1995-01-04 SP \ ~ OR-tINAL QUEENSBURY ZONING BOARD OF SPECIAL MEETING JANUARY 4, 1995 INDEX APPEALS Notice of Appeal No . 1-95 Notice of Appeal No 8-94 Not lce of Appeal No 2-95 Cheryl Evans 1 . John A. Brock Mooring Post Marina , "1 i;.,. x Cheryl Evans 61. THESE ARE NOT OFFICIALLY ADOPTED MINUTES AND ARE SUBJECT TO BOARD AND STAFF REVISIONS. REVISIONS WILL APPEAR ON THE FOLLOWING MONTHS MINUTES (IF ANY) AND WILL STATE SUCH APPROVAL OF SAID MINUTES. j I L ...../ QUEENS BURY ZONING SPECIAL MEETING JANUARY 4, 1995 7:30 P.M. BOARD OF APPEALS MEMBERS PRESENT THEODORE TURNER, CHAIRMAN CHRIS THOMAS. SECRETARY Ff~[D CAF<\,III\I THot1AS FORD F~OBERT 1<¡6¡F<PELES DAVID ¡VIE!'HEf~ MEMBERS ABSENT {.'ir··1Tr·JONY 1'1AF<ESCO EXECUTIVE DIRECTOR-JAMES MARTIN PLANNER-SUSAN CIPPERLY SPECIAL COUNSEL FOR ZONING BOARD-LEMERY & REID, JON LAPPER STENOGRAPHER-MARIA GAGLIARDI NOTICE OF APPEAL NO. 1-95 CHERYL EVANS APPEAL BY CHERYL EVANS OF MASON ROAD, CLEVERDALE FROM A DECISION OF THE ZONING ADMINISTRATOR STATING THAT BASED ON HIS INTERPRETATION LETTER DATED DECEMBER 21, 1994, THE BUILDING PROJECT PROPOSED FOR THE MOORING POST MARINA, AS PRESENTED IN THE DECEMBER 15, 1994 REVISION, DOES NOT REQUIRE A USE VARIANCE. ACCORDINGLY, AN INTERPRETATION BY THE ZONING BOARD OF APPEALS IS REQUESTED. LOCATION: BOX 84, CLEVERDALE ROAD, TAX MAP NO. 13-2-21 IN A WR- lA ZONE AND CEA MICHAEL O'CONNOR, REPRESENTING APPLICANT, PRESENT MR. TURNER-Okay. Mr. O'Connor. MR. O'CONNOR-Mr. Chairman, Members of the Board, for the purposes of your record, I'm Michael O'Connor. I'm here representing Dr. Wheeler and his wife, and also, on this particular appeal, Mrs. Evans. Basically, we've been before you a number of times on this particular subject, and I ask that you incorporate all the information that you have from your prior meetings into the fE.'cord fortJ1L~ particular mE~eting, so that. it. isn't a necessity to go back over each and every item. I will try to be brief, and I will try to keep to the subject matter, and perhaps, I think we got a little bit astray the last time we met, as t.o personal comments, lectures and whatnot. Lets see if we can keep this on a business like basis, that's what I'm going t.o try to do. If you think I'm not, correct me. That is my intention. Before you get into a question, and I think. from what I've heard of the Board, a lot of the consideration of the Board as to whether or not a Use variance is necessary appears to be centered around whether or not there is an increase, the proposed increase, in the particular use on this particular property. Before you get to that, though, I think you've got to take a look at your old Ordinance, and the Ordinance itself, Section 177.79, regardless of increase, does not allow what has been proposed by the applicant hEHe, without a U:;::>e variance. "A 1\lonconforming Structure, or a structure containing a nonconforming use may be continued and maintained in reasonable repair, and may not be enlarged or extended as of the date of the Ordinance, except as therein provided", and what's provided in there is only the enlargement of single family homes. You've got to take a look at the definition of even enlargement, that appears in Section 179.7, and you will see that enlargement is considered extending on the side or increasing in height, and everybody's saying, no, - 1 - --- --- we've got a new building here. We're not doing that, and it says, or the moving from one location or position to another. I think, if you take a look at that Section, and even Section F of 179F, the very least that YOU are required to have here is site plan approval. I did not go through A through F. I think they, and you probably have read them in preparation for tonight's meeting, are self explanatory. I think that you will find that Section D says that you cannot increase a nonconforming use, except as permitted in Section A. There is no provision, within our Ordinance, that allows an applicant to remove a group of commercial nonconforming structures and replace them with totally new buildings. If you hold that the applicant does not need a Use Variance, you must be saying he is simply continuing and maintaining, in reasonable repair, a nonconforming structure, and I think you've got to use common sense to get to the determination of what lS "continuing and maintaining in reasonable repair", and perhaps to see the import of that, you've got to look a little bit at the history of our own Ordinance. I've given you an attachment to what I'm speaking of right now, which gives you the language of the 1967 Ordinance, as Exhibit A. It gives you the language of the 1982 Ordinance and 1983 Ordinance, all which preceded this particular Ordinance, and if you look at that language, you look at how it evolved, you will see that, initiall)-/, '''/ou could lnCì"eaSe any nonconforming structure within the Town, up to 50 percent, but the legislators of the TOI;Jn changed tr'lat and took out "any structur(~" and provided only that you could increase as a matter of right, without obtaining a variance, single family homes or mobile homes. I think you've got to look at those Sections, look at the history and try to determine what, in your mind, is a fair and reasonable interpretation of the intent of the people who put together the Ordinance. You can't expand on the Ordinance. You can only interpret the Ordinance, and if you follow it from '67 to '82 to '83 to I;Jhat is ¡:::·re:sently the '88 version, I think you're going to find that there's no provision in this Ordinance that says you can simply gather together the square fo of your nonconforming structures and say I'm going to build a new structure of equal Slze. I've seen other Ordinances that say something to that effect, but our Ordinance doesn't say that. I think the zoning concept is that you try to amortize or you try to eliminate nonconforming structures over some period of time. You discourage them. You don't give them special privileges within the Ordinance. They're not saying that he must discontinue what he's doing, but they're saying that he must keep it as it has been. He cannot change it, except to keep it in reasonable repair and maintenance. There's even a case, and I'm not going to go through a whole bunch of cases. I don't know if this is the forum that wants to hear the different cases that there are. Crossroads (lost word) seems to be a particular case in this area, where an owner sought to tear down a lawfully existing nonconforming gas station and put up a modern facility, and he was denied that. He had to apply for a variance. It was not a right to do it. He was not able to do it as of right. In that particular instance, they also denied the variance, but you haven't even gotten to whether or not there are merits here that would allow you to have a variance, if a Use Variance is required. So before you even get to the question of whether or not there is any extension or expansion, you've got to find something in your Ordinance that says that he has a matter of right, even if there were no expansion, to simply pick up his buildings, put them together, get two buildings instead of seven buildings. If you read the Ordinance, I think you're going to find out that he doesn't. Further supporting that argument is, if you take a look at Section 179-83, which deals with destruction by acts beyond the control of man, why do we have that Section if, as of right, you can rebuild what you had there? This is a special exception again. You've got to understand that we're talking about exceptions to what the permitted uses are in a particular zone. This is a special exception where you have flood, fire, somethin9 beyond the control of man, that allows you - 2 - --../ ',- to rebuild a building that's destroyed, if you do it within a certain time period. If you interpret that, because there's no expansion here, he has the right to reconfigure the building, he has the right to build the same square footage some place else on that lot, ;ou're completely ignoring that Section. You're saying that Section has no purpose. Everybody, if they rebuild any building that's nonconforming, regardless of how it's removed, why would we have that Section? You've got to come back to the scheme of zoning. The purpose of the Section was to provide specific relief if a building were destroyed or removed beyond the control of the applicant or the owner. That's not the case h here. You've ç,Jot., here, an ar-:::.plicant IrJho ItJis,b§...::'? to remove Uw buildings and has made application to you, or has reported to you, is not required to have a variance. If you look at the common law definit.ion of "Continue to l"laintain", you look at the whole Ordinance toget.her, you're going to find that there is no provision in our Ordinance that says that you have the right to simply replace a building. If you get to the question of, is there an expansion, it's my position that there still is an expansion, even with Plan C. I've included a graph there. My understanding is that the applicant has indicated that his proposed buildings will have 21,828 square feet. Now I'm using 1973 measurements. I've tried to use current measurements. I don't have them. The last meeting, somebody indicated that a map had been filed with the date of December 1st, with measurements on them, and we should abide by those measurements. Those measurements, if you look at the language of that December 1st dat.e, are s'\$caled, measurementc;. The;,)/ are not t.r'le resul t of an actual survey. Mr. McCormack, who did a survey, who's present here tonight, I've subpoenaed him. I would like to find out, and I purposely left a column, in t.he fourth column, to see if I'm right or wrong as to what the actual measurements of the buildings are that were being removed, as he ran them through his computer and did closures on the building. My map is, that LA is lA, I think, the portion of the building that's being taken off of lA, and I don't think we have, we have a map up, I guess, on the bottom, that's on the ground. That is the portion that's shaded, on the front of the building, this portion right here, lA, and then they're also t.elling me that they're removing building 3,4,5, 6,7, and 10 ,¡,s this buildinG! here. In ffiY_ calculations on this sheet, I did not include Building Number 11, which is a garage that is up here on the residential lot, and in the prior opinion by Mr. Martin, he indicated that if it was on a residential lot, it would not be considered a grandfathered commercial use, whether it was there or not there. I did the actual math, based upon the 1973, that's what you have before you in Column Number Two. I then, because I think if we follow just the definition that you're going to measure a building by the gross leasable space, you're talking about the internal building. I presume that each building had at least a four inch stud, two by four stud, probably even have more than that if you've got two by fours with (lost word) on t.he outside. My old way of calculating a board foot in lumber was that you would take one third of a foot off for each running linear foot, if you lose four inches of a foot, and that's a deduct of 524 feet, which means that the buildings that are being removed are 21,469 square feet, in this version, as opposed to buildings that are being built, of 21,828 square feet. Now that's without getting into any argument, and I still maintain the argument that I made before, that this is a commercial building, and you have to address and count all levels that are considered leasable, and on the t.wo sides of each of these two large buildings, you have three tiers of space that is leasable, or will be leased to others, for dockage, and I think somebody else has some calculations as to what that is. It creates about a 1/3 to 50 percent increase from what I'm talking about here. I do not give up that argument, but I don't think it's even necessary to make, if you look at the square footage. Mr. Turner, I'd like to see if Mr. McCormack has any information available that will shed ::::orne light. - 3 - -' --- ¡VIP. TUF~i,!ER~'O kEi/ . 1'1f~Rf\ SCHtiCHHER MR. SCHACHHER-Just a suggestion. After Mr. O'Connor other people that want to speak on his behalf are done, we to produce Mr. McCormack and address that issue, and just through all this, I think it would be more efficient if we t 1"'1 3. t. \¡.J a. ~~/ ~ and an}' i nt,'? nei t O,;:J e t clo it MR. TURNER-Is that all right with you? MR. O'CONNOR-I'd prefer, Mr. Turner, to find out, I've been asking questions from him for about three weeks. He made some ci.:llculations for- me on De(.~ember 6. I don't know what the>' are. MR. TURNER-All right. Mr. McCormack. MR. SCHACHNER-Can I ma hour? a different suggestion, then, to save an MR. TURNER-Go ahead. I'll listen. MR. SCHACHNER-My sole purpose for making that last suggestion and for t.his suggestion is SðV i ngs of tinl("' and to keep tJ,i~;thi ng a::;; ficient as possible. Mr. O'Connor's calculations, which of course I don't agree with, are showing a total square footage removal number, as I understand it, of 21,469 square feet. C:())"- r (sc:t? MR. O'CONNOR-Okay. Mr. O'Connor, by his own admission, has not included in this calculation Building 11, which is a building to be removed, which is a building that has been used always a part of the commercial use, which Mr. Martin has determined, in his decision, counts, meaning we get to count that as part of the square footage being removed. I'm sorry, I left out a piece. Mr. O'Connor, then, subtracts, and I'm going to assume, for the sake of argument, that his subtraction is correct, and gets an increased number of 359 square feet. The size of Building 11 is greater than 359 square feet. So if t Zoning Board agrees with 1'1r. i'1artin that Building 11 does COUllt, then even if e\/er> singl,e contention of Mr. O'Connor's is correct, and of course we don't think they are, it's irrelevant, because we're still putting back up less square foo than is being removed. So we can save an hour b)' no'!::, ;1oing throu:£ih i:hat e)(erc;i~3(?, if "/ou want to make t.hat. deter-min.ó:¡tion. It's enti'¡-el)' up to the Boar"cl. It'l1. Sa\/8 a lCit of time. MR. O'CONNOR-Mr. Chairman, I would like to know if the, the only way that I have the figures of 1973 are off of a map that was filed with the 1973 zoning application. I don't know if they were to scale at t.hat point. I don't know if they were closed survey flgures. Mr. McCormack has, I understand, actually run this through his comput.er. He has the information here tonight. I would just as soon be accurate as guessing on that particular point. I don't think it's a moot question. I don't know if they're higher or lower, to be honest with you. MR. CARVIN-Well, without going back t.hrough 9,000 pages of minutes, but I seem to remember some place that that resident.ial lot was not part of the consideration. Am I incorrect in that a~:;:=:;Uiíìi:::it ion? MR. MARTIN-Well, there's two residential lots. There's one that the house actually sits on. The one that the house sits on, the northern most structure there, the 18 by 36 frame house, and this was in the corner of that lot, and it was indicated to me by t applicant that that's used for boat storage, now, and has been. MR. CARVIN~But that is a separate deeded lot. Is that correct? - 4 - '-"" '-.-- I'1R. MARTIH-{es. MR. CARVIN-Then I would assume that that situation, if it's a separate deeded lot. gut reaction on that. So why would we 9rand totals? is not a grandfathered I mean, that's just my include that into the MR. MARTIN-Because it was part of the marina operations. MR. O'CONNOR-When, though? I have a 1971 survey that shows the outside of the Scott Henderson Marina. MR. MARTIN-I'm just saying, what was information is that that has been used for part of the Marina operation. provided to me as Marina storage. It's MR. CARVIN-But it's also been used as a residence. corn~ct? Is that MR. MARTIN-The hous~ has been. MR. CARVIN-Yes. See I've been under the impression that that lot was out of the calculations. MR. MARTIN-The house was never included. The Building Number 11 IS. MR. CARVIN-Was Building property, in other words, Number lion the property or off the deeded lot? off the MR. MARTIN-It's clearly on the lot of the house. that, but the use of the building has been associated with the Mooring Post Marina. I don't dispute for Marina use, MR. SCHACHNER-And not the residence. MR. MARTIN-The other nebulous phrase of the Zoning Ordinance is that. f01- zoni ng. MR. CAF<VIN-It's not a Marina. It's a residential lot. I mean, that's a house with an outbuilding that's being used for boat storage. It could be sold as a residence. MR. MARTIN-The other rather nebulous phrase in the Zoning Ordinance is that, in nonconforming lots in the APA, for zoning purposes, lots of the same ownership shall be treated as one, for zoning purposes. MR. O'CONNOR-For density and for subdivision purposes. MR. MARTIN-It says for zoning purposes. MR. O'CONNOR-I can show you deeds, Mr. Chairman, t.hat go back and show that when this whole operation became nonconforming, that was not part of the Marina operation. There's never been a variance which would allow it to be included since that time, and if it was not grandfathered in 1967, so that if somebody started putt.ing something in there, and there was no enforcement, is immaterial. If there is a use that is illegal, it never gains the standing of legality or nonconformity. I have, here, a map by Mr. McCormack which shows it to be, if I understand the same building, not the first garage you come to, but the second garage you come to. Outside, there are actually three 50 foot lots that adjoin this property that are now owned by Mr. Brock. This is on t.he rnJ(:LçU_ª of those two 50 foot lots. It's not the 50 foot lot that's most adjacent to what is the showroom. So unless, maybe Mr. Schachner can tell me how this became part of the Marina operation, by variance, tell me how it became part of the Marina operation since 1967 when I can show it was owned by people unrelated to the Marina, or show me a varIance I've missed some - 5 - ..- place. I'd like to proceed with the questioning of Mr. McCormack if I may". MR. CARVIN-Do you want to resolve this, it's instrumental to the square footage. an answer on this separate lot. I mean, because I think I think we have to have MP. TUR \IEP~·'(e23. MR. SCHACHNER-We can focus on that issue from our side, too, right now. MR. CARVIN-I think it's instrumental. I don't know what the rest of the Board feels. MR. KARPELES-I don't feel real strongly one way or the other. MR. TURNER-Do you want to hear his calculations? 1"1R. (¡t.¡R\,IIN-Yes. MR. MENTER-Yes. I think we have to address both issues, here. '()U hal,je to hear both, an)/vJay'. MR. CÞiR'·,nN~·\'es. MR. THOMAS-Hear the calculations. MR. TURNER-All right. Okay. come to the microphone. Mr. McCormack, would you please Tor"! MCC::Of?t"iACI< MR. MCCORMACK-This deals with these buildings. As a last effort, we showed some of the square footage of these other buildings. (lost word) the total of removed, to be removed, and the amount of ne'v.) con~3truction. MR. TURNER-Total removed or to be removed, 22,120. MR. CARVIN-Outside, right? MR. TURNER-Yes, new construction, 21,828, which IS a different of 292 square feet. MR. CARVIN-What about 15, is that part of it? MP. SCHACHNER-No, we're not counting that. MR. CARVIN-The only building in contention IS Number 11. Is that c:I:)r r -23C:t? MR. SCHACHNER-I don't believe it's of contention, but as far as I know. The numbers that you want to be looking at, well, that's the total numbers. I'm trying to point Fred to the specific numbers. The ones here that have square footage numbers next to them, in other words. you asked about 15. See how it doesn't have a number next to it? MR. O'CONNOR-Okay. Are we different than what's on that map? MR. SCHACHNER-Then what's on, I don't understand the questlon. MR. O'CONNOR-These are different than what's on here? MR. SCHACHNER-Some of these are different than some of these. Tha,t 's cor r ect . MR. O'CONNOR-MY. Chairman, maybe I can McCormack, you've actually done made just, for the record, Mr. some calculations, based - 6 - ...-- '-...--- upon your field survey notes, you made some calculations based on your actual field survey notes as to measurements, you made exterior measurements of the buildings that we've been speaking of h,,,:-'r e"? MR. MCCORMACK-That's correct. Yes. MR. SCHACHNER-Mr. Turner, can I make another suggestion, please? Rather than have a Perry Mason like affair, where Mr. O'Connor puts words into Mr. McCormack's mouth, Mr. McCormack knows the lssues that are at issue here, and Mr. McCormack's prepared to tell the Zoning Board exactly what he's done in respect to Mr. O'Connor's contentions, and I suggest you just allow Mr. McCormack to tell his story. MR. TURNER-Yes. You're correct. MR. O'CONNOR-I object to that, Mr. Chairman. I think I have a point that I want to make, but, fine, you have Mr. Schachner run this meeting as you would have Mr. Schachner run this meeting. 1"1f'~. rUF<i\'1ER-i'-10. MR. SCHACHNER-Well, I guess Mr. O'Connor's already departing from his initial statement, Mr. Turner. I'll leave it up to you. I thought we were going to stay business like. MR. CARVIN-Okay. I have a couple of questions here. Mr. McCormack. these are the figures that you're now submitting. Is that correct? This is what you've come up with, is that new construction is 21,828? MR. MCCORMACK-That's correct, yes. MR. CARVIN-And then the total to be removed is 22,120.21? MR. MCCORMACK-Yes. MR. CARVIN-Okay, but I have a map, here, from Mr. Frank Hardick, and he agrees with the 21,828 figure, of the new construction, I'm assuming, yet I'm showing a total square footage of the buildings to be removed as 22,764, which, just some rough math, would be at least 640 square feet difference, and this one's a stamped map. Is that correct? MR. TURNER-That's correct. MR. CARVIN-To cut to the quick, where's our difference? MR. SCHACHNER-Mr. Hardick is here, too, Mr. Turner, just so you, you mi ght wa nt to have them t?.otb a ns~"'er . MR. TIJRI\IER-'y'es. FR(..:¡1\1~( HARDICK MR. HARDICK-My name IS Frank Hardick, and I'm the Engineer of record, and that's the map that I used from Mr. McCormack, and my c.alculations on iJl:L. map were based on scaling the buildings. IrJe normally just scale a building and figure out the square footage that way. If I'd known it was going to be this detailed, I'd have probably asked Mr. McCormack for the actual measurements, but at the time, we just scaled the drawings, and, knowing his work in the past, which was very, very accurate, we didn't question the size, and so these could be off by say, like, half of one percent or one percent. MR. CARVIN-This is more like three percent. MR. O'CONNOR-Mr. McCormack. your current figures, and I will - 7 - .... -- state for t.he record, I've never challenged the accuracy of Mr. ¡VicCoì-mack '~ò figuì-e2:;, but I challenge t.hc manneì- in whic;.h t.he)'· were prcsented, because I recognizcd that they were to scale. and I had difficulty even scaling some of them myself, which is ~hy I asked him to run them through his computer to give you what your figures arc. You'vc qat to remember that Plan B. sUPPoFcdlv ws0 less than what was being removed, too, even thou~h Plan~B"w~~ 6~~ feet larger than what Plan C lS. So you're almost talking 1,000 square feet by the time you get done the calculations as to ~...¡ hi;), t '~3 j- hnr c' or not t heì- f" I ('>j' 1'11<-': p" L:, VI.)U j- lì l" C· ~.Aì· M'-(-'Oì-I-\'¡'~ ,., l· .... 'A' ." .... ^" .. ...... .... _, _.:A.~... r / ........), I"'" ~.....' .... ,~~~\___. I", ~~ you did Buildings Three through Seven, and you put them on a separate map, and every onc of those buildings, this is t outslde measurement? MR. MCCORMACK-Outsidc dimensions, yes. i'1F; . I] 'COI"~t'~OR"'O ka}' . 'f i:?et. . 12:, t. ha t Building Number Ten an outside measurement '/ou put also? on your ffla,¡::: as 451:2 MR. MCCORMACK-Yes. MR. O'CONNOR-And that's by your field notes? MR. MCCORMACK-Yes. MR. O'CONNOR-Okay. Building lA, did you ever make a measurement as to the actual field dimensions of the building to be removed that's n known and shown as Building 1A? MR. MCCORMACK-Yes. MR. O'CONNOR-And how many square feet are in that? MR. MCCORMACK-2,270.4. MR. CARVIN-Can I interrupt you just for a second, because I am not an engineer, and you are bantering tcrms around that I'd like a little bit of explanation. I'm assuming, I understand, I think, scaling. Can you tell me what the definition of what scaling is, and also what a field measurement is? What's the c: i ff¡:;¡" (: nee:? MR. MCCORMACK-The three pages that are stapled together that you have present the, the numbers in circles in the corners of each building, that represents an actual building corner located in the field by typical surV'~1 methods, with an instrument and a measuring device, a tape or electronic measuring, similar to if we were locating a property corner. We treat the building corners in the same way. So all these building corners were located back in 1971. The numbers that. you see next. to the numbers in circles are what we call coordinants. All the surveys, be it the buildings or if you look at the property line map. all the specific points are on a coordinant system. There's a relationship between anyone point and another. Well, havin9 arrived at the coordinants of each of the corners of these buildings, we can then compute the length of the sides and the directions of the sides. That's what you see on the, on both of the maps, and on the third page of all the computer calculations, which give us the square footage of each of those rectangular figures. So the location of the buildings, again, were by typical survey methods. When you talk about scaling, you take an engineer's scale, put it on to a map, such as ours, that we made in 1971, and you can get a dimension, at a 50 feet to t.he inch, an increment is about the size of, or even less than the outline of the building, a pencil lot, so it could be a foot one way or the other. So that's one way of arriving at the approximate building dimension, by scaling it, as opposed to actual calculations from a very almost minute point So scaling is an approximate way of arriving at dimensions, for planning purposes or not the construction, but for planning purposes. - 8 - '- ,./ MR. CARVIN-Okay. Well, I guess I mean, what you're telling me is t.hat field measurement. I that correct? still have a hard time. I the scaling is based on the MR. MCCORMACK-Okay. MR. CARVIN-And Mr. Hardick apparently had the field measurements. See, my way of thinking, it should come out to the same spot. MR. O'CONNOR-I don't think t.hat's correct, Mr. Carvin. He has copies of the survey map that he did a scale. He took a rule and, inside line, outside line, when you're talking 22 foot, 32 foot widths, it can be meaningful. MR. CARVIN-But the math should still come out. in the same spot, shouldn't ,1, t? 1'1R. TUF<I\IER-No. MS. CIPPERLY-Because these lines are so close together, that you can have a difference. MR. TURNER-Yes. You could have an awful difference. MR. CARVIN-I understand now. MR. MCCORMACK-At 50 feet to the inch, each one of those very fine lines represents a foot. So when you lay it on the drawing of this map, you can easily read it a foot one way or the other. MR. CARVIN-Okay, but what I'm saying, all right, in other words, I guess somebody had to scale this out so he would scale it, right? I mean, where does he get this print now? MR. MCCORMACK-The outlines of the buildings are plotted based on these coordinants that I've mentioned. ¡-'1f~. CARVIN--Okay. the figure. I guess I'm still coming out that if this is MR. THOMAS-You couldn't measure 9.157 feet. MR. CARVIN-I know, but the math, if you take the 90.175 and multiply it. by this, it still should come out to the field measurement, is what I'm saying. i'iF\. TI"lOl"lr"iS"'I"Jell, if he took ~his~., this could be 89 feet Ions¡, or it could be 91 feet long with the scale. MR. MCCORMACK-To put it simply, these, we call these field measurements. The locations are all based on field measurements with i~struments. Whereas, to arrive at a width of something with a scale, you could easily go a foot or two one way. MR. CARVIN-Okay. I can appreciate that. MR. MCCORMACK-So these are the results of survey measurements. MR. CARVIN-All right. guess, is the question. Is this the map that they Who dì·e~·\I these:' scaled off, I MR. TURNER-It's Frank's map. MR. MCCORMACK-These locations are basically take from the 1971 survey. MR. HARDICK-When we measure whole buildings on a plot plan, chances are IAle just scale them off. If we're doi n9 a !}2.\:i building, we very accurately measure and check it. That's the difference. We knew these buildings were going to be removed, - 9 .- '---' --- and we just kind of scaled this, and the accumulation of error could go one way or the other, depending on how close you read the scale and how close and light the pencil mark is. If this was a larger scale, the accuracy would be greater. As you go down the scale, your accuracy gets less and less. This is well within the limits of accuracy on these types of maps. MR. O'CONNOR I don't contest that scaling, but I think you agree that are the actual measurements now. ' it's: not vJithin Mr. Mc:Coì'mdck's tl-',e realm ()f me.3S;U r i:?merìt:;:, MR. HARDICK-Certainly. MR. O'CONNOR-The point, and I will accept the measurements that Mr. McCormack has given as being the measurements of those buildings that are being removed and I will address them as t exterior measurements of those buildings being removed. MR. HARDICK-That's how a building's normally measured, in the ();:{ter ior . MR. O'CONNOR-Not under our Ordinance, Frank. MR. CARVIN-So are we coming to an agreement, here, that the actual square footage? MR. O'CONNOR-Well, if the buildings he gave me, the chart, field measurements, I've got 21,734 still will contest that you would include, Building Number 11. I ju::~t liJent dOltJn square teet. I in any' Inarlner, MR. CARVIN-Well, I understand your concern, but I'm coming this figure, an actual field measurement of 22,120.21. That is t Field measurement, according to Mr. McCormack? .~ ,+~ 1...--1,,,,) MR. SCHACHNER-That's what's on Mr. McCormack's diagram today. MR. MCCORMACK-Yes. I'm. 0' CONNOR·.. I 9a\/e ,!,'ou , you'd think if you added the come to that fi9ure. 381 to the figure, I jl)S;t MR. CARVIN-Okay. So what you're doing is you're just subtracting out the 381.86, which has to be determined yet. MR. Q'CONNOR-I came to 22,115, roughly. MR. CARVIN-Well, 22,120 less around 21 and change, isn't look about right? 38 is 90in9 to bring it down to it, 21,900 something? Does 21,938 MR. O'CONNOR-Do you have copies for the Board members, of what Mr. McCormack just gave us? MR. SCHACHNER-I you're welcome to don't think l().;')\<, at. I we have that many. might need it back. Here '~:: rn in·", MR. TURNER-21 ,738.35. MR. O'CONNOR-That's the exterior measurements of the buildings. MR. CARVIN-If that's the way a field measurement is, is on the exterior. Is that correct? MR. MCCORMACK-Yes. MR. O'CONNOR-Mr. Chairman, I have no other questions of Mr. McCormack at this time. If you were not 90in9 to stay for otheì' purposes, I'd be glad to, Mark, if you wanted to ask questions. - 10 - '-../' '---- MR. TURNER-Do you have any questions, Mark, of Mr. McCormack? MR~ SCHACHNEP-I might~ If I understand correct, Mr~ O'Conr'¡or is basically saying Mr. McCormack has fulfilled his subpoena. Is t '''IEi t~ cor '( ect? MR. TURNER-Yes, that's what he's saying. MR. O'CONNOR-It is. Let me ask one question for somebody in the audience. Did you measure the height of the buildings which was in controversy, too, at all? MR. MCCORMACK-No, I didn't. MR. O'CONNOR-Thank you. subpoena. I'm satisfied that he has fulfilled his i'1F<. TURNEF<-O k.:i)/ . MR. O'CONNOR-If you'll look at what we have, then, t.he external measurements of the buildings, then, without Building 11, come to 21,734 or 738 feet. They are acknowledging that their building 21,828. I would even go that difference further by still deducting, perhaps, t.his 524 feet. I'm not sure. Maybe Mr. McCormack didn't bring a measurement of what the linear, I guess we can go back, it's within five feet one way or another, if you deduct the interior building measurements. I don't think there was any building on there that had less than a two by four type stud, and I think, is that a correct statement, Mr. Martin, that you would measure the buildings from their internal leasable space? MR. MARTIN-No. That's not t.he way ~ ever was taught to measure buildings on a site plan such as this, because zoning deals with the mass of the building on the lot, and if you also take notice, the gross leasable definition we have in our Ordinance was done in December 17, 1990, in anticipation of the Enclosed Shopping Center zone that was done for the Aviation Mall, and that speaks a lot to Mall dimensions and things like that, common corridors and so on. ~ was never taught to measure buildings under interior dimensions, and as a general practice, common building permits that are submitted for residential homes are measured under exterior dimension. I think t.his Board has practiced that, time and ag;i~in, on tìrea. Vaì"iancc)'3. I'1R. TURt'IEf<'·Ye,s. MR. MARTIN-I know of no time that we measure interior dimensions, other than when it's applied to the gross leasable space, where it's cited in the Ordinance for the Enclosed Shopping Center. MS. CIPPERLY-We just had one last meeting where the garage was 900 square feet if you counted the inside, but it was ove1 900 when you took the outside dimensions. So, you chose to use the exterior dimensions. MR. O'CONNOR-I think if you look at the definitions of Commercial Space and measurement of Commercial Space, there lS a special definition t.here, and t.hat's where I'm t.alking about gross leasable space, whenever it was adopted. We're talking about applying the dimensional requirements of the Ordinance t.oday, tonight to this particular application. Without even that argument, t.hough, as ~ understand it, if you do not include building Number 11, which is shown on a 1971 survey as not being part of the Mooring Post Marina, and I think the deeds in the County Clerk's Office will reflect that as not being part of the Mooring Post Marina. What has been submitted to you as the most kind measurement is still larger than what is being built and what is being removed, and I will submit a copy of that survey for your record, just so that you can see what we're t.alking - 11 - '- ...... -' , . ..,.. ,. . '. . 1 ,. I a,)()Ul::,. 1,,1,;:; ,L:3 BUl, 0.1.1"19 t\!urnoor 11. This 1:3 t.he l"'lo()rirl,; F'()::::t Marina lands from Henderson to t Mooring Post Marina. This would indicate the property line, and we go back to '67. I don't even know if Henderson ever actually owned these little resldences. I can't tell you that as I stand here. (lost word) research in the County Clerk's Office will tell you that those parcels were separate and distinct Thev arRn't ornpRrtv to bp considered ¡::::·art.. I think tr¡;;Õ,), d¿~ument~d eCid~n~e'~ th;'t y¿u'r; going to have in your file lS going to show YOU that theY'~e not part of the Marina. We can do the deeds, it's always been shown separately on the tax maps. MR. SCHACHNER-There's your 58 and 57, 59, right there. Mn ,,"\ . O'CONNOR-They were owned by West. MR. MENTER-Rolf and White, conveyed in '70. MR. O'CONNOR-My understanding is that they were not part of t Marina until recent vintage and they were part of the Marina only in the sense that they were in the same person's ownership. It's never been given a blessing by variance from '67. '67 they were not part of the Marina. MR. SCHACHNER-I think we're getting some apples and oranges confu::::i:)d here. Can I sa)'" VJhy I think ~"'e're g<:'3ttlng ~;orne applc::':: and oranges confused, and then if you want to contest that you can? The reason I think we're getting apples and oranges confuseel here is ~"'e're not a'¡"guin~;j here, ,:llthough we; º-ªJl ar~:;¡ue this, and we may choose to later, but we are not currently arguing that the entire Brock holdings is all Marina property. We have conceded that there are portions of it that have n used only residentially, that are not included in our commercial square footage. We're not arguing about the entirety of those lots. All we're arguing about is the use of Building Number 11, ,) flel aOiJ, in, ju::;;t for the sa ke of ~::a\/ i ng t i mG, I (;ion' t k"'iJ nt to 'Jet involved in a lengthy discussion about what the deeds discuss about the entire rest of the lots. All I want to talk about is Building 11. If Mr. O'Connor wants to talk about the other portions of the lots, obviously, he's free to do so, if you allow him to. I merely submit that it's a waste of time. t·1R. 0 'COl\lt'IOR-,I think y"ou '\/0 got to look at ~",hat t.he facts; are. I'll submit the map as being a fact that it was not part of the Marina, and I can submit dGeds that will show that when t.his whole operatlon became nonconforming, or took on nonconforming standing, it was in separate ownership of people who used it as residential purposes. Once that occurs, unless there's a variance, it doesn't become part of the nonconforming operation. This Board, or predecessor people sitting on this very Board, in 1988, turned down a variance to include thoSG properties in the commercial use. It's in your minutes. It's 1980, 1402. MR. SCHACHNER-Okay. For example, as a practical matt r, as we stand here t.oday, this building in question extends onto the commercial portion of the property. I believe that's one of t reasons Mr. Martin made the termination he made. You can ask him. I'm not positive, but it's been used as part of t commercial marina and today as we stand here, a portion of it extends onto the "commercial lot". I believe that's one of the reasons Mr. Martin made the determination he made, but you'll have to ask him about that. MR. TURNER-Would you care to answer that, Jim? MR. MARTIN-Again, the primary reason why I included it was that it was used for Marina uses associated with the Mooring Post Marina. I have no survey map. I projected some lines myself, but I have no survey map that. shows the location, well, I do have, it is right on the line, the southerly wall. It is right - 12 - , ...r' ---- on the line, and it's a tough call to make, but my primary purpose was that it was used for marina uses. ¡ViP. TUP \I[F~~'O ka y . MR. O'CONNOR-I've made my The facts are what we have argument. submi t.tec!. I think the '( eco''( d sta nds . MR. SCHACHNER-Mr. McCormack does have something to add, I bel ie\/e. MR. MCCORMACK-The map you're looking at is the 1971 map, which has not been revised since then As of a field inspection and measurement., an addition of about 9.9 or 10 feet has been made to this building at some time in the past. MR. MARTIN-Was it there when you measured it ln '73, that addit.ion? MR. MCCORMACK-No. 1'1P. l'1AF<TH\I-Okay. MR. MCCORMACK-When it got added, I don't know, but. that's the way it looks now. It projects 10 feet. MR. MARTIN-Okay. I don't know if you heard that. At some point in time since the survey of 1971, approximately nine feet has been added to the westerly wall of the building, so that it does, t.oday, extend on to the commercial lot. MR. FORD-Are you referring, still, to Building 11? MR. MARTIN-Building 11. It has been expanded since the '71 :3U'(\i6)l" MR. SCHACHNER-And for the record, not by Mr. Brock. MR. O'CONNOR-Mr. McCormack, in 1971, was that, those two lots part of the Marina operation? i'1F~ . 1'-1CCORi"j(-'4CK" I op(Hation, but. I can't say whether they were part know when those various lots were of the i'1arina con\/eyed. MR. O'CONNOR-You being conveyed to did a survey, did you not, the Mooring Post Marina in of the land that 1971? lI-Ja:::,': MR. MCCORMACK-Yes. i'1R. that. O'CONNOR-And that was not included survey? Was it included within within the boundaries of the boundaries of t.hat ~3ur \'Je;.)/'? MR. MCCORMACK-Not in the '71 survey. MR. O'CONNOR-Okay. MR. MCCORMACK-The deed references that those lots are on the map. When I say the map has not been updated or revised, it has only in regard to the title chart on the right side, showing the date of acquisition of additional parcels. MR. O'CONNOR-Were there any surveys prior to '71? I haven't asked that question, that go back to '67, when the Zoning Ordinance was adopted? Are you aware of any old surveys that we haven't talked about here this evening? MR. MCCORMACK-No. MR. O'CONNOR-All right. Mr. Chairman, I'd go on, unless you have - 13 - "---' -- some ot.her que:::;ti.onc; of me on that P,3'j"ti.CU.1..';;iì" ¡:::.(:,int, MR. MARTIN-According to this, Mr. McCormack, the '71 were indicated here as 57 and 58 were conveyed t.o Post Marina, Inc. in August 5, 1975? ~3U.Y-\/(S)/ 5 lo-t~E; the r1oorin,~:J MR. MCCORMACK-That's correct. MR. O'CONNOR-Do you have a to '75, Mr. McCormack, or prior to '75? record as to the chain of title prior would your file reflect an ownership MR. MCCORMACK-The grantor 1S listed on the map, but that's as far back as I can tell you. MR. O'CONNOF<-And the grantor was? MR. MCCORMACK-S.J. Rolf and White to the Mooring Post Marina, Tnc. MR. o 'CONNOR-I think in your prior hearings you heard Mr. Henderson t.alk about his family, the Henderson family, having operated the Marina since t.he early 1900's. I have not heard this name at all before. My presentation to this Board is t.hat those lots, up until 1975, were never combined with that. I can verify that by abstract and by deeds at the County Clerk's Office. I don't have that information in front of me. I didn't think it was going to be refuted or in controversy, because it's not in the survey. MR. CARVIN-Can I ask Mr. McCormack another couple T figures here, down at the bottom, are measurements, these here? of qu,estion:,s? the:;:;e fi,:lc: MR. MCCORMACK-Yes, they are. MR, CARVIN-They are? Okay. Because I see you've got, you know, these five buildings, and you've come up with 19,000 square feet here, roughly, yet you don't indicate the other buildings. MR. MCCORMACK-Well, you're talking about Buildings 5, 10, and 11. t-1F~. C('iF<\lIt\ -YE~S. MR. MCCORMACK-That information was just requested just today. MR. CARVIN-Where did these figures come from? MR. MCCORMACK-They are from field measurements. MR. C(4P'v'I N..· 0 kay" . MR. MCCORMACK-Yes. The initial effort, here, was to depict these buildings and the very specific details as to their shape and squareness and square footage. The other three buildings were separately measured, field measured, all three of those. That's what they show here. This was Just a last minute effort this afternoon. This being lot, or parcel, Building Number lA. MR. CARVIN-This one would be 11, right here, would it? MR. MCCORMACK-That's Number 11, yes. MR. CARVIN-Okay, and this is a map that was drawn approximately, when, in 1971? MR. MCCORMACK-'7l. MR. CARVIN-Okay. Can you scale this for me? I mean, I'll take a one or two percent t.olerance. What does this building show as - 14 - -' ~ size here, just as approximate? MR. MCCORMACK-Well, that would show, it probably would scale about 21 feet, 21, 22 teet. MR. CARVIN-So we're talking 21 feet? MR. MCCORMACK-With the addition. addition. There's been a 9.9 foot MR. CARVIN-Yes, but the addition, you did your field measurements ~-Jhe n? MR. MCCORMACK-These later measurements of these t.hree were done t.oday. MR. CARVIN-They were done today. MR. MCCORMACK-I can tell you, even without scaling, that this building, the dimensions that we show here are 31.3 feet, and the addition was 10 feet. MR. CARVIN-Okay, but in 1975, or 1985 revised, we're only looking at 21. MR. MCCORMACK-21.3 feet, for that original building. MR. SCHACHNER-In '85 or '75? MR. CARVIN-Well, here, it's scaling out at 21 feet. MR. MCCORMACK-The 21 foot dimension is from the '71 survey. The joint between the additions are very visible today, and you can see that went out 10 teet. MR. SCHACHNER-But all you know, and correct me if I'm wrong, but all you know is that that's occurred since '71, correct? MR. MCCORMACK-Yes, after '71. It could have been the next year or 10 years later. MR. SCHACHNER-Right. That's all I was making clear. have been '72. it could have been, we don't know when, time. It could just some MR. CARVIN-I Just want to try to get what the building is in '71. I mean, because if we're going to use the measurements here for '71, I mean, we've got to go back to or I;,¡as f,j,eld '71. MR. MCCORMACK-It would be a 12 by 10. Yes. MR. SCHACHNER-12 by 10 less, correct? MR. MCCORMACK-Yes. MR. TURNER-71 is 21.3. MR. CARVIN-No, because t.his reduces this figure down. MR. SCHACHNER-So it would be 260 and 71? MR. CARVIN-Well, whatever t.he 22 here, right? MR. O'CONNOR-What it really IS going to throw off is all the calculations as to permeability. I haven't even addressed that because I didn't know what they were going to come up with for figures. I haven't been able to find out. If you go through my calculation and you compare these item by item, everyone of these buildings is smaller than what was on the prior maps that have been submitted, and I also question as to how the ot.her - 15 - --.... -..; buildings were shown, and ma that was the question you as d, Mr. Carvin, but there are some at r calculations, based UPO\1 t other buildings, all in Mr. Hardick's mapping, which appears to be all by scaling as opposed to field measurements. MR. SCHACHNER-Right, but can't that whatever the number is, permeabIlIty is increasing. i ner e';'::\:"'3 i ng . we save hours here on it's greater. In other You're disputing what the notion vJOn:J:3, the ¡::'E:~r(;ent i2; ~1R. 0 'COt",jNOR-I disagree ~>Jith thtJt, because I'll shm>J you, on that map, where you've scaled that map over there, he shows 322 feet of frontage along Mason Road, and if you look at this survey, Tom McCormack shows 314 feet. MR. SCHACHNER-So your position is going to be the permeability IS easing?' MR. O'CONNOR-I don't know. MR. SCHACHNER-That's fair. MR. O'CONNOR-Something's wrong, you had two maps up here before. The to¡:::· map, the per imr:;>teì' i:-::; not to sca Ie. The bot tori! map, wherever that went to, the perimeter is to scale, but the buildings aren't to scale as they're shown on that. Mr. Steves is here, and wor d with me this afternoon trying to figure out what we're doing and what's apples and apples. MR. CARVIN-Well, this appears to be the '71. t ~) (~e\ >.... .. This "'Jas done i'm. HJRNER--Yes. i'1R. U'iRVH',j--This ¡,Jas done in '71, and God only knol¡'Js "'Jhen tr',is ~'Ja~s cl() flC] .. MR. TURNER-This was done to scale off the map. MR. CARVIN-Off this map here, I would assume. MR. SCHACHNER-Right, and I guess that's somethIng we can all agree. The scaling is not as accurate as Tom McCormack's field rn,,~asur' ements . MR. O'CONNOR-I'd be satisfied to tell the Board that I think Mr. McCormack's, I accept Mr. McCormack's measurements as to the buildings that we've talked about being removed. I do not agree to the inclusion of Building 11, whether it's in the 1971 status or in its present status, and that's a separate issue. MR. SCHACHNER-Right. MR. O'CONNOR-When you carry it over, maybe you want us to stay for a few minutes, when we get into other discussions, you're going to see that things just aren't, I've been arguing, Mr. Martin says he has a stamped map. and that's what we're going to accept. I think if you look at your minutes last month, that's where it's from. I'm saying things aren't always what they appear to be, if you get into a look at the background. Scaling 1S not surveying. MR. TURNER-It's not accurate. Scaling's not accurate. MR. SCHACHNER-Conceded. MR. O'CONNOR-Some place in our Ordinance we talk about, in man) applications, surveyed applications, surveyed presentations. MR. TURNER-Yes, we do. - 16 - --./ '-.....--- 1'1f-~ . less O'CONNOR-My point is, if you take his figures, he's removing than what they're creating, and I'll go on to another point. MR. TURNER-All right. have been made. Lets go t.o the next point. The points MR. CARVIN-I think we have that that's one of the key we have to get resolved. to determine Building 11. I elements, and I think that's an think issue 1'1P. THOI'1AS--Yess. farther, before confused. We might IIJe get a~-; well do it now, before it goes any more figures in here to get us an)' MP. TURNER-Do you want to clarify Building 11? MR. CARVH'\ -'I,~ell, ŒLL. feeling is that E:uilding 11 s;hould not be included in this particular plan. I think that it's a separate lot and it appears to be a separate lot and has been a separate lot and could be conceivably sold as a separate lot and If the¡-e's a use of a marina t.here,; we could ha\,je tVJO marina~3 out there, because that's an existing use. I mean, if I wanted to buy that lot and set up my own Carvin's Marina, I don't know, I think I'd have a pretty good argument, because the building's on a separate piece of property, and I think that that cannot be included as part of the Mooring Post. MR. KARPELES-I agree with Jim's determination the first place. MR. SCHACHNER-And we have more to add on that. MR. TURNER-I know. We're want to go with Building 11 trying to straighten 0,- not, out IrJhether we 1'1R. ~.Cf'¡ACHr'jEF:-'Ho, I mean on _lliat pO.lnt. MR. TURNER-I know. MR. SCHACHNER-I have things to add, if you want. MR. O'CONNOR-If you will also get into some discussion on Building 11, as an accessory building, built and legitimized as an accessory to that residence, you wouldn't be permitted to build a garage on a residential lot to service a marina on an adjoining parcel, and you've got to go back to the 1988 determination of this Board that said that those lots were ,"esidential" i'1P. SC!-1{.'iCHNER"{.'ind all IrJe've be;¿~n ss¿¡'/ing is t.he qucostion is riot the character of the lots. MR. CAF<VIH-Do you want to contlnuc with Building 11? MR. TURNER-I think we ought to clarify whether we're going to include it or not. MR. LAPPER-Mr. Chairman, if I could just add something simply, on t.he issue of Building 11, I guess. I think the standard is, when the Ordinance changed to residential, was that a marina use, so that. it would be a grandfather nonconforming, or was it residential use, and we need testimony on that issue. MR. TURHER-Yes. Mark, can you testify to that? MP. SCHACHNER-L can't testify to It. MP. TURNER-Can Mr. Brock? MP. SCHACHNER-Well, Mr. Brock can offer some information about it. - 17 - ~ -- MR. TURNER-Lets have the information, then. 1'1R. SCHACHr'~EF<"WBut. I tr'link ¡"'J;¿~ should also inclueJe in thbt discussion, you know, there's clear authority in the State of New York, and I also, like Mr. O'Connor, even less than Mr. O'Connor, do I intend to discuss case law, because I don't think this is the appropriate forum for that, but you have very competent counsel here who I believe is well aware of the case law in the State of New York to indicate that there can be an ,¿,ffecti'v'e merger of use among adjacent lots, when the property owner in question uses a portion of the adjacent lot, or in some cases, all", of the adjacc:nt lot, as a pOì-tion of the commercial bu::~ine:::;~~. Mr. Brock can add the information about what the situation was i'-Jhen he PUì"c::hased the pì"Operty and i'-Jhat's b()en since, ci?rtainl)', if the Board wants to hear that, that's fine. MR. TURNER-Yes, that would be fine. ]OI·IN BROCI< MR. BROCK-Since I've had t.he property, there has been engines, parts for engines, parts out of the showroom, like shelving and gondolas and stuff that are used in the Marina. That's all that's been, parts that they use for covering boats and stuff like that, but that's all that's n in that garage, okay, and I calculated the size of the new building by the fact that Jim said that building was included. I mean, if it was not included, the building would have just been that much smaller. It didn't make any difference, but I went on Jim Martin's fact that it was inc;luded. MR. O'CONNOR-If you go back to the November decision by Mr. l"lartin, that building, b')" number, i'-Jas not included. 1'rn rl(:,t sure ¡"Jhy. It did not appear to b-s ,exc;luded. I'~urnber 11 "'Jaf:: never mentioned. I went back through t.hose trying to find out. I t h i rd t h.3 t ' s a I ei::;ìa 1 1. ~:;suc:: , u~;:;e I'h. Br oc k jU:3t te::::t i f i :,J¡::;; to what he's done the last 10 years. I think that's immaterial. The question is, what was done with that property in 1967. We could present a deed. I think Mrs. Poland is here. She may even hal,jc some information as t.o v-Jhetheì- it was included i'-Jhen hex- family operated the Marina, and they were the intervening people between Henderson and Mr. Brock, presently the applicant here. MR. TURNER-She's here? MR. O'CONNOR-She's here. She's here under subpoena. ¡VIF:.. TUF::t'IEf':':·' 0 kay' . Lets hea)- he~r re::õ:;¡::'onse t.o that question. l'iF;. O'COI"1NOR"·S¡'''¡e'd li,ke ver'y' much not to be a part of this ¡:::,roject or pì-esi?:rltation. I'm tølling )"ou that. Mrs. P()ldnd, yC)U aJ '¡'e, I underst,and, can I ask you to come u¡:::, front? i"jr::;. PO.L.'HIC:" I'm Mi ke 0 'Connor. I 'cJ ask )OU jU~3t a ::;imple question, at tf'lis poirlt. Tr'iis building r191'It ¡"¡·81-e, okay, this map 1:3 before the '73 approval when they moved somø of the houses. MR. TURNER-The one across the road, right? MRK CARVIN-Tills is the '71. MR. O'CONNOR-Yes, but look at the one that this one no h,:)u::~e up front. There's a housc' up front hOì'e. this Building 11? is. There':;:; Okd/. 1~:; MR. CARVIN-That's Building 11. MR. O'CONNOR-We all agree that that's Building 11. Okay. Mrs, Poland, this is what has been referred to as Building 11. Was that part of your Marina operation? Did you own those three lots up front, or was it a Mr., it's shown on the survey, Mr. Ruhl? - 18 - -..-' "'--- I«~\THY POLÞ.)t'!D MRS. POLAND-Ruhl. MR. O'CONNOR-Ruhl. Mr. Ruhl owned those lots. those lots or did your family own those lots i'100F i ng Post? Did you ever as part of OI;Jn the MRS. POLAND-Are you talking about the lots adjacent to t.he? MR. O'CONNOR-Yes. Frederick Roth and Barbara Roth, those lots while you were operating the Marina? If you don't know, don't guess. You're talking, your the Marina, your family ownership of the Marina was 1985. So, still, after the zoning Clost word). did they' CH-Jn )lOU know, if ownership of f'(om 1971 to MRS. POLAND-We bought the house from Roth. MR. O'CONNOR-When did you buy thp house from Roth, 1975? MRS. POLAND-'75, maybe. i'1n. 0 'CQt-"li'WF<---\"Je 're the'/ u~;i n9 J.t as a '(E1E:idencc;: pr ior to you bu/"ing it? i'ms. POLf~I"1D·'Yes. MR. O'CONNOR-Okay. While you're up here, Mrs. Poland, there has been a lot of discussion at different meetings as to the amount of boatage or t.he volume of boatage that's n on these pl"emises. Can )iOU tell me whet.her Ol" not., while you ~-Jere t.here, what the operation was like during the summer? Mn 1"\ . TURNER-That's not pertinent right now. MR. CARVIN-I think we just want to concentrate on Building 11 at this point. MR. TUF<NER-Lets get on Building 11. That's what we asked for. MR. O'CONNOR-Okay. I apologize. Are you going to make a separate determination on whether you include Building 11 or not in your calculations? MR. TURNER-Do you want t.o determine t.hat now, Building 11? MR. SCHACHNER-You heard Mr. McCormack's testimony about the fact that some of it extends across the property line, and that the lot line, I don't even remember if Mr. McCormack said that. He didn't.. MR. TURNER-He didn't sa)l that. He said there was an extension of some 10 feet on it. MR. SCHACHNER-I think it's important for the Board to know, and you can ask anybody, not me, but Mr. Brock or Mr. McCormack, I think it's important to know that the building, that it's been used commercially, at least since Mr. Brock's ownership, is not located solely on what Mr. O'Connor calls the residential lot. A pOl"tion of it i:3 located on I;Jhat. ¡Vi)·. O'ConnoF called a commercial lot. MR. O'CONNOR-Maybe raised, that if it use of a structur l'1<:)nc:onforrni n';!. Board counsel would address the issue that was not legally a nonconforming operation ,you can't, by adverse possession, make I or .... 1" MR. TURNER-That's correct. MR. O'CONNOR-I t.hink that's long standing, and it's not a - 19 - 'v- ---- discussion at issue~ MR. LAPPER-That really goes back t.o what I said a few ago. It's, when the Ordinance changed. what was the use point. It had to be nonconforming before that date. rn.l. liutes at that. ¡VIP. TURNER--Y'e~3. MR. CARVIN-Again, from all indications is that this was used as a residence and not necessarily 8 marina. MR. TURNER-Do you have something to add to it, Mrs. Wetherbee? JUD''¡'' klETHERBEE MRS: WETHERBEE-The only point I want to make is, if you saw t !)uilding,/ou'd h:nov,,¡ it"s a 98ì"d:gU. It is\1't.,~ :3torage i)uilclin:;¡ 1:::'8)' se, the way the ot,her buildili',JE: that ¡',Jere ta!':en out. I thin!'; that would help you decide. It's a garage that. was built besi a residential house. It's built like a residential garage. It was not built as a storage barn. It's strictly a little garagu. How it's been used, that part, you can let them tell you, but it was not built as storage for boats. MR. O'CONNOR-I want to ask you a question. Where are the doors to it? Do they face Cleverdale? MRS. WETHERBEE-It's been turned around. MR. O'CONNOR-Okay. MR. CARVIN-I was going to say, how long Ilave you been a resident out theru, Mrs. Wetherbee? 1"1RS. been WETHERBEE-Well, I've been going a year round resident since '76. tr'le'íe for 61 )/eat s " T ", ',F" ol 'V ç" ~1R. UiRVIt-.. --O kay . MRS. WETHERBEE-But I've been there all my life, and I know the building somewhat because my father built some of it. MR. CARVIN-Okay. Would you have any knowledge of addition was put on the building, the extra 10 feet? aware that that building was added on to? I,·Jhen th,[: l.Jer e: )'()U MPS. WETHEPBEE-It's a little difficult to tell. No, I can't say. ~1R. C(')RVII",~,wOkay. MR. TURNER-Okay. What do you want to do, Building 11? MR. KARPELES-Has Schachner said all he has to say in relationship to that Building 11? Maybe he ought to get equal time. MR. TURNER-Yes. Mark, do you have anything to add further, as to Duilding 11? MR. SCHACHNER-Only for purpose of a future record, in ot v,,¡oì-ds, to presef'../e the record that it's QJdL c:ontention that t ongoing use of Building 11 by the owner/occupant of the premises is part of the commercial marina use has enabled it to become a portion of the Marina use, that it's been that for some lengthy period of time, and that he's achieved a grandfathered or vested rights status to use not the rest of those lots, but just the Building 11 as part of the commercial marina. MR. TURNER-Okay. He said his piece. What's your pleasure? MR. MENTER-We don't necessarIly want to make a determination of - 20 - ...., ',--" use and on the question of Building 11, do we? MR. CARVIN-I think it's germane to the total square footage lssue. I mean, that's IJlL. 01'11 Y fe,::;l i ng. MR. MENTER-Yes, it's germane. It certain.1/ is. MR. THOMAS-That's the ::;;qua ref e¡::;1:- ill";:; be i ng crux of the problem right removed:> there. HOI¡.J ma 1'1,/ MR. CARVIN-How many square feet? We've got to before can move on. that", r\3~;0Ived MR. THOMAS-So you've got farther. Is it or isn't t.o resolve that before it?' you can go an,/ MR. O'CONNOR-I had t.estimony t.hat somebody in 1975, I think, purchased that property from somebody who was using it as residential purposes. I don't know how you can go beyond that testimony and the survey that you have ln front of you. MR. CARVIN-At t.his point, I think it's up to the Board. I think we have to determine, you know, my position is that it was a residence and that it should not be included as part of the Mooring Post package, as far as the square footage on Building 11. Do we have to make a motion or just by consensus? MR. MENTER-Yes. I don't think that a motion is in order, because I don't think, it's not an issue that we're here to determine. It's an elQI.o.ent, certai nly, and i t '~3 ,3 key element... MR. TURNER-It's an element of the Appeal. I don't t.hink we have to decide at this point. I think we ought to go on wlth the hearing and evaluate it afterwards. MR. MENTER-It seems to me like an element that each of us needs to consider and determinEs', and it's key. l'.1L. individual decision and yours will be key, it'll key what you determine is the role that Building 11 plays, but whether we have to, as a Board, cide, that we're going to consider that or not, I think is anotl"ler icssue.. MR. CARVIN-Well, I think we're gOing to keep coming back to it. I rea 1 .1 y dc). MR. TURNER-Yes, but it's part of the total testimony of the (:':¡FJpe.a 1 " MR. O'CONNOR-One other item, if you look at the card Mr. Henderson submitted when he was giving calculations as to boat volume, he did not include Building 11. MR. SCHACHNER-The reason for either, the number of boats. testimony about what was stored but not necessarily boats. that lS, we didn't include it You just heard Mr. Brock's in there, marina related items, MR. TURNER-Okay. Lets get on with whole t.hing. I think the Board will decide it when we get to the Appeal issue, at the end of it. I;Je'll determine wrl.Ô"t Ejuilding 11 was, I¡.Jhat I¡.,¡e considC'~r what it was, based on the testimony that's been provided, and we'll go from there. MR. O'CONNOR-Okay. The next point I would make, again on the area of expansioll, is that the applicant, as 1 understand it, is seeking approval for quick launch of 120 to 140 boats, dependlng up which evening t.hat we, that's, I think, a fair characterization of the testimonies to date. The zoning went into effect in 1967. William Henderson testified, on Page 22 on I'-Io\v'embcn" 14th that "We dic'! not. lìd\l8 quick launch". There,U3 no - 21- ......." nonconform.i.t.)" r.i.aht, a~:; to quic!,_ launch. T Zonin,S") Oì-c:inanc,:;. in its definitions, gives you a separate definition, like a separate use, of quick launch. A commercial facility located within a marina. It doesn't say that it is ª marina. It gives it a specific definition. It's a recognition within our Ordinance and, again, we've got to work within the frame work of our Ordinance. We can pick out Anderson and quote you all kinds of generalities, but you've got t.o go by the language of our Ordinance, and every Ordinance appears to be just a little bit different than somebody else's Ordinance. Anderson is, to me, the accepted treatise on zoning. If you look at this lanauage, it's given a separate, distinct definition within our Ordinance. If you didn't have it in '67, how are we going to get to it now, whatever the number might be? It certainly has different impacts. It's kind of like looking at a wholesale and retail operation which has different impacts, or something similar of that nature. If you have a quick launch, you're going to havc a heavy volume of use during the summer months, when everybody is at t.he lake or enjoying their properties, or trying to enjoy their properties. You have the traffic then. It is much different than dead storage, winter storage. If you look at Mr. Henderson's figures, he's t.alking about winter storage only. He's not talking about quick launch. If you also go through the history of this property, you will find that they never got a permit from t.he LGA, or the Lake George Park Commission, for d quick launch. Apparently, that is something that may be uncl()ì"taken at this pc\int. The)" ha\/i:: a specific regulation that says that if it's not a registered quick launch, it is not grandfathered. I think you're into the same thing here, because of the impact that you're going to have. If we convert a single family residence that's used for seasonal basis, on Glen Lake or on some other lake, we go through all kinds of studies to see if t.he sc;¡:~,tic system 1S adøquat,a. You' r ø ta,l ki ng, ÎIOI¡.J, a,bou t changing, perhaps, what was a wint.er storage operation to a heavily used summer operation and nobody has even shown anything as to adequacy of septic. I'm just a little bit befuddled as to how you make that leap. I understand he has the right to operate a marina there, but when you change it from a marina with 25 boat slips to a marina with 120 to 140 quick launch spots, I think you change the impact significantly. People have complained, and others will, about even the new use of new machinery. Apparently the):)' e nOVJ is a su¡::;'er 1 i ft ther i? that Cd n 1 i ft boats i litO t third bay. They've never had a lift of that nature on that property, with the back up alarms. It's now a diesel machin that they're going to be subject to the whole day or into the evening or early morning, however they operate. You really have to distinguish, if you're going to look at nonconformity, as to the winter and summer storage. You have to make a finding as to what is grandfathered as to each item. I don't think you can say that because there were X number of boats there for winter storage, you could have them for the summer for quick launch. t..jilliam Henderson te~3tified DQ quick launch. He had docks fOì" 25 boats. I can remember we used to go up, we bought our boats from Hendersons, years and years ago. He always had some boats there for sale. He had some boats that he worked on. I'd say double that. Probably if you werø looking at impact and volume of boat usage, you'd be talking, in the summer, about 50 boats when he operated. That's what was there in 1967, when you got t grandfathering right to continue in the summer, and the summer operation. William Wether worked for the Poland family, as I understand it, you've got an affidavit there in front of you, om 1978 to 1983. He gave me a figure of 40 boats for quick launch, during that period of time. I don't know how you get from no boats to 40 boats, and I'll give you that that, creeping expansion Oì whatever, change of use, it did happen. He talks about eight outside storage, boats stored outside, twenty five boats at the dock, and four to six boats for sale, and ll¡ his affidavit he says that some time or another the sale of boats was apparently discontinued. You're talking a total of 78 boats, maybe 79 boats, maybe 80 boats. He actually gave, if you'll look - 22 - > ---" '>----- at it. a diagram is attached to his affidavit, as to how the boats were laid out, as they were quick launched then, and he's got some notes there. In Building Three, they didn't have boats in excess of 18 feet. They couldn't get the boats in or out, and he went through all kinds of different discussions with me saying, you could crowd a couple of more boats if you had to. If you see and you count there what is shown on this, there's only 34 boats on that diagram. I said, you said 40. He said. well, if you had to, you crowded a couple of boats in, but this was a typical use. We did stick a couple of boats in Building Number Two from time to time. I didn't show them on here. I'd like to call Kathy Poland up here, who was related to the family that operated the Marina from 1971 to 1985. Kathy, I apologize for subpoenaing you, but I understand that you've been very reluctant to get involv in what is becoming a neighborhood dispute. You don't like to take sides, and I'm not trying to take sides, so I'll just ask you a couple of brief questions. You operated it y()U r :3e.1. f'? MRS. POLAND-My husband and I. MR. O'CONNOR-Your husband and yourself operated t.he Marina from 1')71 to 198E.? MRS. POLAND-Yes. MR. O'CONNOR-And you had quick launch there? MRS. POLAND-Yes, we did. MR. O'CONNOR-Did you have it right from the very beginning? ¡VIRS. POLA[\ID·-I"~o. '1f~. 0 'Cor\H'~OF:,(,'what was the nurnb·er boats that you took out? MRS. POLAND-The number of boats, approximately, glve or take, v.Jer e abou t. :::,0. MR. O'CONNOR-Give or take one or two boats? MRS. POLAND-Yes. MR. O'CONNOR-In discussing this with neighbors, have you figured a maximum of maybe 52 boats quick launch? 1'1RS. POl._AND....Yes. MR. O'CONNOR-That was during the you have on the premises during boats at the dock? summer. IrJr'lat the summer? other boats did Did you have 25 MRS. POLAND-Yes. They were at the dock. MR. O'CONNOR-Have other boats othe1 than the 50 or 52 boats, and the 257 MRS. POLAND-Only boats that were being repaired. MR. O'CONNOR-How many boats did you have there for repair, .é'l\lC'r age';' MRS. POLAND-Five, ten, maybe, at the most, at any given point in time. i'1R ,. a i"IC! O'CONNOR-So you're talking less your occupancy of the premises? t.han 100 boats, was your use i'1RS. POLf0¡ \ID·,((')s. - 23 - "--" -- t/ir:~. 0 'CCH\lt'\IOP"¡::\nci that \\ia~::; from '71 tl-¡rous;:h '32:;' MRS. POLAND-Correct. MR. O'CONNOR-Okay. Did you also store boats during the winter? MPS. POUiND-'Ye~3. MR. O'CONNOR-Can you tell me how many boats you stored during the l0inter? MRS. POLAND-About 160. MR. O'CONNOR-That includes use of the docks, boathouses? MRS. POLAND-No, I don't believe so. MR. O'CONNOR-When you did the quick launch, did you store e'-Ji:?:ì' /t h i ng i ndoor ~:;? MRS. POLAND-Mostly, yes. ~m . the O'CONNOR-Did you have some, doors closed at nis;:ht? you t.old the people you wanted MRS. POLAND-Yes. MR. O'CONNOR-And the boats inside? ~1R::; . that rna they' POLAND-Yes. I was thinking, when I said came in later at nis;:ht and were still in two or t.hree at the dock, and when they stayed there overnight, and t n were mostly, about ones t h~3 clc)c 1'::~3 .. ~·Je· ha cl came i Ii .c"J, nd haule.;:! c,ut ni:gllt, i 11 t, ¡flOrflinu. MR. O'CONNOR-So you're talking about 160 boats in t.otal wintc1 :0; tOì" MRS. POLAND-Yes. MR. O'CONNOR-Okay. You've seen all the maps and everything else, and I have not discussed with you, prior to you sitting down here rig htnov.J . MRS. POLAND-That's correct. I neve)' met you. MR. O'CONNOR-Yes. I have no other questions. MR. CARVIN-Mrs. Poland, tho ha ncH , l0a~3 theì" e a n/ :,; i ze would these have been? average size of the limitation, or what boa,ts t.hat you t '/¡:)~S~3 () f ~)()d t~~; MRS. POLAND-It would be very hard for mo t.o :gIve you an average size. We had boats from 15 feet to 34 feet. MR. CARVIN-Okay. Well I would assume you wouldn't have had too many 34 feet ones. MRS. POLAND-You're correct about that, yes. MR. CARVIN-Okay. So would an average Slze, if we're talkins;: about 100 boats during the course of the summer, in and out, would 20 to 25 feet be an average? MRS. POLAND-We never quick launched anything more than It was under 24 feet if we quick launched them, yes. .....) /í ,:;:~ '''\' fe;,:;t .. MR. CARVIN-For quick launch. station or any thins;: li that? Okay. Do you have a pump out - 24 - ',,--, ---- MRS. POLAND-Yes. MR. CARVIN-Okay. So, of the 100, would they all be Would that be a matter of course? If somebody facilities, would they automatically be pumped out? pum¡:::,ed out? U~;:)t3cl Y'()U ).- MRS. POLAND-Well, it was a service that we offered, whether you stayed at the Marina or you didn't. MR. CARVIN-Okay. Did you sell gas to the public? MRS. POLAND-Yes, we did. MR. CARVIN-Okay, and how many boats would you service, on average, as far as gas lS concerned? Would that be in the 100, or would that be an additional few boats? I guess what I'm trying to say is, would somebody be able to drive up, get gas, and just kind of drive off, and if so, how frequent would that be? MRS. POLAND-Very frequent. MR. TURNER-How did you facilitate the quick launch? MRS. POLAND-We used trailers with tractors and a forklift. MR. O'CONNOR-How big a boat could the forklift lift? MRS. POLAND-Not much more than a 20 footer. MR. O'CONNOR-Okay. It was a small forklift? I"IRS. POI_Ai"~D-'Yes" MR. O'CONNOR Okay. When you actually didn't Mr. Henderson put his boats in railroad tracks? took over the operation, by (lost words) system of MRS. POLAND-Yes, he did. i"1R. O'CONNOF-;"..You kind of ItJEoJnt.. a.ItJay frorrl that route. ¡"IF<. TURNER-l,.Jherl did ''lOU gC) i3\1Jay fl"om that rout",,? MRS. POLAND-Immediately. MR. O'CONNOR-And your husband bought a hydraulic trailer? MRS. POLAND-Had one built. MR. TURNER-Had a quick launch trailer made, j~ that correct? MRS. POLAND-Yes. MR. CARVIN-This may be kind of a tough question. In 1971, about how many boats do you think you might have serviced, because I'm get'ting the impre~;sion t.hat C)\/,,')( ,from '71 Uy('ou9h '85, the business actually did grow. Is that a fair statement? MRS. POLAND-Yes. I would say that it grew, yes. MR. CARVIN-Okay. would that the So that, iF we're talking less than 100 boats, 198':, fi9ur"" ItJ n >"ou "'~old? MRS. POLAND-The 160 boats is the winter storage. i'1R. C{.\RVIN--Oka.y. MRS. POLAND-And it's kind of a figure that stands out in my mind, because it fluctuates. It's not always the same. Sometimes you - 25 - ',----' --- ¡n.1gl''"'lt ()j"¡.l)/ ha.\/8 l::JC) ()'¡' S()rf c~·tirnE~2.~ you. ít¡i::;1ht 1"'1.3\/;;2 155 (>"() bU.t t 1 (~,.C , in f1Y/ rn i nc:, .1 i MR. CARVIN-Okay, but I'm going t.o ask you to kind of step back 1(')71. I me<:.\n, c1ici ,!'()U have 160 boat~:3 in 1971;' ~,., ..... 1,..,..1...) MRS. POLAND-No. I don't think so. I'd say maybe 130, maybe, 120, somewhere in there. 1'1R. jU::3t CARVIN-Okay. Now you also indicated kind of evolved. Is that correct? tr'lat the quick launc\"¡ i'1FS. POUii\1D-' Y e~~ . MF. CARVIN-Okay. Did t Lake, now, again, Geoì'9'ô (.j:ssociation for fact.or? you ever glve consideìation to applying to I don't know the time frame of t.he Lake tf'¡eir ¡:::;er¡llits. ',Jould t.r"lat r"lave fl Ó MRS. POLAND-It was my understanding that when we started the quick launch, there were no rules, regulations t.hat. ~1R. C¡e:)¡RVH1-"O kay . MR. TURNER-Anyone else? MR. FOF<D-Mrs. Poland, during that period of time, when you owned the Marina, and you were expanding the use of the quick launch, did anyone from the area express any concern to you about that, the expanded use of the quick launch? MRS. POLAND-I can't really remember anyone asking, but they might haVGM I don't l·emembsl-. MF. FORD-Right. convers¿3t.lOn. That's a long time to try to remember a ~1RS. POU·;d'-1C<....Yes. MF. O'CONNOR-Mrs. Poland, do you remember how many parking spots you had? How many cars did you have that were parked on your premises on a Saturday or Sunday? MRS. POLAND-We had the building, and we usually maybe SlX across. lot across the street t.ried to park them three frarn :::hc)w\" ()Olil , ¡:)'( (¡baL! 1 >. MR. O'CONNOR-Okay, 18, 20? MF~S. POLAND--Yes. MR. O'CONNOR-Some place in 1988, t.here was an appllcatlon made, that I think Mr. Brock indicated, the Board indicated, 24 parking spots on the premises. Is that a good maximation of the parking ~31:){) t ~:;? MRS. POLAND-Are we talking about the total area, I mean, because you could park in front of the Marina, too. MR. O'CONNOR-Yes. MRS. POLAND-Yes, that would be good. MR. TURNER-Okay. Any other questions? MR. SCHACHNER-Mrs. Poland, I'm Mark Schachner. Brock. We've never met before. I ,"epr,o;;sent r1r. MRS. POLM,ID..-No. - 26 - -..../ '---- MR. SCHACHNER-Just real anything about new boat you owned the Marina? quickly. I don't think you mentioned sales~ Di.d you ¡lave new I)oat sales wilen MRS. POLAND-Yes, we did. MR. SCHACHNER-And, were you present, there was a convening of this Board when Mr. Henderson was present. here) t.h()n? P'(' ev i OlJS l.Jer e '/'()U MRS. POLAND-No, I wasn't. MR. SCHACHNER-Have you heard anything about what he testified? MRS. POLAND-Not really. MR. SCHACHNER-If you were told that he said that he had 191 boats sold, or 200 boats stored on the premises, would you agree with Mr. Carvin's characterization that the business grew after you took it over, or would you think that perhaps there was some start up period when you owned it? Mr--;,:S. POL('i \ID-"y'Ic):3. I'd WOndeì" wheì"e t.he 191 boat:::; l'.)eì"e, myself. MR. SCHACHNER-Okay. Thanks a lot. MR. O'CONNOR-I would urge that the Board make a distinction as to what noneonformities there may be that run with this property, rc:qaì"dless v,IIIO the Ol,.¡ner of t:.he pì'oF'eì"t'/ is. I t.hink there ':~) ¿\ cle.'3r di::::;tinction bet..,een tl-",e ~SUillrner U:3e and the ..,linter use. If we were coming in here with a virgin piece of property, and were going to ma a site plan application to the Planning Board, they certainly would distinguish what impact it's going to have at different seasons of the year, and I t.hink that's the same way that you've got to look at it when you determine what the nonconformities are. If I go back, and I don't know if I covered it, I think I covered Henderson's testimony as to the summer usage. On the winter level, I believe he talked about 173 boats being on the site. There are 18 boats, in his accounting that he gave, that got him up to 191, which were in boathouses, which I'm not exactly sure. I think somebody told me that they are still the same boathouses there now that were there when he was there, but I think, principally, at most, he was talking about 173 boats on site. Mrs. Poland was just talking about 160. When I went through Mr. Henderson's figures, I tried to figure out where we were at, I couldn't figure out what he referred t.o as Building One and Two. I think that that may have been buildings that were removed a long time ago, that aren't, look at the other map, that map there, Building One or Two is, I'm not sure where they were, and the same as to, I guess Building One and Building Nine, I'm not sure what he was referring to. Building Nine doesn't appear to be there any more, unless it was just a part of one that was preexisting before Henderson sold, or existing when Henderson sold. I'm not sure, but I give his figures at 173 for winter storage, and I'm not really going to argue, but I think you have to make a distinction, and I think that you have to be very Cd r efu.1. i 1"1'/OU r apPì" ova.l" i -r' you' r c, 'JO i ne.;¡ to 9 i ve a n,/ appr o\/a I:,;,; on this thing, that t.he appJicant understands that, if you make the distinction, and you say that there are 50 quick .launch spots, t.hat's what there will be, 50 quick launch spots, including the new structure and the portions of the old structure that are still used for quick launch. At one hearing I think we heard that the remaining portion of Building One can give us 25 to 35 boats, and the back end of t showroom can give us, that's part of it. I'm not sure, but I think ,/ou're going to end up subtracting some of that from potential new usage, or you're going to have some designation. If you go to the Bolton Marina, the))/ iç)natethe~se spaces b'/ nUinb(~r. The'l have t.he customer~s by number. They have, I think, the boats by number, and it's a \¡(or')i enfor le type t.hinq, .3ncJ I:.hat's somethin9 that I ..,ould - 27 - --- suggest strongly, if you ge"t to this l~oir1t, you get to this point that we consider. I think that the applicant should understand that winter storage is different than quick launch. I've given you the affidavit of Mr. Wetherbee. The only thing I would add to it is, he talked about how they got that number of boats into the existing buildings, and it was interesting, in that they apparently put them in on dollies, right next to each other, right on top of each other, and then Jacked them off the dollies and left them there for t.he winter, and then brought the next boat in on a dolly. It is definitely not that number of boats that were put in those buildings for quick launch purposes. I don't think, if you're going to compare apples to apples, you really can do that. The last attachment I have I think I will save. That is an opinion from Fitzgerald Realty of Glens Falls that this would be a substantial effect, or have a substantial effect upon adjacent properties, if you granted this proposal, but I'll wait until you get to the substance of a variance. I think you're still on the question of the Appeal, here, whether or not you're going to require a Use Variance, at this particular point. That would be my comments on the question of requiring a U:::;e Variance. MR. TURNER-Okay. MR. O'CONNOR-I think one other comment, just for the record, I made this before. If we look at the definition, and Mr. Schachner brought it to our attention before, of expansion, i:?)<p,3nsion, as defined in C)Uì' Ordinance, Ü:; stated a~3 any' growt.h of activity which requires the enlargement of facilities, including buildings, parking spaces, storage yards, and/or other facilities which are required to accommodate such growth. and I say that particularly with reference to Mrs. Poland's testimony as to the fact that t.hey had approximately 24 parking spots, and we're now looking at summer usage by 120 boats to 140 boats. Unless they're all buddies, they aren't going to be able to use those 24 parking spots, and that, apparently, is what was 9ì' a liclf,;:" t h(3'( eel. MR. TURNER-Okay. I'll now open the public hearing. PUBLIC HEARING OPENED r:::HEF:.YI._ E'v'¡.\NS MRS. EVANS-My name is Cheryl Evans, and in front of you, you have information concerning the proposed buildings. What I want to do is show you some pictures of t.he new buildings that are going to going up. Basically, the building in Bolton Landing can be cornpa"red ~Üth the 1'100r i ng Post 1"1ar i na.. I tr',i nk t.here IrJa::,; cJ controversy in the dimensions on this building, when I was at a previous meeting, stating that the building up in Bolton Landing is bi9ger. So what I had done was basically gone up to Bolton Landing, in the file of the Town, and get all the dimensions. If you see the last two pages, you get that the building's, basically, 35 foot tall, 105 by 35 foot. MR. TURNER-The third page, 105 by 282 by 35 feet high. MRS. EVANS-The 105 by 282 states that the building is longer than what the Mooring Post plans on doing, but the second page lS basically the picture of these buildings, for the record. T are pictures of the Marina before they were torn down, the height. They mentioned the nine foot eave, it looks like a 22 foot pitch. If I understand Plan C, the second building was reduced by six feet, the first building was not. So you still get the comparison of the volume of these two buildings, compared to what it used to be, this quaint area, versus, now these two massive buildings, and you can also see the comparison in the height, when we're going from one story of storage to three stories. Any questions regarding the building? I just want - 28 - '--" / -../ you to get a feel for the volume of this building. You have, definitely, the height of 35 feet, which is legal, but when you combine it with the width and the length of these buildings, does it fit in this area, which is a peninsula, not even a quarter of a mile Wl So I want you to put this all together and visualize this building. On the second piece of paper, I have the advertisement that now sits at the Mooring Post. Basically, this information came out of the phone book, and what I had done lS just compared it, just to that in random another marina, just to show how it's been used in the past, since 1958, I'm talking on the fin3t pa~;le of t.he advertis;ernont. ~3heet., and since 1958 to 1992, basically nothing's really changed. It's just within the realm of his business. Now when you look at the Mooring Post Marina, and you start at 1958 with, basically, boat products and actually in '58 and '59, and then come down, there was a change in '62, they added boat rentals, and then in '74, accessory dockage used boats, and they just continued, but 1986, you start seeing the change of how the business has been run, and it's not only just the, you know, basically, what he's doing inside, but basically the environmental impact he's having on this Marina. We have 1987's quick launch storage advertised. In '88 you have new and used boats. We t.ried to incorporate the Route 9 Mall, which was an issue in '88, and I n't know anything about that no~", but tJ'j,zHI you get dov.m to '93 public launcr'l, and then '()4. So basically you saw, from boat products and storage, from when Mr. Henderson owned it, to a full blown dockage, dry dockage, storage, fiberglass repair, brokerage and public launch marina for quick launch. Now that's pretty significant, and we all understand the difference between winter storage and quick launch storage. You have the maps of the people coming to this area. On the last page, I'll just read it real quickly, this study shows that. by taking two marinas and printing out the changes of business. you can see that Dunham's, the other Marina, the only change was the items in the showroom, which has no effect on the cornmunit,/, 1,J~;u, or en\/i,'onment. This stud'/ also concluded t.hat. when Scott Henderson was in business, he basically had it sales, st.orage and service. When Mr. Poland bought it, they had it sales, storage, serVlce and they added refinishing, which, with thlS change, had no change on the communlty, lake, or environment. This study also concluded that, in '85, Mr. Brock started advertising the marina to quick launch, dry dock, public launching, fiberglass repair, incorporated this business with the Route 9 Mall. Here the use of the land, since 1985, has been overburdened with t.he overuse on this nonconforming residential commercial area. The marina's caretaking has been sloppy. The boat sheds could have been used if all the garbage, oil refrigerator, engine, oil tanks were cleaned out of there. The condition were in useable condition when bought. Now with the new proposal, this Marina is going to be built up and probably get sold down the road, and we're going to be left. with this big muss. Mr. Brock, knew, going into this Marina, that Cleverdale is an upscale residential area, environmentally crucial area. Also, the land is a nonconforming residential piece of land. It's ç,1OinrJ to turrlout lik,e t:"j'P, inake the quick buck at the resident's expense. Lets Cleverdale a quaint area as it's always been, a place where children can ride their bikes down the road. Please note that Cleverdale does not have any sidewalks. Between the volume of the buildings and the changed use of this Marina thi'it. V-Jill ,"osult VJith thi:, cc)nqestion of cal's and mal""" people to the area, the tourism, e we would lose the character of the neighborhood, also the value of our homes, more commercialism, less residential, less appealin9 to a family to move in. The value here is family style, where our children are surrounded by other children. He also has a proposal for parking on the waterfront land. I have a picture here. It's just a spoof that I Just happened to forget that I had some film at the Shop N' Save, and this picture was in there. It was done this summer in August, and I have about 20 cars parked on the waterfront, and totally congest ,and you can also note that on the waterfront, where he proposes to have the parking, part of - 29 - -- tJ"'¡¿~~ p.a,'rkin:;1':::;;.; SJc)i.r¡g to 1:)-8 OJ"¡ "¡"'¿:~:::.;:i. nti¿).l lar'¡(J, ,¿J.rìc.J als:;o, ou. know, a couple of major trees are going to be taken down here, too. So you're not going to only have the cars lined up, 9 by 20, but you're also going to be able to view the Mooring Post buildings from the water. It just would look like, I'm trying to visualize it, maybe a strip piece of land with a bunch of cars, and I'm a little concerned about all these cars on this property, because what happens is, Mrs. Poland stated that she parked above these pine trees. I'll bring this up to you, above these pine trees, and now Mr. Brock is parking on the grass area, which, you know what happens with cars when they leak oil, and you have a rain and the water runoff going into the lake, the waterfront's going to turn, not only with all the quick launch boats that proposes, but also from the cars in the parking lot, you're going to have murky water in front of this Marina. Now you have residential homes right next to it, and you're going to have the traffic. Another thing I would just point out is with the quick launch you're going to have, say he has 140 quick launch boats, say that 100 come in on the weekend, what about Sunday night? Are there going to be, like, 80 boats lined up in Sandy Bay waiting to get in? I mean, if you have all the docks rented out from other boats, where are all these, are they just going to idle in Sandy Bay? So you've really got to take this into consi ration. It all started out with these buildings, and when I 100 d into the size of the buildings and what he's presenting, t ~'~ why I said, what are these buildings doing. I looked at the size. I looked at the location, and I looked at the impact that these buildings would have, and I hope you all look into t h i::3 , bec;ause it's just an en'-,;' iì-onmenìta 1 d Ü:;asteì"" a:3 far i}:':; I'rn concerned. I love the lake. I've lived here all my life. I 1 t for about five years, and I'm back, and I know why I'm back, because of the lake. It's beautiful. So that's pretty much all I have to say. I also would like to point out the water runoff. Brock proposed to have these trenches al'ound this building. Now t trenches are four feet deep. I had an incidence on my property where I dug out a trench to put some wiring down four t. We had a rain storm. The thing was filled up for over a week and a half with water. It never drained. After that rainstorm it was filled with water. It was it was in until. I had somebody come and estimate, I finally had to get them in to excavate it before the water was relieved. We have such a major area up there for water runoff. Water doesn't saturate into the ground. It usually travels some place. So if you have four foot of water, trenches around the building are going to get filled up and then what happens when the next storm comes? T y're not going to be saturated through. I just wanted you to take that, ause I Teally think that t problems that we're having now, with the water runoff coming off the property onto the Mason Road is pretty significant, considering there's no buildings there right nov.J, and v.Jhen therc; bias !::HJil.:::!:Lng:::; tl-¡ere, t/ir. E:rock haclt.-e, pump out of his work area and his pumps, I think it was a sump pump that used to pump into my corner lot, and I used to go over there and take the pump out and put it down between the property lines. So we have a significant problem with water runoff, and to my understanding everybody's supposed to be responsible for L ir own water runoff, and I think you might want to take t L into consideration. It's nice that we have these tr ne , but you have an awful lot of roof lines, and you also have, I also noticed on the plans, that there's rocks. Only the middle part is paved, and then there's rock bed underneath the boats, and t re's room for it to air out, or whatever, but I don't think that has anything to do with the saturation of the, it's going to be flooded. You might want to consider that. I just want to show you something in the picture. I think Mrs. Poland was talking about parking, not on the waterfront, but it could be, but I thought I heard her say it was in front of there, but right there there's 20 cars, and they want to put 80 on that waterfront. I just can't foresee it, and plus they're also going on the residential land, when they back out. One more thing. What I have done is taken, actually, the full scale of this - 30 - "--' -' building, on a one inch equals ten feet. I actually did the building to scale, and what I have done is taken the other homes, I took my house, which was from scale, from the road, 24 foot at it's highest peak. I even have the plans to show that, ause there were things going around our neighborhood saying that I had a 35 foot house, but for t.he record, I only have a 24 foot house. So in comparison with my neighbors, the Wetherbee's, and then the Kenny's I kind of scaled them, Just the height, not t.he width, just to show you how this would fit into this neighborhood. I mean, that's a massive building, plus the height of the homes. Now, if you notice, Mr. Harriden's house is a little bit lower, The way Cleverdale is, it's a finger, and it plateau's on the top, and then it comes down off the side. So a lot of your homes you have sloping down. So from the road, you get maybe the windowsill of the first floor, even going into the second floor. So you have to keep the elevations in mind, too. So when you look at thi building, this is going to be probably on the highest part of the plateau of t middle of t.he peninsula, not as a whole peninsula, but compared to the buildings on the waterfront, and also on either side of the waterfront, just to give you a feel for what we're dealing with here. This building, I think I gave this a 22 pitch. This is the height of the builciings, of the old building, a 22 foot high, just to soe the difference, the change of volume. MR, CARVIN-I just have one question. The advertising for the Mooring Post, and this little chart that you made, what was the r erence? Was that out of the Post Star, the telephone book? MRS. EVANS-It was all the telephone books. I went from year to year, as you stated, and howevel it was advertised for in the corner. I think you have a copy of the, I took them out of the book. It was all the yellow pages. MR. MENTER-Not to detract from any statements or anything, but I think it's important, because there's probably going to be a numbeì' of pc'ople who "J2\\I1:. to speak, I)ut I think, \.Je should make sure that the comments are kept, as much as possible, relevant to the Use Variance questions. MRS. EVANS-One more thing I'd just like to say, the use, this change of use, he's using this huge machine, as you mentioned. I was across the street when they were pulling it in and out, and I had this smell of fumes when the machine was working, and now with the new OSHA, in order to back out of any place, you have to have this beeping noise. MR. TURNER-You have to have a back up alarm. MRS. EVANS-Yes, back up alarm, but I'm going to be hearing this, like, I don't know how many times a day, and also, I think that's just ically the point I want to make, is before these buildings were torn down, there was basically no action taking place across the street from my house. Now you're going to have all this noise and moving around and movement of boats and the beeper, which I believe is a change from what we're used to, Thank '/ou. TOt-¡ ItJE::;,T MR. WEST-Good evening, Mr. Turner and Members of the Board. My name is Tom West, and I'm an attorney. I represent the Coalition for the Conservation of Cleverdale, which is a group of Cleverdale rosidents who could not be here tonight. My purpose here is to urge that this Board determine that a Use Variance is required for this project, and that this project bo subjected to a full scale Environmental Impact St.atement review, under the State Environmental Quality Review Act. Let me begin by saying I want to reinforce Mr. O'Connor's presentation, relative to some of the legal issues that he advancod. I think they're very - 31 - --' critical here, use they demonstrate that not 01'11 ~s a Us Variance required, but they demonstrate that there's a very substantial expansion of a nonconforming use that should not be allowed without strict adherence to the variance requirements. First, I agree wholeheartedly with his legal position, that the Ordinance as written in this Town, does not allow replacement of structures at the will of the owner, without requiring a variance. They allow maintenance and repair, but no replacement. This is a very common issue that is cropping up allover the State, as people are trying to take old businesses and replace them with new businesses, to increase the activity and t profitability of the businesses, and every town is facing this, and most of the towns that I'm familiar with are taking the position that that type of replacement is not allowed unless their Ordinance specifically allows it, and so I think that is perhaps one of the most important statements that's been made tonight. Secondly, I'd like to speak to the issue as to whether or not there is an expansion. Mr. O'Connor and several people have referenced the definition of expansion that's set forth in your Code, in Section 179-7, and I think that should be the beginning and the end of the analysis. If you read that Section, it talks about any growth of an activity, which requires enlargement, and we'll come back to enlargement, of facilities including buildings and parking spaces. Now, I could not find a definition of enlargement in your Code, but the common definition of enlargc;ment is to make sornethi 1'19 bi9ger. It does not rn·aan horizontally bigger. It means bigger in any dimension, and so I think that it is Just and proper for this Board to interpret that provision as meaning that any expansion of a building, whether it be horizontal, in terms of the square footage, and we spent a lot of time tonight talking about what the square footage is of the xisting buildings that can be properly counted and what the squa¡"e footage is of t.he ~ !)uildings, but that's 01'11'/ pa¡"t. of t analysis. We've heard two other issues mentioned tonight, and ¡au have photographic evidence which is very demonstrative of how large and obtrusive these buildings are going to There is a substantial volume increase and there is a substantial height increase, both of which are going to very dramatically impact this largely residential neighborhood. Even if you look at the parking issue alone. I know Mr. O'Connor made this point, but I think it's worth repeating. We've heard testimony tonight that the parking spaces at the facility, when this facility acquired its nonconforming use rights, amounted to 24 parking spaces. I believe that there are something in the order of 140 or more parking spaces proposed for this new facility. Under anybody's definition, that is an enlargement of parking. Ulldel your Ordinance, you have no choice but to interpret that as an enlargement, which means that this is an expansion of a nonconforming use, and it requires a Use Variance, and all of t requisite showing to obtain a Use Variance. I also want to talk about the change in use, because I think that's significant. I think that's the reason why the room has been packed at this meeting and every meeting about this facility, because it is very dramatic to go from a quaint neighborhood Marina, similar to t Mooring Post Marina, that many of us knew and grew up with, to the type of high scale, modern, commercial quick launch operation that is being proposed here today. I think it's significant that your Code separately defines quick launch from Marina. A quick launch is a distinct !<ine! of ma¡"ina. It l~;;; a cHffc:.n;:.Hìt u~;:;¿::. I cannot find where quick launch is used in your Code, but t Fact that it warrants a separate definition shows that it is the legislative intent in this Town that a quick launch is a different t.ype of operation. It will have a dramatic effect on this neighborhood. There will be significant increases in traffic on the land. If they're going to quick launch a 140 or more boats on any given weekend, you can imagine that will mearl that on 4th of July weekend, t.here will be 140 cars coming to and from that facility, and how many times per day are they going to travel to and from that facility? How many t.imes are they going to run down to the store to get a six pack of beer or something - 32 - ',--- ~ else that they forgot? How many people are going to come out, come to visit them? How many cars per boat? I think you're going to find that this project will 1 to significant on land traffic corl,;¡(:,~~tion. :r think tl"H::ì"e ~",i,ll a.1.s,;) ~;).i.unificdnt increases in traffic in one of t.he most congested areas oft la , r i:Jht thc<ì"e adjacent t(:;. CliC}\/crdale. In f.3ct ,.:r VI()uld call to your attention the fact that the Lake George Park Commission found that area so significantly congested that it actually zoned the area of Sandy Bay, immediately adjacent to this proposed project, as having restricted use. We all remember the days of unrestricted access to Sandy Bay, when there would be hundreds and hundreds of boats rafting for parties. Now you have to tie up to a specific mooring. The Lake George Park Commission, in zoning that area of the lake for limited access, had to make the finding, sed upon public health, safety and welfare, that that area of the lake was over congest ,and that's why they did it. I also want to bring to your attention the history of quick launch operations in the Lake George basin, and some of the regulatory requirements, because I've had some personal involvement with that, and :r think it sheds some light as to why there is no grandfathering in this case. Everybody knows that we've had creeping quick launches through the Lake George basin. I think some of the test.imony that we've heard tonight is a prime example of what's happened at many of the marinas around the lake. They started out as plain, neighborhood marinas, with service operations and winter storage operations, and over time, people began to realize that they could make additional revenue by quick launching. They could use the winter storage space for summer operations, and expand their operations through that. There were regulations of the La George Park Commission, in 1982, that required all marinas to register their operations and define, very clearly, the nature and extent of their operations, and if this Board reviews the submission of the Mooring Post Marina in 1982, you will find that there is no mention of any quick launch activities at this facility at that time. In 1988 when the Lake George Park Commission was revitalized, actually through legislation in 1987, I was retained by the Lake George Park Commission to assist them in developing their regulations, their initial set of regulations. Part of those regulations dealt with new dock, wharf, mooring and marina regulations to re¡::)lacE;o tl'''¡e then e>:isting r:2S;1u,latiof'i:3. One of the issues tl'''¡at 1~ICò focused upon at that time was the expanding quick launch activities, and we made it very clear in t.he regulations, and it's very clear that to be grandfathered under the Lake George Park Commission Regulations, that the operation had to be both in existence and registered before the Lake George Park Commission. It's significant that at no time did either the prior owner ì"euister an)'" quick launch activit,i,e~s, Oì' diel t current o~"ner register any quick launch activities under either the 1982 or the 1988 Park Commission Regulations, and you might say, well, of what significance is that to the Zoning Board of Appeals of the Town of Queensbury, and it's very simple, because I can give you a simple analogy. Some states allow you to have reciprocity, and to obt.ain a driving license if you have a driving license in another State, and it would be similar to me going into one of those States and asking for a driving license, and when they say to me, present your New York driving license, I can say, I have none, but I've been driving in New York for 25 years. The simple fact of the matter is that because I, if I did not have a New York license, it would be illegal operation. It would not entitle me to reciprocity in that State. It's the same principle here. The fact that none of these owner, current and prior, chose to register any quick launch operation before the Lake George Park Commission establis the illegality of the use, and the ì'ea~son 1'11"1/ t.he propo:c::()c! qu,i,ck lE\unch opeì".3tion i~~ an expansion. I'd like to also address briefly, because I know other people want to speak, why this project should be reviewed under t ~:;tatc;) Environme¡·¡ta.l Cìl,J.a.lit'/ RevielrJ ¡:'¡ct before any variance application is act upon. I understand you've got some Appeals befor you and you may want to act upon those Appeals, - 33 - ..--' .-- ~)l)t. 'f()r >/C)lJ ac:t U¡:J()n ,3n'/" ,:)f tt""ìe: \¡'(3,ì'··1.arlc:c a.¡::::I:)lic,3ti,::)n::;:;~¡ I t.:",iì^·¡!·:, it's appropriate for you to address the status of this proj ct under SEQRA, to declare it a Type I action, and to require an Environmental Impact Statement. One of the other things that we did, when we established the new Park Commission Regulations in 1988, was to declare the entire Lake George, and 500 feet around I_ake Geoì'~~:¡e as a Critic;:al En\v'iì-,::::>nrnenta.1. (n-ea, undeì" the ~3tdt(; Environmental Quality Review Act, and the significance of that is that projects like this one, that fall within that area, in whole or in part. and this one, I think, is wholly within that area, are considered Type I actions if they're Unlisted actions. What that means is that unless Mr. Schachner can convince you that this is a Type II because it's merely a replacement in kind, or Just an Area Variance, which I believe to be the substance of his arguments, that it is a Type I action which, presumptively, requires the project to be addressed through the preparation of an Environmental Impact Statement. Again, this is an area that is highly congested on the lake. There are special findings by the Lake George Park Commission that the lake should be restricted. This is not an area of the lake where this Board should be allowing a business to expand its operations. There will be serious health and safety issues. Having driven on that side of Cleverdale personally, on a number of occasions, on weekends, I can tell you, you take your life in your hands going CIOV'H\ that area in a boat. It ,i,:;;; not only congcò<sted, i t i~,; roug:'¡_ Adding increased traffic to that area will be significant. All of that should be addressed under SEQRA through an Environmental Impact Statement before any variance application is granted. in, just to summarize, I think it's very clear that this type of wholesale replacement is not lawful under your Ordinance. I don't think there c()uld be an/thinS! clearer, in CD.L. mind, t.h,s,t this is an enlargement of both facilities and parking spaces. Therefore, clearly a Use Variance is required. I think because of the significant adverse environmental impacts that are presented, some that I didn't mention, but that Cheryl Evans mentioned, the noise of the forklift, the fumes from both t forklift and the boats, all of these t.hings, along with the traffic issues, should be addressed in an Environmental Impact Statement. I'll answer any questions, if the Board has any. Thank you very much. E:L I Z(.ìBETH IrJARD MRS. WARD-My name is Elizabeth Ward, and I own property on Cleverdale, further out on the point, beyond the Mooring Post. I am not adjacent to the Mooring Post. My concern centers around traffic and it centers around both boat traffic and automobil traffic. On holiday weekends, actually almost every weekend in July or August up there, we already have a significant congestion problem with the residents and the guests that they have coming to t.heir properties. If the Marina is allowed to expand, even if only half of t.he boat owners come to use that property, you're going to have somewhere between 60 and 80 cars cominS! on to th point, some of whom, as was pointed out, may be leaving at varlOUS times to go to the store or do other errands. You ate also going to be stopping traffic, somewhere around 120 times a day, to allow the forklift to come across the road to bring t boats for quick launch. This is already a congested area, if this is going to go on early in the morning and into the evening hours. From the water side of it, you're going to have boats returning and leaving in an already congested area. The Mooring Post does have a very large business, I believe, pumping gasoline, so that we already experience back ups with boats floating out beyond the docks of the Mooring Post, waiting to get in and purchase S!asoline. These are hazardous in that area because of the co lon. If you allow this quick launch operat.ion to expand and grow, you're going to have more boat8 floating out there. This also puts an oil slick in the water which is at the very least unpleasant and somewhat polluted. Therefore, I don't see why Mr. Brock would be pursuing this if - 34 - ,-. - thi~s wasn't i.'ln (3)(pansion. It '~:.: riot the: natu,'e of t.he beast to put a lot of mOTley irlto sornethirl:C¡ th.at doesn't ¡:;.roduce sOlnetl",irl:g for you. 50 I think it is clearly an expansion, and should be viewed as such and a usa:ge variance should be required. Thank ,/"OlJ. DIL,L I,..JETHEr-~BEE l'iFL I,..JETI·"¡EnBEE"'I'1y narnei s B111 I,..J.;::d:. her b;¿:e " I 11 \.IE) 0 rl i"laso n Pc.ad" t~ì>/ I¡~.ife {Jncl I 1i\/(3 ()n M¿.3S()n RC)i.3cJ.. I r()¿11ize this ¡:;)ay'ti(~I.Jl¿3r se:gment of the proceedings this evening deal with the matter of a Use Variance, and I recognize that one of your colleagues, Mr. Turner, asked that we restrict our comments t.o that which apply only to Use Variance. I believe my comments are applicable. I believe they also might applicable to an Area Variance as well. I do not know what the protocols are. So I am testifying or speaking, at this point, with respect to the Use Variance, but as I say, I believe they would also apply to an Area Variance. On October 21, 1994, the attorney for the Town of Queensbury, at a public meeting stated as follows "I think that as a matter of law you c:ou,lcJ almo:::;t :~;ay th.at enla¡"gerr¡ent mean::;; allTlost an':l kind increase in size, and I have read some court cases that give a very wide interpretation to enlar:gement. I've :gone also gone through a dictionary to r enlargement and extend, and the t;¿~(· m:3 seern tC) be \.ier Y .br ()ad " It CIOf,:::; not seem t:..o co !If i n',0d anywhere, that L have read, to a situation where you simply add up the square feet of the current occupancy area of the building, and that's what you know, no matter how tall it gets, it can ~>t,ill be ther;¡::;. I thirlk enlargemerlt is very' bro,ad, in the sen:::;e o f a 1 a ' 9 er :::; t r u r: t u ," e . " f:, 11 0 f the" I 's" t 0 V~ hi,::; I', I r (; fer red i n that quotation were those of the attorney for the Town of Queensbury. One of my points of confusion is, I realize you operate as a basically autonomous group, but if we are paying for the professional judgement and the legal opinions and the di'rection of tf"'le ToltJrl i~ttorney, ¡"Jhy do ItJe not li:::;ten to the To,'Jn Attorney when he makes a statement' which is as unequivocable as the foregoing was? Throughout the summer, those of us who are going to be most exploited by this proposal were confronted with regular visitations by the applicant. He visited us on numerous occasions, as he did other neighbors. There were always two stipulations that accompanied his visit. Number One, he was going to do something which was entirely acceptable to those in the neighborhood. Number Two, he was not going to replicate or go through what occurred in 1988, under any conditions whatsoever. We are confused that we find ourselves doing exactly the same spin that we danced in 1988. Concurrently with t visits, we were told, at that time, in July and August, that this was clearly an expansion of the business, that it was necessary for the business to grow and increase, that we really only had to worry about the enlargement on the 4th of July, Labor Day, Memorial Day, and some particularly appealing weekends in July and August, because that's the only time that the majority of the people would come to take advantage of the quick launch facilities. We were told that the rest of the time we really didn't have to worry about the expansion, that the boats would sirnp,l>/ 1"<3,::; ide in theil" cradle::,; nd the int.ru:;,;ions v~()ulc! be minimal. We are confused. If that was the case in July and August, when we were visited, we do not understand why, ln January, it is alleged that there is no increase in usage. The determinations of the Town Attorney appear to been clear and unequivocable. He explicitly stated that t.he simplistic application of square foo as a measurement device in determining the expansion of area and use, is insufficient and unfoundc?cl. I will ,"e¡;::;'e,¡t the > c¡uote "It" ,. meaninG: expan:3ion, "does not seem to be confined, anywhere that I have read, to a situation where you simply add up the square feet of the current occupancy area of the building, and that's what yoU know, no matter how tall it gets, it can still be there." Our appeal is for consideration as residents who are going to most impacted by this measurement. You have heard some raise the argument that -- 35 - ''--' ---'- we should have known, when we assumed occupancy, that a marIna was our neighbor. Indeed, we did know, and we know that now, and we are prepared to accept that now. Similarly, the present owner 2:;hc)u,ld rlave knolrJn, IrJh",)n h,e a:::~s;urned occupancy and o(-Jne'rshij:::', <)f what the constraints on that Marina were. We simply ask that those constraints be maintained, and that the variance in usage and areas that are now being sought considered by the Board as unacceptable to those who are going to be most impacted, none of whom approve of this project. You may hear some statements from people in Cleverdale who will appeal for consideration for this expansion, but I would ask that you give consideration to t _ who are going to be most impacted and see if you hear any favorable testimony from them. T nk you. I would be happy to answer any questions. ROBERT E\,I;6,N~; DR. EVANS-Mr. Turner and Members of the Board, my name is Robert Evarl~:::, ¿HIC! I'm the ¡:::'ì"Ope¡ty OVJn,'}'( imrnedL:'d:.el)'" to t.h(; soutf'¡ cd ~'ìì . Brock's Mooring Post and immediately to the west. I'm directl impacted. As you heard from Mì-. Wethe¡bee, as neighbors we are unit in a coalition, m,è"¡liY of U:S, against thi~:; project. (\ga,irl, I'm not here to put Mr. Brock out of business. We've grown within t Mooring Post. We know it's there. I have pictures I'm going to show you about the rustic nature that we're used to and the use that we're used to, and this tremendous change that you've heard about. I'm not going to go through it tonight. You've heard, certainly, the cases presented. The question is here, what is the hardship here? Why are we going through variances? Why do we have to bear the burden of his projected expansion needs and changes? I'm a little concerned about the car barn and I feel sorry for Jim Martin and his Staff. I think 's been certainly a diplomat, working with him and trying to keep both sides happy, but through Plan A to Plan C, via Plan 8, and I think you'll all admit, some of the information and misinformation has been extremely confusing. Why do I, as a resi nt, have to be in such a defensive, bringing lawyers in and fi,,>mil/ an.:::! neighbor:::;. ~~Iì·. Brock h.:\~~; create.:::: a ci'\I'il I'Jar. Unfortunately, all I'm hearing from the Board, and this concerns me, is I'm hearing preexisting marina, and under 35 feet, but this project is not going to go away. We're asking for fairness. We feel that, unfortunately, a decision was made, and misinformation. We feel that Mr. Brock well knew what he was doing in '88, we told him, we had this room packed with hundreds of people, it's t.he middle of January and this has been going on through the winter, but we got through this in one night. We had 100 people saY1ng, no way. We told him, the Z8A told him. He came around this summer. Again, we misinformation, and we'v told him, no way. Lets talk. You can't have unilateral decision. We'd never be here if we could talk this project out and work out something we could both agree on. I'm not a neighbor that's going to give him a hard time running his marina. It's en there, and it's a rustic nature that we've always been u to, and the use we're used to. We're not stupid. I mean, we wouldn't be here if we weren't very concerned, and know the facts, and are very concerned about the facts and what you heard presented tonight. My concerns, again, I think this 18 a major project and I think it should go through SEQRA. I think that the¡e's some tremendous environmental issues that, as a neighbo1, not onl'>, along v.JÍtr'l use, but also a·esthetics, I 'in extr.¿m;,~'l:; concerned about. I think if you went through the letters, as Mr. Thomas has, it's got to be almost 10 to 20 to 1 against t.his project. We have phone calls coming out of our house all th time, what's happening up there. Is it going to happen, is it not going to happen? Why does this have to happen in our town? Why can't we work this thing out? I mean, this really needs to studied. There's some major flaws with this presentation and this project, or we wouldn't be here in great numbers and be so concerned. I want you to take this to heart, and I want you to t.1'''¡ink about, if tl'li:,,; I;Jere a 35 foot rnon;ster going up in your bacl, - 36 - ;...- '-.../ yard, in a Critical Environmental Area, increasing usage or changing usage, whatever the case may be, it's a major concern to us, and, as property owners with t.remendous investments and 12),3 >' i n~;J t r C:fn(;· ncl()u ~3 ta)( f:~:3 t () t his T 1~)l.<.J n ~¡ ()lJ)M C'~) 1ì(':::;':~ '( n~;~; (} r (:? ) ¡::. 1 C'd ~::;c: here us. Please listen to us. Mr. Brock has made some poor islons. I think. He ordered this building weeks in advance prior to getting a permit. He had those surveyors up there t day after he got a permit" I mean, this thing is planned, Gentleman, and my concerns a¡ e, lets bring this train back in the station. Let~3 study it.. I_c~t,;:; l;)()k at it the ,,,a/ it is. Let,:;; SECRA this, and lets take it t.o the Planning Board, whatever we need to do. I think that., as neighbors, would make us happy if this thing were modified, re-Ioo d at, environmentally sound and aesthetically sound. So I'm jus! asking your consideration as (lost word) members of Quee ury saying, please, if this were going in !()ur bi3ck yaì"d, plea,;);:; ".-'0'1:.;0 t,hc: Wi3/ y;)U w()uld v~ant this to 90 if Y()lj VJcr e our ne i :,:) hbol' :::: . T 1"Ia n k)ioU \/e r y ¡flue :"'1.. JOE POI.)I_ I EF< MR. ROULIER-Good evening. The concerns that I have are, of COUì":3e, ì'c:ga'I"c!ing all tfìe maì"inas on Lake (;eOì"ge, anc! it happen:,:; to be the Mooring Post Marina right now. The problem that I see lS that, tor many years, and probably for the last 20 or 30 years, the marinas on Lake George have been allowed to do anything that they wanted to do. I refer to this as creeping marina expansion, and how I define that, my definition of this is the continual enlargement of a marine facility without any governmental approvals or authorizations, and without any regard to the neighborhood, and what I mean by that is that, in 1971, to tl'''¡e be:st of mi' recollection, the la,rge:::~t boat orl Lake GeOì' ge I¡.Ji3:3 a 30 foot Chris Craft. T I. the 30 foot Chris Craft has been replaced by 32 foot, 34 foot, even up t.o 41 foot boats. T boats contain bathrooms. They contain bedrooms. They're used weekends as party boats, and there's been, because of the size of the boats; ,. there's n a tr(0ínondous increa~3e in t.he amount of traffic that goes to t boats every weekend for one purpose and one purpose only, to party on Lake George. Being in the building industry, as I am, if I wanted to put a two bedroom addition on my home, I would not only have to conform to all of the setback requirements, t I would then be ta n in for the :s.ize ()'f rny sC~I:)ti(:: S)/::3t(~rn~ Wc.~ t"IEt\/e- tf'''li~3 tr~0rnE~ncl()u~~3 .inc:'(e¿:t~3()' in the size of the boats, but yet the septic systems are not keeping pace ,,,it.h t. :::d,ze of t. bOi;Ü,~~ thdt. all. of the md(inas on Lak·:::; George continue to have at t ir docks. Annually, I would estimate that the boats on Lake George increase in size from 10 to 20 percent. As I said, in 1971, the largest boat the I know of was owned by a Mr. Frank Holbert., it was 30 foot long, but the average boat, at that time, I would say was 18 feet long. T boats wers basically utility boats, and all you have to do today is ride up to Lake George and see how the boats have evolved into these small communities that are now on the shore of Lake George. In my opinion, these marinas, because of this, what I call creeping marine expansionism, is putting a burden on our neighborhood up there. I see it on the weekend with the traffic, and one of my principal concerns is regarding a quick launch facility, i:;:; t.f"'lat th(:3 peopl.¿~ come up, tl"ley h.ave t,heil' boats ¡::::·ut in. They go out there. They drink on the boats. They come back to the dock, get in their car, and then go flying, and I mean, flying, do,,,\! C::le\/i,3n::lale, F~o,3d on de ':,unda/ afternoon. The second issue that I would like to bring up is regarding t size of the building. The entire focus is on the square footage of the building. I know, at t.he first meeting, t.here was some consideration given to the capacity of the building, but any time that you have three levels to a building, and I've certainly built. many honlc:s dnd I kn()v~ thi for ò fact. If/ou ha\/e throe levels to a building, you consi all t.hree levels in the square foot.a~~::Je rc,quiì"(:)ment. 'Y'()U c!on't jU~3t. co,'\si I t. basin area. You consider t first floor and the second floor. Because this particular storage drea will have not only a first floor, but it - 37 - '--' Il~ill hi:1'v'e a ~3eC()i-¡d floor, lie: it. ~,~ill hd\:e, i:1 thirc: floc>ì, In!JlL opinion, we should be looking at three times the square footage or approximately 60,000 square feet, instead of the 21,000 square feet that's before you. Unless the people of this Marina are literally stacking the boats, one on top of the other, without cradling them on some type of a framework, which would be the second floor, or the framework for the third floor. I believe my calculation of the 60,000 is certainly in the ballpark. I don't know, I haven't heard any issues regarding the hardship, but I would just like to mention this. If the size of the bOi:1ts, in 1971, were 18 feet, and the current size of the boats aì approximately, lets say 26 to 28 feet, and would still maintairl the same number of boats, the dollar amount increases as the size of the boat has increased. In addition t.o that, if the prices charged for storage, back in 1971, have increased to the 1995 rates, we're actually having a quadrupling in the overall cost of the storage of individual boats. In my opinion, t.here would no hardship created under this scenario, and that there would no reason for approval of the Use Variance. I would like to mak one last comment regarding the views. A lot of people thi:1t I've been speaking to said, well the people that live over on Mason Road have a view of the lake, that a view behind them isn't critical. If it ~Jas in [IlL. back yard, it ~~ou,ld be significantl). critical, but I would like to bring to your attention a variance meeting approximately five years ago here, where I was looking for a side line setback of approximately 10 feet for a particular customer of mine. The adjoining land owner, who had a view to the north, had his attorney present and argued that, by encroaching on the property line by ten feet, it would obstruct. his view. This Board subsequently turned down my request for that setback requirement of 10 feet. The significant part of this, however, is that the attorney that was arguing against me was arguing for his client who hadn't even built the house yet, and it's turned out that the property has subsequently have been sold, and that there will not. ever be a house built on that piece of property. This Board consi red the view, at that time, to be so critical, even though there was no house built on t t property by that person, and I think that we, additionally, have to ta a good hard look at not only the view these people hdv of the 1a ,but view this building would glve them out th ir k door, and as Dr. Evans said, I don't think anyone of you l-JOuld ~'Ja,nt to look out your t~';3ck door at a, 35 foot. st.ructura" Th,,,nk Y"()U, st¡L.L,'( ~\JI-IEEL,ER MRS. WHEELER-My name is Sally Wheeler, and I am a summer resident of Mason Road in Cleverdale. I support my neighbor's concerns for safety, increased traffic, runoff into the lake, and over utilization of t.he lane:, but. I i'-,IOU.lC:! like t(,\ request/au Z()nin:; Board Members keep firmly in mind three quastions. First, does the expansion Mr. Brock proposes actually improve the valuable land resource that falls under the jurisdiction of the Town of Queensbury? Second, does the proposal show respect for Lake George, an especially fragile and beautiful natural endowment., and, finally, will Mr. Brock's proposal positively contribute to t well being and communal environment of Cleverdale, one of the many communities in tha Town of Queensbury? What I am suggesting is a different way to evaluate Mr. Brock's proposal. Indulge in a fantasy with me for a moment. Imagine that Mr. Brock were to put fc)'¡-th, not thi~3 prc,posal, [::;out a proposal. v~hich not expand his business, but. maintains it in an especially attractive way. Imagine that his building on the land respects the for soil permeability, sewage treatment and drainage. Imagine that his property is landscaped nicely, and is aesthetically plaasing to t.he eye. Imagine Mr. Brock getting up each morning and looking at his land and the lake, and taking pride in the fact t.hat he ,-esp¡:ô<c,t¡?c! t.he land ancJ the li.':\ke, ho~..J good he might, f,::el in his heart that he did the right thing for both the environment and his neighbors. Does this sound silly? Perhaps. I love to - 38 - "'---' .........i walk, and one of the pleasures walking around Cleverdale is to see how lovely people can ma their property. L reap the benefit of my neighbor's hard work and love of their land, ause I get to appreciate their forts. The Mooring Post t'~I,::;r:L nd i~::; .'J. hi:;3tor ic; piece of Clcj\jerdale. It ':i:3 biac:n ther (; f(·¡ almost 100 years. I can't imagine Cleverdale without its own In:,\, .L na . HOl"-lev{:'1-, L k nov.J V·J ht1 tit' :-:;;; like for some>:) ne t c) !::;ou i .1 ci .3 \1 eyesore nearby with no concern for neighbor's views. Now that the structure's there, it's unsightliness is a daily reminder tJ,òt I"'!i gh r I ¿: bu i I dl nST'S i mp.'Jct. negat i \/1:2' 1 yon ne i s11"'lbor ¿; . Is it right for neighbors to be concolned with other people's property on Clevcrdale? Yes, it is. We are a community, and when we clon",'t, (:onsicler each other anc! (:onC:i;:ntì"ate onl/ on our Ohm personal ires, we cease to a ommunity. As the Town Zoning E30ard, Li?...\.l. ha\/e the oPPoì-tunit)" to real.l.}' :3C¡;t an e~':amp.l.e for Queensbury. You have the opportunIty to say, we grant variances on.l.y w 1"1 we can see that the individual has respect for and appreciation of the land and water that falls under our Jurisdiction. It really is possible to have Mr. Brock offe1 a i::::'roP()~",;Jl tllat lrJould set a 1"li9I'''1 ::sta,ndard of excellence, a,nd lrJould t II'v':/ of oth,3r d¡"e¿i:::i, becau::;;e it V.Ja23 ae:sthc:tica.ll/ appealing, enhanced and honored the land and lake, and fostered, not ne,qati\je relation:::; with his neighbc)r~3, [::;out positi\/e appreciation. Indeed, the Mooring Post Marina might be an example for other businesses and marinas around the lake, because of the positive contribution it makes to the welfare of the lake and Clever dale. Perhaps it is a fantasy to imagine that we could ;.;\11 t,hink mor-e abc·ut the "-,,n''/:l.ronrn.:::nt than our- poch:et.books, but .if we don't, we will not have much of a legacy to pass on to the next generation. I think you members of the Zoning Board are able to reflect values and standards that can be admired by both business people and residential owners, but to do so means that you must sensitive to the wel re of t land, the lake, and the resi nts of Queensbury. Quick decisions are easy to make. Caring and concern t.ake more time, and in the long run, make for a better fut:,ure. I t.hank..,.ou \¡,·ar> ¡nueh f()r li::;tenin9 to me. MR. TURNER-Thank you. ,JI.)[)'y' L,JETiiERBEE i'1PS . "JETHEF?BEE.., I'm Jud)/ 1¡,Je t her ,a rid I Ii \/.¿} 0 n i'1aso n Road, Cleverda.l.e, and I've been here, you've heard me earlier tonight. I've been here through the years. We've tried very hard, at our IK:>lJ~;e ,. tu !<eer) frorn c;h.':Hli,Ji n9 the, char-aeter of C.l.f~ver-dale, C))" t,() !'''Iarrn the (}nviroT'lrn·ant, by rninimizil'I,;J any chang('':~: to our prop·erty. We wait for 10 years to put up d garage. A tree fe.l.l down. ~o we finally found room enough to put it at a very peculiar angle to the rO.'3:$$;I. We did tllat. ~::.;c· l"-le l'Jouldn't. 1-13.\/e to take dowrl ani trees. When our family outgrew our four room house, we went up half a story. We didn't go the whole full story. My six foot t."JO s;on ~'Iit his ~",ead every time rie got in bed, but that was hi§. problem. It was to keep the small, cottage like character of our house, and the neighborhood. Since then, we've come here_ We went along with the request that the Marina made. back several years ago, for an increase in SIze of a building. We went along l"-lith t.hat. T n in 1':")00, a ri",que~3t \/e1-Y' :,;inl.ilar to thi:::; one,. except it was one building instead of two, but the same size, was flatly deni by your Board, with very little hesitation. We've seen the business use and size change from a quiet sales, repair and storage business to an ever increasing quick launch operation that seemingly needs ever hig r and expansive building and noisy machines for operation. What are we going to be asked to allow next? Just as we knew about He rson's boat sales and storage, vJhen W(j bc)us;¡ht, so (Lid ¡"ir. E:ì-()ck know the building size, height ,. the property boundaries and the restrictions, and most of all, abc)ut t,he fra,jile corldition of L.¿¡ke C;eorge.. In con(;..l.u~::;ion, I Just, I don't understand this. In 1988, the Zoning Board of Appeals concluded, after the hearing for a very, very similar r e ell.1 est f 0 '( t his i'1 a r in,) , t hIs; ,ì. :::: the i r quo t ,:; " T hi::;; i san - 39 - -' o \.: ';:~:;' ï :) U'i . f"1 () n t I::: r c) 1=:- ;;2 r t_ '::/ create a hardship and then little farther, but I think "/ou. and equals Gxpansioll. 'feu carlilot Ç)ì'N()¡::,():::;¿-~: E~ s()luti,:)r¡. II It VJ(:;:ììt ,:)n ,Ei that sums it up right there. Thank DEBORAH SKH"¡HER MRS. SKINNER-Mr. Turner and Members of the Board, my name is Dcd:;.orah Skinner. I 'rn a¡·i:?~3'Lck')nt. of Cleverdale. I 11',/(,3 on the end of the point, in the old Catholic Church, and I had not been aware of what was happening until it was already happening. I guess I'm not within the variance limits to receive notification, but I'd like to read a lette~ that I had written and submitted into evidence. I followed up a telephone conversation. It was requested to me that I submit it into evidence, and due to t lack of time, I'm just going to read it. It's addressed to NT. Martin. I telephoned the Planning Board Office. I went there, t.he 28th, in lat.o2 after noon, t.o S,1() on record :::>t,3ti n9 some of in> serious concerns regarding the Mooring Post Marina project on Clo2verdale. Evidentally, my home is just over the 500 fe t requirement for routine notice by variance to me. So I was unaware of a meetin9 on the t.opic until I heard it on the radio while driving out of town. When I telephoned your office, I spoke to an individual who took a statement from me, and I promised to follow up in writing. Subsequent to that conversation, I received information that the meeting was postponed to the following week. at which time I planned to appear In person. I would, however, like t.o, at this time, add)-ess a -few COnC0)·r,s I f13ve about va1~ious aspects of t project, which I feel are extremely valid. I've been a Cleverdale Road resident,in a house almost at the end of the point since 1988. I am also an owner of a building at 275 Bay Road, Queensbury, where my business is located. During the past year, we have had to undergo two expansions at our 275 Bay Road building. During the time prior to the expansion, I, as an owner, as well as my builder, had to undergo rigorous procedures regarding variance and zoning laws, as well as extremely stringent compliance rules requiring the addition of 11umerous ,.,3:;;;troom facilities that ha¡:~'i::'<)n t() be not onl).. re~;tl'OOin facilities, but also have to be for the handicapped. An elevator for 13,000 that has not been used once in the last year, exc f ()r te::::;t i ng, a nd be i n9 r equ i~' ed to e nc IO:::3e (.;our durnp:::::t(:)", t ha t i ::; in t far back yard of au) facility, and barely seen from t road. This names only a few of the stipulations that were required of our small expansion. As a citizen of Queensbury, I must respect the fact that if the rules are, in fact, to ensure the quality of life and our environment in Queensbury as we know it, those rules must be followed and adhered to. The issue that truly bothers me is the reason I'm telling this story, is that I truly believe that not only everyone is required to adhere to t :~3arn<::~, f~tringent guidelines, ¿.:>nd thôt it is ab:solutely amazin';;" to me, to witness some of the leniency that I believe goes on, i.e. Queensbury Quaker Road, the parking lot is an accident waiting to happen. I had one there myself, and I believe we already know that, not to mention the aesthetics of it. Mr. parillo's Dunhams Bay boat launch, where I have personally witnessed the overflow of septic tanks on many occasions, not to mention the fact that it is vital wetland, and now most recently the fact that the Mooring Post Marina's embarking on a project that not only 1. livin9 just down the street, but homeowners nearly within his bael, ground lPJere truly unalPJare of. I as:k 1'1'(. i"1artin. v,Jho::)re lPJ8í' your stringent 9uidelines and procedures where it came to approval of this project? If they were followed, I am totally unaware, and if they were, to what extent were they followed. I feel that my family and my company create many vital job openings and supply a very vital service to our community, not to mention the fact that my lake house, which is a residence, generates well ,;)$$<":1' ':137:;,00 a '/C3,;3~' in school anc! to~'~n ta,:>(G~~:. 1'\/(;" V,j()\"k extremely hard for the equity I have in this home. I feel it is very important to mention at this time that 1, as a business - 40 - -'-- .......". owner and strong advocate of small business, would not want to encumber Mr. Brock's ability to conduct a professional and i,:,,"ofit.abl bu~::;ine~3s, r:;spec;ialI./ in l'IOI¡.J '()rk, ':3tate, ,:'?speciall)" t. v.) ;,) '/ t ~....¡ L) u. .1, r'! c ~s C~; c-1 i rn d. t 'D .1:3 .. If;:·:::;,.1 , 1'''¡ () vJ e, \/ C; 'j" J t 1"'¡ D.t i, (1 conducting his business, there should be a clear understanding as to the environment he is conducting t.his business in. From my understanding of the project, my concerns are as follows: Most of the concerns that have been mentioned here tonight are also my concerns, but my serious concern is to whore I live. I feel that the aesthetic appearance of this project is of the utmost importance t.o the people who live and pay taxes in t Cleverdale. I honestly feel, to go away from my letter, t.hat I would not have purchased my property in Clever dale , had the building that is being PI' been there in the first place. I honestly feel that Mr. Brock's intentions and the intentions of th'b CI¿:vcrc!al r'3:3iderlts ou,ld fla\/G be·en ,lddre:õè~:3ed, and we could have come to a compromise, had we had advanced notice. To go alrJ8/ from my lett..er a9ain, I tl¡ink that if I¡.Je had had adv¿.¡nced notice, r:'0:3~3iblY' the ì"esidfjnt~::; .:e,ulcl 1"la\/e sat d.)~,~rì \\Iit.h Mr. E3:rock and come up with some kind of compromise as to the size of t buildings, where they should be, and possibly he'd be conducting his business now where it looks like it's a little bit at a stand still. The other issue that truly concerns me is the fact that I 1'''1:0'.1\/8 :3m,all children .'Jho ride theil"~ bik,¿õs up a,nd dOI¡.Jn t.hatroad dnd l"la\/e no otheì- choice: but. te, utilize th,,,,, r for pl¿~'/ an.::!. exercise, not to mention the fact that I, myself, must travel in and out of that road, passing t.he Mooring Post, or, in a sense, driving through the middle of it, be it business or personal use. In the summer months, as we all know. the traffic on Cleverdale increases heavily. Parking is at an extreme minimum, and any time the Mooring Post needs to launch a boat or take it out of the water and store it, they need to cross the road. To date, residents have been very patient, and the Mooring Post seems to be very accommodating. Most boats currently stored at the Mooring Post are not. in and out on a daily basis, from what I have seen. My real concern regarding the issue is that Mr. Brock is proposing to increase not onlY' the number of boats stored at the Mooring Post, which definit ly requires an increase In :;;eò:::;on,3.l.Ln an.;::;! out~3, l)ut ,;;:d.~::;o, in fact, to hÒ'v'e ~;,Jhat Y'QU t.erm quick .li:-\unch boat :'3tora";¡(:::,, ¡'Jhicl' nH:',}n~;:; t.h,3t thence) v.Jill be parkin:J r{::)qI.Jl.r,:;;d fo; boat 01;.Jfl·er:3 anc! t!'''leir frie'lìd2;, and I point out, and their friends. I rarely see someone who wants to go have a recreational daY' on Lake George and utilize their boat that n't genera.l.l/ brin9 alc>n,J a friend Oì" a fri'3nc! joins t.hem UF' there with another motor vehicl or maybe a few at a t.ime. My concern is the safety of my children and their friends if these people come in and out, enjoy their day on the lake, and then depart in thc} afterno()n, cau:3inu \..JhE:\t 1. feel ~;,Jould be a rn,;3j()ì" increa:se in ti affic on a roae! that is ,;3Ir(}ad/ o\/eì'burdened in t.he summer time. You only need to go there, in the summer time, on a weekend, to know that, not to mention a holiday wee nd. Also of concern is t fact that the road will be blocked on many more occasions for the boats that will be quick launched on a daily basis, increased numbers, and we will have no resource but to take the sf road in back of the Marina, causing the road serious, that road, serious increase in traffic, which runs along t.he back of the Marina. I am not aware of any traffic study having n conducted. If one has, I sincerelY' request a copy of it, if that is within my rights, and I understand, this evening, that there was not a traffic study done, but I'm sittin9 here and I would truly and honestly request, as a resident, that. that is done. I feel that other concerns I have will ,or have been de;3lt \;,Jit,h l;.Jit,h otlv,:)" i~3SUC)~::;, and in c1.o:::,in;¡, I v~on't read t.he closing of my letter, but it 1S a serious concern. In Cle\/creJale, it':3 been rnent:¡,on,,::,j ')'dì1.ier this eVc?nLn9, there arE' no ~;:sid¿)'I¡.Jalks in C1everdale.. T , '::;; jU:Ô3t th,s' ro Ther;e's not a lot of ¡;,Jood~;. Then':'? ':3 '-/(:1'}- fe¡,,) placiõ<;; for chilchen to play. I have a SIX year old.. I have a fourteen year old. There are ¡:;·roba,b.l.y fi\v'o or si;..: ot.her cl',ilciì"c.:rl hi~3 ,a~)(; that corne in 1:.h",..: summer time that aren't there in the winter time. TheY' ride - 41 - '.,...- '''''''''- thc;.L r \Ji u¡:> ancl VH¡ th,,? st.re,C?t., an(:1 there I:::; no c\t r p.1.a,:.: to play, and if you add another 30, 40, 50 cars, for a quick launch, along with their friends on top of that, when they visit them to go on the boats during t day, you're really increasing the traffic, and that's a serious concern to me. Thank you. MR. TURNER-Thank you. Anyone else? MARY ELLEN MERRIGAN MRS. MERRIGAN-My name is Mary Ellen Merrigan. I live on Seeley Road, and I listened carefully before, when you described the residential situation, the residential lots, Building 11 as a y issue, and it is to me, also. I also wonder, on the issue of the ratio permeability, is the residential land being included in t ratio permeability? Can anybody on the Board clarify that? MR. MARTIN-No, it's not. MRS. MERRIGAN-It's not. Last time I was here it was included in t ,"eel outline. I woulcJ al~~;o lil';e t() support. Mr~3. Skinne,' '~::; point about the fact that t rc are no sidewalks, and my children already know that there are different rules in the summer than the rest o"f the year, -tha"t they're not to ride -their bikes out on Cleverdale in the summer. If you increase the number of cars, what about the children that don't know that, the children that don't know t.he fact that people are running out, not just to t store, but to the liquor store, which is right next to the grocery store. Please consider that these kids do have to ri on the road, and that when you add more cars, you're putting them at an increased risk. Thank you. BILL l.jf~RD MR. WARD-My name lS Bill Ward. I own property about a quarter of a mile out on Cleverdale from the Mooring Post site. I'd li to ~:;uPi:::'ort the arguments that have been rnade this eveni ng 11, relation to the necesslty for a variance for the project. as proposed. I'd also like t.o read a brief statement from my nephew, Bill Wetherbee. "Gentleman: My name is Bill Wetherbee. I am the son of Judy and Bill Wetherbee who live on Mason Road, directly behind the Mooring Post Marina. I feel that the issues surrounding this project should be settled among the peopl directly affected. I'm amaz at the number of people who pass judgerneílt onthi::; proposal, t n return to their rlomes miles alrJa>" and far out of sight of the project. I ask the Board members that when you read letters, you give each letter a fair valuation, as well as determine if sender's name is on your notification list. I would hope that when you hear speakers, you ask the proximity of their homes to the project. I realize ot businesses and people have an interest in the outcome of this ,il!:;. I'm not sug:~;¡e:::;tin:J that;/ou ignor;,') thei,- \v"l(~\',;:::,. However, when you determine which residence were to receive mail notification of this project, you establish a group of people whose interests are directly affected and need to be protected. This group of people live with the consequences of your decisior¡ every day, for the remainder of their stay on Cleverdale. This group's concerns should, therefore, be given the highest consideration as you evaluate the project. I do not live within site of the Mooring Post. I do, however, spend a good 1 of time at my parents. When I visit my parents, I hope that I am not confronted with a 35 foot high wall, as I approach thei¡ I"¡orn(;;;. Pictur;::ó) IrJal ki ng out of )/our r"louse a,nd S;::3el ng that, '/'(Iur neighbors had constructed a 30 foot high fence along one of your property lines. That's taller than four sheets of plywood end to end. I find it hard to believe that you would not oppose such a fence. Another major change brought about by this project will be the use of a large commercial fork truck. A fork t.ruck of this size has never been used at the Mooring Post previousl) Never. The sound of a fork truck of this size, operating insi - 42 - --- -.i' a steel building, lifting a boat to the third storage level, lS not acoustically pleasing. A steel building will do little to Inufflc: t:'¡e ~~;¿)uncl. I ~3P;3\,t a c:umnF)ì' ne::<t to t,he Bolton I."undin," 1'13¡"1na çJ,nd ain very' fai'flilia,r ItJitrl [,he noi~3e' g¿\ierat d z,imila.. ¡'-cjU i \:::<¡ne n t . T II i ~,; [,}\ Oi:)():sa 1 .",¡ i l.1. i nc ¡ (,'a~3e t he no i sc: ;3 ::< per 1. ne 1);- the resi nts living along Mason Road. Mr. Brock has n a neighbor. I use t services of the Marina yearly, and enjoy t convenience of its close proximity I worked at the Marina for eight summers. I owe the est.ablishment a good 1. No one in my family wants to prevent the Mooring Post from operating. However, I must question the validity of some of the figures used to substantiate the proposal. Because of the increased cubic footage of the proposed building, the increased quick launch storage along Mason Road, and th itional ~7 equipment which would be required, I believ Q varlance to be necessary, anci, in lL,;,¡ht of t. concern::;, I ')i:JpO~3e j' pn)ject. in its cur I' :6 1'1 t f C,( in . T h a n k /0 u f () r >/ 0 l) Ii, i ili ,2' . " It'~; s i :9 fi ed, I"J i II i a in (oj. t~,atherbe; , MR. TURNER-Thank you. Anyone else that hasn't spo n? ]()HN 31< I r·,¡r"Ef? i'm. ~:,r\HH'~ER"I'1y name is John Si<irlrkr. 1'1y ItJife ",;po earlier. I hadn't really intended to speak, but I guess I felt like I had to. I'm sort of sitting back by this mural, here, on the wall in /OUì" buildiw], and, obviou:31/, that':,) eveì"/"bod/':3 dream ()f v~hat Lake George would like to be, what it was at one time, and what In)" f alTI i I y' bC)U9ht Pì" opc)r t''/ her e i \1 1 c¡20 . T :'113 t' ~:;:; , obv iou:::;l/ " unrealistic. My parents hav some Friends who live in t,H1.1.ia¡n::.:;!:)ur:)" ane! t,hu s~¡entlernan, tile 11U~3b,;¡n,J ill ¡::-..¡rticular, has n very involved in tiling to preserve Williamsbur:9, and é'3,:J.ic:i to m) fat.I',¡ôi ,)\'jU t,in\e t.hat if 'v"e.l()pc,r::::; ¿ir fOl' it, then you should be against it. Well, I don't believe that. I have a lot. of cli nt.s with by business that are developers, and I find it very interesting that there are people here that are builders, such as Joe Roulier, that are, in fact, against this, which surpri me. I would think that they would be for this. I grew up on this la I started in 1948. When I drive around the lake, I don't like the fact that I see houses on the side of the In 0 u n t a in. I don't wan t t. 0 c! r i veal' 0 u n d C 1. e \/(:) ï d ale .:'1 n d 23 e e t h i :3 huge building. I don't want to see Mr. Brock suffer financial difficulty. He's a neighbor. It's an unpleasant situation to be in a Hatfield and McCoy situation, which we're kind of getting int.o in Clevôïdale, but I have to say, honestly, that the thought of driving by a building that size, and if you stand in front the building at Fisher's Marina, if you stand in front of the building at Lamb's, you look at the size of that building, it's just down right ugly, and people corne to this area because of the beauty of La George, and I think that something lse could have bec:n done. If/ou loed;; at th,:: hi::::;t.Oì"i ()f Lake GecHge, if/()u look at the Marinas t.hat are on Lake George, when they were built, there wasn't a bi9 demand for storage, for quick launch. Pilot Knob Marina, for instance, worst place in the world to locate a ¡"larirkõ\. Tlìat'~3 l<Jhøre in)' family 9ri,?I¡~ up. Onc, of t.he roughest areas on the lake. T get. wi ut every year by the ice, but fortunately Mr. Stewart, t owner, had t foresight to buy property down t road, in two areas, k in the woods, build another building. His boats were star back there. Th re's lots of boats going up and down the road. The usage has been expanded, but it hasn't really affected the neighborhood adversely. Smith's Marina 1n Bolton Landing. Theì"e '23 n() t.oo much y'ou can ci.;) a:':; fa'I' a::::; e::<p.'3n::,:ion. So he's worked within what he has to exist, t existing space that he has. He happens to be a client of mine. Lamb's Marina sold the business and put up this absolut 1/ horrendous building which has absolut.ely no value t.o the aest.hetics of La George, combine with a mount.ain covered with above it, rl~ a business pei"son, if I l",¡a:3 to !:)L!/ the t"!,)oì'inç¡ PO::3t ~l:Hina, and hac! plans to expand it, I don't krlow l-f I car) rnal<e tl1is ar13109Y ~:'I'opGrl/ but. - 43 - -" i t·~ ~3 1 i i 'f I VJS\::3 i ¡~¡t() ~.)a .L 1, ¿3n(:: I t1.J.3 r¡'!:',.e:c: t.::::. 'f()rrr¡ professional baseball team in Glens Falls, and I bought a baseball diamond on Cleverdale, with the of having d professional team. I wouldn't buy the baseball diamond on Cleverdale. Because if I'm going to build a stadium and have lots of traffic, I mean, lots of parking, it doesn't make any sense. So I think there has to be a recognition on a business, from a business perspective, that, you know, I've got so much space to work with, and, there's got to be another alternative. There's a gentleman here who does mostly hauling boats who has a storage facility off of Ridge Road. It's back in the woods. It can't be seen. I didn't even know it was there until I went to a boat auction. I mean, there are other alternatives to building this absolutely huge building on a tiny little peninsula. To me, it ma absolutely no sense, and I feel badly for Mr. Brock. I feel badly for all the people. I give you folks a lot of credit for sitting here. It's not something I think 1 would volunteer to do. It's a thankless job, as far as I can see, but I feel that I have an obligation, as much as I tend to be a middle of the road kind of a person and a facilitating type personality, I don't want to have to feel uncomfortable when I drive by Mr. Brock down the road. I have to say that I think that this project is totally out of line and should be denied. J (:1t',IE FFE I ,"¡OFEF: MRS. FREIHOFER-Good evening, Mr. Turner. I certainly did hope to speak here tonight. I'm Jane Freihofer. I live two doors north of the Mooring Post Marina. I own two pieces of property and I pay taxes on those. I've n at Cleverdale over 60 years as a summer resident. I drove boats on this lake when I was nin ,¡'ear::;; old. 1'\/e ~;c;;en a lot of changos. I 11!-::,e John Bro(;!',. He hi,'<:::,d ill)/ 9randson last sumrneï . I '\Ie 9ì·O~·Jn UI::' I;Ji tl''', the l"loor i nu Post, but what's happoning now, I just hav to reinforce what t gentleman that spoke here tonight said so well, and the nei9hbor that I havo, who live there year round, said so well. This project is all out of perspective for that neighborhood. We all havo kids, grandchildren. They can't play in back anymore. We used to worry about the lake. T lake is a God send compared to the road, and it's serious. Somebody's going to be hurt, and t.t1is e>:panslon can't Ip US~ ar1d it can't help Lake Gaol-go, arld tf"Ü, 's rn/ big:;i<:::3t concl:;;r n. I (Jon't \¡Úsi, .]()I'l)ì bad luck. I hop some compromise with height and size can be made. He's a man who cortainly works hard, and I don't wish him ill, but this I have to just add my words to tonight. I think it's a mistake for Cleverdale and a mistake for Lake George. Thank you. ED I<:Ei",!NY MR. KENNY-Good evening. I'm Ed Kenn)/, owner of property with my wife on C1everdale and Mason Road, right directly opposite John Brock's Marina. There's not much that I can say that n't already boen said, but I do want to get my two cents worth in, as far as being along with the people of my neighborhood. It's out of the question that such a large building be put up and hurt so many people. There's nothing much more that I can say, only t t I'm :3t.ric;tl'/ again::::;t, it. I o....Jn a piece ()f F')rOpeì"t/' t.hat '~3 120 t along that road, and it I;Joul.d , In> entire pro¡:;,srt/, it would be 35 feet high, and I don't think that t.here's a person in the room, if it was them, what would say the same thing, but I cannot add to anything that anyone else has said. Thank you. MR. TURNER-Anyone? Mr. Schachner. MR. SCHACHNER-I'm trying to just speak once. So I assume t L everyone else has spoken. Mr. Turner and Members of the Board, for your records, I'm Mark Schachner. I'm Mr. Brock, the applicant's, Attorney. I don't think I'll be very brief, because I have a lot to refute. I will, however, try very. very hard, and I think I'll succeed in sticking to the point, and t point - 44 - "-- --.J' right now, I think we will aglee, lS the appeal of Jim Martin's termination that a Use Variance is not necessary for t application, and I'm not faulting anybo for this. It's a very complex legal process. T of us who have parti ipated, a I mean everyb you all, we who have participated in this exercise have seen what a complex legal process this is, but I think it's obvious that the vast majority of comments that we va heard tonight, and I'm not discrediting them at all. Everyone is entitl tc> rnake their comment:s" ane: I think thiè\t thoy ~0ill !::;.e incorporated by you all in the rocord of some future pros ing, if Lhere i:3 a, \lariarlce ::::orc)ceeding, ¡::Jut obvious;ly I'iTI not goins¡ to n:::fute the v,;;,\st major it), of the cornme;nt,:; that wen?: rnacte. I'in nc:ot uoirlU t.Ci c,vc,n try' tC) refut,::;,thcèm a:s to I,.·Jhetl''',er tr,is is a goocj project or a bad project, and will have a bad impact or a good impact. I'm going to stay right out of all that, unless t Board directs me to get into any of that, because it's obviously not relative to the specific legal issue at hand, and I say legal issue, because that's really what the issue is before you right n01,.0" It. ':3 a legal i~3S;;lH:: a:"-; to vJhet.heì' t.he project" a~:; pn)¡:)o:sed, requir s a Use Variance. Jim Martin, the Zoning Administrator the Town of Queensbury, has issu a t.ermination on this issue. His determination is that there is not a Use Variance requir for the project as pr I presume, the first couple of speakers expressly sta t. t they disagree with that determination, arid I think I'm safe in presuming that the rest of t spea s disagree with that t.ermination, although their comrne:nt~:;; VJc'(e not focu;?3Gc:1 ()n tl'I,;;1t" ,;Jncl agaiìÎ, the,/'r;", not. attar rle/::;:; a nd I do n 't f au 1 t t.1',ern for that. ~·Je a 1::30 do not have ;,') whole group of supporters here to get up here and speak about the benefits of project and what's good about it and to substantiate Q..Uì·.. contenti()rl~:; about t.he mer it::; (:of t.hc: pì'oject" becau~3e a~Jai n, unless you tell me otherwise, I don't think t t's the issue that's for us at t.his time. You already have, because of previous proceedings, the petition signed by 82 people, all on C:lel,jerddl . "{ou also ¡"Iavo a :;:;0, ie::;~ of let.t.ü'r':s frorn ~::;uPF>orter~~, and we will produce supporters, at a different conv ntion of this pr()cc3edin9, if it'~~ appì"(;opriate to do é'30, anc:! agairl, before I 9-::::1:. into my specifi~ comments, I want to make sure, does the Board agree wit.h me that that's the only issue before you right now? MR. TURNER That's the issue. MR. SCHACHNER-Okay. For the benefit of your record, I have just distribut an extremely short piece of text. The text is copied directly, and then enlarged, by a copy machine, and I don't int,anci t.o p¡'OdUC,<2 r'1r. ¡VìcCoì'mack to (:!i~3cu~::;:3 wl"I,:",;t the le\-/còl of enlargement was. It's a direct copy of a portion of the text of a Nev~ ',",») k ~::,t¿\te ':'3tatut.(j. "["hc; r'~el,.',J '{or h. 3t.at.e Stat.utc' is generally known as the New York Town Law. The Section that I've copied and distìibuted is the vory first. part of Section 267 of the New York State Town Law. T name of t Section is "Zoning Boar cI of Appea l~:;", and th,:':: Sect ii,)n i ~3 qu i tc:: leniJthy and goc:s 0\1 to discuss all different things about your powers and authorities anc! how y'ou rule orl applic;:,;ltior¡:; ,¡,ne! thin9~:~ Ii t.hat. ~3ect,¡,c\n One of Section 2(';;,7 is ;¿~ntitl "Dc'finition::s", a,nd the very first definition, of several, is the New York State Statutory definition of the key term that you have to look at tonight. The terrn i;3 "U~::;e 'V',3r' iance", and by the way, thi::s terin is not definecl in t.he TC)\0n (,d" Qu¿:;(?nS;buì")" ZOllin\J O'¡"dinanc¿::, dl"IJ th,3t.'s riot unusual. So the governing Statute here is New York State law, and t.his is direct copi out. of a book call McKinney's, I¡.Jhic!", is t name of a Sta,te :;,t,:Jtute, and it, ::;:;ay:::;, "Use Var ianc;¿; shall mean the aut.horization by the Zoning Board of Appeals for the use Qf land for a purpose which is otherwise not allowed or is prohibited by the applicable zoning regulations", and I believe I've highlighted on each of your copies two words in this finition, and the words are "use" and "purpose". The sole issue before you right now is whether Jim Martin, your Zoning Administrator, cOìrectly termined that the application for i' <,,) novat ion ;) f the' 1'100 r i n;¡ :'o::ó: t i'iar' ,Ì, rlicl noLi' (2qui r C' a Us;,:":) - 45 - '---' '- \/¿lri,3ncc::~ ¿tncl t c)\-'¡l'>" finiti':)1~\ ()f the tC:ì"^'fn IILJ~:;(: \/d'¡'l~~i¡~jC~:~" t}-·'¡'st governs this proceeding is the definition t.hat I have just distributed. So all of my comments are going to focus on this definition and the words "use" and "purpose". In the context of those comments, I will also try to address the comments made by the opponents that I believe to be relevant to your te;'(minat.ion. Those which I bi3lieve not. t.o be \"elevant, I ~...¡ill try" to e><clu(~e. It '~3 '\I'C",";/ i nteì"':323t.i n:~; t() me: that, as I said, the Cueensbury Zoning Ordinance does not define t.he term "Use Variance". Contrary to what the two att.orneys who spoke tonight before myself said, the Queensbury Zoning Ordinance also nowhere states that a Use Variance is required to continue a preexisting nonconforming use, to replace a preexisting nonconforming use 01 even to, and please before I say the magic word, understand that l¡JC contend l¡,Je a're not doing this, but e'Jen to e>-;pand c), preexisting nonconforming use. So even though we submitted documents to you, letters, affidavits and other t.ypes of testimony, to indicate that all the proposed uses we're talking about are already taking place at the Mooring Post, and have La K[;Hì pI ,3(>;:> at the Moor i n9 Post for ma ny years, th·e bot tom 1 i ne , as a matter of law, is that the Queensbury Zoning Ordinance Pl-ovisions in question don"t even state, do 110t even state, that a Use Variance is required, even if, for the sake of argument, you consi red us to be expanding the preexisting nonconforming use. The only directly applicable language, if we were expanding, which we are not, is in Section 179-79, Subsection D, and ('-Jhat t.h.3t sa'/:3 i~3 "r';ny nonc()nforming use may be incì"eased only by variance granted by the Zoning Board of Appeals", but I think it'2:; '\I'i!;;r>' import.ant to ¡::::'oint out that., at lei,)~'3t. in ŒLi.. opinion, the first two attorneys, or the two attorneys who spoke ¡:::-ro\/iously, 9ave,; me tho irnpr,es:::;ion tl''',at the Zoni ng O'rdi n,3,ncc clearl/ ~states in it that you needt.o get a U::se \,Iariance if /ou want t.o expand a preexisting nonconforming use, and that is not so. If that were so, then we'd discussing the expansion issue at 9ï(3at length" ancl y"ou rnial-It ha\/e an eaf~ier decision to maf,8, but it doesn't say that. So I'm going to focus on t use of t propert.y, because that's what's in the definition. Use Va¡-iance shall mean, etc., etc. use of land for a purpose which 1S otheïwise not allowed or prohibited by zoning regulations, and by the way, we concede that, if this were a virgin plece of pì'opeì"ty', to use the term t.hat I belie\/e one of the pre\/i()U~3 attorneys used, that this would not be an allowed use of t property because of current zoning. So I think, I believe, everybody agrees that what we're talking about is a preexisting non(~onforrning use. HO('-J I'rn 90ina to focus (HI the IrJ()rd IIU:;3;) II and "puïpose", the two woïds in the Statute. What is the use of t property? What has it been since when? Since 1906, and we have sworn testimony that you've already received, the use of t property, this very same property, has been as a commercial marina. Since the early 1900's, as far back as 1906, there have been boat sales. There's been boat storage. There's been boat launching of some type, and we'll talk about what types in a minute. There's been boat repairs, and I guess there's n sales of gasoline, maybe not back as far as 1906, but back many, many years. We heard, you've previously heard and received testimony from the gentleman who's family owned the marina, I ':;'¡UE";;:;~;; frorn 1906 all the (,-Jay up through 1971, the l-1enderson family, and you've already received testimony about the types of uses, as well as the levels of uses, and I'm not going to re~ash all that. T uses have existed, literally, for decades, long before there was zoning, and in fact, t.hey've existed at levels. at least during the Henderson regime, that evidentally wer greater than some of the levels during what I'll call the Poland regime, and that's just how the business fluctuates, I guess. Most of the comments that we heard, excluding, again, the ones that don't relate to the specific issue you're decidina, seemed, at least to me, to focus on the launching aspect, not so much on the sales, storage, or repairs, gasoline sales we heard a little bit about, but an awful lot of focus on the launching aspect. Now, there's been some evolutions, I understand it, within t - 46 - -...../ "'--" industry of the launching of boats. Number One, New York State law, and cases under New York State law, which I'm not going to get il1to, clearly anticipate and allow for the natural evolution i. f'¡{;::.::;:::;Ô:::;, CC)rOiller c i d.l JJu~31 nc;:~::,;~:;c~:=:" I;>J J t, h 't:. !H' {) t.i ¡n·ss " T -'I,:;3. t.:- ':3 nCtt. to say t y allow for expansions and building increases and the using of additional lands and things like that, but there's veT significant body of New York law that I won't get into in detail that clearly anticipates that businesses do evolve, that techniques for running businesses do evolve, and that allows evolution of businesses to occur. The bottom line here, in terms of launching, is as l understand it, we've had Jaunchinq of boats at the pr ern i :;:;C~~3 liter ..:-\11 )" ~'3 i nc(:: t \/ur )" ea r 1/ 1900 ':3 . ¡''-Io~'-J the launching used to be accomplis d, as I understand it, on a rail ::Ö;::i:3t,ô;'in, ò,nc! !ILì::.. 9ue~;:s is that ti"¡;:, (tdl S;)"::3tern 1,'3 a heck of a lot slower and a heck of a lot less efficient, and by definition can handle a lot less boats in a given time period then what we have now come to call a quick launch facility, but the bottom line is, the type of use has existed since 1906, including boat launching. A tremendous amount of the comments we've heard have related to the number of customers, how many peopl have been coming, will be coming, etc., etc. We submit, as a matter of law and practicality, an interpretation of zoning law, the number of customers, quite frankly, is not relevant here, and if the number of customers was how you deci issues like this, you would go out of business, because you would never I to see your families and go to your jobs, because every single time, at least In a preexisting nonconforming use situation, that somebody had success in thei. business and doubl their customer base, t opponents ~1e)Ye would indicð'te that t. fiG ·to corne before l"()l.\ for .J U2:;;;:' 'v' a ria nc:<:: . ':.u , 'I' or (;:< amp 1 e ,. 1 et23 F'r ,::-:te nd ~'-Je hi.i\\/() E\ h y j;; 0 the tic a lr est, a u r a II tin d , a ¡::. r e () xi::; t 1. n 9 , (10 fì eon for m i n ~1 r(::,:~taurant. The(e~3tauì-ant h¿:\::ö; a lc,u::::;/ chef. One hunch-ed ¡::H3c\ple a week come to the restaurant. The restaurant hires a great chef. Now the restaurant has 100 people a night come to it. Assuming that they don't do something by acquiring new land or something like that, that it's the same restaurant or the same ,',;ize¡·'c;;3taurar¡t, whate\/er }"()U \'Jant t.c) c:al1 it,. )-"()U clon't. ha\/e a situation where they need a Use Variance, because more customers ô ¡ c::orn i nCi to the r e23tau ì":;¡ n t . T 1"1';;\ t '~;; ju:::;t. 0 ne h/¡:)()t het i Cd I . Pick any preexisting, nonconforming use that you want, and the fact that, over time, the number of users, or the number of customers fluctuates is, Number One, completely irrelevant and, Number Two, is to be expected. Some people are more successful than others in running businesses. Now, we've also heard, again, the vast majority of comments referring to these issues about parking, traffic, meaning car traffic, also traffic, and there were a couple of comments about boat t.raffic, meaning on the lake, as being increases, and I have to drum home the fact that people are talking, opponents are talking about this in a futur t,·:: n,:;:,c', af; in t II ~;e n~;e of if }--¡e; qu i c J<: 1 au ne I"¡os 140 boa to.:; , if he s;Le,! e~::; 200 bo,3.t~:;, !;Jh i c h ~'J'::)' '/'2} no!;! 89 ' ' to 1 i In ita t 1 '0,1 1 , if t e things. These things, it's been documented in your record pr viously, through sworn affidavits, as well as numerous 1ett.<0r:3, t are all t,h(), e><,i,;:3ting lel}¿3ls ()f U23es. If t.h,:) people have said, and not ever/one has said this, by the way, but Çi:.9JI1S;;.. oppononts ha\/e ,::;aid, look" \'-J() c:ð.n 1i\/e wit,h it a:s it is no\'-J. We may not love it as it is now. We may not be crazy about it as it is now, but we can live with the level of use as it is now, and again, please understand, I recognize not everyone has said that, but some have said that. We have absolutely sta ,ln every single application mat rial, and every single verbal presentation, that we will not xce the existing levGls of use. <;:,0 )iOU're not 90ing to i'¡,D\/C liIe,( traffic on Cleverdale Road. You're not going to have more cars parked at the Mooring Post. You're not 90ing to have the dangers that a number of people have spoken about. Now if they feel those dangers exist already, and :,,;OI1'le pe;oplc (Jo, that's a differ,ent issue. Our statement on t.hat is those affect the existing level of use, but again, the number of customers is not the sis for your cision. The is for /()u r c!ec i ,;;: i () \'1 is,. hE\:;:; t. he U:è:;(,c;'¡ ne! t hi:,:, pu r PO"3-2:;;; fOì" V~ hie hit. '5 - 47 - ...-- -- being used changed from t preexisting, nonconforming use, and we submit that it has not. Just for the sake of your record, Mr. O'Connor did cite a particular case that I believe involved a gas station and, again, without getting too specific, and I'm not ,coven familiar IrJith trle case he 'refe'rred to, but the gi~;t of ~'Jhat he said was that in a similar situation, the court said, you need to have a variance, and I think he then added, correct me if I'm wrong, Mr. O'Connor, t.hat in that particular case, the court eleni,se! the \/a¡"iancø, anel I can tell you, .lne: I'm reall}" ~::;aY1n,; this for your record and your counsel, as much for your own benefit, because I'm not going to start throwing names Jnd numbers and cases at you, that clearly, if that case exists, and I have no røason to disbelieve Mr. O'Connor, that is not the only case on this topic in the State of New York, nor is it a controlling case on this topic in the State of New York. Just this evening, not after I got here, but before, I very quickly did some research and found a case in which a sand and gravel mine was allowed not only to continue, but to reconfigure and to expand, and the court said that because the property had alrea been used for a sand and gravel mining operation, that the rest of the property could be usød as well, and again, that's not even what we're talking about here, but that's one case. There's another case involving a nursery. meaning not a place for little children, but trees, a garden nursery. The same issue. Clearl)' there are numerous cases that say, if your use remains the same, even if you were expanding it, you don't need a Use Variance because it's the same use. By the way, some of these cases did find needed an Area Variance. I think the most important issue, lC;(;ii3.ll}i, that came up, in t.he opponent's pì"esentation, in c·ur mind, was this issue about Building 11, and I think that Mr. Car'./in in particular, r)ut other Board rnernbers as I.--Je11, see)o¡·.cd very concerned about the issue of Building 11. Our position ut Building 11 is as was stated earlier, and thank you for allowing me to interject at that time. I think it did help the proceeding go a little more smoothly, but lets put this 1n a perspective anyway. Mr. O'Connor has indicat that accepted Mr. McCormack's numbers. Mr. McCormack's numbers say that the square footage to be removed is 22,120 feet. M¡. McCormack's also found that Building 11 is 382 square feet. Just lets, for the sake of argument, lets take Building 11 out of t calculation we give credit for. Lets subtract the 382 from t 22,120. If you do that, you get 21,738 square feet to be removed. You might say that that's a number that Mr. O'Connol and I would agrøe on. If you take out Building 11 from the calculation, if we're accepting Mr. McCormack's numbers, t t leaves 21,738 square feet. The new proposed buildings are 21,828 square feet. The difference between those two numbers is 90 square feet. We believe that Mr. Martin's døcision was correct in almost all respects, and one of the ways we believe t ision wa~3 CO¡"ì"ect \'~a~;:; in includin';i Buildin';i 11 1n the calculation, but the differønce is only 90 square feet. If t Board, when you've reached a decision, feels that the Building 11 issue is a particularly difficult issue, and I recognize the difficulty of that issue. I do understand (lost word) concern, and I think some of the other Board members share in it as well, you, c;,;r:::"I"es;sed it the be~,;t, I thought. ~,Je are I.--Jillin:;'1 ti),I"1('" Brock is willing to, reduce the square footage of one of the buildings, simply by narrowing it by one foot, and what I'm not 901ng to tolerate very passively is, yelling and screaming f¡om opponents that, that it's a whole new application, because all ,"e'r2 talking abi)ut is litc:.rall)" taking one of t.he buile:inGc:; '},\Id reducing its width by one foot, and if we do that, that's building that's 102 feet long. We would reduce t squar footage by 102 square feet, more than accommodating the 90 square foot difference between what I just described as the number, if you take out Building 11, and the number of the propo new bu i 1. (I i ng~;;; . So af;; f aì" a~:; ,...¡e' r e con(;:(:3,- ned, tha t V~()u I ei cc,mp I ete 1)' eliminate this Building 11 issue from the difficulty of your isian, if t.hat is, in fact, a difficult part of your" decisi0rl~ Now, on the quick launch issue, again, that was one of t main - 48 - ',,--- -' tc)pic:s, I th()U9ht., t.hat ~'~d heard ,,1bout, quic'k launchinG. Li many ot things 1n this business evolution, in many different !)u::;.in';:~::;s(,<;;, includirL,; 'thc; businec:;~::: I'm in ,,\nel the bU~3ine:sc3i:?c:; thi3t you all a,'e iI" things change with time. I'm not much of a motor t per:;,::orl, ¡::;,c(:ë;;onally, L)ut as I under2;tand it, quick la,uncf',ing I;J8:;':,: (lot a I',ot i:ë::~:;u,,:'3 in 1')06, or 1(;,110o( 1916 C)i 1926. HS I underst.and it, quick launching was not a defined term, in this zoning law or in other ordinances, in years past. As I understi3nd it, quick launchinG, and I think Ms. Poland testifi to this, was not a requirement of a Lake George Park Commission per rn i t v,Jhe nit was; ::3ta r t ,) t the t100r i n9 POS3t t1i11 i na, ¿;;\ nei I lieve 's 100 percent correct in that respect, from my own xperlenclng representin9 clients fore the La Geofge Park COilll'fli:3sic;'(I, Gui,.;.:k l,a,uncrli ng 1.:3 a forln (,f t launchi rìg. The rail C3',/~3tem iS3 a form of boat l¿lunchirlg. Focu:::; ()ìi the law, use of land for a purpose. Has the use of land, is the land now being used fOf a new purpose? rhe answer is no. All the purposes for which it's n used SInce 1906 are the samc purposes for which the use will continue, and by the way, the use continues as we sit here now. Obviously, there are boats being stored at the Mooring Post right now. So, again, you know, the quick launch issue is one that has to viewed in the context evolution of business, evolution of the very concept of quick launc;I''',in9. 1'1r. W·""st, r')I~~'res;;E,ntirì,g a :]i'OUP I'm riot f¿¡iTliliar IrJith, but I lieve it was, I was hopi~g it had an acronym to it, but I t.1", ink i t 1;1 ð ~:; j u s;;t C C C . I 'rn rl ot ~:; u,r '2, i:::· uti n ¿¡ n i e \I e nt, a in (1 n g h i ~,; cornrne rJt:.s, he i ricH ca ted t Iv" t the I_.':j kc? (31.201 gc F'¿;I r I:, C:omln i ss i.;) \1, 1 n J.982,. ye-Cjuir.:cd, or t.his3 "Id:::: ¡",is,; exact ¡::::,I'lra::::;e "3 d·stail cie~::;cr ipt ion ()'f act. i '.j i t ie~ë; i.':I t a IM}r i na" when mar i. na~;:;re;J i :stc'r fOl' Lake George Pa1-k Commission permits. Mr. West was not here, as fa1' a~3 I 1<,n()vJ, at thc' prc.'\iiou:::: meeti n:;;:::; uf thic:: Boarcl a!)()ut t.hi~:; application, but I have told this Board before, and I stand by this. A,gain, my experience representing a number of commercial marina owners before t La Geor;Je Park Commission, that statement is simply incorrect, and in fact, the La Geor,ge Park Cornlni~3sion, in 1982, t app.licEJ.tion i::'roce~::;s v~a~;; rnuc!'¡ IIK>r similar to taking a piece of paper, like writing t.his on the back of a napkin, figuratively speaking, and ribing only what was on 1:1'18 ',Jat·sr, arid th,en they issued you a ¡:;.er¡nit. To chara,cter ize the Lake George Park Commission permitting process in 1982, as required a detailed description, and then to ascribe illegality to the quick launching because it was not t.hat way in 1982, is, I think, grossly misleading. In fact, I think the Park Commission it:::,·:;lf ha:;3 taken t.he 1:::'0~;3itiorl here that quick l,;)unchini;i ha~:: t.';3kl:3)"1 ¡:).l.a(;e at thi~,,; ¡::'I'ope'(t';l for c;;c) long that i t '~:; a grancifathf,:reci u~:)c ,. althou,gh t Park Commission not agree, necessarily, with what the level of numbers were. That's an issue that will olved elsewhere. The only other point Mr West rai that e!Ld bedr, I tl'lought, on thÜ:; Ü3f:;UC', 01 c()uld bea',' on tiLL:; Ü3~::;U;;" but I want to refute, is the notion about 5EQRA, the Stat Environmental Quality Review Act. That clearly is not what's on t,hc' tElb I e fore "/()u tocla¡'. 1"1e ':;:: tr'l i n;:.J to get/()u to sOinehc'l;~ start invoking the SEQRA process w n we're onli at the appeal ::;I::.aue . T I~I':;¡ t. ',::; ani ssue t. ha t :;~.i 11 be d i :::;cus~;;;ee: if .';HiC! w he; n there's a variance pr ing, not at this t.ima, and please, Board members, interrupt me if you have any questions or comments about anithing I'm saying. For example, if iOU think SEQRA's relevant now, I'd like to explore that in more detail, but I can tell you, as d matter of law, it's not. I guess, unless tic are any questions, I would like to wrap up, again, focusing on t.I"lc laga,l i:3~;ue, which I ti,ink I/~'~ dUf·eed is: t ,:only' ls::su,e before you. Mr. O'Connor made a st tement, now, literally, several 1'¡our::::; ago, and I don't !"·,i'IOI"J 'If YC)I,) cau91"lt it, but 1"lr. O'Connor stated that he believes that Professor Anderson, who I believe is a law professor at Syracuse University Law School, is the leading aut.hority in New York on Planning and Zoning law. Do you recall, have you all heard of Pr Anderson and his treatise, "Anderson on Zoning"? in, you recall Mr. O'Connor making that statement that he's a leading authoriti, a few hours ago? 1"iere'~3 what P1"0 (~1ndeì':c::()n :;:;3/" E¡!)C'Ut :s:itu,3tion:c:: like? thi::::, - 49 - ,,-' --- 2nd part of what he says, ~> t wsy, as well as 8V6¡-ythir¡g els6 I'm saYlng here, is very unpopular with the people in this room, .3nd I can't 'really' apologize for that, because 1¡,Jr'lat I'm ~:,3yin9 is what I believe to be the State of New York law, and, obviously, this is not a popularity contest. We didn't brin9 our list of supporters to take the stand, and you're, obviously, going to view this objectively, fairly, rationally, and all that, and one thing that Professor Anderson says I think will be particular unpopu.lar IrJi th t.he oppon¿,nt:=; in this room, !:::,ut it ':3 ['lis IrJords, not ¡nino, anci thi~3, again, i23 in the conte~·:t of" if IOU aì-e incroasing your use, which we maintain we're not, okay, and W2 acknowl there's n some fluctuation in the number users, but as far as the physical facilities, we're actually reducins our square footage, and, again, I think the issue of height 15 not what's relevant to your termination on the Use Varianc Issue. There IS, certainly, authority to indicate that additional height does not require a variance, but I think that's sav for a different discussion, and I'll make that point In much more cle:tail dUì-ing that dÜ:;c'u~;;:3io\ì. I'm no~'~ quotin:;¡ fì'C'i'i: Professo'( Ander~:;on's book "¡';n(Jer~:;on on i"'1e~,J Yo'rk Zon,in:~;" "(,ii increase, sometimes referred to as a more increase, in the volume or intensity of a nonconforming use is not a change of use. This rule", and believo me, this next sentence is not mine, nor is anything else I'm reading, "This rule is foU,oIrJ'2;d, notwithstanding that the increase in volume renders the use more obnoxious to its neighbors. Even an Increase in volume accompanied by some change in the nature of the use is not regarded as a change of use. Increase in the volume of business t.ran:sact,aci by a nO\ì'::onfc)l-min'~:; business", anc! this get,::; b¿:~ck to the early issue I mentioned about, for example, nonconforming restaurant, "An increase in the volume of business transacted by a nonconforming business is held not to constitute a change of use", and just to editorialize, for a second, on what he's saying, that seems very logical to me, because again, you don't rule on whether a use is changing by how many users there are, how filany cust001BTS there afe~ The question 18, is t:l0 fundamental use changing. Here's an interesting point he ma "Change from seasonal to year around use of a building is not r(é";arc!eci a~3 a chan~;ìô of a nonconfc;¡-ming use", and again, VJe'ì'e flot doing that, but we have rd some testimony about tIle fact that the mannôr in which our use is bôing conductod is a little bit different in the summer than in the winter. I thought that comment made a lot of sense. Thô mannôr in which our usô will b COfiducted i:::; sornei~Jhat diff",,,r'2nt in the summer versus the ~-.ji nt'2'r " P1-ofessor Anderson says "Even if you were changir¡g fr()m seasoflal to year )-ound use' , in t!le case 11e~s ,·efe\M,"irlg to~ t1181-2 was a seasonal use that wasn't used at all year round, and then was started to be used year round, not regarded as change of a nonconforming use. This goôs on and on and on, but I think those are the salient points. The issue before you, right now, is one and one issue only, was Jim Martin right in determining that we don't need a Use variance here? The basis for his determination is, the property use is not changing. The usô, since 1906, has been as a commercial marina offering a serIes of commercial mal-ina uses. The law says that a use variance is use of a land, well, authorization by the ZBA, for use of a land for a purpose which is otherwise not allowed or is prohibited by applicabl zoning regulations. I didn't say this earlier, but I suppose I should, at least for t.he record. The reason this use is allowed is not because it's one of the permitted uses of the zoning law, but because, I did say this, bôcause it's a preexisting, nonconforming use. So we fit within the language of, it 1S allowed. It's allowed as a preôxisting, nonconforming use. We don't fall within the definition of Use Variance, and now, lets put my lawyer hat aside and conclude, just look at this ill common sense. Practicality. A Use Variance is when you change a use, The use of this property is not changing. There may be some ebonflow of, are therô more quick launch customers or less quick launch customers than when t polands had it, then when the i'1endersolls had it. [;Je do happen to ha\/e some inforrili:;t,i·;)n t·:) - 50 - ',--, "-' prove to you that we're not increasing the number of users, over \'Jh,3 t tvlr. [j( 08 k h,3~s hac! ,. elu r i n~:) h i ~;:; t. nu r e ,:L:, ')\<J \V,;n-, L,u t. \:" bott()IT\ li1'I';::,. ,3~:; I'.......c ju:,;;t read t.o '>'ou, is t. t that'~;:; riot t is Fo)" cisior¡, -t rlu¡nb01~ o"f cUStOlTI6)NS, and logic dicta"tes t t shouldn't be the basis for a ision. T is fOI a clslon is, Is it a different animal? Is it a dif rent use? ~:;ncl we submit. that. it'c:; clearl/ not. a cliff rc:-nt u:;:;c,. dne:: ther ore Mr. Martin's determination that it does not require a Use Variance 1S clearly correct, whether it's popular or otherwise. Any questions? Thank you. MR. TURNER-I'm going to give you one time only, t and that ':::: it. bot.h (,f /c,u, MR. O'CONNOR-First, I"d Ii to, for t record, ma a couple of po i n t.~3, :)::3 to i, s~::;ue:=; t ha '1::, \>.,)eì";) i.:>ì" ()ug I,t up b)' ot. he'( f L;lu res, a ne:! rna')i It J,.J,:)uld be tter ''::J>T'anded on jUf,,;t !yr i,afl/. [..J n ~,Je 'ro¿; talking about volume and we're talking about usage, Mrs. Poland, is still in the room, I went back and asked her, of those 50 ~uick launch type customers that they had during her '71 to '85, some 14 years of operation, a period that would be long past 18 mont.hs, as far as abandonment of any no~conforming rights that Mr. Henderson might have had or might not have had, although he claims no quick launch cust.omers. Of those 50 customers, her average usage on the weekend, weather being good, was 25 to 30, as opp t.o what is ing propo today, and how it's kept there, if it is kept there, I don't know, but it's a drastic change in volume, and I think it should be part of your record. T!",e ot (que::sti()n that I tl',i nk ¡¡¿'ed",; to addre;ss, and Sue brought up a comment, or made a comment, and I didn't understand this, but as I understand it, your understanding of the application is that the applicant intends to use t.he middle ai2::1e:,:; of tJI bu,ilcJiíi9s;th,st he's; c:on::õ:;!:ructlrl:S¡ for IlJint,er :3tO(';;:'Gie, as ~<Ji::;ll a~;3 u:c;inu t:",,3' slot,:;;;. I unclerc3tO()C: cliffc:',"::;;rlt. ¡:'¡ffì I ¡¡,J'( c> fì :;'1'? MR. SCHACHNER-Do ~IJ ha t ~=;()f.2\le~·r:> t () you 1¡~3. nt us to v~i th thi::- ls~:;ue ("la,r i f'/ that? beforc: )'ou. It has not -",i ng, MR. O'CONNOR-I think it has to do with volume. riP. SCH(';CI'lr\IER"'It does h.'.'.\\/!3' to e\o wit:"j volume, and \/oluml:? has: \lothi rlU to ~>.,).i t.1t the issue befor/(:,u. MR. O'CONNOR-Do you know if t applicant's going to use t.hat t, thi:;t ,,(e;:., for ~;;tord!;iiD dUì'i\ì;> thò" v.Jintcì"? ¡Vly calc,ulatlon 1:::; you'1'e talkll'"lg abou't arlothol- 60, 70 1)oats in t l-e~ T~1at's 55 feet by 102 feet long in each building. We ~ot into a great discussion of volume before. If you're talking about that, you're talking about 120 in the racks. You're talking about Building 1. and BI.,d.ldin9 2, l'JI",ic;I', ca,n aCC';)ìTIi'ílodate:35 boatc::. Tl'ie Pì"()F'OSt¡J. before '/'ou '( i!;;;ht n()I/J i::;; for 21:3 bo,'3tc:;, ever') l¡.Ji nteì' storage, without any exterior winter storage. I'm presuming that there's no exterior winter storage, and that may be a wrong presumption. We've had figures on this thing that have gone in every different direction, nd I'm not trying to play games with figures, but I don't think the 80ard has really a clear picture. It didn"t have a cleaì pict.ure of the square footage of the buildings, ,3n(1 I don't think it doc:;:; ¿¡:;:; to this \Io.l.urne. The n,a>:t point I would make is the question of the pTec nt that you're t.alking. I think /C)U ,)tf',<::, P(}O¡:::;,le li:::.:tenirI9... I knol.--J this ha::; b;)e \"1 :30[ne co neer n abe,u t t. C¿¡:;;L,H<Ja/ t"'!,"j r i na . T her" e '~; ::;Ollle concern about Dunham's Bay Marina, and there's some concern about Harris Bay. Harris Bay you turned down a Use Variance for even expansion of a deck to accommodate your existing customers, and y()urequi( d U~3E? 'v'ar .ianc fe'ì' ti"¡.'3t Pì"opos:ed e:~:'ì::;·¿,n~3.ion, '-{c,u quote Anderson. I've got about three pages of Anderson. It's a 900d, 9f:.nüI",3.1 thesi~3, !::;.ut. )"OU h.'.'.\ve t.o real izc that {~nder::;:;on i~s L book: t t 3\1<::'rybod/ b¡, their ¡::(oblen,~s in, and t n ~'J ri t draft t ir Ordinance, t y aft their Ordinance to ;>et - 51 ~ ~ awa)1 from t problems tIle court said, t loc21 ordinance didn't provide for this, so we're not going to something about it. I differ greatly with Mark's characterization of what Jim Martin decided that a Use Variance IrJas:; not necessary. t:1.l:. understa,ndi ng is that )iOU decided that U:::;e Variance is not necessary because you saw no expansion, not because you saw the same use there. You went through great detail trying to calculate out what square footage was, what boats were. I think the Board, here, has set a very clear precedent that >,ou need a U::;:;e Variance in our TOI,,¡n, to expancJ a nonconforming use. I don't think there's any issue about that. We even have a particular Section in the Ordinance. The word l¿ "e~<pE:\nsion", the definit.ion (,f e::q:;'i.'3,nsion, and pi:1ì"ticularl/ ~,~he'I' you're going to create facilities to accommodate that growth. Now it would be nice to speak of the quote from Anderson, but you've got to do it in the context of our Ordinance, and I think if you do it in the context of our Ordinance, and you look at the Finition of expansion, if you look at the numbers that have been presented to you as to volume of use on that property, you've got to look at volume. You've got to look to see if t Ie's a proposed expansion. The creeping expansion is not :30Inet:"'lin9 that you ccan blese:;. '(Cìu'r·e talkin9 about a nonconforming bakery is not entitled to a variance to permit enlargement to accommodate automated equipment, notwithstanding that the now equipme.'nt v~()ulcl ¡"endi:3)" the ope¡"ation les::::; labo', intensive. I can give you two pages of quotes, now everybody has a computer and you put in the play words of the subject and the computer will give you back, I've 90t six pages of quotes in my briefcase if you want it, and this is probably the boring part of what you are goin9 to decide, but ta again, another look at what Mark proposes as being the key here, the definition, under the Town law, of zoning. He says that the Use Variance shall mean the autho'!'izatiof¡. t,Jell he,re you have the ,Ô:(pplic:ant a~;3kin9 you to allow him to build two buildin9s without a Use Variance. That's, in essence, the lS8ue. That's the authorization that 's askin9 for, for the use of land to build buildin9s on ~ parcel of land is a use of land. A use of land doesn't mean that /ou're tillin9 the} land. It cJoe:sn't mean you'r·e plant,ing C,"01:::3 on land. It means an activity that you conduct or propose on t land, and I'm sure that we can all come out with a whole line of Ci.Õ\~;;es;, use of land inc:ludes the cc)n~;3truction of buildin;)~;;;, fo¡- ,'" purpose, and I'll use his terminol09Y. All of a sudden, we get near t one! of his c!efinitions;;, he :sa/s;, fC>í a nc:~,~ PU¡"po:ö;;:-. Look at the Oì-dinance. I c:lon't see v,Jhøre it. :3i.3,/';3 for a J::!.2..\i purpose. It says, for a purpose which is otherwise not allowed or is prohibited by t.he zonin9 re9ulations. Now he says you don't. have a definition of Use Variance within t.he Ordinance, the i-:'lJ(>:""f¡chIJ'¡"V Cc>c!p l-u'l,)tif \/(.J'U lü..,~,)I,,\' ~t 17/ Q--l-'/P,( 1) Vou "1"'-'" '''''-):lflg:" tCi ~<l .......,,-" '~":-"""~"" ,- __, v.# oW. / . ~ .... .......- ;'. ..........~..... ., I . ....... :::;;}....... ~ ~- see what is a permitted use in this particular zone, and it says tl'''I,;),t no building or st'ru,cturi? of land shall hereafter ba u:se:d (:>ì' occupied, no building or structure or part thereof shall erected, moved or altered unless in conformity with the rc:gt.llati':)n2; iV3rein ~,pe,::ifieci for the districts in ~",hich it is tCi be located. In this district, I don't think anybody has contc:nd()c! th.3t. t.he e¡"(}ction c)f quic!.; launclì buile!in;¡:::; ar:: ¡:::,erîoiitt ThiDt i:s obviousl)i a nonp,::;:rillitted u.s,ç, and that '~~ "JI"I} We~1-G sayirlg you a Use Va1~ianc0. Businesses can evolve, ar~(j I would agree that bu.sinesses can expand when they evolve, but not, ac:cordin-g to our O¡"dinònce, if )/OU. n('3ed to ó.lt.er t facilities, even to the simplest of parkin9, to accommodate that growth and activity. We've handled t problem that was found when they 9ave you that case cite in Anderson. I have no ot r additional comments. MR. WEST-Thank you, Mr. Chairman. I will try and be brief. I know it's been a long evenin-g for everybody. I have four quick points to make. First of all, re9arding the Lake George permit. It's not the back of a napkin, as Mr. Schachner represents. It. was an official permit issued on DEC letterhead, with an annexed survey of the property and the docks and moorings, or wharfs, at - 52 - '--' J issue. T permit very clearly states the following, "Descripti,on of ¡V!i.Õí)-ina: Sal,::; o'¡ re,nta.1. (.\f mai'ine i:::)-oduct:':~, \'~atz:n' craft, and accommodation for 25 boats." That's what was ,'i?::;¡i:::;tei-cc! ln 1982. In 19í3e, \,¡hc'n t.h,,: ne'\..) r(3:;¡ulationsè: «,¡ere, Issued, Mr. Brock chose not to register any quick launch activities. We brought this to his attention. in 1988, whcn this 2or¡ing (::ont''j''o\/ers/ firste slJr·faci.:}d~ I;JI"'ien I~·· .is first F)fJ:)¡::'():sal ItJd.:;:'; ma He was aware of the regulations then. He hasn't register He's illegally operated, and nothing lS grandfat red. Number Two, a Use Variance is required. As Mr. o ' Co n no)- ju:;;;!: ::::ta ted, the under .1./ i ng per ITI it t u::;e of the property is residential. That's what the Code permits. Anytime )-"()U C)(,piJ nd i;:\ no ncorlfor mine:; U2è;e, ),OU ,,\ rea 11 (A,,) i rig a nonco nf or Hi i nG use in a r sidential zone. That requires a Use Variance. It's a \¡,en"/ :;:;irnple F'I i nc;iple, and 1'1)-. :-3chachneì' ':::, ar:;¡ulnent::;; \,~()ul(:: re,all>' tur['¡ t,he entire hi¿:t()r'/ of trlis Coard, a::;; I '\/e '¿\F:;.·sric,nced it, on it~;) heac::, becau2;;e it'2è; n iIli:::.. (::><perience th¿¡t e\leì'/ tirnc: a nonconforming use is proposed to be expanded, in this Town, that a Use Variance is required, not an Ar a Variance. Thirdly, this i ~::; not j¡J~;;; t .'3 n e ::..: pa n2;; i () n of the numbGr 0 f C:u2;;t.omer 2:, . r'lr . :;:.( ha,cl"'11'i r \·¡,¿'nt 1::.0 9 r (:a tIc ngt.I', '. 1'1e u:;:::ed the analogy 0 f the rc:::;;taur.,:\nt t.o :3d'/, \.¡c're ju:::::t incr a:::;in9 t,he inten:::;;it/ of t. u:::;":. Tfl(;: building~:;; th¿¡t are prc)¡::-)()s,:3d fOI tl',i::::; ¡:::·ropc:rty are grotesquc. They are significant expansions. We've quibbled about the footprint and whether or not it's bigger or larger. We think wc've established that it's bigger. That is significant, but no one an dispute the fact that the height is significantly higher than the preexisting buildings. The volume is very significantly larger than the preexisting buildings, and the parking is on the order of six to eight times greater than that which was grandfathered for this facility. All you have to do is look at t pictures that Cheryl Evans present to you of t quaint old storage sheds that I've been t.hrough on many occa,sion:;;;, l.()okinc: at (:,1"j boat.:::.: in th,'jt faci..lit/, anc: (:e,¡npaì-e those to the modern, steel pole bulldin9 that's a triple r. Thi:s L:; not 1.00 CU2;;tOfl'¡C.'n'::':; coming '1:.,.;) a re::;;tauriJnt.. Thi:-;;:; Ü;; a quai ntr'.:·'2,ta,urant going t·) a t¡' i¡::l ker, if¡oder n re~:;taur,3nt, a fast. food establishment. There is a change in t character, and the; r ''5- i :~; c 1'1 a, n g e i n t rl ¿c; ~;; i Z E;, and f ,i n.3, 11';/ , I 'rn 90 i n ::;;¡ to add 0 n other set of legal arguments that just occurrGd to me, as I was listening to Mr. Schachner's proposal, and I would direct these Lv your attorney. In looking over our notes from the 1988 meeting, and you have minutes on that meet.ing, I think you will find that Mr. Schachner and Mr. Brock came in and applied for d Use Variance. They knew that an expansion of a quick launch operat.ion and new building of the kinds that are being pr here requir a Use Variance. This Board, not t se same people, but this Board, nied a Use Variance. That raises two legal principles, Number One, and estoppel, Mr. Schachner and Mr. Brock are estopped from taking i.nconsistent positions. They admitted a Use Variance is required in 1988, and they're bound by that admission in 1995. Number Two is res judicata. This Board has already determined that a Use Va\iance is required, and that it's not appro¡::;,r L::¡t,e, that t.herc 1:;;; r.c> !v:'Hclship, anc! t.h.;it is bi n<:H 1ì,';'; upon this applicant as well. T nk you very much. MR. CARVIN-I have one more question for Mr. West.. Your organization that you represent, approximately how many residents or ïnembc:r:;;;, >"(:oU ha\/o a rnemb¡;)¡,:;::hip count, pO~;;::3ibly'? MR. WEST I'm only representing four of t nei9hbors, and we s;pecif.ica11>' :st,ructured it th.'.:1t HE\)' :,,;0 t.hat. I, iIli:::.. ~:;peakin:J v~()uld not c;.r¡:clu ani' of t.1"1(; ;:::,:;01:::-1e l',Jh·,) H¡2ì"·'ô? here toni;;¡ht from speaking. The people that I 1 epresent are Joseph Hardin, Bertha Robert.s, Fran Martin, and 8a1b and Tom Longes. We st.ructured tl'¡at ::;0 tl"¡at:, I could sl:::·c~ak tu¡¡ight on b.::;half (;:of the people wh() 9r,'::.:.n't hc,re, HO~'J many' time~;;; h.j\/c' VJe heard" fore thi~;~ 1:30a)'(:I, that when projects come up on L George, they frequent.ly come up in the winter time. The summer residents, who own property and pay ta"es in this Town very oft n can only be heard by - 53 - -- letter. I was as d members of t organization, t neighborhood organization that have opposed this project, to come up and speak on behalf of the people who could not be here tonight, and we structured it that way so that I would not int¿,rfere "'Jith the right of p,eople Ir,¡h() are ¡-"¡ere tonight to mak¿, their own presentation, because I think those are the critical presentations. MR. CARVIN-Okay, but essentially you're only speaking for t f ou ì"? MR. WEST-That's correct. 1'1':,. CIPPERLY--'(ou referred to, ln 1gee, '/()U ~:;aid "l'J.¿'" they needed something. Who were you referring to at advi that thenl pc)int? r'1f? L"JE'3T,wl'1y recollc'ction is :3c>í("cI¡Jhat 'v'agu,c, but I do r;ôc.::;;llt ~, we had a Zoning Board meeting similar to this one, that many of the very same issues were brought up, and that many of the ver)' same people who spoke in opposition to this project tonight ::::[::0 I-::-u , and so IrJhat I I,-;JouJ.d erlcou'rage you to do is to look at you ì" . MS. CIPPERLY-Did you also represent the neighborhood at that tim6'? MR. WEST-No. I represented the Lake George Association at that time, ancl I would c:nC()Uì"agc: t.hc; Board to lo()k at the minute:;:; fo,' -uxactly what was appli for, by whom, and exactly what t ision of the Board was at that time, cause even though this project has gone through a number of iterations, it was proposed one way in 1988, and we're up to the fourth proposal now, and we have Plan A, B, C, D, and now we have D, because it's C minus the one foot of building width that's been heard tonight. The concept is the same. The basic concept is the same, large, triple decker storage racks for quick launch facilities, a substantial increase in building volume, substantial increase ln the intensity and kind of use. This is exactly the type of thing tl"¡at thee legislature ifltended t.o be 'reviel,.Jec! b)i t.hi:;::; Zoniíl:; Boarc:, ,)nd th,õ; fathi:?:ró;:. ()f t.he T()\,~n \,¡ho pas.sed th(?:, Zor,'L ¡-¡'J ordinance intended to require a Use Variance. Thank you ver) mucl', . MR. SCHACHNER-Could I just make a quick comment? MR. TURNER-Quick. MR. SCHACHNER-Briefly, members the Board, and thank you verI much for your patience, Mr. O'Connor produced a new word, but I like his word, "activities". He said you have to look at the E\ctj.\/i1,;Jc;::3 involvecl in t.he u:::;e. I think it':;:; a good v~or,:::. Th,,; activit.ie~; are not changing. 1'1r. IrJest focused his cornrn;:nt:::; n the rich history of Queensbury Zoning Board isions involvinG ¿,>::pan:3ion':::~. Our po~;i.tic)n.L:::; that IrJe'r,e not, an e>~pan:~:i()n, aiie) remember that, under law, expansion does not mean if more or less customers come. The height, you know, meets the zoning r<>:::¡uirement, in tenm;; of 75 fee' :. The \¡,olume an::.:\1o:])/ abe,ut triple kers we don't think is appropriate. I know we ve mentioned to Mr. Martin before, I don't recall if we've mentioned to you all, that goods are (lost word) stored on shelves. We can reduce that to a silly comment by looking at grocery shelves in a Shop N' Save, or you can take it to a more serious leveJ., for example, it's our understanding that, what was it, snowmobiles, snowmobiles, jet skis, and things like that, I don't want to mention any particular commercial entities, but there 1S a comn1ercial entity in Queensbury that sells snowmobiles 3fld they're stacked. That doesn't make something a triple ker. Jim Martin's determinat.ion, as 1 understand it, is that, if ¡CU don't have separate floors that you can walk around on and all that, the volume is irrelevant. The parking is not increasing, - 54 - ~ -/ and tha t '~:: a íi irnpor La nt mi s;conc...,pt i (i n t ha t VJas me fit i 0 n(~d ,a.3, r 1 i. ,c: ( th;':It. I eiiel not refute t.h¿¡t I, pe\'hli::~;::, ~3¡·íoulc: \/e refut lJ were as by the Town Planning and Zonin8 Staff to show that t site can accommodate sufficient parking to meet the new parking requirements of the Zoning O\dinance, but t re's nothing new and differ nt proposed, in terms of the area available for parking, t.han has n available over t years, and I should have mentioned that earlier, and the very last point I want to mak , Mr" West is to be credited for making a very creative argument. He threw out, intentionally, and I understand why, threw out some l.c)gal rnumbo ju.rrd:)(), but thc; basic notion's sU:C;YJe::;;ti ng I::;; that. we're doing the same thing, or something so close to th same as we did in 1988 that., legally, we can't go forward with that. I think he's cither not aware of or does not appreciate a vcry ::;iuriificilfit furleiarnc;nta,.1. diffi;;renc: Iì"1 198í3" ["Ii'·. erock, s;()ught this Board's permission for a Us Variance auss the proposed bu i 1 d i n',~:: , I\!urnber 0 ne , I a r gc}r, ['!umbi':) r TVJo, to acc omrnoda t.e rnC)ì" e ts, but Number Three, most significantly, was going to include a pOìtion of his property as what's corne to known as t reSl ntial lot. So, he was looking to put a portion of the building on the residential lot, and it was the then Town Zoning Staff' d termination that requires a Use Variance. c1 arl , that is not at all w t we're proposing here. Total apples and oranges, and for that reason, a a matter of law, it's 2 ornplet 1y (Ji'ffereTlt si-tua'tion~ arId t:lat's al]. I )~ðall/ to :¿;,;,¡y. l,Jc: ~'J()u.lci just request that/i)lJ ide thi:;:; i:::;~:;;uc, arid thi,;:; issue, trying to keep as focused as possible on Just the issue of the Use Variance. Thank you very much for your patience. MR. CARVIN-I just have kind of a quick question. I'd like to return to your restaurant. I think it was a very appropriate analogy, and I don't think there's anybody here that disputes the fact that if we have a successful cook, and there's hundreds and hundr of people lining up, that, as long as the; can get them through t r, we don't have a problem, but if you will, I'd 1i ma this a one story restaurant, and I guess m; question to;:) y()U VJ,:)ulcl be, if )'oU i to build tJ. :::;econo:! :::;to¡,)" v~oulcl that an xpansion, in your opinion? MR. SCHACHNER-Are we assuming a preexistin;J, nonconforming .j.. ¡::~ ::E; t, ,:t I..)¡'" d. n t ~ .3.1 ~.:; 0 "? MR. CARVIN Yes. I mean, I'm using your analogy. You said it was a p¡,:::e;<i2:;t.in;¡" nonconforlrd,flG. TI'H: only" t,hin:g t.h.3t I '[I\. cl(:,in:~) i I 'I\.i rnakin'::~:¡ it ,:)r\ii:; :::;t·:)r)/, ancl n()l"¡ )'()U v,,¡a¡¡t tCJ build a tv~o ~::;tO\")'. I'm. SC!Ü:;Cf"H-Œ:G~"T t's fin,s,. I'rn jU:õ:;t tr/in9 t.o r.:ut it into cont.ext. I'm :going to answer, my understanding of New York State la~'.), -3, nd the ca;::;es I' \.l:b r IrJC,U 1 d i ndi cat,::' that addi n9 a :seco nd story certainly not require a Use Variance, first of all, clear, Cì")sti.':i.l clea\", ok;,'!.), ancl t,he:re ':3 an i~3sue a:,:; tCi ~"Jhether it requires an Area Variance, and, in fact, I have a second story cass, literally a second story case. It was not a restaurant. I don't r the use, but I can quote to you from the second st.ory case. so that I don't have: to rna up my answer. I'll bring d legal answer. Let me find m; second story case. The ~:>;;'cond 231:..or> (;a:::;e l~:3 a faiì'.l>' r",;cent one. I \¡'JCHì't:]O into much mumbo Jumbo, but it was cided, in 1993, that's pretty darn recent., under the same principles of New York State law, and I'll quote \/erbatirn f\'om it. "B·bcaU::::;E) th,::;: adcJition of,3, :3·econd ::;;to','/ would not enlarge the: footprint 01" outline of the structure:, the proposed construction would not increase the structure's nonconforrni t>" . I"c·~.,,¡ ,l(H[ fila)'" lìd",/e a tou:;¡her cE.I::;;e to bi';' mac!e " in Ž'OU.··¡·· 1'''ly'~)ot t".ical, ¡V¡r.. C:a.-r\/iri, be:ca.u.::~;¿:', as 1. t..J.ri(1(~r2;td.n(i it, i.r¡ that situation, Mr. Martin, as Zonin9 Administrator, would find that If )OU',",?; adding :stori,as ()rl, I t,hink h,¿ t,.Jould tc'rrnirie, th.:lt if >()lJ'(i';; acidinr;¡ ;:::;tori,:::::; ':)ì'i, t.hat that rnight be an ,a>~i::;.an:::;i()n, bl,)t t:"lat's, I¡,JC,,'!,,:; ¡¡C,t uddin:;) :::;tciric::; on, and s clearly rnac!c) t,he di:?terfliinat:L()n th,:;¡t the,;:;(';; dc) not~:,¡ud.lify, l~3 ::::tor ies tr ioht IrJord, Jilll, or le\./(Od::::? - 55 - -- -- 1\1F~" ~1/;¡:;~TI¡\t·,-"-y(;:::;s,, I",Je ¿~ cJðf.I.n.it~.ion (j"f 11:;S;t()'(' It fr()rn York Stat Building Code. I.. ,~ ¡, ¿I.'J MR. SCHACHNER-Yes, and he's clearly made the determination that this, that the proposed tier, stacking, if you will, does not constitute additional stories that need to be classified as such. MR. CARVIN-Yes, but the building will be larger. So it would be an extension, if we use that term. MR. SCHACHNER-No, I don't agree with that. MR. CARVIN-It's not extending upwards? i"1R. :3Cf1(iCHt',1ER....y,D:::;, the buildirlsl i~s e)<t~,:;'nding u¡::'IrJards;" ì'e~s, I ,'l:;;;'ree v~i th that. Ol<,a/, but i30ai n, my pO~;:ii tion is t:'.at that not require a Use Variance, clearly, and that's the issue before you now, and to use the analogy of the stacking of the snowmobiles or whatever other types of goods, I don't think anyone, when a commercial entity starts stacking its commercial goods, takes the position that, by virtue of that, they're adding stories, or for that matter, expandino upward. MR. CARVIN-Okay. So your opinion would be that the second stor would not be an expansion? MR. SCHACHNER-No. I didn't say that, Mr. Carvin. In fact. I think I directly and specifically stated that that might considered an expansion. I think what I said, very specifically, was that that clearly did not require a Use Variance, and that tl"' .:}Jt..':3 'th,s Issu,·3 l)(i~f(,)'re '/()u." MR. CARVIN-Well, no, my question that an expansion, not whether it That's not my question. to you is, would you consi would require a Use Variance? MR. SCHACHNER-Okay. I guess I'm not letting you cross as effectively as you wish to. In some context, it considered an expansion and in some it would not. c~xaínl ne l,\I()lJ 1 cJ. rn,¿: t1F~. CARVIN-I'~o, not in "some" conte:;.(t, 1 n your c()nte::<t. MR. SCHACHNER-In the context of requiring a Use Variance, no. MR. CARVIN-In the context of t.his hypothetical situation. MR. SCHACHNER-In the context of requiring a Use Variance, no. In t context of, are additional building materials needed to build up the second story of your restaurant, yes. MR. CARVIN-It would be an expansion? MF;:. SCHACI'-INER'''In that conte:;..:t.,;les, and in n't know how else to answer your question. cLifficult. !1lL cont(,x t, no. I don't ITie,':\n to I MR. C:,(.'\RVIN-'Okay'. MR. SCHACHNER-Thank you. Please decide, is our only ot r pitch, and thank you for your patience. MR. TURNER-What do you have that's new? MR. O'CONNOR-I don't. mean to get into it, but here's my SiX pages of favorable citing, and I don't mean to mislead you, okay, but this was a case that involved boats in a slip that said that t common law rule allowing increase in volume can be overwritten by the zoning statute limiting expansion. You've got to look at our Ordinance, not at the generalities of what we're talking about. - 56 - '--- ---.J MR. SCHACHNER-Could I just say, I agree with that principle. "1R. O'CCJI"n"jOP··(¡nd I t "'¡ink VJe can :;:;ubmit to get into what prior rulings there 1, n t ¡ ¡,' I tin G; 0 u r Or din a nee . I t i'l in!",: ~ L. ~;;; f ,;}:I c e, a n c! T do 1'1 ' t t hill !': )" 0 u h a \i e 1"2sL~1't that you should be loo~~ing for b '¡' } , If yo 1..1 rea II ~/ If) a nt are, if you have a problem ()lJ.I'· C)r(Jit1,3ríC¿~ i.:5~ cliz~~,a.r ()f¡ t.::.:> ~J() out:si ()f it fc)¡- t 1',Ils:, T!.JF:/',!ECp..(:¡ll 'i" ight . Do /,)U t finitir))"'¡ ()n ~;3t,()r'i~:~::,:; ? I'm" ~1{-\F:TH\I..":::,tc)ri'G~s"? '{¿é'S. (i ::stor/, which lS tween one floor level and the or t r See Section 70S. iF and G State Building Code. 'I ì~:~ I~) () _'IN t. ion next highc'ì of t.hi~s Co ()f a bui ldi n9 floor le\/,,,l 1"~'9I¡J Yor k i'1R. TURI"~EF~"Okay. The public heati)iC! 1:3 cl PUBLIC HEARING CLOSED MR. TURNER-O~ay. Corrospondenc CORRESPONDENCE i"1R. THOr'1AS'''(i letter dated D.?;ce'rnbc'r l't, 1994, "D,ear i'i·embers of t Zc)nin:;¡ Eoard ()'f ¡ip¡::;.eals; For t ~;ummer mont. of 197(3 until 1ge3, I I¡,Jas (¿-¡llplo'/ee! 2],t t I'ioc.rin:g Po::;:;t 1'1ar1na. DurinG; that tlmo frame one of my responsibilities was to assist drivers in loa,dins¡ and uTlloadins¡ quick lauTich boats. 8/ 1980, my rr1òifl responsibility had shift to being a driver of the quick launch equipment. I spent. much of my / working the service. DurIng í\ì) emplo)'r:¡c,nt, the tiloor i 1'1::';: p{):;;t hc:·u no mote tl''¡(~n '::3 total ()f 40 ts;, for qu,ick lauflcr, PUI"pc,;;:.e:,-s, in the barn~s ~'Jhich hÒ\ie r·eC{3nt.l)" '3n '(az ~3in(:erel>",; l,Jilliarn (~. l,Jet. r ¡,; lett.i::r datc;d DC}Cerflber 22, 19')4 "De,3,r Cha:i..rman Turner and Zoning Board members, T La George Association (LGA) urges the Zoning 80ard of Appeals to reconsider the Town's most recent decision that E\ u:;;;c, 'v'arlance is not vJarranted for the nGV, t1oorin;,:;¡ p()~:;t Marina project. It is t LGA's position a use variance is not () n 1/ r Gqu i, .j fo,' t PI' ,:,,:3;; nt 1:::'10 je,::;t [:;,u t fOì" .') ny" Pì' oject ot her tha,n recorlcst,ru,cting TI,;,'I;,J non"·corlforrl1i)lg :;;:tructur¿s~;; of th,e sarne dimensions on the footprint of the original buildings. Anything else is a chanG;e iT! the non-conformin9 use structures and, by rc:gulation, n:;;qu:¡,ì·,e~;:; ,3 u~:;;e './.:.1r ii"J.nc;?:. The T,;)~'~n 's; ordinance iC3 a lot like many other such ordinances. It sets up special districts for areas that need extra protection from certain elopment, like the waterfront residential district where the Mooring Post Marina is located. The ordinance also protects non- conformins¡ structures and non-conforming uses. It protects non- coryf,:)',"min,;: :;::tYUCtl!ì"ØS: b) allc,~,~ins: them te' bs ì"OI::::,·::,ir ."fle! alteì" i;¡hen I¡", ed to prot.e:ct su'rrouf¡cJin9 ncighborhood~3 frorn deca)/. ifieally, sections of Article XI spell out allowances given by the town to non-conformins¡ structures. It allows them to be re:¡::'al'C ,. alt.c:rc,d, etc., pr';:)'v'idec! the prope:,r pi::;ì'rnitc:; are obtiDincd. ¡é~,nd, if fIOi'I""cOrlforrni'IS) t,ructures ar·¿ ::;:;tr by af¡ ,)ct be)"ond ilidn "c; (¡flt)'()}" t ,;,;t.)'uctur¡.~::;:; arc a.1I()l'-Jed tC) rapl ",)1]" t,) ti'''¡-Gir ori;:'1inal dirn;Dn::sion::,;, and ()nly l~ithin COr" t <3, i n t i rn:; .1 i in i t ~::; . l,J hi;), t a !) .;) u trio n (, .;) n f i) l' rn i n :;j ;;; t rue t ur e ::;; t hat also house non-conforming uses, such as the case of the Moorins¡ Post Marina facility? What specifically does the Town's zoning ordinanc(?: sail about thi¿:;' Doc'::':n't this -'¿;ven ínore ::;t..rongly suggest a use variance is requir According to the Town's zoning ordinance, replacement of non-conforming structures used 'f ()'ì n() n w^"c:() n f () r In i rl~J U::;:;Cj:3 i ~;~; ì"1() t ti 11 ~)~¡,Je.,;::J .. Ro ~1.1 ¿.t c:orne: '() t () f rl() n .~~ conforming uses structures is allowed only w n the destruction t t occ:urT i:::: be/onc: the cont';01 of I,¡,\arl, i)y ì:::.:t,n, by fire:, b~," v.Ji nd , ¿.tc . (;¡ flyt!"¡i Tl:a ol:,l,er t ha n v.Jha t t 7:.0 ni n9 or di na nee s:pe>:.::ific,ally allo[,;)~';; rec¡uire:::; a U~3e \/arlance by t,hc' Zoning 130ard. Nowhere in the Town's zoning ordinance does it state that non- conforming structures u for non-conforming uses are allowed to b::, d,;",'iTioli::,::hed :3n(lt n '¡' ilt in ,êi r2:Jconfi;:,;u,ration diff(!)r,z:nt -" E.7 - ...-' ~ t. n t ()'ï" i ~~J i 1'\<3.1 n() n'w c:() n f () '( ïn i r¡~;;: :~:: t '( U c: tu r ~:;,~~~; " T h~0 ()( (J.i f¡.::;, "¡"¡(, .1..::;;'; clear. Simply, non-conforming structures can only rebu It using the original footprint. Non-conforming structures hous ng non-conforming uses are not granted the same privilege. Armed with the above information, the LGA urges the Zoning Board to requlre a use variance for project "c" of the Mooring Post and grant such variance based only on what is legitimately grandfathered. Thank you in advance for your consideration on this matter. Respectfully, Michael A. Siegel Chairman - Land 1):::;,2; C:ornrnittec) r:al:.r'/'/ (,. Vilma', Di¡·ector Land !.):",3" MR. TURNER-All right. What's YOU1 pleasure? The hour 1S late. MR. THOMAS-We've got two more appeals to here, too. MR. TURNER-I know. I don't think we should vote on it tonight, at all. I think we've got some information to review that might be new information. Until we have a chance to review that, I don't t,hink ~..¡e :::;}-",ould exercisE:, a 'v'otD on it at all. r;S a, ma,ttei" of fi.'.Ict, one Boarc:! member bein:;¡ nt, I v-J()ulc: like t() ha',¡'c 1:,:'; i/Jhole Board here: to \lote on th(; i:::;::;u,~'.. That '~:; i:!lL speel. MR. THOMAS-I'll go along with that. MR. KARPELES-Yes. I a.:0"( ee If MR. TURNER-So, when can we this y·oom next? Does a11yone .110W"? MS. CIPPERLY-The 18th is our. MR. TURNER-Our regular it's too extensive. It meDting, yes, but looking at Just won't, it won't fit in. ·t r'I'¿~ agE! nd.3. ~ MS. CIPPERLY-We can check for on t,J,õ;d fie>:t GJedn·c,sday. I"" 'C' . I..... ........ u. ~~ II a 11 Y' 0 I::> c.' f¡ MR. TURNER-All right. MS. CIPPERLY-Are you planning t,on .l.9ht? .t- ,"" 1.....1.,.) do the other tJrJ() 031::: MR. TURNER-It's allover tonight. It's 12 o'clock. MR. FORD-Will the public session be re-opened? ~m. TURNER,·Not for this Section. The other tlrJO, yes. If H,;~~ cafi com to a decision on this Appeal within a short time, at t t next meeting, then He will entertain the next Appeal. MR. MARTIN-Ted, just from a loglstlcal standpoint, have some input from the parties involv notices to send out for two Appeals where yet been heard. Is there any way we can l,}:a"'jc~ them open? if I (::()u.1 c: We've got a lot of the hearings have not open those tonight and MR. SCHACHNER-Yes. Why don't we open them and continue them? MR. TURNER-That's no problem. We can do that. MR. MARTIN-Otherwise, we have to re-notice. MR. TURNER-I know. You have to advertise it agaln, sure. We're gOlng to open the hearings on the two other Appeals, and He're ,:;)(}in:;: to PO::3tpon,: them until the continuance of the n(?,){t IT\i:;(,:ting, after we vote on the Appeal that we Just heard. MR. SCHACHNER-And just call it tha.t. ':=:; Ol"'ð.>".. "adj()ur n" i n~,;;teacl ·;yf PO~3tpone, i 'f MR. TURNER-We have to determine when we everybody will be notified, somehow. can get this room. T How do you propose n to - 58 - ",,--, ¡ ----- ......., not ,1, f)/ t he:rn? MS. CIPPERLY-We can put a press release in t.he paper, but we have four pages of people to mail noticcs out to. MR. SCHACHNER-Can't we pick a date, subject to change? In oth ( wor . that way the people herc would all know, unless you a¡ told differ ntly. In addition, put it 1n t.he papel 1'1f:;:. TI.JRJ',!EP T \îi?><t 1 ic::; Jc,hn Marina. He's appealing Jim's decision \I() 1:. , and the othc'," ¡t:,ppi?al 1:;) appealing that d bLl'ff )A' zor"¡e 18 r'18e ¡',\ . Cr oc k IVlo() r i ne;; F'o:::, t that an Area Variance is Cheryl Evans, and she's MR. O'CONNOR-Cheryl no objection:::;. l,J<:',; unc::ier:st¿"nci. 1'1R. SCi!(';C:·:r',IER"'(;¡nd, obviou:::;ly, 1'1r. Ci'ock has no cbj,¿·ctl()n~~. r'1F~. r'Ì;:'\R:T:r N'" I '11 ma k C'\i"¡;,fY at ternpt, d n¡'t.. h i n9 the n,,,.i. 9hbor ,::; .,~,)U 1 d ],}, ,irì te;rrn~ò of contactin';:.; peo¡:::-l . MR. TURNER-Well, I think here that are invol b;',; E! n()t r i na:, ,'5 fie: they can surely pick it who can contact them. that, you know, there's enough of them that certainly know that 1: a's going to if there's a public article in the paper, up, or the Town can contact a lead person MR. SCHACHNER-Wait. I'm con d on d matter of law, and maybe /()ur coun::::;,:".l eou.1ci adclì"e:~:;s thi,:;;. r'1¡ TU;\I('I I ha'Je ,) .le,ç¡òl ~ucstion that could directed t.o your counsel. My uncliôr:::;t,:-inciin;;;:, 1.egal.l.)i, i:3 that if t public iV;,'dì"ing i~:3 e,p.;:;:ned, and then adjourned, there's no requirement for further notice. MR. TURNER T t's right. MR. SCHACHNER-That's what I understood Mr. Martin, to be t.he b;3.::3i:3 for r'lr. r1aì"tin 'co:; ion. MR. TURNER That's right. MR. SCHACHNER 0 . So if that's t ue, I don't care what anybody puts If¡ t, paç)61-, tllat~s fine, bllt I want to rna sure tllat we're going to open t public hearing and t. n adjourn it, so that from a legal standpoint, we're pTotect MR. O'CONNOR-That's also hav t ir input at that ve any irlput on thdt~ purposes. All they're ¡:::"ò¡:.:-cr .. typical that we allow those present to t i l!i{: . ~Je 'Y" C riot a 1..1 e"',J i. na a n>iboc:i/ t,o We're just Journing it for technical talking about is really an ad in t j~R~ SCHACHNER"'J don't ha~¡ p'¡" ()I:;. 1 GfíI i::" t co n:::::ta nt the:;:;e n()ti.cc}~:s" any trouble with t.he '; ¿'J ::::~; t :~'I e: :3 t E::t f f ~;:~ .01 i C~: :. Ib:;Ja 1. ad. te, :::;en,:::! ()ut. The ,3.11 I'm. but L.('iPPEP·"Riç;ht .. v~e :::;h()u.l.,j ¡::'ut I,.Je 're ~saYl nç; ono ;:1(;: in t that nothing is legally required, paper, as a matter of courtesy. MR. SCHACHNER That's fine. MR. TURNER-Okay. MR. MARTIN So you have ope th public hearings? MR. TURNER-Yes. So we'll open t Notice of John A. Brock, Mooring Post Marina.. 1 No. 8-'94, r1R:3. W(~F~D t Clc\/cr :r think tl'¡,::1t ¡:).la(;e~;:, a;1 unrc,'al. L.òl.,ndo\i ()rì pec,pl who ¿J[iõ, 12 year I-ound~ T ~2S¿ pð()1~12 a1~2 ¡~un1·¡ing llP 2X01-bitant - 59 - ~~._..---- , .-' -- ~ I::: :'''¡ () fi e [) i 11 z; b ',::- c· a 11 ..L n :Ç) a. 'r.. t .1 ,3::;:; t n', .;S~ c~ "1.': I f/ :.a ~ .1 .;:.' tt i. fì:Ç u. s h: 'j", <::. ¡"J i,.·.; ~~ time t meetings are going to happen. I think it's your responsibility, as the Town Zoning Board of Appeals, to notify people. I think there's a procedure in place where you are required to notify people who live there. MR. TURNER-We only have to, we notify you, legally, once, but if we open the public hearing on this Appeal and the other Appeal, and we adjourned it, we don't have to notify you again. MRS. WARD-Okay, but you serve t.he people of the Town of G!Ui3e n~;bu',- Y' . MR. TURNER-That's fine, but that's the law. Okay. t1':;:,_ C:IPPERLY-I ¡',Jould add, if yc,u v~ant a notice specifica.l..l> or a phone call, give me your name and phone number, or, we'll call )"()u . MR. SCHACHNER-And, Mr. Turner, I reads the Notices, we'll adjourn. procedural request, but I can make don't care ¡",hen. hea1-d you just say, once he I do have one additional it after, if you (,,;.3, nt . I MR. TURNER-O y. What's your request? MR. SCHACHNER-That, remember there was an additional matter t t 1,.'¡85; i,,)i .I.ginall,/ suPpos,,?d to b""" noticed fa,' toni9ht, that (,Jas not notic for tonight. For the sake of expediency, please, since we'ro journing t other two, lets issue a proper 10931 notice f01 the Area Variance application itself, at the same t i n'¡f} .. r).1 ,;,::'a.se .. MR. TURNER-Have you contacted the paper? t1f?. t¡!(~r':::TIN"The 0\11) t.hi n9 abe,ut that of handling a Use Variance and Area heard f~rst, and you haven't ruled on / t. is we, t)~pically tl10 o1-del- Variance is that t Use is the need for a Use Variance MR. SCHACHNER-But that was true last time you agreed to notice Buse we submitted it. ~,Jhen the I;Je ¡",¡ere heir e last tiille, ¿Inc) Area Variance application, i~1F? ~ TURNERy-As you can see, we never, we've only "..,.",. ., 8~...) 1..... t.i,is far. MR. SCHACHNER-I understand you may not get there, but I want to ha\/c:: the option. MR. TURNER-That was my concern, and that's why we didn't notice it.. That was my concern, that we would not get to it, even get to it, so there was no point in noticing it. t1R. SCll¡:;CHNER·..(\l thouah, vJhic?n V,Ji2 VJere 113st. here said you wanted to, get to it. f ()r e' Y"CIl) ~i >/(:ftJ MR. TURNER-And I did, but it just doesn't happen. supposed to be on for the 18th anyway, Mark. That ':?; MR. SCHACHNER-Is it on for the 18th? MR. TURNER-Yes, the Area Variance. MR. SCHACHNER-Okay. That notice hasn't come out. MR. TURNER-They haven't gone out yet.. MR. SCHACHNER-Okay. little. I didn't even know that. That. Ip:;:;; a - 60 - r \ ~.- -y MR. O'CONNOR-Wait. Are we gOing to have Variance on the 18th, before you hear the or not the Area Variance was required? a hearing on the Area Appeals, as to whethe1 MR. SCHACHNER No. The Appeals are on the 11th. MR. TURNER If we can get this all next Wednesday night. Okay. Mr. Thomas, read t application, please. NOTICE OF APPEAL NO. 8-94 JOHN A. BROCK - MOORING POST MARINA APPEAL BY JOHN A. BROCK, MOORING POST MARINA FROM A DECISION OF THE ZONING ADMINISTRATOR STATING THAT, BASED ON HIS INTERPRETATION OF SECTION 179-83A, DESTRUCTION, THE PRE-EXISTING STATUS RELATING TO THE AREA NONCONFORMITIES IS LOST, AND THAT THE PROPOSED STRUCTURES REQUIRE AN AREA VARIANCE, AS THEY DO NOT MEET THE REQUIREMENTS OF SECTION 179-16C, WATERFRONT RESIDENTIAL-IA REGARDING SOME SETBACKS AND PERMEABILITY. LOCATION: BOX 84, CLEVERDALE ROAD, TAX MAP NO. 13-2-21 IN A WR-IA ZONE AND CEA MR. TURNER-Notice of Appeal No. 8-94 John A. Brock Mooring Post Marina. There was a motion to postpone t.he matter. It was introduced by myself and moved Mr. Carvin, until January 4th or 5th, pending on the advertising. So that has already n tabled. I'll move to table it again. MR. SCHACHNER-You're going t.o open the public hearing? MR. TURNER-We didn't open the public hearing on that. tal:)l it" ("Je JUé;;;t. j'1f-~ . Thc! 1'1 (~F-; T I j'1 '"w i~1 n d \'J ,e j . . 1 'l nO:.lceé:; Wi, , 1,.<Jill notice fOI t ~' e (;re:.:..1 \/ .3. "{' i a n (: ,¿> (> n t.. :'~'i (» 18U'í. g(> ()ll t ~ 1'1R. TURj""IEF~",O (;off th,,: b,j,t. /' " I ' 11 ()¡::'c:~' 1"1 t i:-ublic ring on that one, right PUBLIC HEARING OPENED ,~ ¡'iF:. TUF~NEF:'(ind I'll IlIO\)e; to t L L!'IG a¡:>¡:>lic;:;¡tion. MOTION TO TABLE NOTICE OF APPEAL NO. 8-94 JOHN A. BROCK MOORING POST MARINA, Introduc Theodore Turner who moved for its adoption, seconded by Fred Carvin: Du 1,/ ¿¡do¡:::,t \Jot.e: t: - :"'1 i :~~ 11- t 1"'1 y of January, 1995, by the following AYES: 11y' ~ Fo)-d, Mr~ MerJ'ts)-, 11~. Kal-peles, My'. Ca)-'~in, Mr. Thomas, Mr. Turner j"'10E'3: 1',10t1E ABSENT: Mr. Maresco NOTICE OF APPEAL NO. 2-95 CHERYL EVANS APPEAL BY CHERYL EVANS OF MASON ROAD, CLEVERDALE FROM A DECISION OF THE ZONING ADMINISTRATOR REGARDING THE MOORING POST MARINA, STATING THAT, BASED ON HIS INTERPRETATION LETTER OF DECEMBER 19, 1994, AND SPECIFICALLY SECTION 179-72, BUFFER ZONES, A 50-FOOT BUFFER ZONE IS NOT REQUIRED FOR THE PROPOSED PROJECT. ACCORDINGLY, AN INTERPRETATION BY THE ZONING BOARD OF APPEALS IS REQUESTED. LOCATION: BOX 84, CLEVERDALE ROAD, TAX MAP NO. 13-2-21 IN A WR- lA ZONE AND CEA MR. TURNER-The next one ~~ Evans. Okay. I'll open t rno\/e to tabl e . j"10 t 50" () f l:J!.!t:) 1 i c Appeal No. ~ 95, Cheryl 1~ing OY"¡ tl~at, arid I will PUBLIC HEARING OPENED - 61 - - .------.~ ~----~..-- . ..--''''".~~ ....- "- ( ;. .... Intì'oduc c OF APPEAL Tur ner l<,Jho NO. 2-95 mo\/eo::::J f Oì" CHERYL EVANS, it~::; a~j()¡::,tiorj. ; tjOT,I ON seconded by F,-ad carvin: Duly adopted this 4th day of January, 1995, by the following \¡,ote :: AYES: Mr. Mentel", Mr. Karpeles, Mr. Carvin, Mr. Thomas, Mr. Ford, Mr. Turner I"·IOE'::.: i'10i,1E ABSENT: Mr. Maresco MR. TURNER-So as soon d~ room, which, hopefully, Tiotl.fH:,d. we can find a date is next Wednesday, t.r"'¡b.t. ~;Jø (:a n all partic<;; g'31: thi:::; Hill MR. O'CONNOR-Thanks for your patience. On motion meeting was adjourned. RESPECTFULLY SUBMITTED, Theodore Turner, Chairman - 62 -