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2010.05.26 (Queensbury ZBA Meeting 05/26/2010) QUEENSBURY ZONING BOARD OF APPEALS SECOND REGULAR MEETING MAY 26, 2010 INDEX Area Variance No. 20-2009 Mary Sicard 1. Tax Map No. 289.6-1-1, 2, 3, 5, 17 289.10-1-4 Notice of Appeal No. 1-2010 David and Tanya Bruno 2. Tax Map No. 288.00-1-85 Sign Variance No. 20-2010 Body Relief/Alyssa Barber Dawkins 14. Tax Map No. 296.13-1-18 Area Variance No. 58-2009 Shannon Stockwell 22. Tax Map No. 295.14-1-27.2 THESE ARE NOT OFFICIALLY ADOPTED MINUTES AND ARE SUBJECT TO BOARD AND STAFF REVISIONS. REVISIONS WILL APPEAR ON THE FOLLOWING MINUTES (IF ANY) AND WILL STATE SUCH APPROVAL OF SAID MINUTES. 0 (Queensbury ZBA Meeting 05/26/2010) QUEENSBURY ZONING BOARD OF APPEALS SECOND REGULAR MEETING MAY 26, 2010 7:00 P.M. MEMBERS PRESENT JAMES UNDERWOOD, CHAIRMAN ROY URRICO, SECRETARY JOAN JENKIN BRIAN CLEMENTS JOYCE HUNT JOHN KOSKINAS, ALTERNATE MEMBERS ABSENT RICHARD GARRAND ZONING ADMINISTRATOR-CRAIG BROWN STENOGRAPHER-MARIA GAGLIARDI th MR. UNDERWOOD-I’m going to call the May 26 meeting of the Queensbury Zoning Board of Appeals to order, and starting out I want to quickly go through our procedures, once again, for anybody that perhaps is new here. As we handle each application I’ll call the application by name and number. The secretary will read the pertinent parts of the application, Staff Notes and Warren County Planning Board decision if applicable into the record. Then we’ll ask the applicant to present any information they wish to present to the Board. The Board will ask questions of the applicant, and then we’ll open up the public hearing. The public hearing is intended to help us gather information and understand it about the issue at hand, and it functions to help the Board members make a wise decision. It does not make the decision for the Board members. There will be a five minute limit on all speakers. We will allow speakers to speak again after everybody’s had a chance to speak, but not for more than three minutes, and only if after listening to the other speakers, a speaker believes that they have new information to present, and, Board members, I’d suggest that because we have the five minute limit that we not interrupt the speaker with questions while they’re speaking. Rather we should wait until the speaker has finished his five minute period and then ask the questions. Following all the speakers, we’ll read in any correspondence into the record, and then the applicant will have an opportunity to react and respond to the public comment. Board members then will discuss the variance request with the applicant. Following that, the Board members will have a chance to explain their positions on the application, and then the public hearing will be closed or left open depending on the situation, and finally, if appropriate a motion to approve or disapprove will follow. OLD BUSINESS: AREA VARIANCE NO. 20-2009 SEQRA TYPE: I MARY SICARD AGENT(S): JARRETT ENGINEERS, PLLC OWNER(S): MARY SICARD ZONING: RR-3A & WR LOCATION: NACY AND JAY ROADS, GLEN LAKE APPLICANT PROPOSES TO SUBDIVIDE 6 PARCELS TOTALING 42.38 ACRES INTO 16 LOTS RANGING IN SIZE FROM 0.35 ACRES TO 11 ACRES IN THE WATERFRONT RESIDENTIAL ONE ACRE ZONE ADJACENT TO GLEN LAKE AND THE RURAL RESIDENTIAL THREE ACRE ZONE TO THE EAST OF GLEN LAKE ROAD. RELIEF REQUESTED FROM LOT SIZE, LOT WIDTH, ROAD FRONTAGE, ROAD ACCESS, SHORELINE FRONTAGE, SIDE SETBACKS AND MORE THAN 1 ACCESSORY STRUCTURE PER LOT REQUIREMENTS. CROSS REF.: SUBDIVISION NO. 13-2008 WARREN COUNTY PLANNING: N/A LOT SIZE: 42.38 TOTAL ACRES TAX MAP NO. 289.6-1-1, 2, 3, 5, 17 / 289.10-1-4 ; SECTION: 179-3-040; 179-4-050, 179-5-020D MR. UNDERWOOD-We have previously heard this application. It was sent back to them for some modification, based upon the comments from the Zoning Board and the Planning Board, and they have asked to be, the applicant has requested to be tabled until further notice. We will read their letter into the record. It was received by Town Staff and Staff recommends that this application be tabled to July 21, 2010. I don’t know if anybody was here tonight that was involved with that application or wanted to comment on it. I don’t believe there is anybody here, but I think we’ll just wait. We’ll keep the public hearing open until that time. So I’ll read that letter quickly and then we’ll do a tabling motion on that. “Please accept this letter as a request on behalf of the applicant that the Planning Department table the applications pending before the Planning Board (5/20/2010) and the Zoning Board of Appeals (5/26/2010) until further notice. Should there be any questions or should your office require anything further in support of 1 (Queensbury ZBA Meeting 05/26/2010) this request, please contact the undersigned. Very truly yours, Muller & Mannix, PLLC Daniel J. Mannix, Esq.” So, I’m going to make the tabling motion. MOTION TO TABLE AREA VARIANCE NO. 20-2009 MARY SICARD, Introduced by James Underwood who moved for its adoption, seconded by Joyce Hunt: Nacy and Jay Roads, Glen Lake. Tabled until the July 21, 2010 meeting. th Duly adopted this 26 day of May, 2010, by the following vote: AYES: Mrs. Hunt, Mr. Clements, Mr. Urrico, Mrs. Jenkin, Mr. Koskinas, Mr. Underwood NOES: NONE ABSENT: Mr. Garrand NEW BUSINESS: NOTICE OF APPEAL NO. 1-2010 SEQRA TYPE: II DAVID AND TANYA BRUNO OWNER(S): DAVID AND TANYA BRUNO ZONING: RR-5A LOCATION: 119 GURNEY LANE APPELLANT IS APPEALING THE ZONING ADMINISTRATOR’S DETERMINATION OF MARCH 2, 2010 REGARDING AN UNAPPROVED AGRICULTURAL USE; THE KEEPING OF POULTRY IN THE RR-5A ZONING DISTRICT IS ONLY ALLOWED WITH SITE PLAN REVIEW APPROVAL BY THE TOWN OF QUEENSBURY PLANNING BOARD. WARREN COUNTY PLANNING: N/A LOT SIZE: 2.89 ACRES TAX MAP NO. 288.00-1-85 SECTION: 179-5- 040B DAVID & TANYA BRUNO, PRESENT STAFF INPUT Notes from Staff, Notice of Appeal No. 1-2010, David and Tanya Bruno, Meeting Date: May 26, 2010 “Project Location: 119 Gurney Lane Description of Proposed Project: Appellant is appealing to the Zoning Board of Appeals relative to a March 2, 2010 decision made by the Zoning Administrator regarding the conduct of an Agricultural Use on the property. Staff comments: First, Standing: Was the appeal taken within the appropriate 60 day time frame and is the appealing party aggrieved? ? The appeal was signed and filed with the Town on March 18, 2010. ? The appellants are the property owners. It appears as though this appeal is timely and the appellant may be an aggrieved party. Second, Merits of the argument: It is the appellant’s position that they began the keeping of chickens on their property in 1996. Further, the appellant asserts that no Town approvals were necessary at that time; therefore the current Agricultural Use should be considered a “grandfathered” use not subject to any town requirements. It is the position of the Zoning Administrator that the conduct of an Agricultural use on this property is currently and was in 1996 subject to Site Plan Review by the Town Planning Board. Further, the project requires an Area Variance as the current 2009 Zoning Ordinance requires a minimum of 5 acres of land for such a use. As noted in the March 2, 2010 determination that if the property in question is not able to “…meet all of the requirements for the use, relief from the Town of Queensbury Zoning Board of Appeals may be required prior to site plan review.” Town records indicate the property to be 2.89 acres in size. In 1996, the applicable Zoning Ordinance was the 1988 version. Pertinent copies of this code were previously provided to the appellant (on March 18, 2010) and are attached herewith. In 1996 the property was located within a Rural Residential (RR-5A) zone. Per § 179-15; Rural Residential Zones, subparagraph D,(3)(b) item [10]; Agricultural use and farm, all classes were listed as a Type II Site Plan Review use. Per § 179-63; Agricultural Uses, sub paragraph (4) 2 (Queensbury ZBA Meeting 05/26/2010) describes a Hobby Farm to include the: “…keeping of large or small mammals, poultry, fowl or domestic animals for personal use or pleasure and being incidental to residential use.” It is clear that the appellants have been conducting an Agricultural Use on their residential property as it is noted in the undated letter attached with this appeal application; “…we raised the chicks after they hatched. Through the years we have restocked our flock and have updated the houses and pens as necessary.” Currently, the property is located within a RR-5A zoning district. Per the table of allowed uses in Residential Zones, an Agricultural Use is listed as allowable subject to Site Plan Review. Per § 179-5-040 Agricultural Uses, paragraph B. allows for the keeping of poultry, fowl or small farm animals provided the property is a minimum of 5 acres in size. Fact: In 1996 the establishment of an Agricultural Use in the RR-5A zone required Site Plan Review by the Town Planning Board. Fact: In 2010 the establishment of an Agricultural Use in the RR-5A zone requires a minimum of 5 acres of land and Site Plan Review by the Town Planning Board. Fact: No approvals for any type of Agricultural Use have ever been issued to the appellant for the subject property. It is the position of the Zoning Administrator that the appellant’s Agricultural Use on this property requires Site Plan Review as well as an Area Variance due to lot size.” MR. UNDERWOOD-Okay. If you guys could fill us in. I know in your letter you said that you’ve lived there since 1995 and you’ve had chickens pretty continuously from there. I know in the neighborhood, like when you drive over the hill from Lake George, I mean, I see sheep, goats, all kinds of critters. They’re not in the Town of Queensbury. I did take the time, last weekend I drove over in the Town of Moreau, and there’s people with chickens in the Town of Moreau with signs eggs for sale out on the road and things like that, and I would just make the comment, you know, I think that when we re-did the Code, even in the old Code, it’s sort of done with a very broad brush, and I think it sort of lumps everything into one category, as far as creatures on farms and in rural areas, and I think that over the years, as we’ve sort of gentrified the Town of Queensbury, that was probably the thought of why they did that, because they didn’t want to have issues with people with farm animals and one guys having pigs and a mansion next door, or whatever it happens to be, but maybe you guys could fill us in as to what’s gone on over the years at your place. MRS. BRUNO-Well, thanks for your insight, Jim. First what I’d like to do is I do have some information. Are you accepting that this evening? MR. UNDERWOOD-Is it just general information? MRS. BRUNO-Two visuals and two letters from our neighbors, and probably some of it is redundant from what you have in your packet. MR. UNDERWOOD-Yes, that’s fine. I think probably everybody’s had an opportunity to drive up and see what was there, where it was. MRS. BRUNO-I just noticed this evening that my letter to Craig I never dated. So I appreciate th that Craig had put in the Staff Notes when it was turned in. It was March 18, and I think my th deadline was the 19. That day when I went in with the letter, and I think that is, is that in the Staff Notes? No, but you’ve quoted most of it. Bruce Frank gave me a copy of the old Code, which I honestly was not familiar with. My time on the Planning Board, we hadn’t really ever looked back on it. It was something that when I first moved into the house, neither David nor I knew of the codes, which is why David called the Planning Office, spoke over the phone to someone that worked there, and was assured that it was an area that was small farm and could have hobby and chickens. Again, I never knew that was in black and white until we got into this situation, but we have had the chickens, just like is stated. We had a daycare provider that wanted to hatch some eggs with the kids, and didn’t know, once she hatched them, who would take them, and we had just moved into the house a little while before, and said we’ll do it, you know, that sounds great. We maple sugar up there. I have my own, we have our own vegetable gardens. We try to live as what’s popularly known now as green, which we believe in very th much. Through the years, we, actually in 6 grade the kids had their teachers do the same thing. David had a Finch Pruyn that gave us some of his chicks when we needed to restock them. He has a farm over in Fort Ann. We’ve purchased them a couple of times through Murray McMurray Hatchery. The mailmen love that because they actually come as little chicks in boxes with a hole. They are two days old. Once a chicken is hatched, it can live for two days without any food or water. It lives off of what it had in it. So, anyway, to make a long story short, we 3 (Queensbury ZBA Meeting 05/26/2010) have done that a few times. So over the past 14 years, we have had them consistently, both by hatching and ordering and being given them. What we do with the eggs, personal use. We give them to friends, and actually recently David just told me, because he’s been taking dozens down to his office. There’s a gentleman down there that takes him to his church. They use them in their food pantry, which you can’t really do at the soup kitchens because they’re not like prepackaged, all that. So we really feel that they’ve been going to good use, and they do fit in up there. If you go around to other equivalent areas, there are chickens or small animals. One thing that I did notice in the old Code is it doesn’t talk about five acres. The small hobby farm, Class D, is actually any parcel of land less than five acres. So even given the fact that perhaps we should have been in front of the Planning Board, which I still say that was kind of Queensbury’s mistake, and therefore their responsibility, it at least should be grandfathered for that Code that less than five acres is fine. So I put it to you that we’ve been there for that long. Let me just walk you through this real quickly. That pie shaped piece of property is ours. We also have a contiguous piece of property, the larger one on the corner of Buckbee and Gurney, making almost 10 acres. The reason why we did that is because when they subdivided up Buckbee Road, we didn’t want the clear cutting, the messy cutting, I should say, that went on. So we purchased that land to protect and, to keep, you know, the largest pieces of properties, Dr. Miller and his wife up the street did the same thing. They purchased some as well, just to keep that rural character going. The next map, Site Plan, is a little bit of an update from when the built the barn, just kind of showing where the chickens are, which apparently you’ve all seen, but it shows, you know, the amount of land behind it. I think one of the discussions we had had about the barn was going back further, is really inappropriate because of the trees that we’re trying to maintain, and it wouldn’t make sense to put chickens out in the woods, anyway. It’s just not safe. We do have fox and bear, yes, bear. People up the road have had. The next is a letter from Dr. Miller and his wife. They offered this. We never got a chance to ask things from people, but we were getting comments from anybody that, I should rephrase that. We didn’t specifically ask anybody, because we tend to not like to ask things of people and put them on the spot. So some people came forward, gave us a verbal, that’s great, you know, we’re behind you, and then the Millers who are immediately west or up the road of us, this is their letter, and then the Meehan’s, who are the closest, actually wrote this letter for the newspaper and it wasn’t published. She said go ahead and give it out tonight, but, yes, they come over and we give them the cracked corn, and the kids feed them and everything. MR. UNDERWOOD-Are they down the hill from you, the big house? MRS. BRUNO-Yes. Set back, and actually, right, it’s quite close. In the winter when there aren’t any branches, you can see the lights going kind of down the hollow and off sets their house, and then the last page actually is a condensed version of, I went in front of the Town Board meeting, because I was upset because I had gone back and forth between the Planning Board and the Supervisor in terms of trying to find out who had put this in, because not to go after a neighbor, but to find out the validity, you know, you always want to kind of be able to defend yourself in front of somebody that’s accusing you. Quite frankly actually when people have come around, there’s only one neighbor that I haven’t heard from. Everybody else, you know, has supported us, but to go back to what I was saying, I went in front of the Town Board, just telling them what had happened and that I was going to take care of it properly, you know, that would be rather hypocritical of us if I didn’t do that, but what is not listed in here, and it was in the newspaper, is that Mr. Strough had said that as long as he knew, the chickens had been there, too, and I actually just ran into him at the grocery store this evening, and he said he’s talking to some boy scouts this evening at seven. He wanted to make it, but with Sicard’s tabling, he’s probably going to be late. So, bottom line, we’ve been there. It was five acres or less, back when we first asked about it. It was okayed back then, although we don’t have it in writing. We do know who we spoke to, and we didn’t feel it was worth somebody’s job to put that out there. That’s that. MR. UNDERWOOD-Craig, in all the years that they’ve had the chickens up there, did we have complaints? We never had any complaints come in? MR. BROWN-Not before this. MR. UNDERWOOD-Because, I mean, I’ll just speak for myself. I mean, I moved here in about 1990 and rode that road on a regular basis on my bike, up over the hill to Lake George, and I recall seeing the chickens back there, you know, for many years, and I also asked other people who live up there that bike ride all the time, do you remember the chickens being there, and a lot of people said, yes, they had. So, do you guys have any questions you want to ask? MR. CLEMENTS-Yes, I have one. MR. UNDERWOOD-Sure. 4 (Queensbury ZBA Meeting 05/26/2010) MR. CLEMENTS-On your second sheet here, there’s an existing barn. That’s existing now. Did you build that barn, or was it existing when you bought the property? MRS. BRUNO-We built it now, yes, it’s actually under construction, still. MR. CLEMENTS-It’s under construction now. MRS. BRUNO-Yes. MR. CLEMENTS-Okay, and you have a building permit for that? MRS. BRUNO-Yes, right there stuck to the side of the barn, yes. MR. CLEMENTS-Okay. So it’s in the process of being built right now. MRS. BRUNO-Right, and they’re, in the newspaper article, Mr. Stec had mentioned something about that it was unfinished and he knew of that last Fall. I double checked with Dave Hatin, although I already knew the answer, this is my profession, that it was still legal. We still had an open building permit. So really there’s very little to be done, but, yes, it’s existing. I had mentioned a little while ago that we had come in front of the Zoning Board, just in terms of some of the setbacks. MR. CLEMENTS-So you went to the Building Department, applied for a permit to build a barn, and you were given that building permit? MRS. BRUNO-Yes, as well as, well, after I sat in front of the ZBA and got the appropriate approval. So it’s there, yes. MR. CLEMENTS-Okay. Thank you. MRS. BRUNO-You’re welcome. MR. UNDERWOOD-I think Roy and I were on the Board at that time. I remember the application. Didn’t you have a fire or something. The old one burned down? MRS. BRUNO-We did, right, because of my maple syruping efforts. I was, yes, the wind kicked up and burnt it down. I remember Roy asked me how come I put so many windows in there, in the barn, and I said because that’s what I do. I’m a designer. I wanted it to look good. I remember that question. MRS. JENKIN-I bike there all the time, and when I was biking the other day to go and look at your property on the other side, there were these black chickens. I don’t know what they are, some sort of (lost word), and they were right on the road and they weren’t even fenced in. So when I came it was good to see that yours were fenced. MRS. BRUNO-Yes, they’re free range, which is a little risky up there because of the fox and everything. I’m surprised that theirs have lasted. MRS. JENKIN-Yes, absolutely. They have little chicks there, and the mother and father were taking care of them, but still, they could have easily gone on the road, and the fact that it is Rural Residential there, and the fact that people are keeping chickens and everything is not the issue here, and the proper keeping of them and keeping them safe and everything is a good thing. We want it to be rural, but the whole problem is in your letter, you state in here that there’s not an approved Site Plan on your file because it was not required in the Code 13 years ago, but you state as an unapproved agricultural use under current zoning is not applicable because the use is grandfathered. MRS. BRUNO-Right. MRS. JENKIN-So it was absolutely necessary that we look back at the old Zoning Code, and Craig provided that. I went into the office, but Craig had already provided the ’88, which, the 1988 Zoning Code, which was applicable for yours in ’95. MRS. BRUNO-Right. That was how I opened this evening, and I turned this in, thinking that it was just, the phone call had told us what we needed to know back then, and it wasn’t until I brought this in, spoke with Craig, and then Bruce Frank gave me the copy of the old Code, that I then did see that the Site Plan was required. 5 (Queensbury ZBA Meeting 05/26/2010) MRS. JENKIN-Yes, and it is, and it’s stated very clearly that there is a Site Plan required under Type II, agricultural use and all farms, all classes, and then if you look at 179-63, the agricultural uses, it says that that, when you have a Class D Hobby, you said that any parcel less than five acres used for the raising of agricultural products or keeping large or small animal, etc., etc., that means that there is a Site Plan Review required for that as well. MRS. BRUNO-I understand that. MRS. JENKIN-You didn’t know about it, obviously, and it’s gone by the by, many, many times and over the years and everything, but it was in effect at that time when you did it, and somebody gave you the wrong, probably the wrong information, if you did phone. MRS. BRUNO-We did phone, and we were given that information, which is part of why, you know, we’re questioning the Planning Board’s, or excuse me, the Planning Office’s letter to us, in terms of being, you know, because I understand this evening is just regarding Craig’s letter. MRS. JENKIN-But the thing is, he’s required to uphold the Code, as we are as well. We’re required to follow the Code. MRS. BRUNO-I’m aware of that. MRS. JENKIN-And it says under 179-5-040, under Agricultural Uses, within any district other than those cited in Subsection A, which is all the other, poultry, fowl, or small animals may be kept, however, providing the property is a minimum of five acres. So it states clearly in that Code, that’s the old Code. This is 2009, actually, but, yes, it is, and that the animals must be housed at least 50 feet from any property line. MRS. BRUNO-Right. So that’s the, not the old, old Code, but the old Code before the current one. Right. MRS. JENKIN-Yes, but the old Code in ’88 does specifically say that you do need a Site Plan Review, and probably everybody else out there needs it, too, which is too bad, if they have less than five acres, which is, we might have opened a Pandora’s Box here. MRS. BRUNO-I think you have, quite frankly. Yes. MRS. JENKIN-Yes. MR. UNDERWOOD-Anybody else have questions? MR. KOSKINAS-I have three. MR. UNDERWOOD-Sure. MRS. BRUNO-Okay. Good. MR. KOSKINAS-Mrs. Bruno, I like your approach to this. Do you have any roosters? MRS. BRUNO-We are down one rooster, and we have one other one who is going to be dinner, Memorial Day barbecue. When you have chickens that are penned, and you have a rooster, they can get after the hens, and if you were close enough you could see that, where they start pulling their feathers out, and we just don’t like that. MR. KOSKINAS-So typically you don’t have them. MRS. BRUNO-Well, in the past we haven’t. What happens is, is some varieties are what they call straight run, and even sometimes when you get chicks as two days old, they’ve been incorrectly sexed. So once you raise them, then you can see that they’re roosters, but you can end up with mistakes, inadvertently. We’ve never asked for any, but we have had them. We’re not raising them to raise more chickens. It’s just for the eggs. We just, and that’s just how it goes. MR. KOSKINAS-Are they loud? MRS. BRUNO-They’re roosters, but the only people that hear them are the ones next door that actually Kate was just telling me the other day that her daughter, when she doesn’t hear the rooster when she’s outside, she’ll crow back across, you know. MR. KOSKINAS-You do no commercial sales, as I understand. You don’t sell anything? 6 (Queensbury ZBA Meeting 05/26/2010) MRS. BRUNO-No. MR. KOSKINAS-Do you ever use those chickens as a chicken tractor for your garden? You said you did gardening. MRS. BRUNO-A chicken tractor? MR. KOSKINAS-Yes, do you use them in your garden, or they just stay in that pen? MRS. BRUNO-They stay in the pen, yes, no, I wouldn’t put them in there. MR. KOSKINAS-Thanks. MR. UNDERWOOD-Do you guys have any questions? MR. URRICO-We’re just dealing with the Appeal here, right? MR. UNDERWOOD-Yes, but I mean, we can generally talk about it, just because I don’t think it’s come up before, so it’s probably, if we’re going to have to eventually deal with it. I’ll just speak, because like I grew up on the outskirts of town, and there was a chicken farm right by us, and when we were kids, we were always around chickens. We used to go over and help them catch the ones that weren’t laying anymore and we got to go chop their heads off and run them through the de-feathering machine and the whole nine yards, but you don’t have to have a rooster to have laying chickens, all right. MRS. BRUNO-Yes, absolutely not. MR. UNDERWOOD-Chickens will lay. It is a scientific process. You’ve got to have lights. You’ve got to maintain the situation. Otherwise they stop, but I don’t know if any of you saw, like in that thing that comes in the Post Star, but there was just an article about chickens in there, and it sort of brings up the point because we’re probably going to have to deal with this as we go forward. I assume you know of other chickens in Town besides here. Because I know of at least two more places that have chickens in Town. MR. BROWN-No other complaints have been lodged with our office. MR. UNDERWOOD-But I haven’t heard any complaints about them either, but in essence, I think what we’re seeing at the national level is a lot of people are going organic, going back to the land. They want to have their own chickens, and chickens really are pretty harmless in the grand sense of it, unless you get roosters, and they can be bad news, but that’s why they don’t usually last long and people eat them. MRS. JENKIN-I’m going to buy a goat so that he eats all my weeds. MR. UNDERWOOD-Yes, that would work, too, but anyway, as far as chickens go, they are allowing them in metropolitan areas now. Brooklyn allows chickens. Many of the rural cities down in the south allow chickens, but they don’t allow roosters, you know, and I did look at some of the ordinances to see what they do, and the reason for that obviously is some people don’t want to hear the cock-a-doodle-doo at five a.m., but, you know, for some people that live out in the rural areas, it’s kind of cool to hear it. It’s like going back to the old days or something, but at any rate, again, as Roy mentioned, we’re only here to figure out what we’re going to do here in this instance here, but I think, you know, we have to keep it all in perspective. The Town Code says right now you’re supposed to have Site Plan Review for chickens, and I think we all realize that the chickens have been there for a long period of time. Regardless of that, we’ve got to make a determination, do they have to go to Site Plan Review. Craig, are you going to make a determination if they’ve got to come in and get a variance from us to keep their chickens, too? MR. BROWN-I already have. Yes. MR. UNDERWOOD-Yes, you’ve essentially said that, so is that something we can proceed with now, or do we have to do that? MR. BROWN-With the variance? No. MR. UNDERWOOD-We have to advertise it. MR. BROWN-Yes, they have to have a variance application. Yes. 7 (Queensbury ZBA Meeting 05/26/2010) MR. UNDERWOOD-Sure. All I would say is this, if we went back 25 years ago, 50 years ago in Town, probably just about everybody in Town had chickens, you know, and through the years, people have grown to think that eggs come from the supermarket, but I know places in Town that have chickens also, and in fact, I get eggs, when I go certain places, from people that I know they have chickens in Town, and, you know, if you properly care for your chickens, I don’t think it’s that big of a deal, and I think that, in making the jump that we did here to suburbia from rural residential, you know, in the 1930’s I think Queensbury had a population of 130. I’ve got a 1939 atlas which is pretty interesting. You guys live up on Chestnut Ridge, and of course you see the old barns and farms and everything else, and as far as I know, we don’t have any real active farms in the Town of Queensbury, other than we have agricultural uses. We do have some corn planting that gets done here and there, stuff like that, but occasionally, but I would think that for us to be sensible, we might want to sit down, and even though we do the Code, and the Code paints with a broad brush, you’ve sort of got to dial in these things. Chickens aren’t the same as if somebody said I wanted to have pigs up there. That might set off some real alarms. MRS. BRUNO-You don’t know my son, then. MR. UNDERWOOD-It’s a different story, but, you know, I know people in town that raise pigs. They don’t have them in Queensbury, but they have them up in Chestertown, and, you know, everything works if you do it properly, but if you’re not going to do it properly, it doesn’t work, and I know people that have had goats in Town and don’t have them anymore because they didn’t work out either. Even though they thought they were going to be a great thing, they were sorry afterwards. So maybe what we should do is open up the public hearing at this point, see if anybody from the public wishes to speak on the matter. PUBLIC HEARING OPENED MR. UNDERWOOD-Do we have any other correspondence? MRS. BRUNO-Should we have these letters read into the? MR. UNDERWOOD-Yes, I’ll read the letters in. That’s fine, the ones you just gave us. MR. URRICO-The first one is “Dear Members of the Board: We own and reside on property adjacent to Tanya and David Bruno. We have no objection to their proposal to continue to maintain poultry on their property. We hope this information will be considered in making a determination regarding this appeal. Sincerely, Nelson and Joann Miller” There’s one, I guess it was addressed to the Editor, but now we’re using it here? MRS. BRUNO-Yes. I was trying to streamline things and she said she’d write us a letter. I said, you know what, she has two little ones. So. MR. URRICO-Okay. This is, “We thoroughly agree with Will Doolittle’s “Let the Chickens Back In”. The homes on Gurney Lane are all three plus acres of land and mostly former farmland. That being said, we are the closest neighbors to the Brunos. If anyone had a legitimate complaint about the chickens, it would be us. However, we love the chickens and have no complaints. Whoever filed the formal complaint about the Bruno’s chickens must have been doing so out of jealousy or spite. So many people these days are looking at others instead of looking within. The Brunos are the kindest neighbors one could ever wish for. We visit the chickens, and the Brunos on a regular basis. Our children love to feed the chickens and just watch them. You would be amazed at how long we just stay there watching them. If there is a zoning issue regarding chickens, I think it should be seriously looked at and changed to allow the chickens to stay. Kate, Dan, Maggie, Molly and Elwood Meehan” MR. UNDERWOOD-Okay. I think what I’ll do, then, at this time, is close the public hearing. You wish to speak? Certainly, come up. JOHN SALVADOR MR. SALVADOR-Thank you, Mr. Underwood. My name is John Salvador. I’m a resident in North Queensbury. I’ve taken a look at this application, and I have a few comments. I notice here that the Zoning Administrator has brought up the issue of standing. The term standing has no definition in our Code. The criteria for standing is not spelled out in our Code. Our Code does say, however, that such Appeal may be taken from any person aggrieved, or by an officer, department, board or bureau of the Town, any person aggrieved. Now if these folks are not aggrieved, who is? Somebody’s got to be aggrieved to get this ball rolling. I’m shocked that it comes into question that these folks are aggrieved by his determination. He says here, the appellant may be an aggrieved party. To me it’s a slam dunk that they’re aggrieved. Also the 8 (Queensbury ZBA Meeting 05/26/2010) Zoning Administrator, and you’ve talked about it already, has determined that an Area Variance is going to be required before Site Plan is reviewed. It seems to me that the violation is conducting whatever they’re conducting on a substandard lot. That’s the violation, and that should be cleared first, before Site Plan. What if they can’t get the Area Variance? What if they can’t get the variance? Then there’s no Site Plan required. I think we’ve got the chicken and the egg mixed up. We’ve got one before the other. The first issue is the site, the substandard lot. Now, this goes on all over. I can’t tell you how many substandard lots we’ve got in our neighborhood. We’ve got two acre zoning. How many lots up there in North Queensbury do you think are two acres on the waterfront? None of them are, how many times have people complained about that? They get no relief. So I think the order of business is first the issue of the substandard lot. Is that going to be allowed? And how many others are there in their zoning district? The other point I’d like to make is I really don’t think these folks are an agricultural use activity. Now our Code reads, our present Code reads, any management of any land for agriculture, the raising and keeping of cows, horses, pigs, poultry and other livestock, truck gardens, horticulture, silviculture or orchards, including, including the sale of products grown or raised directly on such land, and these folks are not involved in that. You heard them testify. They’re not involved in the sale of anything. How can they be in an agricultural use? Agriculture is defined as the art or science of cultivating the ground, the production of crops and livestock on a farm, that is farming, is the business of cultivating land. They don’t have a farm. Agriculture involves farming. So I don’t believe that they’re in an agricultural use activity. MR. KOSKINAS-Sir, where are you reading from? MR. SALVADOR-I’m reading from Town Code. MR. KOSKINAS-What reference, please. MR. SALVADOR-The Definitions section, Agricultural Use, and that’s the same definition, the wording, as in the previous Code, where we had these other activities like, I forget what the term was, but, you know, we’ve changed our Code and all, and it’s very confusing how these things are written. Haven’t’ given much thought to the unintended consequences. The business that these folks are in, it’s not farming. It’s just like having a vegetable garden. You can have a vegetable garden. How about people who make wine, their own wine. As long as they don’t sell it, they’re not a winery. It’s for their own personal consumption, and these folks are in the same situation. It’s their own personal consumption. People who have fruit trees in their back yard, harvest the fruit for their own use. Is that allowed in a residential zone? Is that farming? Orchards. It says orchards. How many trees do you need to have an orchard? So, I really believe that use of the term agricultural use is a misnomer. It just does not apply to their situation, and that’s of paramount importance here. MR. UNDERWOOD-You’ve used your five minutes. So I don’t know if you want to wait and come back and let other people speak, if you have anything else you want to add. MR. SALVADOR-Okay. I’ll reserve. MR. UNDERWOOD-Thank you. Okay. I think what I’ll do is poll the Board, but beforehand, this was a flier that was in the Post Star this Spring, right around Easter. Chick days is here, over at Tractor Supply. So I went down and asked them. I said have you guys been selling chicks for years down here, and they said, yes, all our stores sell chickens at Easter time, and you can buy all the goodies you need, including the pens and the whole nine yards there. So, I mean. MRS. BRUNO-That’s where we’ve gotten our food, as well as at Agway, over the years. MR. UNDERWOOD-But I think what we’ll do is, anymore questions you guys have at this time of the applicants? Brian? MR. CLEMENTS-I’ve got a question for Craig. MR. UNDERWOOD-Sure. MR. CLEMENTS-Craig, is it my understanding that you just respond to complaints about these kinds of things? I mean, because there are other places in Town that have chickens, and so I’m wondering if you just respond to the complaints, or if you knew of other ones, would you also respond to those? MR. BROWN-Yes, I guess if I knew of other ones sure. I mean, we’re, we do that. We don’t go out looking for situations. If it’s brought to our attention, we address it. MR. CLEMENTS-Okay, and this one was brought to your attention. 9 (Queensbury ZBA Meeting 05/26/2010) MR. BROWN-That’s correct. MR. CLEMENTS-Okay. MRS. BRUNO-Well, actually, that had been one of my questions when I was on the Planning Board, because we all, on the Board, had seen things going on at places that we had either just voted on or close by or just within Town that had a similar situation, and we were wondering why the Town hadn’t enforced those as well. I’m not sure that I ever really, the answer was kind of the same. MR. UNDERWOOD-Okay. I think what I’ll do then is close the public hearing. Would you like the three more? MR. SALVADOR-Yes. MR. UNDERWOOD-Thank you. MR. SALVADOR-Mr. Brown has testified that this issue was brought to their attention and that’s why it was investigated, and yet we don’t know who brought it to his attention. Then it must be considered hearsay. There’s no evidence to show what was brought to his attention by whom, and these folks should have an opportunity to face their accuser. Everyone should. If you’re accused of a wrongdoing, you have an opportunity to face and cross examine your accuser. That’s fundamental law. So, I feel that this, what happens, what do we do? We pit neighbor against neighbor, is that what it is? Why do we have a zoning officer if we don’t go out looking for problems, and yet we have a problem here because an anonymous complaint was filed. Now, something’s wrong. Something’s wrong. This is called selective enforcement, and that’s a violation. Thank you. MR. UNDERWOOD-Do you guys want to make any commentary? You had one more question you said? MRS. BRUNO-Yes. I’m just kind of wondering, and perhaps this question is more for Craig, in terms of the definition of pets. Why do dogs and that type of thing not fall underneath a hobby farm, if it’s hobby, pets, it’s all kind of. MR. BROWN-Yes, I guess without going too deeply into the Ag and Markets laws, I think there’s a differentiation between farm animals, traditional farm animals, and domesticated pets. I think your cats and dogs are domestic pets. Chickens and ducks and roosters and pigs and goats and cows and horses are farm animals. One’s a classification of pets and one’s a classification of farm animals. MRS. BRUNO-I’d like to, two thing, put it out there that, quite frankly, my dogs are messier than the chickens. The chickens would, right now, have a brand new house that matched the barn, too, with more windows because it is better for light, but one of the first chickens that we had, actually it was from the daycare. One of the kids had unplugged the, tripped over it or whatever. So we one chicken that had a reversed leg, a reversed foot, and for whatever reason, this chicken imprinted on my daughter, and if she’d get out, they’d be going around the yard, you know, she was a little girl, so as far as I’m concerned, that’s a pet. I’m just going to put that out there, and they are named, which makes it hard to take their heads off, referring to the rooster. MR. UNDERWOOD-Okay. I guess I’ll close the public hearing, then. PUBLIC HEARING CLOSED MR. UNDERWOOD-And poll the Board members. I’ll start with you, Joan. MRS. JENKIN-Okay. I have a couple of comments about some of the things that were said. The first thing, I feel quite strongly that if I see something in Town that is not according to what I know as far as the laws of the Town are, I would want to feel comfortable about bringing a complaint to anyone, and it is definitely the Zoning Administrator’s responsibility to follow up on any complaints he receives, and in fact that’s happened to me before. So, I feel that that’s a responsibility that he has undertaken, and he’s followed through with, and that’s to his credit. The other thing is, it’s quite clear, as a hobby farm, that any, that they name any kind of agricultural products or keeping of large or small mammals, poultry, fowl, or domestic animals for personal use or pleasure, and being incidental to residential use. It’s quite clear that we know that poultry are farm animals, they always have been. People keep them for pets. They keep all kinds of goats and sheep and everybody else for pets, but they’re still farm animals. So that is clearly under the Class D classification for agricultural use. I feel the Appeal is valid, the 10 (Queensbury ZBA Meeting 05/26/2010) Appeal, the Zoning Administrator’s, his decision is valid because he’s following the Code. So I would uphold his appeal. MR. UNDERWOOD-Okay. Joyce? MRS. HUNT-Thank you. I’d have to agree with Mrs. Jenkin. Once the Zoning Administrator knew there’d been a violation, he had to really follow through, and the rules were there, whether you knew them or not. I mean, ignorance of the law is no excuse, and so I would agree with the Zoning Administrator. MR. UNDERWOOD-Roy? MR. URRICO-Personal feelings aside, try to be objective about this. Yes, we are sort of pitting neighbor against neighbor in these instances, and that is something that the Zoning Administrator needs help with. I mean, obviously they can’t be the eyes and ears of the Town from their position. So sometimes it does require us to be vigilant. However, I do think, in this instance, that there seems to be a gray area that might have been crossed. That being said, I think the Zoning Administrator reacted properly on this. His decision was correct, given the circumstances, given the current Zoning Code that we’re following. So I would support the Zoning Administrator’s decision. MR. UNDERWOOD-Okay. Brian? MR. CLEMENTS-I think that I’m going to have to agree with Roy. I would like to say this, though, I agree with the Zoning Administrator. It does look like, it has the look that this is a selective kind of thing. Maybe it is, Maybe it isn’t. I don’t know, but in regard to that, what I’m going to expect is that if there are other chickens on other places, that they should also be, that should be pursued also by the Zoning Administrator. So, I would. MR. UNDERWOOD-I don’t think you can do it, though, if someone hasn’t complained. I would say, unless there’s an edict from the Town Board that chickens are verboten. MR. CLEMENTS-Well, I don’t know about that. Craig just said if he’s aware of something, it doesn’t have to have a complaint. So I’m saying that, if in this case I’m going to side with the Zoning Administrator, then I think that everyone else should be under the same conditions. MR. UNDERWOOD-I think one of the problems we might run into is this, though. I mean, if we were to go around Town and start making up lists of all the zoning violations that we saw driving around Town, Craig would be working 24/7 for the next century to deal with all the issues. MR. CLEMENTS-Well, you’re right. I have some in my neighborhood, too, that I haven’t brought up. MR. UNDERWOOD-Sure, but I think that we need to be clear that if something is a real nuisance, I mean, we’ve got to dial in what is and what isn’t, and I think in this instance here, I mean, everybody, I’m not going to speak because John and I haven’t spoken yet, but I will say this, I would agree that he reacted properly to what was done here, but again, if it’s going to be just by somebody simply making an anonymous phone call in and then he has to follow up on it, I think once a complaint is made, yes, he does have to follow up on it, but if the Town really has a problem with chickens. MR. CLEMENTS-I can agree with that, but I don’t know if there’s a complaint that’s been made. MR. UNDERWOOD-Right, we don’t know. MR. CLEMENTS-I mean, I think we have something, a FOIL request here that says that there was no verbal or written inquiries into the Bruno family agricultural. MR. URRICO-But to be fair about it, do we know how most variances get to us? I mean, we don’t know the history of all the variances that cross our desk here. We know they get here. We don’t know the channels they followed and at what point the application was made. Was it made to let somebody know that they were committing a, were against the Code or not? So what I’m saying is we don’t have that knowledge all the time. We need to be dealing with the facts. MR. BRUNO-Can I ask a question? What you’re doing is putting unlimited power into this gentleman’s hands. He can decide to bring an issue up. You’re saying that no issues have background? MRS. JENKIN-But that’s not true because he did not initiate this. 11 (Queensbury ZBA Meeting 05/26/2010) MR. BRUNO-Right, but that’s what I’m asking. MR. URRICO-That’s not what I’m saying. What I’m saying is that we don’t know the history of every case that’s brought before us. This one has gotten some press. So we know some more about it than we normally do. MRS. BRUNO-So what you’re saying is, not all applicants will point out that they have no knowledge of who tattled on them. MR. URRICO-I think sometimes some variances are a result of somebody making a phone call, but we don’t know that. MR. CLEMENTS-Well, I might also say this. They’ve also had a valid permit up there for a barn. I mean, if anybody went up there to look, you can see that there’s chickens up there. I mean, you know, so it was a known fact before a complaint was, a so called complaint was made, and, that being said, I’ll stop. All I want to say is that I have to agree with the Administrator because it is that it is the law. However, I wanted my feelings to be known also. So, with that. MR. UNDERWOOD-Okay. John? MR. KOSKINAS-Historical or not, nonconforming’s nonconforming, and I don’t think anyone’s ever going to argue that. Mr. Brown’s job is conformance with the Code. I stand with him in his efforts to do that. How people bring grievances or complaints or responsible citizenship or poor neighboring to this Board, I think is probably beyond anything I’m interested in knowing. I’m new here. There are enough issues. So going and looking for them, I think, is beyond the purview of this group. However, you’re not without recourse, and that doesn’t mean anyone’s coming with a truck to take your chickens. So, there are avenues to get relief from zoning, and I’ve been before this Board. I’ve sat in your seat, felt it was fair. MRS. BRUNO-Well, I can sense where this is going. I’m not surprised. I know the Code. I didn’t know the old one, but I know the current Code, and I would be, like I said before, hypocritical if I didn’t understand your job. I will say that we will be coming in front of you again, and you’ll probably hear about 90% of the same information. That’ll save you on a little bit of your homework time. MR. BRUNO-Can I ask another question? MR. UNDERWOOD-Sure. MR. BRUNO-Craig, what’s a horse? Is a horse a pet? MR. BROWN-Are you guys looking for an answer for that? MR. UNDERWOOD-He asked the question. Go ahead. MR. BROWN-I don’t think so. MR. BRUNO-No? Funny. Under Webster’s Dictionary dog, cat, fish or horse is a pet. Just food for though. MR. KOSKINAS-The name of my granddaughter is also pet. MR. BRUNO-Absolutely. MR. UNDERWOOD-Okay. I will summarize. I would have to agree with the rest of the Board members, but I think in this instance here, I’m a little bit peeved by the way that we got to this one, and I think you do have standing going forward with this Board. My recommendation would be this. We’re going to agree with you, but the next thing I think procedurally is that they should have to come back before us to get a variance before this goes for a Site Plan Review. MR. BROWN-That’s my position. MR. UNDERWOOD-If we didn’t do that, I mean, it would be up to us whether we grant the variance at that time. Because we do have to advertise it, we can’t deal with it this evening. MRS. BRUNO-Right. 12 (Queensbury ZBA Meeting 05/26/2010) MR. UNDERWOOD-Otherwise we probably would, but I think properly we’ll let the chickens be until such time as they appeal the lack of land there. I mean, as I read it, what they’ll be coming in for is relief for the, I think they meet the property line relief. They don’t meet the relief for the size of the property that’s necessary for harboring these animals, I assume. MR. BROWN-Yes, I mean, I haven’t seen a plan to know where the chickens are dimensionally on the property. So if they can meet the 50 feet from the line, you’re correct, they don’t need relief from that, but it would just be lot size. MR. UNDERWOOD-Sure. Yes, and I think as far as future submittals for us, anyway, we can keep the information that we have, or if that can be rolled over. MR. BROWN-You can keep it as supplemental information. They’re going to be required to submit a whole variance application package. MR. UNDERWOOD-I’m going to waive having to do any kind of a full survey of your property as far as that goes, because I think everybody understands where the chickens presently are located, as long as we get some relative measurements from the road and the property line. MR. BROWN-Well, we need to ensure that dimensional 50 foot requirement, and short of a survey, it’s tough to do that sometimes. MR. UNDERWOOD-Sure, yes. MRS. BRUNO-Well, that drawing that you have was generated from a survey. We have a current survey that we did do from the barn, and actually, you know, like I said, I brought it straight from CAD in. So it’s exact. MR. UNDERWOOD-If you have a copy of that survey, then, I think one of those would be sufficient, and as long as we get the measurements off the barn, we can probably figure the measurements off the property line. MRS. BRUNO-Part of what I’m going to ask for, in terms of that variance, is because, going back to the grandfathered issue again, is that in the old, old Code, it did say five acres or less, and I think that stands. I think that’s reasonable. MR. UNDERWOOD-Okay. Does somebody want to take this one, then? MRS. JENKIN-Sure, I could do it. MOTION TO UPHOLD THE ZONING ADMINISTRATOR’S DETERMINATION REGARDING NOTICE OF APPEAL NO. 1-2010 DAVID AND TANYA BRUNO, Introduced by Joan Jenkin who moved for its adoption, seconded by Joyce Hunt: 119 Gurney Lane. The information requested. The appellant is appealing to the Zoning Board of Appeals relative to a March 2, 2010 decision made by the Zoning Administrator regarding the conduct of an Agricultural Use on the property. Staff comments. First, standing, they have to have standing. Was the appeal taken within the appropriate 60 day time frame and is the appealing party aggrieved? The appeal was signed and filed with the Town on March 18, 2010, which is within the time limit, and the appellants are the property owners. They would be considered the aggrieved party. Second, Merits of the argument. It is the appellant’s position that they began the keeping of chickens on their property in 1996. Further, the appellant asserts that no Town approvals were necessary at that time; therefore the current Agricultural Use should be considered a “grandfathered use not subject to any town requirements. The position of the Zoning Administrator was that the conduct of an Agricultural use on this property is currently and was in 1996 subject to Site Plan Review by the Town Planning Board. Further, the project requires an Area Variance as the current 2009 Zoning Ordinance requires a minimum of 5 acres of land for such a use. As noted in the March 2, 2010 determination that if the property in question is not able to meet all of the requirements for the use, relief from the Town of Queensbury Zoning Board of Appeals may be required. The Town records indicate the property to be 2.89 acres in size. In 1996, the applicable Zoning Ordinance was the 1988 version. In 1996 the property was located within a Rural Residential zone. Per § 179-15; Rural Residential Zones, subparagraph D,(3)(b) item [10]; Agricultural use and farm, all classes were listed as a Type II Site Plan Review use. Per § 179-63; Agricultural Uses, sub paragraph (4) describes a Hobby Farm to include the: keeping of large or small mammals, poultry, fowl or domestic animals for personal use or pleasure and being incidental to residential use. It is clear that the appellants have been conducting an Agricultural Use on their residential property as it is noted in the undated letter. Currently, the property is located within a Rural Residential 5A zoning district. Per the table of allowed uses in Residential Zones, an Agricultural Use is listed 13 (Queensbury ZBA Meeting 05/26/2010) as allowable subject to Site Plan Review. Per § 179-5-040 Agricultural Uses, paragraph B. allows for the keeping of poultry, fowl or small farm animals provided the property is a minimum of 5 acres in size. The Zoning Board of Appeals recommends right now that you do apply for a zoning variance for a substandard lot, and do that before the applicant has a Site Plan Review, do that first. So I vote to uphold the Zoning Administrator’s decision regarding the conduct of an Agricultural Use on the property. th Duly adopted this 26 day of May, 2010, by the following vote: MR. UNDERWOOD-I think what we might want to do is make a recommendation that they seek relief from the Zoning Board of Appeals, or that because of the substandard size lot that would accommodate the keeping of poultry. MRS. JENKIN-Right. Okay. AYES: Mrs. Hunt, Mr. Clements, Mr. Urrico, Mrs. Jenkin, Mr. Koskinas, Mr. Underwood NOES: NONE ABSENT: Mr. Garrand MR. UNDERWOOD-You’re all set. We’ll see you next time. MR. BRUNO-Thank you. th MR. UNDERWOOD-I think they’ve got to submit by, when, the 15, Craig, to get on? th MR. BROWN-The 15 is always the deadline. MRS. BRUNO-Okay. That’s what I thought it was. Thanks, guys. SIGN VARIANCE NO. 20-2010 SEQRA TYPE: UNLISTED BODY RELIEF/ALYSSA BARBER DAWKINS OWNER(S): RAYMOND HIPPELE ZONING: HC-1A LOCATION: 959 STATE ROUTE 9 – MOUNT ROYAL PLAZA APPLICANT PROPOSES ATTACHING ONE (1) 5.5 SQUARE FOOT ADDITIONAL SIGN TO EACH SIDE OFAN EXISTING 107 SQUARE FOOT NON-CONFORMING FREESTANDING PYLON SIGN. RELIEF REQUESTED FROM OVERALL FREESTANDING SIGN SIZE AND PROPERTY LINE SETBACK. CROSS REF.: SV 56-2008 WARREN COUNTY PLANNING: MAY 12, 2010 LOT SIZE: 5.13 ACRES TAX MAP NO. 296.13-1-18 SECTION: CHAPTER 130 SIGNS ALYSSA BARBER DAWKINS, PRESENT STAFF INPUT Notes from Staff, Sign Variance No. 20-2010, Body Relief/Alyssa Barber Dawkins, Meeting Date: May 26, 2010 “Project Location: 959 State Route 9 – Mount Royal Plaza Description of Proposed Project: Applicant proposes attaching one (1) 5.5 square foot additional sign to each side of an existing 107 square foot non-conforming freestanding pylon sign. Relief Required: Applicant seeks relief from the front line setback requirements as well as overall freestanding sign size. Criteria for considering an Area Variance according to Chapter 267 of Town Law: In making a determination, the board shall consider: 1. Whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of this area variance. Minor impacts to the character of the surrounding properties may be anticipated 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. With the non-conforming nature of the sign and the setback issues confronting the applicant, feasible alternatives appear to be limited. 14 (Queensbury ZBA Meeting 05/26/2010) 3. Whether the requested area variance is substantial. The request for an additional 5.5 square feet or 11 percent of the 50 square foot maximum for a free standing sign per 140-6 may be considered minor relative to the ordinance.Note: Currently the freestanding sign has 112 square feet of signage attached. 4. Whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district.Minor impacts on the physical and environmental conditions of the surrounding properties may be anticipated. 5. Whether the alleged difficulty was self created. The difficulty may be considered self created. Parcel History (construction/site plan/variance, etc.): S.V. 2-2010 I Love NY Pizza free standing sign Approved 1/20/10 S.V. 56-2008 Colortyme free standing sign Approved 12/30/08 BP 2007-284 Commercial Alteration (Colortyme) Approved 5/24/07 P 2007-322 Wall Sign (Colortyme) Approved 6/18/07 Currently 147 additional activities associated with this parcel beginning in 1993. Staff comments: The applicant has requested and received a waiver from the survey requirements for this variance application. The sign itself is an addition to the existing freestanding sign and there will not be any changes to the existing attached signage as a result of this proposal. The existing sign height appears to be in excess of 25 feet; however, this is a pre-existing condition. The existing sign is non- conforming due to height, size, and setback issues. As this is the third sign variance in less than 15 months for this particular free standing sign and an additional tenant request for relief slated for the June cycle, the Zoning Board of Appeals may wish to direct the owner of the Plaza to submit a comprehensive plan concerning the additional relief anticipated for this particular free standing sign. This particular variance is an unlisted SEQR, segmentation issues should be a concern for this board. SEQR Status: Unlisted – The Zoning Board must make a determination concerning this application. MR. UNDERWOOD-Just to refresh everybody’s memory, we had the pizza sign come in. We had the Colortyme sign come in, and as everybody knows, the Sign Code was devised so we didn’t end up with a smorgasbord of signs, you know, until kingdom come, and we ended up looking like most of the rest of the suburban world in the U.S. of A. I think when Mount Royal Plaza was put in, the general thought process was that they put all that vegetation and trees out front there trying to make it fit in with a more Adirondacky look, you know, by having vegetation instead of being stark with nothing. It doesn’t have a very large parking lot, but I think everybody would agree that, and last time when we did these ones, initially we had just the Mount Royal Plaza sign out there with nothing on it, except their name, and out of the blue came Off Track Betting, which just appeared, and we were advised by the Town that Off Track Betting was a State agency. They could put a sign up anywhere they damn well pleased. So that’s the way that one went, and we all kind of questioned whether they actually were, because I know they’re an authority. They’re not a State agency. So there’s some question as to whether there was any legitimacy to that one, but, nonetheless, Colortyme came in next, in the pecking order, and Colortyme complained that they weren’t getting any business because no one could see their signs because when everything leafs out in the Springtime and Summer, it’s basically total camouflage across the front of Mount Royal Plaza, and I think we all recognized that when we did the Colortyme sign. I think there was a lot of dissention amongst the Board members as to the size of the Colortyme sign, but when the pizza guy showed up last year, I think that was just before Christmas, wasn’t it, Craig? He was not getting any business at all there, and having taken his lease out, you know, to run a business on site there, and I think everybody was sort of sympathetic to his cause, but at the time, I mentioned the fact, I said, you know, this is going to be a cavalcade. Everybody from the mall is going to come in and ask for the exact same thing. So here it goes. We’ve got two more that are coming up next month for the same thing, and I would have to agree with Craig that we’re segmenting the process. In other words, this mall came in. They had an approved plan to do the mall. They had an approved plan for signage 15 (Queensbury ZBA Meeting 05/26/2010) within the mall, for all the individual outfits that were renting space in there, and now we’ve greatly deviated from that. So I would assume, because of it’s an Unlisted action, major alarms should be going off about now, and, you know, even though you’re in here before us and we sympathize with your not being seen, we have to keep in mind that we have the possibility of I think about 12 possible things up there, and some of those larger lessee sites in the mall there could be split up into even more. So we could have a bazillion signs out there by the time we’re through, and that’s not what the Code and signage is supposed to be in Town. Maybe you can give us a little background as to your take on it, you know, why you’re doing this, and I assume it’s the same argument that the other people made going forward. MS. DAWKINS-Correct. I’ve been in the Plaza now, it’ll be six years in this particular location, it’ll be six years this December. We have 60 employees that we employee in that particular location part time, the majority part time. We advertise in the Post Star. We advertise in the Chronicle. People, to this day, will still say, God, I had no idea you were even in this Plaza. How long have you been here, a month, two months, six months? And when we tell them almost six years, they’re like, you’re tucked in the corner. Do you have, by chance, the store front, so we can? MR. UNDERWOOD-You’re down in a notch there, aren’t you? MS. DAWKINS-Yes. So whether you’re traveling from the south or the north, it’s one thing if you’re on the end, or if you’re in the middle, but where we’re located, it definitely has been a challenge. Yes, right there. MR. UNDERWOOD-I would just make the comment, you know, we’ve been dealing with a whole bunch of deviations in signage over the last year. People are trying to re-invent themselves, because of the same reason. We had that one up in the miracle mile where it’s at a weird angle and you can’t really see it, and they changed from a monument sign in front that had everybody listed on there. The other thing that we’ve done with signage, that we’ve gone to the ones like the Mobil station signs where we had the monument signs down lower so you can actually see them when you drive by, and things like that, and as far as I’m concerned, just looking at the way things are going, that Mount Royal Plaza sign out there, you know, I don’t know what the purpose of it is, because it identifies the mall, you know, the mini mall there, but it really doesn’t give you any information as to, you know, in its initial form, as to who, what, when and where was provided by that mall. MRS. JENKIN-The other thing, too, about this sign now, when I went by the other day, it’s practically falling apart. It’s really in bad shape. It looks terrible. This one side is loose and it’s turning into a real eyesore. MR. UNDERWOOD-I don’t know what you think, you know, I think at this point I would like to discuss a little with Craig, too, you know, because he’s the Zoning Administrator, you know, we’re bound by the Code as it exists, but I don’t know your feelings, Craig. Do you like the Mobil ones, where they’re down lower where people can see them? They seem to be more, you know, realistic as far as actually seeing things. I mean, the old days the malls they used to put the signs 50, 25 feet off the ground, you know, now with smaller cars I don’t think people are as apt to look up at things as they are in your sight line as you’re driving along. MR. BROWN-Yes. I guess I can share with you what the Town Board is considering right now. They’re in the midst of a revision to the Sign Ordinance, and I guess the meat of that revision is to downsize the maximum allowable square footage of freestanding signs from, depending on the setback, right now it’s 64 feet at a 25 foot setback and 50 at 15. They’re looking to go down to 60 and 45, depending on your setback, bring the maximum height down from 25 down to 20, and also develop sign standards, depending on what zoning district you’re in, say Office zones, they’re going to look more for the monument style signs, whereas maybe in the Commercial zones they’re going to maybe allow the little taller pedestal signs, maybe help with the traffic and building and landscaping to get signs so they’re more visible. What do I think? It doesn’t really matter what I think, but I think what you’re going to get here is, keep in mind, any variance that you grant for signage on this property or any property, goes for the life of the property. So whether this business is there for 10 more years, hopefully 50 more years, but that variance goes with the next tenant in that space. That’s additional signage you’re granting for this property. Is it a good thing or a bad thing? I don’t know. That’s why you guys get paid the big bucks, but it’s definitely a lot more signage than what’s allowed. MR. UNDERWOOD-Are we, you know, my feeling is this. I think that we should, you know, as we go forward here I think that we said we drew a line in the sand the last time. We said that the next one that comes in is going to trip us going to Mr. Hippele who owns the mall up there, and he’s going to have to come in with something new proposed, but I mean, in the interim, I mean, a sign isn’t going to be changed overnight or go to some brand new thing without going through 16 (Queensbury ZBA Meeting 05/26/2010) Site Plan Review with the Planning Board, until the Town Board dials in exactly what they, in what way, shape, or form they want to see these things appear along there, and, you know, in the interim, we’ve got to remember, people are running businesses, and they’ve got to make money or they go bankrupt and they’re gone with the wind. So I think we should be reasonable in what we do here, but at the same time, we should expect something better than what we’ve created at present. If we got to total build out with this signage here, we have the possibility of six or eight more little blippy signs being added on there on each side. MR. BROWN-Well, you can see the framework that’s there is at least for three signs, Alyssa’s sign and then two more, probably the two that are in the queue. I don’t know how many tenants are in the Plaza, but there’s certainly a potential on the other leg of that sign to put more of these little squares up there. So you’ve basically got the whole thing close to 150 square feet of signage maybe by the time you’re done. When 50, maybe 60 is allowed, depending on the setback of this sign, and I’m thinking more along the 50 foot, 50 square foot. MR. UNDERWOOD-Is there any way that we can compel a property owner to have to change his sign to something more compliant, or something that the Town wishes it to be? Or, I mean? MR. BROWN-Well, I’m not sure how you can compel them to change it, directly. I think indirectly, and the applicant’s not going to like to hear this answer, but indirectly, but indirectly you’d start denying Sign Variances. That gives them the hint that if I want to get more signage up there for my tenants, I have to come up with a different attack. Whether it’s take the Mount Royal Plaza part down and replace that sign copy with tenant advertisement. That’s kind of an indirect way of saying enough’s enough. MR. UNDERWOOD-But in a way it’s a little bit punitive for the people who are trying to survive in the interim. I mean, if we get into a knockdown, drag out fight about it. MR. BROWN-Well, yes, unfortunately it becomes a landlord tenant issue. MRS. JENKIN-The other thing, when I went by there, too, Colortyme has a completely painted truck now. It’s got signage all over the truck, and he parks it right beside, in the parking place next to the road. So that’s the first thing you see when you come down from the north is you see that Colortyme truck. It’s a mobile sign, which is, to me, is, and then they have the biggest sign here, too, but that’s just a comment I’m making. MR. UNDERWOOD-Okay. Why don’t we do this. MR. URRICO-There is one other issue here, too. Because of the visibility of these businesses, or lack of visibility, they’ve taken to put lawn signs out on the grass, and they’re there as signs. They’re not temporary signs. They’re there all the time. MR. UNDERWOOD-Right. MS. DAWKINS-One thing I will say, if I can make a comment, I always, I have a temporary signs that I submit for 60, we’re allowed 60 days a year for a temporary, take it in and take it out. I always abide by the 60 day rule, but you’re right. There are. MR. BROWN-One of the few people that actually does do that. We’re chasing everybody else, but she always does it the right way. MS. DAWKINS-But you’re right. They’re like the sandwich boards or the ones that they just stick in the ground and I try to abide by that. It would be great, if. MRS. JENKIN-It is a possibility, though, that you can still use those, right? MR. BROWN-The temporary signs? Yes, you can always apply for those, yes, absolutely. MR. UNDERWOOD-All right. Here’s what I think we should do. We’ve got to open the public hearing up, let the public comment on this tonight. I don’t know if anybody’s here to do that, but my general feeling is this. Because we’re between a rock and a hard place, as we knew we were going to be when this all began, you’ve got to agree with Craig’s take on it, that, you know, we’ve gone overboard, as far as what’s going on here, but I think what we need to do is have the Town craft a letter to Mr. Hippele, requesting that he come up with a compliant sign, based upon the newly adopted Code. We can’t do that until the Town Board acts in that respect. Right? But I think that we could ask Mr. Hippele at that point to say, you know, it would be in your interest, because of your relationship with your lessees, coming and going, you know, if they don’t have the exposure, the Town is not obligated to provide excess signage, you know, and I think you realize that. Everybody else realizes that. At any point in time, we could say, no, and even 17 (Queensbury ZBA Meeting 05/26/2010) though there’s a hardship on your part by not being seen anymore because of what’s been done out there, but I think that, you know, we’re constantly in a state of flux here. We can’t snap our fingers and make it, wave a magic wand and overnight make it appear exactly the way we want it to be. MR. KOSKINAS-Can I address you with a question? MR. UNDERWOOD-Sure. MR. KOSKINAS-All these signs that appear on the slide that Mr. Brown shows there have all received variances? MR. UNDERWOOD-Yes. Except for the OTB. MR. KOSKINAS-Okay. So they are not nonconforming. They are within the law. It seems to me. MRS. JENKIN-No. They are nonconforming, but they were granted a variance. MR. BROWN-They’ve been accepted, granted a variance, that’s correct. MR. KOSKINAS-Okay. So they have a variance in existence. MR. BROWN-Yes. MR. KOSKINAS-Even though they’re nonconforming to the Code. MR. BROWN-Correct. MR. KOSKINAS-It seems to me it would be difficult to compel, or even ask, a landlord to do something about that when he already has his tenants with accepted variances. However, it seems practical for you, I’m new here, so you have to forgive me, but if we were voting, I’ll tell you I’d vote no. That appearance is what I think this Town does not want, but you’re in a very good position. I assume you did your due diligence when you moved there six years ago, and you’re abiding by the first rule of business. You’re still in business. Something’s working. I think you should go to your landlord and go to all your other neighbors and jointly tell them you need better signage, and have him come here. MS. DAWKINS-I went to Mr. Hippele, and he said he was leaving it up to the tenants. MR. UNDERWOOD-Lucky you. MR. KOSKINAS-When does your lease come due? MS. DAWKINS-A few years. MR. KOSKINAS-I’d call all my fellow tenants. Something needs to be done there and it falls to you, if you want to view it as unfair. MS. DAWKINS-I think it is unfair for the fact that everybody else has signs, and now there’s a frame with three holes up there that even looks worse, if they were filled. MR. KOSKINAS-Maybe he’d give up his Plaza sign for you. MS. DAWKINS-I doubt it. MR. KOSKINAS-You could ask. MR. UNDERWOOD-Okay. If you guys don’t have any more questions, then I think I’ll open the public hearing up. Anybody from the public wishing to speak on the matter? PUBLIC HEARING OPENED MR. UNDERWOOD-Do we have any correspondence? MR. URRICO-I didn’t notice any. No. MR. UNDERWOOD-Okay. All right. Then I’ll close the public hearing. 18 (Queensbury ZBA Meeting 05/26/2010) PUBLIC HEARING CLOSED MR. UNDERWOOD-And poll the Board. What do you guys want to do? Tell me what you think we should do. Then we’ll make a decision. How’s that? MR. CLEMENTS-I think I agree with the Chairman, that a letter should be sent to the Town Board, asking that the landlord bring in something that would be compliant, and maybe in that we could say that there are other ones that are going to be coming up in June. I would be, I mean, I’m thinking about businesses here in Town. They bring taxes to us, and I know that this is noncompliant, but, you know, the structure is there already. To put a sign on it rather than have a post there, I mean, I don’t think I like it, but I don’t think it’s fair to have some tenants that have a sign and some not. So my vote would be to approve it, and probably my vote would be to approve the other ones in June, just to let you know, to be fair to everybody, but I do think a letter should be drafted to the Town Board. MR. BROWN-Mr. Chairman, it made me think of it when you said can we compel them to change the sign. One of the things that you, as a Zoning Board, can do is you can compel people to come and sit in front of you and talk to you about their application. I mean, you can certainly table this application and require that the property owner come and talk to you about this. You can compel witnesses to come and talk to you. MR. UNDERWOOD-Sure, and here’s what I think. Everybody’s got their own take on it as to how we do it without affecting the businesses owners, but, I mean, you’ve been established for six years. You still have the use of your temporary sign out there, but I think at this point in time, we would have to say, no more signs to Mr. Hippele and until you come in with a sign that’s going to be compliant, and you’re going to give him the basis for that new sign, based upon what the Town Board decides. We’re going to have to, I think, realistically, hold any approval for a sign for you in abeyance until such time that the Town Board acts, as to what they want, and then at that point in time, if Mr. Hippele realizes he’s not going to have any of his people listed on that sign out there, going forward, he would be compelled by his tenants, I think, at that point, to, it would be in his best interest to modify the sign he has now, or change it into some new form that could include the names of all the tenants within the mall there. MR. URRICO-But if the Sign Ordinance changes, he’s not going to be compelled to change that sign until somebody else comes forward, and then, at that point then it becomes an issue. MR. BROWN-Right. MR. URRICO-You can’t force everybody in Town to change their signs until the Ordinance is changed. MR. BROWN-Well, you can, in a roundabout way, through a sunset provision, where, after a period of X number of years, 10, 15 years, everybody has to bring their sign into compliance. The problem with this particular sign and this property is, somebody talked about, they have to come in with a compliant sign. There’s no way they’re going to come in with a compliant sign, for two reasons. You’ve already granted more than, you already granted Sign Variances for signage in excess. So the best they’re going to do is come in with a different configuration with a total of let’s say 100 square feet, because you’ve already granted 100 square feet, but the way they use that 100 square feet may be a lot more beneficial to the tenants in the Plaza, whereas instead of, you know, 50 square feet of Mount Royal Plaza, you’ve got 50 square feet of Body Relief, Cup O’ Joe’s, Nail Salon, you’ve got all the tenants listed on there, but I think the best you’re going to get is what you’ve already granted relief for. MR. UNDERWOOD-Right. We know that size, but we can dial it in so it’s a level playing field for all the people that lease in the mall, and they all get the same size little piece and we don’t need the giant Mount Royal Plaza. MR. BROWN-Yes, I guess we can’t, we, you, can’t compel the landlord to do that, but you certainly probably can send the message that we’re not going to do anything other than that. Do you know what I mean? MR. UNDERWOOD-Is the Town going to have a workshop or anything when they do this? Is there going to be anything? Is it just going to be like amongst Board members? Is there going to be input? MR. BROWN-Yes. Well, we’ve had a couple of workshops on it. There’s a draft that’s going to go off to the APA for some comment, and then there’ll be the public hearing process where there’s time for everybody to view it. So, yes, it’s a downsizing, basically. 19 (Queensbury ZBA Meeting 05/26/2010) MR. CLEMENTS-Could I just ask one other thing? Craig, what’s take on the Off Track Betting sign? MR. BROWN-My take is it’s not regulated by the Town Code. MR. CLEMENTS-Okay. MR. BROWN-Like the signs at the Municipal Center and the signs at ACC and the signs at the New York State Police barracks, and those are not regulated by the Town Code. The school, State Education Department. Those signs aren’t regulated by the Town Code. MR. UNDERWOOD-How do we really get a clarification on that, whether it is or not? MR. BROWN-Well, you can ask the attorney and they’ll tell you the same thing I told you, because they told me. MR. UNDERWOOD-No, I mean, I see the same sized OTB signs on almost all the OTB places around, the one Downtown in Glens Falls, very similar. MR. BROWN-Right. That’s probably because that’s their stock sign and their argument is you can’t regulate me. MRS. JENKIN-So they have the right to put their sign on a freestanding sign? They could have a sign, but do they have to be allowed, or do they have to be granted the right to put it on the one freestanding sign that’s allowed there? MR. BROWN-Well, I suppose if you took it to the extreme, and they argued the fact that you can’t regulate my signage, they could put it wherever they want to put it. They could put it on the sidewalk if they want to. MRS. JENKIN-Right. MR. BROWN-So I think in this case they kind of tried to play nice, and put it in the area where the existing sign was, but if we don’t regulate it, we don’t regulate it. They can put it where they want to put it. MRS. JENKIN-The thing is, if this wasn’t here, it was re-built, there would be a lot more room for the people, if this Off Track Betting sign wasn’t included. MR. BROWN-No question. MR. UNDERWOOD-Okay. Let’s continue polling the Board, and I guess we left off with you, Joan. Are you done? MRS. JENKIN-Yes. I would not grant the variance at this point, only because I feel very strongly that the sign needs to change, and this is the only way that we can send the message that the tenants need to be treated fairly here. MS. DAWKINS-Mr. Hippele will not change it. He won’t. MR. UNDERWOOD-Okay. John? MR. KOSKINAS-Could I ask you another question, Mr. Brown? When the Ordinance allows that sign for the Plaza, is it required that it be a single sign like that, or is he allowed area? MR. BROWN-Like this? MR. KOSKINAS-No, the entire structure. MR. BROWN-Okay. What the Code says is each business in Town is allowed two signs, a freestanding sign, and a wall sign. In this case it’s a business complex. So a business complex is allowed one freestanding sign for the business complex, and each tenant within the Plaza is allowed a freestanding sign for their tenant space, and if the landlord or the property owner chooses to use the Plaza’s freestanding sign for tenant space, they can do that, or they can use it in this case, as was done when it was originally done, identify the Plaza only. So how they use it doesn’t matter to us. The square footage is what they get. How you divvy it up, that’s up to them. Does that help? 20 (Queensbury ZBA Meeting 05/26/2010) MR. KOSKINAS-Yes. My comments are unchanged. I think that this is an issue for you and your landlord, and I’m sympathetic, but I think this is not what our zoning requires. It’s not what our community needs either. MR. UNDERWOOD-Okay. Roy? MR. URRICO-Yes. I think it’s unfair for us to suddenly develop a backbone. We’ve let this go, to this point, and now we’re going to make an example using one of the tenants here, who may have actually a legitimate reason for having a sign. The Sign Code says that we need, that a business needs to be viewed. We’re not obligated to give signs unless they have, they’re in a position where they need to be viewed, and in this case, she actually can’t be seen from where she’s located. So maybe more than anybody else on that sign, she probably needs the sign more than anybody else. So we’re going to make an example of one person here, when the argument was with the whole Plaza, and I think that’s terribly unfair, and I would be in support of this sign. We’ve let this go already. We’ve already approved like five, six different signs there, and we’re going to make an example here? If we’re going to send the message out, I think we should send the message out after this one, before somebody comes before us. I would be in support of this application. MR. UNDERWOOD-Joyce? MRS. HUNT-Yes. I agree with Mr. Urrico. I think drawing a line in the sand now would is being very unfair to Alyssa Dawkins. I drive by there almost daily and I have never known you were there, and I think we gave the large sign to Colortyme, and now we’re going to say no to a sign that’s only increasing the space by 11%? I would be in favor of this Sign Variance. MR. UNDERWOOD-Okay. So let me run it by. We’ve got yes from you, Brian. We’ve got no, no, yes, yes. All right. So, all right, I’m going to change my mind, then, and agree with Roy, because based upon the fact that we’ve done this, but this is the last one. So these guys next month, tough luck for them. They’re not going to get on the sign, and I think at the same time when we do the language here, we’re going to say that we recognize the fact that because we allowed the Colortyme sign and the I Love NY Pizza sign, at the same time, even though we’re trying to accomplish something here that’s out of a sense fairness, because you’re the last applicant that has appeared before us at this time, that we do not feel it’s appropriate to add any more signage after this evening to that sign, until such time that the owner of the Plaza gets together with the Town and with his tenants and comes up with something that’s going to be more reasonable, as far as the actual square footage that’s allowed by the Town Sign Code. Okay. We’re going to have to do SEQRA on this before we do any approvals here, and I’m going to go through that, and in the process I’m going to say that. MOTION THAT, IN GOING THROUGH SEQRA, WE RECOGNIZE THAT WE HAVE GREATLY DEVIATED FROM THE SIGN CODE BY ALLOWING THE PREVIOUSLY APPROVED COLORTYME AND THE I LOVE PIZZA SIGN ON THIS PLAZA HERE. WE RECOGNIZE THAT IN FURTHER APPROVING THIS EVENING THE BODY RELIEF SIGN, WE ARE RECOGNIZING THAT OF ALL THE TENANTS IN THE PLAZA, THAT THE BODY RELIEF SIGN IS THE ONE THAT PROBABLY NEEDS THE SIGNAGE OUT FRONT BECAUSE OF ITS LOCATION AT THE APEX OF THE CORNER WHERE THE MALL CHANGES AT A RIGHT ANGLE THERE, MAKING THIS LOCATION ALMOST IMPOSSIBLE TO SEE. IT’S WAY BACK IN THE BACK. WE RECOGNIZE THE FACT THAT ALL THE OTHER TENANTS IN THAT PLAZA , PROBABLY BECAUSE OF THE GROWTH OF VEGETATION OUT FRONT, DO DESERVE SOME KIND OF RECOGNITION FROM THE ROAD FRONT BY PASSING AUTOMOBILES, THAT THEY BE ALLOWED TO SEE THAT, AND WE RECOGNIZE THAT THIS WILL HAVE A DETRIMENTAL EFFECT ON THE COMMUNITY BECAUSE IT DOESN’T MEET THE CODE AS IT EXISTS. AS FAR AS SEQRA GOES, WE DON’T SEE ANY OTHER DETRIMENTAL EFFECTS OTHER THAN THE EXCESSIVE SIGNAGE AS WE APPROVE IT THIS EVENING. SO I WOULD VOTE THAT WE GIVE A NEGATIVE DEC ON IT AT THIS POINT, Introduced by James Underwood who moved for its adoption, seconded by Joyce Hunt: 959 State Route 9 – Mount Royal Plaza. th Duly adopted this 26 day of May, 2010, by the following vote: AYES: Mrs. Hunt, Mr. Clements, Mr. Urrico, Mrs. Jenkin, Mr. Koskinas, Mr. Underwood NOES: NONE ABSENT: Mr. Garrand MR. UNDERWOOD-Okay. I’m going to do the motion for this one. 21 (Queensbury ZBA Meeting 05/26/2010) MOTION TO APPROVE SIGN VARIANCE NO. 20-2010 BODY RELIEF/ALYSSA BARBER DAWKINS, Introduced by James Underwood who moved for its adoption, seconded by Joyce Hunt: 959 State Route 9 – Mount Royal Plaza. We are reluctantly going to grant relief this evening for the applicant’s proposed 5.5 square foot additional sign to each side of an existing 107 square foot nonconforming freestanding pylon sign. The Board recognizes that, because we had previously approved the Colortyme and the I Love NY Pizza sign, this is the last applicant that we will approve on this mall and that there’s no hardship going forward for these other tenants because, at this point in time, our Board feels, this tenant does, because of its location within the mall, need the extra signage out front. Although her alternative is that she can use her 60 days of temporary signage out front, that, we feel, is also not a grand solution for anybody here because it just creates excess signage along the roadway. It’s our belief, at this point in time, that if we approve this, that the owner of the mall needs to be notified, along with these approvals, by letter from the Town, that the Town would like him to come in an modify his sign, so it more reflects what the Town requires in sign code, and that is that the sign be significantly reduced to provide space on the sign for all the tenants in the mall in an appropriate manner that would be approved by the Town Zoning Administrator. We feel that because of the excess signage here, it is producing a somewhat undesirable change in signage within the community, but we don’t feel there’s any feasible alternative for this tenant at this time. For future tenants that wish to location on this sign, we do not feel that the Board would be amenable to anymore signs because of already deviating greatly from the signage as is required by the Town Code. Whether the benefit could be sought by the applicant in some other way. We feel it could be done so if the sign were totally revised and put into a new form where each tenant had the exact same size signage out front there, then it would provide all the tenants equal exposure to passing traffic, and whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions, we did SEQRA and we did not feel that that was the case, and whether the alleged difficulty was self-created. We feel the greater effect of the growth of vegetation in front of the Plaza along Route 9 does make viewing the signage on the wall signs very difficult if not impossible once full growth is out in the summertime. So I would move for its approval. th Duly adopted this 26 day of May, 2010, by the following vote: AYES: Mrs. Hunt, Mr. Clements, Mr. Urrico, Mr. Underwood NOES: Mrs. Jenkin, Mr. Koskinas ABSENT: Mr. Garrand MR. UNDERWOOD-Okay. MS. DAWKINS-Thank you. MR. UNDERWOOD-Good luck. MS. DAWKINS-Thank you. AREA VARIANCE NO. 58-2009 SEQRA TYPE: II SHANNON STOCKWELL OWNER(S): SHANNON STOCKWELL ZONING: MDR LOCATION: 4 BENNETT ROAD APPLICANT PROPOSES CONSTRUCTION OF AN 18 FT. BY 32 FT. ABOVE-GROUND POOL IN THE NON-ARCHITECTURAL FRONT YARD. RELIEF REQUESTED FROM PLACEMENT OF POOL IN THE REAR YARD REQUIREMENT AND FENCE RELIEF FOR SIZE, STYLE, AND PORTION OF EXISTING FENCE ENCROACHING INTO FRONT SETBACK. CROSS REF. BP 2003-919 SFD WARREN COUNTY PLANNING: N/A LOT SIZE: 0.43 ACRES TAX MAP NO. 295.14-1-27.2 SECTION: 179-5-020 BRANDON & SHANNON STOCKWELL, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 58-2009, Shannon Stockwell, Meeting Date: May 26, 2010 “Project Location: 4 Bennett Road Description of Proposed Project: Applicant proposes construction of an 18 ft. by 32 ft. above-ground pool in the non-architectural front yard. Relief Required: 22 (Queensbury ZBA Meeting 05/26/2010) Relief requested from placement of an 18 ft. by 32 ft. above-ground pool in the rear yard requirement and fence relief from size, style and portion of existing fence encroaching into front setback. Criteria for considering an Area Variance according to Chapter 267 of Town Law: In making a determination, the board shall consider: 1. Whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of this area variance. Minor impacts to the neighborhood may be anticipated as a result of granting this area variance. 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 applicant could move the pool to the northeast portion of the property; however, the limitations of the lot and the location of the wastewater system appear to add to the need for an area variance as proposed. 3. Whether the requested area variance is substantial. The request to locate the pool approximately 28 feet into the non-architectural front yard may be considered severe relative to the ordinance as per §179-5-020C. The request for 2 feet or 33% relief from the 4 foot maximum fence height in the non-architectural front yard as per §179-5-070 may be considered moderate relative to the ordinance. Finally, relief requested from style of fence (privacy) to be placed in non-architectural front yard. 4. Whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district.Minor impacts on the physical and environmental conditions of the neighborhood may be anticipated. 5. Whether the alleged difficulty was self created. The difficulty may be considered self created. Parcel History (construction/site plan/variance, etc.): BP 09-196 Above ground pool Pending BP 03-919 1,604 sq. ft Single family dwelling & two car detached garage CO issue 3/22/04 Staff comments: The applicant was before the ZBA on October 21, 2009 and was tabled with direction from this Board to revise the plans showing a different location for the proposed swimming pool. The applicant has repositioned the pool an additional 27.75 feet away from Aviation Road and 11 feet closer to Bennett Road. Please see attached copy of original proposal for clarity. All private swimming pools shall be enclosed by a permanent fence of durable material at least four feet high per §179-5-020C4. In the case where a lot fronts on two public rights-of-way, the pool shall be screened from the view of the public right-of-way and the neighboring property by means of landscaping as per §179-5-020C5. Note: Landscaping includes fences, shrubs, trees etc. The Zoning Board may wish to consider, as a condition of approval, that fencing and / or vegetative screening may be used to satisfy the landscaping requirement of this proposal. As discussed with the applicant initially, in order to avoid an additional area variance due to the location of the existing non-compliant fence encroaching on the non-architectural front setback, the applicant will need to reposition the fence in a compliant location. SEQR Status: Type II – no further review needed” MR. UNDERWOOD-Okay. Do you want to refresh our memories as to, what we had last year I think was the pool that was located closer to your home? MRS. STOCKWELL-Well, it was located closer to Aviation Road. MR. UNDERWOOD-Okay. So this is the old one? MRS. STOCKWELL-That’s the old one. 23 (Queensbury ZBA Meeting 05/26/2010) MR. UNDERWOOD-That’s the old one, and the new one, as we’ve proposed it, was this one here. So it’s located nearer to the house? MRS. STOCKWELL-Correct, yes. MR. UNDERWOOD-And I think we did that in response, because Gordon, the neighbor next door, was pretty wigged out about where the original pool was proposed to be. He wanted it as far away from him as possible. Again, we’ve dealt with these pools on these corner lots because they don’t really have a backyard. They have two, you know, because of the roadways and the way things end up, and I think the last time we recognized that the backyard, it didn’t fit there because the septic was back there. We had issues with the trees and stuff like that, too. So where we had asked them to move the pool too, this was where we had asked them to go with it, you know, based upon our analysis the last time running through here. So, I don’t know if there’s anything else that you want to add, that you guys are happy where it’s going to go, I guess. MRS. STOCKWELL-Yes. I just want to add that we did go around and we do have all, besides Gordon, the rest of our neighbors signatures saying that they’re fine with it, including the two on the sides. MR. UNDERWOOD-And I think, you know, we’ve been in a position before where one person didn’t like it, even though they were going to be affected because they were the near neighbor, but, you know, we try to accommodate people’s requests within the community, because it’s not like pools are a right for anybody, but at the same time, it’s nice to have them on a day like today. Craig, the issue with the fencing, is that because where they propose the fence is going to be outside the boundary line, or is it for the relief from Bennett Road? MR. BROWN-Yes, both the same. If it’s outside that setback line, and it’s over four feet tall. MR. UNDERWOOD-Is that just that corner there where it protrudes out there? MR. BROWN-Yes. I guess that little area that sticks out right there. MRS. JENKIN-Is it over four foot tall? MR. UNDERWOOD-I mean, we’ve got to have a taller fence because we figured a taller fence would be better in that respect because of traffic. MRS. STOCKWELL-The fence was there when we bought the property. MR. UNDERWOOD-Yes. MRS. JENKIN-Is that a six foot fence? MR. STOCKWELL-It’s a six foot. MR. UNDERWOOD-Now that fence is already up. So you would be asking them to move it? Is that what you’re asking. MR. BROWN-Well, that little triangle that sticks out, I guess, which way is north on this, probably the southwest corner, it’s probably right at the edge of the photo here where you can’t really see. It’s that little part that sticks out there. That’s the part that outside the setback line. MR. UNDERWOOD-So even though it’s up, we’ve still got to. MR. BROWN-Well, we couldn’t find any record of any approvals being granted for it from before. So, I mean, they’ve kind of inherited a problem that now has become an issue because we know about it. MR. UNDERWOOD-Is that something that’s got to be advertised to deal with it? MR. BROWN-Unless they propose to correct it, yes, it’s another, it’s an additional relief. MRS. JENKIN-But that’s part of the application. MR. UNDERWOOD-Well, is it on the application now? It’s not on there now. MR. BROWN-I don’t think it’s been advertised that way. 24 (Queensbury ZBA Meeting 05/26/2010) MRS. JENKIN-What about the fence relief? MR. UNDERWOOD-If we were to give preliminary approval for that, even though, is that something that could be done administratively, or do we have to go to the whole issue of? MR. BROWN-Well, I’m just reading the description here. I guess we did advertise it okay. It says relief requested from placement of pool in the rear yard requirement and fence relief for size, style, and portion of existing fence encroaching into front setback. So, if you guys are comfortable with what they have, you can grant them relief for it tonight. MR. UNDERWOOD-Sure. Yes. My feeling on that corner is, I mean, it’s been there. I don’t think anybody’s complained, and the fact that it’s just slightly out of order with what we would allow is, you know. MRS. JENKIN-When you were in before, you had said that you would consider plantings shrubs in front of the fence. You have? MR. STOCKWELL-No, we will. MRS. JENKIN-Okay. That would provide some screening, too. MR. STOCKWELL-Yes. We definitely plan on doing that. MR. BROWN-So the proposal is to leave the chain link across Bennett Road and then landscape in front of it? MR. STOCKWELL-Right. MR. BROWN-And that’s not going to change to stockade or anything? MR. STOCKWELL-No. MR. BROWN-Okay. MR. UNDERWOOD-Are you going to put the privacy slats in it, just so you’ve got some cover. MR. STOCKWELL-Yes. I was going to get the privacy slats and do shrubs as well. MR. UNDERWOOD-And then once you put up arborvitae or something, it’ll grow up tall and it’ll give you more privacy so you’ve got your own wild jungle park back there. Everybody pretty squared away with what they’re doing here, and with the fence relief that’s necessary, too, I guess. Why don’t we open up the public hearing, then. Is there anybody from the public? No. PUBLIC HEARING OPENED MR. UNDERWOOD-If you want to submit those letters, we’ll take those letters. We can read them in. We’ve already got them, I guess. Rather than read them all in, Roy, I think we can basically say, I think if you read them, they’re all positive. I don’t think we have any negatives. MR. BROWN-I think there was one for and one against. Plus what they just handed tonight. MR. UNDERWOOD-Why don’t you go ahead and read them, just for the fact. MR. URRICO-All right. “Brandon and Shannon Stockwell have informed us that they would like to put a pool up on their property. We realize that it is an 18x32 foot above ground pool. They also described to us where they would be putting the pool in their yard. They made us aware of the fact that they would like to install privacy slats in their fence and add shrubs along the front yard to help with reducing the visibility of the pool. We are fully aware of their proposed project and have no objections to it. Amanda Hoffman, 45 Aviation Road, Queensbury; Timothy Hoffman, 45 Aviation Road, Queensbury; Pat Dingare, 13 Bennett Road, Queensbury; Clara Martindale, 13 Bennett Road, Queensbury; Peter R. Bennett, 23 Bennett Road, Queensbury; Wilford Tucker, 54 Aviation Road; Cheri L. Martindale, 13 Bennett Road, Queensbury; Sharon Germain, 10 Bennett Rd., Queensbury; Ernest Germaine, 10 Bennett Rd., Queensbury” I have another letter here. It says, “As a resident of this neighborhood for 65 years now, I have seen just a few houses on Aviation Road to what it is today. The town has set rules and regulations to protect property owners and it is important to abide by them. I am against the variance requested at the Stockwell residence at 4 Bennett Road for installation of an 18’ x 32’ above ground pool. I have talked to three other neighbors that feel the same as I do. This is an unreasonable request being so close to Aviation Road. It would be a distraction to all the traffic 25 (Queensbury ZBA Meeting 05/26/2010) on this road. I also spoke to a Realtor and was advised it could have a negative impact on surrounding property values. Sincerely, Thomas C. Hall, III 41 Aviation Road, Queensbury, NY 12804” This one here is “To the Board: As stated in my October 2009 letter to the Zoning Board regarding project relief of above ground pool placement at 4 Bennett Road I do not object to the proposed placement of above ground pool. However, as stated in my October 2009 correspondence if relief is granted, that said applicant, prior to pool usage, establish a fence along Bennett Road similar in height and size of existing fence on south and east side of property so as to obscure pool from roadside. Sincerely, Tim Towers” And he’s at 20 Bennett Road. MRS. JENKIN-My other question. You said you were going to do it along the front, fronting Bennett Road. Are you also going to put the shrubs along the Aviation Road side, too? MR. STOCKWELL-We didn’t plan on doing that. That’s a privacy fence now. We didn’t plan on doing it there. MRS. JENKIN-You probably should, only because that would protect you. That will give you more privacy if you’re in the pool, and people are driving along Aviation Road. MR. UNDERWOOD-Well, I mean, I think they’re required to have some kind of privacy with a fence, but the fence is probably more important than. MR. BROWN-Well, fences on a corner lots are required to make sure the pools are screened from view from the right of way. I think this fence over here is the fence that’s along Aviation Road. As the applicant said, six feet tall, kind of a privacy fence. It’s not your standard stockade fence. It’s kind of like a board on the inside, a board on the outside. So it’s, straight on it’s pretty protected, but at an angle you can see through it. So that looks pretty private. I mean, I think if that’s where you’re talking about, along the Aviation Road. There’s a six foot fence there right now. MRS. JENKIN-Yes, along Aviation. I just think because it’s an above ground pool, also that’s going to be four feet in the air anyway, or six. MR. UNDERWOOD-But once you’re in the pool, you’re under water. So, nobody floats like a cork up in the air. Okay. Why don’t we do this, then. I’ll close the public hearing. PUBLIC HEARING CLOSED MR. UNDERWOOD-And I’ll poll the Board members. Brian? MR. CLEMENTS-Yes. I don’t have any problem with this application. I think they’ve done what we asked them to do. So I’d be in favor. MR. UNDERWOOD-Joan? MRS. JENKIN-I feel the same way. I think it follows all the criteria that we need to approve, and I would be in favor. MR. UNDERWOOD-John? MR. KOSKINAS-I’m in favor. MR. UNDERWOOD-Okay. Joyce? MRS. HUNT-Yes. The Stockwells have gone along with what we’ve requested, and I would be in favor of it. MR. UNDERWOOD-Roy? MR. URRICO-Yes. I’m in favor of it. I think they’ve satisfied all the criteria, the requests that we made last year. So I’m in favor of it. MR. UNDERWOOD-Yes. I’m for it, too. So, get that thing up, because you need it. MRS. STOCKWELL-Thank you very much. MR. UNDERWOOD-We all need it. MRS. STOCKWELL-I have a four year old that’s going to be very happy. 26 (Queensbury ZBA Meeting 05/26/2010) MR. UNDERWOOD-It’s going to be the place to be this summer. Does somebody want to take this one? MR. CLEMENTS-Yes, I will. MOTION TO APPROVE AREA VARIANCE NO. 58-2009 SHANNON STOCKWELL, Introduced by Brian Clements who moved for its adoption, seconded by Roy Urrico: 4 Bennett Road. The applicant proposes construction of an 18 by 32 foot above ground pool in the non-architectural front yard. Relief required is the relief requested from placement of an 18 foot by 32 foot above ground pool in the rear yard requirement and fence relief from size, style and portion of existing fence encroaching into front setback. In making the determination, the Board shall consider, Number One, Whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of this variance. Minor impacts to the neighborhood may be anticipated. Number Two, 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 applicant could move the pool, but has already agreed to move it under what the Zoning Board asked them to do at the last meeting. Number Three, Whether the requested area variance is substantial. The request to locate the pool approximately 28 feet into the non-architectural front yard may be considered severe relative to the ordinance as per 179-5-020C. The request for 2 feet or 33% relief from the 4 foot maximum fence height in the non-architectural front yard as per 179-5-070 may be considered moderate relative to the ordinance. Finally, relief is requested from style of fence, privacy, to be placed in non-architectural front yard, and this is a problem that we’ve seen with many lots that have frontage on two roads. Whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district. Minor impacts on the physical and environmental conditions of the neighborhood may be anticipated. Whether the alleged difficulty was self-created? The difficulty may be considered self-created, and I would move to approve this Area Variance. th Duly adopted this 26 day of May, 2010, by the following vote: AYES: Mr. Urrico, Mrs. Jenkin, Mr. Hunt, Mr. Koskinas, Mr. Clements, Mr. Underwood NOES: NONE ABSENT: Mr. Garrand MR. UNDERWOOD-You’re all set. MRS. STOCKWELL-Thank you very, very much. MR. UNDERWOOD-All right. We’ve got a couple of sets of minutes to approve. APPROVAL OF MINUTES April 21, 2010 MOTION TO APPROVE THE QUEENSBURY ZONING BOARD OF APPEALS MEETING MINUTES OF APRIL 21, 2010, Introduced by James Underwood who moved for its adoption, seconded by Joan Jenkin: Duly adopted this 26th day of May, 2010, by the following vote: AYES: Mrs. Jenkin, Mrs. Hunt, Mr. Urrico, Mr. Clements, Mr. Underwood NOES: NONE ABSTAINED: Mr. Koskinas ABSENT: Mr. Garrand April 28, 2010 MOTION TO APPROVE THE QUEENSBURY ZONING BOARD OF APPEALS MEETING MINUTES OF APRIL 28, 2010, Introduced by James Underwood who moved for its adoption, seconded by Joyce Hunt: 27 (Queensbury ZBA Meeting 05/26/2010) th Duly adopted this 26 day of May, 2010, by the following vote: AYES: Mrs. Hunt, Mr. Clements, Mr. Urrico, Mrs. Jenkin, Mr. Underwood NOES: NONE On motion meeting was adjourned. RESPECTFULLY SUBMITTED, James Underwood, Chairman 28