Addendum to Variance ApplicationADDENDUM TO VARIANCE APPLICATION
Rockhurst LLC (“Applicant”), owner of the property at 10 Polk Drive, Town of Queensbury (the
“Property”), seeks site plan review from the Town of Queensbury Planning Board to take the
following actions with respect to its Property:
1. Demolition of two existing residential cottages;
2. Construction of a one-family residence with a building footprint of approximately 2,400
sq. ft.;
3. Installation of a new septic tank and leach field on the Property;
4. Construction of a new driveway from Assembly Point Road to service only the Property;
5. Construction of a separate driveway along the southerly boundary of the Property to
provide access to Applicant’s other property known as 3 Polk Drive.
Before the Planning Board can consider Applicant’ s proposal, Applicant must obtain two
variances from the Town of Queensbury Zoning Board of Appeals (“ZBA”):
1. A variance to permit the proposed single-family residence to have a height of 29.9 feet
from the existing elevation of the portion of the Property where the residence is proposed
to be constructed, as opposed to the maximum building height of 28.0 feet; and
2. A variance to permit the residence to be constructed with a shoreline setback of 50 feet as
opposed to the minimum shoreline setback of 75 feet applicable to the former zoning
district at the time the Property was created as a separate lot.
Section 267-B of the Town Law of the State of New York requires a zoning board of appeals to
apply a balancing test, comparing the benefit to the applicant if the variances are granted and the
detriment to the health, safety and welfare to the neighborhood or community if the variances are
granted. The Town Law enumerates five factors for the ZBA to consider in balancing the benefit
and the detriment and these factors are discussed below.
1. Whether an undesirable change will be produced in the character of the neighborhood or a
detriment to nearby property will be created?
The Property is located in the WR Waterfront Residential District and the proposed use is the
construction of one single-family residence to replace the two existing residential cottages on the
Property. The new residence would be located further from the shore of Lake George than the
existing cottages, which are set back only 38 and 40 feet, respectively, meaning that the degree of
non-conformance with the shoreline setback will be reduced by 16% and 13.3%, respectively. The
requested height variance is less than seven (7%) percent. A new septic system and leach field will
be installed, and stormwater from the site will be managed on-site, thereby improving
environmental conditions in the neighborhood. The value of the Property will increase with the
new construction, producing additional tax revenue for the Town, Warren County and the Lake
George School District. An increase in the value of the other properties in the neighborhood is also
likely to occur.
2. Whether the benefit sought by the Applicant can be achieved by some method, feasible for
the Applicant to pursue, other than an area variance?
The building height variance is unavoidable, based on the residence which the applicant seeks to
build and the location which has been determined to be the best location on the 1.0 acre Property.
Its need is caused by the fact that the Town Code requires that the building height be measured
from the natural grade of the building site rather than from the finish grade of the building site.
Therefore, although the building height measured from finish grade does not exceed 28 feet, the
measurement of its height from natural grade does by less than seven (7%) percent. The shore
setback variance is necessitated by an “unintended consequence” in the Town Code. The Property
is a lot on a subdivision map filed in 1993, then modified to adjust a lot line and filed as modified
in 1996. As a non-conforming lot, the Property is required to conform with all of the requirements
of the Town Code as they then existed, which means that a shoreline setback of 75 feet is mandated.
However, the existing cottages which are to be removed are only 38 and 40 feet, respectively, from
the shoreline, while the proposed shoreline setback for the new residence of 50 feet is compliant
with the shoreline setback requirement under the current zoning for the WR District. Therefore,
the new structure will increase the existing shoreline setback of the Property and make it compliant
with the current zoning.
3. Whether the area variance is substantial?
The proposed building height variance is only 6.8% from the requirement and the need for it is
caused by the need to place a certain amount of fill in the building site. The structure itself will not
be more than 28 feet from the finish grade. Furthermore, excluding the chimney, only 8% of the
roof will exceed the 28 foot height limitation. See the roof plan prepared by Balzer & Tuck
Architecture submitted in support of the variance application. While the shoreline setback may
seem substantial initially, when the setback of the existing cottages is considered, the degree of
non-compliance of the Property if the variance is granted, compared to its current degree of non-
compliance, will be decreased and the actual setback is what would be required if the Property
were a conforming lot with no improvements and the owner sought to build a residence on the
Property.
4. Whether the proposed variance will have an adverse effect or impact on the physical or
environmental conditions in the neighborhood or district?
It is respectfully submitted that the proposed variance will have a positive rather than an adverse
impact. The new septic system will comply with current NYSDEC and NYSDOH requirements
and replace an old, outdated system located closer to Lake George than the Applicant proposes. In
addition, all stormwater runoff from impervious area on the Property with be managed in
compliance with NYSDEC Regulations pursuant to a SPDES Permit to be obtained. Finally, as
shown on the Site Plan, creation of a driveway easement over the property for the benefit of
Applicant’s adjoining lot at 3 Polk Drive will obviate the need for that lot to use Holly Lane for
ingress and egress, thereby eliminating the concerns expressed by several residents living on Holly
Lane at the ZBA’s August public hearing on a variance request for the property at 3 Polk Lane.
5. Whether the alleged difficulty was self-created?
Technically, the hardship was self-created, but a self-created hardship is not a bar to the grant of
an area variance. There is an unusual circumstance involved, because the Applicant has to comply
with a shoreline setback which would not require a variance under the current zoning of the
Property.
In summary, when all of the factors to be considered in determining whether to grant the variances
are examined, it is clear that the requested variances should be granted based upon the application
of the balancing test.