was a boathouse. We never rented it out while we were there. We kept it for the family to use, and that's what this will be for. Thank you very much. MR. CARVIN-Any questions, gentlemen? speak in opposition to the appeal? Again, anyone wishing to LEE HORN I NG MR. HORNING-I'd like to point out a couple of things. We originally designed this garage for 26 by 28, and that's the way it was. We did this in two different stages. The first one we put the garage, and took the shell of the building out. The second one, when we got the second permit, we put two bedrooms, a bath, a living area upstairs, a garage out there, and a utility room, and that's all it was designed for. There are no future taps for any sink or anything else in there. There are no 50 amp outlets. It complies with exactly what the plan said. She has no desire putting a kitchen in this house at all. MR. CARVIN-Okay. Any questions of any of these gentlemen? - 29 - MR. MARESCO-I do have one. The bathroom that's in there, I mean, is everything hooked up, or nothing is? MR. HORNING-Everything is hooked up in the bathroom. MR. MARESCO-It's a functional bathroom? MR. HORNING-Correct. MR. CARVIN-Bath tub, shower? MR. HORNING-Yes. MR. CARVIN-Okay. I believe Mrs. Hodgkins indicated that there's no water. Is that because the pump. MR. HORNING-The other house is torn down now. water pumps there. So there is no MR. CARVIN-Okay, but my question is, is that because there's no pump facilities at this point, because it was destroyed in the other house? MR. HORNING-The water from this garage comes from the main residence. It does not have a separate water pump at all. MR. CARVIN-Okay, but that is a situation that could be installed? I mean, that's not a real problem is it, or is it a real problem to put a separate water pump at this point? MR. HORNING-At this point, yes, it is a problem. MR. CARVIN-Why would that be a problem, because the ground is frozen? MR. HORNING-No, because your house is in the way. foundation that gets in the way. You have a MR. CARVIN-Okay. When the other house is built, is that going to be reconnected? MR. HORNING-Yes, it is. MR. CARVIN-Okay, and what would be the mechanics there? Is there going to be a pump in the house that will service both? MR. HORNING-There'll be a water pump in the main residence, which will service the both houses. MR. CARVIN-Okay, but there would be a proble~ to put a water pump in the garage at this point, to service just the garage? See, I'm trying to find out what the distinction is here. I mean, we have to have a 1400 square foot house to cover the pump, but we can't have a pump in the garage? MR. HORNING-It is possible. MR. CARVIN-Okay. How about the sewer, is that on a separate sewer system, or is it tied into the? MR. HORNING-That's tied into the same sewer system. MR. CARVIN-Okay, and that's the old system, is it, from the original house? MR. HORNING-COrrect, yes. MR. CARVIN-Okay. Has that system ever failed? MR. HORNING-No. - 30 - "---' --./ MR. CARVIN-Okay. Would you anticipate failure, or is that system up to specs, as far as having the two residences? MR. HORNING-I don't anticipate failure of that system, no. MR. CARVIN-Okay. MS. CIPPERLY-There's a description of that system in the minutes from the original variance hearing, and I believe John Hodgkins talked to Dave Hatin about that. So, whatever their discussion was. MR. AUFFREDOU-If you follow down from Page Five where I left off the1-e is. MR. CARVIN-This is for the house, though. about the house. I'm not concerned MS. CIPPERLY-It's the same system. MR. AUFFREDOU-It's the same system. MR. CARVIN-It's assumption that poi nt. the same system, okay, but I'm under the the garage was not tied into that system at that MR. HORNING-It's all tied into one. MR. CARVIN-Was this garage tied in in March? MR. HORNING-Yes, it was. JOHN HODGKINS, III MR. HODGKINS-In March of when? MR. CARVIN-In 1994. MR. HODGKINS-It wasn't tied in word) . MR. CARVIN-Which was? MR. HODGKINS-The summer. until completion of the (lost MR. CARVIN-Of? In other words, after this meeting? MS. CIPPERLY-Yes. MR. CARVIN-So I'm assuming that at this point, the system is only referring to the house, and not the house and garage? MR. HODGKINS-That's right. MR. CARVIN-Okay. MS. CIPPERLY-But that's what's servicing. in the ground, and that's MR. CARVIN-Okay, but at this point, this information is based only on the house, and not the house and the garage. MR. MARTIN-There were questions in the minutes, in that meeting, about what would happen if living space were to go in the garage. Can your septic system handle a second bath, and that's where, from the middle of Page Five on down, it speaks to the possibility of living area in the garage, being serviced by the existing septic system for the house. MR. CARVIN-Okay, but when they're referring to second bath, I'm - 31 - not sure they're referring to a bath and the original structure, and then a second bath in the addition, and not the garage. MR. MARTIN-Well, the question is asked right after Mr. Hodgkins says, he speaks about the living area in the garage. MR. AUFFREDOU-I actually thought the capacity of the system was based upon the (lost word). MR. MARTIN-And that's what it says further on. MR. AUFFREDOU-The bathrooms. number of bedrooms, not the numbe)" of MR. MARTIN-That's the very next thing that's said, on Page Five of the minutes. 'Okay, but that's what I'm saying, are they referring, when they say second bath, to a bath in the house or the garage? It must be that they're referring to the garage at this point? See, at the present time, there were no bath facilities in the garage, all right, but when Miss Hauser asked the question, can your septic system handle a second bath, I still am unclear as to whether she, I'm assuming that there was a bath in the original house, the original 607 square feet. So I don't know'if there was a second bath being planned for the addition. MR. AUFFREDOU-I wasn't at that meeting,· obviously, follows that question, I can speculate, but I certain, only that since that question follows between Mr. Turner and Mr. Hodgkins, Sr. about. but since that can't say for the discussion MR. CARVIN-See, the leach field's at the top of the hill, and that's why I'm under the assumption that they're talking about the house, because if there's going to be a second bath in the house, are we going to get the effluent up the hill? MR. AUFFREDOU-Mr. Hodgkins, Sr. just got done talking about the fact that there was no bath facilities above the garage at that time, and the question follows, can your septic system handle a second bath. I can't say for certain, but it may be that Miss Hauser was referring to the garage issue. I don't know. It's unclear, but again, I was under the impression that the capacity of a septic system was based on the number of bedrooms. MR. MARTIN-That's co)"rect. MR. AUFFREDOU-Not the number of bathrooms. MR. MARESCO-It is. Yes. MR. CARVIN-Okay. Any other 'questions? All right. Again, anyone wishing to speak in opposition? All right. I will ask Mr. Cushing if he has any comments, as far as a rebuttal? LADY IN AUDIENCE-Could I just ask a question, do they have to have an updated septic system? People next to us barely can fit one into their 60 foot lot. How are they having a septic and all this stuff on their little lot with houses and garages and everything else? MR. CARVIN-I think it's a very valid ~uestion, and I don't have an answer for you. MR. AUFFREDOU-You know what I'm going to do? John the Third is familiar with the septic system, more so than I, and maybe if he could enlighten us on that issue. MR. HODGKINS-The septic system that was put in, it was installed by my grandfather, who is a Civil Engineer, PED, owned a Plumbing and Heating Supply house. Between, they owned houses on both - 32 - "--"' ...J sides of the point. One up next to the church (lost word) on the right side, and this house down here. They installed all brand new septic systems when on the different sites, and the septic system's fairly elaborate. It takes it from the house and goes into a septic tank which is behind a retaining wall, and the existing retaining wall's still there. As that septic system fills up and gets good capacity, it overflows into the holding tank with a pump, and that pump brings it all the way up to the top of the hill. So it's at the farthest most point of the property. That whole side of the property, if you look at the plot plan, it is the opposite side from where the garage is. That's why the garage is on one side, because that whole area is a leaching area, which is divided up into five separate bays, five or six separate bays that come across that whole area, and in that area up there is a leach area. It's a fairly large system. Most systems are on a point. They dump into, either into their cess pool or their septic tank and flow downhill. This one brings it all the way back uphill. So I think that as far as being complete and operational, we haven't had any problems with it. The property has been well used, as far as that goes. There hasn't been any problems with it. It's been well maintained. We don't anticipate, ourselves, any difficulties at all. In fact, that leach field at the top of the hill is, the front of the leach field comes out concrete, so it doesn't allow the effluent to run back down the hill, subterrain. So it seems to me, and I'm not an engineer, but (lost word). MR. MARTIN-Fred, to answer the question, and I say this only on reference from what I've heard Dave Hatin describe this, as long as,a system is existing, and not failing, and no alteration is proposed, then the system can be maintained. An alteration constitutes any change in the ground itself, meaning a change in the tank or the leach lines. MR. CARVIN~Okay. Well, I guess the only question that I have to that is the garage connection. Is that at the top of the hill, or at the top of the hill? Did they tie in at the top, or does it come all the way down to the bottom, and then get pumped up? MR. HODGKINS-It had to go by, through the house. MR. CARVIN-So at this point, because the house is not there, I'm assuming the pump is not working. MR. HODGKINS-There's nothing, no water in, no water out, at this point. MR. CARVIN-There's no system at all. MR. HODGKINS-Until this house is complete, we're basically shut down. In fact, I did talk to Dave about that today, and he said to me that if we are delayed, which I hope we're not, Dave Hatin, he said that that can be hooked back up, and there's nothing to stop us from hooking that back into the system so it's operational again. MR. CARVIN-Okay. down? Where's he suggesting, at the top so it goes MR. HODGKINS-It has to go through the original system. You cannot alter a system. You cannot touch the tanks. You can't touch the leach fields. The only thing you can adjust are the pipes between the anything, and that's called a minor repair they call it. So any pipes can be repaired, no tanks. This is what he told me today. So no tanks can be touched, and no leach fields can be touched. MR. CARVIN-Okay, well by minor repair, how far is the garage to the connection? I'm assuming, I was going to say, it's got to be more than a minor repair. - 33 - MR. HODGKINS-I was explaining this. He's aware of what I was explaining. To be honest with you, it doesn't make sense, but it's the way the rules are, and some of these rules don't, you know, to the layman they might not make sense, but in o)"der to follow them, that's what you have to do. MR. CARVIN-Okay. Any other questions on the septic, at this point? Okay. Then I will open up the rebuttal, I guess. Mr. Cushing, Mrs. Cushing. MR. CUSHING-I'll defer to the other folks here for the moment, and I'll come up last. SCOTT CUSHING MR. CUSHING-I'm Scott Cushing. My parents live north of the property. I had a question to John. Tonight you state that your grandfather was a professional engineer, Civil Engineer. MR. HODGKINS-He's a professional engineer. He's a licensed engineer. He has a plumbing heating supply company out of Albany and Plattsburgh. That was his business also. MR. CUSHING-So I take it that he had a degree, a 8.S. in engineering? MR. HODGKINS-As far as, my grandfather was dead when I was two years old. He went to RPI for engineering, and he went through that. I can't comment anymore than that, other than that they were a supply house for all these types of materials. I guess my point was, they weren't skimping on materials for septic systems. They didn't have to go down to the warehouse. A gentleman, Alger Mason, on the streét, used to do a lot of work around the area. He had a key to our garage so that he could go in and pullout the pipes he needed, and the different things he needed that were supplies that my grandfather had. MR. CUSHING-Okay. engineering? Your grandfather went to college for MR. HODGKINS-He went to RPI. MR. CUSHING-That's all I needed to know. MR. AUFFREDOU-This isn't the first time that a reference to Mr. Hodgkins, Sr. being a professional engineer has been before this Board. It's clearly stated'in the minutes. MR. CARVIN-Okay. Well, I'm not sure it's germane, because it reverts back to the ToWn of Queensbury, as long as it's in with compliance, I don't particularly care whether your grandfather had a Ph.d., no offense. MR. CARVIN-Okay. Somebody over here had a comment? JEAN MEYER MRS. MEYER-My name is Jean Meyer. I live in Cleverdale. We've had property at Cleverdale, in Perkins Point, for over 100 years. So I am very:concerned about what this Cleverdale is going to be looking at. I, too, have five gråndchildren, and I'm wondering what it's going to look like, and 42 years ago, when my husband and I were ~arried, we rented your cottage. So we're well aware of it. I think the atmosphere at Cleverdale has gotten to the point where it's neighbor against neighb01", and we're just wondering if this Board is going to ever say no to anybody. MR. CARVIN-Okay. Thank you. Okay. Mrs. Cushing. MRS. CUSHING-I would like to clarlfy the point about the timing - 34 - "-...-- ---,' of this appeal. I did explain it to John, because he filed our appeal at 2 o'clock, and he called us at 4 o'clock, and he did ask us that question, and I explained it to him, that when they started the renovations on the garage, when they started the alterations, there wasn't any announcement of it or any hearing or anything. So we went up to the Planning Board and asked, and we were told by the Planning Board that Dorothy was very sentimental about losing her husband, and I can honestly say Jack Hodgkins was a terrific person, but she was very sentimental and she didn't want to live in that little house. So she was renovating the garage as living area. So we made the assumption that instead of this addition to the original house, she was more or less putting the addition on the garage and using that as her added space, and that we didn't think that they were going to go through with their plans, which is what we were told, for sentimental reasons, but anyway, I went to a dinner and bridge on December 12th, and that's where I heard they were planning to build a house, and that's why we came in later, at December 12th, with questions about it. They made an issue out of it at the time, that was why it was timed liked that, because we didn't think they were going to build the house. MS. CIPPERLY-Who did you speak to when you say, "the Planning Board"? MRS. CUSHING-I meant going up to your offices. MS. CIPPERLY-And did we ever tell you tbat there was never going to be a second house there? MRS. CUSHING-No, you didn't tell us, but we asked what the building was, and that's what we were told, was that was, she was going to build there because she didn't want to live in the little house. It was an assumption on our part, yes, and we saw nothing, the alterations had been approved in March. They were not put into effect, and nothing was done about it. So we just assumed, and then when we heard, another client of Lee's, that's how we heard, and that's why we came up in December. MS. CIPPERLY-I'd just like it on the record that the Cushings were never told that this was going to be a complete dwelling unit, or contain a kitchen. They did know about it, earlier on in June. Their son was over there, had come into our office, talked to us about it, to go up and look and see whether there was a kitchen. So as far as people knowing what was going on, I would say, earlier summer of 1994. MRS. CUSHING-He said why didn't we say anything about the enlargement of the house. We knew what was going on in the garage, but the reason we didn't say anything about the expanded house was because we didn't know about it. We didn't know what was going on in the garage. Okay. Thank you. MR. CARVIN-Okay. Jack, did you have another comment? MR. CUSHING-Yes. I've got a couple. I didn't hear your statement there, but I got the gist of it, but my conversations with Jim, it was very ambiguous, and I think Mr. Martin would agree with that, that it was ambiguous, because I don't think he knew at the particular time whether the Hodgkins were going to build and expand or do something to the house down below. He and I discussed that a number of times, and I was just left up in the air. They had until April, I think, of '95 to do something, somewhere in that vicinity to do something, and I was led to believe in my own mind that maybe they wouldn't. Jim didn't lead me to believe, it was just the inactivity there, nothing was going on, and so we were just waiting and waiting and waiting to see if anything was going to happen, and nothing happened until December, and that's when we were busy on it, because now we have the two residences. We thought that they were going to destroy - 35 - '~ ----' or just keep vacant the one down below. So we were not misled by anybody, so far as your office was concerned. I think we all didn't know what was going to happen, and it didn't come until very late, and I have a couple of other comments, if that answers the question so far as timeliness is concerned, that's why it was delayed. Martin Auffredou has mentioned that Sue and Scott went through the entire structure, and I asked for a letter of determination, and Sue went up there, when she came back; and I got the answer ón the letter of determination, which was no, and I asked both Mr. Martin and both Sue how the inspection made, and I specifically asked the question whether or not she went upstairs and looked at the upstairs, and she said, no, I was not able to go upstairs. I did not have a key. It was visual inspection from down below. MS~ CIPPERLY-Excuse me, I never said that. I never said that. I was asked if I looked at the electrical outlets upstairs, and I said no, I didn't notice those. I did not, never said that I was not in that house or that I didn't go upstairs. MR. CUSHING-Well, we have a difference of opinion, difference of agreement. I made the comment and I'll stand by it, that it, was a visual inspection from the <Dutside, period. MS. CIPPERLY-I never made that statement. MR. CUSHING-Well, if th~ statement wasn't made by you, I apologize, but I talked to you about it, and I talked to Jim about it, and Jim, what is your version? MR. MARTIN-I recall that she did go into the structure, because they were fortunate enoUgh that, the way it worked out was that a friend of Mrs. Hod~kins at the Mooring Post had a key to the interioy of the structure and let her in to see it. That's what I recall Sue describing to me how she got into that house. MR. CUSHING-Okay. So I'll apologize to all concerned, but it was my understanding that it was a visUal inspáction from the outside. The other point that I wanted to make on this is that, again, Martin has said that he went all through a site plan review. There was no site plan review (lost word). MS. CIPPERLY-There was no site plan review required on the garage. It was a conforming structure. MR. CUSHING-Was there a site plan review req~ired, or is there one required, on the new house, on the new structure that they're building? MR. MARTIN-On the house there was, as a pr~posed addition. MR. CUSHING-And did they have that? MR. MARTIN-Yes. MR. CUSHING-Okay. I'm not sure what Martin was referring to, whether it was the house? MR. AUFFREDOU-Just the house, but really my point, Jack, was just basically that we've been through all the hoops. MR. CUSHING-Yes. Okay, and the other comment that Martin mentioned was that he thinks that I cut off very quickly on the kitchen part of it, on the statement in the minutes. No, I did that on purpose because Mrs. Cushing was going to make a comment on it, as to what was defined in the Codes, and that was adequately stressed all the way through, I mentioned kitchen before, and I just didn't mention it because she was going to talk about that at that particular point in time. 'I'd like to ask just another question. If the system,. if the sewer system - 36 - ---" ~ or the septic system is totally destroyed and isn't in existence at this particular point in time, doesn't there have to be another review before that thing is tied in again and all done again? MR. CARVIN-Well, I don't think the system is destroyed. it's just disconnected, at this point. I think MR. CUSHING-Disconnected and everything, but because of the enormity of the digging out there and everything, pipes going down, I don't know what, I don't have the slightest idea. I'm just asking the question, is there any review of that, to make sure that it gets hooked up properly, and things like that? MR. CARVIN-Well, I think the answer to that is that it would be reviewed under the proper site plan. In other words, as long as the system doesn't fail or hasn't failed, then it can be hooked up. MR. MARTIN-It's part of the building inspection process. MR. CARVIN-Yes. MR. CUSHING-Okay. I have nothing further to add except one last comment. As I said at the beginning of my statements, I'm trying to, I don't like to argue with neighbors. I have no vindictiveness in myself in this whole thing, but I am trying very, very hard to protect the environment and the neighborhood up there, and I think things have been done that are just not kosher, and I think they should be looked at very, very carefully by everybody concerned. There's no personal animosities in myself, or my wife, toward any of the neighbors up there, and I know that I've lost a neighbor by doing this. I'm the fall guy. I'm coming on heavy, and I'm sure that Dorothy will never speak to me again in her entire life, but this is something I felt, deep in my heart, that I had to do, and so be it. I'm the fall guy. I'm the heavy, and I'm sorry. MR. AUFFREDOU-Two brief comments, and just one closing, two brief comments, some chronology I think he wants to Martin just would like to make a brief then I'd just like to make one from John, regarding clear up, and then Linda comment, in opposition. MR. HODGKINS-Yes. A little bit on, a little bit more on just trying to find the sequence, why things were done the way were done. My parents' intention was to put up a new house. They got the approval on March 22nd last year. Four days later, my dad died, at that point. March 22nd they got the approval for the house. The intentions were to start within, you'd have to wait 30 days and then start on the house. Obviously, my father died four days later. My mother was not in any position to start making decisions for that next couple of months. At that point Lee, our builder, he was unable to start building over the summer. Plus, we would have been without a summer home at that point, if we had started the building at that time. She went and thought, I can have some place to stay and then put it together, and also have some place to stay while they're, there's enough room for everybody to come up, and it's modernized and all put together. So that was the thinking here, why this garage came about. The garage was not, you know, the intention was to have some extra overflow space. I mean, that's the intention of it. My father pictured he and my uncle sitting there and cutting up a little bit of space up there, like I think everybody else pictured, and that the grandchildren would go up there and play and put their things together, but that did not come to light. One other thing I want to back up on a little bit. I talked about my father's handshake, on saying, okay, I think you need some more space over here and in your house, and at the same time, Mr. Cushing was also asking for space on his house and came before this Board and got an approval for an addition to his - 37 - ----- house that comes off the back, which is within two feet of the property line, of our property line, and all our setbacks are 20, and the house set back from this is 60, and his comments about the water coming off the roof and all, I think it might be worth, Jack, to look at your roof line that comes off and flows right off the back of your house, and you've created a corner. I don't know that that's it, but I just don't want to make everybody, what we're doing, stuff is going down in the middle of the lot, and if there is any problem with any kind of runoff or anything else that comes off a roof or something, We'would, obviously, somebody mentioned it to us, we would ~ddress it, and the first I heard about any water running off anywhere was in December. MR. CARVIN-Okay. Thank you. LINDA MARTIN MRS. MARTIN-My name is Linda Martin. I'm a year round resident of Cleverdale. I have known Dot Hodgkins for over 40 years, and when she left in the fall, she entrusted me with a key to her property. Sue and I have sort of struck up a relationship, and in December, when some people were coming in to the Town Hall here, questioning the garage ih Cleverdale, Sue came to me and asked me if I would take her up and take her into the garage, which I did, both Sue and Scott. They walked around the outside of the garage. It was the day after it snowed, and it was rainy, water was coming off the roof. Sue and Scott both went through the downstairs and they went through the upstairs. Now, at this time, Dot Hodgkins was very upset. Emotionally, there was a lot going on in her life, and I asked Sue to please not tell her, because I knew I was violating my good friend's trust, and I said, some day down the road, when this is allover with, I'll tell her. I just want to make the record clear, because Sue has protected her, because I have asked her not to tell Dot, but in the meantime, everyone now knows, and I think you should know that Sue and Scott were both throughout that entire garage, inside. MR. CARVIN-Okay, and Scott's last name? MS. CIPPERLY-Harlicker. MR. MARTIN-Yes. He's the other Planner for the Town. MR. CARVIN-Okay. I Just wanted to make sure that that was clear. Thank you. MR. AUFFREDOU-Mr. Chairman, just by way of closing, we've been going at this now for a considerable period of time. I'd just reiterate what I said, and I still have not heard anything to suggest that what has gone on here is in violation of the Code, is in violation of any of the validly issued permits. The question posed by Mr. Cushing was, who should we believe. I respectfully submit you should believe your staff. Thank you. MR. MARTIN-'As the person who sort of started this problem, I'll make a final comment. My interest, as Zoning Administrator, is in maintaining the integrity and the consistency of the Ordinance. This particular Code, the way it's particularly written right now, I, pers'onally, feel does not deal well with second dwellings, but nonetheless, I'm left to deal with what I have to work with. This has been a problem not only in this case. Things like this sort of swell when they're on the lakeshore, for obvious reasons, but it's been a problem before, in other areas of the community, and in some of our regular single family residential or-suburban residential zones. We're running into it more with mother-in-law apartments, as we see more senior citizens in the population that want to live at home or with their grandkids or anything like'that. It's coming more and more to light. So what I'm interested here is what comes out - 38 - --..... '--" of this appeal, the interpretation that's given by this Board, in light of this appeal. If this is determined to be a second dwelling, then I want specific guidance, as an interpretation from this Board, so I know what to take with me from this point on, as to what does constitute a second dwelling. When are we going to draw the line? Is it going to be just living space in the form of a bedroom? Is it living space and a bathroom? Or is it bathroom, kitchen, and living space? Is it, as I currently make my determinations now. So I'd just ask for that much guidance from you, obviously, in this case, but from this point forward, in terms of interpretation that I can, then, use to administrate the Ordinance. MR. CARVIN-It's only fair. As soon as somebody gives me the Ordinances, I'll be more than glad to share them with you. MR. AUFFREDOU-I have to say that, as a matter of procedure, any policy that's developed tonight, under Mr. Martin's guidance, I would strongly object to a new policy being applied to an already established situation. MR. CARVIN-Okay. Well, I'm going to continue the public comment, and then I think we'll leave it open, but I do have some comments, here, and a lot to read. BERNIE LABORE MR. LABORE-My name is Bernie LaBore, and I'm from Hudson Falls, and I may not have an opportunity to talk, but I would like to know if this residence is ever going to be rented, and if so, I think it is wrong for it to be rented because I think that Lake George, particularly Cleverdale, is too crowded for additional renting. That's my statement. MR. CARVIN-Okay. Thank you. MRS. HODGKINS-Do you want me to address that? MR. AUFFREDOU-I believe it was already addressed. MR. MARESCO-I don't think it's necessary. necessary to address? Do you think it's MR. CARVIN-The rental? No, I don't think so, at this point. Any final comments, at this point? Okay. Well, again, this is a situation where, because of the limited number of Board members, we're not going to take a vote tonight. It will be tabled, but I will open it up for, well, we've got some Correspondence here. Lets do that first. MR. THOMAS-We've got a lot of correspondence. A letter dated February 6, 1995, addressed to Mr. James Martin "Dear Gentlemen: Once again, I am writing to ask that careful review be made of the variance that was issued to Dorothy Hodgkins' property on Mason Road on Cleverdale. At the time of the initial hearing on March 22, 1994, I faxed a letter expressing our opposition to the variance. At a public meeting in August, I mentioned that my letter had not been read during the variance hearing, and Mr. Martin wrote and told me they had no record of my faxed letter, but that 'we do want input from the surrounding area when a project is before either Board. This original letter and the fax notation is enclosed. I then wrote another letter September 1, 1994 to Mr. Martin requesting a review of the variance and hand delivered the letter to Mr. Martin's office. A copy of this letter is enclosed. Again, I received no response. This is the third time that I have written concerning the Hodgkins variance. Although the variance for the house preceded the other house that has now been built on the property, I still think that the appeal this evening should consider that Mrs. Hodgkins did not do what she led the zoning board and the neighbors to believe she was - 39 - '-- ..- going to do. She claimed that she was going to build a garage with storage space. As the garage was being built, the windows were enlarged to give greater lake visibility, a bathroom was added, and it is evident to all the neighbors that she has been residing in the house since its completion this summer. Although Mr. Martin claims that a stove mðkes' a house, and no stove is apparently on the premises, I don't understand how approval can be given for further addition to a house when she already has exceeded her living space by more than fifty percent. I refer to Article XI, 179019 of the Zoning Code wherein it state that 'A single-family dwelling or mobile home may be enlarged or rebuilt as follows: (2) No enlargement or rebuilding shall exceed an aggregate of fifty percent (50%) of the gross floor area of such single-family dwelling or mobile home immediately prior to the commencement of the first enlargement Or rebuilding. Mrs. Hodgkins has already more than doubled the 600 square feet living space of the original house with the new house she has built. Furthermore, the lot is less than a'half acre and will be further jeopardized by the loss of trees and soil permeability creating an additional runoff into th'e lake. There seems to be a real lack of concern for both the land: and the lake environment. Finally, I realize that the zoning board and the neighbors gave the original variance in good fait~. We all thought that Mrs. Hodgkins was going to build a garage with storage space. However, how can the zoning board uphold variances that are blatantly disregarded in terms of expansion and utilization? Do we all have the right to request a variance from you gentlemen and then disregard it when actual building begins? As neighbors, we come to you for both guidance and enforcement of the law. I sincerely request that you take a look at the additional residence that is already on the property before you give permission for another larger residence to be built. Thank you for your consideration in this matter. Sincerely, Sarah W. Wheeler" A letter dated September 1, 1994, addressed to James M. Martin "Dear Mr. Martin: I am responding to your August 22nd letter which informed us, 'There is no letter in the file from you, and no record of receiving one' regarding the John and Dorothy Hodgkins property on Mason Road. I have enclosed copies of the fax that we sent on March 21 regarding the property. I realize that my husband's and my objections to the enlargement of the Hodgkins house will be overlooked at this point, but I still feel that a review of this variance would be appropriate at this time. While neighbors were led to believe that a garage with storage space was supposed to be built, it is apparent that a house has been built instead. Therefore, the concerns about over-utilization of land remain. Mr. Finnecy, our neighbor across the street, built a garage with storage space, and clearly the Hodgkins' building is not remotely the same. The point is that a house demands the ground be used for waste water and sew~ge; a garage and storage space do not require that. Additionally, it appears that in order for the Hodgkins to enlarge the house, there will be further cutting of trees which results in the run-off into the Lake. Wé cannot help but wonder if the ultimate goal is to sub-divide the land and further increase the density of dwellings and people on Cleverdale, a peninsula that appears to be reaching its maximum level of accommodation for people and buildings. The enclosed copies indicate that we really did try to respond to the public hearing held on March 22, and once again we are trying to express our concerns about the development on Cleverdale. Thank you for any consideration you might give our thoughts on this matter. Sincerely, D. Billings Wheeler Sarah W. Wheeler" A letter dated August 22nd, addressed to Ms. Sarah Wheeler "Dear Ms. Wheeler: At the August 11, 1994 meeting concerning the Town of Queensbury Comprehensive Plan you inquired as to the handling of FAXed letters regarding projects. You mentioned FAXing comments on two projects, in particular. The'file and minutes for those projects have been researched, and the following was found: John and Dorothy Hodgkins, Mason Road. Variance for setback relief, for expansion of existing 608 sq. ft. house. There is no letter in - 40 - "---" J the file from you, and no record of receiving one. If you wish to send a copy of your FAX for the file, please do so. Birchenough. Variance and Site Plan Review for expansion of house in Cleverdale. A letter was in the file, and was read into the minutes (12/16/92) of the Zoning Board meeting. A copy of that page of minutes is attached. There was no letter found in the Site Plan file. This office is very careful with incoming documents of any kind. All materials received are date stamped and filed appropriately. If there is an omission of correspondence relating to a project, it is rare, and certainly not done on purpose. In the case of FAXed material, it is helpful to have the original sent by surface mail, as well as the FAX. If you wish to confirm that a FAX was received, you may wish to call this office at (518) 745-4440 after sending it. We do want input from the surrounding area when a project is before either Board. Please continue to comment when you have a concern. Sincerely, DEPT. OF COMMUNITY DEVELOPMENT James M. Martin, AICP Executive Director" A letter dated March 21, 1994 "Dear Queensbury Planning Board: We appeal to the planning board to deny the application for an addition to the existing house on the property owned by John L. and Dorothy Hodgkins (Site Plan No. 7-94, Type I). Since the Hodgkins have recently built on this property a second two-story structure which is evidently going to serve as a garage and additional living space, this further addition to the house would appear to ask more of a piece of land than should be expected. Specifically, the land will be required to accommodate additional septic and drainage and be severely overburdened. Any further building on this property would set a dangerous precedent for all property holders on Cleverdale since over-building on property both diminishes the attractiveness of the land and hinder ecological stability. All surrounding property is affected when owners exploit land to the detriment of the common good. It is time for all property owners on Cleverdale and elsewhere to consider not just their own personal rights but the long term implications of theiT decisions on the community at large. Thank you for your consideration in this matter. Sincerely, D. Billings Wheeler Sarah W. Wheeler" A letter dated 2/13/95, addressed to the Zoning Board "Gentlemen: I understand that a house about twice the size of the original is slated for construction on the John Hodgkins property, Mason Rd. Cleverdale. I object to this because: 1. There are already living quarters on the property and the lot is not large enough to accommodate both. Inadequate from a space viewpoint and septic system. 2. If you continue to allow owners to build huge and oversized houses on Cleverdale, soon it will look like a metropolitan area. Just take a day and look at the excessively large houses that you've allowed to be built on Cleverdale. They dwarf their neighbors, impair everyone's view and spoil the character of the area. It's time to put a stop to this ongoing rape of the area. Are you up to the task? Sincerely, Richard A Meyer, JT." A letter dated February 20, 1995, addressed to the Zoning Board of Appeals "Dear Board Members: This is written in reference to and in support of Appeal #3-95 by Mr. John P. Cushing concerning the erection of buildings on property owned by Dorothy Hodgkins on Mason Road, Cleverdale, New York. The notice of appeal cites Section 179-12C of the Town of Queensbury zoning ordinance, which provides that there will be no more than one principal building in a residential zone on any single lot which is less than two acres in size. Two principal buildings, each of which is residential or may be used for residential purposes, will result from the plans which have been submitted for this property. The sequence of construction of buildings on this site has produced an outcome which evades both the spirit and intent of Section 179-12C, with its prohibition of more than one principal building in a residential zone on a single lot of less than two acres. Terminology and 1-epresentations notwithstanding, a now completed structure whose construction was commenced in 1993 has a significant portion which is designed for residential purposes. It apparently has been held that because this facility includes no 'kitchen' in the conventional sense of the word, it - 41 - '- does not represent a 'principal building'. Its intended and/or potential use is nevertheless apparent. A conslder~bly smaller cottage on the property has now been demolished and will be replaced by a permanent, year-round usable residence of over twice the size of the building it is replacing. Regardless of whether the sequence of construction has been coincidental or contrived, the consequence will be two ptincipal buildings on a single lot where zoning provisions explicitly set a limit of one. This form of property use and exploitation is exceedingly unfair to neighbors and places undue and critical stress upon the environment in an already densely developed area. Adjacent property values are diminished; stormwater and groundwater run- off patterns are altered and problems magnified, often impacting upon neighbor~; vegetation is lost; and residential use of property intensifies in spite of zoning provisions which otherwise seek to limit development. In view of the foregoing, the appeal of Mr. Cushing merits serious examination and favorable disposition. Thank you for your consideration. Sincerely, William B. Wetherbee" A letter dated February 17, 1995, addressed to the Zoning Board of Appeals, "Dear Board Members: I am writing in reference to the notice I received concerning the property owned by Dorothy Hodgkins in Cleverdale on Mason Road~ I am firmly opposed to the practice of allowing more than one principal residence on the small lake shore lots. This is a violation of the zoning code and must not be permitted. We live in a critical en~ironmental area and protection of the lake, which is our water supply, must be of foremost concern. Thi s lot slopes steepl y to the la ke . With o'ne bui Idi ng on the immediate edge of the road already and the much larger building that is proposed to be erected, there is a minimal area for a septic system. This is of utmost concern to those of us who are trying to maintain the purity of Lake George. If the proposed building is allowed, we would ask that you stipulate that there be no living quarters in the large garage-type building on the edge of the road, meaning bathroom and kitchen facilities. And further that you stipulate that this may not be rented out for living quarters, storage or anything else. Very truly yours, Esther Frederick" Another letter submitted by Esther Frederick with the same exact wording. A letter dated February 17, 1995, addressed to the Zoning Board of Appeals "Dear Board Members: I am writing in reference to the notice I read in the legal ads in the Post Star concerning the property owned by Dorothy Hodgkins in Cleverdale on Mason Road. I am firmly opposed to the practice of allowing more than one principal residence on the small lake shore lots. This has been allowed on a number of properties in Cleverdale and is adding to the congestion of a very small community. These lots are of minimal size and simply can not support two residences. It is a violation of the zoning code and must not be permitted. We live in a critical environmental area and protection of the lake, which is our water supply, is of utmost concern to all of us. This lot has a steep grade going down to the lake. With one building on the immediate edge of the road already and the much larger building that is proposed to be erected, there isn't much room for an adequate septic system. This is a real worry to those of us who are trying to maintain the purity of Lake George and the water that we drink. If the proposed new building that enlarges and expands the previous small camp is permitted, we would ask that you stipulate that there be no living quarters including, in particular, bathroom and kitchen facilities in the large gara~e-type building on the edge of the road. And further that you indicate in your ruling that this building may not be rented out for living quarters, storage, or anything else. Many of us who live here feel that these variances should not be allowed due to the small size of all of these non-60nforming lots. Very truly yours, Joan A. Robertson" Another letter dated February 17th, from Joan A. Robertson with the exact same wording, and that's it. MR. DUSEK-Mr. Chairman, I was just handed something here, too, by the Attorney for the Hodgkins, which apparently he received from - 42 - -- -.J' somebody on this application. MR. THOMAS-"To the Town of Queensbury, Regarding Neighboring properties within 500 feet of tax map no. 13-1-10, Hodgkins, we, the following, do not object to the addition to the Hodgkins house or to the existing garage which has two bedrooms, bathroom and a laundry area." And it's signed by Lee Tabner of Mason Road and winter residents of Brookwood Drive in Latham, New York, and Linda Martin of Cleverdale. MR. CARVIN-Okay. Any final comments? MR. DUSEK-I guess I'm looking for your cue at this point. I think there's a few issues that you have to decide, and if you get into the merits, I guess that we need to address them one at a time, and if you get into the merits, I have certain suggestions as to things to look at in the Ordinance. MR. CARVIN-Yes. First of all, I think that I'm going to move for a tabling, but I think we have a couple of major issues here. I've gone through our Ordinance, and I know, in our Staff Notes, they have referenced, I think, most of the applicable sections, interpretations and so forth. I'm not real positive as to which way we should proceed at this point. I think the first issue we really should address is whether this is a garage/storage area, or if it is a second residence. If we determine that it is, indeed, a second residence, then that opens up a whole can of worms as far as the house is concerned, because, as it stands right now, if we determine that this garage/storage area/second residence, it really isn't a second residence at this point. It's the ~ residence at this point. So that really would mandate a variance on the house. In other words, on the other hand, if we determine that this is, indeed, a garage/storage area, and not a second residence, I think that there are some issues that have to be addressed on the house anyway, because it does appear that that, the projected plans, the projected activities out there, are in excess of what I think our variance was back in March, which I think Mr. Martin has addressed some of those concerns. So I think that we would be looking at, possibly, another variance coming back on the house. I would also add one other section or interpretation. I've gone through a lot of the interpretations. I think dwelling unit is very appropriate. I guess I have principal building, and I'm going through and I'm showing what a principal building within the Adirondack Park is, and under 179-71(g) says, any other structure which exceeds 1,250 square feet of floor space constitutes one principal building. I don't have a definition for floor space. MR. MENTER-There's floor area definition in here. MR. CARVIN-Yes. Floor area and floor space. MR. MENTER-It mayor may not be the same thing. MR. CARVIN-It may not be the same thing. I mean, if we say floor space includes the garage, and I believe floor area does not, then we're talking a building already. I mean, it's in excess no matte)" what you look at. So, I thi nk that we need to get an accurate definition of floor space and floor area. Going through and listening to the testimony of the Hodgkins, looking at the minutes from the March, I also, I mean, from what they're describing, their intent falls under, as far as I..:..m.. concerned, tourist accommodation, and if you take a look at the definition of Tourist Accommodation, a building or group of buildings, whether detached or in connected units, used as individual sleeping or temporary dwelling units, designed for transients, and providing for the accessory off-street parking facilities. The term, Tourist Accommodations includes buildings designated as tourist courts, motor lodges, motels, hotels, bed and breakfasts, overnight cabins, housekeeping units, and similar facilities, and - 43 - - '--, -- I'm assuming that that probably is the most accurate description of what they're looking to do with that, which, at least in ~ mind, is a tourist accommodation, a secondary building. Is that a dwelling unit? I don't know. So, again, I would like the Board to give consideration to ~ terminology. I've looked at the building. I know M)-. Martin has requested guidance from this Board, and that is our duty. We are the ultimate deciders of what the i~terpretation is, and I think Mr. Martin has been basing his decisions, in part, on the dwelling unit aspect, and I think if you read that, it basically says, dw-elling unit: a building or portion thereof providing complete housekeeping facilities, and I' think it's up to this Board to determine what complete housekeeping facilities are. I do not know of any other written explanation of housekeeping, at least nobody has pointed out to me anywhere in t.b..iâ. Ordinance that it says it has to be all three. I think that's an interpretation that Mr. Martin or the Zoning Administrator's have used in the past. MR. MARTIN-That's correct. MR. CARVIN-Okay, but that does not necessarily. MR. MARTIN-But how does onè keep house without a kitchen? MR. CARVIN-Well, I think that's complete housekeeping facilities. I mean, there are plenty of complete housekeeping facilities without kitchens. I mean, that's!!!.:i. feeling. I think if you look at the overall intent, that we have bedroom facilities. We have bath facilities. We have electrical outlets. We have sewer hook-ups. I mean, these are away from the definition of "Garage". Nowhere in the Garage does it say, you know, that >'ou can have a bedroom, nor, under Storage Facilities, does it say that you should have a bedroom. MR. MARTIN-When I was thinking of Dwelling Unit, can a family unit live in that structure, live? MR. CARVIN-In my opinion, it would be yes. MR. MARTIN-Sleep, eat. MR. CARVIN-Yes, but I'm also saying that you could probably live in a garage, under certaih circumstances. That's why I'm saying I think that this may be more along the lines of a Tourist Facility, and not necessarily a dwelling unit. MR. MENTER-It also may go to your definition of kitchen, whatever that is. MR. MARTIN-I think the key term to be defined is what constitutes housekeeping facilities. I, quite frankly, think Tourist Accommodations is a very big reath, myself. MR. CARVIN-Well, essentially, that's what they're telling me they're going to be using it for, is transient. They're saying that it's going to be for the kids, the grandkids, not temporary, not permanent. MR. MARTIN-But those aren't tourists. They're family members. MR. AUFFREDOU-That's not transient. That's not transient use, and that's not commercial. I think a tourist accommodation is riddled with the commercial aspect, definition. MR. CARVIN-I agree, it's nota perfect definition. are perfect definitions. I'm just saying that my of what your comments have been is that this is not permanent facility. Is that incorrect? If that please correct me now: None of these unde)"standi ng going to be a is inco)-rect, - 44 - ',,---, .........,; MR. AUFFREDOU-I don't think either one of those structures are going to be permanent. I mean, all along, we're getting into the difference between permanent and seasonal. I mean, is there going to be a permanent bedroom there? Sure. Is it always going to be used? No. I don't use the bedrooms in !:!lZ:. house, in the Town of Queensbury, 365 days a year either, when I go on vacation, when I go out of town. MR. CARVIN-Okay, but you're the primary user, is that correct? MR. HODGKINS-My mother's home is in second home, okay. So, everything everything on the lake tourist def i ni tion. Latham. I mean, this is her up there, you're calling accommodations, by your MRS. HODGKINS-I resent my family being called tourists. MR. AUFFREDOU-You're stretching it, I Just because she doesn't vote here tourist. think, an awful long way. doesn't turn her into a MR. CARVIN-No. I'm just saying that I've gone through the terminology here, and it may be appropriate. It might not be entirely inappropriate, but I think the term that I'm looking at is Temporary Dwelling Unit, used as individual sleeping or temporary dwelling units. MR. AUFFREDOU-Designed for transients. MR. CARVIN-Yes. MR. MARTIN-I think housekeeping cottage is closer, if you were to take out the word "rental". MR. CARVIN-Okay. Which one's that? MR. MARTIN-A single detached rental unit for a transient occupancy. If the word "rental" wasn't there, I. MR. AUFFREDOU-Mr. Chairman, I thought that's what we were explaining was, you know, when grandkids are there, it's overflow, basically, for that point in time. Mrs. Hodgkins testified, I believe, that she intends to use this when her grandchildren are there, when her sons and daughters are there, when her daughter-in-law, sons-in-law are there, and when her friends are there. I would respectfully submit that's a very common occurrence around the lake, very common. MR. HODGKINS-We've been doing that for 40 years. I mean, the other house we had on the lake had two separate spots, and it was not a rental spot. MR. CARVIN-Okay, but did you have two separate buildings before? MR. HODGKINS-Yes, on another parcel of land on the same point, and that was just common, it was just very common, at that time, that one even had a kitchen, but that was allowed at that time, but that's common up and down the point, with the exception of, we were told we can't put a kitchen in. Fine. We don't need one. MR. AUFFREDOU-Again, I don't mean to harp on this, but that's the important point here, and I don't want the Board to miss that, and I know you're not, but I just need to reiterate it. We had a permit to do this. We had a permit to do this, and we did it, and now it seems to me you're going back and you're revisiting that, and there's no evidence that we've done anything other than what the permit authorized. MR. CARVIN-Okay. Well, again, that's another issue that I think - 45 - '-' the Board will have to address, is the timeliness, and I think Mr. Dusek has made ¢omment to that effect. MR. AUFFREDOU-I think it goes to more than just the timeliness. MS. CIPPERLY-As we as Staff has been discussing this issue, one part of it comes down in our discussions to, it's all residential space, but it's in two different places on the lot. Is there anything particularly wrong with that? If you called it a guest house, should that be an allowed use? If somebody wanted to put guest area attached to their house, over their garage, would there be a problem with that? Like if you wanted to put two bedrooms over your house attached to your house. It's really not the use, it's the configuration of the buildings. $0, if you can provide guidance on that, if somebody wanted to put this same situation and attach it to their house, there wouldn't be a problem, but because it's a detached structure, you'Te expanding your living space into another building, which, maybe it's an accessory structure that's really, asI say, accessory to the principal use of the property. So, you can think on that, too. MR. CARVIN-I don't know. It still comes back to, what"is the building, and that's up to the Board, I guess. We're going to have to make that decision and come up with these guidelines, and that is going to take some time, and unfortunately the house. MR. MARTIN-Just as some background, what we're coming up with is, as Staff additionally, and this does not help the situation, but, in recognition of it, these continuing things we're seeing, develop a floor area ratio for houses in Waterfront Residential zoning or for living space, in other words, say you have a 20,000 square foot lot. You're entitled to 10 percent of that as living space, and if you, th~t's 2,000 square feet~ and if you're going to utilize that, you have 2,000 square feet. You take 600, put it over your garage, then you're limited to 1300 in the main house, but you have 2,000 square feet of 1 i vi ng space, then, fo,- that lot. MR. CARVIN-Well, that's something that's being projected into the future, at this point. MR. MARTIN-And that's what, we're looking at overcome this problem. It doesn't help applicant, or this appeal, but. that concept, to this particular MR. MARESCO-I have a question for Paul. Paul, would our decision be creating a precedent for the interpretation, now, of what a residence would be? MR. DUSEK-Well, I guess the only question, way you could answer that is, possibly, it depends on what you're decision is. I think you've heard tonight what the traditional interpretation has been, by the Zoning Administrator, and the Building and Codes Department, and the decision in this particular case, and it's within, as I think Fred has very aptly put it, it's certainly within the jurisdiction of this Board to decide whether or not, after you've reviewed the Ordinance, you feel that that's right. If you feel it is, then you wouldn't be setting any precedent, so to speak, because you're going to be just following along as it is. I guess you're ~etting some precedent, to the extent that this Board has finally ruled on that issue, and, you know, certainly I think you'd be requiTed to follow that in the future. I mean, I don't see how you flip yourself around unless you have a really good reason to do so, or, obviously, if you decided it differently, then, yes, you'd be setting some really significant precedent, because you'd be changing the way things are done, but that's your job, as a Board, is to take a look at all of the Ordinance. Take a look at the facts, and make that tough decision, and I think, from what I was hearing from the Chairman a little earlier, I think that it sounded to me like he was on - 46 - ~ -/ the right track, in the sense of what ~ was thinking of earlier, that you have to look at all of these words. You start at that 179-12, and you read that law, and then you try to find the definition to every single word, and you go through everything. You look at Principal Building, and one that he didn't mention, Single Family Dwelling, for instance, you'd look at. Look at every single definition and try to make some sense out of what it is you're reading, and then you discard what you don't think is appropriate, but you should look at every single word, and I think that's the sense I got from the Chairman, he's trying to do that. MR. MARTIN-I will, now, put the Planner's spin on this. You've just heard the legal spin. Bear in mind what zoning is meant to do. Zoning is meant to regulate land use. Words do that for you, but, bear in mind what the overall intent here of this whole Code is, is land use regulation, at what time do we have too much use of a piece of property, bulk height requirements and all that, structures, and then the land use, at what time do we have too much? When have we crossed the threshold, with the character of the use in this community? MR. MENTER-And the key to that is each of our interpretation of, and you said it, intent. MR. MARTIN-That's the intent of, generally, fundamentally speaking, of any zoning code, is land use regulation. MR. DUSEK-Certainly you're going to look at the entire Code and the Master Plan. You're going to take everything into consideration, but you're also going to have to look at the individual words that are used in the Ordinance, because, here again, the intent is actually not yours. You're deciding what was meant when this whole thing was established, the entire Code, the words, everything, and like I said earlier, I think Fred was on the right track, in terms of looking at all of this, and I think Jim is correct, too, that you look at the entire intent. You look at the whole thing in trying to make sense out of it, and you try to reach a reasonable conclusion as to what is meant here. MR. CARVIN-Okay. Having said that, does anybody else have any comments? Okay. I guess I am unclear as to what direction. Now, I can leave the public hearing open. I think that I'd almost prefer to do that. I know the Hodgkins are anxious to move forward. So I'd like to try to get some kind of resolution, I think. I guess it would probably be beneficial for us to come up with a decision as soon as possible on this garage issue. I don't know whether we should set a date at this point, or bring in the house issue at this point. I'm looking for some counsel there. MR. MENTER-Jim, what's the status of the house issue? MR. CARVIN-There is no status at this point. MR. MENTER-There is no status? MR. MARTIN-Well, I think you're going to hear later tonight that there is a couple of violations occurring with the house construction, as I see it. There's two primarily. One is that the house was, or it was represented to this Board it was approved in the application for a 25 foot shoreline setback. I think the, in fairness, the old house was closer than that. The representation of the old structure being that close was not correct. I think it was closer than that, and so, therefore, the new structure, or the new, whatever we end up with here, is closer than that. Secondly, it was clearly represented that the old camp would be retained, and there would simply be an addition made to it. The old camp has been completely removed. That's of - 47 - -...,.' greater concern. With those two violations occurring, the Hodgkins offered to voluntarily stop work until these matters are resolved with this Board, and I think they're going to attempt to begin to take that up with you later on at the end of the regular agenda, as to how you want to handle that issue. MR. MENTER-Well, I was thinking in terms of scheduling. I'm not sure how that plays. MR. CARVIN-Well, the earliest opportunity that l will have will be March the 8th. MS. CIPPERLY-This room is not available on March 8th. the 7th or the 9th. It's on MR. CARVIN-The 9th I am unavailable. The 7th is. MS. CIPPERLY-That's a Tuesday. MR. CARVIN-It's not the best date, but I cah do it. I'll do it, March the 7th. Will we be in a position to do that on the 7th? Will you be able to get the minutes and pertinent information out to the Soard? MR. MARTIN-Advertising can be done. Yes. MR. MENTER-Well, on this issue. Are ~.Je talking solely about this issue? MS. CIPPERLY-About the garage? MR. CARVIN-The garage anyway. MR. MARTIN-Yes. talk about the on that or not. Depending on what happens later on, when you house. I don't know whether you want to put that MR. MENTER-Yes, that's kind of ~hat I was getting at, because we don't have to notice on tl:lis issue. MR. CARVIN-No. MR. MENTER-Which gives us a little more flexibility. MS. CIPPERLY-If you close the public hearing, we don't have to re-advertise. MR. CARVIN-Well, I mean, I can table it and then I can always schedule it for the 7th. MR. MENTER-We could table this and schedule it and then just see what happens. We want to table it for the next 60 days anyway. They can always bring it back before. There's nothing that says I can't schedule this before that, 1" ight, once ~.Je render a decision? How much time do you need, before we re-post that? MR. DUSEK-You have to have a decision within 60 days. Well, actually, because you left the public hearing open, you've got an extension, of sorts, going on. You can't leave· the public hearing open indefinitely. I think you have to be reasonable, but you can. MR. MENTER-Sixty days after that closes? MR. DUSEK-Right. MR. CARVIN-Would it have to be re-advertised or anything like that? ' MR. DUSEK-No, I don't think so, not under these circumstances. - 48 - ',,--,,' .........I MR. MARTIN-So if I just tabled with the 60 day, and we decided to come back on the 8th, we wouldn't have to re-advertise it? MR. DUSEK-Well, I think you ought to, when I say, no re- advertisement, I'm assuming that you're going to establish a date tonight, before you leave this session. If you're not going to establish the date until after you leave, I would recommend that you advertise it. MR. CARVIN-And that requires, what, normally five days? MR. MARTIN-Yes, and then we need two or three extra days beyond that for publication time frames, for the paper. I think we can accommodate the 7th, if, for any reason, we have to do any advertising. MR. CARVIN-Okay. this application. All right. I'm going to move that we table I'm going to leave the public hearing open. MOTION TO TABLE NOTICE OF APPEAL NO. 3-95 JOHN P. CUSHING, Introduced by Fred Carvin who moved for its adoption, seconded by Anthony Maresco: Tabled until March 7th, for our decision, at 7:30 p.m., pending proper notification. Duly adopted this 22nd day of February, 1995, by the following vote: MR. CARVIN-And that all the missing Board members be supplied with all the minutes and pertinent information. AYES: Mr. Menter, Mr. Maresco, Mr. Thomas, Mr. Carvin NOES: NONE ABSENT: Mr. Karpeles, Mr. Ford MR. CARVIN-Okay. So it's tabled until March the 7th, at which point we will render a decision. The public hearing is open. So I will entertain public comment at that point. MR. CUSHING-Mr. Carvin, could I ask a Because this is going to be carried over, were the remarks that I made all taped? procedural an appeal, question? the 7th, MR. CARVIN-Yes. MR. MARTIN-Yes. MR. CUSHING-So you wouldn't want mine typed up? MR. MARTIN-They'll be typed up. We type them up verbatim. MR. CUSHING-Okay. I just wanted to make sure that they were all taped. MR. MARTIN-Yes. MR. AUFFREDOU-Would we have an opportunity, tonight, to discuss the other issues at some point? MR. CARVIN-Boy, I hope so. Yes. We've got one that's on the agenda. So right after the agenda, then I'll open it up for the general public. other issue that issue, DISCUSSION ITEM: NOTICE OF APPEAL NO. 4-94. MARGARET BLEIBTREY APPEAL BY MARGARET BLEIBTREY FROM A DECISION OF THE ZONING ADMINISTRATOR STATING - 49 - ~ THAT A FISHING GUIDE SERVICE INCIDENTAL TO THE PERMITTED BED AND BREAKFAST WOULD BE AN ALLOWED USE UNDER SECTION 179-13, LAND CONSERVATION ZONES. ACCORDINGLY, AN INTERPRETATION BY THE ZONING BOARD OF APPEALS IS REQUESTED. PROPERTY IS LOCATED ON UPPER RIDGE ROAD~ QUEENSBURY DESIGNATED ON THE TAX MAP AS PARCEL NUMBER: 20-1-2. MARGARET BLEIBTREY, PRESENT MR. THOMAS-A letter dated July 31, 1994, to the Town of Queensbury Zoning Board of Appeals, "Dear Members: Mr. Martin's letter dated July 11, 1994 to the Lake George Park Commission regarding Michael DiPalma's application for a Class A Marina at his dock states that Mr. Martin finds no violation of the Town Zoning Code and the operation of a fishing charter business by Mr. DiPalma at this site. He also states that this business has been in operation since 1984. Mr. DiPalma also states that he has been operating his fishing business since 1984. See ~ttached copies of Planning Board Site Plan Review minutes from January 25~ 1994. The charter fishing business is not an allowed use in the current Town zoning, nor was'it an allowed use under the previous zoning code of 1982. Therefore, this business was illegal at the time it started. A use which is illegal at the time it began has no vested rights, and, thus, cannot be considered grandfathered. Attached also is a copy of the 1987 notice of violation issued to Mr. DiPalma by the Town of Queensbury for operation of a fishing charter business at this site. This verifies the fact that his business was definitely a zoning violation at that time. The Zoning Administrator has already rescinded his original statement that a Class A Marina at this site would not violate the Town zoning code, by virtue of its letter dated July 21, 1994 to the Lake George Park Commission. He states correctly in that letter that a commercial marina is not an allowed use in this zone. Since the Zoning Administrator also concurred with the use of the site for a charter fishing business in his original letter to the Lake George Park Commission, and since the fishing charter business is also a violation of the Town zoning code, a letter rescinding his or igi na 1 determi nat ion regardi ng this use is necessary to c lat" i fy the Town's position. According to the Zoning Code, neither a Class A Marina nor a fishing charter business is allowed in this zone. Both of these facts should be made clear to the Park Commission and Mr. DiPalma. Thank you for your consideration. Margaret Bleibtrey" A letter dated July 11, 1994, addressed to Mike White, the Lake George Park Commission, "Dear Mr. White: I am in receipt of a notice of meeting regarding the Class A Marina permit for Mike DiPalma. His property has received an Area Variance from the Town of Queensbury Zoning Board of Appeals for expansion 'of the pr'i ncipal stt'ucture, and a Si te Plan Rev iew approval from the Town Planning Board for establishment of a Bed & Breakfast on the parcel. It is my understanding that this Class A Marina permit would be allowed for incidental guide fishing for guests of the Bed & Breakfast. During the Town's deliberations of the above referenced actions, it was established that the fishing guide business ,has been actively in existence on this site since 1984. Providing that the fishing guide service is incidental to the Bed & Breakfast, and that there will be no boat slips for rent with the approval of this permit, I do not find any violations of the Town Z6ning Code. Thank you for your opportunity to comment." Signed, James Martin. MR. MARTIN-We've since gotten two more letters. You have those, right, Chris, from Grace Hanneford and Elsa Kraft? MR. THOMAS-Yes. I do bel ieve I have a bunc'h'here fi,om the, yes, one from Grace Hanneford and one from Elsa Kraft. I won't read those until after we do the other stuff. MR. CARVIN-Okay. Mr. and Mrs. Bleibtrey. - 50 - "-'" '-- MRS. BLEIBTREY-Margaret Bleibtrey. I was here in October when this issue was tabled, and my position hasn'tohanged. None of the circumstances haye changed. ,The whole point of my appeal was the fact that 1 felt certain land uses thatwer~ not allowed by the zoning code were being condone by the Zoning Administrator. The fishing charter business was approved, in effect, to the Lake George Park Commission, by the Zoning Administrator, and I, personally, can find no allowance for that in any of your zoning codes, either as a p,-imary 0'- an accessory use. So, I'm trying to stop the use of this land which is at the edge of my home from being used as a business in a residential area, and that's why I'm here. I don't know what other information you need from me, other than that's what I'm trying to appeal. 1 don't want a fishing charter business operating out of my front yard. It's as simple as that, and I cannot see where it could be allowed, given the current zoning, or even the previous zoning. That's why I'm here. MR. MARTIN-Just to re-clarify ~ position, as you know, we have an approved site plan on this property for a Bed & Breakfast, and in ~ mind, the Bed & B,-eakfast use represents the mo,-e intense use of the site. Associated with that are people staying overnight, people parking on the property, breakfast is had, the waste generated from that, and so on and so forth, and we have never, in the past, began to regulate those things that are accessory or incidental to a Bed & Breakfast. For example, there's one in Town that has a swimming pool and the guests at the Bed & Breakfast use the swimming pool. I think the Board's seen that. This is the one on Ridge Road. Again, my other concern is it's a very difficult thing to regulate. When Mr. DiPalma takes several people down the path to the dock to go fishing with fishing poles in their hand, it's going to be very difficult to differentiate when those are clients and when they're friends going on a fishing trip. So this is fraught with enforcement perils. Those are just several thoughts I have in my mind. MR. CARVIN-I just would like to point out, on the swimming pool issue there, that the first time around, I know the original motion on the swimming pool was that they couldn't use it. There were some stipulations on it that they could not use the pool after eight o'clock or nine o'clock or something like that. MR. MARTIN-I'm going to come jumping out of the bushes at nine- thirty on a Saturday night and say, ha, gotcha. MR. CARVIN-Well, I'm just saying that I know where you're coming from, but we did try to restrict the use of that swimming pool, and I think when that came back on appeal, or for renewal, that I think we dropped that particular section, because I think it is an unenforceable situation, but I just want the Board to be aware that we do have the power, on incidental or accessory uses, to make certain criteria, if it's so deemed. MRS. BLEIBTREY-Well, I don't see where a fishing charter business is allowed in the Zoning Ordinances, period. It's not there, so why allow it, that's my other point, and why have the Zoning Administrator condone the use of the land in this way? I'm sure if it were your home, you'd feel the same way I do. I know you wouldn't want a business running through your property. MR. CARVIN-Okay. Any questions of Mrs. point, I would open the public hearing speak in favor of the appeal. Bleibtrey? At this for anyone wishing to PUBLIC HEARING OPENED GRACE HANNEFORD MRS. HANNEFORD-I'm Grace Hanneford. I have a piece of property - 51 - next to Mr. DiPalma's, and my residence overlooks where the dock is. He's had this fishing business long before he decided he wanted a Bed & Breakfast. Now, I would say that he's trying to put in two businesses, the fishing business and the Bed & Breakfast, and I feel that it's going to depreciate my property, and, therefore, in a residential zone, why should one person be allowed to have two businesses? It's supposed to be residential, and I dorr't feel that it's helping anyon~. Thank you. MR. CARVIN-Okay. Anyone else wishing tb be heard in support of the appeal? Okay. Anyone wishing to be heard in opposition to the appeal? MIKE O'CONNOR MR. O'CONNOR-Mr. Chairman, Gentlemen, I'm Mike O'Connor. I'll begin with maybe something different than what I was going to begi n with, but I keep hear i ng, two busi nesses. I thi nk we submitted, and I presume that the Board will take into consideration in its deliberations everything that has taken place on this property over the last year and a half,' when we've been before this Board for an Area Variance for the building and before the Planning Board for a Site plan Review for the addition to the Building, and when we were before the Planning Board for the site Plan Review for the operation of the Bed & Breakfast, but the thing r want to ~ring to your attention up front, before I go into, perhaps, a rather curse response, is that ~e submitted proof that in 1993, over a four month period, there were 13 occasions when this was used as a Bed & Breakfast. 1994, I would submit to you, I don't have the dates like !'did for 1993, but there were less times. That's the potential impact that we've been here for. We've been before the Planning Board. We've been to the Lake George Park Commission. We've written to the Adirondack Park Agency. We've had discussions with the New York State Sales Tax people, all because M1". and Mrs. Bleibtrey don't like the use of their right-of-way, which they knew when they bought the property, which we have the right to use to get to our dock. It's getting pretty much like the APA and the pool table on the boathouse. It'é ridiculous. It really is ridiculous, and the expense that these people are put to because the Town will not stand UP and say, if you don't like the Town rules, go to court. that's the recourse that these people should be seeking. It's not the recourse before this Board. We filed for a Site Plan Review, in our some 36 pages of minutes, and that decision was given on January 25, 1994. By the CPLR, there's a 30 day appeal from the date of the filing of that decision to file an Article 78 to appeal that decision. No appeal was filed. The time has passed for this issue to be discussed. This appeal is not timely, insofar as it effects Mr. DiPalma. It may be timely in the sense that the Board wants to make an interpretation for future use, for future application~ but at some time, and I'll change the saying so I don~t offend anybody, and I didn't intend to offend anybody, the fat man has to sing. We have to be able to tell people that when they go downstairs and get a building permit, that they have the right to proceed on that building permit within é certain time frame, and the CPLR says 30 days. Mr. DiPalma proceeded on his site plan review. He built the addition that he intended, and he had to complete it, and I think all the Town inspections have taken place. I don't know if the Certificate' of Occupancy actually was physically issued or not, but we know that the final inspection was done. Now we're here talking about, can we use that. Tim Brewer was here earlier, and went home. He gave me his phone number and said I could call him if you wanted to hear from him directly. He will testify that, at the site plan review, we discussed, ånd the minutes reflect, we discussed using the entire premises as a Bed & Breakfast, and that as accessory to the ambiance of the Bed & Breakfast, people would be allowed to go to the dock. They'd be allowed to fish off the dock. They would be invited to go out onto the lake and take charters on the lake, or whatever you want to call it. We - 52 - "---- ------ '-- --/ understood and agreed that we couldn't have people come in off the street and come to the boat, or come to the dock and simply go out on their cha,-te,-. That would be a sepa'"ate operation. What we're talking about is, and I think what we should be talking about is simply the issue of use of the boat dock and the boat and the fishing guide services provided as part of the ambiance of the Bed & Breakfast, for those that are guests of the Bed & Breakfast. We went to the Lake George Park Commission. Somebody said we couldn't operate the Bed & Breakfast, even with the Site Plan Review, unless we had a Class A Marina permit. We went there and we argued that we didn't need a Class A Marina permit. Use of the dock by guests is exempt. It's not a Marina operation. Even our particular Ordinance exempts that. Use of a dock by family or guests staying at a residence is not a commercial use of a dock, and I seriously question whether this Board has any jurisdiction once the people step into the boat, but I think you've got a time issue, here, and Paul disagrees with me, but we've got a provision in our Ordinance. You can't get into the APA frame of mind and say, well, we think we'd like to extend the Ordinance. We'll give them another chance. If the people don't agree with what the Ordinance says, the Town changes the Ordinance, or they go to the court and say that the Ordinance, there's reason to interpret it differently. I haven't heard the applicant here tonight ask for a variance of the 60 day appeal right, and there was no appeal within 60 days, or, no 30 day appeal, within the March 25, 1994 decision. So I don't know why we're here. I don't think you have Jurisdiction, and I told my client that. I've told my client to operate it. I'm going to tell my client to operate tomorrow. If you want to make an interpretation of your Ordinance, for other properties that you might involve this issue with, then fine, but you've already got a Planning Board decision that says he can do it, that has not been appealed. MR. MARTIN-Mike, could I ask you a question about the charter business, you touched on that earlier. If it is a case where someone simply wants to go fishing for a fee, and not stay over, how is that treated? MR. O'CONNOR-We will pick them up at some place else on the lake. If they're staying at a motel, in the lake, and the Lake George Park Commission said that that was also permissible, and we didn't need to have a Marina permit to house our boat at our dock on this stream to go out on to the lake to pick these people up, and we do that. We go over to the Georgian and pick up people. We go to the public docks at the Village to pick up people. We also have some people even that stay. You ought to understand. We have some people that stay, in those 13 occasions in 1993, that stay at our place as Bed & Breakfast, that don't go out on the lake. They go to area streams to fish, and they, you ought to understand, too. We're not going through Mrs. Bleibtrey's front yard, although I don't think there's a heck of a lot of difference. As I understand it, their house faces onto the road. We go down the back to the stream. I even question enforcement. I don't even understand that issue. If we have a legitimate Bed & Breakfast, and we look at the definition of Bed & Breakfast, there's nothing in there that says you can't do what we are doing, and our Ordinance has been interpreted consistently as being permissive. It is an example type Ordinance of what you can do, but it is not a limited O,-dinance as to what you can do, and we've used that on occasion in the past. I don't think you can say that people can't go down to the dock and fish. You can't use, as I understand a Bed & Breakfast, it's the idea that, it welcomes somebody into your home, and let them have the run about of your home, pretty much, except for maybe something that you would keep private, some portion that you might keep private on occasion. The principal use is still your home, and that's the principal use here. We showed actual dates and what not in 1993, and I've got those here with me if you want to look at them again, as to the number of times that we had strangers there, if - 53 - you will. Most of the people that Mike DiPalma does business with he's struck up some type of relationship, because they are repeat type businesses. I've got the advertisement on the berry farm, which is at 623 Bay Road, Queensbury, New York. It's run by Eleanor and Al Oudekirk. They talk about the century old farm house, or a walk down the lane to a blueberry patch located in histo)" ic Queensbury. The homestead has a superb view of changi ng seasons on its 50 acres of field and woods~ Those 50 acres are open to the people to enjoy. That's payt of the ambiance of that particular Bed & Breàkfast. The one at Sanford's Ridge, which you spoke about earlier, at 749 Ridge Road, 9L Queensbury, in their brochure, they talk about, our restored carriage house features a slate billiard table. Maybe people, you know, if they're only supposed to sleep there and have breakfast there, and not supposed to play pool, maybe you ought to tell them to take the pool table out of there, and a remarkable view of the mountains to the west, taken in the sun on our spacious deck or enjoy a relaxing swim in our in-ground pool. They don't say, between such and such hours. Maybe that's a condition of that permit, and I don't mean to be sarcastic to the Board members, but I just have lost patience with the fact that we have a never ending wheel that seems to go around and round, that we can't bring to a conclusion. There is a procedure set forth, and Paul has a remote case that talks about a neighbor's right to have an extension on the stated appeal. That's not going to be the case that's going to be applied in every case, and I hope that this Board doesn't get into the APA complex, and I don't use that negatively, of stretching, we've got a Town Board member that takes great interest in our planning. We've got holes in the Ordinance. The Zoning Ordinance is a living document, and there's a lot of room for, perhaps, improvement of the Ordinance. That's by legislation. That's not by overreaching interpretations. I've got one, Chalet in the Pines, that's in the Adirondacks. I don't know what their Zoning Ordinance is, but I know it's in the APA, and I know that commercial uses aren't allowed in this particular area. The Chalet is a couple of hundred feet from a private sandy beach and beautiful lake. Fishing and swimming are excellent. There is the use of a 12 foot row boat for each unit on which you may use your own electric motor. It's the same content that we have. You've got a Bed & Breakfast, Country Road Lodge in Warrensburg, and these we picked up simply, I believe, from the brochure rack at the Municipal Center. You can buy books on Bed & Breakfasts, too. You aren't going to find Bed & Breakfasts that say, come stay in your 12 by 12 room, and we're going to give you a continental breakfast or we're going to give you a fancy breakfast in the morning. If you've stayed at Breakfasts, you'll know. I think the only one I've stayed in is the one in Martha's Vineyard. That allowed us the use of their beach, and we fished from the beach. The Bed & Breakfast guide to Saratoga, Lake George, Gore Mt. I'll give these to you if you want to review them, but I think they prove the point. Somebody is trying to invent for you a definition that is not the common definition of Bed & Breakfast. They're trying to play on words and say, Bed & Breakfast will only be A, B. It won't be what everybody else in the trade and everybody else in the business interprets it to be, and just so you don't have a question on whether or not we're talking about a marina or we get off into that mind set, recreation facilities, private; recreation facilities, supplement to a principal use for the utilization of proprietors and guests, and excluding any such use which is open to the public for a charge. We fall within that exception, with the people that are guests of our Bed & Breakfast, and that's the only people we're talking about. We acknowledge the fact that we are not open to public people to come just to use the fishing ~spect of our operation. Only can they use it in the manner that we intend to use it, if it was incidental to their staying. They don't have to use it. They can stay wi thout usi'ng it. I told you the date, and I'll say it again for the record, 1/25/94 was the site plan review, and 7/21/94 the Lake George Park Commission, where we - 54 - -.I' "-' went in with a Class A Marina, and they ended up saying that we did not need a Class A Marina, and on that point I guess I would also even pick up, arguing both sides, if I had to accept Paul Dusek's case as being the rule of law here, you still have the charge of what is a reasonable time of appeal. All these issues have been on table. All these issues have been brought to the attention of the account in this particular case, but it wasn't until some time after July 21st when a reaffirmance of prior determinations that were made that the appeal issued. I actually think that the determination was made when the site plan review application was accepted, because our standard is, if I understand it right, is that they won't schedule a site plan review if they think a variance is necessary. MR. MARTIN-That's correct. MR. O'CONNOR-If we were applying for a use that was not permitted in that application, they would have told us then that we needed a site plan review, and I get into the problem, and I think Paul, maybe we haven't addressed the problem, simply because he re- states a determination to another agency doesn't start running, again, that 60 day rule that's within our Ordinance, and I'm going to raise that as a point for another argument that this Appeal is not timely, particularly it's not timely as to Mr. DiPalma, and another interesting thing, which I'll say for Mrs. Monahan and everybody else. I looked in the Ordinance, and sometimes when you are arguing that something is permissible in one zone, incidental or primary, somebody will come out and say, no, it wasn't the intent of the writers of the Ordinance, because they put it specifically some place else. Mrs. Bleibtrey is correct. You don't have a fishing charter operation, principal or primary, any place in the Town of Queensbury, and that seems to be too bad, considering that we do have those facilities that are available. I don't know what the intention was. I see that Bed & Breakfasts are allowed in Rural Residential zones and Land Conservation zones. Those are the two areas where they are specifically permitted by site plan, Type II site plan review. Both of those areas are areas, generally, that will have some type of ambiance to it, other than a room and a breakfast. I don't think that they are permitted, and out of curiosity, in Waterfront Residential zones. I don't know why. I also, for the record, will raise a question as to how it's considered this Appeal to affect Mr. DiPalma, because they state it affects the property of the applicant, but yet we're talking about the use of the property of Mr. DiPalma. Maybe I've lost something there. I'm not sure. We're also talking, for the record, I believe, about the tax map number parcel of Mr. and Mrs. Bleibtrey's property, which is different than ours. I am prepared to answer questions that you might have as to the substance of our use or the subject of our use, but I really think that you have to address some procedural issues first. Is this Appeal timely? Is this Appeal, or the determination of this Appeal, to be applied retroactively to the permit and the activity of Mr. DiPalma, and then, what is your determination, if you're going to entertain the Appeal? Thank you. MR. CARVIN-I just have a question. What is the name of the Bed & Breakfast? MICHAEL DIPALMA MR. DIPALMA-The name of the just a name I gave it. Adirondack. Lodge is Beaver The name of the Creek Lodge. It's Guide Service is MR. CARVIN-Okay. I notice on your sign you have a New York, is that a Guide License Number? MR. DIPALMA-A Guide License Number, yes. - 55 - MR. CARVIN-Okay. Breakfasts? Is there a licensing system for Bed & MR. O'CONNOR-Not that I'm aware of. MR. CARVIN-Okay, but there is for hunting and fishing guide? MR. MENTER-The Department of Health must have some guidelines. MR. O'CONNOR-I don't think so, unless you're a certain size. Even that's an issue here. I think maybe that's something that the Town Board has to }ook at, too, is the Definitions, to give it greater impact, but as to a limitation of Bed & Breakfast, that you're only going to have facilities for so many people, we don't have, I think we've got, perhaps if you push everybody together, you've got room for six at one time. MR. DIPALMA-That's really pushing it. MR. O'CONNOR-Typically, you have two to four people~ and they sleep like in a living room type area, and then there's Just one bedroom that they use, along with the guest room. MR. CARVIN-I think, at this point, I'd like to ask Mr. Dusek ~hat the timeliness issue is. I think that that needs to be resolved. MR. DUSEK-In this particular case, because of the request to come in, and, you know, it 'wasn't' just tonight. I had a chance to go back through and look at all the records and look at this matter completely for you. First of all, I think that it's important for the Board to recognize, which I'm sure you do, there is two issues here. One is the procedural. One is the substantive, and Mr. O'Connor has been going' back and forth between the two. So some of the statements that you just heard apply to one and not the other. As far as the procedural issue, which is what L was asked to help you with, first of all, I think we have to understand that anybody has a right to file an appeal and come before this Board, if they feel that there's been a decision, and it's UP to this Board to make that determination. So the Appeal of Mrs. Bleibtrey is properly before you. The question you have to ask yourself is, is she right to Appeal at this time? Does she have something to appeal? And, you know, I started looking at this Appeal, and I said, well, she would appeal from an action of the Zoning Administrator, and she describes the nature of her Appeal, which is that of the fishing guide service incidental to the Bed & Breakfast, which is directly the comment that was attributed to Jim Martin, but interestingly enough, she picks it up off of a letter addressed to the Lake George Park Commission, I believe it was. Right? MS. CIPPERLY-Yes. MR. DUSEK-Okay. So it doesn't fall in the typical case, where she wrote Mr. Martin and said, can they do this ictivity, and he, in turn, said, yes, but rather she picked it up indirectly, and I said to myself, well, she could make an argument~ or an argument could be made that, yes, she shouldn't properly be before this Board, but because she hasn't gotten an answer directly from Mr. Martin and, therefore, she should write to Mr. Martin, get an answer, and send it back, a~d I said, that's, like, kind of a waste of time, because then we're all 90ing to be back here again, if that's true. So then I said, well, lets assume, for the sake of argument, that we can treat Mr. Martin's response as some sort of a response to her, even though it was indirectly. Then the question became, on the other side of it, as Mr. O'Connor's argui ng, ~.Jai t a minute. You al ready made a decision on this, and Mr. Martin already made a decision, and this is not timely. So I went back and looked at the record, and the one, I think there's a very important paragraph in the January 25th minutes, where Mr. O'Connor is speaking, and he says that, this - 56 - --... -- is on Page 32, he says, "We, as part of our application, are not asking this Board to condone the operation of a charter business from the dock. We stipulate to that, and we understand that what we are talking about is permission to allow people to stay over at this premises and have breakfast, enjoy the premises", whatever that means, "as people normally would enjoy the premises as a Bed ;&IBreakfast", and then he goes on and starts talking about some other things, the parking and other items, but as I look through the entire record of this matter, including, most importantly, the notices of hearing and the files, what came apparent to me is, what was really before the Boards in the past was, can they add a single family addition on, which the Board said, yes, you can, and then the second issue that was before the Board was, can we have a Bed & Breakfast. Well, the Board said, yes, you can, but when those two issues were before the Board, I don't find anywhere where the Board actually said, well, now, lets get in and talk about what you can do, as part of a Bed & Breakfast. I think what happened is everybody just assumed what you could do. Mr. Martin, Mr. O'Connor had his ideas. His client had his ideas. The Board, presumably maybe, didn't even think about~ or had their own ideas of what was allowed, and now all of a sudden Mrs. Bleibtrey has come up and said, wait a minute. I don't think they should allow a fishing guide service as part of this program, and, so, I don't see where this issue has come up before. I think that the Board could say, well, okay, she can appeal this. It isn't something that's been previously decided at all. So, therefore, there's no time frame. I think that you could say that, well, she hasn't even applied to Mr. Martin, so we'll toss the thing right out. I think you could do that, but I think that she could then come right back in, and you'd be faced wi th the issue. So I guess !D..'i.. ,"ecommendation to the Board is, I'm at a loss to see where this appeal is not timely, in the direction as suggested by Mr. O'Connor, and I might say to you, too, the case that I referred to earlier was not a remote case. I researched this issue relatively carefully, and I came to the conclusion that that appeal time doesn't just run from the permit. It runs, as I suggested to you, from the time of determination, or, you know, there's certainly a, what we would call a leaches argument or equitable argument that could be made by Mr. O'Connor's client that she wasn't timely in some fashion, but I don't see where this issue has even come up or was subject to the approvals. I think the approvals focused in on Bed & Breakfasts, and they focused in on the other issue, which was the Single Family home. Certainly, I think, over time, if she'd brought up these questions constantly, but I don't see that there's been a focus anywhere in the record. So, I offer that to the Board for your consideration on this. This one is a little bit, I think, clearer to me, anyway, then the other one you had, but I think that L would recommend that you go to the merits and decide it, and Mr. O'Connor, I think, has made a presentation as to the merits, and so has Jim and Mrs. Bleibtrey. MR. O'CONNOR-Paul, can I go back to that, though. I think you're taking it out of context, when I said, then, that we consented, and I still do consent. We cannot operate what I think everybody thinks a charter business is, a stand alone charter business, from this property. I acknowledge that. If you go back to 8/31 and you look at the question that George Stark asked Mr. DiPalma, "Mr. DiPalma, what are your hours of operation? Do you take people out real early in the morning fishing or real late at night fishing?" Mr. DiPalma, "Never real late at night. As early as seven o'clock, maybe quarter of seven in the morning. I've gotten up myself at five. I like to fish myself." Mr. Bleibtrey, "Every time he brings charters through there, it wakes us uP." I don't think there's any question that, at that time, we were talking about bringing guests to the dock and taking them out fishing. We were simply, and I still repeat, we acknowledge that we can't do it unless it's incidental to their staying as a guest at the Bed & Breakfast. That was the intent of that paragraph. That was the intent of that comment then. That's why - 57 - --- I asked Tim Brewer, when he was here earlier, if he had any problem with ID.t.. representation that we fully discussed at that Planning Board meeting that we would be taking our guests out from that dock for fishing purposes, and he said, no, and I think even if the initial Zoning Board of Appeals, we got into the same discussion. We've been discussing this before every Board we've been to. MR. MARTIN-I clearly recall, in those meetings, it was discussed that certain members, certain clientele, did stay overnight, had breakfast the next morning, and went out fishing after that. MR. O'CONNOR-There's a play on words, even from ID.t.. part, and maybe I'm not, it's a play on words to a part, but you have to read all 32 pages of that to get the context of what the intent was. MR. DUSEK-I just might add. I'm not trying to play on words, Mike. I did review the entire records. MR. O'CONNOR-I think if you read it through, you're going to see that we talk about taking clients out. MR. DUSEK-There's no question that there's always been some conversation here going on about it, but my point to the Board is if you look at what was approved and what was the subject of the Planning Board, the subject that was before the Planning Board is, do we approve a Bed & Breakfast, do we have site plan jurisdiction, and I guess what I'm also, the other thought I had, I'll throw out to the Board is, I say to myself that the Planning Board doesn't even have jurisdiction to interpret anyway, whether that's allowed or isn't allowed under the Bed & Breakfast. It's Mr. Martin and it's this Board. So it's logical to assume that they're, of course not, addressing that issue and certainly, though, from what 1 understand the history here, certainly there's been a lot of discussion over it, but I don;t believe anybody's ever brought it to a head until Notice of Appeal \.Jas filed. MR. CARVIN-I just have a question. The LC-42, Section 179-13, says the following uses are permitted in the Land Conservation zone, Single Family, hunting, fishing camp less than 500 square feet. The accessory use is private garage, storage shed, private green house or outdoor athletic court, home occupation, private boathouse and dock. Now, how about these other uses? Are these site plan uses also considered accessory uses, the saw mill, the recreation center and lodge and so forth? Would they be accessory uses under the LC-42? MR. MARTIN-They're typically the principal use. However, I think the Bed & Breakfast is a rather unique animal, in that the proprietor does stay in the house. Typically, they are the primary use. MR. CARVIN-That would be the primary use? MR. MARTIN-Yes. MR. CARVIN-Okay, and how about the Type II, in other words, game preserve? MR. MARTIN-That's true, as well. MR. CARVIN-Hunting and fishing cabin over 500 square feet, a sportsman club and firing range. See, I guess my question is, suppose somebody wanted to go skeet shooting at this Bed & Breakfast? I mean; can he go down there and fire skeets off the b~ck and turn that into a firing range, if that is an accessory use? - 58 - "-- ---/ MR. MARTIN-I would say, again, if it's incidental to the use, if it's a facility made available to the guests. MR. CARVIN-That's what I need to know, whether these are also accessory uses, or are they primary uses? In other words, if he had a firing range there, could he have a Bed & Breakfast? MR. MARTIN-If that were proposed to be the case, that would be discussed in the context of the review of the Bed & Breakfast. MR. CARVIN-Well, that's what I'm trying to come to, because I think that this, if our accessory uses, I mean, to allow Mr. O'Connor's, he's got the Bed & Breakfasts, well certainly walking and viewing are probably accessory uses. I mean, there's nothing in here, you know, if they wanted to go down to the storage shed or walk through the private green house, I mean, that would be an accessory use to a Bed & Breakfast. If somebody showed up with a boat at this Bed & Breakfast, and said, I want to use my boat to go out fishing, is that any different than somebody showing up with a pair of shoes saying, I want ~ Reeboks when I go walking at this Bed & Breakfast. I mean, these may be absurd situations, but if we open the door on accessory uses, we're going to kick it wide open. MR. O'CONNOR-Let me make one other distinction. You don't have Jurisdiction of the boat in the water, and that's a unique thing to this particular property that may be maybe a little different than some of the other aspects of what you're talking about. MR. CARVIN-Well, again, I want to come back to this issue. I mean, I'm looking at sportsman's club and firing ·range. Now, if I was Mrs. Bleibtrey, and all of a sudden somebody was skeet shooting off the firing range, off the dock, I'm not quite sure that, under any stretch of the imagination, would I be considering that part of a Bed & Breakfast, although, I guess, now, that falls back to, is what Mr. DiPalma is doing? MR. MARTIN-That would be permitted if that had obtained site plan review and approval. Clearly, in the context of the discussion of this site plan, the fishing was discussed and known. It was a known entity with this particular Bed & Breakfast. Now had skeet shooting been a proposal, that would have had to have been part of that application and if it were not, it would not be permitted until they did get site plan approval for that. MR. CARVIN-Okay, but I think Mrs. Bleibtrey's thing is, and again I want to kind of address her letter, that what Mr. DiPalma was doing pre-dated, and I think this other lady commented that a lot of what Mr. DiPalma was doing pre-dated his establishment of the Bed & Breakfast. MR. MARTIN-And my recollection of the fix to that problem was the charter business now operates away from this dock. He is to go elsewhere. He consented to that. MR. CARVIN-Well, that's the charter service. What about his hunting and fishing guide? I think that we had addressed that. MR. DIPALMA-I'm not a hunting guide. MR. MARTIN-There's no hunting. That's the same charter fishing guide service, if he's going to take somebody exclusively for that use, then he goes off someone else's dock. He goes to another dock and picks that client up. It's only those people who stay overnight, that if they want to go down and fish the next day, then that's part of the Bed & Breakfast. MR. DUSEK-But that's also, Mr. Chairman, the new issue. I mean, that did not exist before the Bed & Breakfast. I think you've made a statement that there was an ongoing activity. tlZ - 59 - understanding is, as hopefully Mr. O'Connor will agree with this, that the charter business and the idea of the boat picking up other people around the lake and stuff, I don't think anybody's contesting that. I think that was going on, I guess, and that's that, as long as it's not taking people down, right there, and doing business at that dock. MR. CARVIN-Well, as I remember it, we've gone through this conversation many times, and I know at one point Mr. DiPalma vehemently denied having a Bed & Breakfast there, and in the course of a couple of days, all of a sudden we had a Bed & Breakfast there. I mean, I think if you go through the minutes, you will find that we have argued this ve)-y situation going back 10,000 years it seems, and as I said, I still am unclear whether this is, if we just take the hunting, I hate to use the term "hunting", but anyway, the fishing lodge. I think at one point he had argued that because he had a lodge, that it was actually a lodge, and again, I'm going on memory from minutes that are spread over the last couple of years. MR. O'CONNOR-Mr. Carvin, the whole process here iito try to bring this into conformance. I think since I've been involved with this particula)" application, we started with an application for a building permit for a 14 foot by 16 foot addition, and then it got into an issue as to whether or not we could use that for what had been going on on the p)"operty, and we stipulated befo)"e this Board, some of whom are, members, are new to, that we wouldn't use the 14 foot by 16 foot addition for the Bed & Breakfast, and we would continue operating the Bed & Breakfast and servicing some of the guests by allowing them to fish, or take them from our dock for fishing purposes, but we wouldn't use the room to accommodate that, to increase it, to do anything of that nature. We then went to Mr. Martin and asked him for the building permit, based upon the variance, and we have the variance. The variance is required because this is a nonconforming lot in a Critically Environmentally Sensitive area, and the set backs are very large. When we went for the building permit, he said, wait a minute. If you have any expansion in that type area, you still need site plan review. You might just as well get site plan review approval for the addition, for the total use of Bed & Breakfast, because that's an issue, and that's what we're here for. MR. MARTIN-And that's why it was dealt with in that manner, because in the context of the va)- iance hes)" i ngs, it was said that people are staying overnight, so the thing was fully aired before the Planning Board, a public hearing was held, and all these things were discussed. MR. MENTER-And if I could just say this. That's ~ recollection, too, that this was at length discussed, and even the issue of the prior business being the charter business was not going to be operated there for members of the public and I know it went around and round, and that became the understanding of what the Bed & Breakfast would encompass. That was considered what the accessory use is. The problem is, at this point, Fred, and I would ask Jim, what is it, Jim, that prevents Mr. DiPalma from providing and allowing skeet shooting on that property now? MR. MARTIN-I think then you're falling into a classification of a hunt or sportsman's club, or something like that. It's a separately defined use, separately listed in site plari review. Something like that would be a violation if it was occurring without site plan review and approval from the Planning Board. MR. CARVIN-And my specific question is does he have site plan review approval for a hunting and fishing cabin over 500 square feet, which is in the same Type II category as a "firing range"? MR. MARTIN-He has approval for a Bed & Breakfast, where the - 60 - ~ ------ guests at that Bed & Breakfast eat breakfast there and they go out fishing. That was fully discussed, fully acknowledged at the Planning Board meetings. MR. DUSEK-Of course, the only problem you have is there's no reference at all to that in the decision. MR. CARVIN-That's correct. MR. MARTIN-I didn't say it was in the decision. fully discussed and acknowledged. MR. CARVIN-I'm just saying that he has site plan review and approval for a Bed & Breakfast, and, really, only the accessory uses of a Bed & Breakfast would be the private garage, the storage shed, the private green house, the swimming pool or outdoor athletic activities, home occupation and private boathouse and dock. I said it was MR. O'CONNOR-Is fishing an outdoor athletic activity? MR. CARVIN-It says athletic court, like a tennis court or a badmitten court, I think is what they're referring to. MR. MARTIN-I don't think it's fair, Fred, to say that only accessory uses, as listed, that's all that can be accessory. There's other incidental things that occur that, you take it to the extreme of the skeet shooting. What happens if they have wal ki ng paths? Should wal ki ng paths )-eceive si te plan rev iew then? Should walking paths have received site plan review, of a Bed & Breakfast, if they're going to have walking paths? I mean, that's absurd the other way. MR. MENTER-Well, I guess the question would be, where are the teeth? I mean, what are your criteria for allowing or disallowing any future uses that he may decide he wants to try? Is that what you're getting at? MR. CARVIN-That's, essentially, what I'm getting at, because he could come up and maybe put horses on there, because, you know, right under, you've got dog kennel and riding stable. MR. MENTER-All this, to me, is separate from the issue that we're discussing, but it's tied to it. MR. CARVIN-No. I thi nk that is the issue. What is an accesso)-y use to a Bed & Breakfast? MR. o 'CONNOR-I think what we are doing, we submitted to the Board, they gave us their approval. MR. MARESCO-Mike, has anybody, you did address this question early, but I'll just throw it out again. Nobody is coming there specifically using that right-of-way to go in the charter business, right? MR. O'CONNOR-No. MR. MARESCO-That's absolutely out of the question. MR. O'CONNOR-We understand that that's not permitted. MR. MARESCO-Right. So the only people that are using that right- of-way, coming to your property, are the people that are staying at the Bed & Breakfast? MR. O'CONNOR-Yes, or guests or friends. MR. MARESCO-Right. - 61 - --- MR. O'CONNOR-For hire, is the only people that stay at the Bed & Breakfast. MR. MARESCO-Okay. MR. O'CONNOR-And if you go to the ridiculous, if we had people stay at the Bed & Breakfast, Mr. DiPalma got in his car and drove to the next marina, got his boat, drove down the tributary or creek to the dock and said, come on, folks, get on my boat, and then drove back out with his boat, there would be absolutely no activity that you would be talking about. There'd be no di fferent impact. There' 8 nathi n9 that says that somebod>' staying at that Bed & Breakfast can't call a competing boat person and say, come and get me. I don't think they'd be real welcome the next time~ but, and I really take it to the point that you've got to look at impacts. There are other (lost word) common law remedies, perhaps, that the neighbors have. They think that we are over-using their right-of-way, or putting a burden on there that was not our right. They have remedies beyond taking up two to three hours of this Board and every other Board in the Town five or six times a year. MR. CARVIN-Okay. I'll continue the public that's where we are, for anyone wishing opposition to the Appeal. Any further Hearing none, Mrs. Bleibtrey, I know you had hearing. to speak opposition? a comment. I think ou tin Oka>' . MRS. BLEIBTREY-Mr. O'Connor mentioned the impact and what you have to consider is the potential impact. You don't know what's going to happen there if you give approval, and, by the way, the fishing charter was discussed at the site plan review, but it was never approved. There was discussion of it, but they didn't get approval for it. They only got approval fo)" the Bed & Breakfast, and as Mr. Dusek quotèd 'from the minutes, on Page 32, Mr. O'Connor stipulates to the fact that they were not addressing a fishing charter business, only the Bed & Breakfast. So lets not confuse the issue here, and also lets remember this is only a 10 foot right-of-way that extends to 20 feet at the water. The only thing I object to is the commercial use of that. I don't object to Mr. DiPalma peraonally using that, but I object to him running a business through there. I mean, that's against the Zoning Ordinances, and I hope that you will enforce the Zoning Ordinances. That's my whole point in being here. The objections that he raised about my application I addressed at the last meeti ng in Octobe)". I'm the appl icant because I'm the proper ty owner. I pay the taxes on that right-of-way. That was one objection. My Appeal was based on the July 11th letter that was written by Mr. Martin, and my Appeal was filed July 31st. So the 60 days, that's not an issue either. My house does face the water. We brought that up as a concern. He couldn't understand why it was a concern because my house faces the road. It faces the water, ànd he sµggested something about us not liking the Town rules. We QQ like the Town rules. We want them enforced, and that's all I'm trying to do here. Like I said before, I don't think anybody here would want a fishing charter business running through their own property next to their home, and they did not get approval for that at the site plan review, if you look at the minutes of the January 25th meeting. MR. CARVIN-Okay. I just have one question for clarification. You say the commercial business, can you expand upon that? What is your interpretation of commercial business there? You said you had no problem with Mr. DiPalma using his property. MRS. BLEIBTREY-Mr. DiPalma has property. His clientele do not. a right-of-way through Thèt's a residential area. our MR. MARESCO-The only traffic, and I don~t mean to cut you short. The only,traffic you should see coming through your right-of-way is people that are staying at his Bed & Breakfast, his guests or - 62 - '---- -.,../ his family members. That is the only traffic that you should see coming through there. Do you see any other traffic? Do you see people coming there, using his facilities specifically to go fishing? MRS. BLEIBTREY-Well, I really can't answer that, other than, I know there's traffic through there all the time, and he takes the people out. MR. MARESCO-The only traffic should be people that are staying at the Bed & Breakfast. MRS. BLEIBTREY-And in the past he's had his charter fishing boat there, picking people up. I mean, this has been going on. I have a copy of a violation from the Town from 1987 telling him to stop that business. So the traffic that's through there, I don't know who they are. They're strangers running through my yard. MR. MARESCO-How well can you see this? MRS. BLEIBTREY-Well, in the summer time, it varies. but the first indications that Mr. O'Connor mentioned don't know if that's accurate, but I would be concerned potential impact in the future. You don't know what's happen. It varies, i n 1993, I about the going to MR. MARESCO-Well, there future. His facility people, and that's it. shouldn't be much of an impact in the can only maintain a certain amount of Is that correct, Mr. DiPalma? MR. DIPALMA-Correct. MRS. BLEIBTREY-(Lost word) people can stay there, but he can have as many people as he wants going through the right-of-way and down to the dock and getting on boats. He rents the dock for rent. MR. MARESCO-No, he can't. MRS. BLEIBTREY-Well, what he £än do and what he can't do, I mean, it's, I don't want to get into anything like that, but the impact, the potential impact is my concern, one of my concerns. MR. DUSEK-Perhaps I could be of assistance here. I think that the fishing charter business, itself, directly coming from wherever they come from, and getting on that boat, I don't believe is an issue here. MR. O'CONNOR-I said that once, and it keeps being held against me. I don't know if I dare say it twice. I agree with you Mr. Duse k . MR. DUSEK-All right. We're in agreement on something. Now, I think, though, what iê. an issue here is what is the scope, and what is the, I mean, assuming that you don't have a procedural problem, and I don't know that that's completely resolved yet, but if you get by the procedural problem, and you feel that you can listen to this Appeal, then I think the decision for the Board is, is what is the proper scope of a Bed & Breakfast? Does it include the type of activities suggested by Mr. O'Connor? MR. MARESCO-Well, now we're going to Fred's view, here. I mean, it just goes on and on and on. MR. DUSEK-Well, maybe you have to look at some different angles of it. For instance, I think you have to look at the angle of, what is a Bed & Breakfast, and does the Bed & Breakfast automatically have some sort of limitations of its own, all right, in terms of these other types of activities. Do you know what I'm saying? Look beyond just the words, but maybe look at - 63 - '-- ---' the whole concept here, and look at other Bed & Breakfasts, is allowed elsewhere. What do you think the intent of Ordinance is in terms of, how much can somebody do as part Bed & Breakfast, and I think that's really the issue here. what the of a MS. CIPPERLY~Another question 1 have for you, Paul, is, if there's an objection to the use of that right-of-way, that's something that would normally go to a civil ¢ourt? MR. DUSEK-Well, that's not an issue here. That's my point is. MS. CIPPERLY-It seems to be that Mrs. Bleibtrey doesn't like the use of her right-of-way for commercial purposes. MR. DUSEK-Yes, but that's not the issue before the Board. MR. CARVIN-Yes, the right-of-way has no bearing on this. MS. CIPPERLY-Well, you have other recourse, I guess. MRS. BLEIBTREY-Yes, but like Mr. Dusek here. The issue is that the Zoning land use which is 'not allowed in the the fishing charter. said, that's not the issue Administrator approved the Zoning Ordinance, which is MR. DUSEK-Well, that's Mrs. Bleibtrey's position. the Board to determine whether or not they agree. That's up to MR. MARTIN-Again, though, we're using terms here. The fishing charter business has been clearly acknowledged not to be occurring from this site. It's been acknowledged by the applicant that he's not doing that, and it is a restriction of the Planning,Soard approval as 1recall it, that that cannot occur. That commitment was made in the minutes of that meeting, that the charter business, in order to conduct itself, has to conduct itself elsewhere on the lake. So we're talking, strictly again, about the guests of the Bed & Breakfast, are they allowed to go down to the dock and go fishing, out on the boat and go fishing, across that dock. That is the issue. MR. DUSEK-Again~ I guess you have to, I've heard a lot of good comments here l'i ke, one of the thi ngs you have to ask yourse 1 f is, what if Mr. DiPalma wasn't doing this? What if these people were staying at the Bed & Breakfast and another guide service came up and picked them up off the dock. Is that illegal? Is that not allowed as part of the Bed & Breakfast? I think you have to ask yourselves all these questions. I'm not trying to steer you one way or another on that, because if you get to that point, where you're trying to decide that issue, that is clearly a good example of something that, it's your interpretation, as a Board, as to what are the limitations, as to what is allowed here, based on your reading of the Ordinance, understanding of the Ordinance, etc. MR. CARVIN-Okay. Mrs. Bleibtrey, are you all fin~shed? Okay. Good. Mr. O'Connor? MR. O'CONNOR-I think I've made my point. Just, maybe for the purposes of the record, Mr. DiPalma, we didn't bring people here tonight, but I t'hink your record has got a number of letters from people in the immediate area. I think four people use the dock immediately adjacent to this dock, who said they have no problem with this operation (lost word), their use and their enjoyment. The other thing is the question of the 1987 violation, which I didn't raise. That was withdrawn by the Town when Mr. DiPalma, I believe, gave proof that he was in New Jersey at the time of the alleged violation. There was no conclusion of that violation noted. It was simply a violation notice, and that was before the 1988 Zoning Amendment which allowed Bed & Breakfast operation, and I don't know if that has any relevancy anyway, but I'll - 64 - '-- --' mention it for the purposes of your record. The other thing is, you indicated that he could not be renting or have other boats at that dock. He has a Class B Marina permit from the Lake George Park Commission. That entitles him to have two boats there, one which may be owned by a non landowner, and that's not an issue. I don't think it is at issue, but I just wanted to make the record clear so that somebody doesn't come back later and say, you promised to have one boat there. I don't know what the intention is, but he has another boat there from time to time, and I don't know what the particular intention is in the future, but that's something that the Lake George Park Commission takes jurisdiction of. I don't know that this Board does at all. I'm just trying to make my records clear. I think you have to interpret what was presented to the Board with our site plan review for this particular Bed & Breakfast, given the fact that it's on a piece of property that has access to this lake by use of a dock. I don't know if you're going to run into a lot of those. I mean, if I'm correct, correct me if I'm wrong, it's not a familiar use in WR-1A, Waterfront Residential, or WR-3A. It's only permitted in Rural Residential and Land Conservation zones. So you've got a unique question of facts. MR. OUSEK-I feel just compelled to say one thing, since this is part of our record, as Mr. O'Connor mentioned. I don't know that I have, since I'm here, since I have some recollection of, and my recollection is not very good of a, and this is involving that 1987 or '88 incident, but I almost recall being involved in some aspect of that case that you're referring to, and I don't recall what exactly the result was at this point, but I think I recall enough of it to be able to say that my recollection was it focused on the charter aspects, and I don't think it's germane to the issue before the Board, of what is allowed under a Bed & Breakfast. So I guess I'm in partially agreement with Mr. O'Connor. I just don't know if I necessarily agree with his full characterization of the case. MR. O'CONNOR-I agree, it has nothing to do with the decision that you've been asked to make tonight, and I just want to make that, try and make sure that it doesn't have something to paint your thinking. MS. CIPPERLY-Could you, before you leave, clarify numbers for us? Mrs. Bleibtrey mentioned, when you were talking, I think you said there were 13 people who did not go out on the boat at all. MR. O'CONNOR-In 1993, there were 13 occasions where we had people stay, stays were one to three days, I believe. There was a statement, I think, a written statement, part of your record, as to what that is. MS. CIPPERLY-But those people would have maybe used the boats and maybe not. MR. O'CONNOR-I found out afterwards, I found out, in fact, that a couple of parties went to streams. I found out afterwards that two of those parties, one was a relative, one was a friend, and shouldn't have been considered pa)-t of the Bed & Breakfast. They should just be considered guests. So you've got 11 occasions where you've got Bed & Breakfast guests, probably 9 occasions where you would be charged with them utilizing the dock, and in 1994, an equivalent use, maybe 10, 15 occasions, in that range. MR. CARVIN-Okay. Are you finished, Mr. O'Connor? MR. O'CONNOR-I hope so. MR. MENTER-First we should discuss if we're going to entertain this. MR. CARVIN-Well, there's two letters that we want to read into - 65 - '--.- the record. It will be, I think, will we hear this or not? MR. MENTER-Yes. MR. CARVIN-Well, I think Mr. Dusek has kind of indicated that we would be well within our re~lm of hearing it, and I don't want to put words in your mouth, but would that be your suggestion? MR. DUSEK-I think that's a fair, I mean, I'm trying to give you some guidance on the procedural aspect. I was very cautious not to usurp YOU1" role, but, I mean, I thi nk in this case, this is a question of researching the law and reporting back to YOU on this that I feel that, in ~ opinion, I think that as far as the arguments made by Mr. O'Connor, I think that, I would say that you can hear it. You don't have to say, you're prevented because the time has elapsed. However, the only other thing I want to be very careful about is that, technically, I think you could make an argument that wé won't hear it because it's not appealing a direct decision of Mr. Martin in response to Mrs. Bleibtrey's request, but if you did that, then I think what would happen is Mrs. Bleibtrey could just turn around and make the request, and then it would be back before you anyway. We'd all be back here again, and I don't think Mr. O'Connor would want that. Maybe he would, but I don't think he 'would. MR. O'CONNOR-But then you, procedurally, have to make the decision that, even if you entertain the appeal, is it retroactively applied to the property and use as was approved by the Planning Board for Michael DiPalma? You may be saying you (lost word). I didn't get involved in the last argument that you folks here, but there are other precedents that have already been set out there. MR. MENTER-But as you said, Mike, we're not legislating. answering an appeal on this one issue. We're MR. O'CONNOR-I'll give you the Hogan Appeal. I did the Hogan Appeal on Glen Lake. We went through the whole appeal process. I forget what we got for a variance. We got variances because we tore down a building on a nonconforming lot, built on the same footprint, didn't have frontage on a Town road. I forget what else, and we did something else. We got all said and done.' The building was up and underway, and somebody comes back and says, did you really check out the square footage of something or other, and I think then we got into an issue, you deter~ined that you can only expand a seasonal property by 50 percent, but there was a decision made. I started an Article 78, or we had a conference about me doing an Article 78, and we agreed by this Board's determination that it would not be applied retroactively, and you have to worry, from a procedural point of view, when decisions are final. Why are they going to come and get building permits if they don't know if they're final? MR. DUSEK-In this case, though, I don't see the retroactivity, I guess. I just don~t see that. I think that that's not an issue here. MR. O'CONNOR-I argue that it is, and the same thing you argue about the kitchen issue or not the kitchen issue. That was a determination that was made in time. MR. DUSEK-That's my opinion I've rendered before. There has been no determination.' 'That's like saying the guy who violates the Zoning Ordinance~ and then you finally catch up with him, because he did it for a year, we're not going to make it retroactive. I can't agree with that. MR. O'CONNOR-People act upon decisions that are made. The appeal time runs, you've got a statute of limitations. - 66 - '-- -/ MR. DUSEK-But that's the problem. There is no decision in this case. MR. O'CONNOR-There is the decision made at the site plan application. MR. DUSEK-Nobody has ever ruled that fishing, that a Bed & Breakfast, I could not find this anywhere in the records, that a Bed & Breakfast allows you to have people go onto a charter boat. I don't see that anywhere. MR. O'CONNOR-Then what you're write every decision for the here. Tim Brewer was here. and remember the discussion. saying is that we should have you Board. Mr. Martin was here. I was The three of us clearly understand MR. DUSEK-There's nothing in any decision, Mike, that says that. MR. O'CONNOR-If that's the a problem with the Town. field. You've got to have Boards. position the Town takes, I really have We all try and play on a level playing some faith in staff, some faith in the MR. CARVIN-Okay. Well, again, I think if Paul is comfortable, from a procedural aspect, that this Board can move ahead, that the timeliness of this particular appeal is relevant, and I think that the issues that are being raised by this appeal are very, very relevant. It would be ~ opinion that we definitely move ahead on this, that we actually render a decision with regard to this appeal. I think it's well within the germane of this Board to look at that. That's why we're here, to hopefully add clarity or interpretation to what the Ordinances are. So, I mean, that's my opinion. So I think that we, I'm very comfortable, if Paul's very comfortable, moving ahead, from a procedural standpoint. MR. MENTER-I agree, since, in all likelihood, we're going to be answering the question anyway. MR. MARESCO-Sure. MR. THOMAS-That's right. MR. CARVIN-Okay. letters in. All right, which leads me to, lets read the MR. THOMAS-A letter received February 22, 1995, to the members of the Zoning Board of Appeals, "I live directly across Route 9L from the Bleibtrey's and I also own a piece of property adjacent to Mr. DiPalma. I feel that two businesses operated by Mr. DiPalma on his small piece of property in a residential neighborhood will severely depreciate the value of my property for future use. There isn't enough parking area for those of us who have use of a shared dock through our deeds. Mr. DiPalma's fishing business will only make this situation worse. This area is zoned residential and I'd like to see it kept that way. The town zoning laws do not allow a fishing business here, so I think Mr. DiPalma should be made to follow the zoning codes. Grace E. Hanneford" A letter received February 22, 1995, "Dear Members of the Zoning Board of Appeals: I object to Mr. Di Palma running two businesses from a lot of less than one hundred feet in a residential area. There is no way to Justify using a twenty foot right of way to operate a fishing business so close to neighbors. If one person is allowed to do this, then it opens the door for anyone to have this type of business, even if they have only 10 or twenty feet of water frontage. I am sure that none of you would like this situation of Mr. DiPalma running a fishing business out of your front yard if it were your home. Sincerely, Elsa Kraft" A letter dated 10/19/94, to the Town of Queensbury Zoning Board of Appeals, "Dear Members: This letter is regarding Michael DiPalma's use of his property as a business. The Zo,ning - 67 - 't,.-/ Administrator and the Planning Board well stated in January 1994 that Mr. DiPalma's business was grandfathered and on that basis gave him a Þermit to operate a Bed & Breakfast. This never should have happened because his business was not in existence before the 1982 zoning laws. I have lived here since 1930, and Mr. DiPalma's residence has always been used as just a home. The Town wrongly gave him a Bed & Breakfast permit, and now he wants to have permission to run his fishing charter business here, too. The Zoning laws do not allow a fishing charter business. They never have allowed it in this zone. Mr. DiPalma's business was illegal when it started. It is not grandfathered. This is a residential zone. I not only do not want our neighborhood to have a Bed & Breakfast, which are nothing more than rooming houses, but I do not want to have a fishing charter here either. This clearly violates our zoning laws. I cannot understand why Mr. DiPalma should be allowed to have tv-JO businesses in our residential zone. Why should he have special privileges? If you allow hi~ to have these businesses, you are discriminating against the rest of us." And it's signed Grace Elizabeth Hannaford. A letter received 10/19/94, to the Town of Queensbury Zoning Board 6f Aþpeals, "Dear Members of the Board: My objection to Michael DiPalma having a fishing business is that soon this area won't be rèsidential and resort, but all commercial. If one person is allowed to do this, then others will come along and want these businesses also. People with beautiful homes don't want to be sandwiched in between businesses. With the exorbitant taxes we have to pay, we should not have to have a fishing business near us, particularly as close as this is, and on just 20 feet of right-of-way. I am sure that none of you would like this, if the situation were yours." Signed Elsa Kraft. A letter received 9/27/94, addressed to James Martin, Planning Department "Dear Mr. Martin: Ted Turner, Chairman of the Zoning Board of Appeals, has granted my request, on behalf of Michael DiPalma, to adjourn the Queensbury ZBA consideration of the Margaret Bleibtreyappeal. I made the request on the basis of a short notice and prior commitment that I could not modify. This is a complicated matter with a complicated history, and although I believe the appeal is without merit and perhaps untimely, Mr. DiPalma would be greatly prejudiced if this Board was not able to have my input on his behalf. It is not a matter I can assign to someone else in the firm, as I have been personally involved from Day One. Rèspectfully per the direction of Chairman Turner, you are requested to contact Mrs. Bleibtrey and tell her the matter has been tabled until the next regularly scheduled meeting of the ZBA. Please advise me of that date and time as well. Yours respectfully, Michael J. O'Connor" That's it. MR. O'CONNOR-Mr. Chairman, the only issue I think was raised that hasn't been addressed was parking. A new issue. That was addressed by the Planning Board in the site plan, as to how many guests would at the property, and there was adequate parking. MR. MARTIN-That clearly was. MR. DUSEK-Well that would have been, as part of the Bed & Breakfast. MR. CARVIN-Under the site plan, sure. Okay. Well, once again, I'm not going to put this to a vote, because of the lateness of the hour and the shortness of the Board. I'm going to table it, because I want the rest of the Board members to see the information. I guess the only question I have is that I think I'm going to close the public heating, and that'll give us 60 days to render the decision. So I hereby declare the public hearing closed. PUBLIC HEARING CLOSED MR. CARVIN-And I will move, unless you gentlemen have any - 68 - '-" -...../ questions. Any questions of anybody at this point? Okay. MR. O'CONNOR-Mr. Chairman, I would like to object, on the record, to the tabling. I know of no reason to table it. You're going to present this, now, to three other Board members. MR. CARVIN-I think there's an awful lot of issues here, Mike, that I'm not going to entertain a motion at a quarter past twelve, or twenty past twelve, whereby we may be setting some stringent guidelines for Bed & Breakfasts. I think there's some interpretational and gray areas that have to be addressed. I think that there's a lot of research that the Board should look into. I know that that's the posi tion of this Board member. I am not comfortable voting this. MR. O'CONNOR-For purposes of the record I will state that this was the same discussion that was had in October. It really hasn't been amplified at all, except Mr. Dusek amplified ä position on the question of timeliness. We argued the merits and substance of this issue in October, when this was first before this Board. It was adjourned for the purposes of having (lost word). We assume that the Board has done that, reviewed the minutes of the other meetings of the other Boards that concerned this subject, and for Mr. Dusek, and for the record, I object to it. I think it's prejudicial to this applicant not to have it voted upon and for the opponent not to have it voted upon. MR. CARVIN-Okay. So noted. I would make a motion to table this application, for a maximum of 60 days. I don't think that any of this is really relevant. MS. CIPPERLY-No. for a vote. It really just needs to be put on the agenda MR. CARVIN-Yes. MS. C~PPERLY-If you want to do it in March. MR. CARVIN-Okay. At this point, we've got some of these others. r mean, I'd like to try to get this one resolved as soon as possible, obviously. MR. DUSEK-This might be a good one you do the other one that you have. what, March 7th or something? to consider at the same time I think you postponed it to, MR. CARVIN-March 7th. MS. CIPPERLY-Except for, you put the house. MR. CARVIN-I was Just going to say, if they come back. MR. MARTIN-I don't know how the agenda looks yet. MR. CARVIN-So we probably will have two meetings in March, three, with the Special. MR. MARTIN-You may have a meeting on the 7th, and then just one more after that. I don't know what the agenda looks like yet. MR. CARVIN-The 15th and 22nd would be the normal, right? MS. CIPPERLY-The 15th and the 22nd would be the normal. MR. MARTIN-The two normal meetings, yes, the third and fourth Wednesdays. MR. CARVIN-Well, we'll table it until either the 15th or the 22nd, depending on the agenda. - 69 - -- -- MR. O'CONNOR-I am not available the 15th. MR. CARVIN-Is the 22nd preferable? MR. O'CONNOR-The 22nd I'm here. applicant. That's why I'm objecting five hours tonight, plus a couple of what you're putting people through. At great expense to the to the tabling. I've spent hours more. It's ridiculous MR. CARVIN-We'll table it until March 22nd, I think. MS. CIPPERLY-We'll put you first on the agenda. MOTION TO TABLE NOTICE OF APPEAL NO. 4-94. MARGARET BLEIBTREY, Introduèed by Fred Carvin who moved for its adoption, seconded by Anthony Maresco: Tabled until the March 22nd meeting, pending a decision. Duly adopted this 22nd day of February, 1995, by the following vote: AYES: Mr. Menter, Mr. Maresco, Mr. Thomas, Mr. Carvin NOES: NONE ABSENT: Mr. Karpeles, Mr. Ford MR. DUSEK-Mr. Chairman, before procedure; before Mr. O'Connor O'Connor mentioned that there is a at the Oct6ber meeting, I believe? you leave, just a point of leaves and Mr. 'DiPalma. Mr. stack ofletterè he submitted, MS. CIPPERLY-Yes. MR. DUSEK-Was it October? There was a stack of letters submitted on behalf of Mr. DiPalma at the October meeting? MR. O'CONNOR-At one of the six prior meetings we've been to. I'm not sure which one. MR. DUSEK-Well, were they submitted in connection with this particular application? MR. O'CONNOR-This has been going on for at least six meetings. MR. DUSEK-Okay. In fairness to Mr. DiPalma, he wants to make sure that the Board goes þack into the record and looks at these other letters and everything, just so that the Board is aware that they exist, and I thought I should bring that to your attention. I think that 's a reasonable request. The1-e is a record, he~e, that's growing. MR. MARTIN-Okay. The situation came to pass this week where the building on the Hodgkins house has been halted, voluntarily by the applicant. You have the letter there, of FebTuary 22nd, from Martin' Auffredou, and as I stated earlier, this is primarily for two reasons. As I see it, there's two violations on the site, in connection with that building permit. The one is that it was represented that there wa·s a 25' foot setback from the lake, from the old structure, and that would be continued with the new, and I was out there Monday afternoon. Lee Horning held the tape with me, and I came up with a dimension of 19 feet 6 inches. I'm not representing that I'm a surveyor by any means, but that's just the distance I taped off when I was there. The other issue is that the old camp that was supposed to be retained and added on to is completely gone. We have a building permit application. It has a site plan in it that indicates the existing structure. However, when you get into the framing of it and the actual details on that, you see that, essentially, the old structure - 70 - ~ ~ would have had to have been gutted anyhow, or very few elements of it would have been left. A couple of reasons, dpparently, have brought this to be the case. After they got their variance, apparently they went out to lay the plans out, and when they did so they found that a four foot frost wall had to be constructed under the old camp, as well as increased insulation requirements with the Building Code. Taking those two factors into account, the decision was made on their part to tear down the entire structure. As I indicated earlier, that violates the premise of the variances given last year by this Board. So that's the point we're at right now. No construction is ongoing until we get a direction on this, or a resolution, and I believe we have some plans there to put up and work from if you need to see the situation. MR. CARVIN-Okay. Mr. Auffredou, is there anything that you would care to add? MR. AUFFREDOU-Yes. Mr. Chairman, Members, first of all, thank you very much for staying this late. We very much appreciate. We know it's been a long meeting for you, and I'm sure you can appreciate our position, that we have a lot at stake here, and when all this came down this week, honestly, I was just brought in, I believe, yesterday, for the first time. I was contacted by phone, earlier in the week. I had a brief phone conversation with John, and I met with Jim and with Sue, and briefly with Paul yesterday. The meeting with Jim and Sue was quite extensive. I don't really want to kid around here. I want to stress to everybody here that I don't believe that there's any intent to evade any permit, any attempt to evade the Ordinance, any attempt to evade what this Board did back in March, and there are two issues, the setback and the demolition. With regard to the setback, when the late Mr. Hodgkins represented himself at the meeting in March, I believe it was his understanding that that was 25 feet from the mean high water mark, or from the lake, or whatever your measurement is. If, in reality, it's something short of that, it's still nonconforming. So whether it's two feet, or whether it's forty feet, or whether it's sixty feet, it's still nonconforming. The fact of the matter is, and the only thing that I can tell you is that we have not increased that nonconformity. Where we thought we were 25, we're still at that point. If, in fact, we're at 19 or 20, or whatever it is, we're at that point. We haven't moved any closer to the lake, and I don't think Jim is suggesting that we have. MR. MARTIN-No. The old structure was at a closer distance than 25 feet. MR. AUFFREDOU-That's right, but we didn't know, and I don't mean to come here pleading ignorance, but I think it's pretty clear that we didn't know, and we didn't know what it was, and maybe that was some sloppiness back then. Maybe the property could have been surveyed back then. Maybe it could have been clearer back then, but for whatever reason, it wasn't, and now you're talking about a difference of about five feet here, which is a lot when you get that close to the lake, I'll admit, but we're not increasing the nonconformity to that extent. What I think is important here is to look at how Chairman Turner phrased the resolution back in March of 1994, what were the reasons he found for the granting of the variance. He used language such as, I'm paraphrasing, there are a lot of houses in the area that are faced with this problem. There are a lot of houses that are close to the lake. It's not just a problem on Cleverdale, but I think it's a problem basin wide, as I understand it. So I don't think that there's really anything, I don't think there's any harm as a result of the difference in the feet in the setback. Do we wish it wasn't there? Of course we do. Do we wish this issue didn't exist? Of course we do, but the fact of the matter is that it does, and I don't really see, I see your role as defining what the harm is here. What is it that we've done wrong - 71 - with regard to that prOV1Slon of the variance, to the granting of that relief? I don't think that there's anything that we've done. I think it's just a question of Mr. Martin coming out to the property, measuring it, and coming up with a different computation. I don't see what the harm is in building a structure puisuant to a variance at that location. If it was theYe to begin with, it was there to begin with, whether it was 25 fèet away or it was 19 feet, and again, I just don't think ~¡,Je're inc)"easing the nonconformity. With regard to the old camp, and the restoration or thé alteration of that, I believe that it came, and it's clear from the minutes, that we clearly intended an alteration for an addition. Again, the late Mr. Hodgkins used those words in the minutes, and it was clear that that was the intent. I think what happened, based upon putting all this together, it seems pretty clear to me that, and again, I'm going to defer to Mr. Horning on a lot of this, because he's much more expert in this area, but it seems to me what happened was, when they got into it, when they realized what it would take to come up to Code, when they realized that they were building a brand new structure of 800 plus or minus feet, and were trying to make that match ~n old dilapidated structure, which by all accounts is circa 1930, bringing that up to Code, making it match what was to be built, a new addition, it really wasn't possible to do. Mr. Martin mentioned about the four foot frost wall. Mr. Martin mentioned about the increased insulation. The plans that were submitted to Dave Hatln, were approved to Dave Hatin, really called for a new foundation in that area. Now that doesn't mean that it should have been done that way, but the fact of the matter is that it was; What I'm saying to you tonight is that the building plans that were submitted, and our interpretation of those building plans, Mr. Horning, of course, is here tonight to tell you, is that they c~lled fbr a whole scale change of that entire area. Now whether that was granted by the variance or not, I think you know there's some question as to that, but what came in as building plans, caime in as building plans. It's a little bit foggy, quite honestly, but that's what happened. Those building plans were approved, and here we are. We were building in accordance with those plans. Now, there's some matters of the dates and some of the conversations with Mr. Martin that, from our position, I want you to know about. Monday, February 21, Jim went up and measured the property. Getting back to the issue of the setback, John, and here's here tonight agai~; but it's my understanding that John, (lost word), but when he heard that there was a problem, went to visit Mr. Martin, showed him a picture of where the setback was, and there was some talking about that, as far as where the setback was, and we were under the impression that there was no longer a problem, based upon that conversation with John and with Mr. Martin, and then it came to our attention that, in fact, after that meeting, that there was a problem. We were under the impression that we had addressed Mr. Martin's concerns, but if, in fact, that's not the case, as it is, obviously, we're here, but I want you to know that we just didn't sit by idylly and do nothing. John is here tonight, and if you have any questions about the specifics of that conversation or the specifics of what his understanding of the situation was, he'd be delighted to talk to you about that. On February 14th, there was a meeting with Dave Hatin, Lee Horning, John, and Jim Martin, at the site, I'm sorry, at the meeting, at 9 am. Some of this information had come to Jim's attention. What we said is, Lee said, and he's here tonight, some of the old foundation would remain, but at that point, it was understood, it was made clear what had to be done. We were under the impression, at the end of that meeting, I wasn't there, but the gentlemen that were there are here. We were under the impression, at that meeting, that there was no longer a concern, and that we could move forward with the project. We found out, shortly thereafter, that the decision had been changed, and that we could not move forward with the project. I want you to know that we did incur some expense during that time, in between the time when we were told we could move forward, and the time when - 72 - ',,--, -../ we were told that we couldn't move forward. We've got a lot of money at stake here. We've got file accounts, $15 to $20,000 of a foundation in the ground. We're not trying to evade anything. That's the point that I really want to stress for tonight. We're not trying to get away with anything. We're not trying to pull anything off here. We want to do what's right, but quite frankly, we don't know what to do, and that's why I asked Jim, and I asked Paul for an opportunity to speak to you tonight. I know that there's the issue of the garage. I know that that's a pending issue. What I intend to do, I had a brief conversation with Jack Cushing outside. I intend to be talking to him some more. There may be a possibility of resolving that, there may not be, but that's certainly an avenue that I'm going to pursue. r don't think he's here anymore, and I'm not going to speak for him, but I do believe that we have Jack's concerns with the house issue resolved at this point, but again, I will let him speak to that issue. I'm not going to speak for him. So r think we're moving in the right direction with the issue of the garage with Jack, and I think we've addressed his concerns with regard, his concerns and his wife's concerns with regard to the house. We've like to move forward. We have a situation here, with the thaw coming up, that if the situation remains unattended, if we're not allowed to do anymore work, Mr. Horning is telling me that the property has the potential for some serious erosion there. We need to be able to do something. We need to get this addressed as quickly as we can. If it requires some type of an application to you, I'm not sure that it's an application for a variance, because it just seems to me, maybe it's a modification to what was applied for, but I don't believe it would be a whole scale new variance. Now you can disagree with me on that, but it seems to me that the variance is granted to add the expansion, and what we're doing is, we're telling you what ~ believe we have very valid reasons for doing what we did. Could it have been done differently? Could it have been cleaner? Sure, but show me a case, one case in your entire arsenal of cases, in the history of this Zoning Board, that couldn't have been done cleaner, and you probably couldn't find one. God knows I've (lost word). So, we're here. We're all ears, pledging cooperation. We'll do whatever you want us to do within reason, but we've got to have it done quickly. That's my pitch. MR. CARVIN-Any questions or comments? MR. MENTER-Well, I'm not real familiar with what you have in front of you there. MR. AUFFREDOU-The plans? MR. MENTER-Yes. MR. AUFFREDOU-These are the approved plans. We'd be happy to show them to you. MR. MENTER-I know, and I'd like to look at them. I know, in reviewing the minutes, what I anticipated being there. MS. CIPPERLY-It's the same house. It's just that this distance was incorrect. MR. AUFFREDOU-I wanted to make an important point. The roof structure that you see here, the roof structure on the building plan, this was given to you as part of the variance application. MR. MARESCO-Do you have that in the file? MS. CIPPERLY-Yes. MR. MARESCO-This was with it? MR. AUFFREDOU-This one was with it. - 73 - MS. CIPPERLY-At the time, this was the limits of the original house, and this would be the addition, and this shows it as 25 feet from the lake, and the real difference, the building didn't move, this number was wrong. I think the intent was to not go closer than the. MR. MENTER-It's one story though now, right? MR. HODGKINS-This is one story, and this ~o.Jhole area now has been completely sealed off. This is all cathedral. MR. MARESCO-Right. There's no rooms. It's a cathedral. MR. HODGKINS-The back end here, the back part that comes out is also, is now set up as, one of the bedrooms is vaulted. So there's no access up there. MR. MENTER-You're not using trusses or anything? MR. HODGKINS-No. It's vaulted, but it's only, ~ide, it's not 20 feet wide. MR. MENTER-Okay, and this is gone? MR. HODGKINS-This one here is going. This has to be replaced all the way around, because of the hillside. This one's here. This is here, and (lost word) in here, because to bring the, that was three feet high. MR. MENTER-It just didn't make any sense to leave it there. MR. HODGKINS-Well, yes. We're going to (lost word) it up, instead of havi ng three foot t,..Jide. This is what the patio looks like. This is the side of the house, which would be right down the side. The patio is all existing. It still is here, and this whole area. MR. MENTER-Right, and this is where the (lost word). MR. HODGKINS-Right. MR. MARESCO-So you're not touching that far? MR. MENTER-Well, that's outside the house. MR. HODGKINS-Outside of the house, but that all goes right down to the side of the house. This here, this is the question when Jim came up. They were looking at the distance and measuring right to, and I brought the picture, and I said, you mean that pier right there, and the tree's still there, and this tree is still here. In fact, we're going behind that tree now. That part of the house moves back. MR. MENTER-That front's all enclosed, instead of being open like it was here? MR. HODGKINS-No. It'll be open. ' MR. MENTER-This here? MR. HODGKINS-That's a screened in porch, and this is open, just like it is here, except the roof will go this way, and as you can see, there was attic space up in here with a window, also. The same type of thing, just a shorte~ one. Here's a view where that porch comes out farther than the house itself. The tree sits there. MR. MENTER-This here was supposed to be porch. MR. HODGKINS-This is all porch now, all of it. All the red area - 74 - '---' --i is porch. MR. MENTER-Okay. MR. HODGKINS-This is the house back, and the problem with the number, with the 25 foot, what we believe is that the original, the number came off of where the house was. They didn't count the porches, in the past. They counted the house, and that's, if you go to exactly, if you go to 19 ft. 6 in., plus the 8 feet, you're just about 25 feet. MR. MENTER-To me, the 25 foot's not the big issue. either understand it or you can't. You can MR. HODGKINS-That's right. MR. MENTER-But you should know if there's a difference between an alteration and a leveling. It's not the first time it's happened out there either. MR. HODGKINS-No. I'll be honest with you. It was probably my fault at being naive. Lee's idea was to go in, and he came up with the idea that he was going to take the floor and have to jack it up, put the block out, put the block back in, and jack the floor back down. The architect and I said, well, that's crazy, just reach in and grab it and take it out. MR. MENTER-There's no question that, from a builder's standpoint, you know. MR. HODGKINS-This is what he ~ going to do. So I've got to be fair to Lee, because he sat there, and that was his intention, and he said, no nobody ever has problems with that, and, frankly, talking to the building people afterwards, they said, that footprints have been standard as far as what's happened in the past, and it comes up, but there are definite landmarks here. So There's no question, those trees are all there, and I don't know if you've been up there. All the trees up there, they did an expert job not touching one of them. Those are all still there. MR. MARTIN-See, here's the photograph they showed me Monday. This is the old house. This retaining wall is still there. This is the old house. You can see how close it was, and I stood in a hole, for what was to be a footing for a new post on the new deck right here, and I measured from, we tried, Lee and I tried to approximate as best we could that distance. I stood in a hole for this post right here, and measured from, as best I could, that point, 19 and a half feet. This was a little better, at 20, along here. -And the whole reason this house was set back like this was because the shoreline does make a slant inward, and this was set back like this to maintain the setback from the house. This was the original structure. That's why the addition was set back. MR. CARVIN-I'm just looking at a plan. If house, you still would have some frontage. problem with this is that this is really not the voted on in March. you split up the See, my biggest variance that 1 MR. MENTER-Right. MR. CARVIN-I mea n , that's Number One. MR. AUFFREDOU-Why? Just, can I ask why? MR. CARVIN-Because it was an addition, because it wasn't a new construction. I understand where you're coming from. MR. AUFFREDOU-Just so you know. Apparently, these things happen. - 75 - -' MR. MENTER-I would say, I haven't discussed it with Fred at all, but my first inclination would be that it is absolutely a different project. MR. HODGKINS-No. This was mentioned, in the variance, to be gutted. Because what was here originally was a bedroom of 63 squ.are feet. MR. MENTER-Right, but it wasn't gutted, it was been up there, and the only thing that's left is which is not part of the foundation any longer. work that's over on the side of the buil~ing. of the bui ldi ng. leveled. I've this over here, It's just stone So it's not part MR. CARVIN-I guess I'd be more comfortable, if we're back at Square One, to move this, I don't know, square this up, and then have your deck. When I have something like this, if this was a new proposal, if this was a vacant lot, I would try to get you back away from the lake as far as possible. I mean, that's always been my opinion. MR. HODGKINS-Here's one thing. Where the corner of this house sits, it sits on these blocks that are still here. This wall right here you're seeing is existing, and that woodwork is still there. MR. MENTER-But this wall has nothing to with the new building. The new building's over here. MR. HODGKINS-No, no, no. It'll sit there. That's where the porch comes out. That's a porch. MR. MENTER-Right. That's where the porch is, but isn't there a new foundation wall inside that? MR. HODGKINS-Inside, just like there was. See that foundation wall back there, underneath the porch? That's the foundation wall. The pier is out front. You don't see the piers unless you look in those holes. MR. MENTER-What I'm getting at is this here, okay. There's forms there, and there's going to be a, there's an existing block wall here, with àll the stonework outside at the patio. Isn't there going to be a new poured wall inside that? MR. HODGKINS-There's a wall right down through here. MR. CARVIN-Well, it looks to me that the foundation is poured right here, and that this is the end of the wall. MR. MENTER-What I'm asking is, this is the stonework in the pa t i 0 . MR. HORNING-Yes. MR. MENTER-So this is a block wall, poured wall. wall is a poured wall. The existing MR. HORNING-The existing wall is block. MR. MENTER-Okay. but you're going to pour one, you're going to do a poured foundation wall adjacent to that? MR. HORNING-Yes. MR. MENTER-Okay. That's what my question was. MR. HORNING-This part right here stays. that. We attach that deck to - 76 - '-~ ,-/' MR. AUFFREDOU-Lee, what Fred is wondering is, going from, and I'm not saying that this is what we're going to do, but going from scratch, could this be moved back here, so as to remove somewhat of this nonconformity, have Dot's, have some porch, leave this, but move this back here? Is that possible, knowing the topography the way that you know it. MR. HORNING-You can't use any of the foundation that way. If you move it back, you certainly should bring it up a little bit, because the hill just keeps on increasing here. None of the footings are at where they should be (lost word) re-do everything. MR. AUFFREDOU-Totally re-do everything. MR. HORNING-Totally re-do, take everything right out. MR. CARVIN-Wouldn't you just be pouring this section here? MR. MENTER-Where are you at? Have you got footings poured? MR. CARVIN-As I-remember it, this is already poured, this outline is already poured. MR. HORNING-The footing's poured, and the wall is right over to here, like this. MR. MENTER-You've got it formed out? MR. HORNING-It's all formed. MR. MENTER-You've got it poured? MR. HORNING-And all the floor is in, all the floor is poured. We poured the wall Monday. MR. CARVIN-When did the wall go up? MR. HORNING-Monday. MS. CIPPERLY-When the variance was addressed, it was ~ belief, at least, that we were addressing the front of the building, which did have a porch at the time, and whatever that distance was, that's where we intended to put it, and then this one was set back, because the shoreline angles over. So they were trying to keep that same setback. MR. HODGKINS-To protect that tree there, this has already been cut back another two feet. MR. CARVIN-So then I'm still going to come back to, that this was the original house. It was just going to be an add on. MS. CIPPERLY-Well, this was part of the original house. MR. HORNING-This was part of the original house, right there. There's the pier, and that is going to sit there still. MR. CARVIN-Once the house was )"emoved, I'm not sure that the preexisting nonconformity was lost. That's the issue. MS. CIPPERLY-Well, that's the issue, yes, but if they came in with a vacant site, you might end up with a very similar result, but they also would not have had to come in for a variance on the 50 percent expansion. MR. CARVIN-Yes, but they different. They came in construction. In other words, starting from scratch, is what came in with something totally with just an add on, not new not bulldozing the whole thing and I'm trying to say. - 77 - ---- MR. HODGKINS-Where would you consider, where's add on, ~here is it stop in to here, the floor board a floor, a wall? MS. CIPPERLY-This is the same size as the original house, right? MR. HODGKINS-Yes. MS. CIPPERLY-And it had a porch on going to be done was the roof line, replaced, to cover this. it. What, the roof originally, was was going to be MR. CARVIN-Okay, but I still will come back that it's, that, you know, when you remove all of the three walls, you no longer have a house, and, ther.fore, it reverts back to new construction. I mean, it's only common sense. I mean, you could keep a little section of the wall, and I know what the argument is, but what I'm saying, once this structure was taken down, I mean, it became a whole, it became a vacant lot, essentially, is what ~ feeling is. MR. HODGKINS-I respectfully disagree. MR. CARVIN-BecaÜse we gave a variance on an addition, not all new construction. MR. HODGKINS-The Building Department also saw it, exactly like that, that it would be new foundations, new walls, the whole, they had it for two, three weeks in their hands and were able to study it and stamped their approval on it and weht with it. MR. CARVIN-Yes, but this was going to be a cathedral ceiling, right? MR. HODGKINS-Right, that's exactly what it is. MS. CIPPERLY-From a land use, and attractiveness point of view, and the visibility and all that kind of stuff, this is a more appealing house than a lot of other projects that get approved, as far as fitting into the lake community. MR. CARVIN-I don't know. I'm going to open it up to the Board. What's the Board's pleasure? MR. MENTER-I'll tell you what ~ opinion is. I believe that this project has to come before the Board to be reviewed. I don't consider us having approved that project, and I think it has to be brought before us for consideration. MR. HODGKINS~That's what we're here tonight, to find out what you want us to do. MR. MARESCO-Well, I wasn't involved in the first, I wasn't on the Board for the first meeting, so the only information I have is just what's been brought to me this evening. MR. HODGKINS-I appreciate that. MR. MARESCO-To make an intelligent decision is kind of difficult. MR. THOMAS-The only reason they caught this is because of the 25 feet, or because they tore down the old building? MR. MARTIN-Both. MR. THOMAS-Both. MR. CARVIN-I was going to say, a combination of things. MR. AUFFREDOU-I just want to get a sense from the Board, and I'm not asking for admissions, here, but I just hope you don't think - 78 - ------ -../ we're trying to get away with something. If I get anything out of tonight's meeting, I just want that concession, that we're not evil people, and we're not trying to get away with something. MR. MENTER-I don't look at it that way. I mean, there's nothing punitive about what we do. I just look at it purely in terms of the project itself, and a renovation and a new construction are two different things, and I know what my mind set was when we gave the variance for this. In fact, we talked about the type of roofs and how they flow together and the whole thing, and the existing building, and as I say, I know what my mind set was, and this is different. So I have to, I feel like I really have to consider this in a different light. MR. HODGKINS-In order to put a house up, any house up, with (lost word) 50 percent increase, it seems to me, right at this point, because of the energy codes of the State of New York, and the building codes, you, basically, would have to rebuild, if you're saying, to put an addition on, you would have to rebuild the old part, piece by piece, in order to (lost word) addition, completely rebuild it, all brand new parts. The walls have to be six inch thick. The footings have to be cross line fittings. The foundation has to be insulated. So you're in a Catch-22. This Board didn't know, when they approved this, that it's not possible for this, and I think we're in a Catch-22. MR. MARTIN-I would put a little bit different twist on that. I think YOU didn't know. MR. HODGKINS-I agree. MR. MARTIN-I'm not establishing blame. MR. HORNING-I disagree. I think we're looking at a situation here, this is a law. This is a common sense issue, and it has to (lost word) common sense for things. MR. HODGKINS-If we kept half a wall in this place, everything would still be going, but since half a wall is gone, everything's stopped. Now, I'll concede if you would like changes, because of your vision, and the design of that house right now, so it would continue, I would concede that. We'll make a designer. If somebody says, I don't want to see this, this roof line here, we'll consider that (lost word) we've already poured the foundation. Again, I think it's a common sense issue. There's two opposing codes here. The State of New York tells you have to do something. The Town of Queensbury tells you you have to do something, but I think this Board can never approve an addition that's over 50 percent. If it tried to approve, they're approving something that cannot be done, and, is that fair to your applicant, and should your applicant have to know that kind of information? Those are the kinds of things I'm looking at. If we had a wall there, we would still be building today. MR. CARVIN-Okay, but I think we also have to couple of issues, and I think Jim has pointed One, this Board moves on information that's applicant. We assume that that information is take a look at a them out. Number submitted by the con-ect. MR. HODGKINS-You have a staff that helps you, too. MR. CARVIN-Yes, but on the other hand, you had requested a 25 foot setback. Now I do not know when that porch was, and I'm not going to get into it, you know, big discussion, and it may very well be that the house itself sits 25 feet back from the lake, and that the deck may have been added at some point thereafter, bringing it closer. Now, I don't know whether the deck is legal or not legal, and I'm not about to open up that can of worms, but we went on the assumption, Number One, that we were looking at a plan that was 25 feet from the lake. That was Number One. Now - 79 - - - we find out that it actually is 19 feet. Well, ffiZ--feeling is that that right there may invalidate the application, because that opens up a whole new 11st of questions that should have been asked at the time the original application came before this Board. The seóond issue is that in your application, the applicant proposed to add 800 square feet of living space to an existing 608 square foot residen6e, and we granted a variance based upon an existing ~eaidénce. Once the residence was bull dozed, the wall is not the residence. It is a foundation, but what I'm saying is that we were looking at one set of ~riteria of an addition to an existing, not a new construction, not a new existing building, an existing 800, or 600 square foot. MR. HODGKINS-You cannot make an addition to that (lost word). You have to say no to anyone who asks for 50 percent from now on. MR. DUSEK-I have to disagree with that. I mean, that is not a legally correct statement, and I don't think we should even get into it, but I just wanted to say that for the record. That is not a legally correct statement that was just made, about you can never approve. Of course you can approve. I mean, somebody could have just built it, or they might have built it higher standards a few years ago or something. MR. CARVIN-Okay. I wanted to make sure that ~ was on firm legal ground here. MR. HODGKINS-I'm saying nonconforming structures. nonconforming structure. It's a MR. DUSEK-A nonconforming structure simply means it's not in compliance with the setbacks. It doesn't mean that the structure itsel f . ~1R. HODGKINS-A non, does not meet the energy codes and bui ldi ng codes. MR. DUSEK-Well~ that may be, but that'~ up to the applicant to determine that. MR. HODGKrNS-I thought you had the staff for that. that's where I'm at. I guess MR. DUSEK-Well, the Town's job is not to design a house. It's to review the plans to make sure they're in conformance with our Ordi nance. MR. CARVIN-So, again, I think we have a situation that we were presented, and again, I'm not, casting any aspersions. We lI.Jere presented with a set of facts, and we made a decision based upon those facts, and now that we find that thesè facts have been altered, I feel very strongly that a new variance should be requested and we proceed as if this was a new construction. I mean, that is my feeling here. MR. MENTER-And I think it's, not just, it's different by a bit. For instance, from m.:z::. standpoint, the setback is an issue that I could understand. I could see that happening with the decks and whatever. I could see something like that happening, but I think there's a, you know, the whole building makes it a different issue, and that's a big enough variation so that we can't just kind of patch up the variance we gave you. MR. HODGKINS-So what about the issue that, when that building was knocked down, why was this stopped then? We went and then spent $15,000 afterward. The i~sue was there. MR. MENTER-Who's job is it to watch every minute? I don't know. MR. HODGKINS-They went up and looked at it. They mentioned it, - 80 - "'--- --../ and we walked in, and they said, I'll take a block. Jim Martin said I will take a block. MR. MARTIN-Yes. I looked at it that morning, in the office, and it was represented to me that a wall was saved and a patio, and I'd not seen that though, personally, until Monday, and then when I saw it, it was a lot different than what L envisioned it. I'm not saying you misrepresented it. It's just different than what I envisioned to be left there. When I went up there and saw that Monday, I came back with a very much different impression. I had not seen it for the first time myself, personally, until Monday afternoon. MR. AUFFREDOU-I see which direction the Board is heading, and that's why we ask Jim and Paul for this opportunity. I'm not asking anybody to get out the tea leaves. I wouldn't do that. I don't do that to my own clients, but, I mean, I'm not going to put my people through this if this is just an act of, I mean, for the variance application, I mean, you guys are tough, and this is a Board that, the make up changes of the Board from year to year. Variances, at one point, I'm not going to say were easier to get. I'm not going to say they were harder to get, but I can't tell my clients that they have a very good chance of getting a variance from you guys. So why should I agree to go to a variance? It doesn't make much sense at all. MR. DUSEK-Well, I think it's not an issue of agreeing. it's a matter of this Board making a determination. I think MR. AUFFREDOU-Exactly. MR. MENTER-We've had people tonight, Martin, say how easy we were. The woman earlier said, are we going to let things go on forever? What I'm saying is, we're tougher, we're easier. MR. AUFFREDOU-And please understand. very, very frustrating. From Q.YL perspective, it's MR. MENTER-Yes. I understand. MR. HODGKINS-There was not one bit of opposition to this when we brought this to the Board before, not one bit. I mean, everyone except for one person, there was only one person that decided not to vote. There was not one person who stood up in opposition from the Town, in the community. Obviously, from the drawings you're seeing that roof line is exactly the same as we presented. It's presented in the minutes about all the details and the height. I guess I'm afraid that we're losing, I used this analogy when I was talking about the placement of the block on the house a few minutes ago. The way everything's being, under a microscope, you have tighter tolerances on where we're moving things on that house than there are on the space shuttle, and I don't feel like this is a give and take, I'm concerned because building permits are pulled. Building permits are given. Okays are gone, and then they're coming back and forth, and I'm probably burying myself deeper and deeper with everyone right now, but I think it's a concern. I think this Town has got to consider it, and I'll be frank. I might as well lay it on the line. I wanted to live in this Town. I've got a business in the Town. I employ a number of people, and I've got to buy a building in two years. I'm not buying in this Town. I've got to make considerations. I'll work, if somebody says, I don't like the line of it, here tonight, lets change the line. Concede a few feet over here for us, we can work with that, but obviously we're putting the house exactly where it was. The differences may be a technical error, and if I researched, I'm certain I could find probably five or ten places that the same technical error has been made, and I think we're under the microscope because of other activities going on in the community. We have a larger lot than all our neighbors, and I've got ten times the - 81 - --- number of trees than all my neighbors. My neighbors are complaining about the trees going down. I would have to clear cut their lot to have the number of trees that ~ took down in our yard. I think everything's out of perspective. We're looking at a total capacity of that whole lot of a couple thousand square feet, when we're talking about the garage to the other. All the houses on half the size lot up above are 2500 foot. You approved one down the street that's 4800 foot. We're the good guys. We have no concrete paths down to the water. We have elevated stairways. We don't have any lawn even mowed near the lake. We've got all trees. Everybody else mows their lawn land fertilizes it. Now are we bad? We're coming out here. We're getting screwed. I think we're getting railroaded, to be honest with you, and I think it's a terrible thing in this community, and I'm very tired of it. I don't like what I'm seeing, and Martin's probably upset with me right now, but I think this is outrageous. I think that this Town has got to get under control with this stuff~ We're in trouble, and this here is minor. That was a minor thing. There was an article, and I'll bring the magazine. I'm going to make a copy for you all, the lack of common sense, the loss of common sense in this Country, and the things that we've done. It was a very interesting article, and that's ~<Jhat we've come to in this Country. This is absolutely ridiculous. This is a small snafu which had no actual bearing on the whole project that came up, other than your finding some technicality to change something, and I think that's all it i~, is a techhicality. Loopholes is what we're looking for, and there was no objection before. Somebody should have voiced any objection. I wish I could (lost word) this guy really had an objection. He's got something to grab for, but nobody sat there and objected. DAVID HODGKINS MR. D. HODGKINS-Okay. I have to ask one question 6f Mr. Menter, and I'd like it on the record, what was your envisionment of this house last year that you're not seeing now? MR. MENTER-Thank you. I was going to address that. MR. J. HODGKINS-Because same roof line last year. do the rest of the house. the roof line, as it shows here, was the So I want to know how you wanted us to MR. MENTER-My vision was of a project as it was described to me. My point was that this is just a, it's a different project. It's demolishing a house and building a new house, which is not my, my definitions are not in place here. This is a quasi judicial Board. We have certain parameters within which we' need to make decisions. It's not arbitrary. It's very well defined, what steps we need to go through to make every single decision. It seems arbitrary, but you can ask any of these people up here in this whole room. It isn't. MR. D. HODGKINS-But in oTder to put that roof line on the house. MR. MENTER-The roof line is irrelevant. The roof line has nothi n9 to do with it. If that statement misled you, that's. MR. D. HODGKINS-It's part of the va~iance. The only way to accomplish getting that roof line on the house is to remove the existing that was there, in order to support that roof line. MR. MENTER-Yes, not the reasons the way I feel I mentioned the but what I was just saying to him is that that's I've given. I mean, the reasons I've given for about this have nothing to do with the roof line. roof line earlier, but forget that. MR. J. HODGKINS-So if it was done stick by holding up the new roof line, as the other house stick of people is rebuilt, the - 82 - '-- -./ existing house is rebuilt underneath it then, obviously, for all the additional costs, that is the way this Board would prefer to see a house done, and still end up with the same end product, the same project is still the same thing. I mean, the fact that the siding is all different on this house was, obviously, (lost wor d). MR. D. HODGKINS-It's the exact same thing, exact same project, one way or the other, but you're dealing with, by doing it this way, a more structurally sound property. MR. J. HODGKINS-Again, we're sitting here ready to, we'll concede things that we'd like to have, just to make everybody happy. MR. MENTER-John, we're not saying we want to be tough on you or anything like that. What we're saying is that we feel, I know ¡ feel, like, technically and legally, what I need to do is require you to apply for another variance. We have parameters that we need to work within, when we make decisions. MR. J. HODGKINS-You make decisions based on your judgment, and what I'm asking for you to do is make a common sense judgment, and I think if I was sitting in your seat right now, and somebody presented this to me, I would question and make sure they were putting everything back where it was. I'd make sure those things. I'd confirm it by land marks and those kinds of things, but I'd look at it afterward and say, this makes sense. This is ridiculous. This makes a hell of a lot of sense. MR. CARVIN-I just have a question of Mr. Horning. The second story, all right, the one that's going to have the pull down, what do they call it, stairs, from an architectural standpoint, would it be extremely difficult to put a permanent set of stairs in that house, I mean, and open up that upstairs access? MR. HORNING-Are you talking about in the kitchen? MR. CARVIN-Yes. I'm not saying that that's the plan. I'm just saying, from an architectural standpoint, is that a feasible situation? If somebody were to come in and buy that house and say, I want to open up that second story. MR. HORNING-Could they do it? Yes. MR. CARVIN-Okay. Is it much of a project? MR. HORNING-What do you consider much of a project? MR. CARVIN-Well, I mean, an outlandish outlay? Would it require restructuring foundations? I mean, or is it just a matter of putting a set of stairs and cutting a hole and putting a rail up? MR. HORNING-Well, it's a little more complicated than that. MR. CARVIN-Okay, but it is possible and fairly within the realm of possibility, is that correct? Let me ask you this, that upstairs area, even though it's now, and I'm not casting any aspersions here, because you're building a house that'll be around for 150 years or longer, hopefully, but if somebody else were to come in, could that upstairs space be converted into living area? MR. HORNING-With some structural modifications, I guess. MR. CARVIN-Okay. In other words, that could be converted into bedrooms and so forth? MRS. HODGKINS-May I ask a question? - 83 - .......... -- MR. CARVIN-Su)'e. MRS. HODGKINS-Wouldn·t that have to be a variance to get additional square footage for living space in there? MR. CARVIN-No. That's my point. MR. HODGKINS-Our concession is if it can be structured so it's impossible, in the i.e. trusses or whatever needs to be in there, does that satisfy your concerns? MR. CARVIN-I guess, how much additional space, if that conversion were to occur, would that create? MR. HORNING-Square footage? MR. CARVIN-Yes. In other words, we granted a variance for 1400 square feet, or a little over 14 square feet, and that's assuming that that upstairs area is inaccessible and not used, MR. MARTIN-I think it can get up as much as 2200. MR. HORNING-No, because the roof is peaked. The roof line starts at the first floor. So you're automatically, you're coming in at a 45 degree angle. You've got to come in five feet from each wall before you have headroom up there. MR. J. HODGKINS-Again, Jim, if we were to put trusses there, it would be impossible, then, to reconfigure that not correct? up through that. Is MR. MARTIN-Yes. don't believe. That wouldn~t even qualify as attic space, I MR. J. HODGKINS-That's right. MRS. HODGKINS-The only thing to put in the stairway was so that I could go up and put some stuff up there for storage and to put artificial plants up on (lost word). MR. J. HODGKINS-I will concede it if that's what we need, That's what we're here for, to try to do. If that's what it's going to take to keep the project going, great, lets do that. MR. CARVIN-Well, again, I think that that's just one more situation. In other words, we were looking at, basically, 1400 square feet, and certainly your plans are within the realm of 1400 square feet, but now we have à technicality on your part that that is going to be nonusable space, when, with very minor alterations, or what appears to be minor alterations, it could be turned into prime living space, MR. J. HODGKINS-That's what I'm sayin~. there, it cannot be altered. I think right Jim? If you put trusses up you'll agree with that, MR. MARTIN-I'm not a building inspector. I would think not. MR. HORNING-He's right. You'd have to tear the whole roof off. MR. J. HODGKINS-The way it's laid out right now, since the old side is supposed to be a cathedral ceiling, if you put trusses on the new addition, the biggest possible floor plan, or floor space you're going to have up there that's open to anything is above the kitchen area, and that measures 12 by 13 feet, and if you use trusses in the new addition, there's no access to it. MR. CARVIN-See, I would just like to try to get some of this stuff back on the record. I think that that's not being addressed in this particular variance. I mean, there's nothing - 84 - ',-- --../ in this variance that stipulates that you have to put trusses there. I think that we have drifted away from this original variance by so much that a new variance is required, and I don't think it's just nit picking. I think that we've got some pretty substantial differences here. MR. MENTER-We're not trying to trash the plan. MRS. HODGKINS-I'm sorry. I'm going to be 65 years old. I went through last summer of construction. My husband dropped dead. So I didn't have him to live with that with me. Do you think I want to live through another summer. This project was supposed to be finished by May 15th. You've stopped us. You've taken away business from Lee. Lee was all signed up to finish my project. Now he's unemployed. MR. MARTIN-I've got to say, though, and I've got to emphasize this. I did not tear down the house. I did not say it was 25 feet back when it's 20. I'm only going to tolerate being blamed here so long. I've tried to bend over backwards to look at every aspect of this project, from every conceivable possible favorable nice way, and there comes a point at which, I didn't tear the house down. MR. CARVIN-Well, I agree. MR. J. HODGKINS-Jim, I think you did the right things on those other times. I think other pressures came up, and I think it was the common sense thing to do. It's the common sense thing to put the items together, and I think that's what I'm looking at here. We're here to conceded. We're giving our bones up here, and we don't have many bones to take back, other than, all we're trying to get back is to start construction work. MR. MARTIN-I don't think it's too much to ask jumping to an assumption that the Area Variance denied. This Board looks at every application They're willing to provide a special meeting on only two weeks away. for you, you're is going to be on its merits. March 7th. It's MR. J. HODGKINS-What happens if this Board determines that that other use is a principal structure? What happens then? MR. CARVIN-Then I would say that you would have to come back for a variance to continue. MR. J. HODGKINS-We got another variance. MR. CARVIN-Well, you'd be in compliance with the Ordinance if that garage is deemed a living, because you have got one principal structure on it. MR. J. HODGKINS-But what I'm saying is that you've got another variance to come for. So you have two variances. MR. CARVIN-Or the same variance. I mean, I don't know. I mean, the house, I think, is going to require a variance almost either way you go, and that was my point earlier this evening, that if the garage is not deemed as a residence or a primary building, or whatever the term is. MR. J. HODGKINS-What I'd like is I'd like, tonight, to have access, and I'll put it in writing, for all the files that this Board has ever deliberated on concerning double residences, anywhere in the Town of Queensbury. I want to review those. MR. CARVIN-I still think it comes down to the path of least resistance, to apply for another variance. MR. DUSEK-Can I just interrupt there? Technically, that should - 85 - - go to Darlene Dougher, as the Records Access Officer. MR. J. HODGKINS-Fine. MR. CARVIN-So, I guess we're at an impasse here. MR. AUFFREDOU-What I'd like to be able to do is, I just want to make sure, I'm not sure what direction my client~ are headed, but if it is a variance, and the variance is the way to go, are we going to be able to get this on in time? I mean, I've got to fill out an application. I~ve got some modified plans that I've got to submit. MR. MARTIN-Today is February 23rd. MR. AUFFREDOU-Today is the deadline. MR. MARTIN-I think it's up to the Board if they'll give special consideration for an application on the 7th. MR. CARVIN-As long as we can meet the legal requirements for advertising, I don't have a problem with the 7th. 'MR. MARTIN-We can do that. MR. CARVIN-I don't know about the rest of the Board, but that's mY feeling. MR. AUFFREDOU-How much time do you need to advertise? MS. CIPPERLY-It's at least five days. MR. MARTIN-So we've have to have it In, probably, then we've got two or three days back from publication requirements of the Post star. the 3rd, and that for the MR. DUSEK-It would have to be publ ished on the second of Ma)"ch. Which means you'd have to have it before that. MR. MARTIN-Try the 28th. MR. DUSEK-The 28th is Tuesday. So that would be two or three days from now. MS. CIPPERLY-If you don't, you can be on the 15th. The other problem is, as I just mentioned, if you do that, you have to go to Warren County. Warren County doesn't meet until the second Wednesday. So you'd be on the 15th, which doesn't do you much good on the 7th. i"1R. DUSEK-Well, they could reach a consensus just pendi ng that, and then re-meet briefly. I think, if you want to do it the 7th, it would work. MR. CARVIN-In fairness to the applicant, I think that they deserve, I mean, if we can be concrete on this. MR. DUSEK-Well, I think the only thing ¡ would see that would happen is if you had to get Warren County approval, which I'm being told I guess you would, then YOU would be able to reach a consensus the 7th. You'd have to wait it out the 8th, and then once you receive the approva'l, you could re-meet really quick, five minutes the next, you know, right after the Warren County Board meeting, or else Thursday, and give it the formal approval. MR. CARVIN-Yes. I mean, this Board is trying to work with you, bel ieve me. MR. AUFFREDOU-I appreciate that, and high. It's 1:30 in the morning, and believe me, there's an emotions run avJfu 1 lot of - 86 - '-- ~J frustration. MR. MARTIN-It's very frustrating for me. I spent all day on Tuesday and three hours on a holiday Monday. MR. AUFFREDOU-Jim, I've worked with you on a number of cases, and I think you're great. I have no problems with what you do here or any of these cases, and I'm glad you're here. I mean, I have no gripe with you. It's just this process is driving my clients crazy. MR. MARTIN-I understand that. I take it to heart when somebody stands there and says that common sense is not being applied. To every extent possible, common sense is applied, but there are rules and regulations in which we have to work with, nonetheless. MR. CARVIN-Okay, then is it my understanding that the applicant, or, well, I guess you can't really call them applicants, I guess. I don't know. MR. AUFFREDOU-The aggrieved. What we'll do is we'll talk about it, and we will let Jim know by, we're going to need some time. We'll let Jim know by Friday what our intentions are. MR. MARTIN-Now, we are talking there's an opportunity here. floor living space, ask for it. about a new application. Now If, in fact, you do want second I'm serious. MR. CARVIN-Yes, that's what I'm saying. I agree. MS. CIPPERLY-If you want the house as it is, you have a clean slate to work with, here. MR. CARVIN-And if you can move it back, again, as far from the lake as possible. I mean, whether that means sacrificing a deck or something. MR. J.HODGKINS-Are you saying, suggesting that, this plan, as it stands, will not meet your approval? MR. CARVIN-I'm not saying that. I'm just saying that this is a clean slate to come in and put your wish list, as it were, on the table, with the accurate figures so that this Board now has the accurate figures to make a decision. MR. MARTIN-Martin is fully aware of the standards for an Area Variance, the maximum relief and so on, but I think this is an opportunity, now, and make sure, so you don't get a month down the road and say, oops, I meant to show that, or I wanted to do that. MR. J. HODGKINS-That will not happen. MRS. HODGKINS-One more question. I believe, and I don't because I don't have them here in front of me, but minutes, it referred to the porches. Am I right, Sue? know in the MS. CIPPERLY-I don't have them memorized, either. MR. MARTIN-I recall that your husband described the old house as having a porch. That the new house would have porches. MRS. HODGKINS-Right, 1408 plus the porches. MR. MARTIN-Yes. I recall that he always represented that the new structure would have porches. MRS. HODGKINS-When you section were moved back are we talking? talk about moving it back, if the old to the new section, how many feet back - 87 - ,,' - MR. CARVIN-I think the house is going to fall about 25 feet, the actual house. MR. MARTIN-I think the foundation wall now is about 28 feet. MRS. HODGKINS-I'm talking about this, right here, 35 from lake. So I could have a 10 foot porch there, then, or is other variance not going to work at all, the old one, is what you're saying? the this that MR. J. HODGKINS-They're saying that they never had an opportunit>' to (lost word)" MR. CARVIN-Okay. The only thing that I would say to the aggrieved is that the Town is willing to bend over backwards to get you on the 7th. So, I mean, I would hope that you could come and give us as much latitude, so that we can comply with the legal requirements, as far as advertising and scheduling. MR. MARTIN-Ma,-tin, would you call me tomorrow and we can give you the publication dates that we have to meet with the Post Star? MR. AUFFREDOU-Yes. Town" I'll have my office call you. I'm out of MR. MARTIN-Okay. I'll lay that out for you. MR. CARVIN-The only thing I just want to point out is that we do have to make mailings, right, if this a new application. So I want to make sure that, we do not want any people coming in saying that they didn't get letters and things. MR. MARTIN-That's all part of it. MR. CARVIN-Okay. MOTION TO GO INTO EXECUTIVE SESSION TO DISCUSS THE MOORING POST LITIGATION, Introduced by Fred Carvin who moved for its adoption, seconded by Chris Thomas: Duly adopted this 22nd day of February, 1995, by the following vote: AYES: Mr. Menter, Mr. Maresco, Mr. Thomas, Mr. Carvin NOES: NONE ABSENT: Mr. Karpeles, Mr. Ford MOTION TO COME OUT OF EXECUTIVE SESSION AND ADJOURN, Introduced by Fred Carvin who moved for its adoption, seconded by Chris Thomas: Duly adopted this 22nd day of February, 1995, by the following vote: AYES: Mr. Menter, Mr. Maresco, Mr. Thomas, Mr. Carvin NOES: NONE ABSENT: Mr. Karpeles, Mr. Ford On motion meeting was adjourned. RESPECTFULLY SUBMITTED, Fred Carvin, Acting Chairman - 88 -