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1994-04-19 ~ ~ QU!ENS8URY PLANNING SOARD MEETING FIRST REGULAR MEETING APRIL 19TH. 1994 INDEX Subdivision No. 1-1994 PRELIMINARY STAGE Andrea Gray Larry Gray 1 . Site Plan No. 13-94 Hugh Sinclair 1 . Site Plan No. 12-94 Lucas Wilson 6. DISCUSSION ITEM Concept Plan for Taco Bell, Troy Savings Bank, Blockbuster Video 40. THESE ARE NOT OFFICIALLY ADOPTED MINUTES AND ARE SUBJECT TO BOARD AND STAFF REVISIONS. REVISIONS WILL APPEAR ON THE FOLLOWING MONTHS MINUTES (IF ANY) AND WILL STATE SUCH APPROVAL OF SAID MINUTES. QUEENSBURY PLANNING BOARD MEETING FIRST REGULAR MEETING APRIL 19TH, 1994 7:00 P.M. MEMBERS PRESENT TIMOTHY BREWER, CHAIRMAN GEORGE STARK, SECRETARY JAMES OBERMAYER CRAIG MACEWAN ROGER RUEL ROBERT PALING MEMBERS ABSENT CATHERINE LABOMBARD EXECUTIVE DIRECTOR-JAMES MARTIN PLANNBR-SCOTT HARLICKER TOWN ENGINEER-RIST-FROST, BILL MACNAMARA TOWN ATTORNEY-MARK SCHACHNER STENOGRAPHER-MARIA GAGLIARDI NEW BUSINESS: SUBDIVISION NO. 1-1994 PRELIMINARY STAGE TYPE: UNLISTED ANDREA GRAY LARRY GRAY OWNER: SAME AS ABOVE ZONE: SFR-1A LOCATION: 563 BAY ROAD SUBDIVISION OF A 10.65 ACRE PARCEL INTO 3 LOTS - LOT 1 WILL BE 1.041 ACRES, LOT 2 WILL BE 4.948 ACRES, AND LOT 3 WILL BE 4.664 ACRES. TAX MAP NO. 60-1-12 LOT SIZE: 10.64 ACRES SECTION: SUBDIVISION REGULATIONS LARRY GRAY, PRESENT MR. STARK-The applicant agreed to table until next week. MR. BREWER-Okay. We need a motion to table. MOTION TO TABLE PRELIMINARY SUBDIVISION NO. 1-1994 ANDREA GRAY LARRY GRAY, Introduced by George Stark who moved for its adoption, seconded by Robert Paling: Tabled until next week. Duly adopted this 19th day of April, 1994, by the following vote: AYES: Mr. Stark, Mr. Obermayer, Mr. MacEwan, Mr. Ruel, Mr. Paling, Mr. Brewer NOES: NONE ABSENT: Mrs. LaBombard SITE PLAN NO. 13-94 TYPE: UNLISTED HUGH SINCLAIR OWNER: SAME AS ABOVE ZONE: LI-1A LOCATION: CORINTH ROAD, & CORNER OF MERRITT RD. TO USE AS EXISTS FOR SHALL OFFICES - SERVICEMASTER. TO ERECT FENCE AND PLACE HANDICAPPED PARKING SIGN AS REQUIRED BY A PREVIOUS SITE PLAN APPROVAL. CROSS REFERENCE: SP 55-92 BEAUTIFICATION COMMITTEE: 4/11/94 WARREN COUNTY PLANNING: 4/13/94 TAX MAP NO. 146-1-10 LOT SIZE: .52 ACRES SECTION: 179- 26 MR. BREWER-Okay. we want to do? through it? Is anyone here for Mr. Sinclair? Okay. What do Do we want to table this, or do we want to go - 1 - '-- -.-' MR. MACEWAN-I'd just as soon go through it. He's been given every opportunity to be here. MR. BREWER-Okay. MR. STARK-Why isn't he here? Did he call? MR. BREWER-I don't know. Jim, did he call? MR. HARLICKER-No. MR. MARTIN-We've heard nothing. MR. OBERMAYER-Then why should we review it? MR. BREWER-Because this applicant's done this for two years now. He just doesn't show up. MR. STARK-Well, lets go over the notes. MR. BREWER-I don't care. It's up to you guys, if you want to table it until next week. MR. MACEWAN-I don't see any reason to table it, frankly. MR. STARK-Well, lets go with Craig, then. MR. BREWER-Okay. Scott, do you want to go through it? MR. HARLICKER-Okay. STAFF INPUT Notes from Staff, Site Plan No. 13-94, Hugh Sinclair Servicemaster, Meeting Date: April 19, 1994 "PROJBCT DBSCRIPTION: The applicant is proposing to convert an existing house into an office for their business. There will be no new construction other than the extension of the split rail fence along Corinth Road to prevent access from Corinth Road. The applicant received variances to allow the office operation and the construction of a lean-to on the south side of an existing garage. PROJBCT ANALYSIS: In accordance with Section 179-38 A., the project is in compliance with the other requirements of this chapter, including the dimensional regulations of the zoning district in which it is to be located. In accordance with Section 179-38 B., the project was reviewed in order to determine if it is in harmony with the general purpose or intent of this chapter, and it was found to be compatible with the zone in which it is to be located and should not be a burden on supporting public services. In accordance with Section 179-38 C., the proposal was reviewed regarding its impact on the highways. There was found to be no significant impact on the road system. In accordance with Section 179-38 D., the project was compared to the relevant faotors outlined in Section 179-39. The project was compared to the following standards found in Section 179-38 E. of the Zoning Code: 1. The location, arrangement, size, design and general site compatibility of buildings, lighting and signs; Site compatibility is satisfactory; outside lighting includes overhead lights on the garage and the rear of the office and over' the front entrance; there is an existing wall sign on the front of the building. 2. The adequacy and arrangement of vehicular traffic access and circulation, inoluding interseotions, road widths, pavement surfaces, dividers and traffic controls; Vehioular traffic access is adequate. Access to the property is from Merritt Road. Access from Corinth Road will be closed with the split rail fence. 3. The location, arrangement, appearance and sufficiency of off-street parking and loading; Off-street parking is sufficient. Seven parking spaces are proposed including 1 handicapped space. The handicapped space is located adjacent to the rear entrance to the house. 4. The adequacy and arrangement of pedestrian traffic access and - 2 - '-- circulation walkway structures, control of intersections with vehicular traffic and overall pedestrian convenience; Pedestrian access is adequate. 5. The adequacy of stormwater drainage facilities; Existing stormwater drainage will not be altered by this project. 6. The adequacy of water supply and sewage disposal facilities; The existing sewage disposal facility will be utilized. 7. The adequacy, type and arrangement of trees, shrubs and other sui table plantings, landscaping and screening constituting a visual and/or noise buffer between the applicant's and adjoining lands including the maximum retention of existing vegetation and maintenance including replacement of dead plants; No additional landscaping is proposed. Existing landscaping includes pine trees along the property line, shrubs around the front of the house and several other trees along Merri tt and Corinth Roads. 8. The adequacy of fire lanes and other emergency zones and the provision of fire hydrants; Emergency access is adequa te . 9. The adequacy and impact of structures, roadways, and landscaping in areas with susceptibility to ponding, flooding and/or erosion. This is not an issue. RBCOMMBNDATION: Staff can recommend approval of this application. MR. HARLICKER-Warren County Site Plan Review, to erect fence and place handicap parking sign as required by the Town. "No County Impactn. The Beautification Committee disapproved. Applicant did not appear at the meeting, and there's a resolution, also, on the back. MR. BREWER-Okay. What do you guys want to do? MR. MACEWAN-Scott, what are you asking, what are you recommending approval of, of the modifications that he's supposed to be doing, or as it exists now? MR. HARLICKER-What he's proposing to do on the site plan. I looked at this as a new application, like the other one didn't even exist. MR. MACEWAN-Okay. MR. BREWER-Okay. So, basically, the only element that we have to consider is whether we want the fence to go all the way to the corner of the property, or we want to let them stop it where it is, or what do we want to do? That was the only issue that we kept bringing him back here for, because in the motion previous to this, he was supposed to put up a split rail fence, and he never did it, never did it, never did it. Finally, he came in and met with Jim, Scott, and myself and said he would go three or four more lengths or whatever just to block off the driveway. He did do that. I guess what we have to decide, is that sufficient or do we want to go further with it or do we want to change anything else? I guess it's up to the Board what we want to do. MR. STARK-He never shows up at any meetings. MR. BREWER-He never shows up at anything. He didn't even show up at court. MR. STARK-Tim, do you want to make a motion to approve it and then vote it down? MR. BREWER-Whatever you want to do. MR. RUEL-Tim, is it possible to give approval without the applicants being here? MR. BREWER-Sure, or disapprove, whatever you want to do, I guess. MR. MACEWAN-I guess the question that I would have is, that the agreement that you guys made in your meeting with him, shouldn't that have been a consensus of the Board, to approve something other than what was stipulated in the Site Plan approval? - 3 - '- -.../ MR. BREWER-What was said was he would go and put three or four sections up and submit a new application. MR. MARTIN-No. What was said was, that appears to be a reasonable alternative. Why don't you take that to the Board and see if the full, it appeared reasonable to the group that was present, but this is a Board action. Take it to the Board and see what they think of it. It appeared to be reasonable to us. MR. MACEWAN-That's what you told him. MR. MARTIN-Right, and what he did instead was, he just went ahead and did it, and that's when we continued to pursue the action through the court, but he was always instructed to come back to the Board, because it was a Board decision, not the decision of the people that were present there. MR. MACEWAN-What recourse do we have, right at this point, if we decide that we don't want to approve this application tonight, considering the fact that he hasn't been here in two years? Because, quite honestly, I'm in favor of just tossing this right out. MR. MARTIN-You can disapprove it. Right? MR. SCHACHNER-Not only that, but isn't tonight the public hearing? MR. MARTIN-Right. MR. SCHACHNER-In which case you have many days from tonight in which to make any decision. You're under no pressure whatsoever to make a decision tonight, although you certainly can, and there's certainly no requirement that the applicant be present or any representative be present in order to reach any decision. MR. MACEWAN-I guess the point that I'm trying to understand here is the fact that we had approved a Site Plan for him about two years ago with stipulations that he do certain things to the site, and he never accomplished those tasks. So now he's sitting there with a Site Plan that didn't meet the approval that we gave him two years ago, what recourse do we have to either, A., bring him into compliance, or whatever we have to do? MR. MARTIN-Well, I think there were elements of the Site Plan that were done, like the entryway off of Merritt Road, and he has, the Site Plan is there as you see it. Everything that's on that site plan is there today. MR. MACEWAN-But there were other things in that Site Plan that he was supposed to do as well, and he never did them, and through every effort of this Board to get him back here to at least talk about it, he's made no effort to come back here. I mean, we even had to go to the extent of hauling him in to court, and he didn't bother showing up for court. So, I guess I need to do, what can we do, or what should we do? MR. STARK-Craig, I'm going to make a motion to approve it, Jimmy's going to second it, and then we'll just vote it down, then you don't need a reason. It's just disapproved, and that's it, then. MR. BREWER-I think we have enough reason. Well, it's up to you. MR. STARK-Then you don't need a reason. MR. RUEL-Tim, does the Beautification have to have approval, or not? MR. BREWER-They don't have to. MR. RUEL-Because it's disapproved by them. - 4 - '-- '--' MR. BREWER-Right. Okay. Well, everybody decide what you want to do. I'll open the public hearing. Is there anyone here from the public who would like to comment on this application? PUBLIC HBARING OPBNED NO COMMENT PUBLIC HBARING CLOSBD MR. BREWER-We have to do a SEQRA, Short Form, on it. MR. RUEL-Has anyone on the Board seen the extent of the fence? MR. BREWER-He put two more sections up. MR. RUEL-Is that what we were talking about originally? MR. BREWER-No. Originally we talked about going to this tree, and block it off, and he went, instead, went one, two and a half more sections. MR. RUEL-Well, I certainly vote for disapproval on that basis alone. MR. BREWER-Okay. Well, lets go through the SEQRA, and then we can make a motion accordingly. RESOLUTION WHBN DBTBRMINATION OF NO SIGNIFICANCB IS MADB RBSOLUTION NO. seconded by : , Introduced by who moved for its adoption, WHEREAS, there application for: is presently before HUGH SINCLAIR, and the Planning Board an WHEREAS, this Planning Board has determined that the proposed project and Planning Board action is subject to review under the State Environmental Quality Review Act, NOW, THEREFORE, BE IT RESOLVED: 1. No federal agency appears to be involved. 2. The following agencies are involved: NONE 3. The proposed action considered by this Board is unlisted in the Department of Environmental Conservation Regulations implementing the State Environmental Quality Review Act and the regulations of the Town of Queensbury. 4. An Environmental Assessment Form has been completed by the applicant. 5. Having considered and thoroughly analyzed the relevant areas of environmental concern and having considered the criteria for determining whether a project has a significant environmental impact as the same is set forth in Section 617.11 of the Official Compilation of Codes, Rules and Regulations for the State of New York, this Board finds that the action about to be undertaken by this Board will have no significant environmental effect and the Chairman of the Planning Board is hereby authorized to execute and sign and file as may be necessary a statement of non-significance or a negative declaration that may be required by law. Duly adopted this 19th day of April, 1994, by the following vote: - 5 - -- --- AYES: Mr. Obermayer, Mr. MacEwan, Mr. Ruel, Mr. Paling, Mr. Stark, Mr. Brewer NOES: NONE ABSENT: Mrs. LaBombard MOTION TO APPROVE SITE PLAN NO. 13-94 HUGH SINCLAIR, Introduced by George Stark who moved for its adoption, seconded by James Obermayer: To use as exists for small offices. To erect fence and place handicapped parking sign as required by a previous site plan approval. Duly adopted this 19th day of April, 1994, by the following vote: AYES: NONE NOES: Mr. MacEwan, Mr. Ruel, Mr. Paling, Mr. Stark, Mr. Obermayer, Mr. Brewer ABSENT: Mrs. LaBombard MR. MACEWAN-I don't think they can introduce a motion and then vote against it, can they? MR. BREWER-Sure. MR. MACEWAN-Someone told us that once before when we did that. SITE PLAN NO. 12-94 TYPE: UNLISTED LUCAS WILSON OWNER: SAME AS ABOVE ZONE: MR-5 LOCATION: END OF WALKER LANE, OFF BAY ROAD PROPOSAL IS TO CONSTRUCT THREE ( 3 ) - FOUR ( 4 ) UNIT APARTMENT BUILDINGS. CROSS REFERENCE: SP 22-93 TAX MAP NO. 60-7-14.1 LOT SIZE: 1.467 ACRES SECTION: 179-18 BRUCE CARR, REPRESENTING APPLICANT, PRESENT; LUCAS WILSON, PRESENT MR. BREWER-Should we read the letter we got from Mr. Carr first, before we go through your notes? Do you want to read that in, George? MR. STARK-I've got it. Okay. This is a letter to Tim Brewer, Chairman, Town of Queensbury Planning Board, in regard to application of Lucas Wilson, Site Plan No. 12-94, "Dear Mr. Brewer: At the last meeting of the Planning Board at which a predecessor application of this site plan was discussed, the members asked that I explain, briefly, the difference between a reserved right of way and a granted right of way. The difference lies in for what the right of way can be used if granted or if reserved. The statements made in this paragraph are direct quotes from NY Jurisprudence 2d, Easements. This is a set of legal volumes that discusses the current state of the law on various topics. The reservation of a mere "right of way" includes only the right of passage over the surface of the land. It does not. include the right to install pipes or cables beneath the surface. See 8133. A grant., moreover, of a right of way for all lawful purposes includes the right to lay water pipes, since the laying of water pipes is a lawful purpose and reasonable incidental to the use of a way. See 11130. An easement. grant.ed in general terms must be construed to include any reasonable use t.o which it may be devoted, provided the use is lawful and is a use contemplated by the grant. See 8117. Mr. Wilson and his predecessors in interest were all granted a right of way dating back to Mr. Walker's ownership of the entire area. Please keep in mind that this is being furnished for information purposes only. Mr. Wilson has received a quit claim deed to the property in question. Very truly yours, Bruce G. Carr" - 6 - "-- MR. BREWER-Okay, Scott, do you want to go over your notes. STAFF INPUT Notes from Staff, Site Plan No. 12-94, Lucas Wilson, Meeting Date: April 19, 1994 "PROJBCT DBSCRIPTION: The applicant is proposing to construct 3 (three) 4 (four) unit apartment buildings on 1.467 acres. The property is located at the end of Walker Lane and is zoned MR-5. The proposal received a variance from Section 179-79 b for less than 50 feet frontage on a public road. The applicant was originally before the Board with a site plan for one apartment building; at the request of the Board he submitted this plan showing the potential total build-out of the site. PROJECT ANALYSIS: In accordance with Section 179-38 A., the project is in compliance with the other requirements of this chapter, including the dimensional regulations of the zoning district in which it is to be located. In accordance with Section 179-38 B., the project was reviewed in order to determine if it is in harmony with the general purpose or intent of this chapter, and it was found to be compatible with the zone in which it is to be located and should not be a burden on supporting public services. The adjacent properties on three sides are zoned MR-5, which would allow development similar to what is proposed here. The uses on the adjacent MR-5 properties include a single family home and a townhouse development. The property to the rear of this parcel is zoned SR-1A and is a vacant lot in the Maple Row Farms subdivision. In accordance with Section 179-38 C., the proposal was reviewed regarding its impact on the highways. There was found to be no significant impact on the road system. In accordance with Section 179-38 D., the project was compared to the relevant factors outlined in Section 179-39. Section 179-39 C. (2) b addresses adequacy of site facilities. Consideration should be given to requiring the applicant to provide some type of on-site recreation facili ty. There is ample green area on the property so that placement of a playground, scaled for use by the residents of the complex, should not be a burden. The project was compared to the following standards found in Section 179-38 E. of the Zoning Code: 1. The location, arrangement, size, design and general site compatibility of buildings, lighting and signs; The project is laid out in such a way as to organize green space into areas that are large enough to be utilized. However, the orientation of the third building could be improved by placing the building so that the front is facing the parking lot. This would allow for addi tional securi ty for the parking area, present the more visually pleasing front facade and preserve some measure of privacy for the adjacent residence to the east. The proposed orientation would allow the occupants of the second floor apartments a clear view into the neighbors yard, present a blank aesthetically unappealing side elevation to the rest of the complex and not allow for any residential overview of the rear parking area. Outdoor lighting includes 3 lamp posts to illuminate the parking area and building lights to illuminate the building entrances. No signage is shown on the plan. 2. The adequacy and arrangement of vehicular traffic access and circulation, including intersections, road widths, pavement surfaces, dividers and traffic controls; Access to the property is via a single 24 foot wide drive built to town specifications. Traffic access is adequate. 3. The location, arrangement, appearance and sufficiency of off-street parking and loading; Off-street parking consists of 24 spaces including 3 handicapped spaces. Parking meets the code requirements and there is one handicapped space for each building. 4. The adequacy and arrangement of pedestrian traffic access and circulation walkway structures, control of intersections with vehicular traffic and overall pedestrian convenience; Because of the linear layout of the parking lot and the distance from the spaces to the buildings, a sidewalk along the east side of the parking lot would provide safe pedestrian access to the buildings. 5. The adequacy of stormwater drainage facilities; Stormwater drainage will be addressed by Rist-Frost. 6. The adequacy of water supply and sewage disposal facilities; Water supply was reviewed by the Water - 7 - Department and their suggestions have been incorporated into the plan. Sewage disposal will be addressed by Rist-Frost. 7. The adequacy, type and arrangement of trees, shrubs and other suitable plantings, landscaping and screening constituting a visual and/or noise buffer between the applicant's and adjoining lands, including the maximum retention of existing vegetation and maintenance including replacement of dead plants; The applicant is proposing a coniferous screen on the east property line made up of hemlocks planted 10 feet on center. There is a hedge proposed between the west property line and the edge of the parking lot. The applicant has to indicate what type of hedge. Interior landscaping includes a row of apple trees planted in front of building one and foundation planting around all three buildings. There are a number of mature pine along the west property line that should not be disturbed; even though they are on the adjacent property, the branches extend over the property line and provide an excellent screen. The hedge could be used to supplement the existing vegetation. There are also several mature trees at the rear of the property that should be preserved. 8. The adequacy of fire lanes and other emergency zones and the provision of fire hydrants; Emergency access is adequate. The applicant has incorporated the Fire Marshal's suggestion of utilizing a temporary hydrant at the southwest corner of the property and when the third building is constructed relocate the hydrant so that it is 260 feet north in a more central location." I spoke with Kip this afternoon regarding this project a little bit, too, and he asked to make sure that the access, the radius of the turn into the proposed parking lot, has to be a 45 foot radius. It's not indicated on the plan here. So that has to be addressed. He said the 24 foot wide access is fine, allows for plenty of room for emergency access into and out of the property. "9. The adequacy and impact of structures, roadways, and landscaping in areas with susceptibility to ponding, flooding and/or erosion. The property is fairly level except for the northwest corner where it drops off. The buildings are to be located on the level sections of the site except for the third building which will be located close to where the property drops off. The applicant states that erosion control measures will be in place during construction. RECOMMENDATION: The applicant has made an attempt to mitigate the potential impacts on the neighboring properties with screening and placing the building as far from the property line as practicable. Consideration should be given to realigning the third building so that the front faces the parking lot. Providing the concerns raised by staff and the Board are addressed, staff can recommend approval of this site plan." MR. HARLICKER-It didn't get sent to Warren County. Because it's a residential site plan, it didn't go to the Beautification Committee either. MR. BREWER-Okay, and we have a couple of, this letter here dated February 8th, is that superseded by the 15th April letter, Bruce? MR. CARR-No. The February 8th letter is from Dennis Phillips. I don't think, it has been responded to by the Town Attorney, but I don't know if it's (lost word). I believe, Mr. Brewer, didn't Paul Dusek send you a letter regarding this? MR. BREWER-Okay. I just want to know if we should read it in. Okay, and we have Rist-Frost comments. MR. MACNAMARA-Good evening. This is a project that has been reviewed under various stages prior by our office, and in general the same concepts for stormwater and septic were used, except now the scale is larger because the number of units has increased on the site plan. The comments that were submitted, which I'll follow up wi th a few more comments based on some phone calls today. There's three, the first one in regard to the water main, and it basically says, "Additional installation details (pipe materials, hydrant connection details, elevations) for the water main extension should be shown. An easement for the main should also be - 8 - ,,-" shown." Subsequent conversations based on applicant's phone call and an additional phone call by myself to Tom Flaherty indicate that he has, as was read earlier, approved the main installatiòn up to what's called the temporary hydrant. It's noted on the site plan, and he has approved that portion of the main to be installed, the rest of it, he basically has indicated he doesn't even need details at this point, because he wouldn't approve it until it was to actually go in, per his discussions. Additionally, regarding the easement, it was our belief that the Town would be taking over these utilities. He has indicated that that is not, in fact, the case, and so the easement for the main, that comment can be struck. The second comment was to do with the dry sewer main, different from the septic system. It showed a six inch diameter main, we call a main, running through, essentially, the parking lot up, to pick up all three buildings. "The proposed dry sewer main should be an 8" diameter, not 6" diameter (Ten State Standards), Also, an additional manhole should be provided at the tie-in for Building 2. Lastly, easements for the main should also be shown." The comment regarding easements can be struck for the same reasons, initially, and that is the belief that the Town would automatically take this over is not so. Regarding the manhole and the eight inch diameter pipe, the piece that really needs to be eight inch is from that manhole that we're asking to be put in at the Building 2 tie-in to the street, and that's actually what's going to be the main. The last run of pipe which can continue to be a six inch is actually just a very long building sewer. The last comment was regarding the handicapped spaces, which were commented on a number of times before, so it's kind of clear where the confusion may have come from, but, basically, there appears to be two spaces shown separated by a center aisle, and if, in fact, that is the case, which we believe it to be, the center aisle simply needs to be striped, so that it indicates it's an access aisle for the handicapped purpose, and the two adjoining spaces need to have their own handicapped sign. The way it was shown was there was one handicapped sign in the middle of what would have been the access aisle. To finish it off, "Regarding the septic design, in addition to our review, discussions with the DEC Region 5 indicate they also have approved the design (SPDES Permit attached). Based on our latest revision, we would support conditional site plan approval provided the applicant subsequently addresses the above comments", which include the further comments that I've added based on today's phone conversations. MR. BREWER-And we do have a permit issued, then. Okay. We will note, and just put this letter into the file, Jim, that it has been approved, or should we read it? MR. MARTIN-It probably wouldn't hurt to read it into the record. MR. STARK-Which one is that? MR. BREWER-From Tom Hall, from ENCON. MR. STARK- "Lucas S. Wilson Re: State Pollutant Discharge Elimination System (SPDES) Wilson Apartment Complex Dear Mr. Wilson: Enclosed is your State Pollutant Discharge Elimination System (SPDES) permit with attachment. Please note Section 9(c) Special Provisions New or Modified Disposal Systems of the attached General Conditions Part II. Section 9(c) references that the construction of a new or modified disposal system shall be under the general supervision of a person or firm licensed to practice professional engineering and upon completion of construction that person or firm shall certify to the Department that the system has been fully completed in accordance with the approved plans. Noncompliance with the certification process outlined in Section 9(c) may subject the permittee to fines and penal ties as stipulated under Article 17 of the Environmental Conservation Law. If you have any technical questions concerning this permit, please direct them to Randy Galusha of the Environmental Quality Unit at Warrensburg, telephone (518) 623- - 9 - ~ 3671. Sincerely, Thomas W. Hall Administrator" Deputy Regional Permit MR. BREWER-Okay. Bruce, would you care to comment on the comments? MR. CARR-Well, for the record, my name is Bruce Carr, from the law firm of Fitzgerald, Morris, Baker, and Firth (lost word) Mr. Wilson who is with me tonight, the applicant, and before we start, I would just ask Mr. Wilson to just state for the record who is here with us, because the gentlemen who have prepared the plans are here to answer any questions you may have. MR. WILSON-We have Vincent Sofia on the end right there. He's the Water Management Engineer. Gary Hughes, he's the one that designed the, did the drafting, and this is Mr. David Barris. He did my surveying and on my left is Mr. Tom Jarrett. He did the sewer design. MR. BREWER-Okay. Who would like to address the comments from Staff and Rist-Frost? MR. CARR-Mr. Brewer, I think, at this point, we would accept the comments of the Staff regarding the playground and defer to the Board. We have no problem with placing a suitable playground on the project site. As to the placement of the third building, again, I would defer to Mr. Jarrett, the engineer on the project, and also just to the Town Staff, as to whether or not we could still meet the setbacks with a turned building. Scott, did you check that? MR. HARLICKER-Yes. You could. MR. CARR-We could? Providing there's no problem with the engineering, in turning that third building to the side, ninety degrees, we wouldn't have a problem with that, for the aesthetics, it possibly could be better. MR. BREWER-Okay. MR. WILSON-Scott, I'd like to know why you'd want to situate that building around. Is there a reason? MR. HARLICKER-Well, a couple of reasons. One is, the way it's si tting now, the people up in the second floor are going to be looking right over into the neighbor's yard. That's one thing. The second thing is, the way it's situated, you've got, essentially, you'd pull into the complex and you look down the parking lot, and all you're going to see is a blank side of the building, and, third, I think it might give the residents a little better piece of mind, to allow for better security. If they want to look out the front of their windows, they can look down the parking lot and see if their car is okay, and nobody's screwing around down there. That sort of thing. MR. WILSON-Now, about this 45 degree angle Kip Grant was concerned about, Mr. Hughes, he did the, Gary can answer that question for you, because when you drew it in there, it was at 45, right, Gary? GARY HUGHES MR. HUGHES-It's not the angle, it's the radius. MR. CARR-Well, I would just say that the 45 foot radius has been met. It may not be indicated on the plans, but. MR. BREWER-It will be indicated on the final plat? MR. CARR-Yes. MR. HARLICKER-I'd like to also mention, he had some concern - 10 - ~ ~ regarding the maintenance of the hydrants, because they're privately owned, what sort of maintenance schedule is going to be maintained, that sort of thing, you know, who's going to clear them out, make sure they're shoveled out in the winter time and test them and that sort of stuff. MR. WILSON-Well, whatever would make the Town happy. If you want to do it a certain amount of time, usually do it once a year, the Town does, you know, flush the line out where the hydrant is. I mean, that's really basically all. MR. HARLICKER-What I might recommend is contact Kip and work out some sort of maintenance arrangement with him. MR. WILSON-Okay. MR. MACEWAN-That will be privately owned, that hydrant, correct? MR. HARLICKER-Right. MR. MACEWAN-Is it something that's part of Kip's annual routine, that he inspects that hydrant? MR. HARLICKER-They don't. What did he say, he said there's 800 some hydrants in the Town, most of them are owned by the Town, but there's a sizeable number out there that are privately owned, and they're up to the individual owners to mainta~n them. MR. MACEWAN-Does the Water Department inspect their hydrants year round? I know that they flush them, but is that part of their inspection process? MR. HARLICKER-Yes, they do the Town's. MR. MARTIN-They plow them. MR. MACEWAN-Are there some sort of arrangements that they make for privately held hydrants that they would check them to make sure they're up to standards? MR. HARLICKER-Not to my knowledge. That's why Kip made the comment that, he's working on it now to get some sort of agreement or some sort of arrangement going now to get these private hydrants on some sort of maintenance schedule, and things like that. As of now, I don't believe there is any set schedule. MR. MARTIN-Is there a possibility that this hydrant could be dedicated to the Town? MR. BREWER-He doesn't want it. it. He has to provide an easement to MR. HARLICKER-Yes. MR. CARR-I mean, we have no problem with providing an easement. It's not that we don't want to. MR. MACEWAN-I guess the concern that I would have is that, if the Town takes care of the maintenance on that, you know that, religiously, they're going to come every fall, every spring and flush that hydrant, where with a private owner, there's not a guarantee that that's going to happen. MR. BREWER-And the next thing is, does the Town want it, though. MR. CARR-Well, we have no problem with entering in, or if the Town implements a system for the maintenance of a private system, of comply with it. Mr. Wilson will be maintaining those hydrants himself (lost word). I mean, this is his investment, his money, and he doesn't want to place any undue risk on this property. - 11 - ""-- - MR. WILSON-Well, I work for Kubricky Construction, and that's what I do for a living is put water line, sewer line in, and I could make an arrangement with Mr. Flaherty or whatever, a certain time of the year, flush the line, and he'd have to have somebody come up there to monitor it while I do it, or if he wants me to test the water, like anything else, whatever makes you happy, I'm more than glad to do. MR. BREWER-Okay. So that's something that we could have conversation with Tom Flaherty about. MR. WILSON-Yes. MR. HARLICKER-Kip also had the comment regarding emergency access. He said that it's got to be, the property owner has to ensure that the full twenty-four foot wide drive will be cleared at all times. It's got to be the full width of the pavement that's got to be cleared. MR. CARR-As to the comments of the Town Engineer, I guess the installation details on the water main we'll gladly comply with. There's no additional engineering that really has to be done at that point. The sewer main with the manhole, again, we'd be happy to add that to the project, and the handicapped spaces, as we discussed, that will be painted to indicate two spaces and the proper signage. So, we have no negative feelings toward any of the comments made by the Town Staff or the Engineer. We'd be happy to comply with them all. I think this is a proper project, this area, a high density area, as all MR-5's are. We are not maximizing our density on this property, although we are allowed to have 13 to 14 units, and we are seeking 12, but it is a high density multifamily district, and that's what we're proposing to place on this property. MR. PALING-Are you saying that you will reorient the building? MR. CARR-If it's the Board's desire, yes. MR. MACEWAN-Staff had a question regarding the ~ of plantings that you were looking for, that hedgerow? MR. HARLICKER-Well, they said the hedge along the parking lot. They didn't give any indication as to what sort of hedge that they'll be putting in. MR. MACEWAN-Did recommendations? the Beautification Committee have any MR. HARLICKER-No. This didn't go to them, because it's. MR. MACEWAN-Didn't it the first time around, though? MR. HUGHES-Yes. MR. HARLICKER-Did it? Okay. MR. WILSON-Yes. We sent it the first time, and we just kind of, as you can see, when we had the first building, we just went up, and the Beautification Committee, then we came horizontally down the back side of that building, but now that they requested segmentation, it's the reason why I had to go and develop the whole piece anyway. We just follow the property line all the way down, Mr. Pinchuk, and there's 50 some odd trees down through there. There's not going to be any visual contact whatsoever. I mean, really, but on the other side, facing the floor, I mean, that's all got natural big pines, if you've been out there, they're really beautiful trees that go all the way down through there. So, I mean, really, the place is kind of secluded. MR. MARTIN-I'm just going to give my standard stock concern, here. - 12 - '-" '--'" Now you are going to plant that landscaping plan? MR. WILSON-Yes. MR. MARTIN-You've priced out 50 hemlock trees and you will do that? MR. WILSON-Yes. MR. CARR-He'll do it. MR. MARTIN-Okay. MR. BREWER-Do we know what size they are? MR. HARLICKER-They're not indicated on here. MR. BREWER-Do we have an idea what size they're going to be? MR. WILSON-Anywhere between four and six feet. MR. BREWER-Make it easy on yourself. MR. HARLICKER-Usually between four to six feet is pretty standard. MR. MARTIN-The other standard is caliper size, the width of the trunk. MR. BREWER-Okay, and we can indicate that on the plan? MR. WILSON-Yes. MR. BREWER-Okay. MR. OBERMAYER-Did you say you were going to have lights in the parking lot area? MR. WILSON-I think they're in there. MR. HARLICKER-There's three lampposts shown on the east side of the parking area. MR. OBERMAYER-Telephone pole mounted, like that? MR. HUGHES-My name is Gary Hughes, and I prepared the drafting part of the drawings. What I've indicated on each building is gable lighting, and (lost words) approximately 20 feet on the center down through the parking lot, four of them. MR. MACEWAN-Does that answer your question, Jim? MR. OBERMAYER-Yes. MR. BREWER-Okay. Is that it? MR. WILSON-And the note also indicates that they're going to be on timers, light sensitive timers. MR. BREWER-Okay. I guess we'll open the public hearing. anybody care to make a comment? Would PUBLIC BEARING OPENED DENNIS PHILLIPS MR. PHILLIPS-My name is Dennis Phillips. I'm representing Valente Builders, Inc., owned by Dan Valente and Elizabeth Valente. I've appeared before this Planning Board on this part.icular subject before, and I think I would just. like to make sure that you have my writings in the file. I have submitted to the Planning Board a copy of a letter dated November 4th, 1993, which is writ.ten to - 13 - - Bruce G. Carr, Esq., with copies to Mr. James Martin and also the Town of Queensbury Planning Board. I also have submitted to the Board a copy of a letter dated October 13th, 1993, addressed to Paul Dusek, the Town Attorney, and, lastly, I have submitted to the Board a letter dated January 27th, 1994. I believe that those have been read into the record on previous occasions. MR. BREWER-What was the first date, you said? MR. PHILLIPS-The first date was November 4th, 1993, a written to Bruce G. Carr, Esq., regarding a right-of-way property owned by Valente Builders, Inc. letter across MR. BREWER-And we're supposed to have a copy of that tonight? MR. PHILLIPS-It should be in the file. MR. MARTIN-We have it in ~ file. MR. BREWER-You have it in the file. Okay. MR. PHILLIPS-And I would like to make that part of the record. MR. BREWER-Okay. MICHAEL O'CONNOR MR. O'CONNOR-You haven't seen that letter? MR. BREWER-Not tonight I haven't seen it. MR. MACEWAN-No. We saw it previously. MR. BREWER-I recall seeing previous letters. MR. O'CONNOR-How about the new Board members? MR. PALING-We haven't seen it. MR. BREWER-Maybe, do we have that file here, Jim, we could pull it and read it? MR. MARTIN-Yes. Do you want to have it read in? MR. BREWER-Yes, if you would, please. MR. PHILLIPS-It's quite lengthy, and it's a four page letter. MR. BREWER-Maybe you can give us a synopsis of it? MR. PHILLIPS-Yes, I could. What it relates to is the problem that, one of the problems that we see in this case. The problem begins with Mr. Wilson taking ownership of this particular piece of land in March of 1993, and in his deed, dated March 5th, 1993, he is conveyed this piece of property on which he intends to do his construction, but the unfortunate part of that conveyance was that did not give him any frontage on a public road. It only gave him a right-of-way to his land from Walker Lane, and the language of his deed says, and I quote, says, "together with a right-of-way from the premises above described, to Walker Lane, and in common with others, over Walker Lane to the Bay Road". So that deed gave him the ability to cross land in order to get to Walker Lane, and then once he got on Walker Lane, of course, that had become a Town road by use at that time. He had a right to go to the Bay Road. The problem is that the right-of-way goes across land owned by Valente Builders, Inc., our client, and all the deed says is a right-of-way. All the previous deeds say is a right-of-way, There is no definition of that right-of-way anywhere in the record title. It does provide access to Mr. Wilson, so he can get to his land, but it certainly does not contemplate a subdivision road for a 12 - 14 - \ unit townhouse development. In the record, in that letter also, is going to the issue of ownership, who owns that land that supports the right-of-way. We point out that people by the name of DorIon, John and Martha DorIon, on September 10th, 1985, conveyed land to Valente Builders, Inc., and in that conveyance, they expressly said and sold to the Valentes, also all the right, title, and interest of the parties of the first part in and to the lane known as Walkers Lane, adjoining the premises above referred to on the north, subject to right-of-way already granted to various persons to the use thereof. So there's no question but what Mr. Wilson had a right to get to his property from Walker Lane, but that right was over land owned by Valente Builders, Inc., and, in fact, Walker Lane, according to the language of this deed that I just read, was granted to, was sold to Valente Builders, Inc. So they owned it. Yet, in this record, there is a subsequent deed by the same people, a quit claim deed, by the same people, to Mr. Wilson, and it's not mentioned on this new map that you have as a deed reference, but, excuse me, it is mentioned as a deed reference on this map. It's Deed Reference Two, the one that you have in front of you for tonight, and it says, John H. DorIon, Jr. and Martha DorIon Mi tchell to Lucas S. Wilson, dated September 3rd, 1993. It's specifically referred to as a quit claim deed, and it's for the same property that was conveyed to Valente Builders, Inc. by warranty deed back in 1985. So one questiqn I have for Mr. Carr is how does his quitclaim deed for Walker Lane, that his client received in 1993, have superiority over the same deed, to the same property, not the same deed, but a deed to the same property, which was given by warranty deed in 1985? I'd like Mr. Carr to answer that question at some point in time tonight, because I don't understand it. MR. BREWER-Okay. What I would like to do is let our attorney answer it, so we have not two attorneys battling back and forth, we have an opinion from ~ attorney, so ~ know the answer. Because I think the importance of the answer is to us, not to you or not to Mr. Carr, but to us, and I would ask that we do that, and I'll put the weight on his shoulders. MR. PHILLIPS-I would refer your attorney, then, to this letter that I am briefly summarizing, because that covers the whole story on this issue. MR. BREWER-Okay. MR. PHILLIPS-So we raise the issue of the authenticity of this quit claim deed that was granted, given to Mr. Lucas in 1993, because it is our opinion, supported by the record and supported by our opinion letter, that that is a bogus deed, and it's exactly, it does what it's intended to do. It's a quit claim deed of a patch of blue sky, conveying nothing, because what was conveyed went to Valentes back in 1985. So we would ask for a legal opinion on that. MR. BREWER-Okay. MR. PHILLIPS-Relative to that, and based on that quit claim deed, Mr. Lucas Wilson went to the Zoning Board of Appeals, and he asked the Zoning Board of Appeals to give him a variance for a right-of- way to access his property that was less than that required by the Town. In fact, the Zoning Board of Appeals did grant that variance, but they granted it subject to a condition, and that is Condition Number Four on the Variance, and Condition Number Four says that should the right-of-way be determined as other than 33 feet, a new variance will be required. It raises another issue. The first issue is, does Mr. Wilson own the land, and we say not. The second issue is, if he does own anything, does he own 33 feet, because as, I don't know whether anybody from the Planning Board has walked out onto the site, but an area that could otherwise be characterized as a lane, based on some monumentation on the property, is 16 feet wide. So the question would be, does he have - 15 - .-" title to anything, and the next question is, does he have title to 33 feet. According to Andersen on New York Zoning, whenever a condition is, whenever a variance is made subject to a condition, that condition has to be fulfilled before the variance has any validity, and I'm reading from Section 23.52, for the record, on Page 242, from Andersen, which says, that if a variance is approved subject to conditions, the conditions further circumscribe the right, such a variance does not actually become effective until the conditions are fulfilled. That being the case, I think that Mr. Wilson has the burden of proof to show, A., that he owns the land and to show, B., that if he does own the land, that it's 33 feet wide, and before this variance can be valid, I think he has to make a legal showing of that to this Planning Board, and I question whether he has the ability to do that. So that's what my letter says. That's a long summary of my letter of November 4th, 1993. In addition to that letter, looking at this proposed development for this area, this proposed development is adding twelve residential units to this area. It's adding, basically, parking for twenty-four cars. It's adding three sewage disposal fields in an area where there already is a sewage disposal field for a fifty unit townhouse development. In fact, the sewage disposal field for the Valente Builders/Baybridge Townhouse Development is just south of this area called Walker Lane on this map that you received as part of tonight's application, and so a concern is that if an area like that is paved, what is the impact of that going to be on a sewage disposal field that is currently servicing 50 townhouse units, and which is designed for more than 50 townhouse units, in fact, it's designed for the entire Baybridge project, until such time as some kind of public sewers and facilities are going to be constructed, That being the case, we don't think that you can look at this particular project in isolation. We think that there is a cumulative impact here. We know that already there are 50 units in the Valente Townhouse Development. We know that 12 more are being proposed. We know that there is single family residential housing in this area as well. We don't know the potential of the DorIon property, which is immediately to the west of this land, but when you add everything all up, and you look at the cumulative development for a townhouse development in this area, within a very small area, you suddenly are thrown into the SEQRA, Type I kind of project in that we're talking about more than 50 residential units in a very small contiguous area. So we think that because of this increased concentration of housing in this area, we think that because we're over the 50 threshold, when you add up a townhouse development right next to this property, and when you consider that there is a major leachfield for an entire townhouse development right next to this property, we think this is the kind of thing that calls for an Environmental Impact Stàtement, because we just don't know how this is going to impact on something that is already preexisting, something that's there. Also, as we look at this map which is submitted today, we see that a hydrant is right smack in the middle of this area that they call Walker Lane. We question how they can take title to an area where there already is an existing hydrant servicing the Baybridge Development. We wonder whether that is going to be moved, whether that is going to be changed, whether that is going to be paved over. There are a number of questions on that. So, all in all, relative to this project, we think that there are too many unanswered questions. We think that the title question is very important. We think that Mr. Wilson has the burden of proof on that, as a matter of law, before a decision can be made by this Board. We think the record is clear, that he does not have title to this property. We think that the width of the right-of-way cannot be determined to be 33 feet, and therefore this variance would fail and it would be treated as a nullity. We think that because of the cumulative impact of adding twenty-four possible cars in this area, twelve more residential units, on top of the 50 that are already in place, and on top of the many others that have already been approved on a master plan basis by this Planning Board, that this is the kind of project that calls for an Environmental Impact Statement, and so, on behalf of Valente Builders, Inc., we would oppose the granting - 16 - --- -~ of any site plan review at this time. MR. BREWER-Thank you. MR. STARK-Mark, how do you feel about the warranty over the quit claim deed? Which one has precedent or weight, or, should we go by? MR. SCHACHNER-I think the shortest answer, George, is that, although I might have a range of opinions, and I really haven't had a chance to research, fully, the real property claims made by the contending parties, I think the bottom line is that neither this Board nor any other municipal board should bear too much of a burden of getting into too much nitty gritty detail sorting out competing real property claims. I think that if every single thing that Mr. Phillips contends is correct about the real property track record here, then Mr. Wilson, the applicant, will not be able to fulfill the variance, will not be able to meet one of the conditions, and will not be able to carry out his project, but I think more important than who I think is right, to be blunt about it, and I can tell you that as of right now, having received the bulk of these real property materials yesterday, and some today, I haven't the faintest idea who's right, but the bottom line, I think, and what's more important about !!!Z. opinion is that we needn't carry the burden of playing judge and determining who's real property right's argument is correct. We do have certain burden, in my opinion, as the Planning Board, namely that an applicant has to be able to show us what I call a colorable claim to have the real property right. So that, if, for example, we request of an applicant a deed showing that the applicant owns the property that the applicant claims they own, and the applicant can't present us with any deed at all, any piece of paper that shows it was recorded in the County Clerk's Office, that indicates ownership, I think we have the right, as a Board, to basically discard the contention that the applicant has appropriate ownership. My understanding of the facts in this case, and bearing in mind that I'm a rookie on this particular matter, is that the applicant has made some showing through some deed, and I actually have only one page of that deed, from the materials that have been submitted that I've received, but those materials indicate that the applicant has what I would call a colorable claim to a right-of-way across the property in question. Mr. Phillips' own letter, dated November 4th, to which he's referring, says, in one sentence that I picked up on, and I'm quoting this sentence verbatim from Mr. Phillips' November 4th letter, "Our conclusion is that Lucas Wilson is left with an undefined right-of-way to his property." This is on Page Three of Mr. Phillips' letter. So it sounds to me like even Mr. Phillips' acknowledges that there's some type of right-of- way, but that it's undefined, and I guess my punch-line to my very long-winded answer to George's question is that I see merits, just superficially, from looking at this just yesterday and today, I see the merits of some of Mr. Phillips' arguments. I understand that Mr. Carr has counter arguments, because I've seen letters so indicating. I assume he'll avail himself of an opportunity to respond to Mr. Phillips' contentions, but I don't think it's incumbent upon the Planning Board to really get into this to the level of a judge if there's litigation, for example. I think that the Planning Board responsibility is to have some demonstration of a colorable claim to the real property in question, and it looks to me like the applicant has probably carried that burden. I sense, I mean, Mr. Phillips' has been very candid in stating that he thinks that it's incumbent upon the applicant to prove to us a certain amount of access, and I probably agree that it's incumbent upon the applicant to carry a burden of proof, but I'm not sure if he has to prove that to us or to some court eventually if these parties end up in litigation. It's kind of a long-winded response, but I'm open to any questions, of course. MR. STARK-Okay. Fine. No problem. - 17 - '-- - MR. BREWER-Okay. Bruce, I'm going to let, I gave you time to speak. I'm going to let everybody else speak, and then if you want to come back up and answer their questions, that's fine. MR. CARR-Okay. I just wanted to answer the questions when those questions arise, because I can address the 33 feet. MR. BREWER-Okay. How about right after Mr. O'Connor? I don't want to get into a debate. That's what I don't want to do. MR. O'CONNOR-Well, I'm not cutting off Dennis, okay, or Mr. Phillips, but I think ~ would like to make a statement on record on behalf of another adjoining owner. MR. BREWER-Okay. MR. O'CONNOR-With regard to the same question, so that the record's complete, because, obviously, we're going to need a record. It's unfortunate, maybe, that Mark is joining this in the last hour, but I think that this may be different than most cases, where a Planning Board can say, that is a private concern for the individuals to determine in another forum, and I think the cite that we have here for Andersen on zoning is clear to that. There's some case law behind that cite, where you have a variance that is conditioned on a particular item. The applicant has to show that he can comply with that before he can go forward with the site plan review. In this particular instance here, there was a variance that was granted in October under 71-1993, and that' variance was from a specific section of our Ordinance, Section 179-70B, which says that you would have, in this instance, 50 feet of frontage on a public highway, not 50 feet of right-of-way on a public highway. So 50 feet of ownership, and I think what the avvlicant himself has submi tted here, contradicts any claim of color of title. All you've got to do is take a look at the map that's been submitted, or the survey submitted, and I think any rookie can do that. I'll probably eat those words myself, being a rookie. MR. BREWER-Tell us what map your with. MR. O'CONNOR-I think it's page, I think it's the second map in the series that ~ have, and it's entitled, it's what I see to be the survey map. I think the Board is required to take a hard look at the application, on this issue as well as other issues. The applicant has, in his own submittal here, contradicted, on its face, any claim or color of title. If you look at Walker Lane note on the right. MR. BREWER-I want to make sure I'm on the same map as you, Mike. Okay. MR. SCHACHNER-Can I just interrupt for one second. Just, lets make sure, to make you comfortable, you should be on a map, a survey map surveyed by David Barris. That's in the lower right corner in the legend, and the actual map number in the very lower right, is 94- 407. MR. BREWER-Correct. MR. SCHACHNER-Okay. MR. O'CONNOR-If you take a look at Note Number Four, it states that Walker Lane, or the interest of John H. DorIon, Jr. and Martha DorIon Mitchell, was conveyed to Valente Builders, Inc., by a deed that was recorded in Book 675, Page 1020. Typically, deeds are recorded in a chronological manner by Book and Page. That is an admission by the applicant that that description was contained in that deed from those two grantors. Then if you go over to their deed references, and you take a look at Deed Reference Number Two, they're talking about the same two grantors. The first deed was a warranty deed, which I think was in 1985, and then you take a look - 18 - "-- -- at what they're claiming as their color of title. That's a deed from the exact same two people that was dated in 1993, which everybody will admit is long after the other deed, and recorded long after the other deed. Just so the new Board members understand what we're talking about, we're talking about this strip, this rectangular strip that's right in here. We've discussed it before. All the maps of the Town show, and the prior survey that was submitted by the applicant, show that Walker Lane ends here, some place east of even any portion of their property, as it was described in the original deed. They got a deed of this parcel here with a right-of-way across this strip, undefined in width, to go to Walker Lane. It was only after we raised the issue that they did not have frontage on a Town road sufficient to meet the Statute requirements, that they came up with the quit claim deed, but if you look at the documentation that's been submitted by the applicant, I don't think they rise to the level that they have submi tted a claim of color of title. They, in fact, have contradicted themselves. You also take a look at the labeling on the map, and I'm confused on that. I think it's inappropriate. This Board asked for a survey of the holdings of the applicant, and you will see the parcel that's located there as 1.467. It's labeled, "Lands of Lucas S. Wilson". Look at the piece to the left of it. That's not labeled. If you look at the lands to the left of it, it's not claimed to be Lands of Lucas S. Wilson. I asked a question by Paul, and I really got a fuzzy wuzzy answer. Typically, a surveyor will note on a survey who owns a particular parcel of land. I think the way it is set forth here is inappropriate. On the question of color of title, I think they have failed to meet that burden. I've got a couple of other, I've got other issues under your Article V, Site Plan Review. I also have an issue under SEQRA, as to the cumulative effects. MR. BREWER-I have just one question. Is this battle, correct me if I'm wrong, if you're saying the variance is not valid, then why is this battle with us? It should be with the ZBA, shouldn't it? MR. O'CONNOR-No, a variance was granted if they could meet the condition of it. MR. BREWER-If they have not met the conditions, what you're saying is, the variance is not valid. So if they don't have a variance, they shouldn't be in front of us. We shouldn't be arguing the case with you. So I don't know if you're in the right place. MR. O'CONNOR-That's the point we're trying to make. I would leave that to your counsel. I think he understands the point we're making. MR. SCHACHNER-Well, more importantly, I think I understand your question, Mr. Brewer, but I don't have any background on what occurred before the Zoning Board of Appeals, other than reading the variance. One thing that strikes me as, perhaps, unusual, is that I'm led to believe, but they can tell me if this belief is incorrect, that the same public commentors that are commenting here tonight before our Board also raise the same or similar comments in front of the Zoning Board. Is that correct? I don't know. MR. O'CONNOR-Yes. MR. PHILLIPS-I did not appear in front of the Board. MR. SCHACHNER-All right. So some did. Some didn't, and, obviously, neither me nor, I assume, any of the Planning Board members were present at the ZBA proceeding. It appears that, for whatever reason, rightly or wrongly, the Zoning Board of Appeals of the Town of Queensbury evidentally felt that the applicant met some burden of demonstrating some level of ownership, and decided to grant variance from the amount of frontage or the amount of feet required. I can't really speculate as to what led to that decision. I have read that decision. We have that decision, but - 19 - ~ -- I guess to get, maybe, to more head on address your question, which I understand to be, if they can't meet their variance, meaning the applicant, do they need to be here, it's correct, as one of the attorneys mentioned, that if you cannot fulfill a condition of a variance, an expressed condition of a variance, then the variance is essentially null and void, but I don't think it's up to this Board to get into, again, to get into. MR. BREWER-The technical aspects. MR. SCHACHNER-Of a real property dispute to decide whether or not a particular condition of a variance has been fulfilled, and that's not at all to discount the logic or the credibility of anything that either Mr. Phillips or Mr. O'Connor has stated, but there are relatively simply, relatively straightforward remedies that they can pursue, if, in fact, the applicant doesn't have the ownership that the Zoning Board of Appeals evidentally determined the applicant does have, and I don't think it's a Planning Board call, unless either of two things happen, one being, it's black/white, it's so plain and so simple as the analogy I gave earlier about somebody who couldn't produce a deed showing any color of claim of ownership or if the Planning Board, for whatever reason, decides to take it upon itself to act as judge and jury on this and, for example, you could authorize me to get into this in a nitty gritty fashion which, frankly, I don't recommend. MR. BREWER-Okay. I would say, then, as we sit here tonight, as far as I'm concerned, they have a variance. If you want to protest that, then there's means of doing that, and I'll take the opinion that I don't think we should get into the. MR. STARK-You're representing Mr. Pinchuk? MR. O'CONNOR-Yes, I am. Mr. Brewer, I'm not contesting the fact that they have a variance, but I'm going back to what Mr. Schachner said earlier. They have to show, as part of their application, at least, a color of title of a right that they have complied with the terms and conditions of their variance, and my argument is, and it's an argument that if you take a hard look at what they themselves have submitted, they've contradicted any claim or right of color of title to ownership of that road. The ZBA did not make any passing on whether they owned the road or not. The ZBA said, like in the shopping center case between the tenant and the landlord, it was going to be decided in another forum, and at that point, everybody said, fine, we will decide it in another forum. I think this is the appropriate forum to do it. There are other forums also, but I think that this Board has to determine whether or not they can comply with the conditions of the variance they were granted. MR. BREWER-Okay. MR. O'CONNOR-You know, if they submit two deeds to you, one chronologically before the other, and they don't even show that somehow title came back in to these people, what are you looking at? It's like submitting no deed. MR. CARR-I think I can clear this up. The Zoning Board, we went through the argument as to who owns it, color of title and all that. The Zoning Board decided that they believed Mr. Wilson had at least color of title to the property. So the only condition they have placed on it is whether it could be 33, it's got to be at least 33 feet in width. Mr. Phillips has submitted an abstract of title in his November 4th letter to you. In that letter is a map, or is a deed from Ambrose Genier. Mr. Phillips obviously did not go to the maps that were referenced in those deeds, but in it is a map filed at the Warren County Clerk's Office of Ambrose Genier's property that shows the right-of-way being 33 feet in width. I submit that to the Board to show that we have complied with the condition that the right-of-way be at least 33 feet in width. We - 20 - - -- have had it surveyed, and Mr. Barris has put it at 33 and a half feet in width, which is wider than we had originally thought. That is on file with the Warren County Clerk's Office, the map of 1950, and it's in the chain of title that Mr. Phillips had submitted as the proper chain of title for this piece of property. MR. BREWER-Okay. MR. PHILLIPS-I'd ask Mr. Carr, as long as he's up, to explain how one deed can grant everything in Walker Lane, and how a subsequent quit claim deed can grant the same thing? I haven't seen this map, so I don't have any comments on it, but I'd like to hear Mr. Carr's explanation of that. MR. CARR-If the Board wishes to hear it, I can address that. MR. BREWER-Does the Board wish to hear it? MR. MACEWAN-Yes. MR. STARK-Sure. MR. CARR-It's very simple. Mr. Phillips said that in our quit claim deed, or in our deed originally, from Mr. Caimano, I think was his name, that we had access to Walker Lane, which implies that Walker Lane was not in front of our property. The deed to Mr. Valente, he is entitled to Walker Lane, as it ended in 1985. I don't think Mr. Phillips would argue that Mr. Valente, at the time that he recorded his deeds, recorded a survey map of the property that he was taking. In fact, he failed to tell you that in the deed to Mr. Valente it says it is intended to convey the property that is shown on the attached, or the subsequently filed survey map. The map clearly showed that the property line does not include this parcel of property. So, all it included was Walker Lane, and Walker Lane was shown on the filed map as ending right here. I don't know how he can claim that he has title. Also later, I think it was in 1988 or '87, Mr. Valente dedicated Baybridge Drive to the Town of Queensbury. In that deed, it describes, starting at a point down here, and following his northerly line straight up to here, so he is, Mr. Valente himself, is acknowledging that this line right here was his northerly line that he dedicated to the Town. It doesn't come up here and jut here and come down here. It comes straight up here, and I can submit, I've got the front page of that deed for the Board, if they want to see it. So, there is a lot of smoke and mirrors going on about this, but if you just look at the maps that were filed, and the documents from Mr. Valente himself, it clearly shows that he never considered that stretch of property to be what he was purchasing back in 1985. MR. O'CONNOR-My response to Mr. Carr is, I'm not asking this Board to make a legal opinion as to title, but I think it's an issue that you should refer to counsel to the Board, because of what has been submitted. I can answer each and every comment that's been made. That's a map, shows a 33 feet right-of-way, 33 and a half foot right-of-way. This variance is not based upon right-of-way. This variance is based upon ownership. MR. BREWER-Can I just look at the variance? Do you have a copy of the variance? Does anybody have a copy I can look at? MR. O'CONNOR-Yes. Someplace the buck has to stop, and somebody has to make a decision, and at the ZBA they said it wasn't their forum. I think it is this Board's obligation to determine that there is adequate access. I'll go through that when I get into my Article V review of the application. Has the Board looked at the notes that are on the survey that was submitted? MR. BREWER-But, Mike, this says, should the right-of-way be determined as other than 33 feet, a new variance will be required. - 21 - ....."'....... - It doesn't say ownership. It doesn't say, not ownership. It says, I don't want to argue all night long, but I'm just reading what it says. MR. O'CONNOR-Look at Section 179-70B. That's what the variance application was for, or from. That doesn't talk about right-of- ways. There's no place in our Ordinance that says that frontage on a highway is frontage by right-of-way. The relief granted was 17 feet from Section 179-70B. For a multi family project you must have at least frontage equal to a local arterial road, or something of that nature, which is 50 feet. If you look in the definitions of frontage, front lot line, the lot line which abuts upon a street or highway, right-of-way or boundary. You're not talking about a right-of-way upon it. MR. BREWER-It says, such development shall provide actual physical access to and from each principal building to be built on the property. MR. BREWER-If you look at 179-70B. MR. STARK-Finish the public comments, and then get a determination from Mark. MR. BREWER-His determination to us tonight was not to get into the nitty gritty. Lets let you finish, Mike, and then we'll go on with the public hearing, and then we'll make a decision as to what we want to do. MR. O'CONNOR-Okay. I was just addressing the question of color of title. Since when do trees 12 feet on center, 4 feet high, provide adequate screening? MR. BREWER-What should he do, put 30 foot trees in? Lets be fair. MR. PHILLIPS-I only have one final comment to make, and that is on the issue of, the variance was grounded upon a quitclaim deed being presented to the Zoning Board of Appeals, whereby Mr. Carr, representing Mr. Wilson, said to the Zoning Board of Appeals, he wasn't talking about color of title in the form of a right-of-way. He was talking about ownership in the form of a quit claim deed, and as Mr. O'Connor has pointed out, this map, under the category of Walker Lane, clearly states that these same people gave to Valente Builders, Inc. the ownership, all the right, title and interest in the Lane known as Walkers Lane, and so I don't know whether to admire Mr. Carr or not, relative to his explanation of the difference between the warrantee deed and the quit claim deed, but I think there is a common understanding that the variance issued based on ownership and not right-of-way. MR. BREWER-Okay. MR. O'CONNOR-The last comment on that same subject would be that this map was not before the ZBA. These notes were not before the ZBA. You have new information that's before you now that was not before the ZBA, and it's shown on one particular setting, and I think you have the obligation to take a hard look at that. Beyond that, I'd take a look at Section 179-31, the purpose of Site Plan Review. Mr. Pinchuk's single family home is immediately adjacent to this particular property, and you are imposing on there noises, uses, although permitted by zoning, not there when he came upon the property, not there when his residence was constructed, and probably not even in that zone when that residence was constructed, and the only offer here of mitigation, that 1 understand is 12 foot on center, 4 to 6 foot high cedar. I would suggest that you follow the comment that Staff has, as far as redirection of the building, to keep these people from looking immediately into the backyard of the Pinchuk' s residence, and changing the building around on a right angle to the side property lines, which I take it would then have no windows, at least in the then north end of the building, - 22 - -.- which would give some degree of privacy. I would also suggest that you seriously look at requiring that the parking lot and the driveway on the site be flip flopped, so that the people, when they drive in, particularly these last properties here, don't all have their car lights going directly into the Pinchuk property, which is a little bit downhill, if I understand the elevations, from the subject property. I don't think that would be a great deal of difference in construction or construction costs. They could park coming out this way here, and perhaps, and I would probably presume that this property over here will be developed as multi family, because the main point that I make is the precedent that you're setting, and the precedent that you're setting under Article V of Site Plan Review. The DorIon parcel lies right here. That's 4.2 acres of land, based upon this density. That's another 40 apartments, and I really wonder where you're going. If you look at the subdivision regulations for single family homes, if you have over 35 homes, you're required double entrance. Just up the road here, somebody was proposing 18 to 22 single family homes, some on three acre lots, and at Sketch Plan Review, you said, put in a boulevard, have a double entrance to it. Where' s the double entrance to this, where you've got 12 units here, and you've got the potential for 40 units here, 52 units. From a safety point of view, I don't understand what you're doing. Now, you may be able to get a truck in there. You may be able to turn a truck around in there, but you're not creating a good planning setting. If I came in and asked for the potential, Phase I, Phase II, of 52 single family homes, what kind of an entrance would you require? You wouldn't allow a 24 foot private driveway, and, yes, we'll make some agreement down the road as to maintenance of the driveway. We'll make some agreement as to maintenance of the hydrants, etc., etc. We don't seem to be treating different types of developments with equality, and I think you've got the same people living in those, or potentially living in them, citizens of Queensbury. Simply because it's zoned MR-5 doesn't mean you've got to use the postage stamp theory and say, okay, we divide 1. whatever it is by 5,000 square feet per unit, and that's the maximum. There's that can go on there, but I think it's maximizing it, and I think you're going to have a real tough time when the next guy comes in and says, I've got a deeded right-of-way. Everybody on Walker Lane has the same deeded right-of-way, and now I've got this right-of-way here to here. Why can't I have my 40 units? MR. BREWER-Because then it would kick it over the 35 units, where there's the double entrances, wouldn't it? MR. O'CONNOR-Yes, it would. MR. BREWER-He's building II units. So should we, every time somebody comes in with four units or six units, consider the next guy's property and say, well, that guy may build another 40 units? He may not build them, and make him put two roads in? Is that fair? MR. O'CONNOR-Typically, you do. MR. BREWER-What about the 50 units down in front? Are there two entrances to that? MR. O'CONNOR-Yes. MR. BREWER-There are? Where? MR. O'CONNOR-There's one off of Walker Lane, right here. There's one off of Bay Road. MR. CARR-No. MR. BREWER-Not right now there's not. MR. O'CONNOR-What entrances are you talking about? - 23 - ~ MR. BREWER- In Valente's property, there's only one. We should consider Valente's property? We should consider this property? We should consider every property on Bay Road? That isn't fair. MR. O'CONNOR-I'm making my record, and you can comment, respond how you want, Mr. Brewer. The Valente property, as I understand it, has two entrances. MR. WILSON-One's a construction road. MR. O'CONNOR-And I think it goes with Phase, the other phases when they're constructed. That's part of the planning for that property. MR. BREWER-That's right. MR. O'CONNOR-Okay. When you get to this, where's your second entrance going to be? How are you going to distinguish this property from that property? The Zoning Board isn't going to be able to. They're going to come in with the same strips of paper, the same right-of-way, and claim, we're in an MR-5 zone. We've got to be able to build to post stamp. MR. HARLICKER-Well, the difference might be 12 units, as opposed to 40 units. MR. BREWER-That's what I'm saying. If the next guy has 10 more acres than this property, he may want to do 40 units, or whatever. I don't know. MR. O'CONNOR-As to back, beyond general planning. We have a specific objection to the screening that's provided as being inadequate. MR. BREWER-Okay. MR. O'CONNOR-If I look at the language that you have within your site plan review, it's supposed to constitute a visual and/or noise buffer between the applicant's and the adjoining properties. I think you've got to come down to at least four feet on center, if you're going to start at that height, maybe six feet on center or something like that. Twelve feet on center is from me to you or me to the table. At four feet in height, we'd all be long gone before it means anything. Those are my comments. MR. BREWER-It's 10 foot on center, Mike, just for the record. MR. O'CONNOR-The oral presentation was 12, or Staff's comments were 12. I'm not sure who picked up on it. MR. BREWER-Our map says 10. Okay. Is there anything else? JOHN WILLIAMS MR. WILLIAMS-My name is John Williams. I live on Walker Lane. I'm an interested spectator, more than an interested spectator. The one thing I would suggest, would you kindly take that small print that was shown there, given here tonight, I don't know where it was. I haven't seen it myself. MR. BREWER-The variance? MR. WILLIAMS-No, no, the print with the properties you were talking about. Have you got that, the little one, that little plot of land some place? This one here. If you just take this and put it up with there, exactly. Where's the right-of-way on here? Well, my point is this, put the exact line, I happen to be an engineer myself. Put this exact line where it is on this plan here. It can be transposed. This can be transposed on this, certainly it can be transposed on this. Transpose it on this. Have an engineer, have - 24 - r- a draftsman transpose this on this, and see where it is. just a suggestion. That's MR. BREWER-Okay. ESTHER DANSKY MRS. DANSKY-My name is Esther Dansky, and I live in the Baybridge Townhomes, and I'm not an attorney. A legal mind I do not have, but I have attended every single meeting on this, and I am confused. Mr. Carr, I have in front of me, I guess I'll call it the minutes, the motion, from the Zoning Board's 10/27 meeting, and I have read this. I have talked about it with my constituents, and we do not see where a variance has been established. It says the variance is based on the following conditions. Then it goes on further and it says, as you read, Mr. Brewer, should this be determined as of other than the 33 feet, a new variance will be required, and maybe, I think you've got the cart before the horse here. Have we established a variance for this property? MR. BREWER-That was my question earlier. MRS. DANSKY-I say no. I've been to every Zoning Board meeting. Many of my people from Baybridge have been there with me, and we can't all be this confused. Well, the only thing 1 can do is read the documents that we have in front of us. MRS. DANSKY-Right. MR. BREWER-And this says, an Area Variance approved. MRS. DANSKY-Upon these conditions somewhere. MR. BREWER-Upon these conditions. Now, if they have a variance, from what I know, and I'm not a lawyer either, they have a variance, so they can proceed with the process. They come to us, and we either make a determination whether their site plan is acceptable or not acceptable. If you disagree with this, there is a means for you to go to an Article 78, and proceed with that, and challenge this decision. MRS. DANSKY-You mean as an individual taxpayer, homeowner in this area, it is up to me? I would think, as a Planning Board member, you would need to have proof of this variance. Where are our attorneys? MR. BREWER-Our attorney's right there, and he suggests that we do not get in to the nitty gritty of this. MRS. DANSKY-I mean, is anybody else as confused as I am? Am I the only one here that is confused? MR. BREWER-No. I'm thoroughly confused. MRS. DANSKY-Well, then, how can you make an intelligent decision, something of this impact, as these gentlemen have stated, when you are not even sure that Mr. Wilson has this variance? I mean, that's just completely boggled my mind. MR. SCHACHNER-The easiest response to that, in my opinion, is that there is a division of responsibilities among the Boards and among other entities in government, and there are many instances in which confusion exists about any number of issues, property ownership happens to be one of the most common ones that causes confusion before municipal Town Boards, Planning Boards, Zoning Boards of Appeals, and all sorts of other Boards as well, and Mr. Brewer, I would agree with your characterization of my advice earlier, and I would agree with the statement you made. It remains my recommendation that it's not within this Board's responsibilities to be the definitive arbitrar of a real property dispute. It may - 25 - ~ well be confusing. It may well be confusing well trained attorneys and those who are confusing to the Planning Board as well, Board's responsibility. That's my opinion. to both those who are not, and it may be but that's not this MR. RUEL-What should be resolved first, the problem with Walker Lane? Doesn't everything hinge on that? MR. SCHACHNER-Not in the context of your responsibility. MR. RUEL-No, no. I wasn't talking about ~ responsibility. What about your responsibilities? MR. SCHACHNER-Not in the context of ~ responsibilities. MR. RUEL-From a legal standpoint can we get a determination on Walker Lane? MR. SCHACHNER-You can get one. MR. RUEL-When? MR. SCHACHNER-If you want, I can give you a legal opinion on this issue at next month's meeting. I don't recommend that that's an appropriate route for this Board to go, but if you want me to do that, I'll be happy to do it. MR. RUEL-You can make a determination on that this evening? MR. SCHACHNER-Absolutely. I said next month's meeting. Of all the real property documents that have been discussed, I have exactly one page from one deed. MR. RUEL-Yes, but everything seems to hinge on that, right? The validity of the variance is hinging on that, and everything else is. MR. SCHACHNER-But my point is that it's not up to this Board to determine the validity of a variance. MR. RUEL-Okay, then why are we even reviewing this application, if it's left open? MRS. DANSKY-That's right. I agree. MR. SCHACHNER-Because the applicant has received a variance. Now, if you all don't have a problem with that, and you want to step out of the process, I suppose you could do that, but the applicant has received a variance. MR. RUEL-AIl right. I'm not talking about the variance. I'm talking about Walker Lane problem, determination as to ownership. MR. MACEWAN-That's what he's talking about. He got the variance, though. He got a determination from the ZBA. MR. SCHACHNER-Well, but in fairness to Roger's point, Craig, the ZBA didn't necessarily answer this question either, this question of ownership. I mean, again, I can't speak to it, but it may be that the ZBA didn't answer this question either, and, again, I don't think it's incumbent upon the municipal board to be the final arbitrar of a real property dispute. MR. RUEL-But aren't we wasting our time? I mean, what's the sense of going on? MRS. DANSKY-Yes. I agree. MR. SCHACHNER-In all honesty, if, ultimately, the objectors are correct, and the applicant really doesn't have sufficient ownership - 26 - '- for access, then there won't be a project, and, yes, we'll have wasted some time, but it's not up to you all to make that decision. MR. RUEL-Okay. Then we go on the assumption that the Walker Lane property is properly owned? MR. SCHACHNER-As long as you have sufficient proof to constitute what ~ call the colorable claim. MR. RUEL-Do we? MR. SCHACHNER-From what I've seen so far, yes. MR. RUEL-Okay. MR. SCHACHNER-We can get to this. I would suggest, Mr. Brewer, that you run out the public hearing, because we still may be hearing from a dozen or two dozen other members of the public, presumably, on this issue. At the end of that time, if the Board wishes, I will summarize, very, very briefly, my understanding of the legal real property issue, but I can tell you now, my advice will remain that it's not up to this Planning Board to be the final arbitrar of that dispute. MR. BREWER-Okay. MRS. DANSKY-Well, I would plead with you members on the Board that before you make your decision, this variance business be resolved. Thank you. MR. BREWER-Okay. Thank you. Is there anyone else? . MR. CARR-I'm not going to beat the title issue. I mean, we beat it to death at the Zoning Board. We got our variance. I knew it was going to come up here again tonight. I tried to explain where we've come from. I've tried to explain tonight where we believe we own the property, and that it really, I agree with Mark. It should not be an issue before this Board. The Zoning Board determined to give us a variance, based on all the evidence, and we went through the whole thing with them, and the Town Attorney, Paul Dusek, had the exact same advice for that Board, that as long as we presented a deed, we should take that as what it is, a deed, whether it be quit claim, warranty, or whatever. We have a deed to that property. So moving on from that issue, both Mr. O'Connor and Mr. Phillips brought up this notion of taking all the property in the area that's vacant and putting every burden that could be under this Code on our property. That's not fair. Mr. Phillips went so far as to say this should be a Type I SEQRA action. It's not even close to being a Type I SEQRA action. Your own Code says it's definitely a Type II because it's under, I think it's the 100 unit mark, and that is determined by your own Code to be a Type II action. MR. MARTIN-Well, Type II for the Code, but it's unlisted by SEQRA definition. MR. CARR-Unlisted, right. As to adding 12 units, 24 parking spaces and 3 sewage disposal units, those are all below what could be on this property, under the current Code. So we are not maximizing. We are close to maximizing, but this is a high density area. It's a multifamily residential zone. I mean, your preamble to MR-5 says it's a high density area, and that's what it's designed to do. As to the sewage disposal units effecting the Baybridge units. The DEC issued, I believe, a SPDES Permit for that complex. They issued a SPDES Permit for our complex. They looked at the total impact of our property on all the surrounding properties. They made a determination, in their wisdom, that our unit was properly designed and would properly operate for units of this nature. So I don't believe that there is a fear, a justified fear, that our septic system will at all adversely effect the Baybridge septic - 27 - -- system. MR. WILSON-Yes. I'd like to note on that, too, because when I talked to Randy Galusha, when he was doing this, I explained to him that I'd been having some problems about Mr. Valente complaining about effecting his sewer project, well, he said, well, I find that kind of hard to believe when I'm looking at his map right here, and when I do your technical work, that is part of my technical work, is looking at the surrounding areas, and unless there is a well there, for Baybridge, I don't see how it could be any problem with the sewer system that we have on my project, and that's why he issued the SPDES Permit, because he was looking right at it. MR. BREWER-Okay. MR. CARR-Mr. O'Connor went on to mention Mr. Pinchuk's home, I believe probably a very nice home, single family residential, in a multifamily zone. I believe, and I could stand corrected on this, but I think it was a multifamily zone back when he purchased it in the late 1980's. So I don't know how you can complain now that the zone is being built as it was planned at the time you purchased your home, because it's not what you want, and as for turning the building, we have no problem with that. The Town has requested it. Mr. O'Connor has requested it. Our engineer has approved it. We have no problem with turning that building to the side. We'd gladly do that. MR. BREWER-Okay. MR. CARR-As to Mrs. Dansky's comment about the confusion of the variance, all I can go back is to say the very basic of what that variance said. The variance was approved, subject to conditions, and the only condition that really concerns this Board is the 33 feet, at a minimum, and I've showed you a filed map, in the Warren County. I didn't make that up. I didn't draw it on myself. That's a filed map from 1953 or '54, showing that it's at least 33 feet wide, in fact, our surveyor who did survey it, looking at all these maps and deeds, put it at 34 and a half feet. So, I think we've met that condition of the variance. That's my only comments to what has been said, to date. MR. STARK-Mr. Wilson, it's been recommended that you reverse the driveway and the parking area so their lights wouldn't shine in Mr. Pinchuk's property. Would you be adverse to doing that? MR. WILSON-As long as it didn't complicate the engineering on it, where it would effect it. MR. CARR-Our only concern in flip flopping is, could we still maintain the 45 foot at radius? MR. WILSON-I've got a suggestion. Instead of having the trees, and he was complaining about, they're only 10 foot centers, that I'll put hedges, I mean, I'll do whatever it takes, and just put hedges up through there. You know what hedges are like. Lights don't even flash through, don't even go through them, and that way, that shouldn't be a big problem.. MR. CARR-Can I just ask, that was Mr. Jarrett's suggestion. Can you still get four to six foot hedges? TOM JARRETT MR. JARRETT-My name is Tom Jarrett. We can achieve, basically, continuous coverage along that property line if we use hedges as opposed to trees. The comment has been that young trees won't screen the adjacent properties adequately, in the early years, and I can acknowledge that point, and I think that hedges might be an alternative that would be acceptable to the parties. - 28 - '---- MR. MARTIN-And could you please define hedges, so we know what we're talking about, specifically? MR. JARRETT-I think it's probably not ~ place to do that. I think maybe we'd want a landscaper to do that, but I'm just suggesting that hedges are an alternative that could be looked at. MR. BREWER-Okay, and we'll make that note, and we'll ask. MR. MARTIN-You have your engineers here. Does it appear you can flip flop that parking and make, it appears to me you can maintain that 45 foot radius, just shift it. MR. BREWER-It's not a problem? MR. WILSON-It's not a problem. MR. BREWER-Okay. MR. JARRETT-If I could offer one issue. I didn't layout the property, but one concern 1 would have, in regard to safety, with pedestrians crossing the traffic lane and going to the building. I think that should be looked at more careful, before a decision is made. MR. BREWER-Okay. MR. CARR-Okay. Thank you. MR. RUEL-I don't agree with the reversal on the parking area, from a safety standpoint, because if you park, if you reverse the parking, then after you park your car, then you've got to cross the road to get to your apartment. Whereas, this way, you park your car and you go directly to your apartment without crossing the road, from a safety standpoint. Also, the parking area, then, would be adjacent to a wooded area, I guess. Right? MR. BREWER-Yes. MR. RUEL-Well, it's a lot easier for someone to break into a car from a wooded area then where parking is now. I suggest the parking remain the way it is. I think it's fine. MR. BREWER-Okay. Bob, comments, questions? MR. PALING-I guess, in my mind, the width of the right-of-way has been established, unless I'm way off on that. The map submitted seems to prove that. I still have a problem with the ownership on the thing, and I would like to see our attorney render an opinion and let us vote on it, and then if it's wrong, or if it's to be appealed, let it be. MR. BREWER-Okay. JOYCE HUNT MRS. HUNT-My name is Joyce Hunt. I'm a resident of the Baybridge Townhomes, and I've been to everyone of the meetings about this issue, and I have to take exception to Mr. Carr's statement. If you will look at the minutes of the Zoning Board meeting, they said essentially what you were saying, that it was not wi thin their jurisdiction to determine the ownership or the right-of-way. They gave the variance without determining that issue. So it's like they're passing the buck, and now you're saying the same thing. It would seem to me that issue should have been solved before all of this went on. MR. BREWER-Okay. Thank you. comment? Is there anyone else who'd like to - 29 - '- ........- RICHARD WILSON MR. R. WILSON-I'm just commenting on the hedges. My name is Richard Wilson. I'm a little bit prejudice. Lucas is my son. I work for Kubricky Construction. I'm a Construction Manager, and I've been with them 18 years, and we do a lot of site development, plant trees around, for hiding our quarrys, screening, we've done green harbor. We've done high point, for the Michaels Group. I just finished reconstruction of Route 7, a $30 million job, and we had to plant young trees allover. Now ~ suggestion is, I think the hedge type is a good thing. We can make a hedge out of red cedar trees, which, if you drive around town, you'll see it doesn't take them very long to make a solid hedge which will screen it. I don't think that's a problem. I think it can be done. I know a lot of farmers that will be glad to give us all the red cedar trees we want to cart away. So I think that problem could be solved very easily. MR. BREWER-Thank you. Is there anyone else? MR. O'CONNOR-I respond specifically to the comments that have been made by Bruce Carr. I think we're back to the issue of color of title, and I don't know if you have a clear determination from what was submitted to this Board on this map. I think Mr. Schachner is entitled to look at both deeds in total, and not listen to, look at just one paragraph, and I think his reading is going to say, there's got to be something else besides these two deeds, or you don't meet the color of title. The same thing as the contradiction of the ownership designation on the map. You've got to take a hard look at what's in front of you. I know it's an issue that's been fully discussed, different times, but that Board didn't have a condition in a variance to it, and I would agree with what Mark is saying, that if a color of title is made, then it's another forum that we've got to go to if we dispute the decision that's made by this Board, based upon what you have in front of you, and you don't have everything in front of you, or he hasn't got everything in front of him. I don't think he can make a real intelligent decision on that. As to the issue of the hedge, it would be welcome, as opposed to the trees, as far as what has been explained to us. As to the issue of flip flopping the parking, I don't look upon that as a safety issue. This isn't supposed to be a public thoroughfare, as I understand it. The back end of that is a parking area for four apartment units. I don't know what high speed traffic we're going to protect people from. If you flip flop the parking, we're going to talk about something that's permanent. The hedges may be good for the first couple of years, three years, with this particular owner, but what are you going to do five years down the road, and whatnot, when all of a sudden they start, if they die off or don't die off. I mean, that's not something that really is enforceable or controllable down the road. I know presently, right now, every meeting, Mr. Martin tries to get a definition of what we're talking about, so that when he goes out with his Certificate of Occupancy, he can count the trees and say, yes, it looks good today, and he may talk about security for the course of a year, to see that the plantings stay, but that's not a permanent screening situation. Here, by changing the site, without drastic impact upon the developer, you can do a lot more than simply putting up a barrier fence. You may even talk about a portion of the parking. The critical area to the Pinchuk property is f~om the back of the second building north. That's the area where the lights are going to shine in. Put it in, you know, you ought to look at it. Put it in at angle parking. Something so you're not directly shooting right off into his back yard, into the back of his house, and that's not an unreasonable request, or at least we don't believe it's an unreasonable request. We think that you could accommodate the parking flip flopped very easily. It's supposed to be a setting. It's supposed to be an apartment setting. It's not supposed to be a speedway. If we were talking about through traffic, I would understand your concern about walking the 20 feet from the back of your car to the sidewalk. - 30 - '---' - MR. BREWER-Thank you. George, you have a question for Mike? MR. STARK-No, not for Mike, but for Roger, maybe, to alleviate his concern. Roger, up to Robert Gardens Apartments, they have their parking in the middle. You park your car. You walk across the U- Shaped road, Robert Gardens South, and then you go into your apartment, and it's not a problem up there, them crossing, it's not like crossing a highway. It's just crossing a parking area, and it's not a problem up there. So, to have it on this side, I mean, you know, it's not like there's traffic going through there. There's going to be 10 cars up there, 5 cars up there, and they're not all coming in at once. I don't think it's a problem. MR. MACEWAN-I think Regency Park does the same thing. MR. RUEL-In view of the monumental problems on this application, this is trivial. MR. BREWER-Okay. Is there anyone else that would like to comment? MR. PHILLIPS-Yes. I'm Dennis Phillips, returning. I just have a couple of comments. Mr. Carr has produced for the Planning Board the so called "Ambrose Genier" map, where he proports to show the 33 feet of right-of-way. I think it's part of the record, but I would like to repeat it, that the deed to Valente Builders, Inc., back in 1985 specifically says, being the same property deeded to John H. DorIon by warranty deeds from Ambrose Genier, and referring to the title of Ambrose Genier. So everything that Mr. Carr has produced for you was owned by Dorlon, and then DorIon conveyed to Valente first, and that, of course, is the issue that we've been running around all night long. I'd like to repeat, of course, that the variance was based on ownership. I think we've established that Mr. Wilson does not have ownership. Again, that's a legal question, but the question I have for your attorney is that when a variance is issued by a Zoning Board of Appeals, subject to a condition, it would be ~ thought that the variance holder has the obligation to fulfill that condition. That's just not a color of ti tIe issue. That is an issue on which he has an affirmative burden of proof before he can move ahead. The variance also, in Condition Number Four, talks about ~ determination, and whether that determination is a Zoning Board determination or a Planning Board determination or a court determination, I think that when it says ~ determination, I think he's got to come in and say to you that this is a settled matter, and I own this, and he's not done that, as far as this proceeding is concerned. Interestingly, the variance also talks about the so called right-of-way being determined as, if it's other than 33 feet, then a new variance is necessary. If you look at, and we're being very strict constructionists here, but if you look at this map, it is other than 33 feet. It's 34 and a half feet, and so it does not comply with the precise language of the variance. I say that a little bit tongue and cheek. Getting back to the Environmental Impact Statement stuff, and here we're looking at whether or not there's going to be an environmental impact statement. I don't know whether the DEC, in issuing the SPDES Permit, or in saying it was going to issue the SPDES Permit, went through the Environmental Impact process, but as you know, whenever an agency is going to make a determination, that is something whereby a hard look is necessary. If this is, I talked before about the possibility of this being a listed action, because of the cumulative impact of this project on top of others in the immediate area. If it's an unlisted action, still it raises the issue of significance because there will be a substantial change in the use, or intensity of use, of land, and even though it has been argued that this project is less than the allowable density, still, I think that when you put 12 residential units and 3 septic systems, and 24 cars on a piece of land that is less than one and a half acres, that there is a major difference in the intensity of that use before and after, and our concern, from the point of view of Valente Builders, Inc., is not only the location of our sewage disposal fields, but also the - 31 - possibility of this intensity of use altering in some respect the drainage patterns of that area. environmental issue, we're not just meaningless. We think that there significant, and we ask you to take a you. So, when we raise raising it because might be something hard look at that. this it's very Thank MR. STARK-Tim, even though Mark says that it's not our problem to decide who owns the land and so on, I would feel more comfortable having a decision from Mark on that before we vote, but I would also like to be fair to Mr. Wilson and maybe not put it off until next month, but maybe next week. That's just my. MR. BREWER-All right. Lets get the public hearing over with. I'll close it, and then we'll make our comments as to what we want to do. Is there anyone else who would like to speak, from the public? MR. WILSON-I'd like him to address about the sewer. MR. BREWER-Okay. MR. JARRETT-Again, my name is Tom Jarrett. I designed the sewage disposal systems for the project. I looked at that general issue with regard to impact on adjoining properties, and my opinion was, and is my opinion, that there will not be significant impact on the adjoining properties. I also discussed that issue with the Town Engineer, and DEC and Randy Galusha. They also believe that there won't be any significant impact on adjoining properties from the sewage disposal systems. MR. STARK-I don't think we had a question about that. MR. BREWER-No. Thank you. Is there anyone else from the public, before I would like to close the public hearing? INNES WILLIAMS MRS. WILLIAMS-My name is Innes Williams. I live very close to this new project. I live on Walker Lane, and it's not very far from where I am. Now, they say 24 cars. That means, to me, a minimum of 24 cars that may be going to that piece of land or that new development every day, but I can figure 24 cars, people's friends, going back and forth, trips to the grocery store, and other places. I think that's going to make an awful lot of traffic by my home. HELENA REARDON MRS. REARDON-My name is Helena Reardon. I'm from the Bay Road, and it says here, the Planning Board meeting on the 19th will be at the Activities Center at 7 p.m. MR. BREWER-Yes. MRS. REARDON-I'm requesting 10 acres be divided into two lots, and I wonder if we're going to get to that tonight? MR. BREWER-What is your name, ma'am? MRS. REARDON-My name is Helena Reardon, and this is in regards to an Andrea Gray. MR. BREWER-That was done first, ma'am. MRS. REARDON-No, no, no. We've been here first. MR. BREWER-We took care of it first. We tabled it, only because the notices hadn't gone out for the proper amount of time. MRS. REARDON-We've been here since seven o'clock. - 32 - -. MR. BREWER-We talked to Mr. Gray, didn't we? MR. RUEL-Yes. MR. MARTIN-You put it right on the record, you tabled it. MR. BREWER-We tabled it right on the record, the first thing we did, ma'am. MRS. REARDON-Thank you. MR. BREWER-I'm sorry. o'clock. Ma'am, it will be next Tuesday, seven MR. BREWER-All right. Is there anyone else, the last time? PUBLIC HEARING CLOSED MR. BREWER-All right. Lets decide what the Board wants to do. Do we want to get an opinion from Mark? MR. STARK-I agree with Bob that, he's uncomfortable. Jimmy and I are uncomfortable. Even though it's not our problem to do it, I would like to get something from him, but not put it off a month. Maybe you could it in a week. MR. BREWER-Is it possible you could do it in a week? MR. OBERMAYER-I would like a determination on.the zoning, whether they have to meet the zoning. MR. STARK-What's your time table for this? MR. CARR-Well, we've been at it a year, so, we're a little flexible. MR. STARK-Yes. I mean, when did you want to start construction? MR. WILSON-Well, I'd like to say this. I have been doing this for a year now, trying to develop one building, okay, that I was going to live in. I didn't realize that I was having so much problems with this right-of-way when I bought the land, or I wouldn't have bought it. Okay. Mr. Pinchuk lives right here. He's very financially capable, so is Mr. Valente, if they didn't want anything zoned MR-5, which they both are aware of, they should have bought it. Now, I came in there to build this, to live in it, and I've been through every loop, and what's basically happened is they've made me engineer the whole thing. So now I may as well go for the whole thing. My intentions are just to build one, at this point, and then go on through as I can afford it, and this issue keeps coming up, and up, and up. MR. STARK-When do you want to start, next month? MR. WILSON-Well, as soon as I get approval. MR. BREWER-All right. Jimmy, how do you feel? You want an opinion from Mark, or do you want to make your decision tonight? MR. OBERMAYER-I don't feel there's any reason to wai t for a decision. MR. BREWER-Craig? MR. MACEWAN-I'll accept Mr. Schachner's opinion that he gave us tonight, that it's not this Board's position to interpret the legali ty of who owns title to the land, or right-of-way to the land, but I've come up with a list, I believe, of nine things that has to be seriously looked at, before I would give approval to it, and it would have to be done, it's not something that he could do - 33 - tonight, because some of the issues are reversing the parking lot for the neighbors, reorganization of Building Three, a lot of engineering comments, primarily, that I would like to see answered before I approve it. MR. RUEL-Well, the major stumbling block that 1 see is the rightful ownership of Walker Lane, and if I had to vote, it would be predicated on a valid variance, and no problem with Walker Lane. MR. BREWER-So, bottom line is, you're going to want a decision on what the ownership is. MR. RUEL-And I can't get the decision on Walker Lane now, but if I could make an assumption that there is no problem with Walker Lane, and maybe next month, when I get a reading from the attorney, and we find out that, yes, everything is legal, so it'll go through, and if it isn't legal, then what? It becomes disapproved. I would feel a lot better if I had an answer, a legal answer, which I had asked for earlier, which we can't get tonight. MR. BREWER-Okay, Bob? MR. PALING-Well, I guess I'd be repeating myself, but in ~ mind, the objections that have been brought up regarding the layout and all, and the trees on the property, has been answered by the applicant, in the positive, that they'll take care of these. So I don't have a problem with that myself. I come back to the single problem of ownership, and title, and I don't see how we can vote on it unless that's clarified, and if we could get an opinion, at least, from our own legal counsel, then I could see my way clear to vote. Now, he may look at it and decide to pass it on. I don't know, or he may come back with an opinion, but if he does, then I could vote. MR. BREWER-Okay. MR. STARK-Tim, I have a question for Craig. Your nine comments, you said, they're just engineering. Assuming they can be met, then you don't have any problem with it? MR. MACEWAN-Assuming that he could answer, or amend, these nine engineering comments that 1 have, I guess they're engineering comments, then I certainly would vote for it. MR. STARK-It doesn't bother you about ownership of Walker Lane? MR. MACEWAN-No, because I'm taking the advice of our attorney, and he says that's not something we should worry about. MR. BREWER-Okay. I'll give you my opinion. Normally, I would take the advice of our attorney. In this case I think, I don't know, it's a tough decision. There's three members on the Board that are uncomfortable with it, and I think there's some members of the public that are uncomfortable with it. I'm very confused about whether the variance is valid or not valid, and I think it's fair to the public, if they have a question, that we should try to answer it. I have an idea, maybe. We have a meeting May 3rd. Is that possible you could make a decision by then, Mark? We have a special meeting. MR. BREWER-We have a special meeting. We can add this to the agenda. I've been here for everyone of these meetings, and I understand what you're going through. I've been on the other side of the fence, and I would like any questions that 1 ever had answered, and I think the Town has an obligation to the people to do that. MR. STARK-Can Craig give his concerns to Mr. Carr. MR. BREWER-Yes, and then they can be all met at that time. - 34 - -- MR. STARK-No, not at that time. answer them. I mean, now, so he has time to MR. BREWER-Yes, sure, so he would have time, sure. MR. CARR-And if we could, I'd like to limit it to this one issue. So we know we don't get off on a lot of tangents. MR. BREWER-Even if your presence isn't there, Mark, if we could have a written response by then. MR. SCHACHNER-I guess I'd like to say, the short answer is probably, I have a tough time committing to it as we sit here today, because of a whole series of completely unrelated constraints. I think, in all likelihood, I could give you some feedback by Tuesday, May 3rd, which is two weeks from tonight, but I guess I want to say something, and then ask something. The thing I want to say is, I would strongly advise the Board to limit my opinion that you seek to whether the applicant has at least demonstrated what I think Mr. O'Connor and I call, color of title. MR. BREWER-That would be reasonable, I think. MR. SCHACHNER-As opposed to me giving you an actual solid opinion as to who's right and who's wrong in the property dispute. I think that would be a very serious mistake for the Planning Board to create the precedent that this Board will ask it's counsel to give detailed title opinions that decide real property disputes among competing private parties. MR. BREWER-Okay. How does that sound with everybody? MR. STARK-I have to agree with what our attorney says. MR. OBERMAYER-I agree. MR. BREWER-That's perfectly fine. MR. SCHACHNER-Okay, and that would certainly ease my ability to give you something by Tuesday, May 3rd. My question, and that's all it is, is if the Board would be willing, I do have a couple of questions of the counsel for the various parties that might assist me in doing that. MR. BREWER-Okay. MR. SCHACHNER-Even if you would allow me to ask those questions, I don't perceive them to be under any obligation to answer them, but I'd like to take a shot, if it's okay with the Board. MR. BREWER-Sure. Whatever makes it best. MR. SCHACHNER-Okay. Well, I guess what I want to do is what I indicated earlier I wanted to do, which was, after the conclusion of the public hearing, I want to very briefly summarize my superficial understanding of the competing contentions of the parties. I think I understand what I call the Phillips/O'Connor line, better than I understand Mr. Carr's reasoning. My understanding of what Mr. Phillips and Mr. O'Connor are saying is that documents, real property documents, by which I mean deeds, as opposed to maps, demonstrate that when the right-of-way was supposedly given to the applicant, Mr. Wilson, by a quit claim deed, that the grantor didn't have it to give, by virtue of a previous warranty deed conveying the same interest to others. Is that an accurate understanding, Mr. Phillips and Mr. O'Connor, of your contentions? MR. O'CONNOR-Yes. It is, with this caveat, that we believe that the maps that are submitted also verify that, the notes on the map. - 35 - -- MR. SCHACHNER-Okay, but at the very least, the deed so states? MR. O'CONNOR-The deed will show that. their face, you're going to see that. If you read the deeds on MR. SCHACHNER-Okay. Mr. Phillips, is Mr. O'Connor speaking for the team, in this respect, or do you have a different opinion? MR. PHILLIPS-Yes, he is. I totally concur with what he said, and I would add one thing, and I would add that, if, in fact, that is the case, and that's your determination, I would add that even with the existence of a quitclaim deed, that would, under those circumstances, that quit claim deed would not arise to the status of being color of authority. MR. SCHACHNER-Because of the nature of the deed, the fact that it's a quit claim? MR. PHILLIPS-No, because the prior deed would convey the exact same thing that the subsequent deed conveyed. MR. SCHACHNER-So isn't that a shorter way, I like Mr. O'Connor's response better. Isn't that a shorter way of saying yes? Okay. MR. CARR-Could I just address that comment, because it's wrong. MR. SCHACHNER-Well, it's not wrong. That's my understanding of Mr. O'Connor's and Mr. Phillips' position, and that's not wrong. That's my understanding, and they're saying my understanding is correct. MR. CARR-Okay. I think they'll agree with me that the right-of-way was given to us properly. The quit claim deed is what we claim as title to the property, not the right-of-way. MR. O'CONNOR-Maybe you should understand, though, and see if 1 understand it correctly. The Ordinance requires ownership of the parcel. MR. CARR-He said that we got, you're contesting our right-of-way. MR. SCHACHNER-Yes. afield. I think we're too far afield. We're too far MR. O'CONNOR-Color of title of ownership is ~ position, that's not being met. MR. BREWER-All right. He has your position, under his understanding. Now, lets see if you have his understanding under. MR. SCHACHNER-Right. So let me take a shot at Mr. Carr. I thought your position, Mr. Carr, was that one or more filed maps show that the earlier warranty deed conveyance did not include all of Walker Lane, and that, therefore, the later quit claim deed did have the right-of-way to give, in essence. Is that your position? MR. CARR-No, it had title to give. MR. SCHACHNER-Clear title, not just a right-of-way? MR. CARR-Clear title. We have the right-of-way. There's no doubt we have the right-of-way. Clear title. MR. SCHACHNER-Well, when you say, and you just said a minute ago that Mr. O'Connor and Mr. Phillips would agree you have right-of- way. Do you? MR. CARR-Do you guys agree we have ª right-of-way? MR. PHILLIPS-I agree that Lucas Wilson has a right-of-way to his - 36 - '- --' property. MR. O'CONNOR-Undefined right-of-way, which is monumented in the field with the monuments not being shown on the mapping that has been submitted by the applicant. MR. SCHACHNER-Right. For what it's worth to the Planning Board members, I agree with Mr. O'Connor's contention that the survey map lacks a little something, leaves a little something to be desired, but, okay, I think I have, at least a better than superficial understanding of the positions, and I think I can give the Board some feedback wi thin two weeks as to whether the applicant has shown sufficient color of title so that I'm comfortable advising you that you can go ahead and rule on the application, and it's that limited question that I will address. MR. BREWER-Exactly. MR. STARK-Tim, can Craig, then, give to Mr. Carr his concerns so they can be addressed? MR. BREWER-Now I would ask the Board, any concerns and all concerns be given to the applicant, so that at that time, possibly, we may have a vote. We can do the SEQRA and vote. MR. CARR-Mr. Brewer, can I request that any information be supplied to opposing counsel and to Mr. Schachner no later than April 26th, which is next Tuesday, because I've got information I want to show him, as to the maps and the reading of the deed, not just that there's a map out there. MR. SCHACHNER-~ response to that request is, it's a very reasonable request, however, the applicant indicated, I thought I heard the applicant indicate we've come this far. It's been a year. We're willing to be flexible. I thought that's what Mr. Carr said before. That being the case, I quite honestly don't see the need for the Board to push forward with a special meeting. I'd be more comfortable saying, let them give us any information they want by whatever date that Mr. Carr just proposed, and lets give them our feedback and your vote on all the issues at next month's meeting. MR. CARR-I don't think that's necessary. It's one issue that he's looking at. I'll supply him with the maps tomorrow. I mean, I've got the maps. MR. BREWER-And then they're going to want something, so lets do this. If you're willing to wait two weeks, Bruce. MR. O'CONNOR-If I could ask one question, is why are we submitting new information? Supposedly the burden of the applicant has been met. MR. BREWER-I think we have enough evidence. If Mark needs anything, he can get a hold of the Town, and look through the file with anything that he wants. I think that's all we're going to do is ask him to do what we asked him to do. End of discussion about the attorney. MR. CARR-Would you also direct him to look into the County Clerk's Office, where all these documents are located? MR. BREWER-I'm sure he knows what he's doing. Now, any and all concerns that we have pertaining to the project that we'd like to see changed or unchanged, lets give them now, then we can table this until May 3rd. Okay. Lets give him the concerns that we have, starting with you, Bob. MR. PALING-No, I think I voiced my concerns, but I would like for Craig's to be made known, to be sure it's done. - 37 - - '-- MR. BREWER-Okay, Craig? MR. MACEWAN-Okay. The first concern was the driveway curb radius to be redone for a 45 foot radius. MR. CARR-Okay. That is existing now. MR. MACEWAN-Okay, the RFA, Rist-Frost comments, to be addressed and noted on the drawing where it needs to be. The playground that was discussed, I would like to see what your scope of intent of your playground is. It doesn't have to be anything elaborate, an example that, what we did for the Bay Meadows complex. It was just, basically, a pressure treated, preassembled kind of playground thing, but I'd like to see that, what you have in mind. I'd like to see an agreement established between the Town of Queensbury for an annual hydrant flushing agreement. MR. CARR-Well, is that even possible? MR. MACEWAN-I'd like it investigated, because, quite frankly, this is private property, and I want to be assured that things are going to be maintained. MR. CARR-I'll be happy to do that. I mean, I have no problem in doing that, but, I don't want to get into a three month debate with the Town of Queensbury Water Department that they don't want to get into this. MR. MACEWAN-I don't believe you would. more than willing to work with you. I believe that they'd be MR. BREWER-Craig, what about they said, possibly, to give them, for lack of a better word, a right-of-way to the? MR. CARR-I mean, that's fine, if you guys want an easement over to, so you could go look at it, that's fine. MR. BREWER-Whatever's easiest for you, lets put it that way. MR. MARTIN-That's more conventional. That's what's conventionally done. MR. BREWER-Okay. So maybe an easement for the hydrants. MR. MACEWAN-The reorientation of Building Number Three, reversing the parking area, as an option to look at, or is that a dead issue? MR. CARR-That's an expensive proposition as well. I mean, you're asking us to redraw all the maps. MR. MACEWAN-How does the Board feel? MR. RUEL-Leave it alone. MR. MACEWAN-Leave it alone, and the only other thing that I was curious, and I wanted to see readdressed, maybe, is the landscaping plan for, because we go around and go around and go around on that. I'd like to see type and size, distance and quantity. MR. BREWER-He said he wanted to possibly change that to hedges, right? MR. MACEWAN-When does the Queensbury Beautification Committee meet? MR. BREWER-Craig, don't get them involved in it. MR. MACEWAN-Well, the only thing that I'm asking about this is that he met with them the first time, but that was only for one building. - 38 - ,.-. -- MR. BREWER-It's not a commercial. MR. WILSON-I'll do whatever it takes, so you can't even see a needle, anything. I'll bury it. MR. BREWER-I don't think it's necessary to get into that. MR. MACEWAN-Okay. Everyone feels that if you do type, size, distance, and quantity, that would be satisfactory, and noted on the drawing. MR. STARK-Tim, where's the meeting, now, it's going to be here or in the conference room? MR. BREWER-Do you know if we have downstairs over there? Probably downstairs. MR. MARTIN-It will probably be downstairs. MR. CARR-Okay, Mr. MacEwan, can I just go through the list again, to make sure I got it right? MR. MACEWAN-Yes. MR. CARR-Okay. The first thing is to incorporate the Rist-Frost comments? MR. MACEWAN-Yes. MR. CARR-Okay. The second thing is to create a playground and show it on the map? MR. MACEWAN-Not necessarily, well, maybe show the area on the map. I don't think you have to go into any great detail. I mean, like I said, the other applicant that I'm thinking of, he just showed us, actually, something that was a catalogue item that he was purchasing. He just showed us what it was. MR. CARR-All right. Work on an easement for the Town, for the hydrant flushing and maintenance, an easement so the Town can maintain those hydrants. Reorient Building Number Three, turn it 90 degrees, and our landscaping plans, type, size, distance, and quantity. Is that all? MR. MACEWAN-That would satisfy me. MR. STARK-We'll vote on it May 3rd. MR. BREWER-Well, don't guarantee anything, George. MR. STARK-Well, unless something different comes up. MR. BREWER-All right. That's all we need from him? Okay. Now we need a motion to table. Well, one more time, Mike. MR. O'CONNOR-I might have a suggestion that maybe Mr. Schachner would accept. Three to four months ago, I said, why doesn't the applicant be conditioned, or the approval of the applicant be conditioned upon them providing to the Town a certificate of title showing that they have clean ownership to the 33 foot that they claim that they have ownership, because they, in essence, are using it like a Town road. They are using it as a substitute for a Town road. If we dedicate a Town road in a subdivision, the Town Attorney has a whole checklist of what we submit on a regular basis to show that we have title, and that might resolve a lot of issues. I think that, a third party, you've heard O'Connor/Phillips, Phillips/O'Connor, versus Carr, but that's a third party entity that I think is going to come to clear conclusion based upon a lot of work at the County Clerk's Office, which I don't think you're asking your attorney to do at this point. - 39 - - - MR. CARR-I don't think it's required of this Board, that it's a color of title issue. MR. BREWER-I think what we're going to do is what we said we were going to do. MR. O'CONNOR-Maybe Mark wants to think about that. You're talking about a private driveway substituted for the purpose of a road. MR. BREWER-Mike, please. MR. O'CONNOR-Okay. I'm talking under Article V of your Site Plan. You want to know all the concerns. You want me to come up with something new next meeting, I'll come up with something new next meeting. MR. BREWER-Okay. seven o'clock. So we need a motion to table, until May 3rd, MR. CARR-Thank you. MR. BREWER-Okay. Do we have a motion? MOTION TO TABLE SITE PLAN NO. 12-94 LUCAS WILSON, Introduced by Craig MacEwan who moved for its adoption, seconded by George Stark: Tabled until May 3rd, 1994, pending the further information as already discussed. Duly adopted this 19th day of April, 1994, by the following vote: AYES: Mr. Stark, Mr. Obermayer, Mr. MacEwan, Mr. Ruel, Mr. Paling, Mr. Brewer NOES: NONE ABSENT: Mrs. LaBombard MR. BREWER-And that meeting will be downstairs in the Conference Room, I believe, unless otherwise notified. DISCUSSION ITEM: CONCEPT PLAN FOR TACO BELL, TROY SAVINGS BANK AND BLOCKBUSTER VIDEO. JON LAPPER, REPRESENTING APPLICANT, PRESENT MR. LAPPER-Good evening. For the record, my name is Jon Lapper from Lemery & Reid, and I'm here on behalf of the Nigro Companies, which is the owner of the existing Glen Square Plaza. They also own the building where Empire Video is, and the Chase Bank is and they have a contract to purchase the Carvel site. With me tonight is Steve Powers from the Nigro Companies, and Ed O'Hara from Clough Harbour, the Engineer. We've already been to the Zoning Board for a Use Variance to remove the Carvel building, and that was unanimously approved, and we also needed an Area Variance before we could come for Site Plan approval, because the new Taco Bell would be built along the property line, along the zoning line, so that we could maintain the 75 foot setback along Route 9, which is a big improvement from what's there now, with the Carvel. We've had numerous meetings with the Planning Department and made. some changes as a result of their input. We're here tonight as a discussion item, for two reasons. We had to get the variances out of the way as a prerequisite, before we could come here, but also because of the snow, we couldn't get the survey work done, so we couldn't make a formal submission for this meeting. We felt that it would make sense to come here and get your input, so that we could make whatever changes you suggest, and be back here with an application that, hopefully, is what you want to see next month. - 40 - '-- -- Everyone's pretty familiar, I'm sure, with the site. The Glen Square Plaza was the old Albany Public Market that's been there for the better part of 30 years. The Nigro Company is John Nigro President who bought the site, about '85, '84, '85, and did a whole lot to clean that up. He's been looking to buy the Carvel building pretty much since then. That's a 1961 building that's pretty dilapidated at this point, and as a result of that, the Zoning Board of Appeals gave us the Use Variance to convert that into a Taco Bell, which would be much smaller, 2,000 square feet to 3,000 square feet that's there, much lower, and much farther back from Glen Street. So, because Blockbuster Video purchased Empire Video, and because Troy Savings Bank has taken over this bank branch from Chase, it gave us the opportunity to consolidate all three projects and to look at the site as one, to make some changes, to bring green space forward, which was something that Jim Martin was impressing upon us, and one of the big issues now, as everybody knows, because it's all paved right now between the three sites, you can come in from Glen Street, and you get to the Plaza in the back by cutting through, and one of the big changes that we're doing is by putting substantial green space behind the Taco Bell so that there will be very controlled access, people would be exiting the Bank and making a right turn only onto Glen Street. We're going to significantly reduce the size of the curb cuts and bring a lot of green space up (ront. We think that all of this is going to make a big difference in terms of how that place operates for internal traffic, and really just update, modernize the building so it will look a lot nicer. As I said, our engineer is here, and Steve from the Nigro Companies, to answer any questions. MR. MARTIN-Yes. I've got a question, and it's been a long standing problem, I think, on that site, and I noticed it as I was driving through there this weekend, especially with the spring thaw, and I think it's because of the inadequate drainage in and around the Empire Video building. The pavement there is atrocious, and it's been cracking and heaving for a long time now, and I was wondering if on-site drainage or an improved drainage system would alleviate or correct that problem? It's very bad in through there, and it always has been. They've tried patching it, and it doesn't seem to ever hold, and I think now if we have a real effort to, so to speak, rework this whole area, if that could be considered, or if that is an accurate characterization of the problem. I'm not sure what's causing that there, but it's. ED O'HARA MR. O'HARA-As Jon said, we're just able to get topo done of the area, due to snow coverage. Drainage is definitely one of the issues we'll be looking at when we submit Site Plan. MR. MARTIN-Well, I'm talking about the southern edge of the Empire Video Store. MR. LAPPER-I think you mean, behind it, Jim, behind it. MR. MARTIN-Well, between the Beverage Center and Empire Video, right there. That's especially bad and it always has been. MR. LAPPER-Okay. That's why we're here tonight. We'll definitely look at that, and have an answer for next meeting, and change the Site Plan. STEVE POWERS MR. POWERS-That is not our property, though. that. We don't control MR. OBERMAYER-That's part of the problem, probably. MR. BREWER-But the runoff from your building helps to accumulate that. - 41 - ---. MR. POWERS-No. There's a catch-basin right behind the Empire Video building. My name's Steve Powers from Nigro Companies. There's a catch-basin right behind. It's the lowest catch-basin in our, in the Shopping Center parking lot, and then probably maybe ten or twelve feet from there, to the south, is the property line, which is the Glen Beverage, which is, again, not our property. It has always been a (lost word) problem of the adjoining property owner. The property, the blacktop is in very poor condition, but, once again, we have no control over that. MR. BREWER-Are all three of these buildings naturally, all come in individually for a Site Plan Review? MR. LAPPER-It's coming all together, as one project, because it's all going to be owned together, by John Nigro. MR. BREWER-But we'll get details of every individual building? MR. LAPPER-Yes, absolutely. Well, the other thing that I didn't mention, what we're asking for, as well, in addition to the site plan, the change on the Taco Bell, replacing the Carvel ,we're looking for 1500 square foot approximate expansion to the back of the Empire Video to accommodate Blockbuster. In addition to that, we've eliminated a number of parking spaces that are now up in front, closer to Glen Street, and we're changing the doorway, so the door will face the Bank. MR. BREWER-Okay. May I make a suggestion? MR. LAPPER-Yes. MR. BREWER-What was it, two years ago, Jim, we had Empire in for an expansion? MR. MARTIN-Yes, they were approved. MR. BREWER-Right. Maybe you can take the minutes from that meeting and incorporate the concerns that we had then into your plan before you go ahead and make plans. MR. LAPPER-We'll look at that. MR. BREWER-Because I have a note on here, for myself, to get a copy of those minutes to refresh my memory on it. MR. MARTIN-I know, and they had a brief meeting with the Staff, prior to this, one of the concerns, I was on the Board then, too, was pedestrian passage around the Empire Video building. It was poor. There is no sidewalks along the perimeter of the building. MR. BREWER-Right, and we had a concern about the septic, the mound system in the back. MR. O'HARA-That's now been hooked up to public sewer. MR. BREWER-It has? MR. LAPPER-And just to answer Jim's concern, the front door now is going to be facing the Bank, and it'll look really like the Blockbuster site, the existing Blockbuster now, with the front door in the center and there'll be a sidewalk all in front of it. MR. BREWER-So, you'll eliminate the entrances and exits on the front? MR. LAPPER-Yes. MR. POWERS-And all the wood planking along the outside of the building will be replaced with concrete, Jon mentioned, just a regular concrete sidewalk. - 42 - ~ -- MR. LAPPER-It won't look like an old Rustler Restaurant anymore. MR. OBERMAYER-And you're going to demolition the Carvel building? MR. LAPPER-Yes. MR. BREWER-So the setback on Glen Street is 75 feet? MR. HARLICKER-Yes. MR. BREWER-And that is going to be met with the proposed Taco Bell? MR. MARTIN-Yes. They're in compliance with that. MR. MACEWAN-Are there any alterations planned for the Bank building? MR. LAPPER-Yes, some. MR. POWERS-Right now, the building is approximately 2200 square feet. Troy Savings Bank normally has a Bank branch of 3,000 square feet. So we're going to try to add on about (lost word) square feet. MR. LAPPER-But in terms of the aesthetics, also. MR. POWERS-And also, it's all being done by Troy Savings. It's our understanding they're going to resheet the building to update it from it's 20 year old appearance. MR. BREWER-Can we do that, Jim, all three of these as one application? MR. MARTIN-It's all on the same property, one property owner. Actually, it's preferred, because you get internal traffic patterns and everything interrelated here. MR. BREWER-Does it meet the requirements for the green space? MR. LAPPER-Yes. It will. It will be the same as it is now. Part of the site was a preexisting, nonconforming site, the 30 year old, the Albany Public Market, but in terms of, right now, it has 22 percent green space, and when we're done with this, there will be 22 percent green space, but the green space will be a lot closer to the road, so it will have more of an impact. You'll see it when you're driving down Glen Street, instead of seeing the buildings. You'll see a lot more green. MR. BREWER-Albany Public Market? MR. LAPPER-Yes, that was the old supermarket. MR. POWERS-Albany Public is where the Grand Union is. where Barkers. Th i s is MR. BREWER-Albany Public Market was across the street. MR. POWERS-Albany Public is the Grand Union. This was the Barkers. MR. BREWER-All right. Yes. You're right. MR. MARTIN-The real focus here, I think, is the internal traffic movement. MR. OBERMAYER-Yes. That's what he's going to review right now. MR. O'HARA-I think what we've set up is, we've tried to reduce the curb cuts. Right now, if you go out there, there's an expanse of curb cuts with 50 foot wide open areas, where people can come in, and it's not really defined on where they come in and come out, so - 43 - '-- -- what we've tried to do is define three different curb cuts along this area, one for the proposed Taco Bell, one for the proposed Bank, and one for the existing Video Store, and what we want to do is we want to set up defined areas with landscape in between so the people will be able to identify where these actual curb cuts are, and for the Taco Bell, people will be able to utilize this one circulate through the drive through, and then right back out. For the Bank, people will be able to utilize this through the drive through and right back out, and with the Video Store, people will be able to utilize this entrance to circulate through, come back out. One of the things that we've done in the overall scheme is we've given a defined driveway traffic pattern that will go over to the traffic light, with people having to make left turns out onto Glen Street. That was one of our main concerns is that we don't have a lot of people making left turns out of all these curb cuts along here. So we want to give them a defined curbed island entry way over to where the existing traffic light is now. My name's Ed O'Hara. I'm from Clough Harbour Associates. MR. OBERMAYER-So when they come in to the drive-in, they're going to enter. They're going to go around, and then they're going to make a left hand turn back out to Grand Union area? MR. O'HARA-The drive through for the Taco Bell? Yes. If they're going to make a left onto Glen Street, they'll have to go back around to the traffic light. MR. OBERMAYER-Okay, but won't that interfere with, your traffic coming in the drive-in will go where? MR. LAPPER-Coming in off of Glen Street? MR. OBERMAYER-Yes, coming in off of Glen Street. MR. O'HARA-It'll have to circulate up around here through there. We've provided three stacking spaces here. MR. BREWER-Okay. Jim, does this zone line going through the corner of the building have anything to do with the Site Plan? MR. MARTIN-Yes. They're in for an Area Variance. That northern most curb cut there, it seems to be misaligned with the driving lane on the north side of Taco Bell. Can that be pushed to the south, so that it lines up, so that people pulling in don't but right into that first island? MR. O'HARA-Right now, that's where the existing curb cut is. We're in the midst of doing the traffic study, and we'll take the recommendations from the traffic study on where the curb cuts should be located. MR. MARTIN-I had somebody tell me a great thing about traffic studies. They're an art and not a science. MR. OBERMAYER-Yes. I can see that being a congested area right there. Making a right hand turn and cars leaving after grabbing their tacos and wanting to make a right hand turn or a left hand turn. MR. O'HARA-We'll look at that with the traffic study. MR. STARK-Where's your signage proposed for the Taco Bell? MR. MACEWAN-Would it be the contention of the Planning Department that they would like to see that curb moved? MR. MARTIN-It would be the contention of the Planning Department that the middle curb cut should be eliminated completely. MR. MACEWAN-Did you tell him that? - 44 - -- ~ MR. MARTIN-He's going to wait to see what his traffic study says? MR. MACEWAN-We don't need to see his traffic study. If that's what you want to have done, we'll have it done. MR. MARTIN-I want to see why that can't be, elimination of the middle curb cut, and consolidating the drive through for Bank with the drive through for Taco Bell. MR. LAPPER-We will look at that, and understand what you're saying. MR. MARTIN-I'd like an honest and objective look at that. MR. PALING-I have a question. Does Nigro own all of the parking spaces you show on this sheet? MR. LAPPER-John Nigro owns all, Niagara Mohawk. MR. PALING-Wait a minute. Does he own the 575 spaces you show on the print? MR. LAPPER-He does not, but that's permitted in Queensbury. It's always been that way. Niagara Mohawk owns the right-of-way, and there is a written lease agreement for the parking spaces. MR. PALING-So you can use their parking spaces? MR. LAPPER-Yes. MR. PALING-Now, but for this parcel of land, this will stop any further expansion of any kind from a parking space standpoint? MR. LAPPER-We are maxing out the site now, in terms of, the parking required is 575, and that's what we've got. MR. PALING-That's what you've got. Yes. Okay. MR. RUEL-You will have designated handicapped areas, parking areas. Are the islands all planted? MR. LAPPER-The islands are not all planted. MR. RUEL-Will they be planted? MR. LAPPER-The islands that are shown will all be planted. Everything, what we show here, everything in green will be planted, and what's existing now, these are already planted along the building. It's not proposed that we're going to plant what's not planted already, because of snow plowing, and the parking lot. MR. RUEL-There are two main entrances and exits to the retail stores in the back, right? One is at the light, and the other one is between the Bank and Empire Video, is that correct? MR. LAPPER-That's correct. MR. RUEL-So that the space between the Bank and Empire Video actually is an entrance to the retail stores in the back. MR. POWERS-That is access. Yes. MR. RUEL-Yes. That's a pretty busy path there. MR. LAPPER-Well, if you see what's in green here, this is a lot more defined. I think part of the problem right now, because there aren't curbed islands or aren't islands with grass. People tend to just drive wherever they want to get from one place to another, and I think that (lost word) and to get from the Video Store to the Grand Union to the traffic light, there's not a defined pathway, and what we're providing here, if you see the green, and by - 45 - -- -- directing the drive through traffic in such a way to create this island, it will force people to go in the traffic corridor. MR. RUEL-Yes. It's very confusing back there now, because I came in between the Empire Video and the Bank, and I wanted to go to the light, and I almost got lost getting there, and it's not that far away. You've got to go through the parking lot, around parked cars and everything. MR. OBERMAYER-These crosshatched areas are going to be islands that you're going to install, are these car stack areas? MR. LAPPER-Those are islands that are existing. painted islands. Those are just MR. OBERMAYER-Okay. Is there any way to put curbs at these locations, because that would really control it. MR. LAPPER-The reason why we don't want to do that is because we're snow plowing, but we'll take a look at that as well. MR. OBERMAYER-Just, I think it might control your traffic a little better. MR. RUEL-Those islands that you have cross hatched, what does that mean? MR. OBERMAYER-That's what I just asked him. MR. LAPPER-Those are the existing islands that are painted islands right now. MR. RUEL-Just painted, and what will you be doing with them? MR. LAPPER-We propose to leave dealing with snow, in the winter. islands was a problem. those there, for the reason of I mean, we just thought too many MR. RUEL-I see. MR. LAPPER-We're putting islands where we think it's necessary to control traffic. MR. RUEL-If you had a legend on this plan, it would be clear. MR. LAPPER-Yes. I apologize for that. This is just a concept plan. When we come back next month, we'll have the whole plan for you. MR. BREWER-Okay. other comments? Are there any other questions from anybody? Okay. Any MR. LAPPER-Thank you. MR. MACEWAN-Jon, if I could just ask you, I think maybe it would be a good idea if you bring a landscaping plan with you next month. MR. BREWER-Okay. Is there anything else from anybody on the Board? MR. STARK-Timmy, what about the minutes? MR. BREWER-Yes, George. CORRECTION OF MINUTES January 25, 1994: NONE February 22, 1994: NONE March 15, 1994: NONE - 46 - - -- March 22, 1994: NONE MOTION TO APPROVE THB MINUTBS OF JANUARY 25. FBBRUARY 22, MARCH 15. AND MARCH 22. 1994 AS WRITTBN, Introduced by George Stark who moved for its adoption, seconded by Roger Ruel: Duly adopted this 19th day of April, 1994, by the following vote: AYES: Mr. Stark, Mr. Obermayer, Mr. MacEwan, Mr. Ruel, Mr. Paling, Mr. Brewer NOES: NONE ABSENT: Mrs. LaBombard' MR. BREWER-Jim, just one last item. Craig asked you last month, I think it was about Cool Beans. The only thing that I, I spoke to Dave Hatin, that day I was in your office, and he said, asked me about if they could change their parking, and I said 1 didn't have a problem with it. Legally, they can't do that, can they? They've got to go back and get another variance if they want to change this parking? MR. MARTIN-Yes. streets, though. The problem is, you can't back out into public I don't know that you can do that. MR. BREWER-Well, Dave Hatin suggested that to me. MR. MARTIN-I'll have him come back. The thing is, he's in full compliance with the Site Plan. It's just that it didn't work out. There's got to be something. MR. BREWER-Diagonal parking, whatever it takes is not a problem, but if he's not in compliance, and I think it was asked of this Board that he come back. MR. MARTIN-All right. I'm sure they'll be happy to, because they've been very accommodating. MR. BREWER-They've done a great job there. I mean, it's not their fault. Their customers won't adhere to what they have, and we've got it striped and everything. MR. MACEWAN-Well, I think when I spoke to you, you said that you talked to them, and they complied for about a week to ten days, and they're right back to where they were before. MR. BREWER-Okay. Mark? MR. SCHACHNER-I just wanted to say, real quickly, especially to the members that don't know me, but in general, I wanted to apologize for being a few minutes late. I'm a pretty responsible individual, and I'm not usually late, and you won't find that happening. On motion meeting was adjourned. RESPECTFULLY SUBMITTED, Timothy Brewer, Chairman - 47 -