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1996-05-22 '-' ORIGIN(J QUEENS BURY ZONING BOARD OF,APPEALS SECOND REGULAR MEETING MAY 22, 1996 INDEX Area Variance No. 32-1996 Tax Map No. 7-1-8 Notice of Appeal No. 5-96 Tax Map No. 51-1-27.1 Area Variance No. 39-1996 Tax Map No. 13-3-19 Notice of Appeal No. 2-96 Tax Map No. 4-4-11 Notice of Appeal No. 3-96 Tax Map No. 73-1-4.1 Notice of Appeal No. 4-96 Tax Map No. 73-1-4.1 Ian Hurst 10. Thomas L. McDermott 14. John Brock 38. John & Kathleen Salvador 38. Marianne & Thomas ~cDonough Steve Sutton D/B/A Sutton's Marketplace 49. Michael & James Valenti Steve Sutton D/B/A Sutton's Marketplace 50. 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. ~i (Queensbury ZBA Meeting 5/22/96) QUEENS BURY ZONING BOARD OF APPEALS SECOND REGULAR MEETING MAY 22, 1996 7:00 P.M. ......,I MEMBERS PRESENT FRED CARVIN, CHAIRMAN CHRIS THOMAS, SECRETARY WILLIAM GREEN BONNIE LAPHAM ROBERT KARPELES MEMBERS ABSENT THOMAS FORD DAVID MENTER EXECUTIVE DIRECTOR-JAMES MARTIN CODE COMPLIANCE OFFICER-JOHN GORALSKI TOWN ATTORNEY-MILLER, MANNIX, PRATT- MARK SCHACHNER ATTORNEY REPRESENTING ZBA-JON LAPPER MR. CARVIN-Our first qrder of business is a SEQRA determination on the Mooring Post. Now, gentlemen, we went through all of this on May the 1st. We announced a public meeting on this for this evening. I do have what I consider to be a final draft of a motion, outlining our conditioned negative declaration on that particular situation. I can read this into the record, and then entertain any questions, and then we'll need a vote. MR. GREEN-Have you got copies of that? MR. CARVIN-I only have one copy. I have other copies, but they are amended. These are unamended copies, I have, and I will point out the amendments. I'm going to ask our counsel. Do I need to read in all the beginning stuff, Jon? MR. LAPPER-Yes. MR. CARVIN-I don't know if I've got it. Okay. This is in reference to 617.21 State Environmental Quality Review Negative Declaration Notice of Determination of Nonsignficance, the Project Number is Use Variance No 82-1995, Area Variance No. 83-1995. MOTION IN REFERENCE TO 617.21 STATE ENVIRONMENTAL QUALITY REVIEW, NEGATIVE DECLARATION. NOTICE OF DETERMINATION OF NONSIGNIFICANCE PROJECT NUMBER IS USE VARIANCE NO. 82-1995 AREA VARIANCE NO. 83- 1995, Introduced by Fred Carvin who moved for its adoption, seconded by Chris Thomas: This notice is issued pursuant to Part 617 of the implementing regulations pertinent to Article 8, State Environmental Quality Review Act of the Environmental Conservation Law. The Town of Queensbury Zoning Board of Appeals, as lead agency, has determined that the proposed action described below will not have a significant effect on the environment, and a Draft Environmental Impact Statement will not be prepared. The name of the action, the Mooring Post Marina expansion. SEQRA status Unlisted. Conditioned Negative Declaration, yes. Description of Action: Proposed expansion of a pre-existing nonconforming marina facility. Location including street address and the name of the municipality is 291 Cleverdale Road, Queensbury, New York. Reasons Supporting this Determination: As proposed, the project may have a potentially large visual impact and impact on the character and - 1 - ·..'·-""·---......,....._0....._..... '- --,' (Queensbury ZBA Meeting 5/22/96) aesthetic qualities of the neighborhood due to the massive building proposed along Mason Road, specifically the visual impact of the proposed 35 foot tall 162 feet long building directly adjacent to a proposed 25 foot tall 92 foot long building along a residential street may be potentially large. There is also a potential for moderate noise impact from the proposed use of tractors, fork lifts and other vehicles utilized to move boats on the project site. There is also a potential for a large impact on public health and safety due to a potential fire hazard from the storage of a large number of boats. There is also a potential for a large impact on drainage patterns and surface water runoff due to the size of the proposed buildings. There is a potential for a large impact on the present traffic patterns due to a potential parking congestion due to the proposed volume of the expansion. If conditioned negative declaration provided on the attached contact persop is James Martin, Executive Director of Community Development, and we will send a copy of our conditioned negative declarations to all the appropriate agencies. The conditioned negative declaration mitigation measures that are to be imposed. Number One, the environmental impact analysis for the proposed project has been undertaken based upon the applicant's assertion in the application materials that the maximum summer season dry boat storage will not exceed 140 boats, exclusive of new boat sales and boats under repair in the boat maintenance building. In the event that the actual maximum summer season dry boat storage exceeds 140 boats, the lead agency reserves the right to re-examine the impacts and mitigation measures including the possible imposition of additional mitigation measures. Number Two, all new buildings cannot exceed a maximum height of 25 feet at the eaves and 28 feet height at the peak. Number Three, the boat storage building shall be re- configured from the proposal submitted by the applicant as follows: Building One, a maximum of 102 by 104 feet with the 102 foot long side running parallel to the north wall of the existing maintenance building, and a setback a minimum 50 feet from the Cleverdale Road property line, five feet from the existing maintenance building, and a minimum of 135 feet from the Mason Road property line. One building a maximum of 30 by 102 parallel to the northerly most property line and a setback 10 feet from the northerly most property line and 30 feet from the Mason Road property line. One building a maximum of 30 by 82 parallel to the northerly most property line and setback 95 feet from the northerly most property line and 30 feet from the Mason Road property line. One building a maximum of 30 by 82 feet, parallel to the northerly most property line and set back a minimum of 183 feet from the northerly most property line and a minimum of 30 feet from the Mason Road property line. One building a maximum of 30 by 102 feet parallel to the northerly most property line and setback a minimum of 268 feet from the northerly most property line, a minimum of 30 feet from the Mason Road property, and a minimum of 10 feet from the property line designated as north 85 54 minutes, 54 feet 50 seconds west on Map 47066-C1 by Haanen Engineering, dated 9/13/95 and revised 3/7/96. Item Number Four, the project has been scaled down from a proposed volume of 669, 320 cubic feet of new buildings to a maximum volume of 573,672 cubic feet. Item Number Five, since the new boat storage buildings will have a greater capacity than the former boat storage building, no outside storage of boats shall be permitted on the project site between June 1st and October 15th of each year. Item Number Six, outside winter storage of boats shall be strictly limited to the paved areas located immediately between the open-sided shed boat storage buildings and/or Tax Map Lot No. 13-3-19, and shall be delineated on the final site plan. Number Seven, the parking of vehicles and boat trailers shall be strictly limited to Tax Map Lot 13-3-19, which is located on the east side of Cleverdale Road, within the boat storage buildings, and directly east of the existing office and store. Number Eight, outdoor displays of boats for sale is strictly limited to a maximum of six boats which may only be located west of Cleverdale Road and directly adjacent to the north and east sides of the showroom - 2 - \"..- (Queensbury ZBA Meeting 5/22/96) -.../ building. Number Nine, a fire alarm system conforming to most current NFPA requirements and the NYS Fire and Building Codes shall be installed in each boat storage building. The alarm shall be connected to a central monitoring agency, fire extinguishers that conform to the most current NFPA requirements shall be located in each building. Additionally, a dry fire hydrant shall be installed from Lake George. The location and installation shall be in conformance with NFPA Standard 1231 Section B5, dry fire hydrant, and approved by the North Queensbury Volunteer Fire Department. Number 10, all forklift trucks and tractors used for the moving of boats shall be equipped with mufflers and resonators to reduce noise levels to a maximum of 75 decibels at 65 feet, and will not be equipped with activated warning horns. Number Eleven, a stormwater management plan shall be submitted by the applicant and approved by the Town of Queensbury Planning Board during site plan review of the project, which must, at a minimum, provide for no increase in the rate and volume of stormwater runoff from the site, compared to the existing stormwater runoff conditions of the site. Number Twelve, the proposed landscaping plan prepared by Miller Associates Landscaping Architects and Haanen Engineering, dated 9/28/95 shall be installed with the addition of a landscaped screen to extend the full length of the new building located along Cleverdale Road, directly east of the largest boat storage building, and shall be landscaped with plant materials similar in size, number and species to that proposed along Mason Road. This revision shall be submitted by the applicant and approved by the Queensbury Committee for Community Beautification and the Town of Queensbury Planning Board during site plan review. Number Thirteen, any future yard lighting shall be medium intensity flood lights with top and side cut off visors to reduce light impacts on adjacent properties and shall be approved by the Town of Queensbury Planning Board at si~e plan approval. Number Fourteen, the hours of operation for the Marina shall be 8 a.m. to 9 p.m. Number Fifteen, the exterior color of all new buildings shall be subject to review and approval by the Queensbury Planning Board and the Queensbury Committee for Community Beautification at site plan review. Item Sixteen, a total of 14 wet slips shall be reserved at the docking facility for the temporary use of quick launch customers. Duly adopted this 22nd day of May, 1996, by the following vote: Now, the only changes from our conversation on May 1st is that the size of the buildings, I believe when I had originally looked at this, was two buildings 30' by 100', and two buildings 30' by 80' . They are now two 30' by 102' and two 30' by 82'. The reasoning for this is to facilitate the studs, the structure. The 80 foot would have put some structural integrity at risk. So the buildings are, in essence, obviously two feet on four buildings is eight feet longer total, but no building is longer than two feet. I do not believe that this has a significant impact on the volume figure. So we still are under 45 percent of the volume. The other significant change is the first paragraph. Now, the first paragraph is a number of boats that the applicant has indicated that he has had over the past several year. This is his number. Essentially, this does not put us into the boat counting business, but what it does is it allows us to monitor this for a period of time, and if we find that there are additional boats being stored, to really judge the value or the integrity of the impact. So, all we are doing is taking his number of 140 boats, and putting them inside. The' other item is that I did include their decibels readings, as far as the noise mitigation. The intent here is that this is what the noise levels that the applicant has indicated. He has also indicated that they are, or there are mufflers and muffling devices that can be either purchased or put on these machines to reduce that. So that's, in essence, what we are asking to be done, and everything else, I believe, is the same. Are there any questions on any of this? - 3 - "~"--'-'-""";"~"- "> ..'f"-.'~,,". '.'''''''",,"'~_'' '-- -./ (Queens bury ZBA Meeting 5/22/96) MR. KARPELES-Yes. I've wondering what this means, plan"? got a question on Number Six. I'm "shall be delineated on the final site MR. CARVIN-Yes. What that means is that when the site plan is done, that they will draw a line between the buildings, or it will be delineated to where the boats actually can be stored. So that, as I had pointed out on my chart the other day, any space that I did not want to see any boats in the drive areas, that it means between the two buildings or the four buildings, if you will, and that will be delineated by site plan. MR. THOMAS-We talked about boats at the docks itself for the quick launch purposes, and I don't remember you reading anything about that. MR. CARVIN-Yes. Good question. We had something, I think, in the original, in other words, so many maximum number of boats. MR. THOMAS-Maximum number of boats to be at the dock for the quick launch. MR. GORALSKI-I believe your original motion at the last meeting just talked about, not number of quick launch boats at the dock, but it was number of boats that are actually docked. In other words, they're not quick launch boats, they're boats that are docked. MR. CARVIN-I think I did have something in there, I think, saying 15, yes. MR. GORALSKI-Fifteen. MR. CARVIN-Okay. MR. LAPPER-That came out when you asked us to take out the 140 as an absolute number of boats. MR. CARVIN-Yes. Okay. The Number Nine on which you have has been taken out. So, I don't think we ever really addressed it. I know we put it in here. MR. THOMAS-Yes. We talked about it. I MR. CARVIN-John, we had hère, the maximum number of boats which may be stored in the water of the docks exclusive of boats in the process of quick launch shall be 15. Is that in reference to the quick launch? MR. GORALSKI-No. What that is, is that the Mooring Post, it's my understanding that there are some boats that are not quick launch, they are simply docked in the water like a typical marina would be. MR. CARVIN-Okay. MR. GORALSKI-And that's what those 15 boats was addressing, that he does have the ability to dock 15 boats and store them in the water. MR. MARTIN-He has 15 wet slips. MR. GORALSKI-Right. MR. GREEN-Is that because of the parking, Chris? MR. THOMAS-Yes, because I remember we talked about it at length. It was on the May 13th meeting. That was the public meeting, not - 4 - ''-" (Queensbury ZBA Meeting 5/22/96) the public hearing. We talked about that, in conjunction to the parking. .-, MR. CARVIN-As I remember it, does he not have 50 wet slips? MR. GORALSKI-Fifteen. MR. CARVIN-Fifteen. MR. GORALSKI-I believe that's what it says in here. MR. CARVIN-Okay, and that's in the application? MR. LAPPER-We could ask the applicant. MR. CARVIN-Is the applicant here? John? JOHN BROCK MR. BROCK-Yes. What we primarily talked about at that meeting was the requirement for the number of boats coming back, and if I understand it right, I was to reserve up to 15, 10% of those slips, which meant I had to reserve 14 slips for the boats that were coming back off of quick launch. Okay, and that's the way I remember that. So when they came back, we gave you some numbers that showed that the 10% was adequate, according to the survey, and that would leave like 14 slips or so available when the boats come back from quick launch. So could tie off while we're pulling them out. MR. CARVIN-That was my recollection of that. MR. BROCK-Yes. That's the way it went. I have, actually, I have right now more than 15 dockers in the water, and I have had right along. Okay. We will run in the neighborhood of 20 plus or minus two or three boats, depending on the size of the boats, because my slips are all, I don't have an individual slip. I have a long dock, like 100 foot long. So I have a choice of putting three 30 foot boats there or five 20 foot boats, okay, but we wanted to make sure there was enougH space for the docker, for the quick launch people, when they got back, so it didn't jam up, and that was approximately 10%, and I think that's what the wet slips referred to, having enough room so when these boats all come back, there'll be some place for them to tie up. MR. CARVIN-It seems to me that that was my recollection, too, and I'm not quite sure how that figures into an environmental impact. That's just a reservation, right? MR. LAPPER-The reservation of the 14, probably makes sense to add that, so that there's not congestion. MR. BROCK-Excuse me, Mr. Chairman, could I bring up a couple of other points that, a couple of them are rather safety factors. MR. CARVIN-Let me get this squared away and see if there's any other questions. Okay. John, I have an addendum. A total of 14 wet slips shall be reserved at the docking facilities for the temporary use of the quick launch customers. Does anybody have a problem with that? MR. THOMAS-No. MR. CARVIN-All right. Then I will add that in. Item 16, a total of 14 wet slips shall be reserved at the docking facility for the temporary use of quick launch customers. Okay. Does anybody have any questions on? Okay. I don't really want to open up a lot of public discussion here, John. So, if you have some comments, I'll - 5 - ._-~... -'--_.- - · >'"~ - ,......,,,...' .~".,_.,,,,,,,.I;-.. '~~ --/ (Queensbury ZBA Meeting 5/22/96) entertain them. MR. BROCK-Okay. On Item Number Seven, it says that the parking of vehicles and boat trailers shall be strictly limited to the lot 13- 3-19. MR. CARVIN-Right. MR. BROCK-Well, that's immediately, that is where the boats, the cars are parked. MR. CARVIN-Right. MR. BROCK-I never park any trailers there, primarily because when the kids and the people are getting out of their cars, going to the dock, back and forth, if I have a trailer there or customer's trailers parked in there, kids would be stepping over trailers. Somebody's going to fall and get seriously hurt. MR. CARVIN-Okay. MR. BROCK-The trailers, I originally had the building higher, planned on putting the trailers on the top, okay, above the boats, or along side one of the other buildings we showed trailer storage. I feel that if we were to store the trailers between the two middle buildings in the back, there's still a five foot berm and eight foot trees between the trailers and Mason Road. They'd never be seen anyway. They'd be out of the way, and no one would get hurt. MR. CARVIN-Well, I think we've got it within, in other words, you could store it in the boat storage is what you've been maintaining. MR. BROCK-Yes. That's when I had the height to put them on the top. Now that I can't put them ins ide, I have to keep them outside. You're saying to keep them across 'the road. It would be much safer to put them between those buildings in the back, between the two middle buildings. You've got four buildings in a row, and there's nothing between those buildings in the back there, and there's a big berm and trees behind it. It would be much safer to put those trailers there, so that kids running around down by the water don't get hurt. MR. CARVIN-Well, I'll tell you. My problem with that area between the two buildings is that I'm envisioning that as a grass area, John. MR. BROCK-Well, it will be grass, yes. MR. CARVIN-Yes, I know, but the more cars and trailers that you put over it, the more it becomes compacted. MR. BROCK-Okay. See, what my thoughts were is not cars, but these trailers come and you just set them there, and they stay, over the summer, they stay there. The people's boats are on the racks, and those trailers would just be parked there. It's not like we're going to be driving trailers in and out all the time. MR. CARVIN-Well, again, I still come back to the same spot. MR. BROCK-Yes. It's the safety factor that I worry about, putting trailers over there on that side of the road. I guarantee, someone will get hurt. Some kid or some little kid will fall on a trailer and they climb over everything, and I'm sure those rusty old trailers, somebody is going to get hurt. Those aren't my trailers. Those are customer's trailers. I hate to see some kid get hurt and say, well, I have to keep these here. I have a problem with that, personally. Other than that, that's the only thing. - 6 - '-' (Queensbury ZBA Meeting 5/22/96) MR. CARVIN-Okay. Anything else, John? MR. BROCK-The only two things I see that I have are that, and then the decibel level. The truck did come out at 75 decibels instead of 70. It was in the May 9th proposal, after we had put the mufflers and resonator on it. We gave you those numbers. We had to do a test, and it fairly quiet. It's much quieter than something going down the street. --./' MR. CARVIN-Well, I believe the numbers that we were given were 70 decibels, at 50 feet. MR. BROCK-We thought, originally the manufacturer thought we could get that truck, that those two, his estimate was 70 decibels. I bought the muffler and resonator, put them on, and we ended up at 75 decibels at 65 feet, which is less than an average decent sized truck would be driving down the street, according to Tom Nace, who's engineering, knows more about it than I do. MR. CARVIN-Well, I know that Tom had indicated in testimony that there were muffling devices that could be either purchased or applied to there. So, I mean, I'm only going on the numbers that you gave us at 70 decibels. MR. BROCK-It came out at 75, after everything was put on it, is all I'm saying. MR. CARVIN-Well, then we have an incomplete application. I don't want to start this thing allover. MR. BROCK-Yes. Our proposal said our forktruck was 75 decibels, at 65 feet, on the proposal of May 9th. MR. CARVIN-Does Staff have any comment? MR. LAPPER-We were looking at the March 16th proposal when we came up with that number. MR. CARVIN-I don't have my stuff here. MR. BROCK-Yes. That was an estimate that was given from the manufacturer. I purchased that (lost word) and did put it on, and I just wanted to let you know. MR. CARVIN-Okay. Well, I'll leave it to the Board's discretion. MR. KARPELES-You said 75 at 65 feet? I MR. BROCK-65 feet, and basically with moving the buildings further away from the road now, there's 30 feet to the property line. There's about another six feet to the road, 20 feet of road. So anyone standing in their yard on the opposite side of Mason Road, okay, even if there's been right at their property line would be approximately 65 feet from the back, the closest point of the buildings. . MR. CARVIN-Does Staff have any feeling? MR. LAPPER-It's up to the Board, the mitigation. MR. CARVIN-Is the Board comfortable at 75? MR. MARTIN-The only concern 1. would have is, as an enforcement issue, it's already been applied, and we know the number, the equipment's already been applied. MR. GORALSKI-Well, whatever, just as long as you come up with a number and the distance away from the source that I can go out and measure. - 7 - .' .._.~_.. . .,-,·~,w__~__.·.,_ -_._,,,..,~--,._-,, --,,--, .-,.._.,.."--~....,..,,,,~,.'..,-. .. ...-,.....-, ,- "-"~--"-'-"'-"~"'-'-'. "'-''''''''''-''IfI'' (Queensbury ZBA Meeting 5/22/96) MR. MARTIN-And can enforce. MR. KARPELES-Well, I think we've got to enforce something that's realistic. If the manufacturer has come up with 75 decibels at 65 feet, he can't improve upon that. MR. MARTIN-Well, my only point being is that the March 16th number was an estimated number, a projection. The new number, apparently, is with the equipment in place at that site in those conditions. MR. CARVIN-I'll correct it to 75 at 65. comfortable with that? Does Staff understand, MR. MARTIN-Yes. MR. CARVIN-Is the applicant comfortable with that? MR. BROCK-Yes. MR. CARVIN-I'm going to re-emphasize, John, anything you can do to keep those sounds down. MR. BROCK-I would be glad to. keep it down, I'll do that. If I can get better equipment and MR. CARVIN-Okay. As far as the boat trailers, I've got a real problem with it. I mean, I think if we can keep it inside, I'm going to be a lot more comfortable, and I really don't want to see anything on those grassy areas. Just over time, that usage will compact that, because it's going to be a pretty much impermeable situation now. So I don't know what the test of the Board feels like on the trailer storage. MR. GREEN-Do you have any other property somewhere else, possibly, that you could store the trailers on, if they're just going to come in the spring and leave in the fall? MR. BROCK-The only other place I'd be able to store them would be in front of the building on Cleverdale Road or I have a piece of residential property next to it, that I don't think anyone wants to store them. MR. GREEN-I was thinking maybe some place off site. MR. BROCK-I don't have, no. MR. THOMAS-To me, if the customer brings the trailer in in the spring, why can't they take it back to where they brought it from and then bring it back in the fall? Why have storage on the property anyway? The boat is stored off site in the winter time anyway, right? MR. BROCK-I try to do that as much as I can. There are a lot of people that have, like they travel up and they have a condo or something like that where they can't keep them like, if they store their boat at the fairgrounds or something like that. A lot of people, like, use different fairgrounds around to store their boats, and then they come back with their boat to use the lake and their trailer. Well, the fairgrounds only accepts those trailers for storage like during the winter. . MR. THOMAS-Okay. I like the original proposal. MR. CARVIN-I like the original proposal. Does anybody else have a problem with it? Okay. If there's no other questions on the mitigation, I would ask for a second. Is there a second to this? MR. THOMAS-I'll second the motion. - 8 - '-/ (Queensbury ZBA Meeting 5/22/96) .......,/ MR. CARVIN-Okay. Again, any questions? I would ask for a vote, then. AYES: Mr. Thomas, Mrs. Lapham, Mr. Karpeles, Mr. Green, Mr. Carvin NOES: NONE ABSENT: Mr. Ford, Mr. Menter MR. CARVIN-Okay. So that these are our SEQRA which we now post for 30 days. Is that correct? MR. LAPPER-We have to publish it in the Environmental Notice bulletin. MR. CARVIN-Okay, and that means that the Use and Area Variance can come before us in July? MR. LAPPER-They could come before you in June, if you're going to have a public hearing. You can't vote on them until the 30 day period. MR. CARVIN-You mean on the Use and Area? MR. LAPPER-Yes. You have to wait the 30 day notice period. MR. CARVIN-Okay. Now does the applicant understand? I mean, we have to wait 30 days. Do you want to try to get on the June for the Use and Area or July? I mean, we won't be able to vote on it in June. So it would be preferable, I think, to put this on the July agenda. MR. BROCK-Would they both be heard at the same time? MR. CARVIN-I would hope so. MR. MARTIN-It would make the most sense to schedule them back to back, on the same evening. MR. BROCK-If we could do it in early July, I would only have time to get it scheduled. If we could do an early one for the Zoning, and then the Planning one later in July. MR. MARTIN-I think, John, also we're going to have to look at the adjustments to the applications. You're going to have some re- drafting to do and your application's going to have to be amended. For example, I think a lot of your Area Variance requests go away now, and the Use is somewhat framed in now. MR. CARVIN-I would say July, then. MR. MARTIN-We're prob~bly looking at an amended application. MR. CARVIN-All right. MR. BROCK-If you could do early July. MR. CARVIN-Well, why don't you work it out with Staff, and that way it'lL MR. MARTIN-Yes. We'll try and agree upon a submission date that would give us adequate time to review it and the Board, once it's in, and do your public notice, for the public hearings. MR. CARVIN-Okay. Mike, I saw your hand up. I'm not going to open up the public hearing, but I'll. - 9 - -...--.. .'.~ .._,_. '--_" '__""""~_'.'____'ø..,__.._.,.._, "¡,,,..,"",...-,......._.._~ .-...-"..",..-",.,..~.,.,', '~ ...../ (Queensbury ZBA Meeting 5/22/96) MIKE O'CONNOR MR. O'CONNOR-My comment was just partially address. My understanding was, based upon the mitigation, I would believe that a whole new set of plans is going to have to be submitted, for everybody to have a chance to review it. It's pretty much a new application, perhaps a special meeting, because of the interest. MR. CARVIN-Okay. Well, then I'll let you folks work it out with Staff, then. Okay. If there's no other questions, the next item of business is New Business. AREA VARIANCE NO. 32-1996 TYPE II WR-1A CEA IAN HURST OWNER: CAROL S. HURST KNOX ROAD, OFF ASSEMBLY POINT RD., NINTH HOUSE ON LEFT AFTER TURN ONTO KNOX ROAD APPLICANT IS PROPOSING. TO CONSTRUCT AN ADDITION TO AN EXISTING SEASONAL CAMP. RELIEF IS NEEDED FROM THE SETBACKS LISTED IN SECTION 179-16C AND THE SHORELINE SETBACKS IN SECTION 179-60B, 5, 15, C. ADIRONDACK PARK AGENCY WARREN COUNTY PLANNING 5/8/96 TAX MAP NO. 7-1-8 LOT SIZE: 0.23 ACRES SECTION 179-16C IAN HURST, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 32-1996, Ian Hurst, Meeting Date: May 22, 1996 "APPLICANT: Ian Hurst PROJECT LOCATION: Knox Rd. Proposed proj ect and Conformance wi th the Ordinance: Applicant is proposing to build a new 476 square foot addition to an existing single family home. This addition would require relief from the side yard setback in Section 179-16C and the shoreline setback listed in Section 179-60B, 5, 15, C. Criteria for considering an Area Variance, according to Chapter 267, Town Law. 1. Benefit to the applicant: Granting relief would allow the applicant to build an addition to an existing home. 2. Feasible alternatives: There do not seem to be any alternatives that would provide less relief. 3. Is this relief substantial relative to the Ordinance? The applicant is seeking side setback relief of 14 feet and shoreline relief of 6 feet. 4. Effects on the neighborhood or community? There do not appear to be any negative impacts on the surrounding neighborhood. Additional comment may be given at the public hearing. 5. Is this difficulty self created? This small lot (10,000 sq. ft.) would need relief from the Zoning Ordinance for any building expansion. Staff Comments & Concerns: This expansion would maintain the same northern side setback that the main structure currently has. The addition would be located behind the main structure and would not impact any adj acent property owner's lake views. Staff does not have any problem with allowing this type of expansion on this lot. SEQR: Type II, no further action required. II MR. THOMAS-IIAt a meeting of the Warren County Planning Board, held on the 8th day of May 1996, the above application for an Area Variance to construct an addition to an existing seasonal camp. was reviewed, and the following action taken. Recommendation to: No County Impact. II Signed by C. Powel South, Chairperson. MR. CARVIN-Okay. Does everybody on the Board understand what the applicant is requesting? Are there any questions of the applicant? I do. Do you have any schematics of the house, of the proposed addition? MR. HURST-I could give you the plan. MR. CARVIN-I want to know the height. MR. HURST-The height, basically, is 16 feet, from the ground to the tallest point. Basically, it's the same height as the old house, - 10 - '-..' (Queensbury ZBA Meeting 5/22/96) -/ the same measured height. The problem is we're moving uphill four feet or so. We have a retaining wall behind the house and therefore the hill levél is about four feet higher. So even if you maintain the same height, it pushes up four feet, so the new addition would stick up about four feet above the old house. MR. CARVIN-Okay. Well, that's what I wanted to look at. I mean, is it a direct relationship, the four feet? I mean, is that going to be it, or is it going to be 12 or 14 feet? MR. HURST-No. It's going to depend on how much we can, what sort of level area we can create as we go back. Our plan is to try and get it down as low as possible, and originally the plan was four feet. It may have to go to five. That would probably be about as high as it would go. Just having looked at the slope, I can show you sort of a. MR. CARVIN-Well, it looks to me, I guess my question is, is this, that's what I was looking for. MR. HURST-This is the original house. I think, actually, we're about a foot higher here, as I mentioned it, since I've been there, and so this level ends up being (lost word). This peak, which is the furthest back, ends up being (lost word) . MR. CARVIN-Okay. I guess my question is, what is the necessity for this? I mean, can you not? MR. HURST-We wanted sort of a larger two story area on this. This is the plan. This would be the existing house, and the new entryway uphill, so you have a small hallway, and we tried to push that down as low as we can, with slopes from eight to twelve or so, and then the bedroom, just have a separate roof. It's just in terms of sort of, we like to have that high space in there. It's just a nice open space. This would be not only. MR. CARVIN-My point is that I don't, I understand what you're doing here, but I'd like to try to keep this level on level here. MR. HURST-I mean, even if we bring this down to this level, we're still above, there's really, if we bring the slope of this roof down anymore, I mean, we're five to one now. We'll be four to one. MR. KARPELES-If I remember right, there's all kinds of trees in here. This isn't even going to be visible. MR. GREEN-It's really well screened. MR. KARPELES-I don't think anybody's going to see that. MR. GREEN-He's still saying he's going to be 16 feet from here to here. I don't think you're ever going to see that. MR. CARVIN-I was out there. So I think everybody's been out there and looked at it. MR. HURST-It's heavily treed. MR. CARVIN-Are there any other questions of the applicant? Okay. I'll open up the public hearing. PUBLIC HEARING OPENED MR. CARVIN-Any written correspondence? MR. THOMAS-Yes, we have two letters. The first letter dated April 17, 1996 "Dear Variance People: Enclosed is the variance application and nine copies plus my check to cover the fee. I have signed as the owner, all ten copies of the application. Ian Hurst, - 11 - ',--, --' (Queensbury ZBA Meeting 5/22/96) the project applicant, assures me that my signature and the fee will complete all that is needed from me as the building permit documents have already been submitted to the Town of Queensbury. I am third generation of my family to be able to spend time on Assembly Point. In the late 60's, I was fortunate to be able to purchase the small camp for which I now request the variance. The camp in which I had grown up was down the road and had belonged to my grandparents. It has since been sold, over 20 years ago. I remained a seasonal resident on Assembly Point while I taught and raised my son in my camp. I have seen a lifetime of changes on the Point. Now I find that I, too, must request one change to allow me easier access to my camp by moving the entrance a bit closer to the road up the hill and to a more level spot. The addition would also allow me to maintain a second sleeping area while I moved my writing area, desk chair, etc. into the area presently being used on occasion for relatives or guest visitors. Thus, I could write when someone visited, as my functions are somewhat limited by a medical condition. The addition would allpw me to use the camp better. I love and care for my land, my camp and the lake. I am fortunate to live in an area of long term residents, mostly seasonal, who are caring and concerned people. They are aware of my plans. I know that you must officially inform them and give them an opportunity to make any concerns that they may have known to you. I hope that we can do this on the May 15th hearing date as I know that the applicant, Ian Hurst, and perhaps myself, can be there on that date. Please help me with this date if possible. Additionally, if variance and the building permit are approved, I have a very limited time of availability of workers who have agreed to this project. They have other jobs to go to. Thanks in advance for your help. Yours truly Carol Hurst" A letter dated May 20, 1996, "Based on the review of the site plan provided me by Ian Hurst, the applicant, and relying on his representation, this proposed addition will not extend beyond the line of the north wall of the existing structure, I, as the owner of the adjoining parcel to the north of the Hurst property have no objection to the granting of the variance sought by the applicant. Very truly yours, Eileen Mahoney" That's it. MR. CARVIN-Okay. Any other public comment? Seeing none, hearing none, I'll close the public hearing. PUBLIC HEARING CLOSED MR. CARVIN-Now, does anyone have any questions of the applicant? MR. THOMAS-I just have one. How many trees are you going to be cutting down to? MR. HURST-Hopefully, I'll only have to take out two. MR. THOMAS-Are they the two pine trees? They're tall. It's on the property. MR. KARPELES-One's a cedar. MR. HURST-There's a small cedar close to the house, which has already started to tilt out over the house, which we're worried about. That will have to be taken out, but hopefully there'll only be two trees that we'll have to take out. We're trying to minimize the impact on the nearby roots. MR. THOMAS-How about stabilizing that bank, once you do cut the trees out and start construction in there, because that is a very steep slope. MR. HURST-At that point, though, it maintains a relatively level, flat area. We have a steep slope, and as it gets close to the house there, it flattens out, and there's a retaining wall, and we'll only partially take out that retaining wall (lost words) back - 12 - '-,' (Queensbury ZBA Meeting '-'" 5/22/96) of the house in order to put in the wall. MR. THOMAS-Okay. MR. HURST-We don't plan on excavating huge amounts of soil. We'll try to minimize the amount of excavation and impact to that hill. MR. CARVIN-Okay, and y6u say that you're looking at a height of 16 feet, that that's the total to the peak? MR. HURST-To the peak. MR. CARVIN-Okay, and that's this peak here, right? MR. HURST-Right. MR. CARVIN-Okay. All right. Any other questions of the applicant? Okay. What do you think, Bonnie? MRS. LAPHAM-I don't have any questions at the moment. MR. CARVIN-How about you, Bill? MR. GREEN-I think it's very well thought out, and he's accomplished his purpose quite well, and I don't have any problem at all. MR. CARVIN-Bob? MR. KARPELES-I feel the same way. I went up there today and looked at it, and it looks like it's going to be an improvement. The only thing I don't like is the one big pine tree that's got to come down, but I don't see where there's much choice in that matter. MR. HURST-Almost anywhere we try to do anything we would impact the trees, simply because we're probably the most wooded lot in the area. MR. THOMAS-I think it's a worthwhile project, and I have no problem with it. MR. CARVIN-Okay. The only thing that I would stipulate, that the new addition be no higher than 16 feet. MR. HURST-The other thing is there will be no (lost words) we're not putting any windows or anything on that side. MR. CARVIN-Okay. Well, if we limit it to 16 feet, then you get what you want, and we don't end up with something that's 28 feet later on. Right, Jim? MR. MARTIN-Right. MR. CARVIN -Okay. problem wit-h it. I'd ask for a motion, then, if nobody has a MOTION TO APPROVE AREA VARIANCE NO. 32-1996 IAN HURST, Introduced by Robert Karpeles who moved for its adoption, seconded by William Green: The applicant is going to build a new 476 square foot addition to an existing single family home. The addition requires a relief from the side yard setback of 14 feet, and shoreline relief of six feet. One of the stipulations will be that the overall height from the ground to the peak of the roof will be no more than 16 feet. The benefit to the a~plicant is that this will her to build an addition to an existing home. There do not seem to be any alternatives that would provide less relief. There have been no negative impacts on the neighborhood. In fact, there's a letter - 13 - '--"-"'.-....--- '-"""',,"'-...-""'~~"" ~ --' (Queensbury ZBA Meeting 5/22/96) from the neighbor saying that they approve of it, and the lot is of such a size that any addition would require some kind of relief from the Zoning Ordinance. The expansion will maintain the same northern side setback as the main structure currently has, and the addition will be located behind the main structure so that it will be hardly visible from the lake. Duly adopted this 22nd day of May, 1996, by the following vote: AYES: Mrs. Lapham, Mr. Thomas, Mr. Green, Mr. Karpeles, Mr. Carvin NOES: NONE ABSENT: Mr. Ford, Mr. Menter MR. CARVIN-All right. I'm going to maybe shift some gears here. How many folks, I know that you all came out to see democracy at its best, but how many are here for the Salvador application? How many are here for the McDonough and Valenti/Sutton? Okay. How about the McDermott? Okay. McDermott wins. We're going to do McDermott next. MR. THOMAS-What about John Brock? MR. CARVIN-How many here for Brock? We're going to do McDermott next, because that's going to probably have the public hearing. NOTICE OF APPEAL NO. 5-96 RR-3A THOMAS L. MCDERMOTT OWNER OF SUBJECT PROPERTY: SAME SUNNYSIDE ROAD BEHIND MCDERMOTT HARLEY DAVIDSON APPLICANT IS APPEALING A DECISION BY THE ZONING ADMINISTRATOR THAT A PRACTICE TRACK FOR MOTORCYCLES WHICH IS CURRENTLY BEING USED ON THIS PROPERTY IS A LAND USE WHICH IS NOT ALLOWED IN THE RR-3A ZONING DISTRICT. THE DEFINITION OF LAND USE IN SECTION 179-7B AS INTERPRETED BY THE ZONING ADMINISTRATOR IS ALSO BEING APPEALED. TAX MAP NO. 51-1-27.1 PAT BALDWIN, REPRESENTING APPLICANT, PRESENT MR. CARVIN-Okay. I'm going to ask the applicant, I guess, what are we here for? MRS. BALDWIN-Okay. I'm representing the applicant. Maybe I can clarify what this application is really saying, because I did help complete it. MR. CARVIN-Okay, and you are? MRS. BALDWIN-My name's Pat Baldwin. I'm with the law offices of John Fitzgerald. The applicant has appealed to the Board for the decision of the Building and Codes officer that his use is not an allowable use within the district. This is an RR-3A zone. His appeal is based on the fact that this use has been in existence since 1940. The property has been used for motorcycle trail bikes consistently from that time period to the present. It's used for both recreation use and for competition practice. The uses involve the creation of practice trails that people can ride on in this field. The tracks and the trails have been created through the years with various means of shovels. They've gone out there and actually shoveled and created track. They've also used farming tractors to create tracks, and more recently they've used heavier equipment in creating the tracks. The history of the usage of the track, I'm just going to try to give you an overview of what kind of usage that this has had. During the 50's and the 60's there were probably about 20 to 25 regular users of these tracks and trails in that field. During the 70's, it increased quite a bit with popularity of motorcycles to about 50 regular users. During the 80's it declined to about 20 to 30 users, and currently there I - 14 - \......- (Queensbury ZBA Meeting 5/22/96) are about 30 to 40 regular users of the track and the trails that are created in the field. The McDermotts have also leased the field for growing corn from time to time, and in these leases, they've actually conditioned the lease on leaving the middle of the field and surrounding areas around the cornfields available for creating these tracks and trails for the motorcycles to ride on, and every year the tracks are re-created and they're created differently. Now, I've also tried to outline here some of the zoning history, just so we can see where the McDermott's property has fallen during the time period that the Town has enacted three different versions of the Code. 1958, the original zoning code did not allow for motorcycle trails. It just wasn't an allowable use within the Town, but they did allow for nonconforming use, a pre- existing nonconforming use, and what you have to do is you look at the time of the effective date of the Code, which is some time in 1958, and look at the use at that time. There was no prior code, so obviously it was a lawful use at that time, and it was a continuous use. So it was considered a pre-existing, nonconforming use, which was allowed to continue at that time. The 1967 Code created an SR-30 zone, which this property was in that zone, and in the SR-30 zone, they allowed outdoor athletic facilities. However, the Code never defined outdoor athletic facility. So, arguably, this use could be considered within that definition. The 1967 Code also allowed for nonconforming use, and in the definition of nonconforming use, they say, any lawful use that was in existence at the time the Code was effective, which would have been in 1967. I looked for a particular date, but was unable to find it. So whether in 1967 it was continued lawfully as a pre-existing nonconforming use or if it continued lawfully within the definition of an outdoor athletic facility, this use continued as a lawful use. In 1988, there was a new Code that was adopted by the Town, and the effective date of that Code was October 1, 1988, that one as you know, and that created the RR-3A zone, which the McDermott's property is currently in. Now, I've provided you with certain parts of the Code that I'm going to be talking about, so you could look at those as I'm talking. If you look at Section 179-15, RR-3A zone, subsection B says, "The purpose of the Rural Residential zone is to enhance the natural open space and rural character of the Town of Queensbury", and then if you go on to Paragraph D (2) , you'll see that they're allowing outdoor athletic facilities, once again, as a permitted use within that Zone. However, now, the Code provides a definition for outdoor athletic facility, and that's provided in Code Section 179-7, and the outdoor athletic facilities that they're talking about in 1988 is tennis courts, basketball courts, paddle tennis and played outdoors. They've also, if you look right above that, created a definition for open space recreation use, and that includes "Any recreational use particularly oriented to and utilizing the outdoor character of an area", which includes trail bikes. However, nowhere in the zone is that use within an allowable zone in the Town. -....../ MR. CARVIN-Excuse me. I guess I'm lost here. MRS. BALDWIN-Okay. If you look at Section 179-7, okay. MR. CARVIN-Under "Open Space Recreational Use"? MRS. BALDWIN-Right. Below that, they finally have provided a definition for the outdoor athletic facility. It was not provided in the '67 Code, but they've also created a new definition, or a new use, Open Space Recreation use, at that point. MR. CARVIN-And you're saying that that Outdoor Athletic Court and Facility, is Recreational Use? is, the definition of found under Open Space MR. MARTIN-No. Those are two separately defined. - 15 - ,..-'..-.". ...,,..->:~.,..,?..,,........,...,,,,.. '--- --.-/ (Queensbury ZBA Meeting 5/22/96) MRS. BALDWIN-They've now created two separate definitions. MR. CARVIN-Okay. Go with me slow, it's been a long day. MRS. BALDWIN-Okay, for everyone. MR. CARVIN-For everyone. MRS. BALDWIN-Okay, the Outdoor Athletic Facility is now defined in 179-7. MR. CARVIN-Do you have a page number? MR. THOMAS-17933. MR. CARVIN-Okay. I'm with you now. MRS. BALDWIN-Okay, and if you look above that, with that same Code that was enacted in October of '88, they've now created definitions for Open Space Recreation Use, which does include any recreation use, particularly oriented and utilizing the outdoor character of an area, which includes trail bikes, but that use is not included within any zones in the Town of Queensbury for trail bikes. So, in effect, what has happened is there is no zone within the Town of Queensbury that allows the recreational outdoor use of trail bikes, but if you look at the zone, and the purpose of the zone, and you look at the definition of Open Space Recreation use, it certainly seems to be conducive to one another, and it's impossible to tell whether it just wasn't thought of at the time to include it in that zone, but it clearly hasn't been included anywhere in the Code. Now, if you do look at Rural Residential zone, it does say the purpose of the Rural Residential zone is to enhance the natural open space, and then you have a definition for Open Space Recreational Use. So they do seem like they would be conducive to one another. So what, in essence, we have i is we have a nonconforming use, and that is defined in Paragraph 179-7 as well, and that says, "Any use which is lawfully in existence within a given zone on the effective date of this chapter" but it's not recognized as an accessory, permissible or conditional use within that zone. Clearly, on October 1, 1988, the use that was lawfully in existence would have been a continuation of the use of the motorcycle track and trails on the property, and you will have, I'm sure, a number of people testifying to that, and have given you statements to that effect since 1940. So it has been a lawful existence since that time, on the effective date of tne Ordinance, and then you go on to look at Paragraph 179-79. It then says, a nonconforming use can be continued and maintained in reasonable repair, but cannot be enlarged or extended, and the reason I've provided you with the numbers of people that have used the track over the years is to show you that the use has not enlarged or extended. It's been the same number of people, given a few people, but the larger percentage of people using the track were in 1970 when motorcycles were probably at their height of popularity, and at this point that use is less than it was in 1970, and then the definition of land use, I believe this is one of the things that I did discuss with Goralski. He cited Section 179-7, Land Use, as saying, "Any construction or activity which materially changes the use or appearance of land", and he's arguing that, potentially, this is a change in the land use, creating a new land use, but if you look at the second sentence in that paragraph, it says, "'Land Use' . . . shall exclude any landscaping or grading which is not intended to be used in connection with another land use." Any changes in the track have been done in connection with the continuation of recreational and practice competitors practicing on these trails, which they've been doing fqr 50 years. A material change, I think it's important to understand, a material change is a change such as, they took this track and all of a sudden they made it into a big mud hole for big four wheeler big trucks to go - 16 - ''"- (Queensbury ZB~ Meeting 5/22/96) out there and compete. That would be a material change. This track is continued with the same use, the same type of motorcycles and the same numbers of people have been using this property, again, for the last 40 or 50 years. So what we're asking the Board to examine is, on October I, 1988, was this a pre-existing use that was allowed to continue under the nonconforming provisions of this Code. It's not an examination of currently are there dissatisfied homeowners living next to it that all of a sudden want this thing stopped. You have to look at whether it's a legal entity of a pre- existing nonconforming use that's allowed to continue, and I believe you'll probably open the floor, because I know there are a number of people here. '-' MR. CARVIN-Any questions of the applicant? MR. MARTIN-I'd just like to give mY position, as Zoning Administrator. I do see this as a land use, and I'm quite familiar with the situation over there, both from a professional standpoint and a personal standpoint. I grew up in Country Colony, which is approximately a mile from this location, and several of my friends, as teenagers, did ride in this area. I do not dispute the use of the area for motorcycle riding or trail bike riding, but in October of 1994, there was a constructed track in this area of the field. A bulldozer was brought to the site. Jumps were constructed, and so on, and that, I think, is in compliance with the land, a land use, and that was a physical change, a material change to the landscape of that site and to the use of that site. I do not dispute the presence of motor bikes in that area of Town, and there's a history there that is well documented, but this specific track was not in this configuration prior to 1994. MR. CARVIN-Any questions? MR. GREEN-Let me just ask you, Jim, then, you're saying that because they had heavy equipment and, because the land use or development use, the last paragraph in the bunch of paperwork here, shall exclude any landscaping or grading which is not intended to be used in connection with another land use. So you're saying that by creating a track, that's a different land use than what was originally there? MR. MARTIN-Yes, and I think that sentence is referring to landscaping and excavating that's done by, say you're building a home and you need to backfill to the foundation or you need to grade away from the foundation to allow for an access door or something like that. That, to me, is the type of grading that's being referred to there. Landscaping is obvious. I mean, someone is able to landscape their property, but that's the type of excavation that I think is referred to in that sentence, not the purpose of the excavation and grading that was done in this case. MR. SCHACHNER-Fred, the only comment.! thought might be appropriate is to put. the question in the proper framework for the Board, and I think that whether the Board agrees or disagrees with Ms. Baldwin's presentation, I thought that it set out a certain series of questions that seemed logical to me, until the punchline, and the punchline, I mean, it's her appeal, but the punchline that she suggested was that the Board has to make a determination as to whether this was a lawful pre-existing use on October I, 1988, and I think that's not really the sole or even the most important focus of the Board's inquiry. In light of the Zoning Administrator's decision, which is specifically what's under appeal here, and the Zoning Administrator's explanation of his decision, part of which is also contained in his decision, I don't think the Board, I think the Board must be careful, when you hear all the comments and hear the parties' viewpoints, to not be artificially cutting this off as of October I, 1988. The obvious focus is up until the present. - 17 - ~,~ ,....." (Queensbury ZBA Meeting 5/22/96) MR. CARVIN-Does the Board understand? open up the public hearing. Okay. Then I'm going to PUBLIC HEARING OPENED TOM MCDERMOTT MR. MCDERMOTT-I'd like to support it. "I, Tom McDermott, as a dirt bike rider, would like to re-affirm that the use of the McDermott field as a practice area is a legal dirt bike riding area. The land has been used and maintained by dirt bike riders for more than the past 50 years. This area has entertained hundreds of the Town's sons and daughters, while providing liberal amounts of personal challenge and satisfaction. Dirt bike riders have never been considered sweethearts to many. In the past, however, we were always able to co-exist and look forward to continuing "to do so in the future." Here's the gist of what the practice area has inadvertently done and will continue to do. Implement and mediate our community's interest and offer motorcycling. Maintain a higher level of safety for people whose children ride. Help educate the youths and the parents about the machines they ride and maintenance the machines require. Help maintain the lawful and peaceful use of the dirt bikes in Town. Provide a forum for parental involvement in their children's activities. The McDermott field practice area has existed in various forms for more than 50 years, and it has done all these good things in the past and can and will do them better in the future. There is a large number of new young riders who would be guidanced of the more experienced and established motorcross riders, and can and will have a chance to hone their abilities, and another thing I want to bring up is, his interpretation of grading is a personal interpretation. You're going to grade and landscape your land, why does it have to be his interpretation of how you're going to grade your land, and I'd like to open the floor to anybody else. Thank you. MR. CARVIN-Anyone else wishing to be heard in support? SUPPORTER-I'm from Glens Falls. My name is (lost word). My son and my daughter ride up there. My little girl is seven. I was here before, and we don't have anywhere to ride in Glens Falls. I live right in the middle of Glens Falls. We start racing there pretty soon, another week or so. My little girl has been riding up there for about a month now, and her riding ability has improved tremendously since this track. She's right in the top five in her class, out of like 30 boys. She's the only girl in her district, and she goes like crazy. She's got all the riding equipment, helmet, boots, chest protector, everything. I spent a lot of money on the bike. It's quiet. She enjoys it. She looks to the future, you know, racing bikes, being maybe, whatever she wants to do. All she cares about it riding, and like I say, in Glens Falls, there's no place to ride. You can't even ride in the front yard without police showing up, or whatever. What Tom's done is terrific. It gives us a place to ride. Nobody bothers us. We don't bother anybody else. As far as I'm concerned, we don't. I mean, there are a few people that complain to me, but I mean, I have a bike right here right now, you couldn't even hear it idle. MR. CARVIN-How old is your daughter, sir? MR. She's seven. She's been racing two years. MR. CARVIN-Two years. Okay. '95? So that would start here in '94 or SUPPORTER-'94. MR. CARVIN-And the field that she rode on in '94 is the same field today? - 18 - ""'- (Queensbury ZBA Meeting ......,; 5/22/96) SUPPORTER-Yes. She rode there a few times. MR. CARVIN-No, that's not what I'm asking. before as it is today? Is it the same field SUPPORTER-It's changed a little bit, but nothing, not dramatically, no. MR. CARVIN-Not dramatically, okay, but it has changed? SUPPORTER-It has changed a little bit, yes, that's just for safety, though. MR. CARVIN-In what fashion is it safer? SUPPORTER-A little smoother, not as ruddy. MR. CARVIN-Okay. How about some of those mounds out there. Were they there in '94? SUPPORTER-Yes. riding skill. It's smoothed down a little bit, to improve the MR. CARVIN-Okay. Anything else? Okay. Thank you. I appreciate that. Anyone else wishing to be heard in support? TYRONE BAPP MR. BAPP-Hi. I'm Tyrone Bapp. I live right on Sunnyside Road. My kids ride. If you take the jumps down, it's going to be louder. It's going to be dustier. It's going to be a lot louder, because the bikes are going to be opened up, the jumps slow you down, the ruts slow you down. Without it, it's going to be a lot louder. It's going to be a lot dustier. MR. CARVIN-And how many years have YOU ridden up there? MR. BAPP-Since I was about 10 years old. years. I'm 27 now. Seventeen MR. CARVIN-Okay, and I'm assuming the track is different now than it was 10 years ago or 15 years ago? MR. BAPP-Yes, it is. MR. CARVIN-In what fashion? MR. BAPP-Better, safer, you go slower. Before it was opened up, and it was a lot louder, than if you're jumping. MR. CARVIN-Okay. over here? Yes, Any other questions? sir. Anybody? Okay. Somebody RICK SINGER MR. SINGER-My name is Rick Singer. I'm a resident of Ridge Road, and I live within ear shot of the track that you're discussing. I've been known to be long winded. I'll try not to be long winded tonight. I don't want to take up everyone's valuable time. I would like to point out a few things. I started riding motorcycles in 1969. Started riding dirt bikes when my son was eight years old. He was born in 1974. That would make this 1982. In 1982, we started riding at McDermott's track, or I should say in the cornfield. Now, some people call it a track. Some people call it a cornfield. Call it what you will. The point is, it's been there. I've ridden it since 1982. There were jumps there in 1982. There are jumps there today. There was jumps there in 1983, '84, '85, etc. I don't see that there's any change, except for there's - 19 - --_..._-~ ........... "...,...""...,..-..,,.,."'-- ~ --' (Queensbury ZBA Meeting 5/22/96) no change in use. There are jumps there that have been constructed, constructed annually, since 1982, and I can testify to that, and I have testified to that. I don't see that this gentlemen in the green shirt who I'm not familiar with, when he states that jumps were constructed in 1994 that is not a change. That has been going on at least since 1982 that I know of, and apparently for quite a bit of time before that, and I think that's really what you need to concentrate on. My son started riding there. He became a very good motorcycle rider, dirt bike racer, motorcross racer. He started there. He started in the woods. We'd ride from behind my house, over to McDermott's, and ride right into West Fort Ann, and we'd do that, and we have done that. My son learned to ride on those trails, and in McDermott's field. He became a very good amateur racer. He became a professional racer, and holds his professional license, largely due to being able to and having ridden and jumped in McDermott's fields on' jumps that were constructed the entire period since 1982 through to and including today, and that testifies to the fact that there is nothing different there than there was in 1982. Thank you. MR. CARVIN-Can I ask you a couple of questions? Would you consider the track to be in better condition, more improved, now or in 1982? MR. SINGER-It's certainly much more sophisticated, better from the standpoint of experienced riders, yes, better for that matter, for even beginner riders, again, because of it's safety factor. In the old days, in 1982, '83, '84, '85, you're probably not interested, but I'm 59 years old, and I still ride. I think it's the greatest thing in the world. It's been the greatest thing in the world for my son. It has kept him away from drugs. It has kept him away from alcohol. If you folks were out there doing this kind of an activity, you would understand that you can't deal in drugs. You can't do drugs. You can't deal in alcohol if you're going to ride and race motorcross. The two just don't go together. It's too demanding of a sport for you to be able to abuse your body with alcohol, drugs, etc. and still do well at this sport, and I attribute this sport to keeping my son away from drugs. He's now 23 years old. He's in his senior year at RIT. He has continued to keep a B and better average the whole time, and on the Honor Roll in Queensbury the whole four years he was there. He was a star on the track team, all due to his physical abilities that he gained racing motorcross, which developed his speed at the race track there. He was their top 100 yard runner and 200 yard runner in his senior year. MR. CARVIN-Would you consider this to be a growth sport? MR. SINGER- In this Country, absolutely. It's grown phenomenally in the last 30 years, especially on the professional level, and the way you get to be a professional is to start out in a field like this. MR. CARVIN-Would you consider this field to be attractive for other riders or a destination point? MR. SINGER-I guess I can't really comment on that. what you mean. I don't understand the question. I don't know MR. CARVIN-Would this track, with all the improvements, be more appealing to more riders, could it handle more riders? MR. SINGER-I think because of the sophistication of the track it would be appealing to more experienced riders. I don't think you're looking at a situation where the track handles 30 today and next week you're going to have 200 people there. There aren't that many people interested in the sport, and as Pat Baldwin stated, the ridership has actually declined over the number of years, but I don't think that's the question. I think the question is, that has - 20 - \.."...' (Queensbury ZBA Meeting 5/22/96) '-.-' been put before you is, is this a change in use, and the answer is no, and is there construction now when there wasn't before, and the answer is no. Nothing has changed since 1982, when I started riding there. There was construction in '82, '83, '91, '92, '93, '94, '95 and '96. It didn't start in 1994, and I believe that's what this gentleman i~ basing his argument on. MR. CARVIN-Okay, but you have acknowledged that there have been changes since the 80's. It's not the same track that you started out on. MR. SINGER-No, but that doesn't make it anything other than a motorcycle riding area. The fact that it's a track does not change the fact that that's where you go and you ride and you jump. You don't have to jump. You can go around the jumps. MR. KARPELES-Are there organized races there? MR. SINGER-No, not to my knowledge. I've never seen that. MR. KARPELES-Time trials, or how does that? MR. SINGER-Folks just go out and do your laps. A lot of riders are riding slowly. MR. KARPELES-Do people ride abreast, or do they just ride single file? MR. SINGER-Normally, single file. It's a safety, and we space ourselves far enough behind the rider in front so that in the event that he falls down, you don't end up on top of him, and you're possibly injuring yourself and the person that's down. It is a well controlled situation by the people that are using the facilities. MR. CARVIN-Anything else? Thank you. Anyone else in support? THOMAS MCDERMOTT, SR. MR. MCDERMOTT-I'm not very proficient at using words to get my ideas out, and I'd just like to point out, as you said, we hope we see a democratic process with this meeting. I learned to ride there 54 years ago this month, and whatever decision is made, I'm sure myself and my wife, my eight children have all learned to ride in that field, and we accept it. Our neighbors will accept it, and we'll go from there, but these children deserve and need, to keep them out of dope, as Rick Singer just mentioned. It kept me off South Street, becoming a bum, when I was a kid growing up, although I shouldn't refer to South Street as a place where bums are promoted, but Mr. Martin and my good neighbors that are in that position have your feelings and your rights. If those children are turned down of this facility, not necessarily that place right there that we're referring to, but a facility that this Town owes those children. This Town has done things for bicycle riders, hikers, swimmers. My God, my grandmother and grandfather's place in Jenkinsville is now a Town recreation place, and to see this sort of thing go down the drain bothers me quite a bit, but if it turns out to be negative, we'll accept, I'd like Mr. Martin and the good neighbors to meet those children there at the entrance to that field and tell them they can't ride there and watch the expressions on those faces. Thank you. MR. CARVIN-Anyone else in support? Anyone opposed? THOMAS FRAMM MR. FRAMM-Good evening. My name is Thomas Framm. I've been a resident of Sunnyside Road for the past six and a half years. In - 21 - .,.....,...;.-...""""'...,.: ,--",,' (Queensbury ZBA Meeting 5/22/96) those six and a half years, we've kind of seen motorcycles come and go, but last year, a local excavating contractor brought out some heavy construction equipment and built a rather large motorcross track, certainly larger than I have seen since I've been up there. I'm not begrudging the McDermott's heritage and the other people riding their dirt bikes, but listening to in excess of 15 motorcycles, seven days a weeks, I made it through 12 years of high school and four years of college. I can count. There has been an extreme dust problem they've created. They've put up some trees, white and red cedar. We've had in excess of four inches of rain in the past 30 or 40 years, and just this evening there was a large dust cloud going around the field. Everybody has a right to recreation. I don't want to sit here and Heat a dead issue, but the dust problem is getting rather uncontrollable as it comes in on the sun porch. You're going to hang clothes outside. I. just think we have to come to a happy medium here, and not go out and chew them out of a place to ride. I mean, the Town has some land available, they could make a dirt bike track. That's all well and good, but we have to reach a meeting point on this, and something has to be done. Thank you. MR. CARVIN-Okay. Any questions? Okay. Thank you. SPEAKER-I just wanted to ask if I could speak in favor, after hearing these comments that were just made by this gentlemen. MR. CARVIN-Well, I'll come back to that. opposition. Let me get the JOANNE MYETT MRS. MYETT-Yes. I'm Joanne Myett. I live on East Road, right beside this field. It has changed, because there used to be motorcycles that went out there, yes, but now it is dirt bikes, constantly, day after day. You can no longer open your windows or your doors. We can't have picnics outside, nothing. You can't hang your clothes on the line. Do we have to give this all up? MR. CARVIN-If you're waiting for an answer from us, you'll have to wait until the end. MRS. MYETT-I know. This is what I don't understand. get changed to that? How did it MR. CARVIN-Well, hopefully we'll find out. MRS. MYETT-Okay. MR. CARVIN-Okay. Thank you. CATHERINE BREAULT MRS. BREAULT-My name is Catherine Breault, and I also li ve at Sunnyside. My husband and I moved there three years ago, and when we first moved there it was a nice looking cornfield, and around the outskirts the bikes would go around. There was dust back then even, but at least the corn would absorb the dust and we wouldn't see the quantity of the dirt coming through. Since Elva died, the cornfield started kind of changing it's terrain a little bit, and then what would happen was the backhoe would come out and all of a sudden the ramps, and dirt bike ramps, things like that pits and everything started coming out. What we did was, you know, we closed our windows and turned the fans on. We tried to ignore the dust and everything, but it's gotten so bad that, as the other woman has said, on the interior of the window sill, there's like dust lined everywhere. You cannot hang your clothes out back. I had a baby two weeks ago, and we're here tonight because I wanted a baptism party this past Sunday in my yard, but I knew that there were going to be anywhere from five to fifteen two stroke engines - 22 - \..- (Queensbury ZBA Meeting -.../ 5/22/96) being out in that field, each doing their own little thing, anywhere from 12 o'clock to 8 o'clock at night, and I knew there was just no way that I could have a party of 26 people in my back yard, and that really bothered me, the fact that I ha~ to turn around and move my party elsewhere, and I have a very nlce large back yard, perfect for a party, and I really sympathize with all the other people, and I agree, there needs to be a happy medium. I don't understand that I need my daughter's nap to turn around and have a fan in order for her to sleep through those engines, and it's just ridiculous the amount of time that they spend out there. It's incredible and, you know, you should be able to entertain your guests any time of the day, whenever you want, but I will not have any picnics out there this summer, because I know that Saturday and Sunday are free rein, and then once school stops, college is out, anybody who wants to go and ride there really can. As soon as they sign a waiver, that'sitheir right to go there. So I feel bad for my neighbors, too. It's not just for illY entertainment rights, but for theirs also. I looked out one afternoon and there was a huge gust of wind with a pile dust maybe bigger than this room, headed right toward Ridge Road, and I said, I feel really bad for the people down at Ridge Road. I'm like, I'm really stupid. I should feel bad for me, too, because not only does it go that way, it comes this way, as soon as the wind blows a different way, and it's just getting to the point where, if the quarry needs to come up, that's fine, ride around the corners, but don't just clear the lot and make it a dune buggy race track, it's just the bikes are going, and, you know, it gets to the point where it's almost ridiculous. MR. CARVIN-Any questions? Okay. Thank you. GRACE RENAUD MRS. RENAUD-I'm not very good at speaking. I'm kind of nervous about this whole thing. My name is Grace Renaud, and I'm speaking for my husband who's in North Carolina right now. We live on 15 East Road, and probably our house the closest of all to the field. We are probably, you can just walk across, maybe 50 feet away, and, I mean, you can't put an air conditioner during the summer, because that dirt and dust is just going to draw right, which it does most of the time anyway, but this is terrible. We cannot open our door and have our t.V. on because you cannot hear the television, and as far as it just being children out there, no. There are adults out there. My husband was in the window here maybe two weeks ago, and there was one of the trailers out there with the gentlemen stripping down to their underwear and putting their motorcycle boots on. These were not children. My husband said he wished he had a video camera at the time, but unfortunately, and as far as the changes up there, it's cornfield. I mean, I've been in this area. I was a Kellogg originally, and we built some of the first houses on the road. I was originally married to Mr. Myette, and never was it the conditions it was now. We all used to be upset at times with the motorcycles because of the noise, because they had the big bikes and they'd test ride them up and down, and they'd test ride them around the paths, and if you went down into the fields and out into the woods, you would find jumps down there, but the jumps down there, you'd get the trees and the dirt, they're absorbing that noise. You're not hearing the noise, but this is, and I mean, that field can be pretty full at times. I mean, you look up our road, you go up the road, and you will see several vans up there with the trailers that brings in the motorcycles and what not, and it's just a little much, and if they want to see pictures as to how, go up and take a look at the place now the way it was, and I have some pictures here from years ago that showed what the cornfield looked liked, right directly across from my house. MR. CARVIN-The applicant has indicated that, and I don't want to be misquoted here, but that the number of riders has been decreasing - 23 - · ..rf'....,.,.'"",~'Ò"-_~._i.t:"'J"....~ .._- ~ -/ (Queensbury ZBA Meeting 5/22/96) over the last few years. or substantiate? Is that something that you can agree to MRS. RENAUD-Well, right this year it's incrkased. It's increased tremendously. I mean, you'd have a few riders out there once in a while test riding the bikes around the field or something, and it would be real noisy, especially when they got right in front of your house and the noise, you know, but you tolerated it because it wasn't your neighbors. You do put up with some things from your neighbors, but it wasn't, I could open my windows. I didn't have to worry about putting my fan in, you know, my air conditioner in. Like this year I don't really dare. As far as if we ever wanted to sell our house, anybody ever came up and looked at our house and wanted to buy it and come up there on Saturday or Sunday or even on the weeknight and heard that commotion, they're not g~ing to want to buy it. They're going to run like hell. I mean, who would want to? They don't want to listen to it, and, I mean, I think it's great as far as children are concerned. Children do need things, but you also can't put it at the expense of everybody living around, and like the other lady said with her baby being able to sleep, having to close the windows. It's just not what it was, and I raised babies up there, too. I had two of them up there. MR. CARVIN-Could we take a look at your pictures, please. MRS. RENAUD-These are actually my sister-in-law's pictures. I'm surprised she didn't bring them up here, and there's even dates. This is my house, right here to the front, this is the front yard. See, I live where my sister-in-law lives now, but I did live up the road before that, and I think if you looked up there now, I think you'd see a big change from those pictures. MR. MARTIN-Fred, we do have a video tape, if you want to see it later on. MR. CARVIN-Well, when we get to it. MRS. RENAUD-And you can see how close, basically, my yard is through the cornfield. MR. CARVIN-Okay. We'll get these pictures back. I'm just going to pass them to the Board. MRS. RENAUD-Thank you. MR. CARVIN-Anyone else wishing to be heard in opposition? ANNE FULLER MRS. FULLER-My name is Anne Fuller. I live at 3 Brookwood Drive, which does not directly adjoin the cornfield. It's about a mile away, and without even looking at the field, I know that there's been a drastic change in usage. I've been out to my yard just about every weekend in spring and summer doing gardening since 1990 when we moved there, and I've never noticed a level of noise that I have noticed this spring. On Sunday, May 5th, we noted that there was like five or six hours of constant motorcycle noise. We drove over by the field, and we were shocked by the appearance of the field. It looked like I had never seen it before. There were ramps. There were hills. There were picnic tables out in the middle of the field. It had never looked ,like that, and without even looking at the field, I knew that there was a drastic change, because I had never noticed the level of noise before this spring, and the way it is now, I can't go out and enjoy my property because the noise is so terrible, and the people who live directly by the cornfield, I can't imagine how terrible it is for them, and the noise is a million times worse right by the cornfield, and we could hear the motorcycles in our house with the doors and windows shut. - 24 - "- (Queensbury ZBA Meeting 5/22/96) "-'" MR. CARVIN-Okay. Any questions? Okay. Thank you. Anyone else in opposition? RALPH CHAMBERS MR. CHAMBERS-My name is Ralph Chambers. I live directly adjoining the field and it has been going on for years, but not to the extent it' has this year. When they went from simply riding motorcycles to motorcross, where the spin in digging wheels, it got so bad I went out and shot a video, and I gave the video to Jim. I don't know if you fellows have seen it or not. MR. MARTIN-It's right there. MR. CARVIN-Not yet. MR. CHAMBERS-It'll indicate the level on the particular date she talked about in May. Ther.e was 20 motorcross motorcycles out there running, full steam ahead, and you have never heard any noise, it was brutal. MR. CARVIN-Okay. I Are we set up, Jim? MR. MARTIN-Yes. MR. CARVIN-Does the Board want to see the video? MR. KARPELES-Yes. MR. CARVIN-Jim, do you have any idea how many motorcycles are there? MR. MARTIN-I would say approximately eight to twelve maybe. MR. CARVIN-Okay. Has the Board seen enough? MR. KARPELES-Yes. MR. CARVIN-All right. Anyone else in opposition? CHRISTINE KUBRICKY MRS. KUBRICKY-My name is Christine Kubricky, and the video, you can see our house in the video. We live directly across from the cornfield. Our property line is about 20 feet from the McDermott's property line. I do respect the McDermotts and their riding and the purpose for riding, but the cornfield, it has been a cornfield for as long as I can remember. I've been in that home for the last 15 years. There is no corn this year. Last year and '94 they went from a cornfield with a track, a flat track, I believe, to no corn and several jumps, and this year they doubled the amount of jumps. There used to be small dirt bikes and small children riding on the cornfield. I see the cornfield and the dirt, the track every day. There are probably only two small children who ride in that field that I can tell. Most of the people who ride are adults. They are no longer neighbors that ride. There are people from towns all over. Their license plates from South Glens Falls, Hudson Falls, Fort Edward, Vermont plates. So people are coming from everywhere. The level of noise has increased dramatically this year. We cannot go out in our yard and sit and talk at a normal level. We have to shout to one another. I wouldn't mind, I do not mind the track so much, although the noise is very loud. I'd feel more comfortable knowing that on Sunday they got three hours and we got three hours, but I know that if there's daylight and it's dry, they're going to be riding. You never know when they're going to come. It starts around 3:00 in the afternoon, and it just goes on, and as long as - 25 - . ._._-~ ,.._..-. .,~-,.....,....-.,~""".- ;,····,....··'·~r·'...·...',:",.,"_'·,_· '.'", -.,~.., ~ .~._.,....."..,-_.."'~*.,.....~.. ,_.".~,~.,. ,., ~':~-.....".':. '.-.'.". '~." ...;¡-...--....., ',,---, ~ (Queensbury ZBA Meeting 5/22/96) there's daylight, they're riding, and it would be comfortable knowing that possibly not every Saturday, Sunday and every holiday, every nice afternoon that we could share that time with them and also enjoy it. It's an attractive nuisance. They are there and they're enjoying themselves, and I understand their reasons for wanting to be there, but I'd like to see a compromise made so that we could live with it also. I do not want to see it stopped, because I know how much they love the sport, but I would like to be able to enjoy, we own a home in a residential area, and I would like to enjoy my home in that residential area, and I think that the few times, I've only gone over once to talk to them. They were not willing to make any compromise on their part, whatsoever. MR. CARVIN-Okay. Any questions? Okay. I want to point out that we're not here to decide whether this use continues or is discontinue. That is not the issue. The issue is if there's been a change in the land, and whether the Zoning Administrator's determination is correct or incorrect. So I want to kind of emphasize that right from the start. We're not here to take anything away or give anything, other than an opinion to either support or not support what our Zoning Administrator has already determined, okay. So, if you're looking for relief to have this banned, from this Board, that's not the issue, okay. Is there anyone else in opposition? All right. MIKE O'CONNOR MR. O'CONNOR-I'm Mike O'Connor, for the record. I've been asked to represent some of the neighbors, Mary Reese, Florence Turnbull, Richard VanDusen. I intended to do that anyway, to tell you who I was representing. Purdy Yager, Ralph Chambers, and Thomas Brapp. I understand there are people that have at least put together a group for me to represent. I'll show the Board a tax map of the area, if you aren't familiar with it, and the area in yellow appears to be the area that we're talking about. The people that I represent are lot owners in this insert, which goes right to the front of the area in yellow. There's people that are most immediate, or almost most immediate to this proposal. I think we could go on for some time tonight and listen to everybody speak, and of the group that I have spoken to, they all have seen a drastic change in the land in the last couple of years, and there's a little confusion on their part as to, some of them, as to exactly when the heavy equipment was brought in and the jumps were put in place, and what not, and if you've been up there, and I know that the Board takes the time to go up and look at sites, you're going to see that what was there remains of a cornfield has been interrupted, for a good part, with the jumps to hold whatever they put in. This is a map, and Mary Reese has put this together, which would also show the neighborhood and show the track, and some indication of the jumps that were put in recently, and you also have the history of what you're now seeing as far as activity. Apparently, what has brought this to a head is that this has just become unbearable in the fact that it is continuous. Any time that there's a nice day, the people are out there trying to enjoy the track, to the point that the people can't enjoy their homes, in any sense, like they used to. The balance tha~'s left, that used to be use of a flat area in and about a cornfield, by, for the most part, people within the neighborhood, has become a regional attraction. I think besides just a change in the actual land and in the definition, and I don't have any problem saying that that exception for landscaping is not the exception that fits this case. That change in the land was made to accommodate another use other than the purpose of just landscaping. I think that that's the way that exception in that language is written. I think that's the way it's been interpreted. That change in the land, which has recently been made, has been made to accommodate the traffic, to accommodate this regional attraction, which has people coming in from allover. We've heard a lot of discussion about children learning how to - 26 - '~ (Queensbury ZBA Meeting 5/22/96) -.../ ride. I'm not sure that their vans showing up, their trailers showing up, I'll probably murder them, but different racing accompanies their teams, whether regional teams and local teams, whether somebody just has that on their trailers or not. It's different even in use as well as physical characteristics of the land. I think there is a nonconforming use of some nature, and that's our problem. This always seems to be our problem, when you have neighbors against neighbors, is defining as to what was the limits of the nonconforming use, what is the parameters that may be permissible expansion of it, and we get into all kinds of discussions, and this probably will be the only night that you're going to discuss this here before it is resolved, but I think, clearly, there was a change in land. Even the applicant has admitted it. I have a little question in my mind, just from a technical point of view. I don't know the standing of the applicant, because I don't know who owns the land. I've heard both Mr. McDermott Senior and Mr. McDermott Junior speak. I don't know if the actual applicant here, Mr. McDermott Junior, has any standing at all because I don't think that's his land that we're talking about. I think that's Mr. McDermott Senior's land. I may be incorrect. I may not be. I don't understand that part. MR. SCHACHNER-I don't think it matters. Anyone can appeal the Zoning Administrator's determination, literally anyone. So I think it's irrelevant. I don't know the answer to the question as a factual matter, but I don't think it matters. I MR. O'CONNOR-I also am not clear as to exactly what the relationship of all the parties are. I've looked at some of the minutes of the meeting that was before the Town Board when this was an issue, and I understood that some of the people who are using the track or utilizing the track, in fact, gave in kind services, perhaps in consideration of use of the track, which might bring it into the outdoor commercial nature. So, if you stick just to the issue, is Mr. Martin correct in saying that there's a change in the use, in the sense that there is a change in the land, I don't think there's anything that is of issue here in fact. I think even the applicant has admitted that he has installed a track. As I understand it, that cornfield was used and was grown annually on a regular basis, while the grandmother was alive, and only since the grandmother has passed away have they discontinued using or having the corn crops. There's another video here which was taken from the back of Mrs. Reese's house, which would probably give you a better idea as to the relationship of those houses shown on that map, as to some of the actual noise, and some of the problems that they are enduring because of this activity. It's a total eight minute video, but I think she's got it set for less than that. It's about five minutes long. MRS. LAPHAM-Mike, when you talk about II in kind II services, what exactly are you saying? MR. O'CONNOR-As I understand it, some of the people that are using the track donated their equipment or material to help construct the track. MR. CARVIN-I would remind the Board that we are here to determine whether Mr. Martin is correct in his interpretation. So, bear that in mind. Mike, why don't you show us the video. The Board says they'll watch it for a while. Has the Board seen enough? Okay. Thank you, Jim. Is there anything else, Mike? MR. 0' CONNOR-Yes. I think that video was taken May 5th, and approximately 200 feet from where Mrs. Reese was standing was the closest of the bikes that she was trying to get the sound of. I also, as counsel for the applicant, went through the Ordinance and there are a couple of other issues the Board may look at. This may very well be an amusement center, if you look at the definition, in - 27 - ~""-'~."'---~'~----'~""~"-~" -. "--'~'-~------'--- -.----.---....-- ~.,.. .I.", "'i..,'....".......".......,...,........J~"*,~"..,'<._-.,.,, .,.... ........... ...'".....~...,.-~~",.,~)...,',}'"......,' ,. :._".~'"".....,..,. ><-,.,,,.'>;.,'~"""'"',,,.~,'.; ~ .,r,;·,..-"'·''"''\ii~i.;'''IIiö;, "-..--- ---' (Queensbury ZBA Meeting 5/22/96) addition to simply a change of land use. It may also be a camp, and I'm just basically looking at the definition that we have there, all of which requires some type of permit, and not withstanding the fact that it may have some standing for nonconformity, it also may be deemed to be an expansion, a growth or activity which requires the enlargement of a facility, and if you get into the enlargement of a facility, they talk about alteration of facility, changing the location of the facility. As I understand Mr. Martin's interpretation is that the applicant cannot proceed with the activity as it presently is in existence without applying for a permit. I don't know if he determined what permit would be applicable, whether it be a Use Variance or whether it would be a special use or what. MR. MARTIN-Well, there is no provision for special use.. It would have to be a Use Variance. MR. O'CONNOR-I think that would be the summary of what ~ would comment. Mary has some statements that she would like to give the Board, too. MARY REESE MRS. REESE-My name is Mary Reese, and I live at 155 Sunnyside Road. I've been a resident of the Town of Queensbury, residing in this home for the past 59 years. My husband was in the military for a number of years, but I would return every year to visit family. My cousin Tom McDermott started a part time motorcycle repair shop in the mid 50' s. He would periodically test drive motorcycles in this field. In the mid 70's he applied for a variance to open a Harley Davidson Motorcycle shop. The neighbors and myself supported him in this venture. The motorcycle shop and the use of this property as a motorcross track has no connection. The motorcycle shop, the Harley shop, has now been re-Iocated to Route 4 in Washington County. Tom McDermott himself has moved to West Fort Ann. His son, young Tom, lives in his former house. My children, his children and neighborhood children, during the summer school vacation occasionally ride many bikes and motorcycles, not dirt bikes, around the corner of this field. There may be three to five at anyone time. The field at that time was pasture grass. There was no quantities of exposed dirt. If the riding got to be excessive or bothersome, I could call my cousin and it would stop for the day, with no problem at all. It was strictly our children and the local neighborhood using the field. Some time during the late 70's Elva McDermott leased her property to a farmer to plant corn. Therefore, from the late 70's, from the 70's right up until the summer of '95, the use of that land had been for farming. Over the past two years, once the corn had been cut in the field, dirt bikes started using the land. It is in no way the same type of use of motorcycle usage that previously existed. Young Tom is now leasing the property from his father for use as motorcycle (lost word) . He has had bull dozers and other excavating equipment brought in to reconstruct the land. This motorcross track covers the entire, whatever, nine acres of land with at least a dozen hills and jumps. There is no pasture or grass area to be seen. It is approximately nine acres of total dirt. On a daily basis, people from outside our community trailer in their dirt bikes into our Town of Queensbury to enjoy this motorcross track in an area that is zoned Three Acre Rural Residential. This woulq be up to 15 bikes at one time riding on the track every day for a duration of two to six hours. The back side of our property is situated right dab in the middle of this track. On this back side is my property there are 12 evergreens trees that each stand 20 foot tall and have a circumference of 15 feet that provide no barrier whatsoever from this motorcross track. Another potential hazard that should be given attention to is the motorists on Sunnyside Road. During the dry months that we experienced last summer, the dust clouds are so thick that they impair visibility. The safety of motorists and - 28 - '"--' --..-/ (Queensbury ZBA Meeting 5/22/96) children playing in their yard should be considered. The use of this land has changed drastically over the past two years. I've been told that the present use of this land has been allowed to occur due to the "grandfather clause". The present use of this land is in no way the same use or a continuation of the use that has been in previous years regarding motorcycles. For the most part, the last 15 or more years, it has been used for farming. Thank you. MR. CARVIN-Anyone else wishing to be heard in opposition? GERTRUDE VANDUSEN MRS. VANDUSEN-My name is Gertrude VanDusen, and I live at 172 Sunnyside Road in Queensbury. My home is on the south side of Sunnyside Road. Our family also own vacant land on the north side of Sunnyside Road across from my home and bordering the motorcross track built last fall and enlarged this spring on the McDermott cornfield. I appear tonight with a sense of sadness and out of desperation and fear with what the future of these people in the Sunnyside area could be like. I'm sad because after living on Sunnyside Road and my family home for 49 years, to see the neighborhood so desecrated with that activity now occurring in the form of the McDermott cornfield. I am sad to see the peace and tranquility of the neighborhood disrupted. I'm sad to see the agitation when we can no longer enjoy our homes and yards during the time of motorcross activity. It's sad to know the value of our property is decreasing every time that the motorcross track is used. Who will buy property next door to a motorcross track? Up until last fall, it was not unusual for a road bike to be ridden on the back grounds of this land or maybe even a racing bike. I do not deny that, but I firmly state this. Those are not the dirt bikes that are being ridden there now, and up until last fall, there was not, and I repeat, there was not a motorcross track such as we have now in that field. I'm here tonight to object to the change that has been made in the use of this field. It's no longer as agricultural lands as it's primary use. It is not now vacant land either. It is land in a residential area that should be used accordingly. Instead this field now has a man made active motorcross track that from what I understand must be well laid out, because it's attracting dirt bike riders from a wide spread area. The building of this motorcross track has changed the character of the land. Heavy equipment was brought in and used to create a motorcross track, holes were dug, hills were made. The terrain was definitely changed, and if this motorcross track is allowed to continue one can expect expansion, more dirt bike riders, more disturbances of peace and quiet for the Sunnyside Road and area land owners, more complaints, more noise, more dust and more traffic on Sunnyside Road. We've already seen people stop cars on the road to watch, and who knows what else. Where will it stop? Maybe weekend races, bleachers, food concessions, all in a residential area. Is this something that we have to be faced with. I'm asking that the McDermott appeal be denied, that the motorcross activity be-stopped and that the McDermotts be made to restore the land to its condition before the motorcross track was built. Thank you. MR. CARVIN-Anyone else wishing to be heard in opposition? HENRY SCHWAEBLE MR. SCHWAEBLE-I'm Henry Schwaeble. I live across from lake shore on East Sunnyside Road. I lived there for the last 14 years, and I'm here because my wife started to complain about it, and she said if we want to do something, speak up here. I like the outdoors, and when you're outside, in the last two years, I would say, when it's nice, and when you're outside, it sounds like a thousand swarms of bees, and it goes on for hours and hours. I lived before on the upper lakeshore. My neighbor had a race track in the back, - 29 - -",..~ "-.~-,,.. - "...._~." --,......-.- -~-~,~.. .. ."~_.,' ~ ,-......,...,.-.... "-- - (Queensbury ZBA Meeting 5/22/96) and they had races with a greater number of motorcycles than are involved here, but it went on for sometimes two or three hours, and that was the end of it. Maybe they had some training session that they had two days before, and that was it. You'd know there was an end to it, but the situation here goes on, especially on weekends, from morning to night, and one time I was jumping in my car to go to Lake George to get some peace and quiet, but mostly I'm here in support of those close neighbors that are closer by, the dust and the noise is unbearable, and I hope it will be changed. Thank you. MR. CARVIN-Okay. Thank you. MR. SCHWAEBLE-I forgot to mention. I used to drive a motorcycle myself. I have nothing against motorcycles. In my day, you got a ticket for a noisy muffler. LOU STONE MR. STONE-Hi. Lou Stone, North Queensbury. This is a very interesting presentation tonight on both sides. All I'm here to do is ask the Zoning Board of Appeals to support the Zoning Administrator. He's made a decision. I believe it's a correct decision. I think this should be open to a public hearing, and public discussion and you should support the Zoning Administrator. Thank you. MR. CARVIN-Thank you. opposition? Anyone else wishing to be heard in MARIAN MARCY MRS. MARCY-My name is Marian Marcy, and I live at 12 Brookwood Drive. This September I will have been there 28 years. I am here in support of the people who live directly there, but I want to tell you that we in Brookwood are greatly affected by it. The race track has changed. It is unbelievable. The noise on our porch, you cannot be out there. So I can't imagine what it's like for these people who live there. I also am a licensed real estate broker, and what does this happening, these people are saying they spent a lot of money or one man spent a lot of money buying motorcycle equipment for his daughter. Well, we've spent a lot of money on our homes, too, and this is devaluing them tremendously, and if the property did sell, and someone wasn't aware that the motorcross track was there and purchased the home, an appraiser went out there and the motorcycles were in progress, that's all it would take, and I feel this is not fair to all of us. This is the biggest investment we have in our lives is our private homes, and I think the Town of Queensbury owes us some responsibility in this regard. I think we should support Mr. Martin in what he has decided. That's all I have to say. MR. CARVIN-Okay. Thank you. Anyone else in opposition? Okay. There was someone over here who wanted, in support. Yes, sir. Okay. Is this a rebuttal? You've already spoken, is that correct? MEMBER OF AUDIENCE-Yes. I've already spoken. MR. CARVIN-Okay. I'm looking for any voices that have not been heard before we go to rebuttal. Do you have a comment? CRAIG KRAFT MR. KRAFT-My name is Craig Kraft. I live probably two tenths of a mile from the McDermotts there where the bikes race. I'm an avid walker. I go down through all the time, walking. I've heard people say anywhere from three bikes to ten bikes, seven bikes to fifteen bikes. I've never seen more than a handful of bikes out - 30 - \",....-. (Queensbury ZBA Meeting 5/22/96) --,' there, and I've never seen children or grownups or anybody on this property without proper safety equipment on their bikes, you know, helmets, knee pads. I think there's a lot of responsibility being taken out there. I don't know these people personally. I don't know them other than tonight when I met them in here, but it's a shame that the children can't go some place and learn a positive way and, you know, learn how to ride a bike. As far as when they come up near the roads, I've lived up here six years. I've never seen any of these motor bikes come near Sunnyside Road. They come out of the field, 90% of them that I've ever seen, walking out the front yards, and we're talking about the safety of children who live in the area. Right on Sunnyside Road, I can't count, half of those children that live between Ridge Road and, say, the Par Three Golf Course. We're hearing from people that live a mile and a half, two miles away from the site. Now they must have some awful good ears, because I live, like I said, less than two tenths of a mile from that site, and I sit outside, I like to drink coffee, I don't hear these bikes out there. It's just like cars going up and down in front of your house, after a little while, you miss hearing that sound. You turn out, don't listen to it, and I just don't understand what all the objections are. They're talking about a cornfield. What was it before a cornfield, a grass field? What do farmers do with their land? They change their land appearance all the time. Somebody decided not to re-grow corn this year, or last year, that constitutes land change? That's something that's artificially planted every year. What's the difference if they grow corn, hay, wheat, you know, vegetables? It's still a field. All their doing is putting bikes on it. It's privately owned. It's my understanding it's not even being used for a commercial purpose. Somebody doesn't have the right to use their own land for the way they want to use it? That's all I have. Thank you. MR. CARVIN-Okay. Thank you. Yes, sir. RICHARD KUBRICKY MR. KUBRICKY-I'm Richard Kubricky. I live on Hewitt Road, and my property is 25 feet from the cornfield, and my pool is 160 feet from the nearest track that runs by here. We're not talking Hells Angels people here. I They're all good people. They're all my friends, up until tonight. I hope they're my friends after I leave here and say what I want to say. I think there is a need in Queensbury for a track for these young people to ride on. However, the track we're talking about is in a residential area, and it's got a cornfield, and I've been there since '62. So that's 34 years. It's always been a cornfield or a cow pasture since I've been there, and people riding motorcycles through there on occasion, they ride through for an hour or so. They'd disappear. You wouldn't hear from them for a while. If you get a wild kid going through, you'd go and talk to his parents or talk to Elva McDermott when she was alive and she'd straighten it out, or Tom Senior. He'd straighten it out with no problem, but it's changed now with this track that's been installed. There is a track. You call it a practice track or race track. When they were practicing, they'd raee out there, and you'd get six or eight of them racing each other, it's horrible noise. I work heavy equipment. I sit next to engines all the time. It's not the same situation here, and what upsets me, that my wife and I can't sit by the pool and talk to each other, and this gentleman that just spoke, I sympathize with him. My kids have been over the years in that field, but it's gotten so bad now that the quality of life that we have, I can't afford to go away every weekend to get away from it. My daughter in law goes over to her mother's house in Argyle, but we stay where we are. So I think that you ought to recognize the fact that I buy my (lost word) to put my porch in, to put my garage in, to put my pool in. I get my permits, because I think zoning permits is the quality of life, and I think that what we've got here is a violation of the zoning, as far as the track is concerned. I don't want to stop the motorcycles, because even as - 31 - -....,..--.--.. --". ..-._---_.~---~ ...".._..-~"..- ","'--'"~''''.'''--''''''' --- (Queensbury ZBA Meeting 5/22/96) late as Saturday, there was probably 100 Harleys over there at Tom's place, and nice people, no problems, they had a picnic and they left. It's the dirt bikes, this track, that's giving us all the problems, and I think the Town has to address that issue, and maybe in the future meeting that they can work out something that these people that have the motorcross can find some place they can ride, but I thought I had seniority out there, as far as where I live, and the length of time this track has been there. Thank you. MR. CARVIN-Anyone else wishing to be heard? BRUCE STEVENSON MR. STEVENSON-Hi. I'm Bruce Stevenson. I guess I'm the bad guy here. I built this track. Maybe these neighbors wou~d like me to (lost word) all these jumps and make a flat track. Then they'll complain about the dust. I don't think it's twice as bad as it is now. I've got a four year old and he likes to ride. Every day I come home from work, he's like, lets go over to (lost word) and ride. What's he going to do when you guys shut this track down? I've got a little track over at my place. Nobody bothers us, over in Fort Ann. MR. CARVIN-Okay. Anything else? MR. STEVENSON-That's it. MR. CARVIN-Thank you. In the back there? TOM SULLIVAN MR. SULLIVAN-Tom Sullivan, Ridge Road. They have six dirt bikes running around in the middle of the field. How do they get out of there? Where do they go? They don't cross Lake Sunnyside, no. They go across the fields just south of me. They go up Ridge Road and there might be two going up there, four, six. As far as teaching children all these things, the children aren't obeying Posted signs at all. We have Posted signs around our property, and they go right on our property anyway, andlas far as the property, it's, out here in the books it's listed as Elva McDermott, that piece of property, name and number, I looked it up this afternoon. MR. CARVIN-Okay. Okay. Rebuttal. Thank you. Anyone else wishing to be heard? MR. MCDERMOTT-I'm Tom McDermott, and obviously, everybody knows that now. I don't let people ride when it's dusty. I have, I stop them. If it's too dusty, they stop. I do not let people drive seven days a week any time they want. That's not the way it is. They call me. I tell them whether they can or can't. I've never let them ride before one o'clock on Sunday because church is down by the fire house. They need their time. I've never let them ride any time before one on Sunday. On Saturdays, I tell them noon to five, noon to six, then they're done. It works out about three days a week we ride. It's not seven days a week. It's not, in the video, if it's dusty, I have no wife. I live at home by myself, I have to dust. I don't want it in my house either. So I stop them. Some of these things that are being said are kind of really outlandish, this seven days a week and riding like this. That doesn't, it shouldn' t pertain to any of your decisions. Your decision is land use. Was the land used for motorcycles all this time? Yes. Of course they had corn there. Corn only grows for six months. What happened the other six months? There was motorcycles and snowmobiles. Nobody's ever complained about a snowmobile when they leave the bars and they're drunk and they're driving out in the middle of the night. Nobody does that on a motorcycle. This is their way of stopping us from doing something - 32 - "'- {Queensbury ZBA Meeting 5/22/96} else. They've stopped us before. They've stopped us from playing broom ball at the Par Three, which was a great sport. They kicked that out. The same people were behind that. Every time we get to doing something they don't feel is right, we have to stop. I'd be more than willing to sit down with some of these people and pick two days, three days that we could do this. I would love Tuesday, Thursday, Saturday, half a day on Saturday, or something like that, Tuesday and Thursday nights and half a day on Saturday. I would love to be able to sit down and talk to these people about it and do it that way, but all of a sudden they walk up and say, no. Every time they don't like something, no. They call the Town. The Town has to pay a lawyer. We have to pay lawyers now, because they decide it's not right. Who are they to decide what's not right for me and the people like me? That's the only, I'm upset. MR. CARVIN-Okay. Any other comments? ,....,/ MR. SINGER-Again, for the record, my name is Rick Singer. I live on Ridge Road. After what I've heard here tonight, the first thing I would like to do is thank the Board for their patience. There was an awful lot of conversation here tonight considered irrelevant and not on point. Do I understand correctly that the ,point that the Zoning Administrator, if I understand them correctly, is making is that the land use has changed? MR. CARVIN-I believe that is what is being the issue. MR. MARTIN-Basically. MR. SINGER-In that case, I would simply like to point the Board's attention to the fact that not one of the people who spoken in opposition tonight disputed the testimony that other people, including myself, have given, that that land has been used for riding and jumping motorcycles since the 1940's, and therefore no change in the use of the property has occurred. In fact, most of the people that spoke in opposition tonight have, themselves, confirmed the fact that motorcycle use on that land pre-dates all of Queensbury's Zoning Codes, and therefore it must be permitted. Thanks. MR. CARVIN-Anyone else wishing to be heard? Any correspondence? MR. THOMAS-Yes. A letter received 5/6/96, "Dear Mr. Jim Martin: I am writing this letter to let you know that we are against a racing track being in the field behind McDermotts. The noise is unbearable. We can nb longer open our windows and doors because of the dust that comes in our houses. We have lived here for close to 35 years now, and we have never seen a race track out there. We hear that people are coming to race out there that don't even live in this area. This is a residential area. Mr. and Mrs. David Myett Mark ~nd Gail Benware Ada Phillips Phillip J. Forless Mr. & Mrs. Cemile Renaud and Mrs. Ethel Coon" A letter dated May 13, 1996, to the Board "I reside at 3 Brookwood Drive since August 1990. My neighborhood has always been very peaceful and quiet. I have spent many weekends in my yard doing gardening and yard work and enjoying the peace and quiet. On Sunday, May 5, 1996, my husband and I were both outside working when the peace and quiet was disturbed by the noise of motorcycles that continued unabated for more than five hours. Since we have never noticed this noise before, we drove over to Sunnyside Road and were shocked to see that the cornfield behind McDermott's Harley Davidson shop had been turned into a motorcross track. It was completely bare with ramps and hills built up, picnic tables out in the middle, with several motorcycles using the track. The noise up that close was horrific and the clouds of dirt billowing through the area was unbelievable. We were half a mile away from the track and could hear motorcycles in our house with all the windows and doors closed. I can' t imagine how horrible it is for people who live on Sunnyside Road. I spoke with a resident of Sunnyside Road who told me that Mr. - 33 - "'.. .yr'h:t" """,<-<.,_.-."."",,,~,,;,,,,,,,,.,,,.;o:-_"',,, ~"........_-'.- ",-""" --"" (Queensbury ZBA Meeting 5/22/96) McDermott is claiming that his property has always been used in this manner, and that he is grandfathered under the zoning laws. I will attest to the fact that, up until very recently, that propérty was a cornfield. If they had been using it as a motorcross track, as they claim, I'm sure I would have noticed the noise before May 5th of this year. I am sick to think that every weekend this summer we will be subjected to this horrible noise. Our right to énjoy peaceful use of our property is being destroyed by the thoughtless, insensitive and illegal use of that cornfield by Mr. McDermott. He is running a commercial concern in an agricultural/residential area. I am begging you to enforce the zoning laws of the Town of Queensbury and make Mr. McDermott cease and desist from any use of that property by motorized vehicles. Not only is our peaceful neighborhood being destroyed, the value of our property and all properties in the area of this track are plummeting. Please save our neighborhood and our properties. Very truly yours, Anne M. Fuller" A letter received 5/20/96 "Dear Sir: I am writing concerning my 11.72 acres of land on Ridge Road that is situated between Kip Grant's property and a motorcross track, the cornfield previously owned by Martin J. McDermott. I have recently Posted the land to prevent recréational vehicles from using my property without permission. This is a superior residential location that I'm considering developing. The current motorcycle usage adjacent to my property is a deterrent to any progress to our development. Vehicles crossing my land have etched deep trails across the property from Ridge Road to thé motorcross track and various other paths throughout the property. Noise levels are extremely high and not conducive to creating a residential atmosphere. I would like to urge the Town to act against current motorcross type activities, Since I am unable to attend the Zoning Board of Appeals meeting on May 22, 1996, I would like this letter to represent my position on this issue. Sincerely, Bertha Yager and Diane Yager Hayes." A letter dated April 15, 1996 to the Queensbury Zoning and Planning Department, Mr. James Martin "This is a letter in compliance with your laws on complaints. This letter is to complain about a motor cross track on Sunnyside Road. I have been in and talked to you at least four times about same. This last weekend, April 13th and 14th 1996 was terrible. The 13th was so bad I was breathing dust and coughing in my house. The 14th the noise for 6 and a half hours was so bad we could not hear our t.v. or radio without turning volume way up. I have been told at previous meetings this track is illegal. I would appreciate your following through on this action you have already taken. Thank you Mrs. Mary Ellen Reese 165 Sunnyside Road Queensbury, NY 12804" A letter dated May 22, 1996 "Dear Zoning Board Members: Thank you for the letter soliciting comments on the use of the RR-3A zoned property on Sunnyside Road by motorcycles. Our property is to the northeast of the site and well within , earshot'. The use of land by , dirt bikes' and similar ' recreation vehicles' has escalated noticeably in recent years - even more with the creation of the 'track' about which you are conducting the hearing. This spring, the drone of motorcycles could be heard from within our home long before weather allowed us to open windows. It may be music to the ears of the riders but if you're not into the sport, the racket is nerve-racking and annoying - far from what should be coming from property zoned in any way residential, track or no track. Obviously we're opposed to this use. Tom (McDermott) recently told me of efforts to possibly search out an acceptable sight in our area for a more formal track and we are hopeful that a suitable location for this sport can be found. Very truly yours, Kip and Jean Grant" A letter dated May 22, 1996 "We as landowners and residents of Sunnyside E, wish to express our hope that the Zoning Board of Appeals would NOT ALLOW a track use in the RR-3 A zone off Sunnyside Road. This property has been principally used as farm land for many years. To allow a track with the noise element created by motorcycles would be detrimental to the entire community. We are unable to personally attend the hearing, but hope that consideration will be given to our written response. - 34 - '- ~ (Queensbury ZBA Meeting 5/22/96) Sincerely Thomas L. Dougher Sylvia Dougher" A letter dated May 22, 1996 "Dear Mr. Martin: On a similar but different case, is there anything that can be done about the dirt bikers that continually use the fields and sand piles on the west side of Ridge Road just past the town landfill. The noise and dirt (dust etc.) created are bad enough but I am truly concerned about the safety of the bikers most of whom appear to be young men/boys. Several times recently there have been 'near misses' as they cross the road from the fields on the west to the road/train that goes into the sand pits etc. at the north end of the landfill. Is this an approved trail? An approved usage? An insured activity covered by the Town? M. Somerville" MR. CARVIN-Excuse me, Chris, how many more do you have? MR. THOMAS-Two more letters, a telephone conversation, and two comments. MR. CARVIN-Okay. Just give me whether they are in support or in opposition to the Zoning Administrator's appeal. MR. THOMAS-The letter dated May 22nd is in opposition. MR. CARVIN-To the Zoning Administrator? MR. THOMAS-It doesn't say anything about the Zoning Administrator in here. They're just opposed to the track. MR. CARVIN-Okay. MR. THOMAS-A letter dated May 21st, another one opposed to the track. MR. CARVIN-Who was that from? MR. THOMAS-Mrs. Samuel Somerville. MR. CARVIN-Okay, opposed to the track. MR. THOMAS-And the one before that was M. Somerville. MR. CARVIN-Okay, and the telephone conversations? MR. THOMAS-Opposed to the motorcycle track, and the name on that was Pauline Lawrence and Heidi Durkee, opposed to it. A statement, "The names appearing beneath have no objection to this application by Mr. McDermott. 5/17/96 Lee Barton Elizabeth Barton" A letter, a statement from Stephen M. Kelly having no objections for Thomas L. McDermott operating a riding area, dated May 21, 1996. MR. CARVIN-Is there any other public comment? MR. THOMAS-Wait a minute. We've got one more. Another letter in opposition, ·dated 5/22/96 from Norman S. Himes. MR. CARVIN-All right. Seeing none, hearing none, the public hearing is closed. Okay. Any questions of the applicant? Any questions of the Zoning Administrator? Jim, am I to believe that your position is that there is a change in the land use under Section 179-7? MR. MARTIN-Yes, and again I'm specifically relating to the track. MR. CARVIN-Specifically relating to the track. Okay. Having heard an awful lot of testimony, I'm going to bring the Board back to what Mr. Martin is saying. I'm assuming that what he's saying is that there is, because of the construction and other activities which have materially changed the use or the appearance of the land - 35 - ._~_..,"~-~_._- " - .._---~--+ ,<"",>C...__. .,,"'_',,~~__.......____ ._ ,~__<~..~.__..",....,..... . ...~,....-. -".~."~-.".,-.-.~..' ~.-'''''''-"_' -,,,,,,_._,~ '---' - (Queensbury ZBA Meeting 5/22/96) or a structure or the intensity of the use, Mr. Martin feels that, I don't know, what do you feel, Jim? MR. MARTIN-I feel that the track that is a new dimension to the use there, that previously did not exist. MR. CARVIN-And that a Use Variance would be required. MR. MARTIN-Yes. MR. CARVIN-Okay. Does the Board understand the Zoning Administrator? Does the Board understand what the applicant is saying? All right. I will ask for opinions. Chris, what is your thinking? MR. THOMAS-Well, it's illY opinion that this has been an increase in use, and that, from testimony given by the neighbors, that the land has been changed, and hills, jumps, washboards have been added, and there has been more riders on the site, which has created more dirt and dust, but I do believe, from the testimony given, that there has been an increase in use. MR. CARVIN-Okay. So to summarize, I guess I'm hearing that you're saying that the Zoning Administrator's interpretation is correct? MR. THOMAS-Yes. MR. CARVIN-How about you, Bob? MR. KARPELES-I agree, too. Evidentally, open space recreation use allows a trail bike trail, or a cross country ski trail. It appears to me that this has changed from a trail to a track, and I agree with Jim. MR. CARVIN-And his interpretation? MR. KARPELES-Yes. MR. CARVIN-Okay. How about you, Bill? MR. GREEN-I'd have to agree with them. To change the appearance of the land and the intensity. It's got to be a new use. MR. CARVIN-Okay. You, again, concur with the Zoning Administrator? MR. GREEN-Yes. MR. CARVIN-Okay. How about you, Bonnie? MRS. LAPHAM-Absolutely. When you have a few neighborhood people riding around the perimeter of what used to be a cornfield to now a full fledged dirt track without vegetation anywhere and a lot more bikes and a lot of people from out of the neighborhood by their own admission, some woman said they come from other places not Queensbury, yes, I think that is a change and I would uphold Jim's decision. MR. CARVIN-I also concur with the Zoning Administrator. I think that the changes that have occurred out there do materially change the use and the appearance of the land, and certainly it will have and does have an effect on the intensity of the use, and I concur that a Use Variance is in order. I think this is an awful lot of similarities to the Mooring Post. We're not taking away the use, and I think Mr. Schachner's heard, he's used the argument of a restaurant. I mean, a restaurant is a set situation, and when you start changing the dimensions of the restaurant and allowing more folks to come in, then I think the community does have a right to look at that, and I think that this is a situation where an - 36 - ~ (Queensbury ZBA Meeting 5/22/96) ~' intensity of use is being fostered by material changes to the land, which I think allows this Zoning Board to support our Administrator in his determination that this is probably going to need a Use Variance at some pointJ So, having said that, I would ask for a motion. MR. SCHACHNER-Fred, I'd like to make a suggestion, I think for purposes of clarity of the record, when a motion is made, I think it would be appropriate for it to refer to both factors that you've just mentioned in your deliberations, meaning the intensity of use and also the change in use, because several of you have mentioned both terms, and I think that an expansion or increase in intensity is one component. Some of you have also referred to what I think Jim has principally hung his hat on, which is the physical change, and I think for the purpose of clarity of the record, it would be very appropriate to discuss both those components in any motion. MOTION THAT THE ZONING ADMINISTRATOR'S INTERPRETATION OF THE LAND USE OR DEVELOPMENT OR USE SECTION OF SECTION 179-7, WHICH INDICATES THAT ANY CONSTRUCTION OR OTHER ACTIVITIES WHICH MATERIALLY CHANGES THE USE OR APPEARANCE OF THE LAND OR A STRUCTURE OR THE INTENSITY OF THE USE OF THE LAND OR A STRUCTURE, LAND USE AND DEVELOPMENT SHALL EXCLUDE ANY LANDSCAPING OR GRADING WHICH IS NOT INTENDED TO BE USED IN CONNECTION WITH ANOTHER LAND USE ORDINARY REPAIRS OR MAINTENANCE OR INTERIOR ALTERATIONS OF EXISTING STRUCTURES OR USES SHALL ALSO BE EXCLUDED FROM THE TERM LAND USE OR DEVELOPMENT, IN RELATION TO THE TRACK BEING OPERATED BY THOMAS L. MCDERMOTT AND/OR THOMAS L. MCDERMOTT, JR. IS CORRECT, AND BY HIS INTERPRETATION BOTH THE INTENSITY AND THE MAGNITUDE OF THE CHANGES TO THE LAND WOULD INDICATE THAT A USE VARIANCE BE APPLIED FOR ANY EXPANSION OF ANY PERCEIVED NONCONFORMING USE ON THE LAND. SO I WOULD CONCUR WITH THE ZONING ADMINISTRATOR'S DECISION., Introduced by Fred Carvin who moved for its adoption, seconded by Chris Thomas: Duly adopted this 22nd day of May, 1996, by the following vote: AYES: Mr. Green, Mr. Karpeles, Mrs. Lapham, Mr. Thomas, Mr. Carvin NOES: NONE ABSENT: Mr. Ford, Mr. Menter MR. CARVIN-We support our Zoning Administrator's decision. AREA VARIANCE NO. 39-1996 TYPE II WR-1A CEA JOHN BROCK OWNER: SAME AS ABOVE CLEVERDALE ROAD, ONE MILE ON LEFT FROM INTERSECTION WITH ROUTE 9L APPLICANT IS PROPOSING TO CONSTRUCT A 30 SQ. FT. GAS HOUSE ON AN EXISTING DOCK. RELIEF IS NEEDED FROM THE ACCESSORY STRUCTURE SETBACKS LISTED IN SECTION 179-67A, 1. ADIRONDACK PARK AGENCY WARREN COUNTY PLANNING 5/8/96 TAX MAP NO. 13-3-19 LOT SIZE: 0.65 ACRES SECTION 179-67A, 1 (DUE TO TAPE ERROR, THIS SECTION OF MINUTES WAS LOST) NOTICE OF APPEAL NO. 2-96 WR-1A JOHN & KATHLEEN SALVADOR OWNER OF SUBJECT PROPERTY: SAME 2999 NYS ROUTE 9L APPLICANT IS SEEKING TO APPEAL A DECISION MADE BY THE ZONING ADMINISTRATOR STATING THAT LOCATING A HUNTING AND FISHING CABIN ON THEIR PROPERTY WOULD NOT BE IN CONFORMANCE WITH THE QUEENSBURY ZONING ORDINANCE, SPECIFICALLY SECTION 179-7, AND SECtION 179-60B(1) (b) (15) (c). LOCATION: 2999 NYS ROUTE 9L, TAX MAP NO. 4-4-11 IN A WR-1A ZONE IN A CRITICAL ENVIRONMENTAL AREA. ADIRONDACK PARK AGENCY JURISDICTION. JOHN SALVADOR, PRESENT (DUE TO TAPE ERROR, SOME OF THIS SECTION OF MINUTES WAS LOST) - 37 - __._.._ .··_·__.u..__ _____~_.~,___.._ ._.~.___.___.._~~.. ..___ ._,,_.~...,. ..~."...~.,,~ .- '~ '-"'" (Queensbury ZBA Meeting 5/22/96) MR. SALVADOR- (Lost words) particularly on small lots situated adjacent to water bodies. After the Town Attorney took more than 10 weeks to determine that the lands comprising tax parcel 4-1-11 were indeed wi thin the Town's taxing jurisdiction and therefore the Town's zoning jurisdiction, Mr. Martin, the Town's Zoning Administrator, responded that our application for a building permit was being denied because of the configuration of our 300 square foot hunting and fishing cabin. After we determined what he meant by configuration deficiencies, we withdrew our building permit application and a re-design of the cabin was undertaken. All features which were considered by Mr. Martin and his Staff to be repugnant to the Town Zoning Ordinance were delete. Unique designs such as a totally self-contained wastewater handling and treatment system and its attendant domestic water supply were totally eliminated, not for environmental reasons, but because the innovative systems did not conform to those systems· and system components as expressly allowed in the Town's Sanitary Code. Obviously, our Town Planners have never frequented a hunting and fishing cabin. We do believe that the most environmentally sound methods of handling sanitary waste, once it has been generated, begins within indoor plumbing. Other carefully designed components of the cabin which we found necessary to eradicate included the kitchen facilities and the sleeping accommodations. These amenities were determined to be beyond what the Planners envisioned as necessarily required to participate in hunting and fishing activities. Actually, their presence threw the design into a dwelling category. The Town's Zoning Ordinance unreasonably restricts a hunting and fishing cabin to a cabin, camp or lean-to or similar structure designed for occasional occupancy for hunting, fishing or similar purposes. The very definition is replete with ambiguities. What other structures are similar to a cabin, camp or lean-to? How often is "occasional" and what purposes could be termed to be similar to hunting and fishing? One of the stated reasons for our proposal not being in conformance with the Town's Zoning Ordinance is that the design indicates a capacity to dock boats along the perimeter deck. We assume any capacity to dock boats assumes the presence of an adequately designed boat dock, that is required by the Ordinance. The Town's Zoning Ordinance defines a dock as any structure, whether affixed or floating, placed in or upon a lake, pond, river, stream or brook, and which provides a berth for water craft and/or a means of pedestrian access to and from the shoreline. This shall include boathouses, piers, wharfs, crib docks, stake docks, floating docks and all such similar structures. The same Zoning Ordinance defines a private dock as a wharf or portion of a wharf extending along the shore and generally connecting to the uplands, which accommodates up to three vessels owned by the property owner, except canoes, rowboats and sailboats under 18 feet. The cabin structure and its perimeter deck do not meet the requirements of having a capacity of that of a boat dock, according to the Ordinance, which Mr. Martin administers because, One, there is no means for pedestrian access to and from the shoreline, unless Mr. Martin really believes we walk on the water. The perimeter deck does not extend along the shore and is not generally connected to the uplands. We are on record with the Zoning Administrator and have stated that it is not our intention to utilize the perimeter deck as a boat dock. It is a deck, not a dock. Also, it is not required to access the cabin by any means other than a canoe or rowboat less than 18 feet long, walking across the frozen waters or simply swimming in the flood waters. None of these access methods requires a boat dock. The rendering does not show the details, but each of the four sides of the cabin is designed to accommodate each of the four methods mentioned above. The use of a boat, other than a canoe or rowboat, less than 18 feet long, is not only not necessary to access the cabin, it's use is not practical. Can you imagine starting an engine of a power boat to go 130 feet? A power boat greater than 18 feet in length? We have a five mile speed limit in the Bay. Boats traveling at low RPM are great polluters. The use of a power - 38 - .......... (Queensbury ZBA Meeting 5/22/96) -../ boat is not in character with the design concept. Hunting and fishing goes with canoes and rowboats, not power boats, and power boat owners don't need hunting and fishing cabins. Winter access is not possible with power boat or with water cooled engines. The perimeter deck railings are designed such as they will not withstand the forces of wind, wave and current on a boat if it were docked at the perimeter deck. We assume Mr. Martin's underlying objection to the hunting and fishing cabin being constructed is an appearance of our being able to do something which the Ordinance does not allow, namelY construct more docks in a residential zone. In short, this application is for a 300 square foot hunting and fishing cabin, not a boat dock, not a boat house, not a bird house, not a dog house, not even a cat house. The number of illegal and non permitted uses to which any structure could be used approaches infinity, and therefore no single reason should be used to claim nonconformity with the Zoning Ordinance without such selection being arbitrary. Other means of access which might not be allowed seem to be of no concern to the Zoning Administrator, car or truck over the ice, aircrafts, snowmobiles, dog sled, motorcross bikes over the ice. Mr. Martin's opinion even fails the duck test. It doesn't look like a dock. It doesn't walk like a dock, and it doesn't quack like a dock. Further, if need be, we could prohibit the use of that structure from the use by boats greater than 18 feet in length by simply putting swimming marker buoys around the perimeter. That would keep the boats out. It would (lost words) bathing beach area. Other ways that people use to keep people away from their facilities and out of their backyard is to build fences. We don't think this should be necessary, but if need be, that is an alternative. Summarizing the boat dock issue, our application for building permit is for a cabin, not a boat dock for berthing vessels. The stated access is by rowboats, canoes less than 18 feet, walking over the frozen surface of the flood waters or swimming out to the cabin, and in any case, boat docks are only an accessory use, and a vessel is not absolutely necessary to access this cabin. Again, the building design is not capable of handling a boat greater than 18 feet in length. Normally, such curable irregularities as we're talking about are not a basis for a determination of non conformity. It would be hoped that these sort of things could be worked out. On the subject of setback, Mr. Martin has determined that our proposed project is not in compliance with the 75 foot shoreline setback as called for in the Ordinance. Technically, our site plan shows a shoreline setback of approximately 130 feet. The Ordinance is not clear in which direction, relative to the shoreline, the setback is to be measured from. As to the lakeward direction, the specified setback for docks and boathouses is 0 feet. We explained in our letter of March 5, 1996, setback is commonly referred to as the measurement of horizontal distance between the permitted use and the property boundary. The Queensbury Zoning Ordinance fails to reflect that our property boundary is not coincident with the shoreline on tax parcel 4-1-11. In fact, over the years the shoreline of this parcel has experienced dramatic shifts in location, caused initially by the inducement of flooding, the location and re- location Qf public highways and the proliferation of nonconforming uses. The Board should take notice that the area calculations of this parcel bore no reference to the shoreline, only property lines. Property lines are fixed forever on a map, lines with fixed lengths and bearings. Setback regulations, unless carefully and reasonable established, can result in a taking of one's property. On the subject of setbacks, the New York State courts have ruled in VanAlken v. Kimmey 252 New York Supplement 329 that only on the highest grounds of public health, safety and welfare can regulations establishing setback lines be justified. What grounds for the Town setback regulations? I haven't seen it measured in relation to public health, safety and welfare, as it pertains to the setback on our tax parcel. The application of width, area and setback requiremen~s of Zoning Ordinances amounts to unconstitutional deprivation of reasonable use of land owners - 39 - >"'-'~')'''''''¡M''''''~'' ,._ ",',"d~ .,~"¡o_",, ~"",",>'II.~"''''''~''',,''''~ 'A,~.,.._, ""~""""""'.'_"'. .........- '~" ..- (Queensbury ZBA Meeting 5/22/96) property if not carefully weighed in total. Here the Zoning Administrator has singled out one dimension of a basket of parameters that can limit the use of one's property, area, setback and height. If Mr. Martin's interpretation that the setback is to be measured from the shoreline rather than the property boundary, that his decision amounts to an unconstitutional deprivation of reasonable use of the property. We're talking about the lowest reasonable use of this property. Remember, the other allowed use is a single family residential dwelling. Did the Town envision that sort of structure to be built out there when they zoned it that way? When they tax our waterfront property that way? Is that what they envisioned? The setback requirements as outlined in the Zoning Ordinance will, therefore, prohibit any development on parcel 4-1-11, for uses permitted by the Ordinance, a 300 square foot hunting and fishing cabin, and that the only ).lse of the property consistent with the Ordinance is bare land, and that the effect of the Ordinance restriction is to destroy the economic value of this parcel to be but bare residue. With regard to Critical Environmental Area, the Town has no definition of a Critical Environmental Area. It does not exist in the Ordinance. The Town has not mapped any Critical Environmental Areas. Recently, at a Town Board meeting, I directed, there was much discussion at a Town Board meeting on the subject of Critical Environmental Areas, and I became concerned, and I asked them, in a public forum, I asked the Town Board, what is the definition of a Critical Environmental Area, and Mrs. Monahan responded that it's not very well defined. The Lake George Park Commission has defined a Critical Environmental Area to be within 500 feet of the shoreline, but this applies to projects in which they are issuing permits or lead agency or what have you. The Park Commission has, as far as I can see, no jurisdiction over this project. It doesn't deal with docks, marinas, recreation uses of hunting and fishing. They don't get into that. So it doesn't appear to me that there would be any jurisdiction there. The APA has a checklist, a permit checklist, talking about things like Critical Environmental Areas, and a subj ect that Mr. Martin brought up concerning deep water marshes. With regard to Critical Environmental Area, I've gone through this checklist. I cannot see that we are involved, that this would be a Critical Environmental Area with regard to the APA's jurisdiction. The closest they come are State forest reserve lands classified as wilderness, primitive, or canoe areas. To the best of my knowledge, none of these exist in Queensbury. The next category that comes close is a single family dwelling, but we would have to be in resource management or industrial use, and neither one of those apply. With regard to deep water marsh, frankly, it's the first time I've ever heard the term. They called the deep water marsh some special kind of a wetland. The APA defines wetlands as wetlands, defined in the APA Act as any land, annual, subject, etc., etc., commonly referred to as a bog, a swamp or a marsh. This area where we intend to erect this structure has never been known to me as a bog, a swamp, or a marsh. In summary, we ask the Queensbury Zoning Board of Appeals, a quasi judicial Board, to find that Mr. Martin's determination that our cabin on the lake has a capacity to accommodate vessels larger than 18 feet in length is not a fair representation of the facts, and has been arrived at in an arbitrary manner. The proposed proj ect cannot and will not accommodate vessels larger than 18 feet in length. Further, that the setback requirements of the Town Zoning Ordinance, if applied as interpreted by the Zoning Administrator to our waterfront property and our house and our proposal to erect a 300 square foot hunting and fishing cabin due deprive us of all reasonable use of our land, which amounts to a taking. Such a regulatory taking, in the absence of just compensation constitutes lack of due process and renders the Town Zoning Ordinance illegal and unenforceable. We'd be glad to answer any questions you might have at this time. MR. CARVIN-Do you have any questions? - 40 - "-' (Queensbury ZBA Meeting 5/22/96) ...-- MR. THOMAS-After public comment. MR. CARVIN-Well, Jim, do you want to respond to Mr. Salvador? MR. MARTIN-Not really. I think my findings pretty much speak for themselves. The area of the depth of the water in this area of the lake can accommodate a boat of a great size to tie up to that facility, and as it's clearly stated in my letter, my interpretation of the setback provision is that it's a separation from the water body, and it's that simple. MR. CARVIN-I'll open up the public hearing. MR. SCHACHNER-Fred, can I just ask you one question? MR. CARVIN-Sure. MR. SCHACHNER-Mr. Salvador, since you've been good enough to try to point out for the record what my role mayor may not have been in this, you mentioned something about the Town Attorney taking 10 weeks to make some determination. I wonder if you could clarify whom you were referring to. MR. SALVADOR-Yes. That was your predecessor, Paul Dusek. MR. SCHACHNER-Thank you very much. MR. MARTIN-The other thing I would like to say for the record is that the information given in regard to the Adirondack Park involvement was meant to be advisory and helpful, and was never stated as a requirement of the Town. MR. CARVIN-Okay. I'll open up the public hearing. Anyone wishing to be heard in support of the applicant? PUBLIC HEARING OPENED CAROL LAGROUSE MRS. LAGROUSE-Mr. Catv in and Members of the Zoning Board of Appeals, my name is Carol LaGrouse. I reside in Stony Creek. I'm President of the Property Rights Foundation of America. I'm here today to address the issue of the denial of the permit to build by the Zoning Board on the basis of a setback, and on the basis of environmental considerations, and to ask you to rej ect those aspects of the ruling of the Zoning Board. In the last week, at the Property Rights Foundation, I received calls from Elmira, Queensbury, Northville, Port Jarvis and Geneva, all about the problems of zoning vagueness, and problems of interpretation of power in favor of powers that are unclear in Zoning Ordinances, and these interprétations are generally not in the favor of the applicant. It seems to be that, in this State at least, Zoning Boards do not know the limitations of their enabling laws. Some Zoning Boards tend to think that the law can be summarized in a single sentence, that the Zoning Board has the power to approve or disapprove an application, and then would utilize any other matter that they can find of potential relevance in the Master Plan or the Zoning Ordinance in order to bolster that interpretation. Now, in relationship to an applicant, the interpretation that I try to persuade people to persuade their Zoning Boards of is that exact meaning of the clause cannot always be interpretable, clearly, to draw a conclusion with respect to any application, but the agency seems to cite these conclusions anyway, and that we should have a different approach, that a Zoning Board should say that they can't find any specific item that's really relevant to the problem of this application, that when you construe the clause, in the only logical, simple way that it can be interpreted doesn't completely address this issue, or it leaves open an area that's broader, that - 41 - '-.-' - (Queensbury ZBA Meeting 5/22/96) serves the needs of the applicant and doesn't serve to restrict that applicant. Now, words in law have to have a literal meaning, or else we don't have a way to be consummate over actions. In other words, you don't really have a way to be free, and that's what this organization's about, and that's why I tried to come here tonight, although I can't take up the cause of every applicant. In the situation of ,the Salvador's application for the cabin on the lake, the law allows a 75 foot setback, as you know, from the shoreline, but in this peculiar situation, the shoreline goes through the applicant's property. Now, the applicant takes the interpretation that the 75 feet therefore should be measured in one direction or the other, and he chooses the feasible, attractive alternative to measure it out into the lake. Now what complaint can the Zoning Board have, because the Ordinance doesn't specifically say that land under water can be built on. It allows a seaward measure of that setback. Now a more restrictive holding relies on that setback clause being unconstitutional and vague or overly broad because it doesn't address land under water. If you don't take that interpretation, take the interpretation that I'm advocating now, what you're really saying is that the Ordinance, by delineating the setback away from the shoreline, prohibits all under water construction, but when you promulgated that zoning law or that master plan, you didn't just simply say, well, we hereby attribute all under water construction on land owned under water. You never did that, because you would have realized that that was comprised a taking of all that land, and you had to compensate under the Constitution. Now, a couple of other points come out that I meet all the time, and that is that zoning laws feel that, when they can't find anything else, nowadays, to point to, they come up with things like, deep water marshes, Critical Environmental Areas, or whatever. Now, these things can be lifted out of the sky. They're like anything else. If you're in a certain zone, you want to call it a Critical Environmental Area, that's another type of zone. That should be on the map so that when the Salvadors come and want to use their property or purchase that property, they see that that's in a Critical Environmental zone. They don't want, but once you go for an application and somebody tells you, that's a Critical Environmental Zone, that's a legal area or that's not the right time to make the application. That's what the call in the Constitution Expos Factos Law. That's something without due process because procedural process requires that you have two things. You have notice and hearing, but if when you come for the application, (lost words) Critical Environmental zone to you, it has never been noticed and heard for public comment, then you have lack of due process. So, if you have to call on such things out of a hat, you've really gotten yourself boxed into a corner, and you don't really have grounds to deny approval. If you don't have, really, grounds to deny approval, the Ordinance you're going to draw from, have to draw from an unconstitutionally vague aspect, you have to draw something out of a hat, then you simply have to give approval, and that's the thing that I can't understand, and I'm hoping that this Zoning Board of Appeals will understand, is that zoning offices seem to feel that when they want to deny something, they have to look for a way, and, really, some times you have to just permit something because there is no constitutional way to deny it. That's my presentation. I thank you for your time. MR. MARTIN-First of all, the Critical Environmental Areas are mapped, and they are available on public maps in the Town office building on three different sets, and I believe the Critical Environmental Areas were established at a public meeting of the Town Board, and I am advised that it was probably done after a public hearing, although I can investigate that further. MRS. LAGROUSE-And (lost words) at this point, Salvador's land, under water, at that point, is designated a Critical Environmental Area? - 42 - --- --.-I (Queensbury ZBA Meeting 5/22/96) MR. MARTIN-Yes, and that information exists on public maps. They're available to the public. MR. SCHACHNER-And the definition of Critical Environmental Area comes from the New York State Environmental Conservation Law where it's very explicitly defined. MR. CARVIN-Okay. Any questions? Okay. Thank you. Anyone else wishing to be heard in support? Anyone in opposition? FRED ALEXY MR. ALEXY-My name is Fred Alexy. I have property adjoining Dunhams Bay Lodge, and I'm reasonably familiar with the area involved. I object to this proposed hunting and fishing cabin or dwelling, as Mr. Salvador presents it. He seems to be struggling with the definition of what constitutes pollution, and I think that if somebody threw the contents of a garbage can on his dining room floor, he'd quickly tell him what he thought was pollution. In my view, it would be, having a cabin of this kind would be a source, permanent source of site pollution. It would be a permanent marine navigational hazard. It would be a permanent site of water pollution, with all manners of discarded liquids, bottles, cans and other materials finding its way into the lake, deposited by the cabins occupancy. The structure will be denied the most fundamental and necessary elements to provide for the sanitary and healthful conditions for any occupants of the building, in short, a real source of lake pollution. The ice reeks havoc to many man made structures on the lake. It does it annually, and there will be (lost words) damage to the building that would be sustained from the ice movement, with the high likelihood that the building will be destroyed with the wreckage floating at the bottom of the lake, and you can witness that annually. I'm sure everybody's very familiar with what happens on Lake George annually. There are many boathouses tumbling into the lake. Granting the construction of this building would open the door for others to construct buildings in other areas in the lake that share the unique under water property line situation that is there apparently on Dunhams Bay. The lake should remain a lake and not a new site to erect buildings. In short, this building or any other building, dwelling or lean-to has no business being built on the lake. Questions? MR. CARVIN-Any questions? No? Anyone else wishing to be heard in opposition? Any correspondence? I MR. THOMAS-Yes. A letter dated May 22, 1996, subject, appeal of John Salvador for zoning relief. "I understand that Mr. Salvador wishes to build a structure which would be located in the open water area of southern Dunhams Bay. We are vehemently opposed to such an installation. 1. This is a congested, high traffic area because of the Dunhams Bay Boat Company operations, the many docks in the immediate area, the traffic from the boat launch facility operated by Mr. Parillo. 2. There is risk of pollution from water, drainage and septic facilities from the proposed structure. 3. There would be added noise and liqhtinq from occupants of the proposed structure. 4. It would be a rather ugly blot on the landscape as viewed by the neighbors, such as us who reside in Dunhams Bay. 5. Mr. Salvador certainly has a large enough land holding to find a place for a hunting and fishing cabin on his dry- land property. We urge the ZBA to stand fast, and strongly resist and deny the proposed action! Allen W. Strack Eleanor Strack 2964 State Route 9L Lake George, NY 12845" A letter dated August 17, 1993, addressed to Mr. John Salvador, Jr., regarding French Mountain Tract Lots 11 & 12 at Lake George, Town of Queensbury, County of Warren "I am writing in response to recent expressions of confusion regarding the State's claim of title to the underwater land adjacent to the above-captioned property and the continuing jurisdictional control of other governmental agencies to the waters - 43 - - -_... ,-",.--",--.--,.""..- .-...----.-...,..----.- .......... '...,/ (Queensbury ZBA'Meeting 5/22/96) of Lake George. The Commissioner of General Services has acknowledged that the land constituting lot nos. 11 and 12 of the French Mountain Tract was conveyed with only the specific exception of any gold and/or silver. Therefore, with this exception only, the State of New York neither asserts any claim nor has any sovereignly acquired real property interest in and to land, now or formerly submerged, south of the respective northerly boundaries of the aforesaid lots. However, the State still maintains its sovereignly based ownership to all of the ungranted bed of Lake George pursuant to sections 4 and 15-a(4) of the state Public Lands Law. Furthermore, this lack of title does not abrogate or in any way affect the regulatory authority of any Federal, State and/or local agency having jurisdiction over the subject premises, including but not limited to, agencies empowered pursuant to articles 43 and 71 of the State Environmental Conservation Law, article 3 of the State Navigation Law, and any codes, and/or regulations promulgated thereunder. Sincerely, Joseph F. Stellato" And the letterhead reads, "Executive Department Office of General Services", and this was faxed May 21, 1996 to Jim Martin from Al Bander. That's it. MR. CARVIN-Any other public comment? GILBERT BOEHM MR. BOEHM-My name is Gilbert Boehm. Per a notice I received, I guess I'm within the effected zone of interest. Since you're really looking for just opinions, I'm not about to be able to talk to the law. I don't really see any objection to building this thing. I think, because of the way he builds things, I think it would be an interesting object for various people, a point of interest, another wonder of the world, maybe the ninth, tenth. That's it. Thanks. MR. CARVIN-Any other public comment? MR. SALVADOR-First, with regard to Al Bander's letter, I welcome that letter. We are not in opposition to anything he says in that letter. That's why we are at the Town of Queensbury for a building permit. Okay. That letter states that the State has no sovereign claim to these lartds. Who does have the sovereign claim? If the State doesn't have it, who does? And what does "sovereign claim" mean? Mr. Alexy mentioned a few things. We would take care that there wouldn't be any garbage in the lake. We do it every day. We know the problems and we know how to do it. Wi th regard to sanitary, we're forced to go to a system very similar to that used on every boat on Lake George. It's called a port-a-potty. You take it in. You take it out. We're getting used to this up on Lake George. The DEC doesn't do anything on the islands anymore. You take it in, you take it out. We do the same thing. With regard to ice damage, we know how to handle this. We've handled it in the design, the design of the piling. Thrust from ice forces has been taken care of in our piling calculations. We deal with this every year in our other waterfront structures. There are ways to do it. With regard to this sort of thing proliferating around the lake, I don't know. The best that I can understand is that there may be one other area in North Queensbury that has this similar situation, but they choose not to claim their rights. Lighting, it's difficult to see from the rendering, but the four corners of this structure are equipped with navigation warning lights. The ridge of the roof has an aircraft warning light. All of these things have been taken care of in the design. We don't expect to have any problems in that regard. By the way, the Town of Queensbury could help us in this regard, with regard to docking boats at this facility. This structure is well within the bounds of one of Queensbury's vessel regulation zones, and they could simply prohibit. They could enact an amendment to this Ordinance, Number 34, and prohibit the docking of boats at hunting and fishing - 44 - '-' (Queensbury ZBA Meeting 5/22/96) -.,¡: cabins, and that could be enforced by the Warren County Sheriff's patrol that's on the lake, which the State of New York pays $235,000 to this County to enforce the navigation laws, and the Town has the power to make a navigation law, and the Warren County Sheriff's Department has the authority to enforce it. By the way, the Lake George Park Commission has a regulation granting to property owners the exclusive right to the control of the waters 200 feet beyond their property line, and they say property line, by the way. They don't say shoreline. So we have total control, within this area. Not only do we own the underlying land, which gives us control of the surface water, but we have another 200 feet of control granted to us by the Park Commission. The Critical Environmental Area is not defined in this Zoning Ordinance. This is what we use when we design and layout facilities within this Town. I wouldn't doubt that, in the dark of night some time, the Town Board decided they had to do this and they did it and it's squirreled away on somebody's drawing downstairs some place, but it is not common knowledge. Thank you. MR. CARVIN-Any other public comment? ALAN STRACK MR. STRACK-My name is Alan Strack. I live at Dunhams Bay, about three doors from the Boat Company here and the Lodge. I guess this would be like another boat dock. I look to the quality of our life and we've lived in that area for about 25 years now. This would be like another boat that would be just pulled up into our area and docking with running lights, flooring lights, and so this would be just like another boat in our already congested area. We've got lights, mooring lights. We already have too much light congestion in that area with the docks that we have there between Mr. Salvador and Mr. Parillo. That place is lit up like a shopping center already, and we have to keep our blinds drawn at night in order to get some sleep, but I guess I am concerned with the quality of our life. We seem to have a little confusion here because this damn thing happens to be an island that sits in the middle of the water, and we're trying to define it in terms of a cabin that normally sits on dry land, and so we seem to be going around a lot of Mickey Mouse stuff about, how do you define a cabin, how do you define setback, how do you define everything else, because of this peculiar situation, but I would hope that somewhere along the line some common sense would prevail in the interpretation of our zoning laws. This is an extremely unique situation. Perhaps the rules that have been written don't cover this. When the rules were written, I don't think anybody knew we had a peculiar situation like that because you normally look at setback and you normally look at your property line as being defined by your shoreline, and this is a unique situation, and I don't think the laws specifically, necessarily, cover that, but I'm concerned for the quality of us in the neighborhood and this would be a real blot on our neighborhood. Thank you. MR. CARVIN-Any other public comment? I'm not going to have rebuttal all night. So if you've got something that you want to add, fine, but if it's going to be a rebuttal. MR. SALVADOR-Mr. Strack seemed to allude to the fact that no one knew about these submerged lands. I'm going to refer you to a 1976 meeting of this Board in which, I'm going to give you a little background, first. Bear with me, please. MR. CARVIN-Well, it's getting late, and I'm short on bearing. MR. SALVADOR-I understand. We had built some boat docks down at the Western end of our property, and one day the Queensbury Town Building Inspector knocked on our door and said that we had built those docks without a permit from the Town, and I really didn't - 45 - .--._~...,.,-_..__._..."+----- ,.'. ·W,,,, ,.~ ..,,,,......,, -' - (Queensbury ZBA Meeting 5/22/96) know what he was talking about, but I figured if I have to get a permit, I'll get a permit, and I asked him. I said, is this just a formality or have I got a real serious problem here? No, he said, it's just a formality. Come on down and get the papers, and we did, and of course we were denied the after the fact permit, and we were forced to make application for a special use permit for these docks. Now, I'm looking for the minutes of the meeting. MR. CARVIN-Mr. Salvador, how does this relate to Mr. Martin's? MR. SALVADOR-The fact that it was not known to anyone. MR. CARVIN-Okay. You've made your point as far as Mr. Martin. That's what I'm trying to bring this Board back to here. MR. SALVADOR-I want to respond to Mr. Strack's. MR. CARVIN-Well, Mr. Strack has responded to us, and this is an issue that is not relevant to Mr. Martin's determination. MR. SALVADOR-Okay. MR. CARVIN-Thank you. Are there any other public comments? Seeing none, hearing none, the public hearing is, closed. Okay. Does anybody have any questions of the applicant? Any thoughts, Chris? MR. THOMAS-No. I read all the letters that Mr. Salvador and Mr. Martin have exchanged, and it seems to me that, I don't know about this one. I really don't. This is one, I think we're going to have to hash over and come up with a decision later on. MR. CARVIN-You have 30 days. Bob, do you have any thoughts? MR. KARPELES-For me, I agree with Jim, for all the reasons that he's enumerated in his March 7th letter. That makes sense to me. MR. CARVIN-Okay. Bill? MR. GREEN-My biggest concern is setback question. We all know the general intent of the Code when it was written was away from the water, but we have to base this on, I think I'd go along with Chris. I really can't make a determination right now. MR. CARVIN-Okay. Bonnie? MRS. LAPHAM-Well, I tend a little more Bob's way of thinking, that Jim's letter makes it quite clear, and I would support his decision. MR. CARVIN-Okay. Well, first of all, I do support our Zoning Administrator for a number of reasons. Number One, we are a quasi judicial Board, and what is quasi judicial mean? Well, it means that we're not lawyers, for one thing, and I count at least a half a dozen lawyers in here. We are people who have volunteered to sit on these Boards who are not versed in all facets of the law. We are given a set of instructions, and I think done deliberately, as far as Use and Area Variances are concerned, which deal with certain criterias that we should look at in relationship to our community, because it is our community. It's not the State of New York. It's not the United States. It's not the Universe. It's our community, and I think we are the first step in the judicial process, and hence the term "quasi". Now what does that mean to me? Well, it means to me that as a resident of the Town of Queensbury, I probably have the most interest in what happens in my community, and if we are wrong, or if I am wrong in my interpretation of the manual, of which I can show you we have several manuals, there are avenues of regress, so that goes to the next step, where each step gets a little bit more technical, until - 46 - ~ ~ (Queensbury ZBA Meeting 5/22/96) I the law is defined. Now, I think the issues really resolve around one thing, and I know Mr. Martin has addressed, you know, two things, and it's really the setback. I mean, what was the intent when the people who wrote this book meant by a 75 foot shoreline setback? Well, the person from the Property Right's advocate said, and I watched her do it, and I've seen several other people do it, as heaven is my witness, she makes a motion upwards. Well, it's not written that heaven is up, but it is assumed that up is up. It's not written anywhere that up is a direction, but it is a common feeling that up is in a specific place, and I think just because it does not, and is not so specific that a shoreline setback has to be on the land ward side, I know illY interpretation is that it's got to be dry land. That it's, as Mr. Martin says, the intent is to provide a separation from the body of water, and that does not mean out into the body of water. Now, as a resident of the Town of Queensbury and not a lawyer, I can look at the environmental impacts to my community if this were to be allowed. Now, Mr. Martin also says that a private dock as a wharf, and he goes on that the structure can accommodate vessels larger than 18 feet in length. Well, that may be a technicality, because all I know is that you could probably tie a 25 foot boat to that with a two inch line. So, I mean, the ability to do that is there. I mean, that's self evident when you've got, I don't know, whatever, 175 feet around the thing that's all water. You have the ability to probably put a 160 foot boat tied up to that dock. So, I mean, certainly his interpretation is correct, that it can accommodate vessels larger than 18 feet in length. So, I am very adamant in supporting our Zoning Administrator in his interpretation, especially from the 75 foot setback. I mean, it makes good sense, in relation to our community. Now, if we are wrong, then there are venues that will tell us that we're wrong. So, I am in support of the Zoning Administrator. I don't know if I've missed anybody, or we can table this for 62 days. MR. SCHACHNER-Well, you would table it. You're confined by law to make a decision within 62 days after the close of the public hearing. MR. CARVIN-Chris, any thoughts? MR. THOMAS-I think you convinced me that Mr. Martin was right. MR. CARVIN-Bob, I know you said vou were convinced. MR. KARPELES-I/m convinced. MR. CARVIN-Bill? MR. GREEN-Well, I guess, based on the way you/re describing our duties, I have to go with my general feeling, that the intent is away from the shore, and I think that's the intent of the zone. MR. CARVIN-Yes. I might point out that there is no instructions. We have inStructions on how to look at Use and Area Variances, but when we get to administration, and it says Zoning Administrator shall have the power and duty to administer and enforce the provisions of this cqapter. The Zoning Administrator shall be appointed and may be removed at the pleasure of the Town Board. An appeal from an action, omission, decision or ruling by him regarding a requirement of this chapter may be made only to the Zoning Board of Appeals within 60 days of such decision or action. Well that means that whatever his decision is comes on our lap, but we don't have something that's nice and neat, like we have with a Use or Area Variance. So I just fall back to what the purpose of our zoning is, and that's right in the very first section, 179-2, "Purpose and Objective The purpose of this chapter is to promote the health, safety and general welfare of the community and to provide for a variety of housing opportunities and densities and - 47 - '~ ..- (Queensbury ZBA Meeting 5/22/96) protect the property values and aesthetics of the community by channeling and directing growth by regulating restricting the height, number of stories, the size of buildings and other structures, the percentages of the lot that may be occupied, the size of the yards, courts and open spaces, density of population and the location and use of buildings, structures and land for trade, industry, residence and other purposes, to the maximum extent permissible within the proper exercise of the police power as delegated by the Town Law." And that's our responsibility, and that's the only thing that I have to guide how we come to an appeal, because we don't have anything that's neat and clean. So it falls back to the safety and health and welfare of our community. Do I have four positive votes to support the Administrator? Okay. I'll make a motion. MOTION THAT WE CONCUR WITH THE ZONING ADMINISTRATOR' SDECISION WITH REGARD TO NOTICE OF APPEAL NO. 2-96 JOHN SALVADOR. THAT THE ZONING ADMINISTRATOR IS CORRECT IN HIS INTERPRETATION OF SECTION 179-60B(1) (b) (15) (c), AS THE SHORELINE I SETBACK IS INTENDED TO PROVIDE SEPARATION FROM THE BODY OF WATER AND THAT HE'S ALSO CORRECT IN " HIS' i, INTERPRETAT:ION THAT . THE PROPOSED STRUCTURE CAN ACCOMMODATE VESSELS LARGER THAN 18 FEET IN LENGTH, AND I WOULD SUPPORT HIM IN HIS DECISION., Introduced by Fred Carvin who moved for its adoption, seconded by Robert Karpeles: Duly adopted 22nd day of May, 1996, by the following vote: AYES: Mr. Thomas, Mrs. Lapham, Mr. Karpeles, Mr. Green, Mr. Carvin NOES: NONE ABSENT: Mr. Ford, Mr. Menter MR. CARVIN-We support our Administrator. Okay. I have two applications. I'm going to ask the respective applicants if we can combine these, because the appeal is against the same determination. If there is no problem, I would like to combine the two of them together? APPLICANT-Yes, no problem. MR. CARVIN-Okay. No problem. Good. Then we will hear Appeals No. 3-96, McDonough and Sutton and Appeal No. 4-96 together. NOTICE OF APPEAL NO. 3-96 MAUREEN & THOMAS MCDONOUGH STEVE SUTTON D/B/A SUTTON'S MARKETPLACE OWNER OF SUBJECT PROPERTY: KEN ERMIGER APPLICANTS ARE APPEALING A DETERMINATION MADE BY THE ZONING ADMINISTRATOR IN A LETTER DATED APRIL 2, 1996 CONCERNING THE PROPERTY OWNED BY KEN ERMIGER. THE APPLICANTS ARE APPEALING THE DETERMINATION THAT A PROPOSED GO-KART TRACK IS NOT A BUILDING THAT IS SUBJECT TO THE APPROPRIATE STREET SETBACK. THE DEFINITIONS OF BUILDING & SETBACK IN SECTION 179-7B AS DETERMINED BY THE ZONING ADMINISTRATOR ARE ALSO BEING APPEALED. LOCATION: WEST SIDE OF ROUTE 9, JUST NORTH OF AGWAY. TAX MAP NO. 73-1-4.1 IN A HC-1A ZONE. NOTICE OF APPEAL NO. 4-96 MICHAEL & JAMES VALENTI STEVE SUTTON D/B/A SUTTON'S MARKETPLACE OWNER OF SUBJECT PROPERTY: KEN ERMIGER APPLICANTS ARE APPEALING A DETERMINATION MADE BY THE ZONING ADMINISTRATOR IN A LETTER DATED APRIL 2, 1996 CONCERNING PROPERTY OWNED BY KEN ERMIGER. THE APPLICANTS ARE APPEALING THE DETERMINATION THAT A PROPOSED GO-KART TRACK IS NOT A BUILDING THAT IS SUBJECT TO THE APPROPRIATE STREET SETBACK. THE DEFINITIONS OF BUILDING & SETBACK IN SECTION 179-7B AS DETERMINED BY THE ZONING ADMINISTRATOR ARE ALSO BEING APPEALED. LOCATION: WEST SIDE OF ROUTE 9, JUST NORTH OF AGWAY. TAX MAP NO. 73-1-4.1 IN A HC-1A ZONE. - 48 - "'-- ---../ (Queensbury ZBA Meeting 5/22/96) MR. THOMAS-Going back to Appeal No. 3-96, a letter dated April 2, 1996 "Dear Planning Board Members: Per your request, I am writing to clarify my determination concerning the application of the setback provisions of the Travel Corridor Overlay Zone, Section 179-28 and Highway Commercial Zone, Section 179-23C, to the proposed Go Kart track, Site Plan application 6-96, currently under review. According tQ the site plan accompanying the above referenced application the track will consist of compacted subbase; 8" of base material; 2" compacted binder; 1 1/4" compacted top material with a finished elevation consistent with the established grades as shown on the grading and drainage plan. The track includes an overpass with a retaining wall at an elevation of 479' over the lower portion of the track at 470'. The near edge of the track is situated 28' back from the front property line and 12' feet from the side property line. In consideration of your request the following sections of the code have been reviewed; section 179- 23C Minimum Yard Setbacks; Section 179 -28 A-C Travel Corridor Overlay Zone; section 179-7 Definitions and Word usage, specifically Setback, Building Line and Building. The code defines setback as 'the established line beyond which no part of a building shall extend'; building line is defined as 'a line formed by the intersection of a horizontal plane that coincides with the exterior surface of the building on any side'; building is defined as 'any structure which is permanently affixed to the land, is covered by a roof supported by columns or walls and is intended for shelter, housing or enclosure of persons, animals or chattels.' The building definition also states 'see structure'. However, all references to setback in the HC-1A zone and the Travel Corridor Overlay Zone refer only to building. The track is at grade and has no vertical plane or roof. Therefore, it is nota building and not subject to the setback provisions of the HC-1A zone or the Travel Corridor Overlay Zone. I hope this letter serves to answer your question. As always feel free to contact me should you have any further questions. Sincerely, James M. Martin, AICP Executive Director Community Development" A letter dated April II, 1996, addressed to Fred Carvin "Dear Mr. Carvin: Our firm represents Michael & James Valenti of Agway and Keith Ferraro of Skateland in connection with the above site plan application which has been before the Town Planning Board. The Zoning Administrator has rendered an opinion applicable to Ermiger project, which we believe adversely affects the interest of our clients. Enclosed for consideration by the Zoning Board, please find our appeal of that opinion. Sincerely, Martin D. Auffredou" "MEMORANDUM IN SUPPORT OF APPEAL The subject property is located in a highway commercial (HC-1A) zone. Pursuant to the Zoning Code, an 'amusement center' is a Type II permissible use in this zone, subject to site plan review. The applicant proposes to construct a go-kart track at the southeast corner of the subject property within the minimum yard setbacks as established by Section 179-23(C) of the Zoning Code. A go-kart track is not a specified permissible use in an HC-1A zone, although it appears that a go-kart track may fit within the definition of 'amusement center'. The zoning administrator has rendered an opinion that the go-kart track does not constitute a building and", therefore, the yard setbacks do not apply. The term 'amusement center' is defined in Section 179-7 of the Zoning Code as 'an indoor or outdoor facility, which may include structures and buildinqs where there are various devices for entertainment, including rides and booths for the conduct of qames and buildinqs for shows and entertainment' (emphasis supplied). The term 'structure' is defined as 'any object constructed, installed or permanently placed on land to facilitate land use and development or subdivision of land including but not limited to, buildings, sheds, single-family dwellings, mobile homes, signs, service station pumps, drive-in or drive-thru islands, with or without canopies, all above gr6und tanks and any fixtures, additions and alterations thereto...' (emphasis supplied). There is no question that a go-kart track is a structure. Pursuant to the plans that have been submitted by the applicant, the go-kart track will - 49 - ~ --- (Queensbury ZBA Meeting 5/22/96) require substantial grading of the subject property and will have an underpass and other accessory devices and structures. The go- kart track itself will be built on a substantial base. Clearly, the go-kart track is a permanent structure installed on land to facilitate land use. It is not akin to a parking lot. Simply because the go-kart track does not constitute a 'building' in the conventional sense, does not mean that it is not a 'structure' within the definition set forth in the Zoning Code. The definition of ' building' in the Zoning Code expressly contains the word 'structure'. The definition of 'setback' is 'the established line beyond which no part of a building shall extend.' It is respectfully submitted that in the zoning context, the words , structure' and 'building' are used intElrchangeably. It makes absolutely no sense whatsoever to maintain that the setbacks apply only to ' buildings' but not to 'structures'. What possible purpose could this policy serve? Just because the project is located in an HC-IA zone, does not mean that aesthetics and dimensional requirements should be ignored. Yet, this is the end result of the zoning administrator's opinion. Finally, if the go-kart facility does fall within the definition of 'amusement center' then, by definition,' it constitutes a ',structure or building'. If it does not fit within the definition of an amusement center, then a go- kart track is not a permissible use within the zone. We also believe that there may be precedent within the Town for requiring a ride (a structure as compared to a building in the conventional sense) to be constructed, installed or placed within the applicable setbacks. We submit, upon information and belief, that some years ago, the Town required the Great Escape facility to install the 'Steamin Demon' roller coaster ride within the applicable front setbacks. If a go-kart track is a ride within the definition of 'amusement center' then it too should only be installed within the applicable setbacks. In light of the foregoing, we respectfully submit that the zoning administrator's opinion in this matter is erroneous. The zoning administrator's interpretation is clearly contrary to the spirit and intent of the Zoning Code, and, if applied, will render the setback provisions contained in the HC-1A provisions of the Zoning Code meaningless and worthless. Dated: April 12, 1996 Bartlett, Pontiff, Stewart & Rhodes, P.C. Attorneys for Michael & James Valenti (Agway), Keith Ferraro (Skateland) 1 Washington Street Glens Falls, NY 12801" Applicant's name is Steve Sutton, doing business as Sutton's Market Place, and down here it's stated "I join the appeal of Thomas J. McDonough and Valenti brothers." A letter dated April 3, 1996, addressed to the Queensbury Planning Board Members, "Dear Members of the Board: I and my wife Marianne are owners of a business and other property directly across from the proposed Go-Cart proj ect on Route 9 and are interested in this matter. I did obtain a copy of the above correspondence and have drafted the attached Memorandum in light of Mr. Martin's letter. This Memo directs to your attention the fact that Mr. Martin has limited setbacks only to 'buildings'; not 'structures'. He specifically limited his definition search to Setback, Buildinq Line and Buildinq (last line paragraph 3). He failed to refer to the first paragraph 'A' of definitions which states unequivocally that the word buildinq includes the word structure. When the word structure is used setbacks apply. My question to the Board and Mr. Martin is why was structure not addressed? What is the reason or logic that the very definition of structure was not applied? Thanking you for your considerations in this matter. Very truly yours THOMAS J. MCDONOUGH" I think that's all the letters. The others are just repeats of the same letter, in both applications. TOM MCDONOUGH MR. MCDONOUGH-Good evening. My name is Tom McDonough. My wife, Marianne and I are the applicants here, along with Steve Sutton and other parties, and we live practically across the street back up in Twicwood and we own and operate the Greycourt Motel and law offices - 50 - ""-' (Queensbury ZBA Meeting 5/22/96) ~ across the street from the projected site, and succinctly stated, this is an appeal from the Zoning Administrator's determination that the setback in this particular case applies only to buildings, and he says that because structures are not used in the Corridor Overlay Zone or HC-1A zone. For purposes of the whole Chapter 179, in Definitions, it specifically states in the introductory paragraph, 179A, that the word "building" includes the word "structure". So every time you use the word "building", throughout Article 179, we use the word "structure". Now, when you apply that simple definition to the application that's made here, unquestionably what is proposed to be placed on the property by virtue of the site plan, and as described in Mr. Martin's letter, is a structure, and OJ¡lce you apply "structure", where you have the word "building" , setback applies. Nowhere in Mr. Martin's commentary has he addressed the issue of applying structure where the word "building" is. Even in the Highway Overlay Zone, if you read the 179-28, the purpose in that Section, where the "Town of Queensbury realizes as the town and the region continues to grow, the need for improved local arterial roads will become important to the movement of traffic within the Town of Queensbury. In order to maintain the rural character along these roadways and/or to allow widening of these roadways in the future, increased setbacks for new construction has been established along the major regional arterials in the town." This area is one of those arterials that's specifically stated in there, and if you go to subsection C, it says, "All buildings hereafter erected or altered within this Travel Corridor Overlay District shall set back 75 feet from the edge of the roadway right-of-way." Now, if you follow your own provisions of the Code, which says, the word building includes the word structure when you say that, "all structures hereafter erected or altered within this Travel Corridor Overlay District shall be setback 75 feet." It's a very simple application. If you put the word "structure" wherever you see "building", in Section 179, which is mandated by this Section, it applies to this construction. That being so, it's required to comply with the setback requirement. It's nothing more than that, and if you don't apply the word "structure" where you have a building, you're not complying or paying attention to your own Code. MR. MARTIN-Could I respond to that, if I might? MR. CARVIN-Sure. MR. MARTIN-You have my memo of May 10th, and I'll read it into the record. "I'm writing this memo to provide further clarification and documentation regarding my determination that the proposed go cart race track is not subject to the setback. First, I would advise that you review my letter of 4/2/96 (see copy of letter attached) which explains the basis of my determination. I am in receipt of a copy of a letter from Tom McDonough dated 4/3/96 which calls attention to section 179-74 (see copy attached) which explains word usage as it applies to 'building' and 'structure'. It is important to note that the 'interchange' between building and structure. is limited to Q.!l§ application. In basic language, building includes the word structure. However, it is important to note that the reverse is not stated; structure is not stated to include building. Therefore, a building is a structure, but, a structure is not necessarily a building. The next point which has relevance to this particular issue is a decision by the Zoning Board of Appeals in December of 1988 (see attached copy of the resolution). An appeal was filed concerning the height restriction on several rides proposed for the Great Escape. The board decided that 'a structure is not always a building and is not governed by the height restrictions for buildings'. In my opinion the same would hold true for the setback provisions. Lastly, the configuration of the track asphalt which is fixed to the ground is not unlike that of a parking lot or private driveway. Therefore, to apply the setback provision to the track would mean that parking - 51 - ".........----.~~"~<~ -. ".."....'.~, .. ._"...,......¡.-."',..,~-.~,~. '.. "......-..¥ -'-- '-- - (Queensbury ZBA Meeting 5/22/96) lots and driveways also would be subject to the setback provisions. This has not been the policy to date." And I think that memo concisely explains the interchange between those words. It goes in one direction, and it is specifically not ,stated to go the other way. MR. MCDONOUGH-May I address that point? MR. CARVIN-Sure. MR. MCDONOUGH-The definition of structure, right here again, is "any object constructed, installed or permanently placed on land to facilitate land use and development or subdivision of land", that's what it is, and it also says, including but not limited to buildings. That's right within the definition of "st;ructure". MR. CARVIN-Okay. Can I ask you a question? Are we to assume from your. MR. MARTIN-I don't disagree. A building can be a structure, but a strüctureis not always abuilding. MR. CARVIN-Okay. Let me get something clear here. Are we talking the go kart track as a structure? Or are we talking the paved area of the go kart track? MR. MCDONOUGH-I think if we go with the definition that's provided by the Code, is any object constructed, installed or permanently placed on land to facilitate land use and development. That includes the whole ball of wax. MR. CARVIN-What's the Section, please? MR. MCDONOUGH-That's in 179-7 Definition of Structure. MR. CARVIN-Okay. MR. MCDONOUGH-And as described in the letter of Mr. Martin, dated April 2nd, what he has in there on the first full paragraph describes a structure, "According to the site plan accompanying the above referenced application the track will consist of compacted subbase; 8" of base material; 2" compacted binder; 1 and 1/4" compacted top material with a finished elevation consistent with the established grades as shown on the grading and drainage plan. The track includes an overpass with a retaining wall at an elevation of 479' over the lower portion of the track at 470'. The near edge of the track is situated 28' back from the front property line and 12' feet from the side property line." All that is a structure. MR. MARTIN-I don't disagree with that. It is a structure. I acknowledge it's a structure, but again, a building may be a structure, but a structure is not necessarily a building, and every reference to setback in the Code specifically says "building". It's that simple. MR. CARVIN-Jim, maybe you can tell us what the difference between a structure and a building is. MR. MARTIN-A structure is something that is affixed to the ground, but does not necessarily have a vertical plane and does not necessarily have a roof. If it has those two items, then it is also a building, but a structure, such as a wall around a garbage dumpster or something like that is not a building. It is a structure, and therefore, is not subject to the setback, and across town and time and time again, across several Zoning Administrator's, has never been interpreted to be that way, and this same body, back in 1988, in a resolution, said, a structure is - 52 - ""-' (Queensbury ZBA Meeting 5/22/96) ......,/ not always a building. MR. CARVIN-All right. I want to come back to, is a paved parking lot a structure? MR. MARTIN-Yes. MR. CARVIN-And does it have to conform to the side setbacks? MR. MARTIN-No, because it's not a building. specifically says building. The setback MR. CARVIN-Okay. MR. MARTIN-And I think it is setting dangerous precedent to begin calling structures items that are subject to the setback, because we're going to go around Town, then, and parking lots, because, you know, I don't think it's fair to distinguish that saying, well, this is a go cart track, though. It's not like a parking lot. From illY interpretation, you know, when you look at the compacted subbase, two inches a gravel, two inches of asphalt, what is the difference? Why am I to hold a go cart race track to another standard different from that of a parking lot? MR. MCDONOUGH-It's the nature of the land use that's the difference. MR. MARTIN-Well, you have vehicles passing over it. What is really the difference? MR. MCDONOUGH-Because one's a parking lot. MR. MARTIN-That's not how I understand my job as Zoning Administrator. It's cut and dried, black and white, and if it's the same make up, then if this type of structure, compacted subbase with asphalt, then why is that structure, then, any different than a parking lot in a driveway? MR. MCDONOUGH-Because a parking lot is described as IIAny place, lot, parcel or yard used, in whole or in part, for storing or parking three (3) or more motor vehicles under the provisions of this chapter." This is not for this purpose. MR. MARTIN-Well, then we better start defining or listing parking lots and driveways as allowed uses, then, in the Zoning Code, and allowed structures. MR. CARVIN-What would you qualify a swing set? MR. MARTIN-It's a structure. MR. CARVIN-Okay, and would a swing set, under these definitions, if it has a cement base, have to comply to the side setbacks? MR. MARTIN-No. MR. SCHACHNER-Do you mean as Jim interprets the Code, or as the applicants interpret the Code? MR. CARVIN-As Jim interprets the Code. MR. MARTIN-No, it would not have to comply with the setback. MR. CARVIN-Okay, and how about you gentlemen? A swing set, with cement, permanently affixed to the ground? It's a structure. We've determined it's a structure. We've determined it's permanently affixed to the ground. - 53 - .-...-- ----.-.--'------ _.._-~~ -~ . · -\,..',......,."".~.,.."."""""'~~'........_'" '"'~,-,,-.....,... ,...'.....',,:-- ...·M.,., .....,-,~..,_......'....""~_,...........__.... ""'_.......,."~ .,.""".,~.,.,.,-;..."..." ;..-". ,·;·,···'_IF'·...'''''-'I<', ',--, - (Queens bury ZBA Meeting 5/22/96) MR. MCDONOUGH-If it's a structure, in a Highway Commercial zone, used for highway commerce, certainly. MR. CARVIN-What about in a residential area? difference? What's the MR. MCDONOUGH-Then that is not a commercial use. MR. CARVIN-It's still a structure. MR. MCDONOUGH-It's not a commercial use in a Highway Commercial area. How about if you put a ferris wheel right on there without the zoning? That's not a structure? MR. CARVIN-I don't know. I don't have an answer. I knqw that they said there's no height restriction, in 1988. MR. MCDONOUGH-No height restriction here, but there's not a structure. MARTIN AUFFREDOU MR. AUFFREDOU-My understanding, in 1988, though, and it wasn't part of the application, but my understanding was that the Town did require that structure to meet the setbacks from the road, and my understanding was also, and my client's Mr. Ferraro, our client Mr. Ferraro, when he put in his go cart track, 500 feet or so down the road, he had to get a variance from this front setback because it was a structure. You had to get a variance to put it wherever you wanted to put it. So I think there's some inconsistent applications going on here. I think there's some unfairness that needs to be pointed out. I clerked for a judge at one point in time who used to tell lawyers and other people that their interpretations sometimes were too crabbed. The spirit and intent of the Code I think needs to be followed here, and as far as setting precedent, just because this is a Highway Commercial zone, it's a Highway Commercial Overlay Zone, whatever it is that you want to call it, it seems to me that you want to avoid any, and this Town has set forth in the Code, that you want to avoid putting everything right on top of property lines. That's specified right in here, and I think a go cart track, there's no question in illY mind, that is a structure. If you allow it to go within the setbacks, the applicable setbacks here, it seems to me that you're defeating the purpose that you've set forth in the Code, and I think the purpose of this Highway Commercial zone is, yes, to recognizing the intensive uses there, recognizing the busyness of the area, but still allowing enough room between uses, enough room separating uses, so that there isn't a convoluted or compact or busy area. You're trying to address those setbacks. Otherwise the setbacks serve absolutely no purpose at all. I don' t see any purpose in having a setback if Mr. Martin's interpretation is to take (lost words). The setbacks are rendered meaningless. Absolutely meaningless. MR. CARVIN-If they were just to run the go carts on the plain ground, in an oval, two feet off the property line, should they be forced back? Is this what you're saying? Would that still be a structure? MR. AUFFREDOU-I think it's land use which would have to be, which would have to be looked at for the setbacks respectively. I'm not sure that it constitutes a structure, but I think what they're clearly doing here is putting in a structure. They're affixing a permanent structure to the land. MR. MARTIN-I don't dispute that. It's a structure. MR. CARVIN-Okay. Any other comments? I haven't opened up the - 54 - '- (Queensbury ZBA Meeting 5/22/96) -./ public hearing yet. MR. AUFFREDOU-I'm not sure that there's anything new that I can add, other than what Mr. McDonough has said and what I've set forth in my appeal. MR. MCDONOUGH-And I've set forth in my memo on the appeal, also, which is basically what I've said here. MR. CARVIN-And I guess, Jim, he's thrown his cards on the table. So the Board, we know where all the combatants are. Okay. I'm going to open up the public hearing. Anyone wishing to be heard? PUBLIC HEARING OPENED JOHN LEMERY MR. LEMERY-My name is John Lemery of Lemery & Reid. I'm counsel to the Great Escape. The Great Escape joins in the request of the applicants here. There's no question in my mind that it's a structure. There's no question in my mind, either, that it has to comply with the setbacks. I'm sure if the Great Escape were here and they wanted to move the Screamin' Demon within 50 feet of Route 9, that there would be a hew and cry about the setback and an appropriate setback. When the Steamin' Demon was put in in 1988, it was put well back, so as to meet the setback requirements. I think the position that it was a structure is consistent with exactly what Mr. McDonough and Mr. Auffredou are arguing here tonight, which is that this go cart track is clearly a structure. The fact that a struc4ure isn't necessarily a building doesn't mean anything. A structure is a structure. Structure and building are used interchangeably in the Code, and it's clear, what you were talking about earlier, the intent of the Zoning Ordinance and the intent as it applied to your last application. I don't think it's the intent of either the Master Plan of the Town relative to Route 9 and the need, from time to time, to widen that, put in turning lanes and all the rest of it, and with that in mind, to allow, willy nilly, up and down that corridor, signage and other structures of a permanent nature, such as a go cart track, to be within the setback. So The Great Escape, you've heard all the arguments, you don't need to hear any more from me at ten of twelve, but the Great Escape joins in this and requests that this go cart track be required to be within the setback confines of the Ordinance. Thank you. GILBERT BOEHM MR. BOEHM-I have a question, retaining wall is a structure. retaining walls 75 feet back? relative to a retaining wall. A Does that mean, now, we have to put I think that complicates things. MR. CARVIN-It doesn't make it any easier, does it? MR. BOEHM..:No. MR. CARVIN-Thank you. Anyone else? Yes, sir. KEITH FERRARO MR. FERRARO MR. FERRARO-My name is Keith Ferraro. I'm one of the owners of Skateland. I think precedent has been set, here, because we were required, before we could build our kiddie go cart track, to receive a variance on the front setback for our three inches of blacktop on grade. MR. MARTIN-I've researched that application, and that's not what - 55 - .-----,.- -----""------.-- -'"-··------________·"N_.....~,__~__·_ - ..-.....-.-.....____....___.__,,~ ~~.·r'·"-.""'~"__"""-_""'.""'__""""'""''''"'~'"''''' ......<.,~~_._.~,<_..,_\~':h~·'.~~,~...'" '_'_"'::'\"""".~..-; ""._~<>-.,_.,""""",.., ,~,.,.........."...-!~.." '- (Queensbury ZBA Meeting 5/22/96) the variance is for. MR. FERRARO-But it was part of a commercial amusement device, and that's what the structure was designed for, and that's why we had to get the variance. It's still the same thing. It's for the amusement device. It's not because you're going to permit us to put a piece of blacktop on the front lawn. MR. MARTIN-My recollection in researching that application, and if it comes to a point where the Board needs to see that I can get it. There was a variance given on the water slide, as I believe, but it was not for the go cart track. MR. CARVIN-When was this, Jim? MR. MARTIN-Probably in the mid eighties. MR. FERRARO-Mid to late eighties, yes. MR. MARTIN-'85, '86. MR. FERRARO-'87, I think, but the variance did speak specifically to the front setback for the kiddie go cart track as well as other variances for the water slide which were granted at that time, but if you need that information, I can present it to you. So that's all I have. MR. CARVIN-Thank you. Yes, sir. WILLIAM NEALON MR. NEALON-My name is William Nealon. Our office represented Skateland at the time of the water slide and the go cart track before the Board, and absolutely that go cart track was a part of that variance application. MR. MARTIN-It was a part of the application, but not a point of the resolution. MR. NEALON-I don't believe so, Jim. MR. MARTIN-Well, I looked specifically at that, in researching this when the question first came up, but I'll look again. MR. NEALON-All right. Thank you. MR. SCHACHNER-It doesn't have to be now, Fred, but at some point prior to decision, I think I'd like to advise the Board about the possible relevance of the previous decision, whenever you see fit. MR. CARVIN-Okay. Thank you. WALTER REHM MR. REHM-My name is Walter Rehm, and I represent Kenneth Ermiger who is the applicant. I think the question is, does this track have to comply with the setback? The question really is, what is the setback? And the answer to that is found in the Zoning Ordinance, and I would ask the Board if they would, please, to turn to the definition of "Setback", which is on Page 17942, and while you're doing that, I will say that the responsibility of the Board in this case is to interpret the Zoning Ordinance as it exists, by an analysis of the plain language of the Ordinance. Now, if you look at the definition of "Setback", it says that Setback is "The established line beyond which no part of a building," and I emphasize the word building, "may extend", and the use of the word building in that definition is key. It is key to Jim's determination, which is correct, and there can be no question about - 56 - ~ (Queensbury ZBA Meeting 5/22/96) '"--"" that. The other definition that deals with setback is found on Page 17948, which is "Yard, Front". "A yard that extends the full width of the lot and is situated between the adjacent highway right of way or shoreline and the front line of the building", again used, "projected to the side lines of the lot. The depth of the front line shall be measured between the front line of the building and the highway right-of-way." Now, I submit to you that the use of the word building is the answer to this question. There is no way that you can define a go cart track as a building, and the reason you can't is that the building is defined in the Zoning Ordinance, and again, if you would turn to the definition, which is Page 17914, a building is "Any structure which is permanently affixed to the land, is covered by a roof". A building must have a roof. "Supported by columns or by walls and is intended for shelter, housing or enclosure of persons, animals, or chattels." A go cart track is not a building. Now, if you would turn to Section 179-28C, which is Page 17986.5, that's the regulation that deals with the Travel Corridor Overlay Zone, and the regulation is, "All buildings hereafter erected or altered within the Travel Corridor Overlay District shall be set back 75 feet from the edge of the road." Again, the setback relates only to buildings, and buildings are structures with roofs which are designed for shelter. So that is the answer, and as Jim correctly pointed out, you have other things that are structures. Telephone poles are structures, signs are structures, parking lots and fences and retaining walls, and as was mentioned, swing sets are structures, but they're not buildings, and if they're not buildings, under the Town of Queensbury Zoning Ordinance, without question, they do not have to comply with the setback, and that is the determination of the Zoning Administrator, and I think that, as I say, there can be no question whatsoever, and to hold otherwise would be an entirely in (lost word) of the plain language of this Ordinance, but if you look beyond that and look at the practical difficulties associated with that, sidewalks, then, I suppose, would be structures, and sidewalks would have to be setback 75 feet from the highway, and parking lights would have to be set back 75 feet from the highway. It makes absolutely no sense, and I'll tell you I'm amazed, frankly, at the argument that has proceeded this, which seems to be based upon that which those who were making the arguments would like to believe the Ordinance says, but are not based upon a close and careful and honest review of the Ordinance. MR. CARVIN-Any questions? Thank you. Any other comments? Any other public comment? Written correspondence? MR. THOMAS-Yes, there was. A letter received 5/20/96, addressed to Mr. Martin. "Dear Mr. Martin: I would like to go on record in support of setback requirements including front, rear and side setbacks for the proposed go cart track on Route 9. As a resident of Twicwood I live up the hill behind Sutton's and value the rural atmosphere surrounding my home. The noise and visual pollution of the Go-Kart operation any closer to the road than the set-back regulations require would seriously detract from the relative peace and quiet which attracted me to this area three years ago. I ask you give careful consideration to the possible enhancement of popular Route 9 as opposed to continuing unplanned commercialization and its accompanying over-all pollution. I hope you will seriously consider enforcing these required regulations. Sincerely, Helen A. Briggs" That's it. MR. CARVIN-Okay. Rebuttal? MR. AUFFREDOU-We're not talking about sidewalks. We're not talking about retaining walls. We're talking about structures which are included within the definition of "Amusement Center" in the Code. We're talking about structures, included in the definition of "Amusement Center", which is what this is, which is what this proposed use is. Now it seems to me that if Mr. Mart in's - 57 - ---~_.-.- -_._,~... -..... ..--.-.'--, ---,~.._- -'-"->'~---'- .....--..-- ,.......... ,_. '_'~'.'\«"~''':'''''''';_'''''t<.<':..;,..~ .- (Queensbury ZBA Meeting 5/22/96) interpretation is correct, and if this Board accepts Mr. Martin's interpretation, it seems to me that Mr. Lemery can contact his client tomorrow and tell them that they can move the Great Escape as close to Route 9 as they want to. I can tell Mr. Ferraro that he can move his go cart track right on top of Route 9 if he wants to. There is a purpose and an intent behind what the precedents have established. There's a reason why these structures have been set back. There's a reason why Mr. Ferraro had to get a variance, and that's because this Board, the predecessor members, decided at one point in time that it made sense to follow a practical interpretation, perhaps not a literal interpretation, not a crabbed interpretation of the zoning code as I mentioned earlier, but an interpretation that makes sense and is in line with the spirit and intent and purpose of the code, which is to protect neighboring properties and is to try to keep this zone looking nice.. You don't want uses right on top of one another. That's the purpose of setbacks. MR. MCDONOUGH-Just a point to ponder. If the Town did not intend to have structures included within the concept of the word "building", why was it put there? Is it to be disregarded? They said building includes structure. When you look in the definition of building it refers you to structure also. On (lost word) comment with respect to "Amusement Center", they include structures and buildings in the definitions. Thank you. MR. CARVIN-Jim, on Page 17936, I've just got a question. Under Item E., can you give me a little bit of grasp? In other words, they're saying "Each commercial use structure and each industrial use structure in excess of 300 square feet constitutes one (1) 'principal building' ." In reading through that, I'm just trying to figure if that is a definition of when a structure turns into a building. MR. REHM-What's the Section Number, please? MR. CARVIN-It's Page 17936, Principal Buildings, and it says within the Adirondack Park. I don't know if it's in the Adirondack Park or not. MR. THOMAS-No. . I That's outside the Adlrondack Park. This is. MR. REHM-Could I say something? MR. CARVIN-Sure. I'll let Mr. Martin kind of mull that one over. MR. REHM-I think it's extremely important, I listened carefully to what you said earlier about the role of the Board. I think it's extremely important for a Board of this type to understand that in interpreting an Ordinance, when you can make a determination based on the plain language of the Ordinance, you must do so. In this case, without question, the Town Board, in enacting this Ordinance, said that setbacks relate to buildings. Buildings happen to be structures, but not all structures are buildings, and they were very specific in defining what a building was, and they were very specific in definition that setback relates to buildings. It is absolutely improper for the Board, in the face of the plain language of the Ordinance, to try to interpret what the Town Board meant, if the Town Board may have had some other ulterior motive or that the Town Board may have meant a result that is not plain in the Ordinance, and that's the law, and that is the responsibility of the Board, and I know that, I think it's very clear that you would probably, as planners, prefer that this facility conform to the setback, but that's not your role in this particular circumstance. Your role in this particular circumstance is to look at the plain language and make a determination based on the plain language if you can do so, and I submit to you that the language is so clear, and I think Jim Martin agrees that the language is so - 58 - '"--' -..../ (Queensbury ZBA Meeting 5/22/96) clear in this case, that you must do sO,thatit would be improper to try to read something into this plain language that is not there, and remember that this plain language is there for the purpose of informing my client what the law is, and for the purpose of informing everybody else in the Town what the law is, and if you say that the term "Setback" which specifically indicates that it relates only to a building, relates to more than a building, that it relates to telephone poles and sidewalks and retaining walls and swing sets and all of that, how in God's name can anybody read this Ordinance and know whether or not they're in compliance? They cannot, and that's why this is such a clear situation, and that's why your role is so important in this particular case, to just look at the specific language of the Ordinance. I think that that's a fair presentation of what the law of construction is, of statutory construction is, and the attorney is here, your attorney, is here tonight to agree or disagree. MR. CARVIN-Any other public comment? MR. MARTIN-Just getting back to your question, Fred. The first thing I would note is that is within the Adirondack Park and that is likely language that is specific ,to the Adirondack Park, but to answer it, it says, commercial use structure, I would want to know what the definition of Commercial Use Structure is, and I go with the definition of, there is no definition for Commercial Use Structure. There is a definition of Commercial Use "Any use involving the sale or rental or distribution of goods, services, or commodities, either retail or wholesale, or the provision of recreation facilities or activities for a fee. The term shall include but not be limited to the following: drive-in restaurant, fast-food operation; filling station; public garage; restaurant; retail store; retail stand; and tavern." In each one of those cases cited, that would be a building, each one of those things listed there. The other thing I'd like to take advantage of is Tom Nace is here, and, Tom, do you recall the development on the property next to this? The Pirate's Cove? TOM NACE MR. NACE-Pirate's Cove? Yes. MR. MARTIN-Golf Course. Tell me, for the record, are some of those tees or parts of tha~ Golf Course within the 75 foot setback? MR. NACE-Okay. For the record, my name is Tom Nace with Haanen Engineering. I did represent Pirate's Cove in the Site Plan Review of that project. There are holes in the Golf Course, the Miniature Golf Course, and part of the reservoir or pond that's used as part of the course is within the 75 feet. MR. CARVIN-How long ago was that, Tom? MR. NACE-That was. MR. MARTIN-Within a year, eight months. MR. NACE-Yes, last August maybe. MR. MCDONOUGH-Last fall we were at that meeting, and that issue was never addressed, never came up at that point in time. So, that Board didn't address any setback at all. The only issues addressed there were the safety and side setback with respect to Animal Land because children would be on the Golf Course, and there might be the potential for some hazard coming from the adjacent property. That's the only, so there was not an address of setback at all. MR. MARTIN-Tom, but what is the nature and configuration of those holes. How are they constructed? - 59 - -....- --" (Queensbury ZBA Meeting 5/22/96) MR. NACE-They're constructed out of cement, crushed stone base. The pond is constructed of gunnite, hermetically placed cement, again on a crushed stone base. There's walkways that cross some of the pond that constitute some of the holes and are constructed of cement. So it is a structure under the definition of attached to the land, for the beneficial use, but it is not a building, and we addressed the issue of setback before coming to the Planning Board with that, with the Zoning Administrator. MR. CARVIN-Okay. Thank you, Tom. MR. MCDONOUGH-May I just address that? I was present at those hearings. At no time was setback addressed at that hearing. The only issue was safety on the side line. I would think, had that become an issue, Mr. Nace would have probably been talking about that issue at that hearing. It was not even brought up. So we didn't know that there was an issue with respect to setback at that point in time at all. Just a point in response to the inquiry, to say that was the precedent for this should not be the basis for that testimony, to say that because that was done there, it wasn't an issue at all. We didn't know it was an issue. MR. CARVIN-Anyone else? Seeing none, hearing none, I'll close the public hearing. PUBLIC HEARING CLOSED MR. CARVIN-Does anyone have questions of the applicant? Do you have any particular feelings, Bill, one way or the other? MR. GREEN-I really want to see the other go cart down the road and see what was actually done there. MR. CARVIN-Yes. I don't think we're going to make a decision tonight. I know I'm not comfortable coming up with a decision, not at the time that it is, that's going to be coherent, and there are an awful lot of issues, here, that have been raised that are well within the gray area, and I think I want to do a little homework, but I want to know if anybody's got any questions of the applicant, or anything you want to put on the record, so when you go through the minutes later on, you know what you were thinking. MR. MARTIN-If you want material out of that Skateland file, that can be supplied, or is available to you. MR. CARVIN-I don't know what I'm going to need at this point. That's something that I'm going to have to mull over in mY mind. I would probably like to consult with the Town Attorney. I don't know, Mark, do you know if there's any precedents or any cases out there of a similar nature that can be looked at? Not that I think that's going to be the easy answer. MR. SCHACHNER-Well, it might be, if there were very closely analogous cases. I'd be fairly surprised if there were. To the extent that general principals have been advanced by the various parties, most of the general principals actually advanced by, if you will use this term, both sides, are correct, as matters of law. I think that we're down to a real, you know, sort of hair splitting, language specific, Zoning Ordinance specific, and project specific issue to some extent, but my comment that I was going to make earlier is no longer relevant, in that I wanted to make sure and caution the Board that there is some very significant possible relevance to this past decision that none of us really know for sure what transpired, and the Board members have already indicated that you want more information on that, and I think that's very appropriate. MR. CARVIN-Okay. Do you have any thoughts or comments? - 60 - "- (Queensbury ZBA Meeting 5/22/96) , -- MR. REHM-Could I ask a question? I just wanted to ask Mark a question. Are you referring to a prior interpretation of the Zoning Ordinance by this Board? MR. SCHACHNER-I'm referring, in that comment, to this notion that there's a similar or different go cart track located somewhere in close proximity that the owner or operator of that facility, as I understand it, feels very strongly, as does his counsel at that time, that they were subject to a very specific determination that they needed to comply with the setback, even with respect to their carts, and Mr. Martin, my Staff person, is telling me that he doesn't think it's an apples to apples situation. MR. REHM-Yes. I think if that is a determination of the Zoning Administrator, it is not germane to these proceedings. If it is a determination of the Zoning Board of Appeals, it is germane. MR. SCHACHNER-I think everyone is in agreement, as far as I know, that there was ª determination made by the Zoning Board of Appeals with respect to that facility. I think everyone agrees with that. The question we're not sure of is exactly what that determination did or didn't déal with. MR. REHM-A determination on the need for a setback variance. MR. SCHACHNER-Right. There seems to be a very sharp disagreement about whether that was or was not an issue. MR. REHM-I just want to make it clear. I agree. MR. MARTIN-The other thing that I know was a fact on that previous case was that the Travel Corridor Overlay Zone was not in effect at the time that was reviewed, and that the 50 foot setback was the only thing that would have been even talked about, because the Travel Corridor Overlay did not exist. MR. REHM-I think it may well have been a different Zoning Ordinance. MR. MARTIN-It was the '82 Ordinance that that was reviewed under. MR. REHM-And so I would hope Mark would caution the Board to be careful with what the Board looks at in terms of a prior Zoning Board of Appeals interpretation. Lets make sure we've got this Ordinance and lets make sure we've got this Ordinance and not a prior Ordinance with different language, and lets make sure that it is an interpretation of the need for a setback, not necessarily the need for a Use Variance or some other type of variance. ¡ MR. CARVIN-Well, for myself, I will be doing a lot of homework on this, and it will be specific to this particular application, and unfortunately, I can see the merit on both sides. I think both sides have advanced some pretty interesting concepts, if I can use that term, and I'm not quite sure where, you know, I can come down. I mean, I'm quite honest here. I just don't know. I mean, both sides have got very convincing arguments, and that's why I would like, personally, I would like some time to résearch what some of the history has been, and I'm hearing that the history has been sporadic. I mean, theré's been decisions both ways, and I think that this could be an issue that, potentially, has some large ramifications. I think that, you know, how this Board comes down on this issue really could have a major impact. So, personally, I want to make sure, if I'm going to be taken to court, I want to make sure that I'm okay. So, I guess we've got 60 days, 62 days. Okay. Thank you. MR. MARTIN-Meeting adjourned? - 61 - .._._~...' __.____.___..._ __M.. -._,."..-." -_.,---_."-_...~_.. ---~-_·'·--·-·I ,-/ (Queensbury ZBA Meeting 5/22/96) MR. CARVIN-Yes, I think so. Yes, meeting adjourned. RESPECTFULLY SUBMITTED, Fred A. Carvin, Chairman - 62 - .........-./