1988-05-20 SP2 fl
SPECIAL TOWN BOARD MEETING
MAY 20, 1988
7:45 P.M.
TOWN BOARD PRESENT:
Mr. Stephen Borgos-Supervisor
Mrs. Marilyn Potenza, Councilman
Mrs. Betty Monahan-Councilman
Mr. Wilson Mathias-Town Counsel
MEMBERS ABSENT:
Mr. Ronald Montesi-Councilman
Mr. George Kurosaka-Councilman
PRESS: G.F. Post Star, WENU
Supervisor Borgos-Immediately following our earlier meeting during which time we
held an executive session and following which we made a resolution and hired an
engineering firm, following that part of it, we had some representatives from our
staff talk to us when we were back into public session. That conference related
to the new restaurant on Round Pond Road, the Bavarian Palace, owned by Charles
Wood. The Queensbury Junior Prom is planned for their tomorrow evening, it has
been under construction and as of yesterday the septic tank had not been installed
there was no black top, we were wondering if they would meet the deadline? The
Fire Marshal stopped in and our Code Enforcement Officer was also present and our
concern is for the health and safety of the individuals. Earlier this week the
dirt on the bank of the easterly side of the property had not been cut back for
visibility, we spoke to the Highway Dept. who communicated with the County Highway
Dept. and within hours the hill started to move, I understand that the hill has
been cut back and there is good visibility. There is a concern because we cannot
find a record of a building permit for that building, what we did have on file
is a request for an addition to that building, a kitchen and a couple of rest rooms,
that permit was issued in November of 1987. We were concerned that there was no
building permit as such on file because technically one is required. At that point
is was decided to ask the Code Enforcement person Mr. Martin to check it out and
to see if a building permit had been issued. At that point none had been he took
the required forms at our request to the Great Escape, the permit was requested
a fee was paid for and a permit was issued. Normally this is done ahead of time
sometimes building permits are overlooked and are followed up at a later point.
We are also concerned with the next step in the process and that is called a certificate
of occupancy. Since the building is not done we cannot have a C/O we are faced
with some interesting problems today, our Director of Building and Code Enforcement
Zoning Administrator is out today Mr. Dean, he is the only person who could issue
a certificate of occupancy. We do have a provision for a temporary C/O which can
be issued by any of our inspectors. It was determined that after the presentation
of the Fire Marshal and the Code Enforcement Officer that the owner of the park
Mr. Wood has agreed that by 4:00 P.M. tomorrow afternoon everything will be finished
and in compliance with all the health, safety and fire codes. Both Mr. Martin
and the Fire Marshal Mr. Bodenweiser will be there at 4:00 P.M. and provided that
everything is done in full compliance with the law a temporary C/O will be issued.
That would mean that the Prom would go on as scheduled. One half hour after the
end of that meeting it was called to our attention that perhaps a section of the
Zoning Ordinance as it was amended in June of 1985, perhaps had not been followed.
And perhaps I had not properly digested a memo that was sent to me two days ago
I had no knowledge of that memo. After searching for a long time I did find it,
I was not in the building yesterday and I came in about 1:00 P.M. today. I did
find a memo from Lee York our Senior Planner related to this particular building.
Mrs. York indicated a number of things related to the building permit, among other
things she indicated that this building permit should have gone through what we
know as Site Plan Review. A representative of the Planning Board also contacted
us indicating that this should have gone through Site Plan Review. A number of
other things were sited one of them is that soil erosion control was not enforced.
Part of the bank was cut through for this building and there were a couple of other
questions that were raised. On page two of this memo at 4:30 P.M. on the 18th
Mr. Dean our Building and Code Enforcement person, there is a note that Mr. Dean
just informed me (Mrs. York) that Restaurants were added to RC as a permitted use
in June of 1985, I have not had time to verify this. The only thing we have in
June of 1985 is this amendment to the Queensbury Zoning Ordinance which by the
interpretation given us this after noon with the Town Clerk after all these other
things took place indicates for a restaurant to be built in a RC zone it must come
under Site Plan Review. Earlier this after noon we asked our Code Enforcement
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Officer Mr. Martin to bring with him his book which indicates what can and cannot
be built in a RC zone. In this book which he uses everyday it says permitted uses
include restaurants, and that would not be subject to a site plan review where
everything else is spelled out. We compared the memo of June 1985 with what is
in the book that the Code Enforcement Officers use and there is a difference.
This amendment says that restaurants would have to come under a site plan review
the book currently in use says it does not have to come under review. We have
a conflict, if this were to go for site plan review it would take at least a three
week notice to the Planning Board etc. The other item that was listed on this
sheet as being changed for a different zone was Plaza Commercial, also related
to restaurants was properly changed in the hand book. In investigating further,
we tried to contact the Town Counsel but could not reach him, it was also impossible
to reach Mr. Prime. I made a call to a person who was familiar with the project,
it was at that point I found out that this building was not brand new. The building
was there for a year and in use. What was filed for in November was an addition
and that is where a permit was granted. I do not think that the person who brought
this to our attention earlier had any idea that the building had been there for
a year. Someone a year ago when the building went up perhaps should have objected
and something been done and perhaps there maybe something to come up in the future.
The concern is that there is a Junior Prom scheduled for tomorrow night we were
satisfied this afternoon that health fire and safety regulations were met we were
satisfied on the basis of what's in the book that everything had been complied
with and we said we had no objections to a temporary C/O we had the permit in hand
and everything was fine. After that this issue was raised.
Councilman Monahan-Questioned why there was writing at the bottom of the page on
the Code Enforcement handbook, it was obviously written at the bottom as a result
of the 1985 Amendment?
Supervisor Borgos-There are a lot of notations on the pages.
We are here to discuss this issue and to assure the public that in no way did we
intend to give anyone special treatment. Ninety Nine percent of the what she (Mrs.
York) relates to the construction of the building itself, which we now find has
been there over a year.
Councilman Monahan-If it has been there without site plan review it has been there
illegally.
Supervisor Borgos-Should we at this moment in fairness at the last minute stop
— a Junior Prom? Stop all the plans that have been made as far as anyone can tell
all the rules and regulations have been followed as best anyone knew even our own
building dept. didn't know that it needed more.
Councilman Monahan-By issuing a building permit we are put in a legal situation
if anything happens with an illegal use of a structure going on and if any kind
of accident or anything the Town is a very precarious situation. I feel Mr. Wood
should find some other building to hold that Prom in. There have been some parents
that have questioned the safety of it.
Supervisor Borgos-We have been assured by our Code Enforcement Officer and our
Fire Marshal that, that building will not open if it is in any way unsafe.
Councilman Potenza-We have been assured by our Fire Marshal and Building Inspector...
Councilman Monahan-We did not have these guide lines when we were here this afternoon.
Councilman Potenza-The Queensbury High School should not take the brunt of this.
Councilman Monahan-Should the citizens of this Town take the brunt of a law suite
because we have done something illegally.
Councilman Potenza-I do not think that we have done anything illegal.
One of the questions is did it have to go before a site plan review? Was it the
restaurant or the addition that had to be for site plan review?
Supervisor Borgos-As we have just found out it has been there for over a year.
Councilman Monahan-That does not make any difference, if it is there illegally,
it is there illegally.
Councilman Potenza-We had people that were our experts to come in and talk to us
this afternoon and these are the criteria and the check list that must be followed
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and if this is followed we will issue a temporary C/O. As of 4:00 P.M. that was
the understanding. I cannot fathom that if it is structurally sound and I do not
have to worry about fires or traffic or any other type of problem that may come
before this structure and my fire Marshal tells me it is allright and my Building
Inspector tells me it is all right I cannot turn around and tell three hundred
students that they cannot go to their Junior Prom. Nor tell three hundred parents
that they cannot go because somewhere down the line in this check and balances
we as their representatives slipped up.
Councilman Monahan-We as their representatives did not slip up. I questioned why
that was under site plan review and written in. This was incorrect and I am not
. going to be bound by their action.
Supervisor Borgos-The regulations as we had them in front of us, as our people _
use them everyday does not call for site plan review. Allegation Number 1. was
that any structure over 2500 sq. ft. of floo, space in a recreation commercial
zone has to come before site plan review. That is not contained in this list.
The handwriting at the bottom of the page we do not know where it is supposed to
line up. Item 2. Soil erosion controls were not enforced. That would be the bank
that was cut in the last few days, that should be done there is no question about
that. Item 3. Off Street Parking and Loading and off street parking design was
not enforced. Item 4. In schedule of regulations type 2 number 8 Taverns refreshment
and other incidentals facilities for patrons are allowed...the question is the
restaurants which is separate from taverns refreshments etc. is listed as a permitted
use.
Councilman Monahan-A Planning Board Member spent hours with Mack Dean making him
aware that there was an amendment to the regulations...Mr. Dean should have made
you aware of it.
Councilman Potenza-I agree with you Betty, this is a great concern, but right now
we have a grave concern that is where do we stand on a temporary C/O on a restaurant
that we have students of the Town of Queensbury planning on attending their Junior
Prom tomorrow night. Whether the Building Dept, has failed to contract the Supervisor
in the appropriate time or whether the Supervisor did not read his memo's in the
correct time is a concern and something that we should look into but that is not
the main crux of the problem right now. A decision has got to come on what we
plan on doing...
Councilman Monahan-My job on this Town Board is to protect the citizens of this
town. Do we permit unlawfully in my mind public assembly to take place at that
place, as far as I am concerned the town is hanging out there.
Councilman Potenza-You are asking unlawful assembly because they did not go through
site plan review you are not calling it unlawful assembly because its not structurally
sound?
Councilman Monahan-No I am not. They have not gone through the proper procedure.
Councilman Potenza-Somewhere you have to give a little for the majority, my concern
right now is the three hundred high school students who plan on attending the Prom,
if it was a structural problem or fire problem or any other problem I would absolutely
support you. This is a legality problem, should he have done it, you bet, should
be have to do it, you bet. Should it all be done by 6:00 P.M. tomorrow night so
that I have a group of students in the tux's and prom dresses because he failed
to go before the Board, I cannot carry it that far. If we could fine him, fine
him, I cannot go on record saying you cannot have it there, because you filed to
go before the Boards, because he is not taking the brunt of it, someone else is.
Councilman Monahan- I agree with you entirely and I am sorry the three hundred
students are going to be taking the brunt of it, I see a Town of Twenty five thousand
Citizens taking the legal brunt of it.
Councilman Potenza-It is not going to effect the temporary C/O.
Councilman Monahan-It will effect the temporary C/0 because the whole building
is there illegally anyway and you cannot give a C/O to an illegal building.
Supervisor Borgos-We have been assured that the health and safety of everyone in
the building is ok.
Councilman Monahan-We have an illegal structure there that we have no business
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giving a building permit to someone that has not done the proper procedures in
this town.
Supervisor Borgos-I was under the impression that this whole building had appeared
in the last few months, I have determined sense that the building has been here
for a year.
Councilman Potenza-It was in operation last year.
Supervisor Borgos-We are caught in a no win situation, that the Town Board should
not have to be involved with in any way, but at this point there is no one else
to be involved. The question is do we continue with our directive to the building
dept. of this afternoon that they go ahead and be sure that everything is in compliance
in terms of health and safety or do we call them up and change the vote and stop
the whole project because by our rules it would take at least a month to get any
approvals. If I were for a minute thinking we were compromising with health and
safety and you will recall before the men left here today I indicated that I wanted
some assurance that there were extra traffic controls there tomorrow night. Mr.
Bodenweiser said that if he himself had to be there he would work on it, I am sure
that will not be necessary. Any type of health or safety question I would not
for a minute hesitate in stopping this. The questions here are limited to the
legalities of did or did not someone follow the proper procedure in going through
site plan review. Were soil erosion controls followed, those are things that are
critical that we should insist on and I think next week we will work on, at the
moment in fairness here, not to Mr. Wood or the Great Escape but in fairness to
all the people who were involved with this without being responsible for the problems
I think we have to say, lets go ahead and wish the Juniors a good prom and hope
everyone gets home safely, and we will take care of it next week. I know where
you are coming from with the rest of it, but I think we have no choice because
of the time factor.
Councilman Monahan- I think we need to consult a few people involved in this because
I think we can have some very bad repercussions that could cause this town thousand
and thousands of dollars.
Supervisor Borgos-My over-riding concern is the health and safety of the people
in this community. I am convinced that it is ok for tomorrow night. We have a
number of buildings that have been improperly built and that is not to excuse them.
.__ Councilman Monahan-Requested a ten minute recess...
Agreed to by the Board...
Reconvened.
Supervisor Borgos-Noted that Town Counsel was now present. I have discussed the
issues with Mr. Mathias and he has reviewed the memorandum from Mrs. York and wishes
to give us his opinion.
Town Counsel-Wilson Mathias-I will give you a briefing on what the law is here.
The Town Clerk has given you a copy of resolution number 132 of 1985, setting forth
certain amendments to the zoning ordinance, the one of which we are concerned about
is the elimination of Restaurants as a permitted use of right under the schedule
of uses under a recreation commercial zone, and placing that particular use as
one requiring site plan review type II. That is the law here and that is the zoning
ordinance, that is the rule. Whether a reasonable person could have found that
based upon the copy of the schedule use that is used by our Building Dept. really
does not matter. We passed a law, adopted it correctly and published it etc. so
those are the rules. Recently the Court of Appeals said in a case involving a
sky scraper in New York that the City of New York had made a mistake in terms of
interpreting the zone within the Sky Scraper was to be located and issued a building
permit based on this interpretation. The developer did not acquire no vested rights
because there was no right, the Court said you have to knock off nineteen floors.
The practical aspect is that, is that a result that makes sense? This clearly
is not a case where someone has tried to pull the wool over anyone's eyes, anyone
reading the hand book that we have would come to the same conclusion that what
is out there was authorized under our law, unless you had the Town Clerk's resolution,
you would not be aware of this. The hard fact is he should have gotten Site Plan
Review and the fact that he did not even though he did not know about it does not
give him the right to be given a building permit or C/O or anything else. On the
other hand a very good legal issue is what can you do about it. Under our
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Zoning Ordinance there is no provision for the Town Board to meet and issue a stop
work order. You can lift one, but one is not in effect here. You could bring
an action under our Zoning Ordinance to enforce compliance of the law but that
type of action isn't something of a practical matter that you are going to be able
to put together between now and tomorrow morning or quite frankly Monday afternoon.
I think, if there some type of practical solution that will preserve the Town's
need to enforce its own regulations, where a permit was issued in error, and issued
by part of the Town itself in error. One possible solution for this would be the
issuance by an authorized official, probably one of the Building Inspectors, of
a temporary certificate of occupancy for a limited and specific time. In addition
to that there must be a requirement that as a condition of the temporary C/O the
applicant file for a Site Plan Type II Review in accordance with the rules, in
a specified period of time. To file on Monday or Tuesday is not an unrealistic
request. I think I would certainly covenant as part of the stipulation that this
should in no way be deemed by the applicant to be approval by any of the Board
with respect to what has been done. Any type of black topping or improvements
that had been put, the Planning Board when it makes it site plan review is going
to look and say what in its opinion is right and if he doesn't like or thinks that
something is a problem for health safety reasons maybe it will have to be changed.
First of all I think as a practical matter I do not know how you would enforce
this violation of the law right now anyway. This seems to be reasonable and hopefully
result in having the developer coming within the rules and regulations.
Supervisor Borgos-I asked Mr. Mathias, if we as a Town Board had the right to do
a lot of the different things that would seem to be appropriate to do at this moment
it appears that we do not have those rights. The Code Enforcement can give a Temporary
C/O and we can recommend that he do these other things. We cannot issue a stop
work order we have no way of reaching the only person that can issue a stop work
order. We are caught in a unique bind, it is not a win-able situation. It is my
recommendation to go along with Counsel and the recommendation of the insurance
company to issue a temporary C/O with a specified time frame of 24 hours and the
requirement that the proper papers be filed for Site Plan Review with five days.
Since Health and Safety Requirement seem to be carefully covered already let the
message go out throughout the Town that all people are expected to comply with
the rules and regulations and that this in no way is a change in that policy, this
is not a permanent exemption from the rules. This is an unfortunate thing that
came about because of inconstancies in two town documents. It would have never
come to light if a member of. the Planning Board familiar with the regulations noticed
that particular change that took place in 1985. Our books will have to be up dated
and researched to make sure all rules are updated, all those things take time.
We have come here to discuss openly the problem.
Town Counsel-Wilson Mathias-In one sense there is not what you can do, is. say,
tell one of the Counsel to start a proceeding to make him stop get an injunction
a temporary restraining order until he complies with our rules. The difficulty
with that is the practicality in getting that done at this time. The other issue,
to what end.
Supervisor Borgos-The other issue is damages, on both sides, if you stop it you
have the damages of people who have spent countless sums of money for tomorrow
night and their relatives coming from out of town and all the other concerns of
the individuals that own the property spent an unbelievable sum I am sure in what
I have seen happening. The potential damages to the Town in the mean time in dollars
and cents are relatively small.
Councilman Monahan-We will not let it go on for an unreasonable length of time
once we are aware of the problem.
Supervisor Borgos-I believe it is everyones intention to put a limit on the time
and lets get this squared away next week.
Councilman Monahan-Requested that the Supervisor contact the Building and Codes
Personnel and notify them of the boards discussion.
Councilman Potenza-I agree with this proposal. ._..
On motion the meeting was adjourned.
RESPECTFULLY SUBMITTED,
MISS DARLEEN M. DOUGHER
TOWN CLERK
TOWN OF QUEENSBURY