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2005-05-18 (Queensbury ZBA Meeting 5/18/05) QUEENSBURY ZONING BOARD OF APPEALS FIRST REGULAR MEETING MAY 18, 2005 INDEX Area Variance No. 33-2005 Michael & Kristy Laney 1. Tax Map No. 290.13-1-20.1 Area Variance No. 35-2005 Regina Kill, Howard Mosher 5. Tax Map No. 309.11-2-29 Sign Variance No. 31-2005 Hanley Sign Co., Inc. for Citizens Bank 5. Tax Map No. 303.19-1-71 Notice of Appeal No. 4-2005 Michael J. O’Connor for Peter Coffman 14. Tax Map No. 309.10-2-68 Notice of Appeal No. 5-2005 Lisa & James Pushor 23. Tax Map No. 289.10-1-20 Area Variance No. 37-2005 Adirondack Girl Scouts 30. Tax Map No. 296.16-1-10 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. 0 (Queensbury ZBA Meeting 5/18/05) QUEENSBURY ZONING BOARD OF APPEALS FIRST REGULAR MEETING MAY 18, 2005 7:00 P.M. MEMBERS PRESENT PAUL HAYES, CHAIRMAN CHARLES MC NULTY, SECRETARY CHARLES ABBATE LEWIS STONE ROY URRICO JAMES UNDERWOOD JOYCE HUNT, ALTERNATE MEMBERS ABSENT ALLAN BRYANT ZONING ADMINISTRATOR-CRAIG BROWN LAND USE PLANNER-SUSAN BARDEN TOWN ATTORNEY-MILLER, MANNIX, SCHACHNER, & HAFNER-CATHI RADNER STENOGRAPHER-MARIA GAGLIARDI NEW BUSINESS: AREA VARIANCE NO. 33-2005 SEQRA TYPE II MICHAEL & KRISTY LANEY OWNER(S): MICHAEL & KRISTY LANEY ZONING: PUD LOCATION: 58 MASTERS COMMON NORTH APPLICANT PROPOSES PLACEMENT OF A 168 SQ. FT. PRE-BUILT GAZEBO ON THE PROPERTY. RELIEF REQUESTED FROM THE NUMBER OF ALLOWABLE ACCESSORY STRUCTURES ON THE PROPERTY. CROSS REF. BP 91-649 WARREN COUNTY PLANNING N/A LOT SIZE: 0.70 ACRES TAX MAP NO. 290.13-1-20.1 SECTION 179-5-020 MICHAEL LANEY, PRESENT STAFF INPUT 1 (Queensbury ZBA Meeting 5/18/05) Notes from Staff, Area Variance No. 33-2005, Michael & Kristy Laney, Meeting Date: May 18, 2005 “Project Location: 58 Masters Common North Description of Proposed Project: The applicant proposes placement of a 168 sq. ft. pre-built gazebo in the rear of the property. Relief Required: The applicant requests relief from § 179-50-020, for number of allowable accessory structures on the property. Parcel History (construction/site plan/variance, etc.): BP 91-649: Single-family dwelling. Staff comments: The applicant proposes placement of a 168 sq. ft. pre-built gazebo in the rear of the property. The applicants currently have a 100 sq. ft. storage shed, thus the gazebo would be an additional accessory structure. The applicants have an approximate 392 sq. ft. pool with surrounding fence. The gazebo meets all setback requirements for the PUD and appears that it will be screened from the adjoining properties.” MR. HAYES-Would you like to identify yourself for the record, please? MR. LANEY-Sure. Michael Laney. MR. HAYES-Okay. Thank you. Is there anything you’d like to add to your application as it was made? MR. LANEY-Initially we didn’t realize we would need a variance. We thought that all we needed was the permit. So we went through the process to get the permit, and then after we had everything set up to go, the gazebo to be put in place, we couldn’t put the fence in without the gazebo. We couldn’t have the pool cover taken off without the fence being put up. We then found out we had to have a variance. So we went through and applied for the variance and paid for the fees and are requesting the relief. MR. HAYES-Okay. Sounds like the process worked anyway. So does anyone have any questions for Mr. Laney? MR. URRICO-The other accessory structure you have is a pool shack? MR. LANEY-Yes. MR. URRICO-And that’s it, that’s the other structure? MR. LANEY-Yes. That’s what covers the pool heater and the pump and maintenance. MR. STONE-The gazebo is in place now, inside the fence? MR. LANEY-Yes. MR. HAYES-Now is that an open gazebo? Do you intend to keep that open? I guess my question relates to whether that’s going to be a storage shed, too. MR. LANEY-No. It’s going to be for a patio, chairs, tables, recreational use, and it will be screened in. MR. HAYES-Recreational use. Okay. MR. STONE-Just out of curiosity, this is really not germane, but I noticed you had a stockade fence surrounding your pool, and I understand why, but I notice your neighbor doesn’t. Do you feel privacy is? MR. LANEY-When he had put the pool up, he had no neighbors on either side, initially, as a vacant lot, and then the house that was built next to him hadn’t been built. MR. STONE-I mean, but you put a stockade fence in, that one can’t see through, like compared to your neighbor who has open mesh. 2 (Queensbury ZBA Meeting 5/18/05) MR. LANEY-Right. It’s personal preference. MR. STONE-Fine. MR. HAYES-Are there any other questions for Mr. Laney at this time? If not, I’ll open the public hearing. Is there anyone that wishes to speak in relation to this application? STAFF INPUT JOHN SALVADOR MR. SALVADOR-Good evening. My name is John Salvador. I notice here that this is, the zoning is a PUD, and yet there’s reference made to Section 179-5-020. It would be my understanding that the PUD has its own zoning regulations in its approval, and as a Planned Unit Development, the Zoning Ordinance does not apply. It has another set of conditions that govern what goes on in that special, it’s a new zone. It’s a special zone, and I’m just wondering, I think this is part of, isn’t this part of Hiland Park? MR. STONE-Yes. MR. SALVADOR-And I believe that’s governed by a Homeowners Association, and that, whatever is done there should have the approval of the Association before it comes to this Board. That’s the only comment I have. MR. ABBATE-I have a question, Mr. Salvador. What you’re saying is somewhat true. If the Homeowners Association, if I’m correct, comes up with rules and regulations that don’t violate the variances, we don’t overturn what they direct. What I believe, if the rules and regulations of the Homeowners Association violate the variances, then we can interject ourselves. Am I right or wrong on that? MS. RADNER-The Homeowners Association is a civil matter between the Homeowners Association and its members. It has really no bearing on this Board’s action. This Board’s charge is to determine whether or not there’s compliance with your Zoning Ordinance. It is correct that the PUD becomes the zoning for that district, but when you have regulations that apply across the board to all districts, they’re not, except PUD’s. MR. ABBATE-Okay. Thanks much. Thank you. MR. SALVADOR-Well, what’s happening is, and this is going on in the place where I live, okay, we have members of the Association who are bound by the covenants. We have restrictions, covenants and conditions that bind us to these regulations. MR. HAYES-To each other, essentially. They’re private agreements. They bind you to each other. MR. SALVADOR-Not only that, they’ve been approved by the Town. MR. ABBATE-No, no. The regulations are a private matter. It’s a civil matter. MS. RADNER-Again, your comments from the floor shouldn’t be dialogues. It’s the opportunity for the public to make their comments, not to get questions and answer, give and take. MR. SALVADOR-The approval of a PUD is predicated on the establishment of these restrictions, covenants and conditions. They are part of the approval process. The PUD goes nowhere without the Town’s approval of these, what become restrictive covenants. The Planning Board Chairman stamps the subdivision plan, and that sets the project, the 3 (Queensbury ZBA Meeting 5/18/05) PUD, in motion. Without that, it doesn’t go anywhere, and those are the conditions for that zone. A newly created zone. Take it from there. MR. HAYES-Okay. Is there anyone else from the public that would like to speak on this matter? JOHN WEBER MR. WEBER-John Weber, and I live at 78 Masters Common, a couple of lots down. I wasn’t really going to make a comment, but I will now, due to the fact that I’m very familiar with the Association living there. We went through, as you all have read in the paper, lawsuits that involve a variance to do the things in the Association. The Association at Hiland now does not exist. It hasn’t existed since whenever. Second of all, this is not an addition to what they’re doing. What this is is a replacement fence that was destroyed last winter during the storm. They replaced the fence and decided to put a gazebo in. They have to have the fence. It’s a pool, and all the inner lots at Hiland are eligible to have pools and fences without the okay of any association, due to the fact that you have to cover the pool, you are the first priority. If you get a permit to do something, then you go to the Association, if the Association exists. I’m only bringing that out because the information that you just heard is not correct, and our Association over there is different, and it doesn’t include what he originally said, because we go to the Association second. We’ve been through the lawsuit and we already know how it runs over there, and again, this is only a replacement fence. It is done and I think it adds to the community. I own two lots down, plus I own the lot right next to him. So I have no objection to this at all. I think it looks great. MR. HAYES-Thank you. Is there anyone else that would like to speak on the application? MR. MC NULTY-We’ve got one piece of correspondence. This is a letter from J. Peter Garvey and Patricia Garvey at 77 Masters Common North, and they say, “This message is in regards to the aforementioned notice regarding the Laney property. My wife and I would like to go on record that we do not have any problem with the addition of the gazebo on the Laney property. Sincerely, J. Peter Garvey, III Patricia K. Garvey 77 Masters Common North Queensbury, NY 12804” And that’s it. MR. HAYES-Okay. Mr. Laney, would you like to come back up. Is there anything else you just want to add to your application before we have the Board discuss it? MR. LANEY-I’m all set. MR. HAYES-Any other questions? Okay. I guess it’s time to talk about it. We’ll start right in order with Mr. Urrico. MR. URRICO-I have no problem with granting this variance. I think, in looking over the criteria, I see the applicant benefiting from this Area Variance simply because it is, for the most part, replacing something that was there before, something that’s needed. The gazebo is an addition that will probably enhance this property, but it’s really stretching it to call this an accessory structure. It is one according to the Town Code, but I think when we think about accessory structures, we’re thinking about those that can store equipment and things, and I don’t see this as detrimental to the area as well, the neighborhood, and the health, safety and welfare of the community. I don’t know if there are feasible alternatives, other than maybe erecting the fence without the gazebo. That would be a feasible alternative, and we have to think about that. As far as amount of relief substantial relative to the Ordinance, yes, because we are granting a second accessory structure according to the Code, and I don’t see this as affecting the area adversely, environmentally or physically. So I think on the basis of that, I would be in favor of it. 4 (Queensbury ZBA Meeting 5/18/05) MR. HAYES-Thank you. Joyce? MRS. HUNT-Yes. I have to agree, but I do have a question. What is the height of the shed? MR. LANEY-Maybe 14 feet, maybe 12 feet. It’s about 12 maybe. You can just barely see it over the fence. MRS. HUNT-So it really isn’t the size of an ordinary shed, a storage shed that you would put up to store things, and I have no problem. I have to agree with my colleague. I would grant it. Thank you. MR. HAYES-Chuck? MR. ABBATE-Okay. Thank you. It’s a reasonable request. It was something I would do if I were the property owner. The neighbors, as far as I can determine, don’t object. It’s reasonable, and I would support the application. MR. HAYES-Thank you. Jim? MR. UNDERWOOD-I, too, would be in agreement with what everybody else has said so far. It’s 180 feet back from the road to where it’s going to be. You’re not going to see it. It’s surrounded by trees from the neighbors. So I have no problem. MR. HAYES-Thanks. Chuck McNulty? MR. MC NULTY-Well, I guess I’m going to live up to my reputation. It sounds like probably there’s going to be more than enough in favor, but I don’t think this kind of thing really should get a unanimous vote. I’ll agree. It looks good. Unless you’re really looking for it, you don’t even see it. You can see the roof from the street if you know where to look, but at the same time, it’s a second accessory structure, and I haven’t heard any really compelling need for it or benefits. I understand the desirability, but I think there’s some alternatives, putting a screen room on the back of the house or something of that sort, and I guess what bothers me with it, looking at it from the viewpoint that we often do of would I have approved this if it had been requested before it was placed, and I think for me the answer would be, no, simply because if I used the same criteria for anybody else that came in and wanted a second structure or gazebo on their property, I’d have to say I’d apply the same kind of reasoning, and if I said yes here, I would have to say yes on all the others, absent something else, and, at that point, I think we’re jumping the Town Board’s prerogative of setting zoning, and it may well be that the zoning ought to be changed to allow a gazebo as well as a pool shelter structure, but given all that, just so that we don’t have seven in favor, I’m going to be negative. MR. HAYES-Lew? MR. STONE-Two or three things before I tell you where I’m going. One, as always, and I know you’ve supplied a letter and your rationale of why you wanted the gazebo in place before you replaced the fence, but we have to keep in mind, the fence is not on the table here. The fence is a perfectly legal fence. It doesn’t require any variance. It’s there. It could be there with or without the gazebo. Having said that, I understand why you wanted to put it inside the fence before you replaced it because it is a solid fence. It doesn’t have an opening, and therefore you wanted to put it up. Plus, I know you got a good buy and all that stuff that you wrote. So I just want to make sure that we know that the fence is not on the table. It’s the gazebo. It’s the second structure. Mr. McNulty makes a very good point. I think if this were on a smaller lot, and there wasn’t as much open space around it that will always be even when the place gets built up, I would 5 (Queensbury ZBA Meeting 5/18/05) probably join him in being concerned about a 100% variance, and that’s a number that always scares us any time we say, well, it’s 100% (lost words). In this particular case, I think the benefit to the applicant and the lack of a real detriment to the neighborhood certainly indicates that this is a variance that we can grant, with the understanding that this creates absolutely no precedent for anybody else coming and saying, I want two things. This is one. There is something already there, but I have no problem, having said all this. MR. HAYES-I essentially agree. I think Lew just captured my thoughts quite well. Certainly in the balancing test that we’re charged with, I just don’t see any real detriment with the size of the lot that’s involved in this particular case with the project that you’re proposing. We’re a little nervous about what might happen if other people requested the same thing, but there is a difference here in my opinion that the pool shed is really a, it’s not a, it’s a storage area but it also has a utility value and the other thing that you’re proposing, the other thing you’re asking for relief is really a recreational use, and it’s open and it’s just not the same as somebody wanting more storage or more storage, and I think that’s part of the rationale to protect against, you know, just extra storage buildings all over the place. So, having said that, would someone like to make a motion? MR. ABBATE-Yes, okay. I’ll give it a go. MR. HAYES-Okay. I’ll close the public hearing. PUBLIC HEARING CLOSED MOTION TO APPROVE AREA VARIANCE NO. 33-2005 MICHAEL & KRISTY LANEY, Introduced by Charles Abbate who moved for its adoption, seconded by Lewis Stone: 58 Masters Common North. For the record, I am cognizant of the fact that the ZBA has the task of balancing the variance against its impact on the area. I’m also aware of the fact that the Statutes spell out five statutory criteria that must be carefully considered in deciding whether to grant a variance, and in making my motion to approve, I’ll address these five statutory criteria. The first one is will an undesirable change be produced in the character of the neighborhood or be a detriment to nearby properties by granting this variance. In my opinion, it will not. I do not believe that granting this variance will violate the character of the neighborhood or be a detriment to nearby properties. Number Two, can the benefit sought by Mr. Laney, the applicant, be achieved by some other method feasible for the applicant to pursue other than a variance. Possibly. However, with the demand for any other type of remedy excluding a variance that Mr. Laney is seeking be consistent with the spirit and intent of the appellant in seeking the standard of fairness. I also note that there were, I believe one individual neighbor this evening that stated he had no problems, and I think we also have a letter in the record from someone indicating that they had no problems. The third item is, is this variance substantial. In my opinion, this appeal is neither significant or extensive. So I do not believe that it is substantial. Number Four, will approval of this variance have an adverse effect or an impact on the physical or environmental conditions in the neighborhood. I doubt seriously that it will. I have heard nothing this evening in verbal testimony, and I have read nothing in the record that would indicate that it would have a detrimental effect, a physical or environmental effect on the neighbors. So, lacking that, the answer would have to be no. Number Five, is this self-created. In the realm of reality, this may very well be subjective, and listening to what Mr. Laney had to say, and reading the documents submitted to the Board, one could possibly make a case for yes or no, but even if it was yes, that in itself should not necessarily be fatal to the granting of your variance. So, based on that, Mr. Chairman, I move that Area Variance No. 33- 2005, Michael and Kristy Laney, be approved. 6 (Queensbury ZBA Meeting 5/18/05) Duly adopted this 18 day of May, 2005, by the following vote: th AYES: Mr. Urrico, Mrs. Hunt, Mr. Abbate, Mr. Underwood, Mr. Stone, Mr. Hayes NOES: Mr. McNulty ABSENT: Mr. Bryant MR. HAYES-The application is granted. Thank you for coming. MR. LANEY-Thank you very much. AREA VARIANCE NO. 35-2005 SEQRA TYPE II AGENT(S): ANDREW LUCCI OWNER(S): REGINA KILL, HOWARD MOSHER ZONING: MU LOCATION: 1 HOLDEN AVENUE APPLICANT PROPOSES TO RELOCATE EXISTING 22 FT. BY 30 FT. GARAGE FROM ADJOINING LOT TO THE NORTH SIDE OF THE HOUSE. RELIEF REQUESTED FROM SIDE SETBACK REQUIREMENTS. WARREN COUNTY PLANNING N/A LOT SIZE: 0.23 ACRES TAX MAP NO. 309.11-2-29 SECTION 179-4-030 MR. HAYES-In case someone is here for the public record, next on our agenda was scheduled to be Regina Kill and Howard Mosher for Area Variance No. 35-2005. That application has been withdrawn. SIGN VARIANCE NO. 31-2005 SEQRA TYPE: UNLISTED AGENT(S): HANLEY SIGN CO., INC. OWNER(S): K-MART HANLEY SIGN CO, INC. FOR CITIZENS BANK ZONING: CI-1A LOCATION: 49 DIX AVENUE AT K-MART APPLICANT PROPOSES INSTALLATION OF AN ILLUMINATED WALL SIGN (36.45 SQ. FT.) ON THE FRONT OF THE K-MART BUILDING. RELIEF REQUESTED FROM NUMBER OF ALLOWABLE SIGNS. WARREN COUNTY PLANNING MAY 11, 2005 LOT SIZE: 27.94 ACRES TAX MAP NO. 303.19-1-71 SECTION 140-6 PETER MAY, REPRESENTING APPLICANT, PRESENT STAFF INPUT Notes from Staff, Sign Variance No. 31-2005, Hanley Sign Co., Inc., Meeting Date: May 18, 2005 “Project Location: 49 Dix Avenue at K-Mart Description of Proposed Project: Applicant proposes installation of an illuminated (36.45 sq. ft. ) wall sign with a logo and the words “Citizens Bank”. This sign would be placed on the front of the existing K- Mart building between the “Super K-Mart Center” sign and the “garden shop” sign. Relief Required: The applicant requests relief from the number of allowable signs for an additional wall sign, per § 140-6 B3c, “a business located on a parcel of property shall be granted a permit for two signs: one freestanding, double-faced sign and one sign attached to a building or two signs attached to a building”. The applicant desires an additional wall sign, in excess of the 6 wall signs, and 1 freestanding sign that currently exist on site. Parcel History (construction/site plan/variance, etc.): SV 7-1994: 2/16/94, Denied, for wall signs SV 8-1994: 2/16/94, Denied, 222 sq. ft. freestanding sign SV 53- 1994: 10/11/94, Approval, 6 wall signs totaling 599 sq. ft. SV 54-1994: 10/11/94, Denied, 97 sq. ft. freestanding sign. SV 53-1994: 10/19/94, Amend SV 53-1994 for 6 wall signs totaling 742.83 sq. ft. SV 80-1996: 9/18/96, Denied, “Penske” wall sign. BP 97-3040: 6/6/97, Permit issued for 31.33 sq. ft. “Penske” wall sign. SV 53-2001: 7/25/01, Denied, 59 sq. ft. wall sign “1 Hour Photo”. Notice of Appeal No. 1-2001: 2/27/02, Denied, sign permit 97-3040 issued erroneously. Staff comments: SV 53-1994 approved 6 wall signs for the site; there are currently 5 signs on the front exterior of the K-mart building, with the “auto service” sign having been removed. Has the “auto service” sign been removed permanently? If so, then the Board could suggest that the applicants replace the previously approved “auto service” sign (66 sq. ft.) with the proposed “Citizens Bank” 7 (Queensbury ZBA Meeting 5/18/05) sign (36.45 sq. ft.). The Board, in their unanimous denial of SV 53-2001 for a “1 hour photo” sign was “based on the fact that they are requesting seven wall signs where two are allowable per Ordinance, and, eight signs where two normally would be allowed is interpreted as substantial relief.” This variance request is one in a long line of requests by other corporations (Penske, LensCrafters) to add their signage to the Kmart building. Staff cannot find a response to a letter from the Town to Kmart (9/12/94) asking for clarification as to “the natural of the facility, e.g. is it a single business, two businesses, or a business complex, whether the “tenants” are completely separate corporations or subsidiaries of Kmart”. This does have bearing on what type and amount of signage would be allowed”. The Board could convey to the applicant that unless they can demonstrate that circumstances have changed such as the site should be deemed a business complex. Then SV 53-1994 approval for 6 wall signs and 1 freestanding sign, is the maximum variance that the Town will grant for this business.” MR. MC NULTY-“Warren County Planning Board Project Review and Referral Form May 11, 2005 Project Name: Hanley Sign Co., Inc. for Citizens Bank Owner: K-Mart ID Number: QBY-05-SV-31 County Project#: May05-42 Current Zoning: CI-1A Community: Queensbury Project Description: Applicant proposes installation of an illuminated wall sign (36.45 sq. ft.) on the front of the K-Mart building. Relief requested from number of allowable signs. Site Location: 49 Dix Avenue at K-Mart Tax Map Number(s): 303.19-1-71 Staff Notes: Sign Variance: The applicant proposes to install a 36.45 sq. ft. wall sign to advertise “Citizens Bank”. The applicant is requesting relief from the number of wall signs allowed where only one is allowed. The bank is located inside the Kmart building. Staff does not identify an impact on county resources based on the information submitted. Staff recommends no county impact. County Planning Board Recommendation: No County Impact” Signed by Bennet F. Driscoll, Warren County Planning Board 05/13/05. MR. HAYES-Please introduce yourself for the record. MR. MAY-My name is Peter May. I’m an employee of Hanley Sign Company. I’m representing Citizens Bank. Philadelphia Sign is the manufacturer of the sign in this instance. Obviously, the reason for the sign is to identify the Bank within K-mart. When I saw the Staff comments here concerning whether or not what, they had asked K-Mart for clarification and whether or not the tenants are completely separate, from my understanding, the Building Code in New York State changed in 2003 to allow separate business entities in the same building without any separation. So, this Bank is not part of K-Mart at all. It’s a separate corporation, but according to the New York State Building Code, this type of a tenant, if you want to call it that, is allowed, without any separation. So it’s not like they’re a part of K-Mart. I think that might help clarify that problem, and so, being a separate business, I don’t know how that impacts on whether or not it’s called a business complex, because I don’t know the Town Code in that area, whether or not it would allow that additional sign. The other thing is, I haven’t been able to find out, we only received this Staff report on Monday, and it there hasn’t been sufficient time to find out from K-Mart whether or not another sign for an auto service would ever be considered again. As far as I know at this time, they do not offer that anyway. So I can’t say completely whether or not that would ever come on up in the future, but if the Board felt that it could grant this sign with that stipulation that if K- Mart ever came back in, then, you know, the Bank side had to come back, something like that, and I guess that’s about it. MR. HAYES-Okay. Thank you. MR. MAY-You’re welcome. MR. HAYES-Are there any questions for the applicant at this time? 8 (Queensbury ZBA Meeting 5/18/05) MR. URRICO-This is not replacing a Charter One sign that was on the front of the building, right? There was no Charter One sign there. MR. MAY-No. Charter One never had a sign to my knowledge. That’s correct. MR. URRICO-But there is identification out by the freestanding sign out by the road for Charter One? MR. MAY-I’m not aware of that. MR. URRICO-Okay. MR. HAYES-Are there any other questions for the applicant at this time? You’re aware of kind of the long history of Sign Variance requests associated with this property. MR. MAY-I have been told, yes. MR. HAYES-Okay. MR. STONE-And we didn’t read the history in, but the history is extensive. MR. HAYES-Okay. Are there any specific questions that anybody would like to ask? If not, I’ll open the public hearing. Is there anybody who wishes to speak on this application? Any correspondence? MR. MC NULTY-No correspondence. PUBLIC HEARING OPENED MR. HAYES-Okay. All right. I guess we’ll have to go to polling the Board members, then, if there’s no further questions. We’ll stay right in order and start with Joyce. MRS. HUNT-Thank you. The questions I might have would be with K-Mart. Of course they’re not here. They’re not being represented. MR. HAYES-Well, I think we have to hold the applicant to that standard, even if they’re not here. MRS. HUNT-Yes. I would have no problem with that sign if it took the place of the sign that was taken down, the auto service, but I would definitely be against another sign, seven signs. I think it’s bent over backwards for K-Mart with all these signs, and that’s all they’re getting, that I would give. MR. HAYES-Okay. Chuck? MR. ABBATE-Okay. Thank you. From what I’ve heard, or maybe I didn’t hear, there didn’t seem to be much of an effort on the part of the Hanley Sign Company to contact K-Mart to determine whether or not this would be replacing that other sign. While there is, the history goes back to 1994, and again, a number of denials, I don’t suggest that that in itself be sufficient cause to deny the additional sign. However, the applicant, the representative of the applicant, has made a reasonable alternative, a suggestion, that if the sign were approved, based on the fact that K-Mart was going to remove permanently the one hour photo sign, we could make that as a stipulation. The request itself is not unreasonable. MR. URRICO-You mean the auto sign? 9 (Queensbury ZBA Meeting 5/18/05) MR. ABBATE-Yes, the auto sign. Yes. I do believe, from reading that Citizens Bank merged or something or another. So there’s no question that there’s a need. I don’t have a problem with that, but I think if we were to approve it, it would have to be with a stipulation. Thank you. MR. HAYES-Okay, Chuck, thank you. Jim? MR. UNDERWOOD-I would have to be in agreement. I think that we previously approved the Penske sign. It’s no longer there. This sign is going to be approximately half the size of that sign. I don’t think it would be offensive, and I don’t think there’s any doubt that Citizens Bank is a separate entity operating within that building. So they need to have a sign out there so people know where it is. So, I’d be in favor of it. MR. HAYES-Is that with or without the removal of the current sign? I guess I just want to be clear for the motion where everybody stands on that. MR. UNDERWOOD-Yes. I think if it’s replacing a sign, that’s fine. MR. HAYES-Okay. Thank you. Okay. Chuck? MR. MC NULTY-Well, as far as the desirability of having a Citizens Bank sign on the front of the building, I can understand that, but I think the area where it’s proposed probably would look okay. So I have no problem with that part of it. However, as I understand it, this is a request for approval of a seventh sign on that building, and, as I understand it at this point, there’s only five signs on the building. They’ve got approval for six signs. Therefore, I see no need for this variance. We’re charged with the job of granting the least possible relief, and in this case, I see nothing blocking K-Mart or Citizens Bank from legally putting the sign that they want on the front of the building, on the front of the building, without a variance. Therefore, I’ll be opposed to any variance on this particular issue. MR. HAYES-Thank you. Lew? MR. STONE-My basic concern, obviously, I’m always concerned with too many signs, but I’m concerned, in reading the application, and I haven’t read every word, but there’s nothing in the application that says you’re going to replace a previously approved sign. It merely says, install illuminated wall sign on the front. We’ll stipulate that no more signs, and any other sign that you want to come back with is not going to be under the aegis of this particular variance. I just wish that, I mean, that there would be words in the application that say we’re replacing a sign, and I don’t see that. Having said that, I’m concerned that, as I drove by the building, that the garages are still there, and if I were sitting with that much space that is obviously garage space, I’d like to do something with it. Now, I have not been in the store. I don’t know what’s back there, but I would be concerned that at some point, when you consider all of the other mega stores that we have, that have auto service, that it might happen, but certainly without that sign, saying that this is the only sign you can, and that you have indicated, verbally, that you’re replacing the sign, I guess I would reluctantly go along with it, if, in fact, the variance is needed. MR. MC NULTY-I think that’s the thing. If you’re going to condition it upon replacing the auto sign, you don’t need a variance. They can put the sign up now. MR. STONE-Comments from Staff, or Counsel? MS. RADNER-I think the Zoning Administrator’s is the appropriate person to comment. MR. BROWN-Yes. That hasn’t been offered at this point. I think the variance was submitted for the extra sign on the building. If K-Mart’s truly going to remove the auto 10 (Queensbury ZBA Meeting 5/18/05) service sign forever, and this is a replacement, I would tend to agree, but we don’t have any documentation that that’s what’s going to happen. MR. STONE-Okay. MR. ABBATE-Can I go back to my original statement for a second? MR. HAYES-Sure. I originally indicated, and I don’t mean to be unreasonable about this, but I indicated earlier, I really don’t think Hanley Sign has had enough communications. It doesn’t take much for a phone call or a letter, even if it’s certified mail, to K-Mart, to get a response, and as Mr. McNulty said, it would have been much easier to come, well, you wouldn’t have to come before the Board if you had documentation that indicated that they intend to remove the sign permanently, but since you don’t have that documentation, while the request may be reasonable, I’m beginning to have second thoughts, and this is unusual. I may agree with Mr. McNulty. MR. MC NULTY-Well, I guess, let me ask a question of Staff. In general, are the prior approvals for the signs on the K-Mart building, were they specific to the wording on the signs? MR. BROWN-Yes. MR. MC NULTY-Okay. So they would need to request at least to the Building and Codes Department permission to replace one with the other. MR. BROWN-That’s correct. MR. MC NULTY-But they’ve got that option to do that, and then if, six months, a year, or two years later, they decided to reopen the automotive, they could come back and request approval for a seventh sign for the automotive at that point? MR. BROWN-That’s correct. MR. HAYES-But I think that when those six signs were approved, there was a specific plan that was set forth. I think I was here for that, with sizes, locations, blah, blah, blah. I’m not sure how comfortable I feel about having signs be interchangeable based on the total staying the same. Because they could change in size and shape and illumination. I mean, Chuck says he’s not sure we should handle it through a variance. I think if we’re going to do it, maybe we should and have it be specific to what we’re granting, versus, I don’t know if everybody knows what I’m saying by that, you know what I mean, this sign, in this case, is smaller than what was approved prior, but there’s no guarantee that if other signs are brought back or changed, that that would be the case. MR. BROWN-Well, maybe this will make you feel a little bit better. We, obviously, review every building permit and sign permit that comes through before it gets issued, and we certainly try and compare, as best we can, to previous approvals, and in this case if the offer on the table is to not have the 66 square foot auto sign, in deference to this 30 something square foot sign, that would work, and that’s typically the way we do it. We don’t let the sign size go up or the count go up, or the square footage argument. So we would track it that way, and certainly if it was larger than what was approved in any variance, we’d send them right back here to you guys. MR. HAYES-Okay. MR. MC NULTY-On the other hand, now, we’re assuming that K-Mart would agree to this, and we don’t know that. 11 (Queensbury ZBA Meeting 5/18/05) MR. HAYES-Yes, but that’s okay in the sense that we can apply the balancing test and we can grant a variance based on what we feel comfortable, you know, as far as relief, and then it’s up to them. If they do, then they do. If they don’t, then they don’t have an approval, right? I mean, essentially. MR. ABBATE-We can have a stipulation in the variance that unless approval is approved, if there’s a stipulation in the approval that the approval is granted upon the proviso that the sign from K-Mart is permanently removed, and if the applicant doesn’t receive those assurances, then the sign isn’t approved. Is that what you’re getting at, Mr. Chairman? MR. HAYES-Yes. I mean, I think we can handle it in that way. MR. BROWN-Yes. We would look for that letter to be supplied prior to issuing the sign permit. MR. ABBATE-Yes. Sure. MR. URRICO-The auto service sign, was that on the front of the building? MR. BROWN-It’s on the Dix Avenue side of the building. MR. URRICO-And the Penske sign was on that side of the building? MR. STONE-That’s where the Penske sign was over there. MR. BROWN-That’s right. MR. URRICO-So it’s not the same location. MR. BROWN-Correct. MR. MC NULTY-I guess the thing that concerns me at this point, now, we’ve got an applicant before us that’s representing basically Citizens Bank. K-Mart may have a business plan that is different, the K-Mart officials, and they may not want to agree to give up their automotive sign for the Citizens Bank sign. K-Mart is probably, at this point, assuming that if we grant it, we are going to give permission for a seventh sign. MRS. HUNT-That’s exactly what they’re requesting. MR. MC NULTY-Yes. That’s what the request is, and if we, instead, modify that and grant it, on the basis that it replaces an automotive sign, that’s kind of second guessing the K-Mart people . MR. HAYES-We could certainly table it and ask them to come back. MR. ABBATE-That was exactly what my suggestion was going to be, that the applicant, I would, if I were the applicant, I would request that it be tabled, and I would get on the phone, or write a letter, certified mail, to K-Mart, explaining the situation, requesting approval, and once the approval is received, then come back to the Board and say, here it is, right here. Then I think your application would probably be received a little more favorably. Is that reasonable? MR. HAYES-We can do that, if that’s what the Board’s pleasure is, but I guess it appears to me that there, from the review of the polling, that there is no, that the idea of them getting a seventh sign is not going to carry, which means if they’re only going to get six signs, and they want this sign, and we say you can have this sign if you remove another sign and give them a specific set of relief, we’re handling it now. 12 (Queensbury ZBA Meeting 5/18/05) MR. STONE-Mr. Chairman, Mr. May is representing Citizens, Charter One, Citizens Bank, and they’re asking for the sign. What K-Mart wants to do is, he can speak for his client. His client says I want a sign. We can say, all right, we’ll give you the sign, but we’ll put a stipulation on it that the building owner can’t put anymore signs on there. I mean, is that legit? MR. BROWN-Well, I think Mr. May is here on behalf of K-Mart as well. They’ve signed the application as owners. Correct? MR. MAY-That’s correct. They signed the application as allowing this sign, this application. MR. ABBATE-Now that’s a different story, because initially I thought you said you are representing. Okay. For the record, you are representing Citizens Bank and K-Mart as well as this hearing? MR. MAY-I don’t know that K-Mart needs representation at this hearing. I am here to represent Citizens Bank. K-Mart, in the application process, had to sign the application as the landlord that they were willing to allow this sign to go on their building, if it was approved. MR. ABBATE-No, no, this is getting too complicated. MR. MC NULTY-The trouble is, K-Mart signed the application agreeing to a seventh sign. They did not sign the application agreeing to an exchange. MR. ABBATE-I could only go along with this if K-Mart representatives were here and on the record they would make the statement. Other than that, Mr. Chairman, there is no way. MR. HAYES-Okay. Well, listen. If the Board feels strongly that it isn’t clear about the relationships and what’s possible, then certainly maybe the idea of tabling this. I know Roy’s still yet to speak, but if you want to add something. MR. URRICO-I don’t know. A lot’s been said already. Basically, I would be totally against this application. I think this location has already been approved for six signs, and how K-Mart chooses to distribute the signs is up to them. I’d like to see what their take it on it, but as far as I’m concerned, this would be a sign beyond what the variance has allowed so far, and since we don’t know what K-Mart/Sears plans are, because I would imagine Sears is going to have a say in what happens with the automotive section there, because that seems to be their plan for K-Marts, but we’re not talking about K- Mart, and as far as Citizens Bank is concerned, if this was going to replace one of those other five signs that are on the front, I might be more favorably positioned for this, but at this stage, I would not be in favor of it, and I’d have to see somebody from K-Mart here to talk about what their plans are. MR. MC NULTY-Mr. Chairman, listening to all this and thinking about it, from what I’m hearing, it strikes me that almost everybody is saying that they would not approve a seventh sign. That’s what this application is for is a seventh sign. So we could deny the variance application for the seventh sign, without preventing Citizens Bank and K-Mart from coming back to the Building Department and asking to exchange one sign for another, and that would clean this up and wouldn’t leave it hanging tabled. MR. HAYES-Well, I guess they’d have to reapply in every way. MR. MC NULTY-Well, they wouldn’t necessarily need a variance to exchange signs, or would they? If they’re switching one sign for another, changing the wording? 13 (Queensbury ZBA Meeting 5/18/05) MR. UNDERWOOD-What was the anticipated opening up of the business over there, or changing over? MR. URRICO-It’s already there. MR. UNDERWOOD-Yes, it’s already there. MR. URRICO-They made the changeover May 12, or something like, I believe. th MR. MAY-Last Thursday. MR. STONE-There was a Bank in there? MR. MC NULTY-Yes, Charter One was there. MR. ABBATE-Yes, and you folks took it over. I thought it read that in the paper somewhere. You incorporated that. You took it over? MR. MAY-Yes, the changeover happened last Thursday. MR. HAYES-It happened on the corner of Aviation and Route 9 as well. MR. ABBATE-So, all right. Okay. These are the options, is the correct, Mr. Chairman, that we could arbitrarily, based on the request of seven signs, say no, or, after all, we’re in a position here to help applicants that come before us as well. We can’t forget that, that we know we service the public, and it seems to me that it would show good faith on our part to say, okay, with a strong stipulation that they do the leg work, and that documentation be submitted to the Administrator, prior to any sign being granted. So we can go one of two ways. We serve the public, really. Not ourselves. MR. HAYES-Okay. I guess I’ll speak on my position here. It’s good to hear from everyone. I feel similarly. I certainly would not be in favor of a seventh sign. I honestly don’t think you would get one vote from this panel for that type of application, but I do think that a new Bank is in there. A bank is a legitimate part of these type of large retail stores now. I think I’m not sure if Wal-Mart has a bank in there or not, but Price Chopper has a bank, and these other stores have banks, and they have signs, and I think the Town also has a vested interest to a small extent to help recycle these buildings to whatever ability is, and keep them active with tenants that are properly labeled and all these things, not to the extent that more signs are offered , but to the extent that if the total number of signs does not go up, that’s a combination that is fair to the Code and fair to the Town, and identifies the Bank as a viable business in that thing. I think that I would certainly entertain that, because I don’t think there’s any net, you know, loss to, you know, there’s no additional sign pollution or whatever going on. It’s just changing it, but, having said that, I will poll the Board quickly as to whether they want to table this or proceed with a motion that has the stipulations involved that are talked about here or contemplated here in the Staff notes. So, if they want to table it, if the majority wants to table it, then we’ll table it right now. If the majority wants to go forward, then we’ll do that, too. MR. MAY-Could I ask a question? MR. HAYES-Certainly. MR. MAY-Realizing that there’s been previous variances allowing six signs for the building, when a sign is removed, like the auto service signs have been, does that not, does that mean that that variance for six signs stays with that building forever, even though there’s only five signs on it now, or does it ever expire when a sign is removed? 14 (Queensbury ZBA Meeting 5/18/05) I mean, typically, if a tenant leaves a storefront, if their sign is removed, then a new permit has to be issued for a new tenant, so if Penske left, I don’t understand where the seventh sign comes into play here. As far as I’m concerned, there’s five signs on the building now, and we’re looking at a sixth. MR. HAYES-Craig, do you want to comment on that? MR. BROWN-Yes. I would say that the variance runs with the property, unless it’s specifically approved or issued at the time of the approval that says this will go away when the business goes out, but historically it runs with the property. MR. HAYES-Okay. So if there’s five signs now. MR. BROWN-They can have five signs until they don’t want five signs anymore. MR. HAYES-Right, but what about the sixth sign? MR. BROWN-Well, if the variance was for six signs, I think they’re entitled to that sixth sign. MR. HAYES-How many signs are there now? MR. ABBATE-A total of five, I do believe. MR. STONE-But I think we’re saying that if Mr. May is willing to put his neck on the line and say, okay, we’re going to put this sixth sign up and recognize that we’re going to say no more to K-Mart, we can do that. MR. MC NULTY-If they’re going to do that, though, we don’t need to do that. MR. STONE-Yes, that’s true, but the sense of the Board should be quoted, I guess that’s what I’m really saying. You’re right that we don’t need a variance for. MS. RADNER-K-Mart has agreed to this variance coming before you. So you’re not imposing like a neighboring business. What you could do is allow the applicant to modify his application so that he’s requesting a sixth sign to replace the previous sign that was there, and if he does that from before, then the record’s clean that that’s what he’s done and that he’s modified his application and then he could go forward. MR. ABBATE-See, I have no problem with that either. MR. HAYES-Would you like to modify your application thereby? MR. MAY-Yes, I would. MR. HAYES-Okay. MR. ABBATE-Good. Good. MR. HAYES-All right. How does everybody feel about proceeding? MR. ABBATE-I think that’s a reasonable approach. MR. URRICO-I just have one question. It seems to me that when we did approve the last variance, the Penske sign, that it was a stipulation that it was going to be on the side of the building, and that was the sixth sign. There were not, you know, it was not six signs in front of the building and they took the Penske sign off and now we have a spot in front of the building. It’s the side of the building where the sign got removed. The 15 (Queensbury ZBA Meeting 5/18/05) front is staying the same. This is not replacing a Charter One sign. Charter One did not have a sign there before. So, I don’t know how that reflects on everything, but it’s slightly different. It’s not just six signs. It was five signs on the front and one sign on the side that was approved. MR. BROWN-That’s correct, and what this also, this discussion also will do, it will, you know, it’s going to handcuff Wal-Mart the next time they want to come back with a sign or to put the auto or Penske sign back up. They’re going to be before the Board, or Mr. May’s going to be here for K-Mart before the Board, because they’re using up that auto sign with the Bank sign, and if he’s here on behalf of K-Mart, and he has the authority to do that, then that’s what he’s going to do. MR. STONE-Well, that’s the point. I mean, but on the other hand, let’s assume Mr. May has the authority to say, okay, I’ll replace the sixth sign with this sign. As Mr. McNulty correctly points out, that isn’t a new variance. That is merely a recognition that we’re going to have six signs, as Roy says, in a different location. Quite frankly I’d much rather have them on the front, because I never see the front of that building, and I do see the side of that building, but that’s a business situation, but I think that’s, it’s procedural in terms of what do we do? MR. BROWN-Well, I think what you should do, you’ve got an applicant here before you, you’ve got an application before you. Mr. Urrico’s correct. One of the conditions of the variance that was granted before was the fact that the sign was on the side of the building. A section of our Code says if you’re going to have signs on your building, they have to be one on the side that faces one street and one on the side that faces the other street. I’m sure part of that technical relief was to have multiple signs on one face of the building. Now we’re adding another one to that side. It probably should be a condition of this approval is a switch for the auto sign and to allow a sixth sign on one face of the building. I think that would cover everybody, them and us. MR. HAYES-Yes, I think we have a chance to pin this down to the extent that we’re comfortable. He’s so modified his application. I will still the Board as far as whether they’re comfortable going forward or not, but we have an application. We have something we can clarify and quantify what we’re accepting and what we’re not, you know, and I think, unless people feel comfortable not doing that, then we won’t. MR. ABBATE-Now he has officially modified the application, correct? MR. HAYES-He has. MR. ABBATE-I just want to get it on the record. So I have no problems with it. MR. HAYES-Okay. Are you comfortable proceeding, Roy? MR. URRICO-Yes. I think if we can, we’re going to have to face this sooner or later. I’d rather do it now. MR. HAYES-Right. Joyce? MRS. HUNT-I can accept it. MR. HAYES-Okay. Chuck? MR. ABBATE-Yes, I’m comfortable with it. I don’t have any problems. MR. HAYES-Jim? MR. UNDERWOOD-Yes. 16 (Queensbury ZBA Meeting 5/18/05) MR. HAYES-Okay. Chuck? MR. MC NULTY-I guess I am, recognizing that even as we approve this, K-Mart still has got their own business option of saying, whoa, no, we’re not going to allow Citizens Bank sign up there because we want an automotive later. So that doesn’t totally block out K-Mart, and as long as we’re leaving them that option, I have no problem. While I’m talking, let me remind you we’ve got a SEQRA statement to do on this. MR. STONE-So what we’re saying is that we’re going to modify the variance to say that we’re still allowing six signs, but they all can be in front? MR. MC NULTY-Yes. MR. HAYES-He’s requesting. MR. ABBATE-We’re not going to modify it. It’s the applicant, for the record, who has stated he’s going to modify it. MR. STONE-No, no, we granted a variance, though, for five and one. MR. HAYES-Yes, but he’s asking for a different. MR. STONE-Yes. MR. BROWN-Yes, we’re not going back to modify any of the variance. You’d be granting this variance, with the understanding that it’s a sixth sign. MR. STONE-Okay. This variance is for six signs on the front of the building. MR. BROWN-Right, correct. MR. URRICO-Actually, the Garden Center sign’s on the front, is on the side, isn’t it? It’s in the front? MR. STONE-No, it’s on the front. It’s set back slightly on the front, the façade is set back. MR. BROWN-Was there a County referral, recommendation? It should have gone to the County. MR. MC NULTY-Yes, No County Impact. MR. STONE-No County Impact. MR. HAYES-All right. I guess are there any other questions for the applicant? Since we’ve agreed to go forward. All right. I guess, I don’t think we need to re-speak to everybody’s position, because I think they’ve pretty much made that clear in the cumulative sense. What we will all have to do is pay attention exactly to how the motion is made, when it’s made, and make sure that’s exactly what we have in mind as far as relief and what we’re granting in this particular case, which is the modification set forth by the applicant to his application. So, before we go to that, I should do the Environmental Form in advance. MOTION THAT BASED ON A REVIEW OF THE ENVIRONMENTAL ASSESSMENT FORM, THAT THIS PROPOSED ACTION WILL NOT RESULT IN A SIGNIFICANT ADVERSE ENVIRONMENTAL IMPACT, BASED ON A 17 (Queensbury ZBA Meeting 5/18/05) GRANTING OF THE APPLICATION, Introduced by Paul Hayes who moved for its adoption, seconded by Lewis Stone: Duly adopted this 18 day of May, 2005, by the following vote: th AYES: Mr. Stone, Mr. Urrico, Mrs. Hunt, Mr. Abbate, Mr. Underwood, Mr. McNulty, Mr. Hayes NOES: NONE ABSENT: Mr. Bryant MR. HAYES-Okay. Would someone like to make a motion, based on the modification. I’ll close the public hearing. PUBLIC HEARING CLOSED MOTION TO APPROVE SIGN VARIANCE NO. 31-2005 HANLEY SIGN CO., INC. FOR CITIZENS BANK, Introduced by James Underwood who moved for its adoption, seconded by Charles Abbate: 49 Dix Avenue at K-Mart. The applicant has agreed to modify his application, and it will read as such. The applicant proposes installation of an illuminated 36.45 square foot wall sign with a logo, and the words “Citizens Bank”. This sign would be placed on the front of the existing K-Mart building between the Super K-Mart Center sign and the Garden Shop sign, and would, in essence, replace the previously existing Penske sign which was on the side of the building, which would now bring the total number of signs to six on the front façade of the building. It’s been noted that we had previously approved the Penske sign, and we would like to keep the number of signs in totality on the building at the number six. The applicant has also agreed to contact K-Mart and provide that this meets their approval, and that will be sent to Craig Brown. Duly adopted this 18 day of May 2005, by the following vote: th AYES: Mr. Abbate, Mr. Underwood, Mr. McNulty, Mr. Stone, Mr. Urrico, Mrs. Hunt, Mr. Hayes NOES: NONE ABSENT: Mr. Bryant MR. HAYES-Your modified application is approved. Thanks for coming. MR. MAY-Thank you. NOTICE OF APPEAL NO. 4-2005 SEQRA TYPE UNLISTED MICHAEL J. O’CONNOR FOR PETER COFFMAN AGENT(S): MICHAEL J. O’CONNOR, ESQ. OWNER(S): DONALD DANIELS ZONING: MU LOCATION: 19 NEWCOMB STREET APPELLANT IS APPEALING THE ZONING ADMINISTRATOR’S DETERMINATION THAT THE TOWING SERVICE IS NOT A RETAIL BUSINESS, NOT A PERMITTED BUSINESS AND HIS DETERMINATION THAT ESSENTIAL TOWING & RECOVERY IS TO BE CLASSIFIED AS AN AUTO SERVICE USE. CROSS REFERENCE: BP 99-110, 2005-099, NOT.AP 2-2005, SPR 59-98 WARREN COUNTY PLANNING N/A LOT SIZE: 0.37 ACRES TAX MAP NO. 309.10-2-68 SECTION 179-16-50 MICHAEL O’CONNOR & DON DANIELS, REPRESENTING APPLICANT, PRESENT 18 (Queensbury ZBA Meeting 5/18/05) MR. HAYES-Did Mr. O’Connor provide a letter? MR. MC NULTY-He did address a letter to Mr. Brown, I think, or to the Town. MR. HAYES-Mr. O’Connor, would you prefer that your letter is read in, or are you going to give us a summary in your testimony? MR. O'CONNOR-I have no need to have the letter read in. I don’t think there’s anybody here in the public that is here for this particular application, and I presume that the Board members have all read my letter that was part of the packet? MR. HAYES-Yes. MR. MC NULTY-I’ll just read the Staff notes, then. STAFF INPUT Notes from Staff, Notice of Appeal No. 4-2005, Michael J. O’Connor for Peter Coffman, Meeting Date: May 18, 2005 “Project Location: 19 Newcomb Street Description: The appellant is appealing a determination rendered by the Zoning Administrator regarding an Auto Service Use for 19 Newcomb Street. Information requested: Appellant is appealing to the Zoning Board of Appeals relative to the March 21, 2005 decision made by the Zoning Administrator that the Auto Service Use (Essential Towing and Recovery) at 19 Newcomb Street is not an allowable use in the Mixed Use, (MU) district. Additionally, it appears as though the appellant has also offered a “grandfathered use” argument. Staff comments: The appellant agrees that Auto Service uses are not allowable in the Mixed Use zone (see January 14, 2005 and February 18, 2005 letters from Michael J. O’Connor). However, their position is that a towing and recovery business is not an Auto Service business; rather it is a retail business. Per §179-2-010Definitions: Automotive, Auto or Motor Vehicle – Any use pertaining to motor vehicles and other heavy machinery. “Auto” or “automotive” may be used to describe an auto body/repair shop, automobile service station, etc. It is not unreasonable or irrational to conclude that an automotive towing service fits this definition. When considering an automotive towing business, it is not unreasonable or irrational to conclude that such a use fits within the definition of Automotive sales and service. Automotive sales and service is not listed as an allowable use with in the MU zone. In fact, no auto uses, with the exception of a Gasoline Station, are allowable within the MU district. These uses are specifically called out as allowable in other zoning districts and, as such, they are specifically prohibited from the MU zone. While the currently approved (Triumph Auto Glass) may be viewed as pre-existing, non- conforming all new or additional uses are subject to current zoning requirements. Section 38 from Salkin, 4 edition New York Zoning Law and Practice, as referenced in th Mr. O’Connor’s February 18, 2205 letter, is attached for your reference.” MR. MC NULTY-No County. MR. HAYES-Would you like to introduce yourself for the record, please. MR. O'CONNOR-Okay. Thank you, Mr. Chairman. I’m Michael O’Connor from the law firm of Little & O’Connor, and I represent the applicant, Peter Coffman, who is the tenant, and also Don Daniels who is the landlord of this particular property. I thank 19 (Queensbury ZBA Meeting 5/18/05) Staff for providing with their Staff comments an actual copy of a portion of the treatise on zoning, which I think is clear that says that as a matter of statutory interpretation, zoning codes are to be strictly construed against the enacting municipality, and that any ambiguities are to be resolved in favor of the property owner. That’s kind of like black letter law, and I don’t think there’s any real question about that. My problem, I guess, is, and Mr. Coffman’s problem, is that this is his livelihood. He wishes to operate a towing service on this premises. I’ll put aside for the moment, if you will, so that we talk just about the Ordinance whether or not he actually is grandfathered there, if this is determined to be an automobile sales and service operation. We have good proof on that issue I think, but just looking at your Ordinance itself, I don’t think it’s a prohibited use. If you look at Staff comments, and part of the problem with Staff comments is that it doesn’t really look at the definition. In the first sentence under Staff comments, it says, the Appellant agrees that auto services uses, well, there is no such thing in your Ordinance as auto services uses, and I’ve been very careful to say auto sales and services, and if you look at the definitions, there is a statement some place in here that automobile and automotive are both interchangeable, so use it together, but automobile sales and services, which is what is the prohibited use, says any area of land, including structures thereon, that is used for the retail sale of motor vehicles and accessories, used for the retail sale of motor vehicles and accessories, which may or may not include auto body repair shop services. As an aside, we’re not asking for permission to run a repair shop, but clearly what the applicant does here is not a sale of motor vehicles, or a sale of accessories. He provides a towing service, and basically what happens is he gets a call for the vehicle to go out for a trip. He goes out, picks up the vehicle, he brings it to the yard. It usually is in the yard a day or two, maybe three days, and correct me if I’m wrong, Peter, for the insurance people to come in and inspect it. This is a vehicle that’s been involved in an automobile accident. The insurance adjuster comes in and inspects it, says take it to this garage to be fixed, or take it to this junkyard, it’s totaled. They are registered vehicles that we’re talking about. We’ve had some issues about unregistered vehicles. We’ve had some issues about clean up of the yard, and I’ve got some pictures here that show the yard as it presently is and has been in the last month and a half. We also have acknowledged that we will have to go through site plan. I’ll forget about the grandfathering, and we will go through site plan with the Planning Board to address any issues that they might have as to impacts, but the whole determination that I see is, is this a retail sale of motor vehicles and accessories, and that’s what’s prohibited. I’ve said that it’s a retail business, and if you look at the definition of Retail, it says, “The offering for a fee of goods, services and merchandise to the general public”. That’s what we do. We offer our towing service to the general public for a fee. Now it says excluding restaurants, excluding taverns, and this is where I think we differ with Staff. It says excluding motor vehicle sales and services. Staff has interpreted that to say, excluding motor vehicle services. The only definition, though, in the front of the book, is sales and services, which talks about the sale of vehicles or accessories. So this exclusion is not really applicable. It also says excludes boat sales, recreational vehicle sales and services, mobile or modular home sales and services. All those things are orientated to a sales operation, and they are particular sales operations that are excluded from retail business, but the operation that Mr. Coffman has is not within your definition. If you go back and you take a look, the other couple of comments I’d make on Staff comments, if you go down in the definition, in the next paragraph you’ll see he does use the term automobile sales and service. He also says, and I think somebody else has picked up on this, that auto uses, now he’s changed from auto services and all of a sudden picks up auto uses, which I don’t think is also a definition within the Ordinance, are permitted in the MU zone to the extent of a gas station. So, I think he’s not necessarily saying that all automobile services are excluded from the MU district, and I think that just confuses it. I would like to have you look at the definition of motor vehicle sales and services, and tell me whether or not you think this towing operation falls within those four corners of that definition, and if not, then we should be permitted to make application for a site plan approval to the Planning Board. If we need to, I will address at length the uses of this property since 1935 to set the basis for a pre-existing, nonconforming use, but I think 20 (Queensbury ZBA Meeting 5/18/05) we can make a determination here that should be favorable to the applicant, simply by looking at your definitions, and by looking at the law that was provided to you by Staff. MR. STONE-Since only two of us were alive in 1935, I think you can dispense with that. MR. O'CONNOR-That’s my pitch. I will reserve the right, respectfully, to address the nonconformity issue if we’re not successful based upon the strict interpretation argument. MR. ABBATE-I am going to, I was born before 1935, however, I’m going to place myself in a very precarious situation, by addressing both Counselors at the same time. I have come up, I really researched this thing. I put a lot of time into it, and I’ve come up with two observations, which I’d like to present. MR. HAYES-Chuck, can I just interrupt you for one second, and I’ll let you do that, but I think we should let Craig point out what the Town’s position is, and then, that’s what we traditionally do in this case. MR. ABBATE-Mr. Brown, my deepest apologies. MR. BROWN-And I’ll make it short. I think the Staff notes pretty clearly stated my position. I think I took a little broader approach with defining this use. If you look at the automotive, auto or motor vehicle use, the definition, it says any use that deals with automobiles, and I think if you throw a towing service in there as any use that deals with automobiles, then you could use it when you define automotive sales and service. The position that in order to be an automotive sales and service you have to have sales and service, I wouldn’t interpret it that way. I think you could, someone could apply to the Town and say I’d like to do this auto service use, and I don’t think I would take the position and say, no, you can’t have it because you don’t have sales. I think you can split up auto sales and service. You don’t have to have both to fit in that use, and that definition. So the appellant’s position that, since they don’t have sales and service, they don’t fit the auto sales and service definition, my position is that you don’t have to have both to be an auto sales and service. MR. HAYES-Chuck, go to the starting line, buddy. MR. ABBATE-Okay. Counselor for the appellant and Counselor for the Town, these are my two observations, and as I said, and I’m serious about this, I could be totally wrong, but this is my interpretation. It seems that within Chapter 179, under automobile sales and services the word services is not explicitly described and the word services, in my opinion, is at the very heart of the appeal. Now, language in 179-2-010 is at the very least, in my opinion, opaque. It really fails to exclusively address the term services and its meaning. The second observation was this. In a letter dated March 21, 2005 from the Zoning Administrator to Don Daniels, the Zoning Administrator states, quote, “The property in question lies within a Mixed Use zoning district within the Town of Queensbury. The MU zone does not offer any Auto Service uses as allowable uses”, unquote. However, the language in Chapter 179-2-010 is blurred, and I justify that by alluding to the fact that Mixed Use does allow Gasoline Stations and Gasoline stations provide air for ties, oil for automobile engines, antifreeze, possibly spark plugs, fan belts. In fact, are these not auto services? So, would it not be reasonable to conclude that Chapter 179-2-010 lacks specific intent, is ambiguous, and fails to address explicitly the term services. Thank you. MS. RADNER-Who do you want to answer first? MR. ABBATE-I don’t care who answers first. 21 (Queensbury ZBA Meeting 5/18/05) MR. O'CONNOR-I think that that’s the issue that I see is that the Statute is not clear in prohibiting this use. It says retail services, and clearly this can be defined as a retail service. The question is whether or not it’s within the exclusion of retail services which says that automobile sales and services are excluded specifically, and I think you can’t read, I understand what Mr. Brown is saying, that automobile, and actually it’s in a different section. It says automotive, auto, or motor vehicle, any use pertaining to motor vehicles, but you’ve still got to go back to the next definition when you talk about the exclusion, because the next section is the only one that’s mentioned in the definition for retail as being excluded. It doesn’t say all automotive are excluded. I agree that the Statute, at best, is not clear and should be interpreted for the benefit of the landowner. MS. RADNER-There is a general principal that ambiguities are in favor of the landowner, but first you have to find that there’s an ambiguity. There’s no requirement that a Zoning Ordinance attach a copy of Webster’s Dictionary and define every word in the English language. There’s nothing that prevents you from putting the plain meaning of words as their definition. There’s a legal mechanism we use where once we have a defined term, when we’re then referring back to the definition we’ve created, we capitalize that term. That doesn’t happen in our Zoning Ordinance. Each of our definitions stands alone, and you don’t have to go through the definition of retail services and expect to find every word within that definition also defined separately somewhere else. You can read that definition and get the plain, English language meaning out of those words. I would caution you against adopting an interpretation where any time you use the word “and” the words always have to go together, so that somebody could come forward and say, I’m not automobile sales, because the definition of automobile says automobile sales and service, and I’m not offering any services. So therefore I’m not automobile sales. It doesn’t make sense when you read it that way. You want to read it so that it’s logical, which is another very basic tenant of law, that you have words so that they make sense. So, if you were to switch the words around, service and sales, are they always required to be tandem, hand in hand, does that make sense? Consider what the plain English language meaning is, and unless you find that there truly is an ambiguity, something that is unclear, you do not have to find that the landowner’s interpretation is correct. I would also remind you that the Zoning Administrator’s charge is to interpret the Ordinance, unless such interpretation is overturned by this Board. MR. O'CONNOR-Mr. Chairman, I’d like to respond a little bit to that, because the word “and” is not at issue here. The word “and” is only in the caption, automobile sales and service. Take that and throw it out, whether you’re talking about either automobile sales or service. The definition speaks only about any area of land, including structures thereon, that is used for the retail sale of motor vehicles and accessories. There’s an and in there, but that’s not an and that I’m relying upon, as you may have inferred by saying that. I understand what you’re saying. It is a commonsense. You’ve got to apply commonsense, understanding of the whole sentence, but if the sentence that we’re talking about and the definition that we’re talking about is solely because there’s a specific exception in the retail services definition, which says automobile sales and services are an exception and not a permitted use, you look at that, and I don’t think this is what we’re talking about here. MR. ABBATE-Okay. I’d like to go back to Counsel, please, for the Town. Counselor, is it reasonable for me to suggest that all Zoning Ordinances, by necessity, even by obligation, must be interpreted as written, and not as an assumption or as an expectation of hope that a left out intention, and this is the point, intention, was expected to be implicit when read by a reasonable person residing in the Town of Queensbury? And in this case, I think there is expectation that there are two reasonable interpretations of the use services and when there are two reasonable interpretations, of a particular Ordinance, then the ZBA must go against the municipality and in favor of the property owner. 22 (Queensbury ZBA Meeting 5/18/05) MS. RADNER-Again, you’re in an area where there’s some conflict in the law. In a situation where there’s a clear ambiguity that can be depriving a property owner of their property rights, then there is a general principal that you find in favor of the landowner. On the other hand, there is also a principal, and there’s a lot of case law out there, that the people charged with interpreting a Zoning Ordinance are the people most familiar with it, and that their interpretation is entitled to some deference, and you need to weigh those two principals and decide whether or not Mr. Brown’s interpretation is reasonable, or whether there is a true ambiguity that deprives this landowner of a property right, and I can’t make that decision for you. MR. ABBATE-Yes, but the problem is that the Zoning Administrator may possibly be handcuffed. In other words, he’s not accountable for the author of the language in Chapter 179, nor is he accountable for errors and omissions and imprecise intent. Unfortunately, you’re right. He must draw on that language, as wrong as it may be, in an attempt to defend it. Now, can I get out of this gracefully, please. MS. RADNER-Absolutely. MR. ABBATE-Thank you, ma’am. MR. HAYES-That remains to be seen. Is there anything else you want to add, Cathi? Okay. Mr. O’Connor, is there anything else that you’d like to add for this portion of your, are you asking us to structure this Appeal into two segments, I guess, in a sense? MR. O'CONNOR-Yes, I think that would be appropriate. I also have copies of these specific definitions that I referred to. I saw that Mrs. Hunt was looking for a definition. If you don’t have it, I have a copy of that particular Ordinance, if you want it. MRS. HUNT-I’d like it, yes. MR. O'CONNOR-Okay. One page has the retail service on it and the other page has the automobile. I had them made up. The only other comment I’d make, if you really looked at the whole Ordinance, you can’t have a towing service in the Town of Queensbury. If you look at the whole Ordinance, and you interpreted it in a vacuum, there’s no place, no zone that says towing service is permitted, and that was one of the comments, I think, that was made, that it’s not a specified use. So therefore it’s prohibited. It’s kind of like, we ran into that argument when we had funeral homes. One of the first Ordinances we had here, we didn’t have funeral homes, and the question was, do you have to do a variance for a funeral home. MR. STONE-We have 11 cemeteries and no funeral homes? MR. O'CONNOR-Well, then the next one that I can remember was fraternal organizations. We had to do a modification of the Ordinance for a fraternal organization when the Elks Club wanted to build here. MR. HAYES-So, Craig, I guess your interpretation would be that automotive sales and service is allowed in the Highway Commercial Intensive area? MR. BROWN-Correct. Well, that’s not my interpretation. That’s the way the Code’s written, it’s allowed in that zone, but would a towing service fit in the Highway Commercial zone? Yes, if that’s what you’re asking. I think we could sit here all night, if we were going to make a list of uses that aren’t specifically outlined in our Code. We’ve been through this dozens of times. MR. HAYES-Many times, paintball and everything else. 23 (Queensbury ZBA Meeting 5/18/05) MR. STONE-This is another reason to do what we’ve been doing with trying to do work on definitions, and failing miserably so far. MR. BROWN-It’s an impossible task to have an exhaustive list of uses. MR. O'CONNOR-As things become apparent, you make changes. MR. ABBATE-Well, you know, we also have to assume that both parties are reasonable individuals, and there is basically my argument. When both parties are reasonable individuals, and there is a genuine dual interpretation of a particular Ordinance, then we’ve got to vote against the municipality and in favor of the property owner. Cathi? MS. RADNER-I’ve already told you my view of the law. You’re going to have to go from there. MR. HAYES-Okay. Anything else that you want to comment on, Mr. O’Connor? MR. O'CONNOR-No. MR. HAYES-I guess, do we have a public hearing for Appeals or have we, traditionally? All right. Is there anyone here that wishes to speak on Appeal No. 4-2005? PUBLIC HEARING OPENED JOHN SALVADOR MR. SALVADOR-As many of you know, I have a bit of a background in technical specifications and contract preparation, okay. The Zoning Ordinance that says automotive sales and service can also read automotive sales and automotive service. If you didn’t need that, you could say, automotive sales or automotive service, and then it would read automotive sales or automotive service. Or if you wanted to be all inclusive, you could say automotive sales and/or. This is common contract construction and definition, and, or, or if you mean both, and/or. Not unusual. The retail business definition, when it says offering for a fee, could also read retail sales. You’re offering for a fee. That’s a sale, and to exclude such things as restaurants, taverns, motor vehicle sales and service, boat sales, recreational vehicles and service, what is left? On the other hand, you have a definition for wholesale sale. Wholesale business, with no exclusions. It simply says the use for which goods are sold to members of a trade or organization, but not to the general public. That’s very clear. Why you have these exceptions to something that is understood by the man, everyone understands what retail sale is, and you exclude restaurants and taverns and all these other things. It makes no sense. Thank you. MR. HAYES-Thank you. Is there anyone else that would like to speak in regards to this application? If not, I’ll ask Mr. O’Connor to come back up. Would you like to rebut or embrace the testimony? MR. O'CONNOR-Well, again, I think, I have a problem with somebody coming to a determination by looking at the caption of the definition. There is no ambiguity when you really look at the definition that’s under that caption. That deals solely with sales, and we’re not talking about automobile vehicle sales. We’re not talking about accessory sales, and I’m not trying to nit pick the world here, but I think the reasonable expectation is that this is not, should not be a problem. These two stalls in this portion of this building have been used for something similar to this since 1935. Now, Craig had a problem because apparently nobody ever applied for a Certificate of Occupancy, and there were a number of people that turned over since 1967, but I’ll tell you that the upstairs of the building, where the Triumph Glass is, was before this Board, or before the Planning Board, I forget which, and I’m sure that the Board members went out and 24 (Queensbury ZBA Meeting 5/18/05) inspected the property, and the lower part of it was being used for this similar type nature, or this business at that time, not a towing business, but an automobile service business at that time. We’re not even trying to get that broad brush. We’re limiting it to a towing service. MR. STONE-Let me just ask a question. What are stored within the building are tow trucks which go out, get things and put them on a lot for a day or two, is that what we’re saying? MR. O’CONNOR-Yes. MR. STONE-You don’t bring them inside. You don’t try to fix them. MR. O'CONNOR-No. MR. STONE-Don’t scrap them, don’t salvage them or anything like that. MR. O’CONNOR-It’s purely a service operation. MR. STONE-Okay. MR. MC NULTY-I end up being a little puzzled. On the one hand you’re saying this should be allowed because it’s not automobile sales and service. MR. O'CONNOR-Right. MR. MC NULTY-On the other hand, you’re saying, maybe it should be grandfathered, because what was there was an automobile sales and service type operation. It seems like you’re arguing both sides of the fence on this. MR. O'CONNOR-I argue alternatively, Mr. McNulty. I argue alternatively, which I think we’re entitled to do. The time period since the last other service person has been there is not, the lapse of time period is not greater than what would lapse that pre- existing, nonconforming use, if the argument of interpretation fails. MR. MC NULTY-Okay, but in that case, you’re arguing, then, that towing is a part of automobile sales and service. MR. O'CONNOR-If the interpretation is, by this Board, which I would disagree with, that it is that type operation, then I would say, so what, it’s pre-existing. It is nonconforming. I don’t think you’d be right if that was your interpretation, but if you make that interpretation, then I’ve got to address it. MR. ABBATE-So you’re saying you can fall back on what’s called pre-existing rights and the proviso of grandfathering. MR. O'CONNOR-Yes. MS. RADNER-You can also just call it a continuation of a nonconforming use. MR. HAYES-It seems logical to handle this in two pieces. Just because there’s two separate arguments. MR. ABBATE-I agree. MR. HAYES-So I think it’s important for Craig to point out what he feels about the. MR. BROWN-About the pre-existing, nonconforming? 25 (Queensbury ZBA Meeting 5/18/05) MR. HAYES-Right, which I think, first, why don’t we see if we agree with his interpretation initially, and if we don’t, then we’ll move on to that other thing, because otherwise it’s unnecessary. MR. ABBATE-Yes, I agree. MR. HAYES-So I guess it’s time to poll the Board as to their position, in terms of Mr. Brown’s interpretation of the definition of the use that’s being requested. I believe it’s you, Chuck. MR. ABBATE-Okay. This can be, this Appeal could be a landmark Appeal for the Town of Queensbury, and I’ll tell you why. Because maybe this will send a message to somebody in authority that we have to take a closer look at write these Ordinances maybe a little bit differently, but let me say this. That the Zoning Administrator is a man of integrity. He has my utmost respect and he’s attempting to do a job which I said earlier, handcuffed. He’s not responsible for writing the language in 179, or responsible for the errors or omissions, or imprecise intent. Unfortunately, he’s got to defend, and he has to depend upon that language that’s contained in 179 to defend it, and I understand all of that. I truly believe, I honestly believe, that both Counsel and the Zoning Administrator’s interpretations are correct, and based upon that, I suggest that according to, I think it’s 3801, I don’t remember what it is, that when there are two reasonable interpretations of a zoning law, that the ZBA must go against the municipality and in favor of the landowner. Thank you. MR. HAYES-Thank you. James? MR. UNDERWOOD-I think it’s important for us to revisit what some of our past decisions have been in similar respects to this one. The two in the past couple of years that we’ve dealt with were Maille’s which was up on Aviation Road there, and I know at the time a towing business was trying to come into that business as an accessory also, and in the depths of that discussion, I think that came back two or three times before we resolved it, and in the end, we denied the use as requested, and in the interim, the garage is no longer there and it’s going to be, you know, kind of drifted over to the professional office end of Town, as was envisioned by the Town, as was envisioned by the Town for the future. The other one that we did most recently in this same area was the one down on, I believe, Richardson Street, which was right on the corner, and within the Main Street guidelines there. That was one where they had tried to open up a business, well, it actually was semi in operation at the time, for high performance car parts, and we denied that one also. I think in this case it’s a little bit cloudy as was suggested by Counsel, that, you know, we have a pre-existing nonconforming use there with Triumph Auto Glass, and, you know, the recent use of the facility as a towing facility, it’s in our domain to decide is that a proper use for this area. I think we should remember that it is in the Main Street area, and I think that, though we look at the past uses, that we have to think also of the future uses of the area, and I think the Town has been pretty adamant, and I think our Board has been basically objective in making sure that we kind of hold our feet to the fire, too, as a Board, that we think about what the future uses are going to be in that area. I mean, the hope is for Main Street to change over. Whether or not this would be a temporary usage there, I’m not sure how long you’re intending to run your business there, but certainly, you know, with the other side of the Northway holding many junkyards down there in that end of Town, which is more appropriate, I think, for automobile carcasses. At the same time, this a temporary use. It’s not like there’s 50 cars out there, junk cars, waiting to be towed away. It’s one or two cars. So I’m still sitting on the fence on it, but I think it’s something that we need to be clear about. We’re not just talking about the past. We’re talking about the present and the future, and I think that’s more important to focus on that. So I’m going to wait and decide. 26 (Queensbury ZBA Meeting 5/18/05) MR. HAYES-You’re undecided. Okay. Chuck? MR. MC NULTY-The only thing I’m really sure of is we’ve got a crappy Zoning Ordinance, and I’m glad we’re working on changing it, because the more we get into things like this, the more you can see that there’s a problem with the definitions and the wording. I think I’m going to agree with Chuck Abbate on this one. On the one hand, I’m not at all sure that towing is an appropriate activity for this area. At the same time, looking at the definitions and the wording, I’ve got to agree with Mr. O’Connor that at the very least it’s very ambiguous. I think there’s a real doubt as to whether the wording in the Ordinance really prohibits this kind of thing. So I’m going to reluctantly fall in support of the Appellant. MR. HAYES-Thank you. Lew? MR. STONE-I think Mr. McNulty did a very good job of helping me clarify. I think in this particular case, I think Mr. O’Connor did a very good job of raising the ambiguities, raising the doubt, as Mr. Abbate said, of saying, well, we could go either way, and I don’t see any reason not to buy into Mr. O’Connor’s arguments. I don’t know how to fix the Ordinance. I don’t know what the language is going to be because certain things roll off your tongue, automobile sales and service. We’ve got half a dozen under retail business. We have to find a way to split those so that we are talking two different things, with the and or that you’re talking about, but I just think that there is enough ambiguity in this thing that I easily could have done what Mr. Brown did. I mean, if it looks like a duck, quacks like a duck, it is a duck, because automobile is in there, automotive, but I think the argument is meaningful, and this does not take away anything from Mr. Brown’s interpretation, because this is about as muddy as anything I’ve heard of in the Zoning Code. So I would go along with the Appellant. MR. HAYES-Mr. Urrico? MR. URRICO-Yes. Recognizing the difficult position that both Mr. Brown and Mr. O’Connor are in, and the arguments they’ve each made, I also understand that there is a lot of ambiguity here. Even the definition of mixed use, it says encompasses areas where mixed residential and commercial uses are encouraged. By mixing uses, the Town hopes to restore the vitality and vibrancy of these urban neighborhoods, and then it goes on to say the purpose of this zone is further to allow for a transition in a manner which permits the widening of the west Main Street arterial route, encourages safe traffic patterns and aesthetically please environment, and a safe pedestrian circulation. I don’t see where allowing this property to exist as a towing service is going to be detrimental to that goal of a mixed use area. I don’t see how it’s going to affect it in any way, positive or negative. I think it’ll exist, and I think that’s also part of the ambiguity, and I really, I would agree with the Chucks and Lew on this. I agree that I think the business should be allowed to exist, and I would vote to overturn that. MR. HAYES-Thank you. Joyce? MRS. HUNT-Yes. I’m reading the Zoning Ordinances here, and probably trying to second guess those who wrote it, saying excluding restaurants, taverns, motor vehicle sales and that. They might have added towing services, but they didn’t, and I think you did a good job, and I would vote yes. MR. HAYES-Okay. I guess I’m going to be in the minority on this one. I understand, we’ve all pointed out that at times Mr. Brown is put in a position to interpret things that are not entirely clear, and I think Mr. O’Connor has pointed out that there is some ambiguity in this particular case, but what was controlling for me is the word “any” in the definition of 179-2-010, and that word is not ambiguous to me. I think any use pertaining to motor vehicles or other heavy machinery, in this particular case, I don’t think that’s ambiguous. I think that that word’s in the Code, and to me that means 27 (Queensbury ZBA Meeting 5/18/05) exactly that. It means any use pertaining to motor vehicles. So I would be in opposition to the Appeal. I think Mr. Brown may be, in this particular case, based on my reading of that definition, made the correct decision. So, having said that, it appears that we have five votes supporting the Appeal, one undecided and one vote in opposition to the Appeal. Chuck? MR. ABBATE-Yes. I’ll take a motion. MR. HAYES-I’ll close the public hearing. PUBLIC HEARING CLOSED MOTION TO APPROVE NOTICE OF APPEAL NO. 04-2005 MICHAEL O’CONNOR FOR PETER COFFMAN, Introduced by Charles Abbate who moved for its adoption, seconded by Joyce Hunt: 19 Newcomb Street. The issue at hand is Mixed Use zone retail business: 1. Strict interpretation of our zoning ordinance. 2. Non-conforming use rights. Counsel for the appellant cites NYS Court of Appeals case 440 East 102 Street Corp vs. Murdock nd 285NY as well as NY Real Property Practice 4 Edition, section 38:01 vol. 3 In fact there th is strong authority that requires zoning ordinances to be interpreted as written and not as supposed or as thought to intend. Section 179-2-010 states: “Retail business – the offering, for a fee of goods, services and merchandise to the general public, excluding restaurants, taverns, motor vehicle sales and services, boat sales, recreational vehicle sales and service, mobile and modular home sales and service.” Within Chapter 179 under vehicle sales and services, the code fails to define the term services; as such there is ambiguity with respect to its meaning. The terminology, services and intent, are at the heart of the Appeal. Language in section 179-1-010 is at the least opaque and the style fails to explicitly address services and intent. If we are to follow those cases cited by counsel it would be reasonable to suggest that all zoning ordinances, by obligation, by necessity must strictly be interpreted as written, not as an assumption or as an expectation of hope that a mislaid intention was expected to be implicit when read by a reasonable person. Although not addressed, there are two other factors that may give preferentiality to the Appellant. “Preexisting rights and an approximate 75 year history of the property, suggesting the proviso of grandfathering may apply. Counsel addressed those issues in his letter of February 18, 2005, which is in the record. Symantec blurring with respect to the meaning of the word services, or for that matter any word(s) contained in this Chapter 179-2-010 dictates that in the interest of justice we painstakingly construe in favor of the Appellant, so I move a motion in favor of Appeal #4-2005. Duly adopted this 18 day of May 2005, by the following vote: th AYES: Mrs. Hunt, Mr. Abbate, Mr. McNulty, Mr. Urrico NOES: Mr. Underwood, Mr. Stone, Mr. Hayes ABSENT: Mr. Bryant MR. O'CONNOR-It’s four, three, though. MR. HAYES-Yes. MR. STONE-It was four, three. I was convinced by Mr. Hayes, is why I said no. I think the word “any” is a very important word. MR. O'CONNOR-But it’s not in the other definition. 28 (Queensbury ZBA Meeting 5/18/05) MR. STONE-Yes, but it’s in this definition. You’ve got it anyway. I thought you did a good job. MR. HAYES-Just for clarity’s sake, there was four votes for the Appeal and three votes against it. Is that correct? MR. STONE-Right. MR. ABBATE-Yes. MR. HAYES-Okay. NOTICE OF APPEAL NO. 5-2005 SEQRA TYPE UNLISTED LISA & JAMES PUSHOR AGENT(S): J. LAPPER, ESQ./S. BITTER, ESQ. BPSR OWNER(S): LISA & JAMES PUSHOR ZONING WR-1A LOCATION 29 JAY ROAD WEST APPELLANT IS APPEALING A DETERMINATION BY THE ZONING ADMINISTRATOR DATED FEBRUARY 17, 2005 REGARDING THE VALENTI PROJECT TO RECONSTRUCT THE EXISTING HOUSE ON THE SAME FOOTPRINT WHICH RECEIVED ORIGINAL APPROVALS IN 1991. CROSS REF. SP 54-91 WARREN COUNTY PLANNING N/A LOT SIZE: 0.35 ACRES TAX MAP NO. 289.10-1-20 SECTION 179-16-50 STEPHANIE BITTER, REPRESENTING APPLICANT, PRESENT MR. MC NULTY-The application for Appeal, I’m going to read Number Nine, which describes the section of the Zoning Ordinance from which they are seeking an interpretation. “In 1991, Peter J. Valenti, Ms. Pushor’s prior husband, made an application to reconstruct the existing house on the same footprint plus add a 305 square foot addition. The expansion was located at the northeast portion of the building which was described as an expansion of habitable space in the form of a rectangular area and entranceway to the east and a porch/accessway to the north. Mr. Valenti proposed, in an effort to mitigated the expansion, to also reduce the impermeable areas on the lot that existed by removing a portion of the macadam drive and some concrete walkways so that the permeability would be increased to 65%. Due to the layout of the lot, and the pre-existing noncompliant placement of the house, Mr. Valenti had to request a shoreline setback variance of 51 feet of relief which would place the house 24 feet from the Lake, as well as a variance which would allow him to continue to maintain a nonconforming structure. On November 20, 1991, these variances were granted. On December 17, 1991, site plan approval was granted for this project. Although the building demolition has not occurred, since these approvals, Mr. Valenti did commence the construction of the addition, and completed the expansion located on the east side of the existing residence. The addition that was actually completed was 144 square feet in size. Mr. Valenti also removed a portion of the macadam drive which was located on the northern side of the parcel. Based upon the partial development of the proposed addition, it was our position that as a matter of law the project had vested rights and although the Town Zoning Code has since been amended to provide that site plans and variances expire after one year, the development that has been undertaken on the site should render the approvals “vested”. On November 15, 2004, a letter was provided to the Zoning Administrator making this argument. On February 8, 2005 a follow up letter was sent seeking Mr. Brown’s determination. In the follow up letter in February it was explained that as a matter of law a landowner who had, before the effective date of a zoning ordinance, made valuable improvements on his land is said to have a vested right to maintain such use in spite of a zoning ordinance which prohibited the use on the site in question. Estate of Kadin v. Bennett, 163 AD2d 308 (2d Dep’t 1990) Courts have stated that each case must be determined in accordance to its own circumstances. Case law indicates that there is no fixed formula that measures the content of all the circumstances whereby a party is said to possess a “vested right”. Rather it has been deemed a term which sums up a determination that the facts of the case render it 29 (Queensbury ZBA Meeting 5/18/05) inequitable for the government to impede the individual from taking certain action. Matter of Lefrak Forest Hills Corp. V. Galvin, 40 AD2d 211 (2d Dep’t 1972) Estate of Kadin v. Bennett, 163 AD2d 308 (2d Dep’t 1990). As a result, it has been held that each case must be determined according to its own circumstances. Id In this case, the family started to work on the project, but unfortunately, due to unexpected circumstances, the project could not be completed. As we are all aware, all families unfortunately are faced at one time or another with unexpected difficulties. In this case, it was not as if the Valentis did nothing with the project. They did actually complete a portion of the proposed addition, with the full intention that when they were able to do so, they would complete the project. Mr. Brown provided a determination on February 18, 2005 that this project did not have vested rights. We feel this determination is in error and as a result, we hereby are appealing such.” STAFF INPUT Notes from Staff, Notice of Appeal No. 5-2005, Lisa & James Pushor, Meeting Date: May 18, 2005 “Project Location: 29 Jay Road West “Description: The appellant is appealing the determination rendered by the Zoning Administrator regarding the rebuilding of a structure. Information requested: Appellant is appealing to the Zoning Board of Appeals relative to the February 17, 2005 decision made by the Zoning Administrator regarding the expiration of approval issued in 1991 for the demolition and reconstruction of a single family dwelling at 29 Jay Road West. Staff comments: Appellant makes claim that the zoning code has changed, to add the one year expiration for variance approvals. As such, their “development” that has occurred should render the previous approvals “vested” and they should be allowed to continue forward with no further review other than the applicable building permit process. Per §179-72. Expiration of Variance; from the 1988 Town Code( the code which was in effect at the time that the 1991 approvals were issued ) the one year time frame applied the approvals granted to a previous owner (Valenti) copies attached for your reference. Further, the Valenti’s were knowledgeable of this requirement and on November 2, 1992 they filed an extension request with the Zoning Board of Appeals (ZBA) for a one year extension. Subsequently, on November 17, 1992 the ZBA granted a two year extension to Valenti. Apparently, a 144 sf addition was constructed in 1992-1993 in lieu of the complete tear down and 305 sf addition. This small addition does not qualify as a significant action relative to the approvals issued, therefore, the 1991 Area Variance and Site Plan Review approvals have no “vested rights.”” MS. BITTER-Good evening. Stephanie Bitter for the record. I’m here together with Jaime and Lisa Pushor, who are the owners of this property. If I could just correct one thing in the Staff comments, or make it more clear. Lisa Pushor’s always been an owner of this property, even when the original 1991 approvals were granted. She’s the prior wife of Mr. Valenti. If I could just reiterate some of the items that were identified in our Appeal. In 1991, as we had identified, Mr. Valenti went forward to do a reconstruction project which included the addition of a 305 square foot area. Part of that application that was presented to the Town of Queensbury was also to include removal of certain macadam road and walkways to increase the permeability of the site. If any of you aren’t familiar with it, it’s a peninsula on Glen Lake, which is why shoreline variance 30 (Queensbury ZBA Meeting 5/18/05) was necessary as well as a variance for the continuation of a nonconforming structure. Both of those variances were obtained at that time, which is identified in the Appeal as well as site plan approval, and as we’re all aware, a lot of time and effort was spent in obtaining those approvals. As Mr. Brown had indicated, subsequent to the granting of those approvals, in 1992, Mr. Valenti returned, identifying that unfortunate circumstances had resulted and they were not in a financial position to undergo the project, and as a result, requested and received extensions for those approvals. Soon thereafter, in an effort to preserve those approvals, they did construct a 144 square foot addition to the house. It was their intention in making that amendment to the structure to preserve the approvals that were granted in 1991, which is the reason why no other extensions were requested after that point in time. The area of the Code in which Mr. Brown references in his Staff notes, the expiration of a variance, 179-72, in that section it talks about the fact of the applicant’s failure to undertake the proposed action. In this case, the Valentis, or the applicants, I should say, at the time, did commence the project by doing that about 144 square foot addition. They actually started this renovation project that they had presented in 1991 to the Town of Queensbury, like I said, with the intention that that preserved those approvals and vested their rights. With that, again, they invested time and money to obtain those approvals and to do that addition, which is all that they could do at that time. It was always their intention to complete the project. Soon thereafter, the Valenti’s unfortunately divorced, but Ms. Pushor has continued to maintain that residence, with the understanding that when the time came, she would complete that project, when she was financially able to do so. She always believed those rights were vested, which is one of the reasons why she continued to maintain this property. Case law has identified that when there is an ambiguity in the Code, it’s always supposed to be viewed in favor of the applicant. I think this undertaking of the proposed action should be viewed as the commencement of the project, not the completion, because that’s not what the section of the Code actually identifies. Adjacent neighbors have also taken the time to review the approvals. Ms. Pushor’s reached out to them, and they have indicated that they’re more than willing to agree to the approvals and they actually think it would benefit the property, because not only has there come a point in which they’re financially able to do so, they have five children. So the house that they actually have is not workable for the family needs that they have at this time, nor is the integrity of this structure to a point in which it is willing to be maintained. They want to do something to renovate it and to continue to stay there, and as such, they would like to utilize these approvals to complete the project that they had presented in ’91. Let me hand out these letters, if I could, or give them to the secretary to read into the record. MR. STONE-May I say just what a lovely piece of property you have, in terms of its position on the lake. I’d never been down that far. It’s very attractive. MR. HAYES-Do you have anything additional? MS. BITTER-No, not at this time. MR. HAYES-Are there any questions for the applicant? MR. ABBATE-I do, if I may, Counselor. Thank you. The last case we heard, I talked about ambiguity. In this particular case, I do not believe there is any ambiguity. I believe that the expiration of approval issued in 1991 is not ambiguous. I believe that the one year time frame applied, the approvals granted to the previous owner, Valenti, which there are copies attached, are not ambiguous, and I believe that it’s in the record that the Valenti’s were knowledgeable of this requirement. So tell me where I went wrong. MS. BITTER-What I had indicated during the presentation is that they did request those extensions, the one time in 1992, but after that, they commenced the project, which it was their understanding was commencing that project that preserved those rights, that 31 (Queensbury ZBA Meeting 5/18/05) preserved those 1991 approvals, because they started to undertake the project as the expiration requirement indicates. MR. ABBATE-But the project was so small that it really didn’t qualify as significant action, relative to the initial approval. Am I wrong? MS. BITTER-Well, the significant action isn’t an item that’s identified in the section of the Code that’s referenced with regard to expiration. It only talks about undertaking it, and it never mentions anything about completion. MR. ABBATE-Okay. Thank you, Mr. Chairman. MR. HAYES-Are there any other questions? MR. STONE-Just, Mr. Abbate, Mrs. Valenti has owned the property continuously. MS. BITTER-Yes. MR. STONE-You kind of said there was two different owners. MS. BITTER-There wasn’t an interruption in ownership. MR. ABBATE-Right. Well, okay. I used the term previous owner. So please correct the record, and I admit my error. I don’t have a problem with that. Thank you. MR. HAYES-Okay. Are there any other questions for the applicant, or the applicant’s agent, or the Appellant, I should say? MR. ABBATE-No. MR. STONE-Just a quick question. If the Appeal is upheld, what are your plans for that property? Because there was the small addition. What do you see that you would do with this variance? LISA PUSHOR MRS. PUSHOR-To go forward with the rebuilding of the home, what we got the approvals for. MR. STONE-Define rebuilding. Because we’re used to, unfortunately, getting rebuilds on lake property. MRS. PUSHOR-Well, we had approvals to rebuild on the home on the same footprint, with those variances for to take, and then just to go up. It’s one and a half stories right now, to go up the full two stories. MR. STONE-But you would be tearing it down and building. MRS. PUSHOR-Well, we would take down part of it, and the part that we started that we built we would keep, and that was the intention. MR. STONE-Okay. What is the other building on the property, by the way? MRS. PUSHOR-That’s a garage and it’s storage above it, and my husband’s gym where he trains and keeps his workout facility. MR. STONE-Okay. 32 (Queensbury ZBA Meeting 5/18/05) MR. HAYES-Are there any other questions for the applicant? MS. BITTER-I might not have mentioned that in 1991 the variances were the shoreline and the continuation of the nonconforming structure. MR. STONE-Right. MR. ABBATE-I wonder if I could talk to the Zoning Administrator for a second, please. MR. HAYES-Sure, it is an Appeal. MR. ABBATE-I believe your interpretation is correct. Will you help me, and support it, please. MR. BROWN-It depends on what you say. MR. ABBATE-Is there any doubt that, indeed, there was an expiration of approval, that it was issued in 1991, am I correct? MR. BROWN-That’s correct. MR. ABBATE-And did, in fact, this approval expire? MR. BROWN-That’s my position. MR. ABBATE-Okay, and, when an approval expires, that happens, what is the status? MR. BROWN-It’s expired. It’s no longer valid. MR. ABBATE-It is no longer existent? MR. BROWN-That’s correct. MR. ABBATE-If it’s no longer existent, then can their be a grounds for an appeal, in your opinion? MR. BROWN-Well, I don’t think they’re appealing the fact that, does the application exist or not. They’re appealing my decision that says that it’s no longer valid. MR. ABBATE-Correct. Right, and if it’s no longer valid, it’s based on the fact that it’s expired. MR. BROWN-That’s correct, and I’d like to go on the record, too, that I find myself in strange territory as well as some others tonight in agreeing with Mr. Abbate that I don’t think there’s any ambiguity in the expiration. It’s pretty clear that, I know there was some discussion with the last appeal about and or or. There are some or’s in there. You have to do this, or that or that, or it expires, and I don’t think they did any of those things that require them to preserve that variance. MR. ABBATE-I agree. Thank you. MR. BROWN-Okay. Thanks. MS. BITTER-If I could just make one comment. I realize that we’re appealing Mr. Brown’s interpretation of this, but the one item, just to bring back to your attention, is the fact that the extension was provided, and soon thereafter the addition was actually constructed, the 144 square foot addition, which was based on the 1991 approvals that 33 (Queensbury ZBA Meeting 5/18/05) were granted. That was part of the project, which is why they were able to undertake that at that time, and that’s what we’re basing it on the preservation of those approvals. MR. HAYES-What year was it that? MS. BITTER-It was soon after. MRS. PUSHOR-I don’t remember the exact year. MR. HAYES-Okay. Just ballparking it. MR. STONE-It seems that this Appeal depends on another word, significant action, and it’s the Zoning Administrator’s position that this was not a significant action. Is that part of, I’m asking Counsel now. MS. RADNER-Well, we’re mixing different concepts together. What Ms. Bitter is suggesting is that there was some sort of investing here, which is when somebody takes substantial action in furtherance of valid permits, and then the law changes, they have certain vested rights, but we also have a section of our clause that says the expiration of a variance, which specifically says you obtain your necessary building permit to construct the proposed building, you change the existing building, you comply with the conditions. If you haven’t done it in a year, it expires, and what may be missing from the presentation is why doing a portion, a small building portion different from the approvals granted 14 years ago, creates a vested situation now that would trump this expiration of variance, and I believe it’s Mr. Brown’s interpretation, and he’ll correct me if I’m wrong, that it doesn’t, that there was no vesting. There is no, if I start and I put my foot in the door, then I can hold the door open indefinitely, based upon a small addition. They didn’t finish the project. They’re right to do so has expired. MR. BROWN-And I would agree with that, just to finish up. As I was looking through the file for the numbers on the house, it was proposed construction of a roughly 1600 square foot, I think that’s the number. I don’t know if that included the 300 square foot addition or not. That doesn’t much matter from my argument. What they’ve offered is they’ve constructed a 144 square feet, less than 10% of what they had proposed for the rebuild. So I don’t find that significant even, you know, to support the argument there’s been a significant investment here. MS. BITTER-If I could just clarify what the presentation was to identify was the first being that the expiration clause incorporated in the Town of Queensbury doesn’t mention anything about significant. What it does mention is the fact that you failed to undertake the proposed action, which is our position that we commenced the proposed action, and there was nothing in that section that indicates you need to complete the action. That was the first part. The second part was with regard to the equitable argument of vested rights, which is where the significant and non-significant kind of gets incorporated into the interpretation of the work that was performed, and that argument was presented in the sense that there was work that was performed, and just because it’s not indicated as substantial by the Zoning Administrator, that’s not an item that’s identified in the expiration of variance clause as a tool of measurement. MR. URRICO-What was the proposed action? MS. BITTER-To reconstruct the house and to add a 305 square foot addition, so the addition and the reconstruction. MR. BROWN-And again, my position, just for the record, is that they did not undertake that action, which is to demolish and rebuild the house, and I’m reading from Section 179-92, which was the expiration of a variance section that was in force at that time. They didn’t undertake the proposed action or obtain the necessary building permit for 34 (Queensbury ZBA Meeting 5/18/05) the proposed action. They obtained a building permit for a different, smaller action or did they comply with the conditions of the authorization, demolish the house and rebuild. Those were the conditions of the approval, and it didn’t do any of those things, and that’s why I think that their variance expired. They didn’t do what they needed to do. MR. STONE-Do we have a copy of the original variance? I mean, what I see in here is the extension. Because this doesn’t say what they agreed to do or what they wanted to do. MR. ABBATE-I think it’s in the back of the file, Lew. MR. HAYES-I think they’ve kind of stipulated, though, that they don’t disagree with what was contemplated. MR. STONE-I’m sorry. You’re right. Excuse me. MR. UNDERWOOD-It says rebuild a single family dwelling. MR. ABBATE-Rebuild a single family dwelling. MR. HAYES-So in terms of the rest of the structure, you didn’t rebuild that either, then, based on change of circumstances. Are there any other questions, now, for the Appellant at this time, or Mr. Brown? If not, I’ll open the public hearing. Is there anyone here that wishes to speak in regards to this Appeal? PUBLIC HEARING OPENED MS. BITTER-Could we actually read the letters in, too, that I just submitted? MR. HAYES-Yes. We’ll do that after we open it to anyone who’s here, which probably is no one, but procedurally. Is there anyone that wishes to speak? JOHN SALVADOR MR. SALVADOR-My name is John Salvador. It wasn’t clear to me in the discussion as to whether or not a building permit was initially issued. MR. HAYES-That’s a good question. MR. BROWN-If I can answer it directly to the public, every indication I have is that a building permit was issued. I’m unable to find it. All I could find was a, you know, they applied for a demolition permit, but not for the construction. I guess I’m satisfied that they did go through the building permit process. MR. SALVADOR-I can tell you from my own experience, I have a similar situation. I have a building under construction for going on three years. So I have not completed the project, if you will, but I was always advised that I had to get an extension, a renewal of the building permit which is I think only good for a year. Isn’t it? MR. BROWN-That’s correct. MR. SALVADOR-So, to keep the thing alive, you must re-up the building permit. So, otherwise you’re not allowed to build. So I think something in the administration of the project has to be clarified. MR. ABBATE-That raises a good question, then. Was there, in fact, a repeated extension of the original approval issued in 1991? 35 (Queensbury ZBA Meeting 5/18/05) MR. BROWN-No. MR. ABBATE-Thank you. MR. BROWN-Just the one that’s been noted tonight, the one (lost word) extension. MR. ABBATE-Yes, I understand. Let me re-phrase it. Other than the one. MR. STONE-And the building permit was. MR. BROWN-Any building permit that may or may not have been issued would have been for the 144 square foot addition, not for the entire reconstruction, and certainly no building permit was issued for the whole structure. If any, it was for 144, and that was issued, built, and closed. MR. STONE-Okay. MR. ABBATE-So, in effect, then, no action invalidated the entire thing, since, right, is that the position, is that simple enough? MR. BROWN-That’s what I’m saying. That’s my position. MR. ABBATE-Okay. Thank you. MR. HAYES-All right. Is there anyone else from the public that wishes to speak on this Appeal? If not, correspondence. MR. MC NULTY-Okay. We’ve got seven letters, all of which, in their own words, say essentially the same thing. They’re all from people nearby. They all indicate that they’ve seen the plans and that they are very much in favor of seeing this project completed the way it’s been planned, and they want to see things go forward. I can read them all. MR. HAYES-No. MR. MC NULTY-I can read the names. We’ve got Paul Shea and Diedre. MS. BITTER-There’s one there by Pierre, he was the builder. MRS. PUSHOR-And our neighbor. MS. BITTER-If you could just. MR. MC NULTY-Okay. Let’s see. We’ve got the Sheas, Higley. I saw his note here somewhere. Yes, here we go. This is from Pierre Dumoulin and Sharon Aurilo. It says, “We live next door to Jaime and Lisa Pushor at 25 Jay Rd. West. I am in full support of the rebuild of the Pushors home. In 1991 I reviewed and approved of their plans to rebuild their home. I was also involved as the builder in the initial construction of the home in 1994. It was my understanding that the plans would be put on hold and completed at a later date. It is our hope that we can see this project completed as it will truly improve our lakeside community. Sincerely, Pierre Dumoulin Sharon Aurilo” MR. HAYES-Are there any other ones you’d like read in? Okay. Thank you. I guess, if that’s the end of the correspondence, then it’s time to discuss it among the Board members, and I believe it’s time to start with Mr. Underwood. 36 (Queensbury ZBA Meeting 5/18/05) MR. UNDERWOOD-Certainly when you start out to do a project, it sometimes takes you longer than you think. In fact, mine took almost 10 years, but I was smart enough to go out and re-up my building permits on a regular basis when they informed me that they had expired, and I checked them on a regular basis to make sure I didn’t run into that difficulty, but it’s a bit of a stretch of the imagination to imagine that in 1992 someone would assume that their plans could carry over for 13 years to the present time with no further review of any kind. I think that it’s important to remember that site plan review and review by the community is important. Even if they were intending to rebuild this home exactly as they had proposed it in 1992, at that time there were a couple of people proposing this, and now we’re talking about a household of seven people, and I think there’s always concerns on waterfront property, especially when you’re in close proximity to a lake, that some review is necessary, maybe not for the whole plans of the house, but I would think at a minimum, some kind of review should be necessary for the septic issues involved, because I think that’s greatly exaggerated from what it was in 1992. So I would be basically, I would have to agree with the Zoning Administrator regarding the rebuilding of this structure, that there’s no continuance automatically given for any process in Town, or purpose. MR. HAYES-Thank you. Chuck McNulty? MR. MC NULTY-Regrettably, I have to agree. I think, you know, absent significant work and renewed building permits, I think it’s too much of a stretch to look at 12, 13, 14 years from the time a small portion of the project was completed to now, to say that the vested rights carried forward. I think there’s a break. Obviously the variance wasn’t renewed, and apparently building permits were not renewed. Given that, I think the Zoning Administrator is correct in saying that the approval expired at some point back in the early 1990’s. So I’m going to have to support the Zoning Administrator. MR. HAYES-Thank you. Lew? MR. STONE-I basically agree. I mean, reluctantly, I think there’s good faith on the part of the applicant, but I think that 13 years, 12 years is a long time, and keep in mind that the relief that you would need to get a new application is easier, in the sense that you need less relief from the setback to the lake, since the Ordinance has changed from 75 to 50. So it’s not going to change where the house is, but it would make our questions a little easier to answer. I just think it’s a long time, and I think it was well spoken by Mr. Underwood that there are concerns. The world has changed, in terms of stormwater and protecting the lake, and I think it’s reasonable to have to go through the process again. So that questions can be asked, and I’m sure answers provided, but I think it has to be done. So I would support the Zoning Administrator. MR. HAYES-Thank you. Roy? MR. URRICO-Yes. I, too, would support the Zoning Administrator. I think commencing a project doesn’t stop the clock. I think there are appropriate processes in place to extend the time, if you needed more time. None of those seem to have been pursued, beyond the one time. I think 13 years is a long time. I really think he acted accordingly. I’d be in support of the Zoning Administrator. MR. HAYES-Okay. Thank you. Joyce? MRS. HUNT-Yes. I agree with my fellow Board members. I would be in favor of the Zoning Administrator. I think that too much time has gone, and what was done was really insignificant compared to the entire project. MR. HAYES-Thank you. Chuck? 37 (Queensbury ZBA Meeting 5/18/05) MR. ABBATE-Okay. Thank you. I don’t know whether you were here for the last Appeal that we just heard, but I would love to have mounted the charge for ambiguity, but unfortunately, I can’t. There are standards of fairness. Fairness not only to the public, but standards of fairness to the Town and the Zoning Administrator as well. I believe his position is absolutely correct, and I support the Zoning Administrator. MR. HAYES-Thank you. Well, I think it’s been said, so I won’t belabor the issue. I think that, you know, it’s been viewed by comparison to the continuum of time versus the percentage of the approved project that was undertaken. I just don’t think that this one’s a colorable issue, as far as the vested right. I certainly sympathize with the applicant, and appreciate the fact that they came through the proper channels here to do this and I guess they’re still in a position to make an application to this Board for some variances to construct the project, and we certainly hope they do that, but having said that, I believe there’s a consensus to deny the Appeal. Would someone like to make that motion. MS. RADNER-You should close the public hearing first. MR. HAYES-Yes. I’ll close the public hearing. PUBLIC HEARING CLOSED MRS. HUNT-I’ll make it. MR. HAYES-Thank you. MOTION TO DENY NOTICE OF APPEAL NO. 05-2005 LISA & JAMES PUSHOR, Introduced by Joyce Hunt who moved for its adoption, seconded by Lewis Stone: 29 Jay Road West. The majority of the Board felt that too little had been done and too long a time had gone by and that zoning code had changed, and that the Zoning Administrator was correct in his determination, based on the fact that the project wasn’t undertaken to the extent that it would continue their rights to what was approved. Duly adopted this 18 day of May, 2005, by the following vote: th AYES: Mr. Stone, Mr. Urrico, Mrs. Hunt, Mr. Abbate, Mr. Underwood, Mr. McNulty, Mr. Hayes NOES: NONE ABSENT: Mr. Bryant MR. HAYES-Unfortunately, the Appeal is denied. Thank you for coming. AREA VARIANCE NO. 37-2005 SEQRA TYPE II ADIRONDACK GIRL SCOUTS AGENT(S): TOM HUTCHINS, PE & MATT STEVES OWNER(S): ADIRONDACK GIRL SCOUTS ZONING SFR-1A LOCATION 412 MEADOWBROOK ROAD APPLICANT HAS CONSTRUCTED AN ADMINISTRATIVE BUILDING (4,428 SQ. FT.) THE BUILDING WAS CMPLETED WITH A FRONT PORCH/RAMP AS WELL AS A REAR DECK/PORCH RAMP WHICH ADDS AN ADDITIONAL 1,098 SQ. FT. TO THE FACILITY. RELIEF REQUESTED FROM THE SETBACK REQUIREMENTS (FRONT AND SHORELINE SETBACKS). CROSS REF. FWW 1-2005, SPR MOD 30- 02, AV 47-2002, UV 12-2002, SP 30-02, FW 1-02 WARREN COUNTY PLANNING MAY 11, 2005 LOT SIZE: 13.53 ACRES TAX MAP NO. 296.16-1-10 SECTION 179-4- 030, 179-4-070 STEPHANIE BITTER, TOM HUTCHINS, DEAN LONG, REP. APPLICANT, PRESENT 38 (Queensbury ZBA Meeting 5/18/05) MR. HAYES-Before we read into the minutes Area Variance No. 37-2005, our last case for tonight, Mr. Stone has a statement he would like to read, and then it’s my understanding he’s going to recuse himself from this application. MR. STONE-Thank you. I am conflicted on this application. At its original presentation, I recused myself because my wife was then the President of the Council and actively involved in the project. She is no longer President, but does sit on the Property Development Committee. Since the apparent completion of the project, after it was believed all approvals had been received, I was given a tour of the property by the Executive Director and witnessed first hand the property improvements made. Now an extended application is before us. I am aware of some controversy that has arisen in connection with it. Believing in the sanctity of Town Zoning and Planning Boards, I am concerned that undue outside influence may have come into play in the current approval process. I am also concerned that Staff has not performed as objectively as possible in the other direction in considering the application. Therefore, I reluctantly choose to recuse myself again. I do not feel I can be impartially objective. However, I am confident that my fellow dispassionate Board members will render a correct decision. Thank you. MR. ABBATE-Lew, I wonder if you’d wait a minute. I think it’s only fair that the Zoning Administrator hear this. MR. HAYES-I don’t think so. This isn’t an Appeal, and Mr. Stone is recusing himself. MR. ABBATE-Whenever someone makes an allegation, I like them to be here to defend themselves. Do you agree? MR. HAYES-And we still have Staff here. MR. ABBATE-Is it okay? MS. RADNER-It’s okay. MR. ABBATE-Is it okay? Okay, Cathi. MR. HAYES-Mr. Rigby will be joining us as an alternate. STAFF INPUT Notes from Staff, Area Variance No. 37-2005, Adirondack Girl Scouts, Meeting Date: May 18, 2005 “Project Location: 412 Meadowbrook Road Description of Proposed Project: The applicant has constructed a 4,428 sq. ft. administration building. The applicant had prior approval (AV 47-2002) for a 2,800 sq. ft. addition to the existing building. The new construction added an additional 1,098 sq. feet, including a front porch/ramp and a rear deck/porch/ramp. These modifications on the front and rear of the building extend into the front setback and encroach further into the wetlands on site. Relief Required: The applicant requests 91-feet of relief from the 75- ?? foot minimum shoreline setback in the SFR-1A zone, per §179-4-030. The applicant requests 8’ of relief from the 30-foot minimum front ?? setback in the SFR-1A zone, per §179-4-030. The applicant requests relief from §179-13-010 B & E allow continuance ?? of the nonconforming structure and nonconforming use, specifically, to increase noncompliance with the minimum shoreline setback, and to increase the nonconformity of the structure. 39 (Queensbury ZBA Meeting 5/18/05) Parcel History (construction/site plan/variance, etc.): BP 2004-936: ?? Commercial addition (patio, Southside of Winter Lodge), issued 12/29/04. BP 2004-302: Demolition of building, issued 6/7/04. ?? BP 2004-292: 41 sq. ft. addition, issued 5/14/04. ?? BP 2003-556: New commercial building, issued 12/17/03. ?? SP 30-2002: Construction of a 2800 sq. ft. addition to the existing ?? administration building, approved 6/25/02. FW 1-2002: Wetland work associated with SP 30-2002, approved ?? 6/25/02. AV 47-2002: 84.5-feet of relief from the shoreline setback requirements ?? for addition to administration building, approved, 7/24/02. UV 12-2002: Expansion of a non-conforming use (administration ?? building), approved 2/27/02. Staff comments: The applicants constructed a new 4,428 sq. ft. administration building on the site. While a portion of the reconstruction occurred on the existing building footprint, as well as in the previously approved area for the addition, modifications of a 1,098 sq. foot front porch/ramp and a rear deck/porch/ramp were added. The constructed front porch/ramp requires 8-feet of relief from the 30-foot minimum front setback, and the rear ramp further encroaches on the shoreline setback, whereby it extends 16-ft. into the wetlands beyond the 75-foot shoreline setback (91-feet of relief). AV 47-2002 approved the 84.5-feet of relief for the 2,800 sq. ft. addition, which would have extended 9.5-feet into the DEC wetland area. When the Zoning Board approved AV 47-2002 for 84.5-foot of relief for the shoreline setback it was for an addition to an existing building. The applicants indicated that while there were feasible alternatives to the granting of the area variance, such as redevelopment on an alternate site on the property, but, this option was dismissed because it was cost prohibitive, “An addition to the administration building is the most cost-effective option for the non-profit”. Had the applicants indicated that redevelopment was an option at the time, it could be argued, that the Board would have required that the building be made more compliant. The applicants now seek variances which increase the nonconformity of the structure relative to the ordinance. The applicants had agreed to reconstruct wetlands on site with their original 2002 area variance submittal; however, this work has not been done. The applicants supplied on 5/9/05, a new area for wetland mitigation (field surveyed and delineated by the LA Group). This area still needs to be approved by DEC. The benefit to the applicants by the granting of these requests is obvious, and several neighbors have indicated that this use/camp is not a detriment to the immediate neighborhood. However, the neighbors, applicants and their representatives have indicated that there are traffic problems/concerns which could be a detriment to the girls and to the larger community. Furthermore, construction within wetlands could be considered a detriment to the environment. This is the balancing test that the Board must weigh when making their determination.” MR. MC NULTY-“Warren County Planning Board Project Review and Referral Form May 11, 2005 “Project Name: Adirondack Girl Scouts Owner: Adirondack Girl Scouts ID Number: QBY-05-AV-37 County Project#: May05-38 Current Zoning: SFR-1A Community: Queensbury Project Description: Applicant has constructed an 40 (Queensbury ZBA Meeting 5/18/05) administrative building (4,428 sq. ft.). The building was completed with a front porch/ramp as well as a rear deck/porch ramp which adds an additional 1,098 sq. ft. to the facility. Relief requested from the setback requirements for front and shoreline setbacks. Site Location: 412 Meadowbrook Road Tax Map Number(s): 296.16-1-10 Staff Notes: Area Variance: The applicant requests approval of construction of a 4,428 sq. ft. administrative building, 1,098 sq. ft. deck, 1,220 sq. ft. concrete walk. The site was approved for a 4,800 sq. ft. admin building, 400 sq. ft. deck. The information submitted indicates the total sq. ft. approved was 19,355 this includes building and pavement where 16,433 sq. ft. of building and pavement exist. The original proposal was for 2,800 sq. ft. addition to the admin building where the applicant determined the building would not support an addition and demolished the building to build the existing building. The concrete walk is 15.7 ft. into the wetland and the building is 3.8 ft. into the wetland where 75 ft. setback is required. In addition the applicant proposes to construct a 607 sq. ft. addition to an existing 1,045 sq. ft. building used as the winter lodge. Also proposed is a 1,086 sq. ft. splash pad to be added to the recreational facility. Staff does not identify an impact on county resources based on the information submitted. Staff recommends no county impact. County Planning Board Recommendation: No County Impact” Signed by Bennet F. Driscoll, Warren County Planning Board 05/13/05” MR. HAYES-Thank you. Would you please identify yourselves for the record. MS. BITTER-Good evening. Stephanie Bitter for the record. I’m here together with Tom Hutchins, Dean Long and Kit Huggard. If I could just kind of comment to some of the Staff comments as well as the application that was submitted. As we are aware, we’re here for three variances that were identified. One, the shoreline setback, 91 feet of relief. The second front setback, 8 feet of relief, and the last is the continuation for the nonconforming structure. As I’m sure many of the Board members recall, in 2002, this redevelopment project was first presented, at which time there was an extensive review, both during the Town of Queensbury’s review of the application as well as when the Girl Scouts were discussing what they were going to do for this redevelopment project. During that initial submission, it was even submitted by the LA Group, the analysis which the Girl Scouts underwent to decide what exactly was necessary in order to expand the administrative building which was at issue for the 2002 review and application. Part of the item was that they needed a bigger facility to serve the over 3,000 members that it had participating in their activities. They only had office space which really only accommodated half of its support staff, and they needed room for activities, or bigger activity rooms for the girls to actually enjoy. Another item was that a new design would also remediate a traffic concern, which was part of the concern in 2002, which is now being brought up in the Staff comments, which is why I identify that. I’ll allow Kit to discuss that further later on, but during that review, certain concessions and alterations were made to the project, and at that time it was identified that utilizing the administrative building for the expansion would be the best and most cost effective way in which to handle the redevelopment project. That was the best alternative. That existing building was a ranch size 2,000 square foot house, which had a 575 attached garage, and like I said, most spaces in that building were undersized by half. During the construction, after the approvals were all received, it was discovered that the existing building could not sustain the addition that was being proposed. The integrity was not to the standard that was necessary and I’ll let Kit go into more detail with that. As a result, the entire building had to be demolished and reconstructed on the same footprint, which the Town of Queensbury was aware of the steps being taken, and in the Staff notes it even indicates that a demolition permit was issued. The demolition was then entertained, and then at that time it was the Girl Scouts’ understanding that they could build on the same footprint the project that was reviewed and those approvals would be allowable what, like I said, the project that was approved. I’ll let Kit go into more detail on that. During the construction, there were certain amendments that were made, and modifications, but again, they were under the impression that that was all acceptable to the Town’s approval. The first one being the activity room in the rear of the building. I know that the plans we had submitted show you the building as it was 41 (Queensbury ZBA Meeting 5/18/05) constructed. In the left corner, it was initially proposed to be an octagon. It was then determined to be a rectangular shape. That was one modification, the second being the front porch, which is the reason why the front setback is now being brought up. Initially, we were going to continue to maintain the front porch that was in existence, which I’ll have the other gentlemen here go into more detail about, but when the demolition occurred, the front porch got demolished as well. As a result the front porch then had to be reconstructed and the ramp that was already being proposed was constructed as well, which all of a sudden incorporated the front setback variance being necessary. The second modification was laying of the porches in the back and the walk around was amended slightly with a concrete porch, which I’ll let Tom go into more details on, but that area, the boardwalk was initially being proposed, but for whatever reason it wasn’t incorporated in the setbacks for the wetland. So the setbacks that we’re now talking about for the wetlands incorporates a concrete walkway, which I’ll let them go into more details about. As was initially mentioned, the Girl Scouts is a not for profit organization, which we are aware of. They serve a purpose of charitable and educational purposes to allow their members to enjoy these activities, to come to this site and actually have activities which educate them on nature, and Halfway Brook is a very integral part of the site. Because they’re this not for profit organization, the review for the variances being presented has to be looked at for a not for profit organization which is when you’re actually balancing the public interests that they are serving for the community, which I’ll go into detail on a little bit later, but let me just pass it off now to Dean to discuss about the wetlands. MR. LONG-I’m Dean Long from the LA Group, Director of Environmental Planning. I assisted the Girl Scouts back in 2002, 2003, both in the evaluation of the property as well as the numerous site plan applications, as well as the variance application to the Zoning Board of Appeals. The first thing I want to do is just briefly review the mapping, just so that we get a slightly better understanding of what’s going on here. This is the site plan that was in your package, and this is the overall general site plan, and I think what I’ll do is I’ll flip over to the next page, which is the detailed as built, and basically what I want to point out here is a couple of the things that have been alluded to. One of the items is that, as part of your prior approval, we were approved for 1350 square feet of wetland disturbance, even though the majority of that disturbance was all and underneath the boardwalk which had evolved from an original concrete walk, as Stephanie has said, to a boardwalk, in the process, but in the negotiations and in the entire process itself, we had selected and chosen to mitigate fully for anything at all that was happening in the back of the building. So, then what has happened is as a result of the return to the concrete sidewalk, which Tom will explain a little bit further, as to the reasons for that, it’s made a slight increase in the amount of physical impact, and that’s what is in here in this orange area. So it’s an 850 foot increase in the tow of slope that’s coming off of this sidewalk. Now, 850 feet sounds like a relatively large number, but I want to give you a photograph that shows the back of the building because, one, it illustrates exactly what’s going on back here. So this is a photograph that was shot today, and you can see the pedestrian bridge, the bridge that goes out across the wetland complex around Halfway Brook. Before I explain in more detail about the fill slope that you see in the top photo that’s along with the pedestrian bridge, the bottom photo is the stormwater detention basin that was constructed that in the prior Staff comments that we need to revise, and we’ve agreed to revise it and make the necessary repairs for that to assure it functions as designed. Nonetheless, back to the top photo, a couple of things. Again, what this is showing is a part of the side fill slope that’s essentially right in this area here. So you’re really seeing a photo that represents this parts of the fill along in here. The key thing here is to look and understand what’s going on here. You see the bright green chunk of vegetation that’s right there in the center? That’s part of the wetland ferns coming right into the recently graded edge of fill areas. So, even with this slightly larger impact, we already have wetland regeneration that’s occurring in this area between, you know, essentially this spring. So, even though, mathematically, we come up with this 850 square feet off additional potential impacts, it’s really hard to judge, because when you have the plant there saying, it’s good enough 42 (Queensbury ZBA Meeting 5/18/05) for a wetland plant to live here, it’s kind of hard to really, really say absolutely that that is a permanent wetland conversion and a permanent impact in itself. Going on and looking, I think I’m all done with the map, Tom, but you folks already had that map anyhow, and the photo just re-illustrates some of the existing condition out there, if you hadn’t had an opportunity to see that area. Now I want to briefly discuss some of the wetland criteria that’s relevant both in the Queensbury Zoning Ordinance, as far as the function and benefits, and since that was the key issue, as far as the balancing here, that the Staff has directed and asked you folks to evaluate tonight. Looking at some of the functional benefits of wetlands, one of the primary functional benefits of wetlands is floodplain and floodplain storage. This project has gone to a significant extent in both financial study as well as in the engineering of the bridge, to preserve both the floodway characteristics, and avoid any impacts on floodway characteristics. Those were a part of the proposal back when we made this application. That part of the proposal has been successfully completed, and that work is done. The bridge was built in such a way. The bridge was studied both by C.T. Male and by map to assure that all the wetland and floodplain requirements were met. So we have absolutely done everything possible to preserve and protect the flood characteristics of the wetland, which results in a benefit to the community. Looking at wildlife habitat, the simple way would be to say, well, when I was out there two weeks ago, re-examining everything, there was two Mallards swimming around in Halfway Brook. So obviously the Mallards aren’t too terribly upset about the conditions behind the building or in Halfway Brook itself, but, nonetheless, again, we have a very, very small level of impact. We have wetland plants coming in to the fill slope. So the environment there is already responding in such a way that it’s very clear that the impacts are diminimus and very small in relationship to the overall project, and of course, as Stephanie said, one of the other large benefits of wetlands is the opportunity for education. Specifically recreating by providing for hunting, fishing, there is a little bit of fishing but hopefully no hunting out there. Boating, hiking, birding, photography, camping and other use, all integral both to all benefits of the wetlands. All benefits that the Girl Scouts desire to continue to enjoy, all benefits that this wetland continues to provide. Protection of subsurface water resources. This program, what we have to always remember here is where we started, and part of where we started was with a building and parking lots and things like that that didn’t have any stormwater control. We were able to fit in compliant stormwater control. We know we have to complete one stormwater basin, but at the end of the day, we have made a marked improvement both on stormwater control and on parking circulation on the site, which increases the safety benefits both to the applicant and to the community itself. Erosion control, by (lost words) of sedimentation areas. We’ve incorporated sedimentation and sediment protection and sediment management into this project, both for long term and short term. So all those benefits of the wetlands are certainly preserved here. Education, scientific research, providing readily accessible outdoor bio physical laboratories and living classrooms and training and educational resources. Again, the key benefits that the Girl Scouts wanted by having this facility there, it not only allows them to use the facility on a year round basis, it allows the staffing to be used in optimal efficiency, both on a year round basis as well as during the summer. Those were some of the reasons why they chose to rebuild on this site, and also part of that, just so that we get the complete story down, there was extensive discussion about trying to build a new building in the north parking lot. The Town Highway Superintendent recommended strongly against that, because he believed, and he was correct, that it would have consumed parking that’s necessary for summer activities, which then would have put both girls attending evening programs and families attending evening programs out onto Meadowbrook Road. Again, that was part of the whole reason why this re-build, on top of the foundation, in that physical location, was selected as being the preferred alternative. Open space and aesthetics, again, dwelling on this whole thing is certainly important to the Girl Scouts. We’re not going to be interrupting it. We are giving it an enormous benefit by creating one of the very, very few fully handicap accessible trail systems through a wetland in Warren County. So it’s a huge benefit, both to the Girl Scouts as well as to the region. Nutrient cycling and food web contributions of this wetlands are not being upset by either the 43 (Queensbury ZBA Meeting 5/18/05) bridge itself, or this small additional fill. What we have to remember is that we made a commitment, in 2002, to mitigate for any of the disturbances. We’re continuing that commitment and the revised plan set that we submitted showed that we were going to make good on that commitment of building additional mitigation to compensate for this small disturbance that’s really hard to rate as a disturbance, based on the fact that the wetland plants are already reinvading the disturbed area. So, in the prior, in the package that the Staff has referenced, we’ve slightly rearranged the mitigation area, so that it’s 100% in uplands. We’ve protected the uplands, because that’s a back corner of the Girl Scouts’ property that’s an important buffer to them and to the Meadowbrook Golf course, and the shape and the size of this fits within a grove of large white pines and hemlock trees that they desire to protect, and we have flexibility as far as, you know, precise sizing of that mitigation area within that area. So, at the end of the day, we are willing and able to compensate for any disturbance that everybody judges is currently occurring out there. Tom? MR. HUTCHINS-My name’s Tom Hutchins, and I was not involved with the original approvals on this project. I was brought in to assist with developing a bridge, and we took, the bridge was basically approved as a concept, the bridge and the approaches, and that’s how I became involved in the project. Since that time, my role has expanded a little bit into some more ongoing site issues, both past and future, I guess. The only thing I really want to comment on are the setback issues. First of all, I would say that the drawings that are submitted in front of you were an actual field survey, completed this spring. When the issues came up with the Town, we decided that it was probably appropriate to resurvey the entire site, as it is, so all the locations shown are as surveyed. With the exception of Dean’s wetland info., we didn’t add anything to those drawings. Regarding the setback issues that were brought up, the front setback, as per the front porch, as was mentioned, when it was determined the old building had to go, the front porch went with it, and the new front porch is right where the front porch was before, and it didn’t, because it was existing, it was not part of the original submission. However, when it was rebuilt, they needed a front entry. It needed accessibility and the grade had to be increased so they could get into the building, so the new porch was built on the footprint of the old porch, one of the old porches. There were two porches on the old building. There’s now the one and it’s on the footprint of one of them. So, yes, and that is eight feet within the front lot setback, however, that’s the same, approximately, eight feet that the old porch was within that setback. Regarding the rear setback, the variance approved was for 84.5 feet of relief, which was to the back of the proposed deck on the new building. The deck was reconfigured since that submission, and actually the distance to the deck now is 81 feet, which is actually less than that. The 91 feet comes up as a distance from the wetland setback to the back edge of our concrete walkway. So it’s not really a building, I don’t know, you interpret it as you feel. It’s not really a building setback. That’s a distance to the walkway. The actual building setback, which I’m interpreting as the limit of the deck that’s on the back of the building, is 81 feet, and those are really the items I wanted to hit. Kit? KIT HUGGARD MRS. HUGGARD-I’m Kit Huggard, and I’m the Executive Director of the Council. I’d like to talk a little bit about what happened, what has happened, since we were last together. We talked about the new building, and we had a conceptual plan that was done by Joy, McCoola, Zilch. You might remember that they came and presented it at the time. When we went, after we received the variances, when we went to get building plans made, we had three builders come in and give us bids, using the plan that Joy, McCoola, Zilch had put together. When they went under the crawl space of the building, they found that the sill plate had rotted, and that the floor joists were going. One of the builders that we were negotiating with was Tom Albrecht, who eventually built the building. He went to Dave Hatin and said, can we, with these variances that we have, put a slab floor in the building, and raise it up a course, and using exactly the same lines as had been approved. Mr. Hatin said yes, indeed, you certainly can. They 44 (Queensbury ZBA Meeting 5/18/05) then went, from there, and had the final plans drawn, and they were done by Richard Jones. So, we took down the building that was there, leaving the concrete block wall that was there, and some of the slab that was there already. So half of the building was on slab. That stayed, and then the concrete wall, all that was around, that stayed. They filled in the concrete wall that was at the south end of the building, and poured slab, and then continued the slab so that it was all one level and built the building on that. It was our understanding, all along, that was perfectly the correct thing to do. In fact, that we could not build using the walls that were there, because they had rotted out, so that it would not be prudent to add on to that. I know that Mr. Albrecht applied for a demolition permit and got it and we took down the old building and proceeded along, just as we had been told to do. With the traffic that was involved, that was one of the issues that we were worried about when we were first planning the building. All those years, we’ve been there since 1947, people have been parking on Meadowbrook Road and walking Meadowbrook Road into camp, with kids in hand. We realized that traffic was getting way too busy, and the old building had parking in front of it that just, you had to back onto Meadowbrook Road to get out of the lot. So designing off road parking, and then the bridge. The bridge would allow us to access the property, the entire 14 acres, without going onto Meadowbrook Road at all. No matter where a parent and child parked, they could do activities on the campsite or they could come and use the building, by using the bridge, and it’s all handicap accessible, so that we can have children and wheelchairs and they can go over the bridge. They can access the buildings at camp, and the new building as well. Any other questions? Are there any questions from the Board? MR. ABBATE-Mr. Chairman, yes, I do, Madame, I have two questions, but, Mr. Chairman, I’d like to invoke a point of order. I want to respond to a previous statement made earlier this evening about political influence and questioning the performance of the Staff in handling this application, and I want to make it quite clear on the record that I have complete confidence in the integrity of the Zoning Administrator, Staff, as well as the Executive Director of Community Development, in processing this application. Thank you. Now, if I may, I didn’t want to interrupt your presentation, so I didn’t do a point of order, as a courtesy. I do have several questions, if you don’t mind. Someone indicated, this evening, that they were under the impression that the modifications were approved by the Town, Number One, and, Number Two, that there was a demolition permit. I fail, based on my research, to discover any type of correspondence approving this modification, and I also fail to find, based on my research, a demolition permit. I may be wrong. So help me out. MS. BITTER-On the first page of the Staff notes, where it indicates parcel history, the second one down, demolition of building issued 6/7/04. That was the demolition we were speaking of. I don’t think that, it might have been that you misinterpreted the items that were indicated, but we didn’t say that the modifications were incorporated in the approvals. We said certain modifications were made which brings us here this evening, which was the list that I was going through. MR. ABBATE-Staff? I made two statements, I failed to find, I may be wrong, any correspondence relating to approval of these modifications, and I also fail to find, in my research, in any demolition report, a request for modifications. Am I in error? MR. BROWN-The first question. I don’t believe you’re going to find any correspondence authorizing any modifications to any approvals. I don’t think there has been any issued. I’m sure there hasn’t been any issued. The answer to your second question, was a demolition permit issued? Yes, and I think it’s fair to tell the Board that the demolition had occurred before the permit was issued. Had we reviewed. MS. BITTER-No. MR. BROWN-That’s exactly true. 45 (Queensbury ZBA Meeting 5/18/05) MR. ABBATE-See, this is why I’m confused. MR. BROWN-Okay. That’s all I need to say for now, but we did, ultimately, issue the permit. MR. ABBATE-And you’re indicating that, see, because what I found in the records was just what you said, that the demolition occurred prior to the permit. MR. BROWN-Correct. They filed for the permit. Performed the demolition, before the permit was issued. MR. ABBATE-But they didn’t receive permission to do it. Right. That was my point. MR. BROWN-Okay. MR. ABBATE-Okay. That answered my questions. Thank you, Mr. Chairman. MR. URRICO-Well, as a follow-up to that question. It was stated earlier that it was understood, that someone from the Town indicated that it could be demolished and then reconstructed, without any additional variances. MS. BITTER-Right, that’s what Kit was explaining. MR. URRICO-Okay. Who indicated that? MRS. HUGGARD-Dave Hatin. MR. URRICO-He said that? MRS. HUGGARD-That’s right. MR. URRICO-Thank you. MR. HAYES-Craig, do you have any communications with Dave as to that part of it? I hate to put you on a hearsay position or whatever, but. MR. BROWN-Yes. Unfortunately, apparently the conversation was between Dave and Tom. Neither one of those guys is here tonight, and I wasn’t part of that. So I don’t know either way. MR. HAYES-Okay. Well, that’s a fair answer, an honest answer. Okay. MR. UNDERWOOD-I have a question for Dean Long. Dean, was it Heidi that gave the presentation on the mitigation originally, that worked in your office? I can’t remember the woman’s name that was. MR. LONG-It was probably Holly. Because I was also here. Yes. MR. UNDERWOOD-My impression of that was that your detention pond was supposed to be the created wetland that was going to be planted with plants that were appropriate, and things like that, and it appears that that has not been done. Is there some reason for that not having been accomplished? MR. LONG-Okay. In the bottom photo is the detention pond that’s off of the pavement. That will be planted with wetland plants. It doesn’t count as part of the mitigation. The mitigation, you also received this site plan. The mitigation was originally planned as a crescent back up in here in the corner. You have Meadowbrook Golf Course sitting right 46 (Queensbury ZBA Meeting 5/18/05) over here. The Staff had commented and said that they believed that probably the wetland did extend up into here. It does extend up into here. So we’ve shifted it over into this grove of large hemlocks and white pines, in order to convert an upland area into a mitigation wetland, okay. So the stormwater basin that sits down here is not part of the overall mitigation, but it will have a wetland planting because a wetland planting, one, is compatible with the water table that’s found in that area, and also gives us a small water quality benefit. MR. HAYES-Are there any other questions? MR. ABBATE-I have a very basic question. I will do whatever I can to support the Girl Scouts. Both my daughters went to Girl Scout camps and what have you, and there’s no doubt that they represent loyalty and integrity, discretion, morals and character, and all of those things, but in order for me to do that, something’s got to be cleared up in my mind. You folks are asking for 91 feet of relief from the 75 foot minimum. How could this happen, other than the fact that there is a suggestion that it was approved by someone in the Town. Help me out. MS. BITTER-I think what I was indicating in the presentation, when the original proposal was presented, a boardwalk was incorporated in the rear of the building. Eighty-four point five feet of relief was what was granted at that time, but the boardwalk was not considered as part of the area that was encroaching on the wetlands, for whatever reason. So that was approximately four feet. The concrete walk was originally part of the plan, which was later incorporated. We aren’t sure if it was because it was on certain plans, it wasn’t on certain plans, but it was unfortunately incorporated in the final result, which is what leads us to the 91 feet. MR. ABBATE-When the applicants initially appeared before the committee, certainly they didn’t have a perception or a conception that going beyond 2800 square feet was a reality. Can I assume that that’s correct? That your original presentation was, in fact, what you really wanted. Is that fair enough to state that? MS. BITTER-Right. MR. ABBATE-But then when you go from a 2800 square foot to 4428 square feet, surely there had to be building plans, products purchased, certainly ahead of time. In other words, I’m confused. I need some help here. Something is wrong, and I can’t quite put my finger on it. MS. BITTER-I’m going to let Kit respond. MRS. HUGGARD-The original, the plans for the project were exactly the ones we followed. What we had thought originally was that we could take the front half of the building, gut it, add a similar amount of building on the back, and reconfigure all the offices, just as you saw. The front part of the buildings, particularly the southern part of it, it had rotted out, so that we could, we used the exact same footprint. We used the exact same plans. There was no change in that at all. We built the building you saw. MR. ABBATE-On the footprint. MRS. HUGGARD-Exactly. MR. ABBATE-Okay. Then the justification for the difference between 2800 square feet and 4428 square feet then is a result of the walls and the rotting out and all that other stuff like that? MRS. HUGGARD-Exactly. It’s the same building. 47 (Queensbury ZBA Meeting 5/18/05) MR. ABBATE-Then one other question, then I think I know where I’m at. Did it occur to any of the folks on the board, obviously all you ladies are well educated, there’s no doubt in my mind, well read. Did it ever occur to you that perhaps there would be a significant increase, and if it did, did it ever occur to anyone to go to the Town, or any Town official, and raise issues, whether this was okay? MRS. HUGGARD-Yes. MR. ABBATE-You did, and who did you go to in the Town? MRS. HUGGARD-Dave Hatin. MR. ABBATE-So it was Mr. Hatin who approved this addition? MRS. HUGGARD-He said that the variance that we had was perfectly fine to go ahead with the plans that we had to. MR. ABBATE-And I’m sure the Zoning Administrator and his Staff was part of this approval. Is that correct? MRS. HUGGARD-The builder, Tom Albrecht, and Dave Hatin had that conversation. MR. ABBATE-Was the Zoning Administrator, the Staff, the Executive Director or the Town Attorney involved in any of this? MRS. HUGGARD-Not that I’m aware of. MR. ABBATE-Not that you’re aware of. Okay. I understand. I’m not putting you on the spot. I’m just trying to take these pieces of the, you know, as a senior citizen, I get confused at times, and so I like to take the little pieces of the puzzle and try and put them together, which gives me an overall view. MRS. HUGGARD-Mr. Abbate, you seem like a very sharp senior citizen. MR. ABBATE-Okay. Then you know where I’m getting at. Thank you. MR. HAYES-Is there any other questions for the applicant at this particular time? MR. MC NULTY-I’ve got one comment I’ve got to make at some point, maybe now is the time. MR. HAYES-Certainly. MR. MC NULTY-I think this is another example, at least partially, of an ongoing problem we’ve had with Town administration and what not. I don’t know how these misunderstandings happen, but they reflect poorly on applicants and they reflect poorly on the Town staff. I keep getting the impression that a building inspector shows up at a site, looks at the site because he’s there to inspect the thickness of the cement forms or something, doesn’t pick up on the fact that something is five feet from a lot line when it’s supposed to be fifteen, because it’s not his job. This doesn’t help the applicant, and I think something needs to be done. Staff has made the comment that if we’d had an application in that called for a total teardown and rebuild, which is what actually happened originally, we might not have approved it the way we did. We might have asked for some moving of the building. At some point, some Town staff knew that this was a total teardown, and for whatever reason, it was never conveyed back to anybody that maybe things should stop and somebody should check to see what’s going on, and I think at some point this has got to be fixed, because it leaves me, frankly, my first impression, when I saw this thing on the application, I said, what a bunch of hypocrites. 48 (Queensbury ZBA Meeting 5/18/05) Here the Girl Scouts are trying to say that they’re teaching environment and good citizenship to girls, and yet here they are charging further into a wetland, and ignoring what they had approvals for, and went ahead and did what they pleased. That’s not a fair assessment, obviously, but that’s the impression that comes out because of the way these things come down, and I think it needs to be fixed. MR. ABBATE-And this is a historic evening, because for the second time this evening, I agree with Mr. McNulty, and, you know, ladies, let me make this clear. You’ve picked it up right, Madame. I don’t doubt your integrity, no, not at all. I think what you said, look, this has happened and you went to somebody in Town, and said, or somebody that said, look, (lost word) repair this, and you acted based upon the information that you were given. I understand that. The point I’m really trying to make here is something is wrong, and it’s not necessarily with you folks. That’s the point I’m really trying to make. So if I sound a little harsh, I was trying to make a point. MR. LONG-And just so that everybody is clear, is that the gross square footage of the building that’s built is what was proposed, within a few square feet. So, you know, the gross square footage and the position is what was proposed, and remember, this applicant went ahead and proposed to fully mitigate for everything that was possibly disturbed behind t, which contributes to he overall confusion, because normally you never mitigate for structures that are on pillars and posts. MR. ABBATE-And would you agree with me, ladies, with my statement that it’s really unfair to hold people accountable for something they knew nothing about, which includes the Zoning Administrator, his staff, and the Executive Director. Would you agree with that, for the record? Thank you, ma’am, you do agree with me. Thank you. MR. HAYES-Craig, did you want to comment? MR. BROWN-Yes, if I could just make a comment to Mr. McNulty’s and Mr. Abbate’s point. With all due respect to Mrs. Huggard. She stated that Tom said that Dave said that, we’re not sure if those statements, I’m not sure if those statements, I wasn’t there for those meetings. I think if we had Mr. Hatin or Mr. Albrecht here we could maybe, if we’re looking to, pin this on somebody or figure out where this all started, but we don’t have them here, and I know I’ve been in the position where he said, he said, he said, and I’ve been on the wrong end of that, and I think it’s unfair to assume that that really happened unless we have those people here. I’m not saying it didn’t happen, but we don’t have them here. MR. ABBATE-Okay. One correction. We’re not attempting to pin this on anybody. We’re attempting to resolve an issue, and, you know what, Mr. Chairman, you have the power of subpoena, and I would suggest that perhaps we should subpoena some of these folks to get to the bottom of this. MR. BROWN-Well, regardless of this, what we have is you have something that’s happened. MR. ABBATE-Yes. MR. BROWN-I mean, it’s done. You’re not going to go back and move. MR. ABBATE-Yes. Let’s not ever let it happen again, and let’s, as Mr. McNulty said, let’s get to the root of this thing. MR. MC NULTY-Yes, that’s the thing I’m after. I’m not necessarily even worrying about whether Mr. Hatin said or didn’t say that it was okay to proceed ahead, as much as, and I don’t know whether it was him or somebody else, but I know there had to be a bunch of Town inspectors out there, and I don’t know what we do. Maybe it’s training or a 49 (Queensbury ZBA Meeting 5/18/05) crib sheet for some of these people who, it’s not their job to check the zoning compliance, but nevertheless, an addition versus a total teardown ought to be a red flag for them to at least come running back and saying something to you, Craig, about it, or, you know, the garage that we had that had a four foot cement wall there on Sherman Avenue, that was clearly too close to the road, whoever checked those forms should have been able to see that. They should have come running back and said, hey, you better look at that, and that’s not happening, and it should be happening, because most of our applicants don’t have the skills that our Town staff does to look at something and say, that’s five feet away or that’s ten feet away. MR. URRICO-At the very least, some foresight is needed to at least anticipate that, when if wrong decision is given or a wrong impression is given, that if the project will go on and that the error is discovered at a later date, which sometimes it is, then we’re faced with, you know, an after the fact building, and, you know, it makes it very difficult for both parties. MR. BROWN-And this is a point that I started to make when we talked about the demolition permit before, and I won’t belabor it, but had we had a chance to review that, that demolition permit, which called for a complete demolition, prior to the actual demolition, we would have said right then, your approval was for an addition. You can’t take the entire building down and do this complete demolition. We didn’t have an opportunity to do that. MR. ABBATE-You see, but that’s my point. It seems to me it’s ridiculous. I can’t fathom the idea that the Zoning Administrator would be excluded from that? That’s poor administration. MR. BROWN-From what? MR. HAYES-No, no. He’s saying that they tore the actual building down before the permit was issued. MR. BROWN-Before it was issued. They definitely had applied for it. MR. ABBATE-Right. MR. BROWN-Applied for the demolition permit. MR. ABBATE-Right, but what I’m saying is, it seemed to me that the Zoning Administrator and his staff certainly should be a part of the overall process. In other words, that would be a checks and balances, is what I’m trying to say, and we don’t have that at the present time. MR. BROWN-Well, we do to a certain degree, but when you mix in contractors and property owners and subcontractors, it gets lost in there sometimes. MS. RADNER-Can I just interject a few thoughts? The Zoning Administrator and the Enforcement Officers have very, very different jobs and duties, and there is overlap at times, and there are times when they see things and they report to each other, but they do have very different duties. Applicants don’t always realize that, and this Board recognizes that. The Director of Community Development, Marilyn Ryba, has in the about a year now that she’s been in her office, started implementing some more procedures so that there’s more communication between the different staffs, and as the projects get more complicated and involve both zoning and building aspects, there is more overlap and they’re trying to catch more of these sorts of things, but the Zoning Administrator and the Code Enforcement Officer can’t be held to the standard of infallible, and there is a body of case law out there that says that when mistakes are made, you do have the power to correct those mistakes. So it really isn’t matter of 50 (Queensbury ZBA Meeting 5/18/05) determining whether somebody’s to blame here tonight. It’s really a matter of looking at the variance that’s being requested, see if it meets your criteria, and if it can be granted in moving forward. MR. HAYES-I agree with that. To some extent, this Board is. MR. ABBATE-Counselor, you’re right. We’re in charge of only addressing the facts in the case, and you’re right. MR. HAYES-Well, we’re also charged with, you know, balancing the interests that are involved based on an application that’s. MR. ABBATE-Yes, and those statements I made were just as a result of balancing, because, you know, I don’t feel, basically, that an applicant should be punished because of, blah, blah, blah, but you’re right, and I’ll address only the facts in the case this evening. MR. URRICO-Can I just clarify the setback, what we’re actually talking about? If my math is correct, we’re going to be 59 feet from the edge of the wetland, right? I mean, after all is said, we’re 91 feet of relief. MS. BITTER-Okay, because the buffer. MR. URRICO-Right. MS. BITTER-Yes. MR. URRICO-So we’re going to be 59 feet from the edge of the wetland. MS. BITTER-Right. MR. BROWN-Well, just to be clear, some of the building is within the limits of the wetlands. MR. URRICO-Within the 75 feet? MR. BROWN-Within the limits of the wetland. MR. URRICO-That’s what I mean, but it’s 59 feet. MR. ABBATE-No, 91 feet is required. MR. BROWN-You’re at least 80. MR. URRICO-Well, it’s 75 feet plus 16 feet. It’s actually a negative. MR. BROWN-Yes. What you’ve got is you’ve got the wetlands boundary. You’ve got a 75 foot setback from that. They’re building is within the wetlands. A tiny portion of it is within the wetlands. So it’s 75 plus the portion that’s within the wetland, which is about 80 something. MR. HUTCHINS-It’s 81. The greatest extent of the building is 81 feet from the 75 foot setback. So six feet into. MR. URRICO-And originally it was going to encroach on that originally? MR. HUTCHINS-Yes. It was 84 feet originally. 51 (Queensbury ZBA Meeting 5/18/05) MR. RIGBY-Eighty-four and a half feet was approved previously. Correct? MR. BROWN-Right. MR. RIGBY-Now you’re asking for another six and a half feet, correct, to bring it up to 91? MS. BITTER-Right. MR. HUTCHINS-For our walkway, yes. It goes to 91. MR. MC NULTY-Yes, but that’s still an intrusion into the wetland, and basically almost the entire property is within the wetland buffer. MR. RIGBY-If you exclude the walkway, you don’t need any additional variance. Correct? MR. HUTCHIN-No, we are two and a half feet less than what was approved. MR. RIGBY-So really we’re asking for 6.5 feet of variance for the walkway, to accommodate the walkway. MR. ABBATE-Mr. Chairman, Leo just rang a bell in my head. I’d like to ask Counsel a question. Since there is an intrusion into New York State Department of Environmental Conservation wetlands, do we have the authority to approve a variance? MS. RADNER-You do, and it’s going to still require their approval as well, and I believe that’s already slated and started. MR. ABBATE-That’s a stipulation in other words? Okay. Thank you. MR. HAYES-Are there any other questions for the applicant at this time? MR. RIGBY-Yes, I have one more question for Mr. Long. You had mentioned that 1350 feet of wetland disturbance was approved. MR. LONG-Correct. MR. RIGBY-Is there additional wetland disturbance that you’re requesting? I don’t see it as part of the variance here, but is there additional wetland disturbance over that 1350? MR. LONG-Yes, because of the additional fill required for the concrete wall. It’s up to you. It’s a total of 2200, and so it’s an 850 square feet additional. MR. RIGBY-Now is that request for a variance within the six and a half foot variance request that you’re asking for? MR. LONG-Yes. Physically, yes. MR. RIGBY-So it’s the same request? MR. LONG-Yes, it’s the same physical area. MR. HAYES-Are there any other questions for the applicant? If not, I’ll open the public hearing. We appear to have some customers. Would anyone like to step forward? 52 (Queensbury ZBA Meeting 5/18/05) PUBLIC HEARING OPENED JOHN SALVADOR MR. SALVADOR-It’s always been my understanding that the applicant bears the total responsibility to meet all the codes, rules, and regulations. It’s the applicant’s responsibility. Okay. The issue of the demolition permit, that’s an important, the demolition permit is issued because it records the existing situation. That’s the purpose of a demolition permit. Now I’ve got to tell you, it’s not always clear in these renovations that it’s a two step process. You’ve got to get the demolition permit to take it down, and we know what you’re taking down, and then a building permit to put it up. That’s not always clear, and that’s something that should be made clear. There was mention of a DEC wetlands permit. Do we know the status of that as we sit here tonight? And it’s my understanding also that this Town’s permit is not valid unless all other permits pertinent to the project are obtained. Hemlocks and pines don’t grow in wetlands. Hemlocks and pines do not grow, if you’re going to create a wetland in an area where you have hemlocks and pines, they’re going to die. There is no excuse for this situation we’re in today. There’s absolutely no excuse. It’s my understanding that building permits cannot be issued unless the drawing plans are certified. I just did a simple residential development, and I didn’t get a building permit until I submitted certified drawings, building, wastewater, everything. There’s talk here about a contractor. I’m wondering if it was a design build affair. That’s not an unusual situation for some types of construction, but the Girl Scout organization I think has to have certified drawings, and a building permit should not have been issued before they had certified drawings. The Girl Scout organization is also regulated by the New York State Health Department, and they play a role in this permitting as well. I have here Part Seven of the State Sanitary Code, and it covers children’s camps, sub-part 7-2, and according to this, the plans, their work, what they’re doing to this camp, must be approved by the New York State Health Department, before they start work, because the New York State Health Department has to give them a permit to operate, and it’s based on the change they’re going to make, and it’s all spelled out in here, and it’s much more comprehensive with regard to the camp than our permitting process is. They consider many more things than we do, because they are doing a lot of things, serving food, that sort of thing. So I don’t know why, I haven’t heard that mentioned here. Maybe they have made application. I don’t know, but it seems to me that this project developed as they went along, you know, they started something and found a problem here, got it, you know, massaged it as they went, and it’s not the way it’s supposed to be done, and that’s why we have these problems we have today. I think, as a Town, we’ve got to tighten up in our administration. We’ve said that, and we’re seeing that more and more with projects. We’re seeing it every day before these Boards. Handicap access was mentioned. Very important. That’s something the Health Department covers. The other thing is, you know, you talk about a Girl Scout camp, you think of something like camping, you know, you go away for a week. This is being used very heavily as a day camp, as a day camp, and even, I hear, as a daycare center. It’s a different set of regulations. Different set of permits, different requirements for staffing. So, I think these things have to be taken in because, as a site plan, when you consider a site plan, if you have daily traffic, that’s one thing, but weekly traffic is something else, but I think the project has to be properly framed, is what I’m saying. MR. HAYES-Thank you. Is there anyone else that would like to speak in regards to this application? Okay. We certainly can acknowledge, for the record, that there’s a contingent here from the Girl Scout Council in support. Is there any correspondence? MR. MC NULTY-No correspondence. MR. ABBATE-Mr. Chairman, did we read into the record a letter dated the 26 of April th 2005, by Marilyn Ryba to Mrs. Donna Gagnon, President? It deals with the application 53 (Queensbury ZBA Meeting 5/18/05) for modifications, and it’s rather strong language in here. Did we read that into the record? We received this this evening. MR. HAYES-Right, but that’s part of our internal memorandum. MR. MC NULTY-It’s in your package, I think. It’s in your package. MR. HAYES-Right. It’s open for the public, but we’re not required to read that in, I don’t think. It’s all public information, if requested, but we don’t have to read it in as part of the application. MR. ABBATE-Can I read a paragraph in here, if you don’t mind? MR. HAYES-You can if you wish. MR. ABBATE-See, this somewhat fortifies my uncertainty, my uneasiness. It basically states here that, “I’m writing this letter to suggest we have a meeting with Community Development staff, along with your Executive Director, Kit Huggard; your attorney, Jonathan Lapper; your contractor; and any other persons who are involved with the expansion of your facilities off of Meadowbrook Road. It has become increasingly apparent that the growth of your organization and corresponding facility expansion needs may be better accommodated through a Master Plan process. We do not have any formal mechanism for a Master Plan process, other than through a positive declaration via State Environmental Quality Review, however, we have had some success in coming to a voluntary agreement with other organizations that have developed portions of their lands in a consistently incremental manner.” I just thought that was a rather pointed statement, if you will. MR. HAYES-Okay. All right. I guess, if you’d like to come back up. Okay. Is there any questions for the applicant following the public hearing portion of our? If not, then I’ll close the public hearing. PUBLIC HEARING CLOSED MR. HAYES-And it’s time to talk about it amongst the Board members. Chuck? MR. MC NULTY-Well, I don’t know. I’ve got mixed feelings. I guess my preference really would be to table this. That there’s some things out there, the wetland mitigation, for instance, that has not been done. I know there’s promises for it, but given the history of this project, approval granted for an addition, what happened was a new build. The new build extended further into the wetlands and further than was originally approved. I think there’s some unpredictability as to what is going to happen. I’d be a lot happier to know that DEC had approved the new proposed mitigation and that the proposed mitigation had been carried through, and perhaps even a little bit about that mitigation, because as Mr. Salvador correctly points out, it doesn’t matter what species of tree it is, if it’s in a marsh, they’re going to die. Trees don’t grow under water. So whether there’s plans to cut those trees down before the marsh is created, otherwise they’re going to make the water more acidic. There’s a lot of questions that way. If it comes down to approve or disapprove tonight, I’m not sure which way I’m going to go. As I say, I think I’d be more in favor of tabling until the dust settles a little more. MS. BITTER-Mr. Chairman, I know that this isn’t normally the process, but if we could respond to Mr. McNulty’s comments, since they were incorporated in Mr. Salvador’s comments as well. Would we be afforded that opportunity, or should we wait? MR. HAYES-I think you should wait. We generally don’t go back and forth during this portion. Is that it, Chuck? 54 (Queensbury ZBA Meeting 5/18/05) MR. MC NULTY-That’s it. MR. HAYES-Leo? MR. RIGBY-My comments are based on DEC approval as well. I guess, you know, looking at the variances we’re really looking at, we’re looking at basically two. The one variance for six and a half feet on the back of the building, basically where the concrete walkway is, and when you look at the layout of the building, and if you take a look at the building from the outside, you see that there’s a handicap access ramp that leads down to the concrete walkway and the concrete walkway leads over to the bridge, so it really provides handicap access to the bridge. So is that required? In my view it probably is. Had it been brought to the attention of this Board before it was constructed, would it have been approved? I don’t know for sure. Probably, with DEC approval. If you look at the other variance we’re looking at, and that’s on the front of the building, that’s also a handicap access ramp, allowing for handicap access to the front of the building. The porch is in the same place where the original building porch was, and the variance is basically for the same, where the original porch was located. So, looking at those two things, and thinking about it a little bit, I still want to listen to what the rest of the Board has to say, but I think I’d come down on the side that I think I would be willing to grant the variance, but I want to listen to what the rest of the Board has to say first. MR. HAYES-Thank you. Roy? MR. URRICO-Yes. I’m a little concerned as to how we got to this point. I remember 2002 there were at least three, maybe four, long meetings to discuss the project and what needed to be done and concessions that were made, compromises were made, and it was pretty clear when we left that, when we finally approved the variance, what needed to be done, and here we are, three years later, and some things weren’t done the way the variances were written, and I’m not sure how we got there. I’m a little concerned as to how we got there, and if we’re going to approve something beyond what we approved three years ago, I want to be absolutely certain about it. So I would like to see the DEC take a look at it also, and see where we stand, make sure it’s all legit at this point, in their eyes as well, before we move ahead, and that’s pretty much where I stand right now. MR. HAYES-I’d like to ask one question of Staff, since it’s been brought up. What exactly is the DEC’s review in terms of the changes? I mean, what’s their area, what’s their charge in this case? MR. BROWN-What we did is a standard practice, any time there’s a project that involves a DEC wetland that’s something that we know about or an APA wetland, we, as a courtesy, send them a notice of our agenda, and a copy of the application that says, here’s what somebody’s looking to do, in or around or near one of your wetlands, if you care to comment. They sent us a response letter back that said their proposed activities, I don’t know it verbatim, but the proposed activities require a permit from us. What the status of that is, I don’t know. Maybe it’s just a confirmation of the permit that was issued last time, or, you know, a revision of that permit. I don’t know. It’s probably one of those two. Does that answer your question? MR. HAYES-Yes. Do we know the status of that? It seems to be an open issue that’s concerning. MR. HUTCHINS-The last correspondence regarding the DEC permit had to do with the finalization of the bridge. After I resubmitted to the Town the final bridge design, and had a signoff from the engineer, I forwarded the bridge plans to DEC with a statement that the alignment has changed from the original approved alignment, and can you take a look at it. They sent me back a revised permit accepting that. So the status of DEC is 55 (Queensbury ZBA Meeting 5/18/05) it’s approved through the bridge construction. What is not completed with DEC, and that’s what Dean has done recently, and you can, there’s no update on that? MR. LONG-We have to resubmit the mitigation. Again, remembering that the boardwalk plan wasn’t jurisdictional. The boardwalk plan, especially as it was attached to the building itself, wasn’t jurisdictional. With the advent of the cement sidewalk, we’re going to have to go back to DEC and confirm any disturbance or get confirmation that they agree with the level of disturbance and the level of mitigation that we’re now proposing to provide, as far as calculations go, and while I’m talking about the mitigation, just so that everybody gets it clear in their mind, when I was talking about creating mitigation, the obligation is to create it in an upland, and as everybody was observing, pine trees and hemlocks are upland trees. Well, yes, because we have to start with an upland. We have to excavate it out. We have to plant the wetland plants in there, well, we have to first import high organic soil. Then we have to plant the wetland plants in order to be compliant type of mitigation. So all those things have to be completed. Now this is the first season that that’s been available to us in order to complete that. So that’s why it hasn’t started. MR. URRICO-When you say it’s not jurisdictional, what do you mean? What jurisdiction are you talking about? MR. LONG-Jurisdiction, the sidewalk and the fill of the sidewalk is jurisdictional because it was a new fill in that wetland adjacent area, as well as that wetland. When it was all going to be boardwalk back there, it wasn’t going to be a jurisdictional activity at the building, and what was jurisdictional was the boardwalk crossing the floodplain portions of the wetlands, which that permit has been issued. So we have to modify the permit to account for this roughly 2,000 square foot of variation, which we’ve already committed to mitigating here at the Town level, but didn’t require mitigation at the State level. MR. URRICO-See, that’s one of the things that confuses me. Because that bridge may be wasn’t germane to the actual project in terms of what we were looking at, but it helped sell the project, to me. MR. LONG-No, again. MR. URRICO-So I don’t understand where it’s changed, in relation to where we are now. MR. LONG-I was speaking about the boardwalk immediately behind the building. MR. URRICO-Right. MR. LONG-The bridge was always germane to the project in order to create that safety connection between the office and the Girl Scout camp itself. So that they would have full access without using Meadowbrook Road, and being able to use the parking at the office. MR. HAYES-Okay. Joyce? MRS. HUNT-Yes. I have to agree with my fellow Board members. I do have a question. The concrete ramp, that is the only, walkway rather, is the only, that’s where you need your six and a half foot relief, and I’m wondering, you know, if they had, weren’t feasible alternatives. I mean, I’m looking at the plan here, and maybe something could have been done, and if it had been brought to us, we might have suggested that, and I remember it was a close vote in 2002, and I know I voted positively, and I had expected the wetlands to have been implemented by now. So I don’t know. I’m not sure how I’m going to vote. 56 (Queensbury ZBA Meeting 5/18/05) MR. HAYES-Okay, Joyce. Are you undecided, too, Roy? Is that how I should leave it? MR. URRICO-I haven’t decided. MR. HAYES-Okay. That’s fair. Okay. Chuck? MR. ABBATE-Okay. Thank you. Let me present this. I’m impressed with the reasonableness and the precise language of two letters that were addressed to the Girl Scouts, one by the Executive Director of Community Development dated 26 April 05, and the other is a letter from the Zoning Board of Appeals to the Girl Scouts dated April 27, 2005, and in both those letters, they present what I consider to be a reasonable and viable approach, if you will, to this problem. There has been strong suggestion, let’s get together, and I would suggest, Mr. Chairman, and to all parties concerned, that there be a closer liaison between the Girl Scouts and the Executive Director of Community Development, and the Zoning Administrator. At this point, Mr. Chairman, I could not support the application. MR. HAYES-Okay. Jim? MR. UNDERWOOD-I considerable concerns have been raised by Board members about the sidewalk. I mean, that still needs DEC approval. It could very well come to the conclusion of the DEC that that sidewalk needs to be removed and you go back to your original boardwalk, which would relieve you of some of the relief you’re looking for this evening, and I think it would be premature on our part to grant relief now, not knowing what they’re going to say. At the same time, I think that, you know, part of the approval process that we went through previously suggested that, you know, that mitigation work needed to be completed for your completion of your project to be done in totality, and that has not been done to date, for whatever reason that is, or whatever excuse. The only other comment I would make is that, you know, from the origin of this project, it was portrayed to us as Board members that this was an addition to a building, and irregardless of the fact that there were some rotten boards in the building, Staff was never involved with going down and doing an inspection. It was one person that did the inspection and signed off on it, which I think is improper, and I think that probably, had we known that this was going to be a complete re-do of the building, the excuse that you made at the time of being, you know, low on money and things like that, and this was the only way that you were going to accomplish your project, was may have considered it differently, due to the fact that you were invading the wetlands more so and with the parking and traffic issues on Meadowbrook Road at the same time. The only other concern I would have is this, that, you know, throughout this process, most recently with your group, I think you’ve shown great impatience, and I think what you did, as far as writing that letter, having Betty Little write that letter, and then retract her letter, after having been misinformed by you, was not proper on your part, and I think it reflects poorly on the Girl Scouts organization, and I don’t know who prompted that letter, but I think that’s something that all of you should consider at the time, too. At this time, I don’t feel that we could approve what you’re doing here until the DEC does signoff and that work is completed properly. MS. BITTER-Mr. Chairman, if I could just respond. Is it the appropriate time? MR. HAYES-Actually, I haven’t spoken yet, then you can say whatever you, make some brief remarks. MS. BITTER-Okay. MR. HAYES-I certainly think some points have been brought out here that are very important, and I think there was some gaps in the way things normally happen, in particular the demolition permit, the demolition being done before an examination was 57 (Queensbury ZBA Meeting 5/18/05) done by Staff. It appears to me that that immediately got us going down a path that could lead to the obvious setbacks that have occurred, as far as everything touching all the basis and everybody being satisfied. I think the Planning Staff’s point is well taken, that had this project been represented as a complete teardown that the analysis that we’re required to make, as far as the balancing test, would have to be a little bit different than it was. I mean, certainly that’s a different set of circumstances than an addition to an existing building and the cost savings, all those things that were brought out. I think that that’s fair, but I disagree in the sense, to some extent, that the fact that mistakes were made prevents us from continuing to make decisions based on circumstances as they’re presented and proposed, and the facts that are brought out in these particular cases. I think you could almost make the argument in a case that to some extent that’s what the Zoning Board can do, that’s what part of the Zoning Board’s charge should be is to be addressing what is not a perfect process, and I’m not sure it can ever be perfect. We want it to be perfect, but I’m not sure that it can be. These are kind of moving targets, just like this project has been. I mean, that’s very obvious that things have changed. Therefore, I’m going to take the project as it’s finished, examine it, would I have approved it as it is, and deal with this application right here tonight, as I would if it was presented before. In a sense, you know, the benefit to granting this Area Variance is very obvious. I mean, I think everybody on the Board feels the Girl Scouts are a great organization, and that’s a great resource in the community. My own children have attended it. I thought it was a fantastic place. So I think that goes without saying. Would the effect of this variance have an impact on the character of the neighborhood or health, safety and welfare of the community? I think that you could argue that both ways, and I think the Girl Scouts representatives have argued that while there is some encroachment into the wetlands, certainly, and the amount of relief is significant, fair to say, it’s true, that in a sense what the result of the appreciation that these children might get for wetlands and these other type of important environmental characteristics, I think you could argue that improves the health, welfare and safety of the community in this particular case. I think that that idea probably promotes additional appreciation for wetlands going forward. Are there feasible alternatives to this variance? I certainly think this falls against the Girl Scouts, in the sense that if there was new construction contemplated, right from the beginning, that there was feasible alternatives that this Board could have considered that might have had less variances into the wetlands, as Jim brought out, or other Board members have brought out. There truly could have been other things considered, and I don’t think that the Girl Scouts would deny that. Once they knew those boards were rotten, and it was presented properly, feasible alternatives could have been considered. MRS. HUGGARD-We didn’t know that until after. MR. HAYES-Well, I mean, you knew it some day, and before you started building, and at that point, if you knew that it was a complete teardown, it would have changed the alternatives that could have been considered at that point, I mean, as far as, if you’re going to build a new building, where are we going to situate, how close to the wetlands and all these things. I don’t think that’s really debatable. Is the amount of relief substantial to the Ordinance? I certainly think it is, but I think this is also a unique parcel. This was a pre-existing camp, in and around these wetlands, and I think that that has to be considered in what we view as how substantial is the relief. I think the Leo brought out that the additional relief that’s being requested of us in this particular case is not that substantial, compared to what you had already asked for. So that doesn’t trouble me in the sense that you’re really reaching back for a lot more relief. I don’t think that you are. I think that this is semi-technical, the amount that’s left. Certainly the original amount was substantial, but I think it’s semi-technical, and will the variance have an adverse effect on the physical or environmental conditions of the neighborhood? I’ve been on the Board like seven or eight years, and I almost can’t think of a case where there was, I thought there was more things contemplated and done to mitigate what you were affecting. I mean, there’s wetland reclamation. There’s pylon bridges. There’s all these, I mean, there’s just one, you know, kind of, I’m not sure 58 (Queensbury ZBA Meeting 5/18/05) anything’s been more environmentally handled, in this particular case, than this one. So, I’m satisfied that there’s not going to be a great detriment to the neighborhood or community, or environmentally, based on this project. I think most of it is being mitigated fairly professionally, including, you know, cutting down some trees and reclaiming wetland. It’s my understanding, I could be wrong, that even the area of the bridge had to be reclaimed, I guess, right, through this part that’s being decided upon or had to be reclaimed, and I think that that, you know, while we want to protect the wetlands, and we certainly have an obligation to do so, I think that in this particular case, that has been done, in the cumulative sense. So when I balance all the criteria, going forward, in this particular application, I’m certainly not happy with the way everything came down, but I’m not sure that I would deny this variance just because of the way it came down. I mean, I’m viewing it as I would examining the criteria, and I think it’s still, you know, the benefit to the applicant and the community outweighs the other elements of this test. So I’m in favor. MS. BITTER-Mr. Chairman, the only concern that I have at this point is due to the polling of the Board, and that some individuals at that time not really having an opinion to grant at that point, I’m not really sure with the way the Board sits, and just to protect my client, if it’s possible to do a straw poll, just to understand where they are, because we obviously, the reason that we’re so eager to get this approved at this time is that summer is the season for the Girl Scouts. They have many activities planned and many individuals utilizing these facilities in the near future. MR. HAYES-Right, that’s true, but you’ll understand that I have to protect the Board in the sense that that is not part of the test that we’re charged with. I mean, I understand that it’s a certain benefit to the applicant, but they have to make their decision based on how they feel about the facts of the case, in this particular case, but I will speak to the people that were undecided, because, you know, I need to have a direction for a motion as well. So maybe that’ll get accomplished by action anyway. MS. BITTER-Okay. MR. HAYES-In terms of undecided right now, I’m showing Chuck. I still wasn’t sure exactly where you were coming from. MR. MC NULTY-Okay. I’m still in favor of tabling. MR. HAYES-Okay. MR. MC NULTY-For instance, one of the problems is, they’ve proposed wetland mitigation. That plays a heavy role in my decision if I were going to approve. I would want to see that wetland mitigation. It’s been promised. It’s not accomplished. DEC hasn’t approved it. DEC’s going to have to approve it because it’s going to be work in a DEC wetland. All the good intentions can go for naught if DEC says, for some reason, no, you can’t go digging in that spot. Then we’re left with a different picture. I would like to see a DEC approval for the wetland, you know, if the mitigation hasn’t been done, I’d at least like to know all the permits are in place and DEC has agreed to it. I don’t want to vote against the proposal, but I’d vote for a tabling. If it’s a case of vote for or against, I’m going to vote against. MR. HAYES-Okay. So if we vote tonight, you’re saying that’s a no. Okay. I guess that would leave Roy and Joyce, as far as. MR. URRICO-I would be in favor of it, pending DEC approval or contingent upon DEC approval. MR. HAYES-Okay. I think that’s fair. Joyce? 59 (Queensbury ZBA Meeting 5/18/05) MRS. HUNT-Yes. I agree with Mr. McNulty. I would like to see it tabled, and the DEC brought in, to find out their findings first, and I would like to see the mitigation started before. MS. BITTER-I don’t think you can start the mitigation without the actual DEC review, now that it is jurisdictional. MR. HAYES-Okay. MS. BITTER-And just to respond, the reason that I understand that the mitigation hadn’t been started was due to the fact that in ’03 an extension was actually provided to these approvals. So the project didn’t actually go underway until last fall, I believe, and due to the fact that the mitigation period is only during the months of May to October, we haven’t hit that season until just this month. So, just to give an explanation. MR. ABBATE-Mr. Chairman, you know, I wonder if I could modify my position a little bit. I said I would not support the application. Let me modify that, and agree with Mr. McNulty and several of the other folks. I think that if there was a go ahead from the Department of Environmental Conservation, I suspect that I would probably support it. If not, I would be forced to say no. MS. BITTER-It looks as if the tabling motion is the idea in which we’re headed. MR. HAYES-Yes. It doesn’t appear that you have the votes to get the variance tonight. MS. RADNER-Ms. Bitter, are you willing to agree to an extension of the deadline, if necessary, if they table it tonight instead of acting on it, the 62 day deadline for them to act from the close of a public hearing? MS. BITTER-Yes. MR. HAYES-I guess based on there’s some expediency involved, is it possible to table this to the June meeting? Is that permissible, Craig? MR. BROWN-It’s definitely possible. As always, I’d like to know if we’re going to table it, what for, you know, a specific list, and if so, if it’s for additional information, a deadline for them to provide it so we can review it and get it to you guys in time before the meeting. MR. HAYES-Well, I think if we make it contingent upon having DEC signoff, and it’ll take care of itself, because if we don’t have it, we’re not going to entertain it. I mean, that’s been the position that I’ve heard, right, I guess, essentially. All right. I’m going to make a motion that we table Area Variance No. 37-2005. MOTION TO TABLE AREA VARIANCE NO. 37-2005 ADIRONDACK GIRL SCOUT COUNCIL, Introduced by Paul Hayes who moved for its adoption, seconded by Charles Abbate: 412 Meadowbrook Road. Members of the Board have requested, in order to feel comfortable voting or continuing this application, that the status of the DEC permit or signoff associated or necessary with this property be obtained, to the satisfaction of the Board before we proceed with an approval of the application, about the acceptability of the applicant’s mitigation plan, the cement walkway, the things that are associated with the application. Duly adopted this 18 day of May 2005, by the following vote: th MR. ABBATE-Can I modify it just a snitch, please. 60 (Queensbury ZBA Meeting 5/18/05) MR. HAYES-Certainly. MR. ABBATE-I would like it to be a little more specific and state that prior to coming before this Board, that correspondence from the Department of Environmental Conservation be submitted to the Town of Queensbury indicating their approval. MR. BROWN-I’m not sure, and maybe these guys can speak to it better than I can. I’m not sure that they’re going to issue an approval until the local Board acts. Is that what they usually do? MR. HAYES-Right. MR. BROWN-They don’t issue an approval to the local. They may give you a determination of jurisdiction, but I don’t think they issue approvals until the local Boards act. MR. ABBATE-Yes, but that would go against what most of us have said here, then, if there’s no approval. MR. BROWN-Well, what I heard is that your approval can be granted with the condition that they get the DEC approval. If they don’t get the DEC approval, your approval is not valid. They can’t (lost words). MR. ABBATE-Yes, I agree with you. MR. BROWN-So that’s a possibility. If you’re looking for some jurisdictional determination. MR. ABBATE-So DEC approval must be granted first. MR. URRICO-So we don’t have to table it. MS. BITTER-Right. MR. BROWN-You wouldn’t have to table it if you conditioned it that they get the DEC approval, as a condition of this approval. If they don’t get the DEC approval, your approval is not valid. MR. URRICO-Because we’re not going to get the approval anyway. MR. BROWN-I don’t think you’re going to get it until the local Boards act, and part of that local Board acting is, are the applications that are on for next Thursday, I believe the Site Plan and Freshwater permit applications that the Planning Board will have to hear, if they’re tabled tonight, they may have difficulty hearing those applications, which is only going to delay the process longer. MR. URRICO-And end up back where we are. MR. BROWN-And end up back where are, without an approval from the DEC. So a condition that they get an approval from the DEC seems like it would cover everything. I’m not suggesting what you do, but it sounds like it would cover everything. MR. ABBATE-That’s a reasonable approach, though. MR. HAYES-Also it’s a logical approach. 61 (Queensbury ZBA Meeting 5/18/05) MR. ABBATE-It’s a logical approach. It’s a logical procedure, steps that we could say, okay, providing that this is contingent upon approval by the Department of Environmental Conservation. That’s fair. I think it would be fair to the applicants. MR. UNDERWOOD-We have to be specific, though. I think there’s three issues. There’s the sidewalk issue, whether that’s permittable or they have to go back to a boardwalk, that would be Number One. Number Two would be the mitigation and the creation of a wetland, and that’s something that has to be dealt with. That’s nothing we can do on that. MR. ABBATE-That’s a good point. I didn’t even think of that. MR. MC NULTY-Yes. I don’t know. I still would like to see something from DEC that says that they at least like the concept of the mitigation action. I mean, I keep going back to the fact that we approved, before, an addition to an existing building, and that’s what we assumed was going to happen, and that’s not what happened, and it worries me conditioning something on DEC approving something and finding out, five years later, that never happened. MR. ABBATE-Mr. McNulty is right again. Maybe we would be just better off just tabling the darn thing, because there’s such uneasiness, if you will. MR. HAYES-Well, there were several people that expressed concerns about. I guess, is there anybody that feels they would change their position based on having it be contingent upon getting DEC approvals, and if no one’s interested in changing their position, then obviously we don’t have the approvals. So, Chuck, do you want to go with a tabling, then, you’re saying? MR. ABBATE-I think, I honestly feel that it would be fair to all parties involved, the Town as well as the applicant, and I think it would satisfy, it would help me sleep a little easier tonight, to be honest with you. Because I really want to do the thing that’s right. MR. HAYES-Well, I think we all do. MR. ABBATE-I mean, we all do. I didn’t mean to say just myself. MR. RIGBY-Craig, how would this ever get resolved if we don’t, we have to approve it in order for the DEC to approve it. The DEC is going to wait for us to approve it, while we’re waiting for the DEC to give the approval. How do we get out of the circle? MR. BROWN-Yes. It’s a Catch-22, and I’m not stating that that’s the fact. That’s what my belief is, that DEC looks for the local conditions, if any, before they act on any permitting. I don’t know. You’re chasing your tail here, if you wait for them to act and they’re waiting for you to act. MR. MC NULTY-It strikes me that one way or another we ought to be able to at least extract some kind of a memo from DEC that says that they would be inclined to favorably consider at least the mitigation portion. They may well not want to issue an opinion on the sidewalk intrusion until we act on that, but the thing that worries me is the mitigation. MR. BROWN-Perhaps the conditioned approval that you may consider would include a timeframe that says, here’s your conditioned approval. You get us some response from the DEC, whether it’s a jurisdictional letter and a modified permit or approved permit, a new permit, within X number of days, or your permit’s not valid. That way it’s not open ended. They’ve got a timeframe they’ve got to respond. If they don’t respond in that time, they can come back maybe revisit it, but at least you’ve got a handle on the end of it. 62 (Queensbury ZBA Meeting 5/18/05) MR. HAYES-I’d like to ask you, I mean, you’re a wetlands, you deal with the DEC on a regular basis, I’m assuming, probably more than you’d like, but that’s all part of the process. What is the causal chain, as far as this? I mean, if we don’t approve this tonight, does that mean the DEC is not going to act upon it? In your experience. If you don’t know for sure, I’d prefer you just say you don’t know. MR. LONG-Yes. The biggest problem, and this is going to seem like a wimpy answer, and this is what I would tell my clients, is that the hardest part of the process right now is that there’s nobody to deal with the process. MR. HAYES-At DEC. MR. LONG-At DEC. They do not have a wetland staff at Region Five. MR. HAYES-I guess as far as the procedure, though, the original question that I asked you. That may be or may not be true, but I, in terms of the process, if we table this variance, what would typically be DEC’s? MR. LONG-Typically, once you make an application, the key part of the application process is getting the application notice that’s complete. Once it’s noticed as complete, even though the statute isn’t written as such, it essentially means that DEC agrees that the applicant has met their requirements of Article 24 of the Wetlands Act. MR. HAYES-For an application. MR. LONG-For an application, that they believe that it’s going to be something that they can permit. MR. HAYES-So the approval from the local municipality, as far as the variance, is not the triggering point? MR. LONG-Is not absolutely a trigger. It certainly is helpful, because then what it does is, especially in the wetlands act, is that it expresses an opinion that it’s compatible with the overall neighborhood, and characteristics of the region and neighborhood, and that there are social benefits. MR. ABBATE-Well, you know, if that’s the case, then, if local approval doesn’t trigger it, then, I suggest that it might be in the best interests just to table it, and wait for approval. MR. LONG-Well, I would ask you not to absolutely wait for the approval, because there will, you know, because of this whole timing problem. MR. ABBATE-Okay. MR. LONG-The very first thing I said right out is that I may be able to get a complete application, but I may not be, you know, there’s some things that aren’t happening. MR. ABBATE-Let’s not forget that this is self-created, in my opinion. MR. HAYES-Okay. All right. Well, I think we’ve got all the answers that we’re going to get, and I don’t see that there’s anybody changing their vote, not that I’m lobbying anybody to. I want to be clear about that, that I do not think that we have four yes votes tonight. So, I guess my original tabling motion which I made, I guess the Board is looking for further factual determinations and confirmations from the DEC about the acceptability of your mitigation plan, and, as Jim pointed out, the cement walkway, you know, the things that are associated with the application. 63 (Queensbury ZBA Meeting 5/18/05) MR. ABBATE-But don’t you think it might be a little more appropriate if the request for tabling came from the applicant? MR. HAYES-Well, I have to make a motion. MS. RADNER-It can go either way. MR. ABBATE-Either way. Okay. I just wanted to be safe. Okay. MS. BITTER-I would just request that, I know you had originally mentioned the June meeting. At least, because there’s an issue that there might not be individuals at the DEC that have that title, maybe that will assist us in getting someone to make some sort of assistance and determination if we have a deadline in which we’re trying to reach. MR. HAYES-I don’t have any problem doing that, in a sense that as long as it’s understood that if they’re not there, that that, you know, the reason we’re tabling it will still exist and we won’t consider it. I guess it will be the same situation. AYES: Mr. Abbate, Mr. Underwood, Mr. McNulty, Mr. Rigby, Mrs. Hunt, Mr. Hayes NOES: Mr. Urrico ABSENT: Mr. Bryant MS. BITTER-Thank you. MR. HAYES-Did you want to speak again, Mr. Salvador? And then I have a statement I have to read. Thank you for coming. JOHN SALVADOR MR. SALVADOR-You recall a month or so ago I was before you asking for an extension in the time that I would have to submit information concerning my application that has been tabled because the application has been determined not to be complete, and I was given, I believe, until June. MR. BROWN-Okay. I thought it was July. MR. SALVADOR-And to make that June calendar, I’d have had to have submitted something within the last days. MR. BROWN-I think it was 90 days from the May date, which, or an April date, which would be July, I thought the date was. MR. SALVADOR-July. Okay. Well, in any case, I’m presently awaiting information. I’ve written a letter that I’ve given to Craig with some additional information, and I understand that the DOT is trying to address the issues I’ve raised. When I will hear I’m not sure, but as soon as I do, I will get the information before you. It has a bearing on our application. MR. HAYES-That’s understood, and well explained. MR. SALVADOR-All right. So I could come next month for an extension, then, Craig? MR. HAYES-If you’re pursuing that information now, I don’t think the Board would have a problem extending that now. MR. SALVADOR-Another two months. 64 (Queensbury ZBA Meeting 5/18/05) MR. URRICO-What are we extending? MR. BROWN-If I could, I’d suggest we do it next week. We don’t have any application numbers. We don’t have any of that stuff. MR. HAYES-All right. That’s a good point. MR. SALVADOR-Incidentally, I can’t understand DEC not having people on staff to address a particular issue. I mean, that’s a fortress like you can’t believe. They’ve got people some place. If it’s not Region Five, go to headquarters. MR. UNDERWOOD-I inquired, today, about the pesticide treatment that’s going to occur on Glen Lake, and I asked the officer up there, Mark Migliore, who issues the permits, if the DEC would have someone on hand while they were doing the operation. He said, well, unfortunately our only pesticide expert in Region Five was just called to duty in Honduras. So we won’t have anybody. Would you mind going out and monitoring the Osprey to make sure that they don’t eat the fish, while they’re putting stuff in the lake. MR. SALVADOR-Okay. If they’re willing to give someone else the authority to do it, fine. MR. ABBATE-Mr. Salvador, that’s a rather harsh statement. I couldn’t do things like that. MR. SALVADOR-I mean, they’re obligated to cover the bases. Please. MR. UNDERWOOD-It’s a sad commentary on their state of operations. MR. SALVADOR-And maybe this is the time to call Senator Little. Let her go after the DEC on our behalf. Seriously. She’s taken an interest in this. It’s the DEC that needs pushing. MR. HAYES-Thank you, Mr. Salvador. I’ll be brief. I know it’s getting late. So I won’t speak any longer than I have to. I have two letters here, one to Chuck Abbate and the other to Mr. Stec, which I’ll give to Staff. It announces my resignation, effective tomorrow. It’s time for me to do some other things, enjoy the time with my family and everything else. So I’ll summarize the letter. It basically says that I compliment the Staff, because I’ve always felt well prepared and we’re well represented here. I want to say that. I mean, when people ask me, I’m like, you know, they do a good job, particularly Craig Brown and Bruce Frank. I think you guys are really dedicated to your job. That’s in my letter to Mr. Stec, and obviously the friendships with people on the Board. It’s been enjoyable. So they’re in there. I’ll spare the rest of it for you. MR. ABBATE-And you have done an outstanding job. MR. HAYES-Thanks, Chuck. I appreciate that. MR. ABBATE-You have taken, in every approach, without exception, a high degree, a high road of integrity. MR. HAYES-Okay. Well, I appreciate that, and I wish everybody well. MR. URRICO-You’ll be missed. MR. ABBATE-We’re going to miss you, Jaime. 65 (Queensbury ZBA Meeting 5/18/05) On motion meeting was adjourned. RESPECTFULLY SUBMITTED, Paul Hayes, Chairman 66