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2005-02-16 (Queensbury ZBA Meeting 2/16/05) QUEENSBURY ZONING BOARD OF APPEALS FIRST REGULAR MEETING FEBRUARY 16, 2005 7:00 P.M. MEMBERS PRESENT PAUL HAYES, CHAIRMAN CHARLES MC NULTY, SECRETARY ROY URRICO JAMES UNDERWOOD CHARLES ABBATE ALLAN BRYANT JOYCE HUNT, ALTERNATE MEMBERS ABSENT LEWIS STONE ZONING ADMINISTRATOR-CRAIG BROWN CODE COMPLIANCE OFFICER-BRUCE FRANK TOWN COUNSEL-MILLER, MANNIX,SCHACHNER, AND HAFNER-CATHI RADNER STENOGRAPHER-MARIA GAGLIARDI MR. HAYES-First on tonight’s agenda is New Business. Notice of Appeal No. 2-2005. Michael J. O’Connor for Peter Coffman. MR. BRYANT-He requested. MR. ABBATE-Yes, he wants to go last. MR. HAYES-Okay. All right. I will honor that request at this time and postpone Appeal No. 2- 2005 until later on in the agenda. NOTICE OF APPEAL NO. 3-2005 SEQR TYPE N/A JOHN SALVADOR, JR. OWNER(S): JOHN SALVADOR, JR. ZONING: LC-42A LOCATION: 2030 STATE ROUTE 9L APPELLANT IS APPEALING A DETERMINATION ISSUED BY THE ZONING ADMINISTRATOR OF JANUARY 10, 2005 REGARDING THE PROCESSING OF AN AREA VARIANCE APPLICATION. THE APPELLANT ALSO SEEKS TO APPEAL AN ACTION OF THE DIRECTOR OF BUILDING AND CODES. CROSS REF. AV 3-2005 LOT SIZE: 0.19 ACRES TAX MAP NO. 252.00-1-91 SECTION 179-4-030 JAMES MORGAN; SHIELA GALVIN, REPRESENTING APPLICANT, PRESENT STAFF INPUT Notes from Staff, Notice of Appeal No. 3-2005, John Salvador, Jr., Meeting Date: February 15, 2005 “Project Location: 2030 State Route 9L Information requested: Appellant is appealing to the Zoning Board of Appeals relative to the January 10, 2005 decision made by the Zoning Administrator regarding the processing of an Area Variance application for a proposed 120 sq. ft. hunting and fishing cabin. It appears as though the appellant is challenging a decision rendered by the Director of Building and Codes relative to the necessity of a septic system for the use. Staff comments: Per Town Code § 179-16-050, Appeals: An appeal from an action, decision or rule by the Zoning Administrator regarding a requirement of this chapter may be made only to the Zoning Board of Appeals within 60 days of such decision or action. Per New 1 (Queensbury ZBA Meeting 2/16/05) York State Town Law: Chapter 267-a, 5, (b) an appeal shall be taken within sixty days after the filing of any order, requirement, decision, interpretation or determination of the administrative official, by filing with such administrative official and with the board of appeals a notice of appeal, specifying the grounds thereof and the relief sought. The administrative official from whom the appeal is taken shall forthwith transmit to the board of appeals all the papers constituting the record upon which the action appealed from was taken. As such, the appellants assertion to appeal a determination of the Director of Building and Codes (DBC) relative to a decision based in New York State Building Code is unfounded, as the DBC is not the administrative official charged with the administration and enforcement of the Town of Queensbury Zoning Ordinance, therefore, decisions not rendered by DBC are not “appelable” to the Zoning Board of Appeals.” MR. MORGAN-Good evening. John and Kathy Salvador are out of Town. I’m James Morgan. This is my partner Shiela Galvin. We’re authorized representatives. I believe he’s already filed that authorization with the Board. If you don’t have a copy, I have a copy of it. MR. MC NULTY-Okay. Do you want the Staff notes read in? MR. HAYES-We do have that representation form on file, though? Okay. Great. Yes. Proceed. MR. MORGAN-Okay. I’m going to first address the Staff notes. I believe that’s a preliminary issue here. It is our position that the structure that’s proposed by the Salvador’s is not subject to the restriction under the State Building Code for the following reasons. The information I have received, I’m not clear on what was submitted to the State authority, which is James L. Harding, P.E., Senior Building Construction Engineer of the New York State DOS Codes Division, Department of State, but the structure that the Salvadors propose is not intended to be a residence within the meaning of the local code, Zoning Code. There is going to be no occupation overnight such that would require the use of a sewer facility. There’s going to be no water, electric hook to that structure. Therefore, we believe while this is a permitted use under your local Zoning Code, that the structure that they are proposing is not a residence or, and has no need therefore for to be hooked to a, or have a wastewater system attached to it. I have searched your Code and I’ve found no clear definition of what a hunting and fishing cabin can consist of. The structure that the Salvadors are proposing would be less than 120 square feet. It’s for occasional use on a seasonal basis, and that, in summary, is our position. MS. GALVIN-My name is Sheila Galvin, and I’m the other half of the Galvin and Morgan law firm and also represent the Salvadors, and as Mr. Morgan pointed out, we have done some extensive review of the Zoning Code of the Town and have determined that there is not a specific definition into which the proposed structure falls. It is a structure under the terms the use of structure within several of the defined terms of the Zoning Code, but it is not a residential structure. It is not a structure which is to have any type of occupancy other than occasional use. It is neither commercial nor residential in its character. It’s a shed for practical purposes. It was denominated in the Salvadors’ application as a hunting and fishing cabin, based upon the limited types of definitions which were available within the Code itself. It could have just as easily fallen into a functionally dependent use under your Definitions in Section 91-4 Definitions for floodplains, which this area could be considered, or a recreational vehicle, as defined within that Section, since this is a basically floating object. It is not to be fixed in a given position. It can either float or rest on ice and be fully subject to being towed or removed from the site very simply. It is not designed as a permanent dwelling or any type of a living quarters. It is merely a structure. So therefore it could just as easily fallen under those definitions. It could also have fallen under an elevated building definition, for which it would certainly qualify under 91-4 Definitions, because it would be elevated and have a means or opening sufficient to facilitate the unimpeded movement of flood waters. Since it’s on pontoons, it certainly would seem to fit into that category also. When looking at other definitions, it also, under 113 of your Code, could have fallen into the mobile home category. Even though it’s not a home, it would fit into the description of a dependent mobile home, which is a mobile home which does not contain a water closet, lavatory, lavatory and shower, or bathtub. It’s another structure definition. I think that a large part of the problem here was a 2 (Queensbury ZBA Meeting 2/16/05) characterization of hunting and fishing cabin, is not necessarily the most accurate. It’s more precisely some sort of a shed. MR. HAYES-Is that it? MR. MORGAN-I think the Board has to deal with the preliminary question whether the Appeal is properly before you before we can proceed to discuss the merits. MR. HAYES-Okay. I agree. Craig, would you like to present your case? MR. BROWN-I would, and maybe I could just ask Mr. Morgan and Ms. Galvin a question. Is the Appeal based on the fact that the Town’s position is the structure requires a sanitary sewer system? MR. MORGAN-Yes, that’s correct. MR. BROWN-Okay. If that’s the case, there’s a procedure in Chapter 136 of the Town Code which is sewers and sanitary facilities, and there’s an appeals procedures for discrepancies with that Section of the Code. That’s to be taken up with the Town Board of Health, which is formed by the Town Board, in this case. The Zoning Board is not the body empowered to hear appeals from that Section of the Code. MR. MORGAN-I would respond that this is a structure. It’s not a residential structure as that term is defined within the terms of your Zoning Code, but it’s the type, you have to define what it is before you apply whether it needs a sewer connection or not, and I think that’s what we have to deal with in our preliminary discussion is whether, in fact, it’s subject to the Zoning Code and this is the reason we hear from this Appeal tonight. MR. BROWN-I’m not sure I can find in the papers that have been filed that there is an Appeal regarding the type of structure the way it’s been classified. The type of structure, the way we’ve classified it, is taken directly from Mr. Salvador’s Area Variance application. So the classification came from him, and we fit it into our Code where it meets the definition, and strangely enough, the definition that’s in, or the project description that’s in the Area Variance application almost mirror’s the definition in our Code of a hunting and fishing cabin. So I think it clearly fits in our Code as a hunting and fishing cabin, and that’s where the variance was needed for its location, which was the root of all this Appeal. MS. GALVIN-I believe that part of the problem with that was the fact that had it been classified in its original application, under a definition which was proper for it, it would not have required any type of a variance, because of the fact it was under the 120 square foot dimensions, and also because it had no interior power hookup, no interior facilities of any type of a bedroom or anything of that nature or allowing for an overnight occupancy, and it did not have any water hookup or sanitary facilities. It would best be described as a shed, and it’s our understanding that the applicant submitted it under the classification of a hunting and fishing cabin, as I said originally, because of a problem of trying to figure out what definition and what type it would fall under, and that seemed to be about the only available niche. MR. HAYES-You’ll agree Counselor, though, that the Town’s representatives would not be out of order in assuming that what’s on the application is what he intends, and therefore taking his own language and applying it to deciding what best fits its category would be probably the proper course of action. MS. GALVIN-To a certain extent yes, were the definitions within the Code clear and all encompassing. The problem in this particular instance is the Code does provide for a less than 120 square foot or up to 120 square foot structure, but without defining what type of a structure that specifically. It isn’t provided with a name, and the only other structure in the Code that appears to come close to that type of a 120 square foot structure is in fact the hunting and fishing cabin. 3 (Queensbury ZBA Meeting 2/16/05) MR. HAYES-Yes, but you’re asking us to redefine something that actually contradicts the words in his application. MR. MORGAN-Well, I think the words in his application were dictated by the terms of the zone in which it (lost word). MR. HAYES-I understand how he arrived there. I just want you to understand that. MR. MORGAN-Right, and he’s attempting to fit that into a permissible use with that zone, and hence the term hunting and fishing cabin. MS. GALVIN-And under the definition of a structure, a structure could just be a shed of the type that this is referring to, or for that matter an outhouse or an ice fishing shanty. MR. BROWN-Mr. Chairman, maybe I can just focus a little bit here. MR. HAYES-Yes, please do. MR. BROWN-I think the issue at hand here is not the type of structure. There’s been no appeal, and again, in the papers that have been filed, there’s no argument over what type of structure it is and how it’s classified in the Town Code. If we boil this down it says we’re appealing to the Zoning Board because our application for an Area Variance was denied and we think the Director of Building and Codes made a decision this needs a septic system, and we’re appealing that. MS. RADNER-Not denied. Withdrawn is not, it wasn’t denied. MR. ABBATE-It was incomplete. MS. RADNER-It was incomplete. MR. ABBATE-Not denied. MR. BROWN-It was deemed incomplete. Therefore it cannot be processed further, and they’re here appealing that decision from the Director of Building and Codes, which they can’t do. MR. ABBATE-Right. That’s what I want to get at, the core of the matter. I think, in my opinion, the core of the matter is this, if this statement is incorrect, then I have to change strategies. From what I’ve been reading, it appears to me that the appellant is really challenging a decision, not structure of the building, but challenging a decision that was rendered by the Director of Building and Codes, relative to the necessity of a septic system for use. See, I’m looking at procedures now. Would that statement be correct? Is he, in fact, challenging a decision by the Director of Building and Codes? Because if he is, there is a procedure to appeal, and it’s not to us. MS. GALVIN-He is, if I understand correctly what you’ve stated, he is not challenging the decision of the Building and Codes officer. What he is challenging is a classification, a classification that would require septic, on the grounds that in fact the structure does not require septic at all. Therefore, a referral for the purpose of a septic determination is unnecessary, and his application should not have been held up for that reason, if I understand the question. MR. HAYES-That’s not your understanding of how the appeal was filed? MR. BROWN-No. That’s not my understanding of how the appeal was filed, and that’s, and I understand that their understanding of how the Town processed an application is one way. How we refer applications in between Departments and try and get to the root of what 4 (Queensbury ZBA Meeting 2/16/05) approvals or what reviews are needed are a necessary process. If we have a variance application or a project for a hunting and fishing cabin, we’re going to refer it to the Building and Codes Department to see if it meets building standards, does it need a septic system, are there other issues. So is the referral necessary? Yes, the referral is absolutely necessary, and again, the determination, if it’s based on the need for a septic system, we’re in the wrong place. MR. HAYES-Does anyone else have any questions for the Counselor? MR. ABBATE-I want to make sure for the record that I get it clear. Then is it your position that your client is not challenging a decision by the Director of Building and Codes? MR. MORGAN-That’s correct. MR. ABBATE-He is not. MR. MORGAN-We are taking the position that he believes, he’s challenging the decision that it was unnecessarily referred to the Director of Building and Codes because his application should not be subject to that requirement. In other words, I’m not trying to parse words, like trying to trying to define what is, is. What I’m trying to say is the referral itself, okay, he believes was in error because he believes by the definitions in the local Zoning Code which we’ve already discussed that it should not have been referred to the Director of Building and Codes. MR. ABBATE-So then the bottom line is that you feel that the Zoning Administrator made a procedural error. MR. MORGAN-That’s correct. MR. ABBATE-Is that your argument? MR. MORGAN-Yes. MS. GALVIN-That’s correct. MR. ABBATE-Okay. Now I understand. All right. Thank you. MR. HAYES-Do we have a copy of the Appeal itself? Does it say that in the Appeal? MR. HAYES-I’d be happy to read it if somebody could point it out to me. I have a copy right here in front of me, and I don’t really see where it spells it out that way. MR. ABBATE-No, I don’t either. That’s why I was getting confused, because I have this statement right here, and it doesn’t address, basically, the structure of the cabin, but it basically addresses the fact that he’s challenging a decision by the Director of Building and Codes. Because someone along the line indicated that there had to be a septic system, and if that’s correct, there is a procedure in Town where he can properly appeal to that, not to us. MR. MORGAN-Granted, we’re trying to draw a line where there may not be a line. What we’re trying to say is that the reference to the State Building Code was unnecessary, and his only grounds for appeal is to bring it to this Board because the decision, the procedural decision, as it were, to refer it to this category. MR. ABBATE-Is in error. MR. MORGAN-That’s correct. MR. ABBATE-Okay. All right. I understand that. So that’s what I’ll base my decision on then. Okay. 5 (Queensbury ZBA Meeting 2/16/05) MR. HAYES-Are there any other questions for Counselor at this time? MR. ABBATE-No. MR. HAYES-Craig, do you have anything you want to add to the record? MR. HAYES-Well, no, I think regardless of the procedural referral to the Director of Building and Codes or the Building Department for a recommendation, set that aside, pretend it never happened. The application was still incomplete. That’s why it wasn’t being processed further through the process. There were still other holes in the application. So, I mean, that was one part of it, and that was the part that they choose to pick on, but there are other reasons why it wasn’t complete and wasn’t going to be furthered through the process. MR. ABBATE-Okay. Now, let me get this on the record. So it’s your position that the application submitted by the appellant is incomplete, administratively incomplete? MR. BROWN-The application for an Area Variance for this structure. MR. ABBATE-Is administratively incomplete. MR. BROWN-That’s correct. Okay. MR. HAYES-But right now our narrow focus is the Appeal itself. MR. ABBATE-Right. MR. BROWN-Correct. MR. URRICO-And I’m confused as to what exactly the Appeal is, because we seem to be changing the Appeal right here. MR. HAYES-Well, no, they’re defining what they think is the Appeal and the Town is defining. MR. BRYANT-Yes, but I don’t see that in the application, though. MR. HAYES-I agree. MR. BRYANT-I don’t, I read the application, unless you can point to the verbiage that talks about the. MS. GALVIN-Well, may I ask a question at this point? If I’m understanding what the Board is saying at this stage, there is an incomplete application still pending. Is that correct? MR. BROWN-Next on the agenda. MS. GALVIN-Okay. So therefore until that application is deemed complete, is it correct that this is premature? MR. BROWN-I could answer that for you. MR. HAYES-Yes, please do. MR. BROWN-If the Appeal is granted tonight, if it’s found in their favor that I’ve made a mistake, then the Area Variance is the next thing on the agenda. Mr. Salvador’s requested that we put it on the agenda. We put it on the agenda based on the outcome of this Appeal. MR. HAYES-No, we’ve had that before. 6 (Queensbury ZBA Meeting 2/16/05) MR. BROWN-If the Appeal is found that I’ve done something properly, then you don’t hear it next, because I was correct. It’s incomplete. MR. HAYES-It’s an incomplete application. MR. BROWN-Correct. MR. ABBATE-And by the mere fact that it’s incomplete doesn’t deny the appellant the opportunity to resubmit. MR. BROWN-Absolutely. MR. ABBATE-But if we agree that it’s incomplete, then there’s all cessation of all administrative procedures this evening? MR. MORGAN-And that would end the next item on your agenda, if I understood your interpretation. MS. RADNER-For tonight. MR. ABBATE-For tonight. MR. MORGAN-One issue I just want to speak to that Mr. Salvador asked me to mention. In the request that was sent to the State, he is identified as a local activist. Whether, John, as we well know, is an activist, but identifying him to the State as a local activist, what relevance did that have to his application? He asked me to state that. MR. ABBATE-I don’t have that information. MR. HAYES-We certainly can stipulate that we have a document that indicates that. MR. MORGAN-Yes, because we have copies of e-mails. That’s what I’ve been supplied by my client. MR. HAYES-You probably should submit that so we can add it to the record. Thank you very much. MR. MORGAN-That’s simply a point, but it’s something he was upset. MR. HAYES-Okay. MR. MORGAN-So we’ve stated our position that it’s a procedural error when it was referred. If this is not the Board’s conclusion, that’s as far as we can proceed tonight. MR. HAYES-Does anyone have any further questions for the Counselors at this time? MR. MC NULTY-I’m still a little bit confused about what’s being appealed. The letter from the Zoning Administrator, which maybe I should have read into the record before, but he’s saying he’s writing to document our telephone conversation of January 7 relative to your proposed th 120 square foot hunting and fishing cabin planned for the above referenced parcel. So he’s not saying that he’s determining if it’s a hunting and fishing cabin. He’s essentially accepting what Mr. Salvador submitted. As discussed, we will not be able to forward your Area Variance application on to the Zoning Board of Appeal until the unresolved issues relative to the New York State Building Code, specifically wastewater system, have been resolved. Upon satisfaction of the necessary requirements for the wastewater system, we will reevaluate the status of your applications. By copy of this letter, I’ve requested the Warren County Planning Board remove your Area Variance application from their agenda until receiving a further 7 (Queensbury ZBA Meeting 2/16/05) referral notice from the Town. Should you have any questions or comments, please do not hesitate to contact this office. MR. MORGAN-I think part of this is a confusion based upon its not imprecise because we’re dealing with a very technical area, and not critical of Mr. Brown or. MR. MC NULTY-True, but the Appeal has got to be based upon something that happened in this letter. MR. MORGAN-Right, and what we understood, in representing our client, was it was a procedural matter. He did not understand, from our conversations with him, that his application was incomplete, otherwise, okay. This was the issue, he understood that it was, he felt that by definition, which he tried to explain in his Appeal, by the very definition of the hunting and fishing cabin, that it was not of a type of a residence that would require a sewer hookup. I know I’m not using the precise term, and that’s what he was basing his Appeal on, that it had been referred and they applied to the State for their interpretation. Now I think he could have worded it better, but I think there’s a confusion on both sides in this matter. MS. GALVIN-I also believe that there’s another point of confusion, and that’s the fact that as we understand it remained on the County agenda, leading him to believe that in fact the matter had been resolved. I think that there are some procedural hiccups that have occurred through the process, and since it did continue before the County, I believe that there was confusion as to whether or not the application was deemed complete. It was his understanding, I know, from conversations that we’ve had with Mr. Salvador, that, in fact, he thought the application had been deemed complete, but for this issue, this one narrow issue. MR. MORGAN-Now, in fact, that we’re understanding, from what you’re telling us tonight, that there’s other areas, and we understand what the County did, and we’ve read that. So we’re familiar with it. So if we can come out of this with an understanding of what other areas it’s incomplete in, perhaps we can save everybody more time on this. MR. BROWN-Just for the record, for the Board, the application did remain on a County Planning Board agenda, and it happened to be a night where there was a weather event. They didn’t actually hold the meeting. Everything was approved with a no action. Mr. Salvador’s application was on there. The County observed that there was an error and they followed up and said, hey, we heard this, or it made it on our list as a no action. It wasn’t on the agenda. It didn’t get pulled from the paper copy, but it wasn’t up for consideration. So there hasn’t been any action on it by the County yet. MR. MC NULTY-Who would be making a determination on this hunting and fishing cabin, whether it requires a sewer hookup or not? Is that something that you do jointly with Building and Codes, or? MR. BROWN-No, I don’t administer the Building Code. That’s Dave Hatin. MR. MC NULTY-That’s strictly Dave Hatin would make that determination. So whether it’s classified as a building that requires a sewer or not is in Mr. Hatin’s ballpark and not in yours. MR. BROWN-And that’s the reason he approached the State with that e-mail for an interpretation on how do we treat this type of structure, and then we got the response from Mr. Harding. MR. MC NULTY-So therefore that whole question is not appealable to this Board? MR. BROWN-That’s correct. 8 (Queensbury ZBA Meeting 2/16/05) MS. GALVIN-May I ask another question on this matter? Because we have received from the County an indication that on February 9, 2005 the Salvadors application came before the County Planning Board and I had a recommendation of denial. MR. BRYANT-Yes, that was distributed tonight. So, I think it was denied by the County. It would take a supermajority for us to approve it. MR. BROWN-Okay. I’m a month behind, and this was, when it was on the last time, when it didn’t make it on because of the snow. We sent it back to the County in case it was heard tonight. MS. RADNER-Why is that relevant to anything that’s before this Board tonight? MR. MORGAN-It’s relevant because Mr. Salvador, when he heard it was on the County agenda, had assumed that his application was deemed complete. That’s what we’re basing his assumption that it was complete from. That’s what we’re discussing it. MR. BROWN-And again, if this Appeal is ruled in your favor, then technically it has been ruled complete, they’ve agreed with you that I shouldn’t have held the application up. That’s why it’s on. MR. BRYANT-And then it has a direct impact on how we act, because we need a supermajority. MR. BROWN-If you, in fact, get to the Area Variance. MR. BRYANT-If we go that distance. I have a question for Staff, relative to the comments and the timeframe. Could you expound a little bit on that? Because from my understanding, he’s appealing a determination made in that letter of January 10, and he made the Appeal on th February the 2. So what are these comments relative to the 60 days and so forth and so on? nd MR. BROWN-In the Staff notes? MR. BRYANT-Yes. MR. BROWN-I just wanted to take the whole Section of the Town Code, or the Town Code and the New York State Town Law that says you have to file an Appeal based on an action by the administrative official, and that’s in that whole paragraph, and the point is that the Building and Codes Director is not that official charged with administering the Zoning Code. So I just wanted to get the whole paragraph in there so you could see the context. MR. ABBATE-I have one other comment here, just to make sure that it’s a level playing field for everybody concerned. In the Staff notes also, the position of the Zoning Administrator is that the application is incomplete. Okay. We’ll stop right there for a second, but I also note in Staff notes, it says, being a wetland boundary is not depicted on the applicant’s site plan, the amount of relief in addition to the 100 feet cannot be determined. Can I assume that that’s part of the incompleted application? MR. BROWN-That’s correct. MR. ABBATE-That’s correct. Okay. Just so that everybody knows what’s going on. Thank you. MR. HAYES-Are there any other further questions for the applicant at this time? We don’t generally have a public hearing portion of an Appeal. We do? MR. BROWN-It’s been advertised. 9 (Queensbury ZBA Meeting 2/16/05) MS. GALVIN-May I ask one further question? With respect to the 100 foot determination which you just read from the Staff notes, if that is not clear from the submission, then I believe it would be appropriate for us to request that the next matter be tabled until such time as our client has the opportunity to respond to that, because this is the first we’ve heard of that question. MR. HAYES-But with all due respect, right now, we’re on this item on the agenda and I’d like to stay there. MR. MC NULTY-Yes, that whole wetland reference is a jump to the next item. MR. HAYES-Next application. MR. BROWN-And if this Appeal fails, we don’t even get to that Area Variance. MR. HAYES-Right, which we’ll see if it does or doesn’t, but that’s next, and it may, by action, take care of itself, but if there’s no further questions, then I’ll open the public hearing. Would anyone wish to come forward and speak on Appeal No. 3-2005? Any correspondence? PUBLIC HEARING OPENED MR. MC NULTY-Yes. It looks like we do have some public correspondence, and this was the package that came from Douglas R. Kemp. MR. BRYANT-I think that’s relative to the Area Variance, and not to the Appeal. MR. ABBATE-Correct. Right. MR. MC NULTY-Okay. MR. HAYES-I don’t think there’s any correspondence. MR. MC NULTY-I think everything we’ve got, from what I can tell looking quickly, applies to the Area Variance rather than the Appeal. MR. BROWN-You may just want to make note of this Shanley, Sweeney and Riley correspondence. In the header it does say regarding the Appeal. MR. HAYES-It does. MR. BROWN-I wouldn’t suggest reading it into the record. MR. HAYES-No, we don’t have to. All right. I’m going to make specific notation to correspondence submitted to the Board and the Town, Attorneys for Mr. Parillo, in a letter dated February 16, 2005, which refers specifically to Area Variance No. 3-2005 as well as the Appeal of Zoning Administrator’s decision, the Appeal that we are currently hearing. If no one wishes to come forward, then I will close the public hearing. PUBLIC HEARING CLOSED MR. HAYES-I will poll the Board members on their positions. I guess at this particular time I’m going to start with Roy. MR. URRICO-Well, I haven’t heard anything to change my opinion about how the Zoning Administrator acted, and I’m in support of the Zoning Administrator, and therefore I would deny the Appeal. MR. HAYES-Thank you. Allan? 10 (Queensbury ZBA Meeting 2/16/05) MR. BRYANT-I have to agree with Mr. Urrico somewhat. I think if the Appeal was worded differently to address the classification, I think I might look at it differently, but at this point, the way the Appeal is worded, and the way the letter of January 10 is worded, I’d have to go along th with the Administrator. MR. HAYES-Thank you. Chuck? MR. ABBATE-Okay. Thank you. Let me add a couple of things if I may here. Listening to the testimony and reading the documents, there apparently is some confusion concerning this application. Number One, apparently the appellant, based on the statement by his Counsel, indicated that he was unaware of his boundary, 100 feet, etc., and the Counselor’s own admission that the appellant was somewhat confused, I tend to support the Zoning Administrator in that, in spite of all this confusion, the application is indeed incomplete. MR. HAYES-Thank you. Jim. MR. UNDERWOOD-Yes, I would have to go along with the other Board members also. I think that the application as it stands would be considered incomplete. MR. HAYES-Thank you. Chuck? MR. MC NULTY-I’m going to agree. Anything that I can see in the Zoning Administrator’s letter, I’m not sure is even mentioned in the Appeal, other than the possibility of completeness, and we have to have something that the Zoning Administrator has made a decision on in order for it to be appealed, and it doesn’t appear to me that the Zoning Administrator has made a decision regarding the wastewater treatment system. He’s indicated that’s somebody else’s decision. So, given that, I would support the Zoning Administrator in his action. MR. HAYES-Thank you. Mrs. Hunt? MRS. HUNT-Yes. I have to agree with my fellow Board members. I don’t see any reason to overturn the decision that was made by the Zoning Administrator. MR. HAYES-Okay. I essentially agree as well. Based on the testimony that you’ve presented, I don’t think that the matter that was decided is properly appealable to this Board. I think it is a question of sanitary disposal and there’s an appeal procedure for that. So, having said that, would someone like to make a motion, and please make the motion so we’ll know exactly what we’re voting in favor of or against. MS. RADNER-Specifically refer to what in the record leads you to conclude as you intend to conclude in what’s decided. MR. HAYES-Would someone like to make that motion? MR. ABBATE-Okay. MOTION THAT, IN REGARD TO NOTICE OF APPEAL NO. 3-2005 JOHN SALVADOR, JR., BASED UPON, AND LISTENING TO THE TESTIMONY THIS EVENING, AND READING THE DOCUMENTATION THAT HAS BEEN SUBMITTED ON THE RECORD, IT’S MY OPINION THAT THE ZONING ADMINISTRATOR ACTED PROPERLY, PARTICULARLY WHEN HE SPELLED OUT IN THE APPEAL IN STAFF COMMENTS REFERRING TO TOWN CODE 179-16-050 CONCERNING APPEALS, AND IN ADDITION TO THAT, THE ZONING ADMINISTRATOR HAS MADE AN ARGUMENT THAT THE DECISION, BASED ON NEW YORK STATE BUILDING CODE, IS UNFOUNDED AS THE DBC IS NOT THE ADMINISTRATIVE OFFICIAL CHARGED WITH THE ADMINISTRATION AND ENFORCEMENT OF THE TOWN OF QUEENSBURY ZONING ORDINANCE. IN ADDITION TO THAT, TO SUPPORT HIS POSITION THAT THE 11 (Queensbury ZBA Meeting 2/16/05) APPLICATION IS INCOMPLETE, STAFF NOTES ON AREA VARIANCE NO. 3-2005 ALSO INDICATE THAT THERE’S A QUESTION CONCERNING 100 FEET BOUNDARY RELIEF, WHICH HAS YET STILL TO BE ANSWERED, AND BASED ON COUNSELS FOR THE APPELLANTS OWN ADMISSION, THERE SEEMED TO BE SOME CONFUSION THERE, AND BASED UPON THIS, MR. CHAIRMAN, I MOVE THAT WE SUPPORT THE ZONING ADMINISTRATOR, IN THE FACT THAT THE APPLICATION IS INCOMPLETE. ALSO, THAT THE SUPPORT OF THE ZONING ADMINISTRATOR’S DETERMINATION OF WHETHER THIS FACILITY OR THIS STRUCTURE NEEDED CERTIFIED SEWAGE DISPOSAL IS NOT APPEALABLE TO THIS BOARD. IT’S APPEALABLE TO ANOTHER BOARD, THE TOWN BOARD OF HEALTH., Introduced by Charles Abbate who moved for its adoption, seconded by Allan Bryant: Duly adopted this 16 day of February, 2005, by the following vote: th MR. HAYES-I’d like to add to that motion that the support of the Zoning Administrator’s position that the determination of whether this facility or this structure needed certified sewage disposal is not appealable to this Board. It’s appealable to another Board, the Town Board of Health. I think that’s an important aspect of the appellant’s position. You don’t think so, Chuck? MR. ABBATE-Let me say this. I am of the opinion, based on several references that I have, that an individual may appeal a decision by not only the Zoning Administrator but by the Building Inspector as well, and if you want the reference, I can give it to you, but I don’t want to make that a big argument. Your position, there’s logic to your position. I’m not going to object to it, but I have to be honest and put on the record exactly how I feel. MR. HAYES-Okay. Does everyone understand the motion as it was made? MS. RADNER-The motion was made by Mr. Abbate. The proposed amendment wasn’t added to it, so it’s just Mr. Abbate’s motion that’s up for a second at this point. MR. HAYES-Does then everyone understand the motion as it was made then? MR. BRYANT-I understand the motion, Mr. Chairman, but I do agree with your position relative to the redirection of this Appeal, if they so desire to appeal. MR. MC NULTY-I’ll agree, too. I think that ought to be in there. MR. HAYES-All right. I think, if you don’t mind, Chuck, we’ll amend the motion as I’ve asked, and therefore, does everyone understand the motion as it was amended? MR. ABBATE-No, I don’t mind, and I would agree to that. I have no problems with it. It’s just a question of opinion, that’s all. AYES: Mr. Bryant, Mr. Abbate, Mr. Underwood, Mr. McNulty, Mrs. Hunt, Mr. Urrico, Mr. Hayes NOES: NONE ABSENT: Mr. Stone MR. HAYES-The Appeal is denied. MR. MORGAN-May I ask for a clarification only? Because there’s some confusion, I’ll explain why I’m asking for this clarification. If I understood your motions collectively, you’re finding that this was improperly before the Board. I’m not trying to put words in your mouth. I’m simply seeking some clarification. 12 (Queensbury ZBA Meeting 2/16/05) MR. HAYES-My understanding of our motion is that the Zoning Administrator acted properly in the way that he interpreted the procedure, in this particular case, and that this is not, that based on the decision this is not appealable to this Board, the issue that’s under contention. MR. MORGAN-Okay, because that comes up when we’re now dealing with an incomplete application. It also deals with the fact that the County Planning Board, as it was transmitted to them, which we now agree is incomplete, acted to deny, which would require further action upon this application to be a super majority, but if it’s inappropriately before this Board, it’s a different matter. MR. BROWN-Well, I think the Area Variance application is appropriately before the Board, if that’s what your question is. Is the appeal of the requirement for a septic system appropriately before this Board? I think the Board has voted no, that it’s not. MR. MORGAN-But our understanding of our discussion to the Chairman initially was that if you found that it was inappropriately before the Board, that ended our presentation tonight, because the second part of this refers to now what you’ve identified as an incomplete application. MR. BROWN-Correct. MR. MORGAN-Which we normally would have asked the Board to table so we could respond to the County’s concerns, but if it’s incomplete. MR. HAYES-You raise an interesting procedural question, and I understand where you’re going with this. I would have to ask the Staff. I’m not sure if our actions have a necessary implication into County actions. Does that retroactively eliminate that decision because it never should have been made? MR. BROWN-No, it does not. MR. HAYES-Okay. That’s the question that I have. MR. BROWN-That’s a referral. We made a referral to the County Planning Board. They made a recommendation on how they think the Town should handle this application, and once it becomes complete and before this Board, then you need to take that County recommendation into account when you make your decision. MR. MORGAN-I would disagree respectfully because we’re not, you’re dealing with an incomplete application. If the Salvadors come back to this Board, having satisfied the issue of the sewer and the other concerns that are expressed in the County letter and anything that your Staff presents to the Salvadors, it meets those concerns, you then have a complete application that should be re-referred to the County. MS. RADNER-If I may, that’s not properly before this Board tonight. That’s really not a proper discussion for tonight. MR. MORGAN-I think it’s a discussion because of the confusion. MS. RADNER-If you want to supplement your application, you certainly may do so, and if you believe, after you’ve supplemented your application, that some other action should be taken on it, that’s really for you to decide then, but not this evening because that’s not before this Board. MS. GALVIN-Well, I believe it is before this Board because the next matter is the application on the Area Variance which, given this decision on behalf of the applicant we’re requesting any discussion or consideration of that matter be tabled. 13 (Queensbury ZBA Meeting 2/16/05) MS. RADNER-We’re not even getting there, though, because they’ve upheld the determination that the application is incomplete. So it’s not on the agenda tonight. MR. HAYES-Right. We have a balancing test associated with this, on a State law, as you know, and nowhere on that application does it refer to our influence on the County or whether that was. MR. MORGAN-I wasn’t saying that, but. MR. BROWN-Yes, so there won’t be any discussion or decision based on that application tonight. So it’s not going to go anyplace. It’s not going to go backwards or forwards. MR. HAYES-Right. MR. MORGAN-If and when it’s deemed complete, you would refer it normally to the County. MR. BROWN-We can discuss that, sure. MR. MORGAN-Okay. MR. HAYES-All right. Thank you. I mean, it was discussed, and that’s what’s important. So thank you for coming. All right. Based on the results of Appeal No. 3-2005, I’m assuming that you’re withdrawing, at this time, Area Variance No. 3-2005? MR. MORGAN-Yes, that’s correct. MR. HAYES-Okay. Thank you. MS. GALVIN-We’re asking that it be tabled until we get an opportunity to have the (lost words) completely to satisfy this incomplete status. MR. HAYES-All right. So we can table it. AREA VARIANCE NO. 3-2005 SEQRA TYPE II JOHN, JR. & KATHLEEN SALVADOR OWNER(S): JOHN SALVADOR, JR. ZONING: LC-42A LOCATION: 2030 STATE ROUTE 9L APPLICANT PROPOSES CONSTRUCTION OF A 120 SQ. FT. HUNTING AND FISHING CABIN. APPLICANT REQUESTS RELIEF FROM THE FRONT, SIDE, REAR AND SHORELINE SETBACK REQUIREMENTS. WARREN COUNTY PLANNING JANUARY 12, 2005 ADIRONDACK PARK AGENCY YES LOT SIZE: 0.19 ACRES TAX MAP NO. 252.00-1-91 SECTION 179-4-030 JAMES MORGAN & SHIELA GALVIN, REPRESENTING APPLICANT, PRESENT MOTION TO TABLE AREA VARIANCE NO. 3-2005 JOHN SALVADOR, JR., Introduced by Paul Hayes who moved for its adoption, seconded by Joyce Hunt: For up to 90 days, so that the application can be deemed complete by Staff, to the point where it can be reviewed by this panel. Duly adopted this 15 day of February, 2005, by the following vote: th AYES: Mrs. Hunt, Mr. Urrico, Mr. Bryant, Mr. Abbate, Mr. Underwood, Mr. McNulty, Mr. Hayes NOES: NONE ABSENT: Mr. Stone 14 (Queensbury ZBA Meeting 2/16/05) MR. HAYES-Thank you. AREA VARIANCE NO. 5-2005 SEQRA TYPE II PETER D. OSGOOD OWNER(S): PETER D. OSGOOD ZONING: SFR-1A LOCATION: WEST MOUNTAIN ROAD APPLICANT PROPOSES CONSTRUCTION OF 1,605 SQ. FT. TWO-STORY SINGLE-FAMILY DWELLING WITH A 484 SQ. FT. ATTACHED GARAGE. RELIEF REQUESTED FROM FRONT, SIDE, AND REAR SETBACK REQUIREMENTS. CROSS REF. AV 21-2004, BP 92- 628 WARREN COUNTY PLANNING 2/9/05 LOT SIZE: 0.37 ACRES TAX MAP NO. 295.10-1-25 SECTION 179-4-030 PETER D. OSGOOD, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 5-2005, Peter D. Osgood, Meeting Date: February 16, 2005 “Project Location: West Mountain Road Description of Proposed Project: Applicant proposes construction of a 1,605 sq. ft. two-story single-family dwelling with a 484 sq. ft. attached garage. Relief Required: Applicant requests 6.5 feet of relief from the 30-foot minimum front setback requirement, 3.9 feet of relief from the 20-foot minimum side setback requirement, and 8.6 feet of relief from the 20-foot minimum rear setback requirement, per § 179-4-030 for the SFR-1A Zone. Parcel History (construction/site plan/variance, etc.): AV 21-2004: 03/24/04, front, side and rear setback relief for a 2,263 sq. ft. two-story single family dwelling. BP 92-628: 10/07/92, demolition of residence. Staff comments: The applicant proposes to construct a 1,605 sq. ft. two-story single-family dwelling on a pre-existing nonconforming parcel. Due to the size and shape of the parcel, setback relief is required on all three sides for the dwelling proposed.” MR. MC NULTY-“Warren County Planning Board Project Review and Referral Form February 9, 2005 Project Name: Osgood, Peter D. Owner(s): Peter D. Osgood ID Number: QBY-05- AV-05 County Project#: Feb05-26 Current Zoning: SFR-1A Community: Queensbury Project Description: Applicant proposes construction of 1,605 sq. ft. two-story single dwelling with a 484 sq. ft. attached garage. Relief requested from front, side, and rear setback requirements. Site Location: West Mountain Road Tax Map Number(s): 295.10-1-25 Staff Notes: Area Variance: The applicant proposes to construct a 1,605 sq. ft. two-story single dwelling with a 484 sq. ft. attached garage. The information submitted indicates the dwelling will be located 23.59 ft. from the front where 30 ft. is required, 16.11 ft. from the side property line where 20 ft. is required, and 11.46 ft. from the rear property line where 20 ft. is required. The plan shows the location of the proposed dwelling on the parcel, where the parcel is a triangle piece. Staff does not identify an impact on county resources based on the information submitted. Staff recommends no county impact. County Planning Board Recommendation: No County Impact” Signed by Bennet F. Driscoll, Warren County Planning Board 2/15/05. MR. HAYES-Thank you. Please identify yourself for the record. MR. OSGOOD-I’m Peter D. Osgood. MR. HAYES-Is there anything you’d like to add to your application? MR OSGOOD-On March 24, 2004, I was granted an Area Variance, but I had originally asked for a 2200 square foot house, and missed that vote by one, or missed that table by one, and then I had a fall back plan for a 1300 square foot house, and it was unanimously approved, but since then, I’ve changed my mind and decided that it was just too small for the family that I have. So now I’m asking for approximately 300 square feet more of a house. MR. HAYES-And that total of that dwelling will now be? MR. OSGOOD-It would now be 1605. MR. HAYES-So that’s 300 square feet larger than your original approved application? 15 (Queensbury ZBA Meeting 2/16/05) MR. OSGOOD-Just shy of 300. The original one was 1352. MR. HAYES-Okay. Thank you. Are there any questions of Mr. Osgood? MR. ABBATE-Yes, I do, Mr. Osgood. This is a pre-existing, nonconforming structure. Is that not correct? MR. OSGOOD-That’s correct. MR. BROWN-It’s a pre-existing lot. MR. ABBATE-I’m sorry about that. Thank you. I’ll try it all over again. This is a pre-existing nonconforming lot. Is that correct? MR. OSGOOD-That’s correct. MR. ABBATE-Okay, and as I read the relief that you’re requesting, you’re requesting 6.5 feet from the 30 foot minimum, 3.9 from the 20 foot minimum, and 8.6 from the 20 foot minimum, and this is a single family residence, 1-A zone description. Show me where I’m wrong when I feel that this is an exorbitant amount of relief? Convince me where I’m wrong. MR. OSGOOD-Well, if I could convince you in this way. The lot, the way it sets, that picture doesn’t reflect the frontage very well, the road frontage. Most of the space that I’m asking for is on the sides that are in the back yard, but there’s no houses that are really close to that. So most of it’s in their back yard, so as you look at it, it’s not like I’m right next to somebody’s house or a structure of any kind. MR. HAYES-Does that answer your question, Chuck? MR. ABBATE-Yes, the first part of the question. I just have a second one. It’s very easy. Am I interpreting this correctly that you’re requesting a 1605 square foot two-story single family dwelling, in addition to a 480 square foot attached garage, or that’s included in? MR. OSGOOD-No, that’s included in the 1600. MR. ABBATE-That’s included in the 1600. MR. OSGOOD-That’s correct. MR. ABBATE-Okay. Thank you very much. That answers my question. MR. BRYANT-I have another question. It’s actually directed to Staff. The applicant mentions an approval of an Area Variance for 1300 and something. It’s not in the parcel history. MR. UNDERWOOD-Area Variance No. 21-2004. MR. BRYANT-21-2004. That’s for 2200 square feet. MR. MC NULTY-That was the original request. MR. OSGOOD-That was the original, and then I missed that by one vote, then I had the 1352 square foot residence as a backup. MR. HAYES-Right, that’s a typo. MR. OSGOOD-Right. 16 (Queensbury ZBA Meeting 2/16/05) MR. ABBATE-I recall that. MR. OSGOOD-That is a typo on this agenda. MR. HAYES-Yes, we did not approve the 2200 square foot. MR. BROWN-Yes, I just think, for clarity here, I’m just looking at the plans that were in the application. The house plus the porch is 1605, plus a 484 square foot garage. MR. BRYANT-Okay. So that’s not included in the 1605. MR. BROWN-So it’s roughly 2100 total, including the garage. MR. ABBATE-Well, that was my original question. So it’s not 1600 square foot. It’s 2100 and something. MR. BROWN-Including the garage. MR. ABBATE-Right. Well, that was my original question. MR. HAYES-Do we generally include garages in house square footages? MR. ABBATE-Because I asked you if the 1605 square foot two story single family dwelling includes the 484 square foot attached garage. MR. OSGOOD-Well, it says unfinished here in the plans. MR. ABBATE-Yes, but now we’re talking about 2100, approximately. Now it’s not really 1605 square foot. It’s 2100 approximately square feet. MR. BROWN-The house and the living space is 1605. We don’t generally count garages. MR. ABBATE-Right. Okay. So now I know we’re really talking, although it may not be living space, nonetheless it still includes a total of about 2100 square foot. Thank you. MR. BRYANT-A question to the applicant. Your 1300 square foot house, was it 1300? MR. OSGOOD-That’s correct. MR. BRYANT-Well, what kind of relief were you looking for then? MR. OSGOOD-That I was looking for, I have an original map here from that. Approximately four feet in the rear of the lot. MR. BRYANT-As opposed to, what? MR. OSGOOD-As opposed to 11. MR. HAYES-Do we have the old relief, Craig, by any chance? MR. BROWN-I do have the old application here. The relief was seven, almost eight feet from the front setback, 11 feet from one of the sides, and 13 feet of relief from the rear setback, was the original proposal, which was ultimately denied, and then there was a fall back position to a much smaller house, which was probably on the order of about four feet, front, back and sides. MR. HAYES-Minimal, then, probably. MR. BROWN-It was much less. 17 (Queensbury ZBA Meeting 2/16/05) MR. HAYES-Okay. Thank you. MR. BROWN-Yes, four feet in the rear, less than one foot on the side, and less than one foot in the front. That’s what was ultimately granted. MR. HAYES-That’s good work, thank you. MR. BRYANT-And when you say that the house was too small, that was the one that was approved? MR. OSGOOD-After much debate, we decided that it was just going to be too small. So that’s why I’m here today. MR. BRYANT-What was different about it? MR. OSGOOD-Well, it was a two story house with no garage. Of course the floor plan was smaller. It just, I think the house that I’m proposing tonight would look much better in the layout of the area. MR. BRYANT-Yes, but, that’s not what I’m asking. I’m asking you, specifically, what was the difference in the structure of the house. You have less bedrooms. Because you still could add the 400 foot garage, coming on to the 1300 foot. MR. OSGOOD-The original house was three bedrooms. This was four, and I have three children. So I need the fourth bed. MR. HAYES-Are there any other questions for the applicant at this time? MR. URRICO-The setback to West Mountain Road, is that where the garage would be located? MR. OSGOOD-That is. MR. URRICO-And is there any possibility of bringing that back a little bit towards the building? MR. OSGOOD-Not without asking for more in the back. Is that what you’re asking me? MR. URRICO-No, I’m asking you can you shrink the garage? MR. OSGOOD-Not, I don’t see how I could. These are plans I’d have to order. MR. URRICO-Okay. MR. OSGOOD-This house is going to look much better in this area, if you can picture it. MR. URRICO-So the relief to West Mountain Road and the relief to your neighbor, Morgier is it, that’s caused by the garage? That’s where the garage is located? MR. OSGOOD-That’s right, and then, along with, thinking along those lines, if I put the two story house up with no garage, at some point I would be asking for a garage, once I got the house up. MR. URRICO-Asking is the key word. MR. OSGOOD-Right, that’s the key word, but I would be asking. 18 (Queensbury ZBA Meeting 2/16/05) MR. HAYES-Are there any other questions for the applicant at this time? If not, I’ll open the public hearing. Is there anyone here that wishes to speak for or against Area Variance No. 5- 2005? PUBLIC HEARING OPENED MIKE MELUCCI MR. MELUCCI-My name is Mike Melucci. I own the properties to the right of the proposed development or permit. I don’t have any real major problem with him building. The only thing I’m concerned about is, my two sons live in those houses, right to the right of this project, going north on West Mountain Road. The driveways, the only thing I’m concerned about is how far of a setback is he going to be from the road, because that’s a bad curve there, and if from the driveways, as you can see there, that’s, if that house is going to be faced closer to West Mountain Road, it’s going to obstruct the view of anybody coming out of that driveway. That’s the only concern I have. I mean, you know, I don’t want to take away from somebody building a house for their family, but, at the same time, the safety issue is my concern. I mean, I have grandchildren and children that’s going to be driving in and out of those driveways. Where is it going to be in relation to West Mountain Road, and what obstruction of view is there going to be coming from that driveway? Can I show you where I’m talking about here? MR. HAYES-I understand. There’s no issue of driveway separation because this is a pre- existing lot. Right? MR. BROWN-Correct. Our Code doesn’t address residential driveway separations either. MR. HAYES-Okay. MR. UNDERWOOD-There’s 23 and a half feet from the garage to the road, edge of the road. MR. BROWN-Actually it’s 37 feet. MR. MELUCCI-Well, and I’m not concerned about separation of driveways as much as I am obstruction of view. MR. HAYES-He’s talking about line of sight. MR. MELUCCI-Line of sight from here, see, this is Melucci. I mean, these people don’t even own this property anymore. That’s the way you’ve got it on this map. MR. BROWN-That’s the surveyor’s map. MR. MELUCCI-All right. It doesn’t make any difference. My concern is, I’m not worried about driveways, where the driveways are or whatever. My concern is obstruction of view from, even from the road, because the road starts to curve. If you come down that road, and that house is on a slant, I mean, you’re coming to a corner. I mean, it’s not a good spot. MR. BROWN-It scales 37 feet from the edge of the pavement to the front of the garage, and I’m sure Mr. Osgood could probably answer the question, you know, will he be taking down some trees and some brush to improve the visibility there when he comes back up. MR. MELUCCI-Yes, well, that’s my only concern, and on the setback, I didn’t understand the three feet. Is it three feet relief, or is it three feet to the line? MR. URRICO-It’s 16.11. MR. MELUCCI-On the right side? 19 (Queensbury ZBA Meeting 2/16/05) MR. HAYES-Yes. MR. MELUCCI-Sixteen foot relief? MR. URRICO-No, that’s the setback. MR. HAYES-That’s how far it will physically be away from the line. MR. MELUCCI-Sixteen feet from the line. MR. HAYES-Right. MR. MELUCCI-Okay. So he was asking for a three foot relief. MR. URRICO-Right. MR. MELUCCI-Yes. Other than that, I have no problems. I just, like I said, the biggest thing is the way the house is set up, as long as it’s not going to obstruct the view of the driveways and for hazardous purposes. MR. HAYES-Okay. Thank you for coming. MR. MELUCCI-Okay. MR. HAYES-Is there anyone else that would like to speak on this application? NEIL LA VIGNE MR. LA VIGNE-I’m Neil LaVigne. I live at 119 Mt. View Lane. I have owned the property since the early 70’s. I built a house in ’77. So I’m familiar with that corner. We, in the last, since 1978, we’ve had power poles, may I turn around and go up to the screen and show you? MR. HAYES-Bring the microphone with you, though, sir. MR. LA VIGNE-I will just show you what power poles I’m talking about. This one right here. That power pole right there has probably been taken out four or five times. MR. HAYES-Please let the record identify that a pole to the south of the property is what he’s pointing to on the map. MR. BROWN-To the south of West Mountain Road, yes. MR. HAYES-Okay. Thank you. Okay. MR. LA VIGNE-In the last 25 years, I’ve got to believe there’s probably as much as 50 accidents that occurred in that corner, high speed accidents, drunks taking power poles. They’ve taken the power pole off the corner of my property. As a matter of fact, if you’re familiar with my property, I have a berm out front, and the reason the berm is there, I had a guy going 75 miles an hour come in my yard upside down. MR. HAYES-Okay. MR. LA VIGNE-The gentlemen across the road, again, I’m going to walk up and turn around and describe the lot as it is. This little house, that house is approximately 1100 square feet. Now he’s proposing a 2200, ground space. I’m not going to talk about living, now, I’m talking the ground space. Now that lot is a 3.7 lot. That’s West Mountain Road, Mountain View Lane is a road by use. Now 3.7 means to the center of the road. You’ve got to have 30 feet of right of way from the center of the road back, as an easement for the road for the County to use. There’s 20 (Queensbury ZBA Meeting 2/16/05) no way that there should be a house on that lot. It was a chicken coop, years back, added on, DelSignores added on and added on. It was, I believe, condemned by the Town of Queensbury. Am I right or wrong? MR. BROWN-I have no idea. MR. HAYES-It shows a demolition permit, but we do not know what the nature of that was. MR. LA VIGNE-That I believe with the Health Department and the Town of Queensbury condemned that land because it was a chicken coop that they used as a house. MR. HAYES-Okay. MR. LA VIGNE-Now they classify it today as a building lot. Well, taxation wise, and in the past, as it is, we’ve done some stupid things in West Glens Falls. We classify tar paper shanties with cardboard boxes over in back of, if you want to call them. I don’t believe, with all the accidents and so forth, that there should be a house built on that corner. We turn around, we, the community, the property next door is Brooks. They deny, the State to turn around and build a County home for the similar facts what I’m stating at this time, it’s such a dangerous intersection, and that land is going, should be, will be approved or go into the County to basically, they have to widen that intersection. It is a, one of the most terrible intersections in the Town of Queensbury for accidents. I have heard that they’ve considered, that they might consider going a four way stop there to prevent some of the accidents. Thank you very much. MR. HAYES-Thank you for coming. Is there anyone else that would like to speak on this application? If not, any correspondence? MR. MC NULTY-Yes. One piece of correspondence. This is from Mandy Hobbs-Dieffenbach. It says, “I will be unable to attend the February 16, 2005 public hearing related to the above noted property. I continue to object to the construction of a dwelling on property based on the size of the property and the perceived infringement that any relief to sides and back that would cause to current property owners. I appreciate your consideration of my objection and if I can offer any further information prior to the meeting please feel free to contact me. Sincerely, Mandy J. Dieffenbach” MR. HAYES-Mr. Osgood, have you purchased this property, or are you under contract? MR. OSGOOD-I have purchased it. MR. HAYES-Okay. MR. OSGOOD-I do own it. As far as the visibility, I think it will improve, because right now there’s trees on that lot. So that’s, I believe, will improve any visibility issues. I can’t say it’s going to make it 100% better, but I think it will improve it, with those trees gone, but as far as building a home, it’s going to happen, whether the Board agrees with me that this house would be better or the other one. The Board has approved one, a house already. So, I mean, I think he’s a little late and he should have been here at the first meeting and then. MR. HAYES-Okay. Are there any questions that the Board has for the applicant based on what was brought up during the public testimony? If not, I’ll close the public hearing. PUBLIC HEARING CLOSED MR. HAYES-And I’ll ask the Board to state their positions. I guess it’s time to start with Allan. MR. BRYANT-Thank you, Mr. Chairman. I’m going to address one of the criteria that we’re required to review on every application, and that’s relative to feasible alternative, and I believe that you have a feasible alternative in that you already have an Area Variance to build a home 21 (Queensbury ZBA Meeting 2/16/05) on that lot. I agree with you when you say that a house is going to be built on that lot, because we really can’t deny a taxpayer the use of his own property, okay, but in my view, the feasible alternative is the variance you already have, and that’s where you ought to go. So my position is to deny this application. MR. HAYES-Thank you. Chuck? MR. ABBATE-I could be very easily swayed on this. I think Mr. Bryant has made a good point, that there may very well be a feasible alternative. However, it would appear to me, while there certainly should be concern, that gentleman that was just up here with safety matters, if I’m not mistaken, somebody correct me, I think there’s about 30 some feet that will be available on that road to be able to see around the bend or something like that. Am I correct on that? Okay. Everyone should have the right to have a home built that they would desire, they could afford or desire and build anyway, even though they can’t afford it. MR. HAYES-Do you want to wait, Chuck? MR. ABBATE-Yes, do you mind, gentlemen? Because I really think I’d like to wait on this. I mean, this is an important decision for him. MR. OSGOOD-Can I just add something? I wish I had a picture of the original application, because if you saw that house compared to that house. MR. ABBATE-I was here. MR. OSGOOD-And just try to put the image on that lot, I’m sure you would say that this one looks much better. MR. ABBATE-For your information, I was here, and I recall all of that and everything else. To be fair to all the parties, may I wait, please? MR. HAYES-You absolutely can. James? MR. UNDERWOOD-I think we have to consider several points here in regards to this request this evening. We previously did allow them to alter their original application, and it came in at 1300, and 1600 square feet, I mean, a 300 foot gain is not that great when you really consider it, and I think in a fall back position, at the first meeting there, the applicant pretty clearly suggested that, you know, he did not include a garage in the design. This one does include a garage in the design, and he said, he also informed us that he probably would come in and request a garage, and I think that we have granted garages. Frankly, I would rather see the project as he has proposed it, because I think it better fits with the lot. It’s a very odd shaped lot. It’s a very small lot, and to meet the setbacks would be very difficult whether you had a garage or didn’t have a garage. The changes in the amount of setback relief are not that great, when compared to what we granted previously, and I think that the concerns of the nearest neighbor who would be most affected about his sight line, the removal of those trees and the increase in the view shed, as far as when you’re approaching West Mountain Road and that right hand turn there, probably is going to change things. I think that we as a Board also could send a recommendation, even though that’s not our domain to do that, to the Town Board, and obviously there are places in Town that do need four way stops. This seems to be one of those ones. MR. OSGOOD-I would definitely appreciate that. MR. UNDERWOOD-And I don’t think it does us any harm to send that on to the powers that be, so I would be in favor of the approval of this application as it’s been submitted to us. 22 (Queensbury ZBA Meeting 2/16/05) MR. HAYES-Okay. Thank you. Ma’am, did you want to speak on the record? I mean, we certainly can reopen the public hearing. We’re here to hear all. All right. Please come forward. You need to identify yourself, though. I’m going to reopen the public hearing. PUBLIC HEARING RE-OPENED GLENDA ROGERS MS. ROGERS-I don’t usually speak. MR. HAYES-I understand. Just do your best. MS. ROGERS-Okay. My name is Glenda Rogers, and I live right on the corner of Bonner. I’ll be the first house that you’ll see, and let me tell you something, we’ve lived there 26 years. I’ve had cars coming off from West Mountain Road, right into our house. They’ve taken the cement guardrails right down. They’ve taken our clotheslines down. They’ve come right in and I’m telling you, it’s a very, very bad corner, and no one will know what I’m talking about unless they’ve experienced it, and believe you me, you’re going to. You have no idea. It’s a bad, they come up over that Gurney Lane. I’m telling you, there’s so many people that are drunk, and they take that corner. It’s bad. I would not ever, ever consider putting a house on that land. Not only that, you’ve got little children? It’s a bad road. It’s a bad road, and when you drive out of your garage, are you going to be coming down? How are you going to have it? Are you going to have it a round driveway? You’re going to have a rough time getting in and out of there. It’s dangerous. It’s very, very bad. MR. HAYES-I understand. MS. ROGERS-That’s all I’ve got to say. MATT REYNOLDS MR. REYNOLDS-Matt Reynolds, Ridge Knolls in Queensbury. The concern that I’m hearing here is for the general safety, and I don’t think a man should be punished for building on his own property, because of the way other people drive. If there’s an issue with the four way stop, or if something needs to be done, that’s a separate issue. A man should not be denied building a house on his own property, because there’s a safety concern from other people driving. As long as he meets what needs to be done, Mr. Melucci stated he was concerned about the view. If Peter is going to remove trees on the road front, that’s definitely going to increase the view, and there should be no reason why he can’t build a house on property that he owns. The only issue is a safety issue with people that are unrelated to that property. That’s a safety issue that should be taken up with the Highway Department or a different area to make other changes at that corner. That’s it. MR. HAYES-Thank you. Is there anyone else that would like to speak on the record? If not, I’m going to close the public hearing permanently. So, does anyone else want to speak on this application? MR. LA VIGNE-May I give another answer, a real short one? MR. HAYES-I think you were timed out on your original application. So I think in fairness to the applicant, you had your say. So therefore I’ll close the public hearing. PUBLIC HEARING CLOSED MR. HAYES-And we’ll continue the poll of the Board members. I’m up to Chuck. MR. MC NULTY-Okay. I’ll agree the traffic is a problem at that corner, but I’ll also agree that it’s not germane to the issue before us. The real issue is the house and the setbacks. If I had my 23 (Queensbury ZBA Meeting 2/16/05) druthers, I’d say that was an unbuildable lot, but as we handled it last year, and as somebody said, it’s pretty difficult to tell somebody they cannot build on their lot and the applicant has a variance already in place that would allow him to build a small house on that lot. The increase in living area of the house that we’re talking about is something on the order of 300 square feet. However, the previous application that was approved was for a house without a garage. So now we’re looking at an increase, really, of 700 to 800 square feet, and I’m going to come down where Mr. Bryant, I think there’s an alternative here that doesn’t deprive the applicant of a reasonable use of his property, the alternative that’s in place, the variance from last year, I don’t believe causes a great deal of detriment to the community or the neighborhood. I believe this particular proposal goes up a notch on detriment to the neighborhood, because I think it’s going to end up being too much house for the lot. Therefore, I’m going to be against this proposal. MR. HAYES-Thank you. Joyce? MRS. HUNT-I think the only issue we have to consider here is the increase in the size of the house and the setbacks, because the traffic problems have already been addressed with the variance that was given, and to me it doesn’t seem that there’s significant changes. I don’t think it’s going to be undesirable to the neighborhood. While it is feasible for him to go with the first plan, I can understand his reasons wanting to go on with this, and I would be in favor of it. MR. HAYES-Okay. Mr. Urrico? MR. URRICO-At first glance, I think I was satisfied with the ruling we made last year, both of them, that the first application you were asking for too much relief, and I think the size house that we came up with was the right house for that lot, and I’m still in agreement with that. I think that’s where I want to stay. MR. HAYES-You’re not in favor of this application? MR. URRICO-I’m not in favor of this application. MR. HAYES-Okay. All right. Chuck, I guess it’s time for you to. MR. ABBATE-Okay. All right. Thank you. I think I’ve reached a position here, and I’ve reached the position based upon what Mrs. Rogers had to say. We, in fact, have an obligation to address safety, whenever we decide to grant a variance. We also are charged with attempting to determine whether any kind of undesirable change will be produced if we grant this particular variance, and also we take into consideration, will there be an adverse impact, physical or environmental, on any decision that we make, and I am quite concerned about some of the comments made by the folks who are going to be immediately impacted if we, in fact, approve this variance. Mr. Bryant has indicated that there is a feasible alternative, and based upon what I’ve heard since my initial approach to make a decision, from the public, I, too, believe that there is a feasible alternative, and I believe that addressing adverse impact, safety impact, undesirable change, is part of the criteria for deciding whether or not to grant such a variance. So, based upon what I’ve heard, Mr. Chairman, I could not support the application. MR. HAYES-Okay. Thank you. Well, I’d like to make my comments in a couple of parts. We had some emotional testimony as to the relatively dangerous nature of that intersection, in regards to West Mountain and Bonner Drive, and to the unique nature of that thing. As luck would have it, I grew up on Bonner Drive. So I’m very familiar with what you’re alluding to, but considering that fact, I think the point was well made in this particular case, that it’s difficult to hold traffic problems, if you will, or designs, or these type of issues against a property owner that has a, whether right or wrong, has a pre-existing, nonconforming lot, but it is a lot, and that’s not going to be changed by this panel or by the nature of the traffic conditions. It’s not part of that consideration. I think, in this particular case, the changes that Mr. Osgood has proposed would not, in my opinion, change my mind as to this being too much to the point that it’s a detriment to the neighborhood in this particular case. I think that Jim pointed out that it’s 300 square feet more. You’ve given me a reason, as to the number of 24 (Queensbury ZBA Meeting 2/16/05) children that you have and stuff. So the benefit to you is understandable, and I think I can appreciate that in this particular case. I think Mr. Melucci’s point is very well taken. There isn’t going to be a motion for an approval, but if there was, we would have to take into consideration, you know, specific eliminations of trees and such, so that his sons could have a line of sight that made it safe. I would not be in favor of anything that didn’t do that, but in this particular case, it appears that there’s four no votes, in terms of this balancing test, in terms of this property, the application that you’ve submitted. MR. OSGOOD-Can I just add that it’s my fault for not having this plan ready at the first meeting, because I know you would have approved it. That’s just my fault for not doing that. Because I lost by one vote the last time, and that was for a house that was 2300 square feet. So, I mean, it’s my fault. MR. HAYES-Thank you for your comments. MR. OSGOOD-I don’t see anything, nothing’s really changed, if you look at the numbers, but in any case, do you have to go through each member? MR. HAYES-No, actually I have to ask you to stop, in the sense that we don’t normally continue to question the applicant once the Board members have been polled. We go to a motion. MR. UNDERWOOD-Jaime, can I make one more suggestion to the Board members? I mean, one thing that should be considered is the fact that, you know, he could build his 1300 square foot one as we had previously granted relief for. He probably is going to come in and ask for a garage. I can’t imagine he’s not. He’s already mentioned that fact, and I think that, you know, incorporating the garage into this design does make more sense, from the view point of having a separate structure which is going to be way too close to the property lines, comparatively, and I think that, you know, we could put a stipulation in that no further additions or constructions be done on the property in the future, you know, to preclude that happening. So, I mean, that’s something to be considered. MR. ABBATE-Yes, you know, Mr. Chairman, too, even though I voted against the application, you know, we have a standard of fairness here, and perhaps the applicant, before we vote, may wish to table it and come back with what we consider to be a feasible alternative. So that your request is not disapproved off hand. MR. OSGOOD-What 100 square feet more? MR. HAYES-I guess they’re referring to the garage. MR. ABBATE-Yes. I’m trying to give everybody an opportunity. MR. OSGOOD-I’m just looking at this original house compared to what I have proposed today, and if the Board members would look at it, I mean, if you look at this house, compared to this new one, it’s just, the new one works much better in that lot, but. MR. HAYES-Okay. I understand your frustration, Mr. Osgood, but at this point, the question has been asked whether you wish to table this application and come back with a feasible alternative? MR. OSGOOD-No, I don’t. No, I don’t. MR. HAYES-Okay. All right. Thank you. Then, I guess someone needs to make a motion. MR. OSGOOD-I will ask the Board one more question. The original application for Area Variance that was granted is only good for one year, is that correct? MR. HAYES-That’s true. Yes. 25 (Queensbury ZBA Meeting 2/16/05) MR. OSGOOD-Could I get an extension on that? MR. HAYES-I don’t think that’s a problem. I’ll certainly poll the Board members, but I don’t think that’s a problem at this particular time. MR. OSGOOD-Thank you. MR. URRICO-It has to be resubmitted. MR. HAYES-No, it does not. We can give it a one year extension based on the votes we have on the Board. MR. BRYANT-Technically all he needs to do is apply for a building permit before. MR. HAYES-Right. MR. BRYANT-You know, and whether he builds, you’ve got a year to build after that. So you’ve got another year. MR. OSGOOD-Well, my year will be up March 24. th MR. BRYANT-Yes. If you apply for a building permit prior to that. MR. OSGOOD-Well, I mean, that’s a month away. I’ve got to order these plans. MR. HAYES-All right. So you’re not prepared to do that? MR. OSGOOD-No. MR. HAYES-Okay. That’s all we need to know. I mean, Allan’s point is good, but if he’s not prepared to do that, then it’s not an option, because he’s absolutely correct, if he applied for a building permit, he would have a year to finish that under that permit, I believe. MR. BROWN-Correct, and if the Board’s not comfortable proceeding with an extension tonight, the approval date was March 24. It’s certainly something we could get on a March agenda th meeting, if you want it on a formal agenda. MR. HAYES-Well, we should take that poll. There’s no point in crowding our own agenda, though. I mean, if people are comfortable with it, we can take care of it right now. MR. BROWN-You can certainly do it tonight if you want to. MR. URRICO-I don’t have a problem with extending it. MR. HAYES-Well, I think at this particular time we need to address the application at hand, and then we’ll deal with the extension formally. I guess I need someone to make a motion. MR. UNDERWOOD-I can make one to approve it, and then they can just vote it down, if they want to do it that way. MR. MC NULTY-But then you’ll have to do another one to disapprove it. MR. BRYANT-Then you need one for a denial. MR. HAYES-Do you want to go, Chuck? MR. ABBATE-I’ll do it. Okay. 26 (Queensbury ZBA Meeting 2/16/05) MOTION TO DENY AREA VARIANCE NO. 5-2005 PETER D. OSGOOD, Introduced by Charles Abbate who moved for its adoption, seconded by Charles McNulty: West Mountain Road. Cognizant of the fact that the ZBA has the task of balancing the benefit of the variance against impact on the area, and also we have to address and spell out five statutory criteria that we have to following in deciding whether to approve or not. In making my motion to disapprove, I believe that if we were to approve this motion, there would be, in fact, an undesirable change, a safety change, a concern by the neighborhood based on testimony this evening by the public, and in my opinion, Mr. Chairman, it would be a detriment to those folks living there as well as to nearby properties if we were to grant this Area Variance. Testimony, verbal testimony, the comments from the interested parties, in my opinion, raise some very serious questions as to whether or not there would be an undesirable change to the community, and more specifically, a detriment to nearby properties, if you will. The other thing that we have to address is the benefit. Can the benefit sought by the applicant be achieved by some other method that is feasible for the applicant to pursue. In my opinion, I believe there would have been, if you will, an out, or at least a door of opportunity could have been opened by the applicant to perhaps research this possible feasible alternative, and he chose not to. Is the requested variance substantial? In my opinion this request is neither significant or extensive, and either way it shouldn’t have an impact, even if it was negative, on the application. Self- created? Well, you know, you may call it self-created or you may call it not self-created, but that in itself, however, should not necessarily be fatal to granting of a request of this type for a variance. I might add, too, to the credit of the appellant, it should be noted that there was no attempt at dissimilation or camouflage of information. He was straight up front with us, and I think that shows to good character of the individual. There was no attempt at misdirection of facts. That also shows good character of the individual, but in spite of that, Mr. Chairman, and fellow Board members, I must move that we disapprove Area Variance No. 5-2005. Duly adopted this 16 day of February, 2005, by the following vote: th AYES: Mr. McNulty, Mr. Urrico, Mr. Bryant, Mr. Abbate NOES: Mrs. Hunt, Mr. Underwood, Mr. Hayes ABSENT: Mr. Stone MR. HAYES-The variance is denied. Sorry. Thank you for coming. MR. MC NULTY-Do you want to do the extension for him? MR. HAYES-Yes, I’d be happy to do that at this time. MR. ABBATE-I don’t have a problem with that. MR. HAYES-Do we know what Area Variance that was? MR. MC NULTY-Yes. It was Area Variance No. 21-2004, and according to my notes it was an approximately 1352 square foot home. MR. HAYES-I’ll just make a motion to whatever was approved. MOTION TO EXTEND AREA VARIANCE NO. 21-2004 PETER D. OSGOOD, Introduced by Paul Hayes who moved for its adoption, seconded by Charles Abbate: A one year extension, to permit the applicant to pursue the necessary paperwork with the Town. 27 (Queensbury ZBA Meeting 2/16/05) Duly adopted this 16 day of February, 2005, by the following vote: th AYES: Mr. Abbate, Mr. Underwood, Mr. McNulty, Mrs. Hunt, Mr. Urrico, Mr. Hayes NOES: NONE ABSTAINED: Mr. Bryant ABSENT: Mr. Stone MR. HAYES-You have your extension, sir. MR. OSGOOD-Thank you, and now anything the Board can do, as far as the addressing the safety issues, I would appreciate. MR. HAYES-I think your representative on the Town Board is here, as a matter of fact. So that’s probably where you would start. MR. OSGOOD-Thank you. NEW BUSINESS: NOTICE OF APPEAL NO. 2-2005 SEQR TYPE N/A MICHAEL J. O’CONNOR FOR PETER COFFMAN AGENT(S): MICHAEL J. O’CONNOR OWNER(S): DONALD DANIELS ZONING: MU LOCATION: 19 NEWCOMB ST. APPELLANT IS APPEALING A DETERMINATION ISSUED BY THE ZONING BOARD OF ADMINISTRATOR DATED JULY 6, 2004 REGARDING THE ALLOWABLE USES IN THE MIXED USE DISTRICT. ADDITIONALLY, APPELLANT IS SEEKING AN INTERPRETATION OF PERMITTED USES ON THE PROPERTY (SPECIFICALLY A TOWING SERVICE/OPERATION). CROSS REF. BP 99-110 C/O, SPR 59-98 LOT SIZE: 0.37 ACRES TAX MAP NO. 309.10-2-68 SECTION: MICHAEL O’CONNOR & DON DANIELS, REPRESENTING APPLICANT, PRESENT STAFF INPUT Notes from Staff, Notice of Appeal No. 2-2005, Michael J. O’Connor, Meeting Date: February 15, 2005 “Project Location: 19 Newcomb St. Description: The appellant is appealing the determination rendered by the Zoning Administrator regarding an Auto Service Use for 19 Newcomb St. Information requested: Appellant is appealing to the Zoning Board of Appeals relative to the July 6, 2004 decision made by the Zoning Administrator that the Auto Service Use (Essential Towing and Recovery) at 19 Newcomb Street is not an allowable use in the Mixed Use (MU) district. Additionally, it appears as though the appellant is seeking an interpretation from the Zoning Board regarding the allowable uses within the MU zone. Staff comments: Per § 179-16-050, Appeals: “An appeal….may be made only to the Zoning Board of Appeals within 60 days of such decision or action”. In this case the decision in question was rendered on July 6, 2004, as such this appeal is untimely. A request for interpretation of uses within a particular zoning district are typically submitted to the Zoning Administrator for a determination rather than a direct application to the ZBA. The appellant agrees that Auto Service uses are not allowable in the Mixed Use zone (see third paragraph of January 14, 2005 letter from Michael J. O’Connor). However, their position is that a towing and recovery business is not an Auto Service business; rather it is a retail business. Per §179-2- 010Definitions: Automotive, Auto or Motor Vehicle – Any use pertaining to motor vehicles and other heavy machinery. “Auto” or “automotive” may be used to describe an auto body/repair shop, automobile service station, etc. The towing and recovery of automobiles appears to clearly fit in this definition. Per § 179-4-020 Schedule of Permitted Uses: Auto body/repair shop and Automotive sales and service are not listed as allowable uses within the 28 (Queensbury ZBA Meeting 2/16/05) MU zone. These uses are specifically called out as allowable in other zoning districts and, as such, they have been specifically prohibited from the MU zone.” MR. HAYES-Thank you. Well, for members of the public that were not here or had the pleasure of enjoying the first Appeal, these matters are handled by first allowing the applicant to define their position in the Appeal. Then the Town responds with their position, and the Board makes a decision one way or the other. So, having said that, Mr. O’Connor? MR. O'CONNOR-Mr. Chairman, for the purpose of your record, I’m Michael O’Connor. I’m here representing the applicants, Peter Coffman, who is a tenant, and Don Daniels, who both are with me at the table. I’d like to address maybe first Staff’s comments as to procedurally whether we are correct in being here or not being here. We’re here because a Notice of Violation was served upon Mr. Coffman and I believe on Mr. Daniels, as to a violation of the current Zoning Code. I spoke with Town Counsel, and indicated to the Town Counsel my disagreement with the interpretation by Staff as to whether or not this particular property was in violation or not, and that it was my intention to file an interpretation or an Appeal of that determination. I understand the 60 day rule. It’s in your Ordinance. If it’s necessary, I will restart the process, and I will file for a written interpretation by Mr. Brown and then file an Appeal to that, but I think we’re just going to go around the Mulberry bush for some time, as opposed to simply addressing the issue and trying to answer it based on substance as to whether or not this Board agrees with my position or agrees with Mr. Brown’s position, and I don’t know if you want to address that first or not. MR. HAYES-I think we need to, just procedurally, you know, I mean, to get that out. MR. O'CONNOR-I would add that that is kind of like in the nature of an affirmative defense, the Statute of Limitations, and it has to be raised by the person objecting. So if the Town doesn’t object, I think we could proceed. MR. HAYES-Well, I guess, does the Town object, or do you think we should determine from the Board, Cathi, about the timeliness of it? What would you prefer that we do? MS. RADNER-Well, I believe that Mr. Brown has already said he believes it’s untimely. MR. HAYES-Okay. That’s true. MS. RADNER-That’s included in his Staff comments that he’s made to you folks tonight, and I would refer you to Section 179-16-050, which is pretty straightforward, an Appeal from an action, decision or rule by the Zoning Administrator regarding a requirement of this chapter may be made only to the Zoning Board of Appeals within 60 days of such decision or action. MR. HAYES-I have a question for Craig. MR. BROWN-Sure. MR. HAYES-Could Mr. O’Connor ask you for a written determination, and would that allow him to, in a sense, make this Appeal legally at some point in the future? MR. HAYES-Absolutely it would, and I think when the Appeal, when this Appeal was filed, it’s kind of two-fold. It asked for an Appeal and it also asked for an interpretation. So I think the interpretation also would cover the same merits of the Appeal. So even if you vote it’s untimely, I think when you go to the interpretation phase of it, you’re probably going to get the same answers anyway, but to answer your question, yes. If he requested, issue a determination, appeals that, we’re back here doing the same thing. MR. HAYES-Okay. Does everyone understand that? 29 (Queensbury ZBA Meeting 2/16/05) MR. ABBATE-Right, but I have a question for Counsel, though. He may feel differently. He may not feel that the Appeal is untimely. MR. O'CONNOR-I’m not going to argue. We’ll come back if we have to come back. I did get a letter from Mr. Brown dated February 1, 2005, which indicated that the Appeal would be heard tonight. Until I saw the Staff notes today, this is the first time I heard that they were going to raise an objection to the timeliness of it, and I would also say this. The objection or the action that we really were involved with was the papers that were filed in December. I believe they were filed on December 20, and we’re within 60 days of that date. I wasn’t personally th involved in all the history of what took place during the summer, but part, and it’s all third party conversation. As I understand it, a complaint was made, a letter was issued, people came up to the Town office building. They submitted data as to the historic use of the property, and that, to my understanding, was the last they heard of it until they got the notice of, and they thought it was settled. Now part of that I think in part has to do that there was a conference, just before Chris Round left, that he was involved with with some of the other Town Board members, and the applicant thought that we’d resolved this issue based upon the historical use of the property that we’ve shown, and then, I don’t know if early December if there was more oral conversations preceding the formal Notice of Violation or not, but we did file within 60 days of the December 20 Notice of Violation that was served. th MR. HAYES-I’m going to make a comment and then we’ll take kind of a poll vote on the timeliness issue. It would seem that if Mr. O’Connor, if Mr. O’Connor or the applicant had gotten a written determination and then failed to act upon it, and thereby his rights would have extinguished under any interpretation or any procedural thing that could be applied or done. I would think that would be a separate issue, but I think tonight we have the applicant here. We have the appellant here. We have Mr. Brown here tonight. We have Town Attorney here tonight, and if we’re going to hear this 30 days from now or 60 days from now, we can do that, but it appears that we have the important people here, and I think we’re potentially just crowding our own agenda when we can hear things and decide not to, and I’m willing to do whatever the Board thinks is. MR. BRYANT-Mr. Chairman, I just want to comment on that. I think there were some other comments in the earlier, relative to the Zoning Code and so forth and so on, and we have a Code that says 60 days. We ought to try to adhere to that. I mean, I understand the additional effort required, that other people have to come back here in 60 days. I understand that whole concept, but if we’re going to argue on the merits of the 60 day timely issue, we’re really missing the point of the entire Appeal. So I would rather just, you know, let them ask for a written determination and let’s base a real Appeal on that determination. MR. ABBATE-I disagree, Mr. Chairman, with my fellow Board member. I believe that all the parties are here, and I also believe that there is an X factor here, in that Counsel indicated tonight that he had received correspondence from the Zoning Administrator dated February of this year. MR. O'CONNOR-February 1, 2005. MR. ABBATE-And in my opinion, Mr. Chairman, that, guess what, opens the door, and gives the applicant an opportunity to present his case. After all, he was scheduled to be here. He is here, and since he’s here, I think we should hear it. MR. MC NULTY-Your response now is in response to a Notice of Violation that you received back in December? MR. O'CONNOR-Yes. MR. MC NULTY-Who sent that Notice of Violation? Did that come from Mr. Brown? MR. O'CONNOR-The Town. 30 (Queensbury ZBA Meeting 2/16/05) MR. BROWN-I did, and the Notice of Violation, what it was was an appearance ticket to appear in Town of Queensbury Court, and the merits of that Notice of Violation were that Mr. Daniels and Mr. Coffman, Mr. Daniels was permitting the ongoing use. Mr. Coffman was performing the ongoing use, without a permit. The violation doesn’t deal with the use. It’s strictly the fact that, per Code, you can’t operate a use without a permit. So we didn’t get into the use issues. It’s just strictly, procedurally, you need a CO to occupy a space and operate a business. That was the first hurdle, to get them to come in, submit an application and tell us what they want to do, and at that point we can say, this is a use that’s not allowed, and follow up on the determination we made in July, but we didn’t get to that point, they haven’t filed that paperwork yet. As far as the February 1 correspondence, that’s a public hearing notice. Every st applicant gets one. It’s not up to me to tell an appellant that they can’t bring an Appeal to the Zoning Board. If they’ve timed out, you guys have to make a decision whether you want to hear it or not. I don’t have a problem if you guys are comfortable with it, but I can’t tell them no. They’re appealing my decision. It wouldn’t be fair to them. MR. ABBATE-So you don’t, as the Zoning Administrator, you have no problem if the Board decides to hear the case, on the record, is that correct? MR. BROWN-That’s correct. I mean, I’m not making the decision. It’s up to you guys if you want to hear it. MS. RADNER-As your Counsel, I’d urge you to follow the letter of your Zoning Ordinance, which says that it’s up to the Zoning Ordinance, the Zoning Administrator, rather, to interpret the Ordinance, unless the interpretation is overturned by the Zoning Board of Appeals. The application that has been submitted by the applicant says please consider this letter an Appeal of the letter of Craig Brown dated July 6, 2004, and/or a request for an interpretation of permitted uses on the above property. That’s what their application says. So on the Appeal of the letter, it’s too late, by the wording of your Zoning Ordinance, on the request for an interpretation, it’s too early. It’s got to go to the Zoning Administrator first, and to put your Zoning Administrator on the spot tonight, to ask him to make the interpretation isn’t going to set good precedence. MR. MC NULTY-That’s about where I was going to go. The Planning Conference that I went to down in Saratoga late last month, they were making that same thing, that if a Zoning Administrator has not made a determination, then that issue is not appealable, and if he’s not defined something, then you can’t ask for an interpretation from this Board. The Zoning Administrator has to have acted first. MR. O'CONNOR-I’m willing to withdraw this and follow what Counsel has suggested, but I’m a little bit mystified, because the letter of July, to me, said that you could not do this on that property. It didn’t say come in and make an application and we will see if you can do this on that property, and Counsel has kind of paraphrased it in that term. Your notice in December said that you were citing them for knowingly allowing the continued operation of an unapproved use, and I took that as being one that was not permitted within that zone. If you’re simply saying, submit an application for this use, we’ll be up to your office tomorrow morning. MR. BROWN-Well, I guess in the continuation of that Notice of Violation it cites the section of the Code that says the unapproved use is the fact that it doesn’t have a permit. It’s not a determination of allowability in a certain zoning district. It’s the fact that it’s unapproved because we haven’t issued a zoning permit for it. That’s not to say that if they come up tomorrow and file for a zoning permit, we’re going to issue them one, because my position is still as it was in July of last year. It’s not an allowed use in that zone. MR. MC NULTY-I think there’s a flipside to this, too. While it would be convenient to hear this tonight and get it out of the way, if we do it and it’s improper, because there’s not an appealable position at this point, and we should, should we uphold the appellant? That could be an invalid decision that a neighbor somewhere down the line could challenge. 31 (Queensbury ZBA Meeting 2/16/05) MR. O'CONNOR-I strongly would object to hearing it tonight if we’re hearing it under a cloud of whether we should be here tonight. I want it to be heard on the merits. I think the merits are sufficient that the appellant’s position, we’re not saying that this particular operation is permissible in an MU zone. We’re saying it is permissible on this property. MR. HAYES-Okay, which I appreciate, but I guess there’s no really no point of getting into the merits. MR. O'CONNOR-Is the cleanest thing, do you want me to withdraw it? MS. RADNER-That would be the cleanest thing, yes. MR. O'CONNOR-I withdraw it without prejudice. That’s what a lawyer does. How’s that? MR. HAYES-Thank you. MR. O'CONNOR-Thank you. AREA VARIANCE NO. 13-2005 SEQRA TYPE II ROBERT E. SUPPLY, INC. OWNER(S): ROBERT E. SUPPLY ZONING: WR-1A LOCATION: 20 HONEYSUCKLE LANE, ASSEMBLY POINT APPLICANT PROPOSES CONSTRUCTION OF A 139.5 SQ. FT. PORCH. RELIEF REQUESTED FROM THE MINIMUM SIDE SETBACK REQUIREMENTS. CROSS REF. BP 89-288, BP 94-298, BP 98-705 WARREN COUNTY PLANNING 2/9/05 ADIRONDACK PARK AGENCY YES LOT SIZE: 0.16 ACRES TAX MAP NO. 226.19-2-32 SECTION 179-4-030 ROBERT SUPPLY, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 13-2005, Robert E. Supply, Inc., Meeting Date: February 16, 2005 “Applicant proposes construction of a 139.5 sq. ft. side porch. Relief Required: Applicant requires 8 feet ¼ inch of side setback relief from the 20-foot minimum requirement, per § 179-4- 030 for WR-1A zone. Parcel History (construction/site plan/variance, etc.): SP 8-2005: to be reviewed 02/22/05 pending this application. BP 98-705: 11/10/98, foundation replacement. BP 94-298: 06/22/94, construction of a new roof and entrance. BP 89-288: 05/12/89, interior alterations. Staff comments: The applicant proposes to construct a 139.5 sq. ft. side porch. The applicant proposes a 12’ 2 ¾” side setback for the northwest porch corner. The applicant proposes a 12’ 2 ¾” side setback for the northwest porch corner. However, the northeast corner of the porch, as proposed, is closer to the north side property line. Being the existing setbacks for the northeast and northwest corners of the dwelling are known, the northeast corner of the proposed porch was calculated to be 11’ 11 ¾”, resulting in the need for 8’ ¼” of side setback relief.” MR. MC NULTY-“Warren County Planning Board Project Review and Referral Form February 9, 2005 Project Name: Robert E. Supply, Inc. Owner(s): Robert E. Supply ID Number: QBY- 05-AV-13 County Project#: Feb05-27 Current Zoning: WR-1A Community: Queensbury Project Description: Applicant proposes construction of a 139.5 sq. ft. porch. Relief requested from the minimum side setback requirements. Site Location: 20 Honeysuckle Lane, Assembly Point Tax Map Number(s): 226.19-2-32 Staff Notes: Area Variance: The applicant proposes to construct an 18 x 7.9 sq. ft. porch addition to an existing home. The new porch is proposed to be located 12.2 ft. from the side property line where 20 ft. is required. The information submitted indicates the existing house does not meet the current zoning setback requirements. The plans show the location of the proposed porch and the house on the parcel with setbacks. Staff does not identify an impact on county resources based on the information submitted. Staff recommends no county impact. County Planning Board Recommendation: No County Impact” Signed by Bennet F. Driscoll, Warren County Planning Board 02/15/05. 32 (Queensbury ZBA Meeting 2/16/05) MR. HAYES-Mr. Supply, is there anything you’d like to add to your application? MR. SUPPLY-No. MR. HAYES-Does anyone have any questions for Mr. Supply? MR. ABBATE-I’m looking for something. The application appears to me to be so clean I’m embarrassed I can’t come up with a question. MR. SUPPLY-Thank you. MR. HAYES-Nobody has any questions at this time? If there are no questions, then I’ll open the public hearing. Would anyone like to speak on this application? PUBLIC HEARING OPENED DORIS HOPPER MS. HOPPER-My name is Doris Hopper, and I live directly across from Bob Supply, and I think his porch would be wonderful, and it wouldn’t block anybody’s view. I don’t think you’d hardly even see it, but it would be great for them. They would be able to see the lake, and it’s I think a wonderful thing. It doesn’t take away from anybody. MR. HAYES-Okay. Thank you for coming. MS. HOPPER-Thank you. MR. HAYES-Would anyone else like to speak on this application? Is there any correspondence? MR. MC NULTY-No correspondence. MR. HAYES-Then I’ll close the public hearing. PUBLIC HEARING CLOSED MR. HAYES-Do members of the Board have any further questions for Mr. Supply? MR. BRYANT-I have one question, please. Your photographs, by the way, you should be complimented on what you’ve done to the house. You’ve done quite a bit. Your photographs show a porch, covered porch on the front. How big is that porch exactly? I think it shows it on the drawing. MR. SUPPLY-It’s 14 by 7.9. MR. BRYANT-And that is not sufficient to suit your needs? MR. SUPPLY-It’s just that, when you look at the side, you don’t see the lakefront as it is right now. My mother purchased the property adjacent to the north side, and now that area is open to the lake, which would give us the reference point off the north side, all the way down that property line. MR. BRYANT-So you own the lot next to, adjacent? MR. SUPPLY-No, my mother does. MR. BRYANT-Okay, and that’s the lot that the porch is facing? 33 (Queensbury ZBA Meeting 2/16/05) MR. SUPPLY-Correct. MR. BRYANT-Okay. MR. HAYES-Okay. Are there any other questions for the applicant at this time? If not, we need to discuss it, and it’s time to start with, I believe, Mr. Underwood. MR. UNDERWOOD-I can’t imagine that if any of us were living in this house, and we had the option of looking at the lake that we wouldn’t request the same modest porch to be added on to that side end of the cabin there. So, in lieu of the fact that the relatives own the property that it would be facing to and that no one has come up and grandly requested that it not be done, I would move that we approve it. MR. HAYES-Thank you. Chuck? MR. MC NULTY-Well, I’m going to take the opposite view. Even though relatives own the lot next to this house now, they aren’t always going to, or not necessarily anyway, and it strikes me, judging from the stakes that the applicant had in the yard, which helped, incidentally, and I also appreciated the notice in the window, because a lot of people don’t put these notices up, so it made it a lot easier to make sure we had the right place. Nevertheless, though, I think it’s going to add a more crowded look to the neighborhood, and I think that’s one consideration we have to take into account. It’s not just how it’s going to benefit the applicant and whether the person next door, or the person that’s currently next door is going to object, but what’s it do to the nature of the entire neighborhood, and I think it’s going to tend to make this entire neighborhood look more crowded, and I don’t believe it needs to look more crowded. There’s a porch on the front now. I can see the benefit for the applicant wanting to be able to sit on the side porch and look at the lake, but my determination is that when you complete the balancing test, I think the balance falls against the applicant and it’s more important to preserve the nature of the neighborhood. So I’m going to be opposed. MR. HAYES-Thank you. Joyce? MRS. HUNT-Well, I have to, again, compliment you on what you’ve done, and I feel that the width of the porch is rather narrow. I don’t think it’s going to impact that much on the property, and I don’t think 8 feet and a ¼ inches side setback relief is a lot, considering it’s not the end of a house, but it’s a porch. So I would be in favor of it. MR. HAYES-Thank you. Roy? MR. URRICO-When I first received the bundle, I was a little concerned about the amount of relief that you were asking for, but seeing is believing, taking a look at what you’ve done, and I don’t think it’s going to have as much of a negative impact as a positive impact. So I’d be in favor of it. MR. HAYES-Thank you. Allan? MR. BRYANT-Yes. I want to reiterate what I said earlier, and you have done a lot with the house, but I think I’m going to agree with Mr. McNulty that we all like to have decks all the way around our house. I’d like to have one around my house, but unfortunately because of setbacks I don’t. So I’m going to be on the negative side of this application. MR. HAYES-Thank you. Chuck? MR. ABBATE-Thank you. I’m just going to be just the opposite. I think that if I were to own that lovely home, and I had a position on the lake, I, too, would like to see the lake, but what really moved me to indicate that I would be in favor of the application is your neighbor. Your neighbor, I think, said it would be wonderful. Well, if you don’t object and your neighbors 34 (Queensbury ZBA Meeting 2/16/05) don’t object, and it’s not a dramatic increase that’s going to adversely impact the Town of Queensbury, I have no problems with it. MR. HAYES-Thank you. Well, I think in this particular case we’re asked to balance the benefit to you versus the detriment to the greater neighborhood or community, and I think in this particular case I do not see a large, really if any, detriment to the neighborhood or community. I certainly wary and protective of overcrowding or overdeveloping, and we have side setbacks for a reason, but the way this house is positioned, and the nature of what is there now, I just don’t think that it’s going to be a noticeable depreciation of the character or visual aesthetics of that neighborhood. So I guess that summarizes, I’m in favor of the application. Having said that, would someone like to make a motion? MOTION TO APPROVE AREA VARIANCE NO. 13-2005 ROBERT E. SUPPLY, INC., Introduced by James Underwood who moved for its adoption, seconded by Charles Abbate: 20 Honeysuckle Lane, Assembly Point. The applicant is proposing construction of a 139 and a half square foot side porch. The relief required. The applicant is requiring 8 feet ¼ inch of side setback relief from the 20-foot minimum requirement per Section 179-4-030, for the WR-1A zone. Again, the applicant has proposed to construct this 139 and a half square foot side porch and they’re proposing a 12 foot 2 and ¾ inch side setback for the northwest porch corner. The side of the house that the neighbors nearest affected are family members, and the other neighbor who lives nearest to them also is in favor of this project. It’s not seen that this would be any detriment to the neighborhood or adding on an immense amount of relief onto the side of this house. So, I would move for its approval. Duly adopted this 16 day of February, 2005, by the following vote: th AYES: Mr. Abbate, Mr. Underwood, Mrs. Hunt, Mr. Urrico, Mr. Hayes NOES: Mr. McNulty, Mr. Bryant ABSENT: Mr. Stone MR. HAYES-The application is approved. Thank you for coming. MR. SUPPLY-Thank you very much. AREA VARIANCE NO. 14-2005 SEQRA TYPE II BBB CONSTRUCTION, TIM BURKE AGENT(S): BBB CONSTRUCTION OWNER(S): CONNIE LUDWIN AND SHARI GUIDOS ZONING: WR-1A LOCATION: 5 FIELDING PLACE, CLEVERDALE APPLICANT HAS DEMOLISHED A 400 SQ. FT. DECK AND A 129 SQ. FT. ENCLOSED PORCH AND PROPOSES TO REBUILD BOTH ON A NEW FOUNDATION IN THE SAME LOCATION. RELIEF REQUIRED FROM THE FRONT AND SIDE SETBACK REQUIREMENTS. ADDITIONALLY, THE RELIEF IS REQUIRED FROM THE FAR AND THE CONTINUATION REGULATIONS OF THE ZONING CODE. CROSS REF. BP 2004- 911 WARREN COUNTY PLANNING 2/9/05 ADIRONDACK PARK AGENCY YES LOT SIZE: 0.13 ACRES TAX MAP NO. 227.13-2-9 SECTION 179-4-030, 179-13-010 (A1, E) TOM & MICHAEL BURKE, REPRESENTING APPLICANT, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 14-2005, BB Construction, Tim Burke, Meeting Date: February 16, 2005 “Project Location: 5 Fielding Place, Cleverdale Description of Proposed Project: Applicant has demolished a 400 sq. ft. open deck and a 129 sq. ft. enclosed porch and proposes to rebuild both on a new foundation in the same location. Relief Required: Applicant requires 13 feet of relief from the 30-foot minimum front setback requirement, 15 feet of relief from the 20-foot minimum side setback requirement (north side open deck), 2 feet 4 35 (Queensbury ZBA Meeting 2/16/05) inches of relief from the 20-foot minimum side setback requirement (south side enclosed porch), and relief to increase the existing floor area ratio (FAR) from 24.13% to 26.37%, per § 179-4-030 for the WR-1A Zone. Additionally, relief is required from the zoning code Continuation requirements, per § 179-13-010 (A1 and E). Parcel History (construction/site plan/variance, etc.): BP 2004-911: 12/19/04, 1,485 sq. ft. residential alteration (frost wall). Staff comments: The applicant has demolished a 400 sq. ft. deck and all but the roof and ceiling of a 129 sq. ft. enclosed porch, and has raised the 1,388 sq. ft. cottage while a new frost wall is being constructed. The applicant desires to reconstruct the deck and enclosed porch of the same size and in the same location as those demolished. The applicant has requested side setback relief to reconstruct the deck. However, front setback relief is required in addition to the side setback relief requested. Even though no other relief has been requested, in order to reconstruct the enclosed porch, relief is required from the side setback and FAR requirements. Even though relief is required to increase the FAR from 24.13% to 26.37%, the FAR for the property prior to the demolition work was 26.37%. Additionally, relief is required from the Continuation requirements for the deck and enclosed porch.” MR. MC NULTY-“Warren County Planning Board Project Review and Referral Form February 9, 2005 Project Name: BBB Construction, Tim Burke Owner(s): Connie Ludwin and Shari Guidos ID Number: QBY-05-AV-14 County Project#: Feb05-21 Current Zoning: WR-1A Community: Queensbury Project Description: Applicant has demolished a 400 sq. ft. deck and a 129 sq. ft. enclosed porch and proposes to rebuild both on a new foundation in the same location. Relief required from the front and side setback requirements. Additionally, relief is required from the FAR and the continuation regulations of the Zoning Code. Site Location: 5 Fielding Place, Cleverdale Tax Map Number(s): 227.13-2-9 Staff Notes: Area Variance: The applicant proposes to remove an existing 40 x 10 sq. ft. deck and to replace it in the same footprint. The deck is located 5 ft. from the rear property line where 20 ft. is required. The information submitted indicates there is additional work being completed on the home and the deck was to be lifted and placed in the same location, but the existing deck was determined to be rotten. The plans show the location of the deck to be removed and replaced. Staff does not identify an impact on county resources based on the information submitted. Staff recommends no county impact. County Planning Board Recommendation: No County Impact” Signed by Bennet F. Driscoll, Warren County Planning Board 02/15/05. MR. HAYES-Thank you. Please identify yourselves for the record. MR. T. BURKE-I’m Tom Burke. This is my son, Mike. MR. M. BURKE-Michael Burke. MR. HAYES-You’re the property owner? MR. T. BURKE-No. MR. HAYES-You’re with BBB? MR. T. BURKE-We’re BBB, yes. MR. HAYES-Okay. All right. Would you like to add anything to your application, sir? MR. T. BURKE-No. MR. HAYES-All right. Are there any questions of the applicant? MR. ABBATE-Good evening. You’re Mr. Burke, right? MR. T. BURKE-Yes. 36 (Queensbury ZBA Meeting 2/16/05) MR. ABBATE-Okay, Mr. Burke, both Burkes. Okay. I’m looking at the relief required, and you’re requesting 13 feet of relief from a 30 foot minimum, 15 feet of relief from a 20 foot minimum, 2 feet 4 inches of relief from the 20 foot minimum side setback requirements and relief to increase the existing floor ratio from 24.13 to 26.37, and it’s a WR-1A zone designation. In addition to that, I notice in Staff notes that front setback relief is also required, in addition to side setback relief requested, and relief is required from the side setback and Floor Area Ratio requirements, and the Floor Area Ratio for the property prior to demolition was 26.37 and additional relief is required for the Continuation requirements for the deck and enclosed porch. Now, I have a question. This sounds like a disaster to me, show me why I’m wrong. MR. T. BURKE-Well, it’s an existing structure, but the deck was real rotten. We tried to lift it up, Larman House Movers, and it disintegrated. We couldn’t, we had to take it down, so he could get the house up, and the house is in kind of bad shape. So it had to be redone, the deck in particular and the porch, the bottom of the porch. MR. ABBATE-Okay. A letter indicates that you’re going to rebuild on an exact footprint. If it’s an exact footprint, why the necessity for all of this relief? MR. T. BURKE-I don’t know why. MR. HAYES-No, it’s exactly where it was. They discontinued the use by removing it. MR. ABBATE-Okay. Do you understand why you don’t have to do it? Because it’s already there. MR. T. BURKE-Yes. MR. ABBATE-All right. Thank you. MR. HAYES-Are there any other questions for the applicant at this particular time? Were the owners aware of the fact that if it’s removed that there’s a potential problem with that? MR. T. BURKE-Yes. I mean, we didn’t know that, at that point, when we were lifting the house up, I came over here that day and checked with Craig Brown to see if we could rebuild the deck, and he said we’d have to go for a variance if we tear it down, but it disintegrated. It was real rotten. So we had to call the owner and tell them what was going on. So then we applied for the variance. MR. HAYES-Okay, and you’re saying, dimensionally, nothing at all is going to change then? MR. T. BURKE-Nothing changes. MR. HAYES-Right to the inch, or whatever. MR. T. BURKE-Not a thing. MR. M. BURKE-The house is coming right back down on top of where it’s sitting. MR. T. BURKE-The foundations are already in for the house itself. MR. HAYES-Right. So the decks and the porch are what’s at issue. MR. T. BURKE-We already got the permit to do what we’ve done already. MR. M. BURKE-It’s just a matter of reattaching the deck. MR. T. BURKE-Reattaching the deck. 37 (Queensbury ZBA Meeting 2/16/05) MR. HAYES-Okay. MR. ABBATE-But help me out, Staff. Don’t they have to answer to relief required for the side setback and Floor Area Ratio requirements? MR. HAYES-They do because the deck is going back to a noncompliant location. MR. FRANK-It’s more technical than anything else. MR. ABBATE-Okay. MR. FRANK-What they’re proposing is to put back exactly what was there, but because it was demolished, it needs to have that technical relief added back into it. MR. ABBATE-But if it goes in the same footprint and everything remains constant, there’s really no change. MR. FRANK-There won’t be any change. MR. ABBATE-Okay, great. MR. URRICO-There’s no change, but we still have to allow the relief. MR. ABBATE-Yes. MR. FRANK-It’s technical in nature, the relief you’re going to be granting. MR. ABBATE-Okay. Thank you. MR. HAYES-Okay. Are there any other questions of the applicant at this particular time? If not, I’ll open the public hearing. Is there anyone here that wishes to speak on this application? Any correspondence? MR. MC NULTY-No correspondence. PUBLIC HEARING OPENED NO COMMENT PUBLIC HEARING CLOSED MR. HAYES-At this time there’s no questions? I will poll the Board. I believe it’s time to start with Chuck. MR. MC NULTY-I can understand the problem here, and this is one of those things that there’s no way to really determine what’s going to happen until you start the work, and then something pops up that’s not structurally sound. At the same time, looking at this, it strikes me that the appearance would be much better if that porch and deck were not put back on, comparing it to the size of the cottage on the lot and the other cottages in that particular area. So this is one of those situations that I end up being kind of torn. On the one hand, the only fair thing to do is to let the applicant keep what they had. On the other hand, the reason for requiring people to come in and get approval for these setbacks is when something changes it’s an opportunity to improve the situation. There certainly is benefit to the applicant for them to be able to keep what they want. I think there’s some benefit to the community if they’re not allowed to keep exactly what they wanted, and I think possibly there’s an alternative. There could be a small entrance put on that side, and in place of a deck, a patio at ground level could be put in which, if I’m not mistaken, wouldn’t require the variances, if it was at ground level. 38 (Queensbury ZBA Meeting 2/16/05) MR. FRANK-That’s correct. MR. MC NULTY-So, other than, I don’t know what height the deck would have been at, but if the patio were put at ground level, they could essentially have an open deck, but it would be an open patio instead. Given that I think they’ve got some alternatives that way to accomplish and get back, while not exactly what they had, several of the features, I’m going to be opposed. MR. HAYES-Thank you. Joyce? MRS. HUNT-Well, I have to agree with a lot that Chuck said about alternatives, but I kind of feel that since this was not self-created, that this was something that they had no control over, they’re only asking to go back to what they had, I don’t see how going back to what they had would be an undesirable change, and I don’t think it’s a substantial request, and I would be in favor. MR. HAYES-Roy? MR. URRICO-Yes. I agree with Joyce on this one. I think we’re not providing any more relief than existed before. It was a problem that did not exist before and I don’t think it’s a problem that exists now. I think it’ll be an improvement, in that it’ll be replacing something that that was falling apart. Obviously we didn’t get to see what was there, but the fact that it’s not there sort of speaks for it, I think. I’d be in favor of it. MR. HAYES-Mr. Bryant? MR. BRYANT-I agree that it’s somewhat of a technical issue because you had the deck and the porch prior to your activity there, but I have to agree with what Mr. McNulty has said, in that when something is removed or demolished, we have an opportunity to improve the situation and bring it closer to our Town Code, and so I think this is one of those opportunities, and I would be opposed to the application. MR. HAYES-Chuck? MR. ABBATE-Thank you. Well, needless to say, I disagree with Mr. McNulty as well as my imminent friend, Mr. Bryant. While indeed it may be technical, that’s not an open door to penalize or punish an individual. I raised those issues on all the relief required initially because I want it settled in my mind that nothing’s really going to change. It was through no fault of any individual that when they started construction on this project, it ended up being a bucket of worms, and I don’t believe that we should penalize individuals for that. If the applicant is indicating that everything is going to remain the same, and it’s going to be basically an improved structure, then by all means I think we should have it, and Mr. Chairman, I would support the application. MR. HAYES-Thank you. Mr. Underwood. MR. UNDERWOOD-I, too, would be in agreement with the majority of the Board members. I think that, you know, nothing is really changing. It’s not going to have any alteration on the neighborhood. That’s a 10 foot wide deck, the big one on the back side, and the 9 by 14 one on the front is pretty small, too. It’s about the same size as the one we just approved on the previous application. It makes more sense to have a new deck, and it’s nice to just walk out your kitchen onto the deck and not have to go down the stairs and up and down, up and down, up and down. It makes more sense from a practical viewpoint. MR. HAYES-Thank you. Well, I essentially agree. Historically this Board has been very wary in a situation where a camp or a house, particularly when it’s near the lake, is torn down, and there was an opportunity to replace that house at the proper distance away from the lake, with a clean slate idea, the remedy of a wrong, in this particular case, but in this case, the house was raised. The house is not changing its position in relation to the lake or to any of the property 39 (Queensbury ZBA Meeting 2/16/05) lines. So really the only issue here now is whether we’re in favor of allowing a deck to be where a deck was, not a chance to completely eradicate a situation, just to allow it to go back to the what it was, and I think in this particular case, I don’t think that there will be any change to the neighborhood because this deck is going to be exactly where it was, this porch is going to be exactly where it was. I understand what Chuck is saying, and I think there definitely is a place for that. In this particular case, I don’t know how there could be a detrimental change to the community when this is exactly what was there. So I’m in favor of the application. Having said that, would someone like to make a motion? MOTION TO APPROVE AREA VARIANCE NO. 14-2005 BBB CONSTRUCTION, TIM BURKE, Introduced by Joyce Hunt who moved for its adoption, seconded by Roy Urrico: 5 Fielding Place, Cleverdale. The applicant has demolished a 400 square foot open deck and a 129 square foot enclosed porch, and proposes to rebuild both on a new foundation in the same location. Applicant requires 13 feet of relief from the 30 foot minimum front setback requirement, 15 feet of relief from the 20 foot minimum side setback requirement, north side open deck, two feet four inches of relief from the 20 foot minimum side setback requirement for the south side enclosed porch, and relief to increase the existing floor area, FAR, from 24.13% to 26.37%, per Section 179-4-030, for the WR-1A zone. Additionally, relief is required from the Zoning Code Continuation requirements for Section 179-13-010 (A & E). I don’t think the benefit can be achieved by any other means feasible to the applicant. I don’t think it will be an undesirable change to the neighborhood character or nearby properties, since it’s only replacing what was there before. I don’t think the request is substantial for the same reasons. I don’t think the request will have an adverse physical or environmental effect on the neighborhood because it’s what was there, and I certainly don’t think the alleged difficulty was self-created. So I move for its approval. Duly adopted this 16 day of February, 2005, by the following vote: th AYES: Mr. Urrico, Mr. Abbate, Mr. Underwood, Mrs. Hunt, Mr. Hayes NOES: Mr. Bryant, Mr. McNulty ABSENT: Mr. Stone MR. HAYES-Thank you. The motion is approved. MR. T. BURKE-Thank you. MR. HAYES-Last on tonight’s agenda is a discussion item. DISCUSSION ITEM: USE VARIANCE NO. 15-2005 SEQRA TYPE UNLISTED CINGULAR WIRELESS AGENT(S): SHANE NEWELL, SITE ACQUISITIONS, INC. OWNER(S): DALE BALDWIN ZONING: SR-1A/NC-1A LOCATION: 1447 RIDGE ROAD APPLICANT PROPOSES TO ERECT A 165 FT. FOOT TELECOMMUNICATION MONOPOLE TOWER CONTAINED WITHIN A 70 FT. BY 70 FT. FENCED COMPOUND WITH EQUIPMENT SHELTERS IN A 10,000 SQ. FT. AREA CURRENTLY BEING USED AS A SAND PIT. RELIEF REQUESTED FROM THE ALLOWED USES OF THE SR-1A ZONE. DISCUSSION OF PLANNING BOARD (PB) REQUEST FOR LEAD AGENCY STATUS. ZBA MAY CONSENT TO PB REQUEST AT THIS MEETING. CROSS REF. SPR 17-94 WARREN COUNTY PLANNING 2/9/05 ADIRONDACK PARK AGENCY YES LOT SIZE: 25.26 ACRES TAX MAP NO. 279.00-1-50 SECTION 179-4-020 SHANE NEWELL, REPRESENTING APPLICANT, PRESENT 40 (Queensbury ZBA Meeting 2/16/05) MR. FRANK-Mr. Chairman, again. The Zoning Administrator wanted me to just remind the Board that the only thing that’s before you tonight is the discussion, if you’re going to let the Planning Board take the Lead Agency Status for the SEQRA. So I realize the applicant is here and he might want to give some sort of a presentation, but the only thing you are going to decide on, are we going to let the Planning Board have the Lead Agency Status for the SEQRA and of course they would be right back before you, then, you’ll see this all again. I just wanted to remind you that. MR. URRICO-We don’t get a chance to ask him any questions? MR. HAYES-The question is do we want to, in a certain way. I mean, if we’re going to, so we’re determining, this is only to determine if the Planning Board should have the Lead Agency Status. MR. FRANK-That’s correct. MR. HAYES-That’s the only issue that’s before us. MR. FRANK-That’s the only thing before you, and then if you do so and the Planning Board decides there’s a negative declaration for SEQRA, this applicant will be back before you for the Use Variance, which we then will decide on. MR. HAYES-Do you understand that, sir? MR. NEWELL-Yes, I do. MR. HAYES-Okay. Would you identify yourself for the record, just in case we do ask you any questions. MR. NEWELL-My name is Shane Newell. I’m with Site Acquisitions Consulting Company for Cingular Wireless. MR. HAYES-Okay. Thank you. MR. MC NULTY-How much do you want to read in? Do you want me to read the Staff notes only? MR. HAYES-I’m wondering, does it have to do with the Use Variance criteria? MR. MC NULTY-It does deal mainly with Use Variance criteria. So we could let that ride until they come back. MR. HAYES-You understand we’re not trying to cut you short. MR. NEWELL-I do, and this procedure, and my presentation will take some time, and I don’t think I want to go through it twice with you, if you’re going to have to hear it all again. MR. HAYES-Okay. I just want you to understand. MR. NEWELL-I understand. I’m ready to answer any questions though, sure. MR. ABBATE-I agree with you, Mr. Chairman. I think that the only issue this evening is to determine and to agree that the Lead Agency Status should be the Planning Board, and that’s it. MR. HAYES-Well, maybe we should understand from Bruce how it’s determined who is Lead Agency. I guess if we’re deciding that, what’s the criteria for that or what’s the rationale for that? 41 (Queensbury ZBA Meeting 2/16/05) MR. FRANK-Well, that’s part of your discussion, I would imagine. I mean, obviously you stated yourself on numerous occasions that the Planning Board really does the site plan review and they’re more apt to go into a lengthy SEQRA evaluation and review. Typically most of the actions before this Board are Type II actions where you don’t even need to do any kind of SEQRA review. Some are Unlisted, like Sign Variances, where you go through the Short Form. So typically this Board has not been accustomed to going through the SEQRA process. I mean, I’m not saying that this Board isn’t privy to doing so. I mean, you could debate that and say we want to be Lead Agency, and that’s what you’re here to discuss right now. MR. HAYES-Okay. MR. ABBATE-And he’s right, we can, by basis of the Zoning Board of Appeals, relinquish a SEQRA and move it down to the Planning Board, as we’ve done in the past, Mr. Chairman. MR. HAYES-Okay. MR. URRICO-I’d just like to point out, there might be some members of the public here thinking that they had a chance to speak tonight. MR. HAYES-No, that’s absolutely fine. I just want to, once we have a direction, I just want to stay consistent. If we’re not going to entertain the Use Variance, there’s no point getting into those questions or that criteria. I’m more than happy to open it up to the public hearing. That’s a good idea. So, is everyone comfortable with at least what we’re going to discuss after the public hearing? Okay. At this time I’ll open the public hearing. Is there anyone that wishes to speak on Use Variance No. 15-2005, Cingular Wireless? PUBLIC HEARING OPENED MATT REYNOLDS MR. REYNOLDS-Matt Reynolds, Queensbury. I guess I misunderstood why they were going to be here tonight. I came in support of the tower. There was a lot of discussion tonight about safety. There was a gentleman that was turned down because of safety. My family lives up off of Ridge Road. I travel Ridge Road every day. I can’t use my cell phone, and there’s been many accident scenes I’ve come across, whether it’s with another car, or a deer, cars hitting deer. There was a fatality up there a couple of years ago with a young man. So I think that any time we can improve safety and safety was definitely a vote in tonight I heard from this Board there were a couple of gentlemen that voted with their conscience. So I would hope, when it comes down to it, that the vote is done with conscience about safety. It’s definitely an improvement, and it’s definitely I would support it. MR. BRYANT-Let me ask you a question, sir, do you have a Cingular phone? MR. REYNOLDS-I have it, and actually my son finished basketball tonight and I tried to call my wife on her cell, her Cingular cell, and we couldn’t speak. I was outside the building holding up one shoe holding on to the flagpole. It was coming and going. There definitely needs to be improvement. I know the Board, and, you know, I heard it tonight, you vote with your conscience. So, you know, this is definitely an improvement. You’re not talking about it’s going into a park situation. It’s on the other side of the road from a landfill. It’s not going to hurt anything. MR. BRYANT-I don’t know. My Nextel phone works all the way up Ridge Road, works in this building. MR. REYNOLDS-Yes, but you’ve got one of those nuisance ones where you’ve got to talk back and forth like a PA. MR. BRYANT-No, I’ve got a regular phone, too. 42 (Queensbury ZBA Meeting 2/16/05) MR. REYNOLDS-Well, Cingular’s got the best price in Town, and I’m going to stay with Cingular, but I’d like to be able to use it from my back yard. MR. BRYANT-Sure, I don’t blame you. MR. ABBATE-Mr. Chairman, I’m going to say this jokingly, and I don’t want to open the door, but I was watching a Town Board meeting, and there were some folks upset with the cable in terms of prices going up. So I don’t dare to ask the representative from Cingular whether or not, once, if, indeed, we approve this, prices are going to go up or down. So I’m going to shy away from that question. MR. HAYES-Mr. Newell’s a powerful man, but I’m sure he’s not in power to set those rates. MR. REYNOLDS-If the coverage increases and it saves one life, price is not an issue. MR. HAYES-Okay. Thank you. MR. REYNOLDS-Okay. MR. HAYES-Is there anyone else here that would like to speak on this discussion item? Any correspondence? MR. MC NULTY-I don’t believe so. No, no correspondence. MR. HAYES-I’ll close the public hearing. PUBLIC HEARING CLOSED MR. HAYES-I guess the issue now before us is Lead Agency Status. MR. BRYANT-All right. I just have one question for the applicant. MR. HAYES-Certainly. MR. BRYANT-And although I said that to the neighbor in jest about the Nextel phone and what have you, why don’t cellular companies share these towers? Why is it that, you know, Nextel’s got to have a tower next to Cingular next to Verizon next to AT & T next to Sprint. MR. NEWELL-Well, I don’t see that that’s the case. The tower that was approved in Queensbury here that also required a Use Variance over on French Mountain Drive has five co- located carriers on it. A tower that was approved in that location was desired by all carriers. It’s just a matter of which carrier is going to take the stab first to go through the application process and try to get one approved, with an Ordinance as comprehensive as the Town of Queensbury, and in this case an application that will have to meet the criteria of also the APA. That is not a challenge that carriers like to take on, but they co-locate any opportunity, if there was any structure out there to take, carriers would definitely take it. MR. BRYANT-Because the original one on French Mountain Road, that was not put in by a major carrier. That was put in by a, if I remember correctly, was that the one on 149. MR. URRICO-It was SBA, I think. MR. NEWELL-Yes. That was called SBA Communications. It was a tower development company, but in order to have the criteria of public necessity they need an FCC carrier to be granted that public utility standard, so they’re not subject to the statutory standard. Cingular was a co-applicant on that application. 43 (Queensbury ZBA Meeting 2/16/05) MR. BRYANT-Yes, I realize that, but I think that there are more than one carrier on that. MR. NEWELL-Yes, and after the application was approved, all the other carriers came on board. I mean, there’ll be carriers that say that they don’t even need a tower site there. I was even told by one carrier that we’re all set there. We won’t be looking to go to that location. I don’t know if they wanted to develop their own tower or what have you, but shortly after the tower was approved, they immediately applied for an application for co-location. MR. BRYANT-So is this going to be strictly a Cingular tower? MR. NEWELL-No. We’ve submitted a statement of shared use. The tower’s designed for up to five carriers. There was some speculation as to whether five carriers would ultimately be enough because if another sixth carrier came in, and could prove that tower could not work, would they be granted the right to construct another tower? That’s a question I’m sure the Board did not want to face, but as it turns out over the past five years since that development, there’s been more of a consolidation in the market. So as Cingular has joined forces with AT & T and now Verizon with MCI, you won’t be seeing those wireless carriers coming in. So it looks like five is going to be the right fit. MR. BRYANT-Thank you. Very interesting. MR. URRICO-So the term monopole just refers to one pole? It doesn’t refer to one carrier. MR. NEWELL-That’s correct. It’s design of the pole itself. It is structurally designed for the five carriers, as opposed to a lattice or a guide tower. The one on French Mountain is a Guidewire tower. MR. URRICO-Now how many more, I mean, I know this is an open-ended question, but how many more cell towers will be needed to blanket the area? Because I keep hearing about dead zones, and I know beyond that you’re going to have transceivers. You’re going to have smaller receivers that are going to be needed, once the saturation becomes too large, separate from towers, but how much more are we going to hear about or need? MR. NEWELL-Well, that is a difficult question to answer. There are two issues of tower siting, and one is for coverage, and this is clearly a coverage tower site. I don’t know how Nextel’s providing any coverage on that road. I carry everybody’s phones when I check out tower sites, and have very spotty coverage there. They do have a location over on Patten Mills Road, which Nextel is the only carrier on that site, and that might be hitting some high points as you’re driving in that road, and just touching it. We analyzed that tower site and it’s a good mile and a half west of there, and there’s no way that that’s going to reach over and provide the coverage that we want, but looking at the Town map, it seems to me that a site in this quadrant is going to pretty much take care of all the Town, except for the area around Pilot Knob, that north end of Town that is still lacking a lot of coverage, and as you know, there’s an application in there by Nextel for a tower that’s gone through a great deal of litigation and other problems. MR. URRICO-Well, that’s in Washington County, unless we get annexed into Warren County. MR. BRYANT-In this building I have total use, all the way. MR. NEWELL-You’re getting that use from French Mountain. MR. URRICO-But you say this would do it for Queensbury? MR. NEWELL-I can’t say that definitively, no. Looking at the quadrants and where your towers are, there was clearly a lack up in this area here, but the one on 149, now we’re moving off to pretty much the northwest corner, or northeast corner. 44 (Queensbury ZBA Meeting 2/16/05) MR. HAYES-I don’t mean to cut off the discussion, but we’re getting into the area that we’re going to get into anyway which is the public necessity of the variance. So at this time, I’ll make a motion. MOTION TO GRANT LEAD AGENCY STATUS TO THE PLANNING BOARD FOR SEQRA REVIEW ON CINGULAR WIRELESS, Introduced by Paul Hayes who moved for its adoption, seconded by Charles Abbate. For the Cingular Wireless tower proposed for 1447 Ridge Road. Duly adopted this 16 day of February, 2005, by the following vote: th AYES: Mr. Abbate, Mr. Underwood, Mr. McNulty, Mrs. Hunt, Mr. Urrico, Mr. Bryant, Mr. Hayes NOES: NONE ABSENT: Mr. Stone MR. HAYES-Thank you for coming. MR. NEWELL-Thank you. MR. HAYES-I guess if there’s no further action before the Board, I will close tonight’s meeting, adjourned. On motion meeting was adjourned. RESPECTFULLY SUBMITTED, Paul Hayes, Chairman 45