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2005-06-22 (Queensbury ZBA Meeting 6/22/05) QUEENSBURY ZONING BOARD OF APPEALS SECOND REGULAR MEETING JUNE 22, 2005 INDEX Use Variance No. 44-2005 Northway Christian Family Church 1. Tax Map No. 302.8-2-5 Notice of Appeal No. 04-2004 Joseph Riitano 9. Tax Map No. 226.19-1-9 Area Variance No. 47-2005 Joseph Riitano 20. Tax Map No. 226.19-1-9 Area Variance No. 37-2005 Adirondack Girl Scouts 21. Tax Map No. 296.16-1-10 Area Variance No. 46-2005 Jean M. Hoffman 22. Tax Map No. 227.17-1-9.11 Area Variance No. 42-2005 Keith Cavayero & Elysa Baron 22. Tax Map No. 226.12-1-21, 226-12-1-39 Sign Variance No. 40-2005 Sean Garvey 34. Tax Map No. 303.6-1-5 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 6/22/05) QUEENSBURY ZONING BOARD OF APPEALS SECOND REGULAR MEETING JUNE 22, 2005 7:00 P.M. MEMBERS PRESENT CHARLES ABBATE, CHAIRMAN JAMES UNDERWOOD, SECRETARY ALLAN BRYANT CHARLES MC NULTY JOYCE HUNT ROY URRICO LEWIS STONE ZONING ADMINISTRATOR-CRAIG BROWN LAND USE PLANNER-SUSAN BARDIN TOWN COUNSEL-MILLER, MANNIX, SCHACHNER, & HAFNER-CATHI RADNER STENOGRAPHER-MARIA GAGLIARDI MR. ABBATE-Counselor for Mr. Kelly has suggested, would this Board be willing to place the re-hearing in another position this evening. I have to not only ask the Board, but in order to be fair, I also have to ask Counsel for the Appellant as well. So, let me start with Counsel for the Appellant. MR. LAPPER-Unfortunately, I have a child care responsibility. So if it couldn’t be heard now, we’d have to reschedule it for another night. We could take the second one first, if that would be. MR. ABBATE-Would you agree to that? MR. LAPPER-Absolutely. MR. ABBATE-Board members, do you have any problems with that? Anybody object? Okay. We are going to, please, we’re going to change around. We’re going to take Area Variance No. 47-2005 and make that our first hearing, and then what we will do is take Appeal No. 04-2004 and make that our second hearing. Just reverse them, okay? MR. URRICO-We can’t hear 47-2005. MR. BRYANT-Until we hear 04-2004. So what’s going to happen is you’re going to do Northway Church first, and then you’re going to do the two Riitano cases. 1 (Queensbury ZBA Meeting 6/22/05) MR. ABBATE-Yes, thank you, guys. Thank you. Got it. That would be 44-2005. MR. BRYANT-Mr. Chairman, because of my association with the applicant, I’d like to recuse myself from this. MR. ABBATE-You are excused, Mr. Bryant. Mr. Rigby, would you like to sit in on Use Variance No. 44-2005. USE VARIANCE NO. 44-2005 SEQRA TYPE UNLISTED NORTHWAY CHRISTIAN FAMILY CHURCH AGENT(S) JON LAPPER, STEPHANIE BITTER OWNER(S): DONNA L. DALY, INC. ZONING LI LOCATION 37 HOMER AVENUE APPLICANT IS PROPOSING TO PLACE A 8040 SQ. FT. CHURCH IN THE EXISTING BUILDING LOCATED AT 37 HOMER AVE. AND SEEKS RELIEF FROM THE ALLOWABLE USES IN THE LIGHT INDUSTRIAL ZONE. CROSS REF. SITE PLAN 57-1999, SITE PLAN 78-2000, SITE PLAN 02-1997, USE VARIANCE 1335, SITE PLAN 36-1989, USE VARIANCE 40-1999, SUBDIVISION 18-1993, AREA VARIANCE 68-1993, USE VARIANCE 1043 WARREN COUNTY PLANNING N/A LOT SIZE 0.65 ACRES TAX MAP NO. 302.8-2-5 SECTION 179-4-030 JON LAPPER & STEPHANIE BITTER, REPRESENTING APPLICANT, PRESENT MR. UNDERWOOD-Okay. I’m going to read a lead in letter here regarding this project. I’ll do that first of all. This letter is from Jon Lapper. It was dated May 16, 2005, to both the Zoning Board of Appeals and the Planning Board, RE: Donna Daly to the Northway Christian Family Church at 37 Homer Avenue. “Dear Chairman Hayes and Chairman Vollaro: Please be advised that we have been retained by the applicant to submit the enclosed applications for your respective Board’s review. Our client Northway Family Christian Church has a contract with Donna L. Daly, Inc. to purchase 37 Homer Avenue. It is our client’s intent to utilize the existing structure as a place of worship. The applicant is not proposing any structural changes or substantial site changes with its request. It is proposing 80 seats in the place of worship, which will result in the creation of three additional on site spaces to satisfy the Light Industrial Zoning District’s parking requirement. In addition, the applicant is proposing a wall sign which will identify the name of the Church, and will be a size which is within the wall sign requirements. As you are aware this site is located in the Light Industrial Zone. Under § 179-4-020, Table 3: Summary of Allowed Uses in Industrial Districts, a Place of Worship is not identified as a permitted use in this district, as a result it has been identified that a use variance is required for this use. In October of 2000 President Clinton signed the “Religious Land Use and Institutionalized Persons Act of 2000”, a copy of which I have enclosed. This Act provides the general rule that “No government shall impose or implement a land use regulation that totally excludes religious assemblies from a jurisdiction or unreasonably limits religious assemblies or institutions or structures within a jurisdiction”. S 2869 sect 2(b)(3) Although the Town of Queensbury allows for places of worship in certain districts, Table 3 identifies that they are specifically not permitted in the Light Industrial Zone. Courts have identified that barring places of worship from certain districts is unconstitutional. See Pelham Jewish Church v. Marsh, 10 AD2d 645 (2 Dep’t 1960) (In Pelham, churches were barred in residential districts) see Genesis nd Assembly of God Westbury v. Incorporated Village of Westbury 4/29/99 N.Y. 32 (col. 2). Due to these cases, it is our opinion that a use variance should not be required in this instance. However, in an effort to preserve our client’s right to be heard, we are submitting an application for both a use variance and a site plan application. This submission should not be viewed as an admission that we believe a use variance is required. At the same time that this submission is being made, we are making a request to the Town Attorney that this issue be reviewed and a determination be made prior to the Town’s June review. If the Town Attorney believes that a use variance is still required, under the current law it has been held that a religious use is entitled to preferential treatment. See Cornell University v. Bagnardi, 68 NY2d 583 (1986) McGann 2 (Queensbury ZBA Meeting 6/22/05) v. Incorp. Village of Old Westbury, 293 AD2d 581 (2 Dep’t 2002). This preferential nd treatment afforded to churches stems from their presumed beneficial effect on the community. See Cornell. As a result, while religious institutions are not exempt from local zoning laws, greater flexibility is required in evaluating any application for a religious use and every effort to accommodate the religious use must be made. Rosenfeld v. Zoning Board of Appeals of The Town of Ramapo., 6 AD3d 450 (2 Dep’t nd 2004) See Matter of Genesis Assembly of God v. Davies 208 AD3d 627 See Cornell University v. Bagnardi, 68 N.Y.2d 583, 510 N.Y.2d 861 (1986). (In Cornell the Court of Appeals held that the “balancing of public interest” standard is applicable when considering a church’s application for use variances). Please place this matter on the respective Board’s June agenda. The respective applications, applications fees, and site plans are enclosed. If you have any questions please feel free to contact me or my associate Stefanie DiLallo Bitter. Very truly yours, Jonathan C. Lapper” And as a follow up to that, there’s a letter from the Town’s Attorney. This is addressed to Stephanie Bitter at Bartlett, Pontiff, Stewart & Rhodes. “Dear Stephanie: At the request of Marilyn Ryba, we are responding to your letter of June 15. As communicated to you by Mrs. th Ryba on June 14, we, as Town Counsel, concurred with the determination made by th Staff that a Use Variance is required for your proposed project, which includes a church in a Light Industrial Zone. Consistent with our role as Town Counsel, and the request made by Staff, information has been provided to the Zoning Board of Appeals. We are confident that you will zealously represent the interests of your client and will endeavor to make sure that the information you feel is necessary is placed upon the record. We do not believe it is necessary, or necessarily appropriate, to provide a detailed analysis of legal principles to applicants in advance of review of their applications. Very truly yours, MILLER, MANNIX, SCHACHNER, & HAFNER Cathi L. Radner” STAFF INPUT Notes from Staff, Use Variance No. 44-2005, Northway Christian Family Church, Meeting Date: June 22, 2005 “Project Location: 37 Homer Avenue Description of Proposed Project: The applicant proposes use of an existing building as a place of worship. Relief Required: A Place of Worship is not identified as a permitted use in the Light Industrial Zone. Parcel History (construction/site plan/variance, etc.): SP 78-2000: 12/19/00, YMCA Program Center, conversion of existing vacant storage to a gymnastics, dance, and youth center. SP 57-99: Heritage Creations, bronze casting business. SP 2-97: 2/18/97, Daly. AV 68-1993: 7/28/93, Petroski, (min. lot size and min. lot width) variances associated with 2-lot subdivision. Sub 18-1993: 12/14/93, Petroski, 2-lot subdivision. UV 40-1989: 4/19/89, Petroski, expansion of a nonconforming use, for pool installation. SP 36-89: 5/23/89, Petroski. UV 1335: 3/16/88, Petroski, expansion of a nonconforming use, (UV 1043), for pre-school gymnastics and day care. Staff comments: The applicant proposes a place of worship in the existing YMCA building. The plan is to utilize the existing building, with no significant site development proposed. Places of worship are permitted uses subject to site plan review by the Planning Board in all Residential Zones and Commercial Zones; however, they are not identified as 3 (Queensbury ZBA Meeting 6/22/05) permitted uses in either Light Industrial or High Industrial zones, per §179-4-020. That being said, the Board should be flexible by incorporating a relaxed standard while reviewing this application relative to the criteria for granting a use variance. While the area is zoned Light Industrial, Highway Commercial Zoning is on the opposite side of Homer Ave. and across Everts Ave., where places of worship are allowable uses. Multi-family Residential and Single-Family Residential Zones; are setback to the North of Homer and South on Everts, also zones where places of worship are permitted uses. Furthermore, many of the individual parcels surrounding the subject parcel, in both Commercial and Industrial Zones are residential uses. It does not appear that the character of the neighborhood nor the health, safety and welfare of the community would be affected by the proposed use in this area. The proposed use appears to be compatible with the surrounding neighborhood. This could potentially be a difficult site for an Industrial or Commercial Use because of parking constraints, as indicated by the applicant’s sponsor. The plan requires 16 parking spaces (1 parking space per 5 seating spaces), as per §179-4-040. There are currently 13 spaces on-site. The applicants propose to use the existing pavement area (can accommodate 3-5 cars) as additional parking space.” MR. UNDERWOOD-And I don’t have anything from the County on that. MR. ABBATE-Okay. Thank you, Mr. Secretary. Would those sitting at the table please speak into the microphone and for the record identify yourself and your relationship with the appeal, please. MR. LAPPER-For the record, Jon Lapper, Stephanie Bitter and Pastor John Tether. The application went into a lot of detail about what standard of review is applicable, and I think that we’ve really covered both of the Use Variance standard, the typical Use Variance for financial hardship, which the Donna Daly affidavit went into great detail on, and we believe that the more relaxed benefit to the applicant versus the burden on the neighborhood standard is applicable to a place of worship, and we entered into a dialogue with the Planning Staff and the Town Attorney prior to the meeting, so that we could establish that, and the Staff notes from our application go into pretty good detail about that more relaxed standard. So I think that whichever way the Board chose to review this, I think that we made the case that we’ve made the case that this is an appropriate use for this variance to be granted. With that said, Stephanie just wanted to add a few points, in terms of the nature of this use, in terms of that, the more relaxed standard of the burden versus the benefit. Perhaps the Board wants to discuss first which standard you want to apply. We’ve had other applications before this Board for civic uses where you’ve reviewed the case law and recognize that the Use Variance, the typical Use Variance doesn’t apply, but either way in this case we think we’ve got it nailed. MR. ABBATE-I’d prefer that your Assistant Counsel say what she has to say first please. MR. LAPPER-Yes, sir. MS. BITTER-Stephanie Bitter, Assistant Counsel for the applicant. Chairman, what we were indicating in our application is that there is a Federal statute that was just issued specifically identified as Religious Land Use and Institutionalized Persons Act of 2000, as well as numerous cases which have identified that a religious use or church is entitled to a preferential treatment. That preferential treatment has stemmed from their presumption that they are beneficial to the community. With such, they receive greater flexibility in evaluating an application, as well as it’s suggested that every effort to accommodate this religious use should be provided by the Town. It’s our opinion that the strict application of the Use Variance standard would not be applicable because it’s a 4 (Queensbury ZBA Meeting 6/22/05) church, and as a result, we look more towards the balancing of the public interests. Case law has indicated that a religious use should be permitted, absent convincing evidence that it would produce a direct and immediate harm to the public’s welfare, safety, and health. It’s our opinion that this is located in a Light Industrial zone, that by definition it’s a less intensive use. Right now the YMCA is there and it’s terminating its use, and the other uses that would be allowed within this district would be agricultural service use, distribution center, assembly operation/lumber yard, all of which would provide more of an impact on the adjacent landowners. Speaking of the adjacent landowners, the surrounding properties are both commercial and residential. Specifically as was mentioned in our application, the Highway Commercial zone is directly across the street, which would actually provide for a place of worship to exist. There’s really no Light Industrial uses that exist in this area, and the place of worship that’s being proposed at this time would really be a quiet use and essentially a part time use, which would be beneficially to the community. It would fit into the character of the neighborhood. It is actually supported by the neighbors. Pastor John went around to the neighborhood and actually got signatures from the neighbors saying that they would support this application, which I will submit to you, if that’s okay. MR. ABBATE-Mr. Secretary, would you be kind enough to enter this into the record, please. MS. BITTER-There’s also no exterior changes that are being proposed, other than that fact that they do plan on keeping up the landscaping that exists on the property. The only possible concern that may exist is for parking. We do have sufficient space to have all the parking requirements met, but we’re trying to actually not increase the asphalt that exists on the property, and we’ve actually reached out to the neighbors to have parking agreements with them, so that that doesn’t have to be provided. All in all we feel that when the balancing test is looked at, that this would definitely provide a benefit to the community, more so than any detriment that could be seen that it would provide to the public’s health, welfare or safety. MR. ABBATE-Okay. In an effort to be complete, and you were very complete, Counselor, you did leave one thing out. Also what’s included in Light Industrial is adult entertainment, as well. So let’s include that as well. MS. BITTER-Which is completely different than what we’re here for. MR. ABBATE-Have you completed your presentation? MS. BITTER-Yes. MR. ABBATE-Okay. Good. Do any of the Board members have any questions? If so, please. I’m listening. If not, I have several. All right. Counselor, I have all of the documentation that has been submitted to the Board and our Secretary has read, and I have what I feel are three rather straightforward questions to ask. While I ask the three questions, why don’t I give you an opportunity to state my three questions first, give you folks an opportunity to think about it, and then go back over them again. They’re very straightforward. Question Number One, why is it that you, your client, are of the opinion that your use is appropriate to an industrial zone? I’m kind of flabbergasted by that. MS. BITTER-Did you want to go through all three? Okay. MR. ABBATE-Question Two. What other sites have your clients explored that might be, how can I say, more appropriate to the Church? And Question Number, Pastor Tethers is proposing an initial 80 seats in the place of worship, and my Question Number Three is this. How does your client intend to address additional parking spaces in the event of 5 (Queensbury ZBA Meeting 6/22/05) congregational growth of perhaps five, ten, fifteen, or even twenty additional new members attending worship? Extra parking spaces. Those are my three questions. MR. LAPPER-Okay. The first question, the appropriateness to the industrial zone, what’s interesting about this parcel is that the industrial zone is located to the south, where the concrete block manufacturer is located, but right on this corner it’s all residential or commercial. So it’s not, this is the only lot that’s industrial right in that location. So the character of the area is not industrial, it’s mostly residential, with some commercial, and that’s why a church is an appropriate use for a residential/commercial zone. In terms of other sites, what was most attractive to Pastor John is the building, because this is a clear span building which can be used for a congregation. They were going to have to make some interior modifications, but for the most part, it’s a very good building for his use. So when they were looking around, compared to having to construct a new building, this is an existing building that would meet their needs, and that’s what attracted them, and the location is easy to get to, in terms of proximity to Quaker Road and the travel corridors in the Town. So that was also, it made it appropriate. In terms of the parking, Stephanie mentioned that we’ve had discussions with two adjacent property owners who have large parking lots, one is the daycare. Michelle Scheffer owns A Child’s World next door, which coincidentally my kids have been at since the beginning of time, and she has always let the YMCA people park there, and has indicated that she would be happy to let the Church congregation park there as well. Pastor John has also talked to Bill Tackett, Tackett Chiropractic. He also has a parking lot, and he uses his parking lot during normal business hours and not on Sundays. So he also felt that he could supply parking. So even though, under the Code, as Stephanie mentioned, we meet the parking requirements, in case their need exceeds what the Code requires, there is adjacent parking available so that it wouldn’t be on the street. It wouldn’t be affecting the residential neighborhood. MR. ABBATE-And the reason I mention parking is that the Board is charged with the health safety, okay, and so I consider this to be a particular issue in terms of safety, in the event that your congregation grows, and hopefully it will, folks parking in the street, etc. Thank you very much. Members of the Board? MR. URRICO-I have a question. Will the Pastor have an office on site, in addition to the place of worship? JOHN TETHERS PASTOR TETHERS-Yes. We would like to have an office that would essentially, you know, involve one or two, possibly three cars during the week, but that would be it. MR. URRICO-What type of business will you be conducting during that period of time? PASTOR TETHERS-General office business, you know, paperwork, administrative type things, you know, possibly an occasional counseling session, etc., but not a large parking use. MR. URRICO-Thank you. MR. ABBATE-Okay. Thank you. MR. MC NULTY-I have a question. MR. ABBATE-Please, Mr. McNulty. MR. MC NULTY-I think we all can agree right now that the general character of the neighborhood is as you described. Nevertheless, it is zoned for Light Industrial. Has the Pastor of the congregation given thought to what happens when somebody comes in 6 (Queensbury ZBA Meeting 6/22/05) and buys several of those houses and puts a legitimate Light Industrial activity there? Is that going to interfere with the congregation? Because it strikes me that probably the reason that churches are not allowed in Light Industrial is not the effect of the church on the Light Industrial, but vice versa, the fact that light or heavy industrial probably, a typical zone like that would not be appropriate for a church. PASTOR TETHERS-Sure. That’s an excellent question. I believe that, with the day care, the Child’s Word day care being right next door is a very established business there, that that seems like a pretty unlikely place to be sold off and the building is constructed as it wouldn’t appeal any more, I think after the renovations that have been made, wouldn’t appeal any longer to an industrial type site. Also we are right on the corner there of Homer and Everts. So that even if there were to be a surrounding industrial sites, I think that access from Quaker Road is still very easy and wouldn’t pose a problem. MR. MC NULTY-Okay. Thank you. MR. ABBATE-Any other members of the Board have any questions? Okay. If there are no other questions, to meet the obligations of the Public Officers Law, Section Three, for a fair and open process, the public hearing is now open for Use Variance No. 44-2005. This Board invites public comments on the appeal. In the interest of time, please be crisp, be organized, and limit your comments to only the facts and information given this evening. Would those wishing to be heard please come up to the table, speak into the microphone, and for the record identify yourself and your place of residence. Do we have any folks from the audience who would like to be heard on Use Variance No. 44- 2005? It would appear as though we do not have any public input. PUBLIC HEARING OPENED MR. ABBATE-If not, then I would now request that ZBA members offer their commentary on Use Variance No. 44-2005, and I would respectfully remind the members that precedence mandates that we concern ourselves with the evidence which appears on the record to support our conclusions, and the evidence relied upon should be specifically stated, and this, of course, is necessary for any intelligent judicial review. MR. UNDERWOOD-I have to interrupt and just read the petition in. MR. ABBATE-Mr. Secretary, please. MR. UNDERWOOD-The petition in support of the Northway Christian Family Church. “Through my signature below, I wish to show my support for the Northway Christian Family Church in their effort to purchase the property at 37 Homer Avenue in Queensbury to use it as a church.” And it’s signed by people at 7 Homer, 18 Homer, 10 Homer, 14 Homer, 92 Everts Ave., 35 Homer Ave., 19 Homer Ave., and 88 Everts Ave., and that includes the property next door, that’s Michelle Scheffer that was referred to at 35 Homer Avenue. MR. ABBATE-Thank you, Mr. Secretary. Since I have no volunteers, Mr. McNulty, please. MR. MC NULTY-Okay. This strikes me as a reasonable request. The applicant has, I think, done a fair job of describing the effort to do something else with the property in making the case that it’s been very difficult to get a reasonable return. The two real estate firms that they mention, the Levacks and Linda Marcella, both deal a lot with commercial type properties. So if I were to pick two that would make a diligent effort to do something with the property, those would be two of the top choices that I would make. So, I think that the effort’s been made on that basis, and I’ll agree as the applicant argues that the nature of the neighborhood at the moment is more residential than anything else, and what isn’t residential tends to look like commercial rather than light 7 (Queensbury ZBA Meeting 6/22/05) industrial, and they’ve pointed out that they do realize that it is a Light Industrial zone, and conditions could change. So this is a risk that they’re taking, and I think the distance to nearby homes is sufficient that it shouldn’t interfere with the nature of the neighborhood. So, going on a balancing test, it strikes me that the balance falls in favor of the applicant. I don’t really see any detriment to the neighborhood. So I’ll be in favor. MR. ABBATE-Thank you, Mr. McNulty. Mr. Stone, please. MR. STONE-Thank you, Mr. Chairman. I basically agree with Mr. McNulty. The only, there’s two things that trouble me. One, it is determined to be a Use Variance, and we know, normally that is a tremendously stringent requirement. I think, as Mr. McNulty says, the efforts of Mr. Levack and the other lady seem to have shown due diligence. The words “several years” is in there, and that’s certainly one of the things that we need to know. You can’t try for a month. So, from that standpoint, I am more than willing to agree with this thing, but before I do, I have to say, I have a problem with the “leniency” requirement. I mean, I am not against any religion. I’m all for religions. I just don’t know why, in a community where there is plenty of access for all kinds of religious organizations, that we are asked, and I’m not faulting, obviously, the applicant or Counsel or our Counsel or anybody else. I guess I resent the fact that this kind of language has been used by the courts. I mean, religion is very important to a lot of people, and I certainly am not against religion. I do, just wanted to say for the record, that I don’t like being pressured to do something which on the face of it is a very good idea. I think it’s going to be great for the neighborhood, but I don’t like to be told I have to be lenient. That is not normally our job. MR. ABBATE-Let me follow that up with the fact that we live in a society of what’s called rule of law, and Genesis made it quite clear, the courts found it quite clear, that a local law prohibiting religious institutions from locating in a Light Industrial district is unconstitutional. Mr. Underwood, please. MR. UNDERWOOD-As Mr. Lapper quoted, my kids also went through Child’s World, and utilized the gymnastics facility that was in that building for many years when it was in use, but it seems that there has been a difficult time over the years in continued usage of the building itself. My only concern was the parking, and I was going to make the same suggestion. I’m sure being that weekends are the heavy use time for you, the day care center is not in use and there seems to be parking there, you know, unless you really swelled the congregation dramatically or something at some point in the future, but I think also, too, we can keep in mind that if you outgrow this building, you can always turn it over for its intended use in the future, since it is an open building. It’s not like you’re going to be changing the character of an industrial zone. I think that the statutes that we have on the books are more oriented towards an actual industrial area, you know, which would be inappropriate for a church, and obviously I don’t think you would want to be there either, but in this instance, I think that it’s a workable solution, and I don’t think their request is that grand. So I’d go along with it. MR. ABBATE-Thank you, Mr. Underwood. Mr. Urrico, please. MR. URRICO-Well, I essentially agree with those that have come down in favor of the application. I will make several points. Twice before, this same property has been found to be, present an unnecessary hardship, and both times they’ve involved a religious organization. So it’s interesting that that has happened, the same finding was found with those two previous applications. Two, that a YMCA might be considered a religious organization, and, three, it is an office of sorts in a spiritual sense, and in a practical manner as well, since you’re going to have an office on site there, and probably run it seven days a week I would imagine, and under site plan review, that would be an allowed use. So I would be in favor of it. 8 (Queensbury ZBA Meeting 6/22/05) MR. ABBATE-Duly noted, Mr. Urrico. Thank you. Mrs. Hunt, please. MRS. HUNT-Thank you. Yes, I would be in favor of it. Visiting the site, I looked at the homes, and actually an industrial use of that property would be out of character with the neighborhood. I was concerned about the parking, and I did look at the two facilities next door, and I’m glad you went to them and asked about the extra parking. It seems to me that this would fit in very nicely with the existing neighborhood, and I would be in favor. MR. ABBATE-Thank you, Mrs. Hunt. Mr. Rigby, please. MR. RIGBY-Yes, I agree with what all the other Board members have said. The only thing I’d add is that, you know, with the character of what’s there, adding a church is definitely within the character of the neighborhood now. I mean, there’s going to be a, there’s a day care center there now. There’s a CPA office. There’s a chiropractor, and now there’s going to be a church. It seems like a very good mix. So, other than that, I agree with what all the other Board members have said, and I’m in favor of it as well. MR. ABBATE-Thank you, Mr. Rigby. I, too, agree with all the members, including some of the exceptions that were made, noted by some of the members as well, but I also take into consideration that religious organizations do, in fact, in the United States of America, enjoy a favored status, and based upon the argument that was presented by both Counsels, first and second, if you will, and members of this Board, I’m going to ask for a motion, but before I ask for a motion, I’m going to close the public hearing. PUBLIC HEARING CLOSED MR. ABBATE-And I’m going to respectfully remind the members that we have the task of balancing the benefit of the variance against the impact on the area, as well as the fact that State statutes spell out five statutory criteria that should be carefully considered. May I please hear a motion for Use Variance No. 44-2005. MR. MC NULTY-Mr. Chairman, before you do that, this is an Unlisted Action. MR. ABBATE-It is an Unlisted Action. You’re absolutely correct. Thank you. Let me go back again and say, may I hear a motion, start all over again, for Use Variance No. 44- 2005. MR. ABBATE-Do we have a SEQRA on that, Mr. Secretary, did we have one? MS. RADNER-You should. MR. ABBATE-I was going to get it. MR. LAPPER-There was a Short Form submitted. MR. ABBATE-I’m sure our Secretary has it. MS. GAGLIARDI-Excuse me, I think you have to vote on SEQRA. MR. ABBATE-That’s right, on SEQRA. If there is no County Impact or Short Environmental Assessment Form available, which there is, I move that the information just processed by the Secretary be approved. Is there a second? MR. URRICO-I second. MR. ABBATE-It has been seconded. 9 (Queensbury ZBA Meeting 6/22/05) MS. RADNER-Is that a SEQRA Negative Declaration, then? I’m a little confused. MR. ABBATE-Do we have to do? MS. RADNER-You have to do either positive or negative. Either you’ve identified potential impacts. MR. ABBATE-Let me try it this way. The Short Environmental Assessment Form provided by the applicant indicates that there are no significant negative impacts caused by the project. As such, I move to accept the basis in anticipation of no negative responses. MR. MC NULTY-Mr. Chairman, before you go on with that, I believe what the Secretary read was Page One of the SEQRA Form. I think he skipped Page Two, which is the part that we’re really supposed to pay attention to. MR. ABBATE-Okay. MR. MC NULTY-Page Two starts out with, “Does the Action exceed any Type I threshold…” MR. ABBATE-Okay. MOTION THAT THE SHORT ENVIRONMENTAL ASSESSMENT FORM PROVIDED BY THE APPLICANT INDICATES THAT THERE ARE NO SIGNIFICANT IMPACTS CAUSED BY THE PROJECT, AS SUCH I MOVE TO ACCEPT IT ON THE BASIS IN ANTICIPATION OF NO NEGATIVE RESPONSES, Introduced by Charles Abbate who moved for its adoption, seconded by Lewis Stone: Duly adopted this 22 day of June, 2005, by the following vote: nd AYES: Mr. Stone, Mrs. Hunt, Mr. Urrico, Mr. Rigby, Mr. Underwood, Mr. McNulty, Mr. Abbate NOES: NONE MR. ABBATE-All right. Are we all set? Let me go back. Mrs. Hunt made a motion to approve Use Variance No. 44-2005. Mrs. Hunt, please. MOTION TO APPROVE USE VARIANCE NO. 44-2005 NORTHWAY CHRISTIAN FAMILY CHURCH, Introduced by Joyce Hunt who moved for its adoption, seconded by Roy Urrico: 37 Homer Avenue. The applicant proposes use of an existing building as a place of worship. A place of worship is not identified as a permitted use in the Light Industrial zone. When granting Use Variances, the Board should grant the minimum variance deemed necessary and address the unnecessary hardship proven by the applicant, at the same time preserve and protect the character of the neighborhood and the health, safety and welfare of the community. Letters from Mark Levack and an affidavit from Donna Slack have shown that a reasonable return is not possible on this land if it was used as zoned. Due to the size of the lot and the size of the building and the lot’s location, it is not appropriate for a Light Industrial use. It will not affect the essential character of the neighborhood, since there are homes in the immediate area, and the place of worship would fit in very well with the existing neighborhood. Is the alleged hardship self- created? No. The owner has been trying to sell the property for use of a Light Industrial zoning but has not been able to. I therefore ask that we approve Use Variance No. 44- 2005. 10 (Queensbury ZBA Meeting 6/22/05) Duly adopted this 22 day of June, 2005, by the following vote: nd AYES: Mr. Urrico, Mr. Stone, Mr. McNulty, Mrs. Hunt, Mr. Underwood, Mr. Rigby, Mr. Abbate NOES: NONE MR. ABBATE-The vote for Use Variance No. 44-2005 is seven in favor, zero against. Is there a challenge to the tally? If there is none, then Use Variance No. 44-2005 is approved. MR. LAPPER-Thank you. MS. BITTER-Thank you very much. MR. ABBATE-Okay. Now let’s back up here. We’re going to go to the re-hearing. NOTICE OF APPEAL NO. 04-2004 SEQRA TYPE UNLISTED JOSEPH RIITANO AGENT(S): JONATHAN LAPPER, STEFANIE BITTER OWNER(S): JOSEPH RIITANO ZONING: WR-1A LOCATION: 16 SUNSET LANE APPLICANT IS REQUESTING A REHEARING OF NOTICE OF APPEAL NO. 04-2004 MICHAEL KELLY REGARDING THE RENOVATION OF THE RIITANO DWELLING AT 16 SUNSET LANE ON ASSEMBLY POINT. CROSS REF. NOTICE OF APPEAL 09- 2004, NOTICE OF APPEAL 06-2004, NOTICE OF APPEAL NO. 04-2004, AREA VARIANCE 29-2004, AREA VARIANCE 89-2003, AREA VARIANCE 26-2002 WARREN COUNTY PLANNING N/A LOT SIZE: 0.17 ACRES TAX MAP NO. 226.19-1-9 SECTION 179-4-030, 179-13-010, 179-16-050 JON LAPPER & STEPHANIE BITTER, REPRESENTING APPLICANT, PRESENT MR. UNDERWOOD-As an aside to this, I’m going to read a letter into the record that was addressed by Mr. Lapper, and that was received on May 16, 2005. It’s addressed to Paul Hayes, Chairman of the Zoning Board of Appeals. “Dear Chairman Hayes: As you are aware, we represent Joseph Riitano who is the owner of 16 Sunset Lane, and on November 17, 2004, the Zoning Board of Appeals denied Mr. Riitano’s request for a re- hearing of Appeal No. 4-2004 of Michael Kelly. The original determination of which was made on August 25, 2004. On December 22, 2004, the Zoning Board of Appeals heard Appeal Number Two, that’s 5-2004, of Michael Kelly, at which time they denied Mr. Kelly’s appeal. Based upon the Zoning Board of Appeal’s December 22, 2004 determination, and the reasons listed below, we are again requesting that the Zoning Board of Appeals grant a re-hearing upon Appeal Number One, that is 4-2004, of Michael Kelly. In November 2004, our office made a request for a re-hearing due to the existence of certain facts and circumstances which the Board was apparently not aware of upon its initial consideration of Appeal 4-2004. Significantly, the Riitano project plans submitted to the Board by Mr. Kelly’s attorney were not the final plans filed with the Town by Mr. Riitano, and Mr. Kelly’s contention that Mr. Riitano’s house has been built illegally for not being in conformance with the filed plans was incorrect. In fact Mr. Riitano has resubmitted new plans in August 2003 which correctly depict how that house was built and exists today. Moreover, following the submission of the plans in August 2003, Mr. Brown wrote to Mr. Riitano regarding the plans submitted. At that time, Mr. Brown made a determination that the only reason the house, as depicted on the August 2003 plans, was not in compliance with the Town of Queensbury Zoning Code was because the plans showed a front porch, which was 150 square feet in size, and Mr. Brown suggested a variance be sought with respect to that porch. Pursuant to that direction, and relying on Mr. Brown’s August 28, 2003 determination, Mr. Riitano proceeded with the renovations of his residence. Although Mr. Riitano also later made variance requests in December 2003 and in April 2004. Those requests had nothing to do with the roofline, floor area ratio, or the attic. Accordingly, the denial of those variances 11 (Queensbury ZBA Meeting 6/22/05) did nothing to change the determination made to Mr. Brown’s August 28, 2003 letter. However, due to the fact that Mr. Riitano was not provided an opportunity to speak after the public hearing was closed, the Board was not able to fully understand the foregoing sequence of events, or be advised that the plans submitted by Mr. Kelly’s attorney were not the correct set of plans for the Riitano house. Moreover, although Mr. Brown actually determined the project’s compliance in his August 28, 2003 letter, Mr. Kelly did not appeal Mr. Brown’s August 2003 determination, even though he was well aware of it. As a result, Mr. Kelly’s appeal was not timely and under both the Town of Queensbury Code, Section 179-16-050, as well as Town Law 267A, Kelly’s appeal had to be made within 60 days of the determination appealed from. Due to the fact that it was not, it was an error for the Zoning Board of Appeals to hear the Appeal, and as a result, and as a matter of law, the Appeal should therefore be re-heard and denied. Moreover, Mr. Riitano commenced the renovation of his house in October of 2002, and at all times he his building permit and plans on site. In March of 2003, the footings and foundation were substantially completed. In July of 2003, Mr. Brown requested that new plans be submitted to more clearly reflect the renovations that were being made. In August of 2003, new plans were submitted, and in September of 2003, the existing roof was substantially completed. In October of 2003, the entire renovation project was completed, and as the Town is aware, Mr. Kelly was engaged in continual surveillance each and every step of the project. Throughout this project, Mr. Kelly has continually requested copies of any and all documents relating to the progress of construction. In October of 2003, Mr. Kelly wrote to Craig Brown, specifically with regard to the roofline, and in that letter Mr. Kelly admits that Craig Brown had advised him that the roofline was fully compliant with the Ordinance. A copy of Mr. Kelly’s letter is enclosed. Even though it is clear that Mr. Kelly knew that the Zoning Administrator had ruled that the house was in compliance, except for the 150 square foot porch, he unreasonably waited over eight months to appeal from this determination. Mr. Riitano was never told by anyone in the Zoning Department or the Town that he needed a height variance for the roof, nor was he ever informed that the roofline he constructed did not comply with the Zoning Ordinance. At no time was Riitano given a Stop Work Order for the roof or the attic, and as a result, and in fully reliance on the certification of compliance by the Zoning Department, Mr. Riitano expended time, energy, and money to renovate the roof and construct the attic. Due to Mr. Kelly’s unreasonable delay in appealing from the Zoning Administrator’s determination from 2003, Mr. Riitano’s health has deteriorated. He has been hospitalized, and his family has been unable to fully enjoy their newly renovated home. Mr. Riitano has also been required to retain an attorney and continually argue for his property rights before the Zoning Board and now the Supreme Court. Because of Mr. Kelly’s unreasonable delay in appealing the determination that the roof was in compliance with the Code, Mr. Riitano has been substantially prejudiced. Completely separate and apart from Mr. Kelly’s failure to appeal from the Zoning Administrator’s determination of compliance in August 2003, within the 60 day period permitted by law, Mr. Kelly was aware of the determination and yet chose to do nothing until the construction was completed. As a consequence, his appeal should also be denied on the grounds of laches and mootness (which requires that a request be made for an injunction or stop work order to prevent construction from being completed). In addition, on December 22, 2004 this Board considered Mr. Kelly’s Appeal #2 (6-2004), which addressed whether Mr. Brown was correct in excluding the basement and the Floor Area Ratio calculation for the Riitano residence. Mr. Brown stated that his determination was based on the fact that only habitable space, as defined in New York State Building Code, is included in the Floor Area Ratio calculation. He noted that because the unfinished basement and garage would be deemed storage space and were not habitable, it would be improper to include the basement and garage in the calculation. The Board agreed with Mr. Brown’s conclusion and rejected Mr. Kelly’s Appeal #2, (6-2004). It is our opinion that since the attic is also unfinished, it too should be considered as storage space and not be deemed habitable space. As a result of the inconsistency between the determination made upon Appeal #1 and Appeal #2 relating to the floor area ratio issue it is respectfully requested that Appeal #1 be reheard. In September of 2004 a special proceeding was commenced by Mr. Riitano in New York 12 (Queensbury ZBA Meeting 6/22/05) State Supreme Court to review the determination made by the Board in Appeal #1. In April, the Town Attorney Cathi Radner and Mark Lebowitz from our firm met with the New York State Supreme Court Judge Richard Aulisi to discuss the pending proceeding. At that time, Judge Aulisi encouraged our firm to submit this request for a rehearing and at the same time encouraged the Town Attorney to advise her client to give strong consideration to entertaining such an application. Due to the fact that we are trying to obtain a resolution to this matter, if we do not receive a unanimous vote for the rehearing or if the Board reaffirms its original determination on Appeal #1, we are also submitting a variance request in the alternative. Please place this matter on your June agenda. The application, plans and fee are all enclosed. Please contact me or my associate Stefanie DiLallo Bitter. Very truly yours, Jonathan C. Lapper” MR. ABBATE-Would the petitioner of Notice of Appeal No. 4-2004 please come forward, speak into the microphone and for the record state your name and relationship with this Appeal, please. MR. LAPPER-For the record, Jon Lapper and Stefanie Bitter, and Joe Riitano is behind us as well, the property owner. MR. ABBATE-Counselor, before you begin. I will put forward three points, Counselor. One, in the event that there is a re-hearing, this Board may reaffirm, reverse, modify or annul its original order decision or determination, upon the unanimous vote of all members present, provided this Board finds that the rights vested and persons acting in good faith in reliance upon the reheard order, decision or determination will not be prejudice thereby. Point Two. Before presenting your argument, please be advised that the request for re-hearing must state, with particularity, the points believed to be misapprehended or overlooked in rendering our past decision, and also state all other grounds upon which re-hearing is sought. Finally, Number Three. Any member of this Board may make a motion to re-hear. However, there must be a unanimous vote of all members present for such a re-hearing to occur. Are there any questions, Counselor, on those three points? MR. LAPPER-No, sir. MR. ABBATE-All right. Please continue. MR. LAPPER-Okay. MR. UNDERWOOD-Before he continues, I just wanted to read Staff notes. I did not do that. MR. ABBATE-Please do that. STAFF INPUT Notes from Staff, Notice of Appeal No. 4-2004, Joseph Riitano, Meeting Date: June 22, 2005 “Project Location: 16 Sunset Lane Description of Proposed Project: The applicant is requesting that the Zoning Board of Appeals rehear the referenced Appeal and consider additional information. Information requested: Appellant is requesting that the Zoning Board of Appeals reconsider their determination that the Zoning Administrator was in error when he deemed that the unfinished attic of the Riitano structure at 16 Sunset Lane should not be included in the Floor Area Ratio calculation for the property. And, that the modified roofline should not be considered an expansion of a nonconforming structure. 13 (Queensbury ZBA Meeting 6/22/05) Staff comments: The Zoning Administrator did not consider the altered, unapproved roof structure to constitute an expansion of a nonconforming structure. The attic space is unfinished, because of this; this area was considered storage space and not living space by the Zoning Administrator.” MR. ABBATE-Okay, and I would just like to note, at this juncture of the hearing, I respectfully ask Board members to withhold any dialogue while the Appellant is presenting his argument. Counselor, if you’re prepared to proceed, please begin. MR. LAPPER-Thank you. Very simply, one of your points was whether we had made a comprehensive showing of all the points in our argument, and that’s why we bored you with all of that history, and I made all those legal points, but what this really comes down to is very simply that last December 22, this Board unanimously determined that nd basement floor area that was not living area would not be considered as the Floor Area Ratio analysis under the Town Code. That is an agreement with the Zoning Administrator, but prior to that, for a host of reasons, the Board was led to make a determination that attic space, that non-living attic space, or attic space in this case, did count for Floor Area Ratio. So the reason why we’re asking for the re-hearing is because of the change of circumstance that the decision that you rendered in December was contrary to the decision on the same point that you rendered last August, and for that reason, we ask you to render the same decision that attic space, which is not living space, would not be considered in the Floor Area Ratio analysis, which is always how it’s been in this Town, and that’s in agreement with the Zoning Administrator, Mr. Brown, who’s hear tonight. So it’s on the basis of that December decision that we’re fundamentally asking for a re-hearing, and we have, in terms of documented evidence, we have photographs to present of the attic space that shows that it’s not sufficient, doesn’t meet the definition of living space under the Code, and nor could it be used as living space. MR. ABBATE-Okay. Have you concluded your argument, Counselor? MR. LAPPER-Yes. MR. ABBATE-Okay. At this point, I’m going to open the public hearing, and under Public Officer’s Law Section Three for a fair and open process, we’re going to invite the public to comment on the Appeal for re-hearing. In the interest of time, please be crisp, organized, and limit your comments to only the facts and information given this evening. Would those wishing to be heard please come to the table, speak into the microphone and for the record identify yourself and your place of residence. You will be limited to five minutes. Ms. G., please monitor the time. Do we have any members of the public wishing to speak on Notice of Appeal No. 4-2004? PUBLIC HEARING OPENED MIKE KELLY MR. KELLY-Yes, we do. My name is Mike Kelly, and I’m here with John Caffrey from Caffrey and Flower, representing me, and, Mr. Chairman, may I approach the Board and handout some diagrams that I’ll be referring to? MR. ABBATE-You may approach the Board. However, I have a question. Why were not these diagrams passed out prior to this meeting? MR. KELLY-These diagrams are part of the public record. MR. ABBATE-Okay. Pass them out. 14 (Queensbury ZBA Meeting 6/22/05) MS. RADNER-Mr. Chairman, just for point of clarity, again, what you’re doing at this point is just deciding whether to re-hear or not, and you should try and limit comments to that decision. MR. ABBATE-Prior to the public hearing? MS. RADNER-Well, if you want to hear from the public about whether or not you should be re-hearing, until you make the unanimous decision, if you make that decision, to re-hear, you don’t want to get too far into the merits of the application. MR. ABBATE-Okay. I can do that. Sure. As a matter of fact, you folks can stay just where you’re at, and let me just back up a second here and say to the Board members, after they’ve had an opportunity to review whatever they wish to review here, that the only issue we are to decide is did the Appellant present a compelling argument for a re- hearing, and if any Board member believes this to be true, they may make a motion to re-hear. However, at this point in the proceedings, we may not address any other issue. I’m going to request now members of the Board offer any kind of comments they wish to make concerning this re-hearing Number 4-2004. JOHN CAFFREY MR. CAFFREY-Mr. Chairman, could I just clarify something, please? MR. ABBATE-You certainly may. MR. CAFFREY-John Caffrey, attorney for Mr. Kelly. A couple of clarifications about the process before we get into it. The last time there was a request for re-hearing, the Chairman stated that, again, as Ms. Radner just said, all we’re hearing here tonight is whether or not to have a re-hearing. MR. ABBATE-Correct. MR. CAFFREY-If you decide to do that, the actual re-hearing would require a public notice and a second public hearing. So the only issue tonight is whether or not to have a re-hearing, but this was advertised as a public hearing on that issue. So we would like to address that issue. MR. ABBATE-I’m going to refer to Town Counselor, and suggest to the Town Counselor that I believe that it would probably be more appropriate for me to continue as I’m continuing now and ask for comments from the Board members to determine whether or not there should be a re-hearing. Would I be correct? MR. RADNER-That’s correct. Unless you unanimously decide that there should be a re- hearing. MR. ABBATE-I agree. MR. CAFFREY-Do we get to address the issue of whether there should be a re-hearing? MR. ABBATE-Yes. The only thing we’re going to address, and I’ll say it again. I made it quite clear to Counsel, while he was sitting at the table there, that the only thing we’re going to consider this evening, the only going to consider this evening, is this. Did the Appellant present a compelling argument for re-hearing, and based upon that statement, did the Appellant present a compelling argument for a re-hearing, each of the Board members are going to digest what the Appellant had to say, and based upon the Appellant’s argument, we’ll then decide and vote and we’ll require a unanimous decision whether or not we’re going to re-hear. Am I correct in that, Counselor? 15 (Queensbury ZBA Meeting 6/22/05) MS. RADNER-Correct. MR. ABBATE-Thank you. MR. CAFFREY-My question is, can we address the Board before you poll the Board? Because usually you have the public hearing before you poll the Board, and we’d like to address that issue of whether or not there should be a re-hearing. MS. RADNER-That’s why you’ve been invited to the table, is to address that threshold issue. MR. CAFFREY-Right. It sounds like he was about to poll the Board. MS. RADNER-No. MR. CAFFREY-And I wanted to make sure we got to speak first. MR. ABBATE-No, that’s why you’re sitting at the table, and that’s why you’re invited up to the table. MR. CAFFREY-Good. MR. ABBATE-And then the Board already knows what we’re going to consider this evening. MR. CAFFREY-Okay. Now we understand. MR. KELLY-Again, this is Mike Kelly. Mr. Chairman, Board members, I’m here tonight to oppose any re-hearing of Appeal AP 4-2005. I ask that you hear me out for the next 10 minutes or so, as it is basically, as I am the original Appellant and it is basically the integrity of my words that is being challenged. I believe that I can clear up much of the fog which has been generated in the attempt to get this Appeal re-heard. I will address, on point, the specific claims that are being made in this attempt. Is that okay, Mr. Chairman? MR. ABBATE-No. I’m going to say that you’re going to be restricted to five minutes, unless the Board indicates to me otherwise. MR. CAFFREY-Mr. Chairman, if I may. I believe, after the time when there was an issue about whether or not Ms. Bitter could speak because it wasn’t a public hearing, I think subsequent to that, the Board agreed, since you really have two sides here, and Mr. Kelly, if it’s Mr. Kelly’s appeal, they should get more time and not just five minutes, and when it’s their appeal, we should get more time, not just five minutes. I think it was done that way the last few meetings. MR. KELLY-Mr. Chairman. MR. ABBATE-Counselor, I’m going to ask you for advice on this. MS. RADNER-Why don’t you let them start on their five minutes. If they get to the end of five minutes, you can make the decision whether you want to continue or not. MR. ABBATE-That’s a fair process. That’s fair and just, and we’ll do that. Ms. G., would you start their five minutes at the present time, please. MR. KELLY-Mr. Lapper, for Mr. Riitano, is trying to get this Appeal re-heard based on two or really three claims that he is making. The first is that the drawings that I showed 16 (Queensbury ZBA Meeting 6/22/05) at the original hearing were the original drawings, and that there were later revised and, quote, approved, unquote, drawings and that the construction itself was totally legal due to the drawings having been approved. I will cite excerpts from the public records which I believe clarify this. Here are the facts. In October of 2002, the first set of drawings which were used to obtain the original building permit, were approved by the Building Inspector and the Zoning Administrator. That’s the only way Mr. Riitano obtained that building permit, as they are both a requirement for issuance, and that drawing is the top of the set that you have. In June 30, 2003, a framing and firestop inspection report indicates that the structure did not pass the framing inspection, and a handwritten note alongside the report says, quote, submit revised framing plans, show all changes, end quote. That’s right here. July 3 and July 30 of 2003, Mr. Riitano made rdth updates to his plans and drawings, and these are the latter two sets of drawings that we see in this collection here. August 28, 2003, the Zoning Administrator wrote Mr. Riitano the following. I have reviewed the recently revised building plans associated with the above referenced building permit and find the same to be in violation of the maximum allowable Floor Area Ratio as well as the minimum front setback requirement for the property. The plans depict additional construction that was not included in the original October 25, 2002 issuance of the building permit. Later he says, as discussed on June 25, 2003, during an inspection of the construction, I informed you that the building did not appear to be consistent with the approved plans. While I did confirm that the overall height of the building had not exceeded the maximum allowable of 28 feet, I informed you that the changes to the plan would need to be documented in the form of revised building plans. These plans were to be submitted to this office so that David Hatin, Director of Building and Codes, could review the same for consistency with the New York State Building Code, and so that I could review the plans for consistency with the Town of Queensbury Zoning Ordinance, as is the case with all building permit applications. Upon review of the plans bearing revision dates of July 3 and July 30, rd 2003, Dave Hatin signed the plans on August 1, 2003, confirming the acceptability of the plans with regards to the Building Code issues. Upon my August 26, 2003 review of the plans, I learned of the new total Floor Area Ratio calculation, and determined that a field inspection was necessary. Upon a brief site inspection on August 27, 2003, I observed the front porch had already been constructed. You indicated that the porch had been constructed at least two months earlier, well before the revised plans were submitted to this office.” Okay. November 8, 2003, the Zoning Administrator wrote to me, Mike Kelly, quote, on November 17, 2003, an Area Variance application was filed on behalf of Mr. Riitano, with regards to the above referenced property, end quote. December 17, 2003, at the ZBA hearing at which Mr. Riitano seeks relief for his newly constructed house, the Staff notes say the following, quote, the dwelling currently exists on the site differs significantly from the original plans submitted for BP 2002-A66, specifically the entire roof system, front porch and back patio area, were not envisioned in the original plans. Revised plans were submitted to this office only after the building changes had been constructed. While not identical, the constructed home appears to require similar relief to that relief requested in AV 56-2002, which was presented to the Board and withdrawn by the applicant. Mr. Brown had this to say at that hearing. Please bear with me for just a moment. The home currently existing, this is Staff comments. The home currently existing on the site, that’s what I just read. Okay. Mr. Brown, quote, ultimately Mr. Riitano presented a building permit application that basically originally presented some, you know, modifications to the existing building, pick it up, put a foundation under it, use the same first floor, put a new roof on, revitalize, I guess, a pretty tired structure. What’s happened since then has been pretty significant changes to the original plans. The roofs, you know, pitches have changed, floor areas have changed, total size of the building, I guess, is different than that first plan, almost to the extent where it is very similar reliefs that were sought in that original Area Variance application that was withdrawn. So it’s here for relief right now. So I don’t want to take away from the presentation, but that’s where we are, end quote. MR. BRYANT-Mr. Chairman, I have a question for Staff. The points that Mr. Kelly is bringing out, those are primarily from the November hearing? Because frankly, in my 17 (Queensbury ZBA Meeting 6/22/05) package, I’ve got two motions, no documentation on anything. As far as I know, the only point that Mr. Lapper made originally was the inconsistency between the August ruling and the December ruling, and that’s, you know, where are we going here? I mean. MR. KELLY-In his letter, he cited. MR. BRYANT-I don’t have a copy of that letter. Is this a new letter, is it part of the application? MR. KELLY-Mr. Underwood just read it. MR. BRYANT-Yes, but that doesn’t do me any good. MR. BROWN-They’re all previously issued letters. The Boards received copies of those in previous hearings, where either Mr. Riitano or Mr. Kelly has appeared before you either for appeals or variances. They’re all matters of public record. There’s no new letters, if that’s your question. MR. BRYANT-I just want to understand what points we’re covering at this particular juncture, okay. We had several points in the November thing, which I have all the minutes here, okay. I think if there’s a previous letter that we’re going to relate to, as we’re doing now, maybe we ought to have that. MR. BROWN-Well, I don’t disagree with you. I have no knowledge of what Mr. Kelly was going to come and speak about at the meeting, what points he was going to bring up. So I can certainly give you all the letters. MR. BRYANT-So what points are we covering here? Are we covering, as far as I understand, the only point that we’re addressing is the Counsel’s point relative to the inconsistency between the two determinations. All t his other stuff was already covered in November. MR. ABBATE-I think what Mr. Bryant, I’m not putting words in his mouth, but I think what he’s trying to say, basically, is this, that Mr. Kelly, in fact, is approaching what we call a re-argument of an original position which we talked about a while back, which is inappropriate at this particular time. MR. KELLY-Can I just say one thing? In Mr. Lapper’s letter, there were three points that he was arguing why this should be re-heard. The first was that this drawing was shown, and that I was making the claim that it was illegally built. The second point that he made was that my Appeal was untimely, and the third point that he made was that the August 25 decision was inconsistent with the December 17, I think, decision thth regarding the basement. Right now, I’m addressing his first point, that these drawings, and his construction, was legal, and I’m almost wrapped up with that. MR. ABBATE-Yes, would you try, in other words, are you saying you’re attempting to rebut what he said? MR. KELLY-I’m attempting to rebut what he’s saying in his attempt to get it re-heard. MR. ABBATE-I understand. Let me ask the Board members, obviously, Mr. Kelly has gone beyond his five minutes. Does anyone have any problem granting Mr. Kelly an additional five minutes and that would be it? MR. BRYANT-Yes, I have a problem with that. MR. ABBATE-What do you suggest, Mr. Bryant? 18 (Queensbury ZBA Meeting 6/22/05) MR. BRYANT-I suggest, you said you’re just about ready to wrap up, is that correct? MR. KELLY-Well, if I have to, I probably can. MR. BRYANT-A reasonable couple of minutes or whatever, you know. MR. ABBATE-Okay. We will then, unless I hear any argument from any of the Board members, grant Mr. Kelly a reasonable number of minutes to wrap up. Is that fair enough? Okay. All right. Mr. Kelly, we will grant you additional time. MR. KELLY-Okay. I’m going to lead to the Code of the Town of Queensbury, New York, Section 88-15, Sections A and B, that read, a building permit or permit issued by the Fire Marshal shall be effective to authorize the commencing and continuance of work authorized by that particular permit, in accordance with the application plans and specifications on which it is based, for a period of twelve months. One other sentence is the issuance of a permit shall constitute authority to the applicant to proceed with the work in accordance with all applicable laws, codes, ordinances, and/or regulations. So, that establishes my point that, in fact, the construction was illegal, and I don’t say that in a derogatory manner. I’m just saying that the facts support that. I’ll jump ahead to his point about it not being timely, and the letter that he references references a conversation I had with the Zoning Administrator about the height of the building. Obviously the Zoning Administrator did not say that the house was totally in conformance, because we wouldn’t have gone to the Area Variance of December 22, 2003. So, I was jumping up and down for the whole thing and it wasn’t until I received Mr. Brown’s written determinations last May that I actually had something to appeal, and I’m more than happy to elaborate on any of these things. As far as the basement and the upstairs, the whole thing about the expansion of a nonconforming structure talks about total floor area. It doesn’t distinguish between living space and anything else, and total floor area in the Ordinance includes things such as storage sheds. So, that was our argument at the original Appeal for which we said, well, even if it’s not living space, it’s still total floor area, and any construction that results in greater than a 50% increase in total floor area constitutes expansion of a nonconforming structure. Thank you. MR. ABBATE-Okay. You’re very welcome. Thank you. MR. CAFFREY-For the record, John Caffrey, attorney for Mr. Kelly, and as with Mr. Kelly, I’d like to request, if I need it, more than five minutes, because in recent hearings Mr. Lapper has been granted more than five minutes. In response to Mr. Lapper’s letter of May 16, 2005, the first issue he talks about is which plans were which, and which were referred to in prior hearings and all that, and Mr. Kelly has just addressed that. I’d like to say that the plans are in a great sense irrelevant. What matters is what was built on that property, what’s there now, and does that second floor, is that a second floor that counts towards the Floor Area Ratio, or does it not? That’s what was decided in April, or in November, I believe it was, whenever it was, last August, last August, was that the second floor there was not an attic, as they claim. This Board decided, based on an extensive presentation of the facts, that it was a second floor and not an attic, and that was a resolution by Mr. Abbate. It also decided in that resolution that the expansion of the second floor into areas that already violated the front and side yard setbacks was a vertical expansion of the property, or of the structure, and that violated the setback rules, unless it had an Area Variance. That’s what was decided. It wasn’t based on plans that were filed in 2002 or plans that were filed in 2003. That wasn’t the issue. The issue was, was that structure legal or illegal based upon the Floor Area Ratio rule, and you made a very specific finding that it was, quote unquote, a second floor, and you didn’t find that it was an attic. So, Mr. Lapper’s first point, really, I don’t think, provides grounds for a re-hearing, and the same thing was decided the first time he requested for a re-hearing. The second issue is whether or not it was timely, the Appeal. There was a 19 (Queensbury ZBA Meeting 6/22/05) letter in 2003 that, from Mr. Brown to Mr. Riitano, that discussed the height of the building. It did not get into whether or not the second floor was legal or illegal, or whether it was an attic or storage space, or whether it was a second floor. All it discussed was the height of the building did not violate the maximum 28 foot height. You could build a 28 foot building on that property and still not violate the Floor Area Ratio rule if you laid it out differently. So this letter that Mr. Lapper says we should have appealed did not address the issue that we ultimately did appeal. As Mr. Kelly said, and he said it in a past meeting, I was reading the minutes, and it attributed this statement to me rather than him, but he was jumping up and down all the time with Mr. Brown complaining about this structure for months on end, and it wasn’t until we got some of these things in here for variance applications that these issues finally started to get addressed. The first time there was anything that he could appeal on the issue of the Floor Area Ratio for the second floor, was the letters in May of last year, and that’s what we appealed. So the appeal was timely. He did not sit on his rights. He was in here pressuring Mr. Brown as much as he could, as often as he could, and as Mr. Brown’s letter of 2003, the one Mr. Lapper refers to, says, Mr. Riitano admitted to Mr. Brown that he started building some of this stuff months earlier, some of the things that violated his permit he was building months ahead of time. So it wasn’t as if Mr. Kelly sat on his rights. Mr. Riitano was going full blast. Mr. Kelly is trying to get Mr. Brown to do something about it, and he did not sit on his rights. The first thing that we could technically appeal was those May letters. We hoped, after some of the variances were denied the second, third or fourth time before that, that something was going to be done, and it wasn’t, that’s why we had to go the appeal route. Lastly, the third issue that Mr. Lapper raised, is whether Appeal No., our two appeals are inconsistent, the one you decided in August and the one you decided in December of last year. I don’t believe they are inconsistent. I think the Board knew what it was doing when it made a factual finding that that second floor was a second floor and not an attic, and it was usable as living space, and there’s no new evidence presented regarding that. They claim to have photos. I haven’t seen them, but regardless, you made a decision that that second floor was living space. When we got in here on the garage issue in December, the question was, it’s not, I see them now, that could easily be finished off. Just because they haven’t done it yet doesn’t mean it can’t be used as living space. The question that was decided in December was the garage, or the basement, I’m sorry. It was originally built as a garage, then they decided it was a basement, and that’s a different issue, because in your definition of building floor area, it talks about all floors of the primary structure and covered porches are included, including the basement when at least three feet in height and the space meets the requirements for living space, in Section 711 and 712 of the State Building Code, and you decided that 711 and 712, as applied to that basement, that basement was not living space and it didn’t count, but the reference in your Code to those State Code sections, and the living space rule there, relates only to the basement. That does not apply to the second floor which you found was a second floor, and so for that reason the two decisions are not inconsistent. I have a hard time believing that this Board would make two decisions only four months apart that were inconsistent. There’s different rules and different reasons for findings. MR. ABBATE-You have had a total of 20 minutes, Counselor, and I feel, at this point, very comfortable that we have provided a fair and open process, and to continue on, I’m afraid I’m going to have to ask the Board members to make a decision whether we should allow this to continue on. MR. CAFFREY-I can wrap up in 30 seconds. MR. ABBATE-You’ve got 30 seconds, Counselor. MR. CAFFREY-We believe that there’s no reason to grant a re-hearing on this application. All these issues have been heard many, many times. They already asked for a re-hearing before. There’s nothing new here other than this little argument about the two decisions being inconsistent. We don’t believe they’re inconsistent, and for you 20 (Queensbury ZBA Meeting 6/22/05) to vote to re-hear requires a unanimous vote. For you to change your mind requires a unanimous vote. So unless you all think you’re going to change your mind, why waste everybody’s time even voting to have a re-hearing. This thing has been in front of this Board more times than of us can count anymore, and we should just try and put an end to it. MR. ABBATE-You of all people should know the answer to that, Counselor. He has a right to be heard. MR. CAFFREY-I understand that. MR. ABBATE-We live rule of law. Are there any other public comments, any individuals? Okay. MR. UNDERWOOD-I do have one letter. MR. CAFFREY-Do any of the Board members have any questions for us? MR. ABBATE-No, thank you. MR. CAFFREY-Okay. MR. UNDERWOOD-Okay. I have a letter received on June 22, 2005, to Charles McNulty, Secretary, Zoning Board of Appeals. “Dear Mr. McNulty: Tonight, Wednesday, June 22, the Queensbury Zoning Board of Appeals agenda includes two nd items that affect certain unapproved real property located at 14 Sunset Lane, Queensbury, NY, which I own. The agenda items concerning me relate to Joseph Riitano, specifically the Notice of Appeal No. 4-2004 and Area Variance No. 47-2005. I urge the Zoning Board of Appeals to deny both of Mr. Riitano’s applications. Moreover, since I will not be able to attend tonight’s meeting, I request that this letter, setting forth my position, be read into the record, and included in the minutes. Given Mr. Riitano’s prolonged attempt to evade Queensbury’s Building and Zoning laws and codes, I presume the Board is fully familiar with the history of the case. Therefore, I will briefly address the salient points. In or about October 2002, Mr. Riitano received approval from the Queensbury Building Inspector to alter the premises located at 16 Sunset Lane, which he owns. This dwelling is located adjacent to my unapproved real property. Construction began soon thereafter and was completed in or about June 2003, however, the premises did not conform to the approved plans. In June 2003, the Building Inspector informed Mr. Riitano that the premises, as constructed, failed to adhere to the approved plans. Attempting to gain approval for his new constructed home, Mr. Riitano submitted revised, albeit false plans dated July 3, 2003. These plans failed to receive approval because they did not reflect the constructed structure. Thereafter, Mr. Riitano submitted a second set of revised plans dated July 30, 2003, which the Building Inspector approved, despite the fact that the completed premises failed to comply with the Town of Queensbury’s Zoning Ordinances. To date, the Board has not granted Mr. Riitano a variance for this structure. During its August 25, 2004 meeting, the Board affirmed Michael Kelly’s Appeal, which asserted that Mr. Riitano’s dwelling resulted in Floor Area Ratio, setback and expansion of the nonconforming structure violations. Mr. Riitano unsuccessfully sought to have the Board re-hear Mr. Kelly’s Appeal at the November 17, 2004 meeting, and having lost his bid to have the Board re-hear Mr. Kelly’s Appeal seven months ago, Mr. Riitano appeals to the Board again this evening, albeit without any changes in circumstances, in other words the dwellings Floor Area Ratio, setback, and expansion of a nonconforming structure still violate the applicable Code. Therefore Mr. Riitano’s request for the Board to re-hear Mr. Kelly’s Appeal should be denied. Moreover, Mr. Riitano already requested the relief he seeks tonight. Though the Zoning Board is not a court of law, equity requires denial of Mr. Riitano’s re- hearing request. Mr. Riitano unsuccessfully appealed to the Board in November 2004 and after all how many “bites at the apple” or “appeals to the Board” is an individual 21 (Queensbury ZBA Meeting 6/22/05) entitled to receive based on one (1) set of facts and circumstances. Mr. Riitano has had more than his day before the Board, regardless of his success. Therefore, his request for a rehearing must be denied. In the alternative, Mr. Riitano seeks Area Variance #47-2005 – a variance for his nonconforming residence’s floor area ratio, setback and expansion of non-conforming structure. As stated above, the Board previously addressed these issues and affirmed Mr. Kelly’s appeal. Mr. Riitano continuously seeks approval of his non- conforming structure, despite his unwillingness to adhere to, blatant disregard for, the applicable zoning codes. Furthermore, since Mr. Riitano never amended the nonconforming structure, the Board should deny the new variance request outright. No change in facts and circumstances occurred since Mr. Riitano unsuccessfully presented his position before the Board. If you have any questions, need additional information or request my presence via telephone at tonight’s meeting, please contact me. Sincerely yours, Sheldon Polner” MR. ABBATE-Thank you, Mr. Secretary. In view of the fact there are no other public comments, the public hearing is now closed. PUBLIC HEARING CLOSED MR. LAPPER-Can I have about 30 seconds to rebut some of that? MR. ABBATE-Ms. G., would you time 30 seconds, please, and that’s what you shall have, Counselor. MR. LAPPER-Thank you. I only have two points. Just because it was mentioned, there were a number of sets of plans, there were things that had to change. There were times when Craig went out and said, look, you think that’s a patio, it’s really a porch. Joe had to go and jackhammer out his porch to bring things into compliance. So the process changed over time. At the end of the day, he had a set of building plans that were approved. He had a building permit. He had a CO. So he was working with Dave and with Craig. In terms of the Floor Area Ratio, those are the pictures that I referred to that we submitted. That is not living space. It’s never been counted, an attic that wasn’t living space, as Floor Area Ratio, and if you were going to stick with that, which I think you were fooled into, but if you were going to stick with that attic space counting for Floor Area Ratio, then there would be hundreds of houses all over Town that don’t comply because you’d have to count their attic towards the Floor Area and that’s not how it’s done here and that’s not how it should be done here and that, regardless of what Attorney Caffrey said, that would not qualify, we can go through the details if we get the re-hearing, but that does not qualify as living space. MR. ABBATE-For the record, I do believe I closed the public hearing. Okay. Someone said to me this evening that a calm sea does not make a competent sailor. I want to change that to a calm ZBA member does not make a competent Chairman. Now to the Board members. Before I ask for any comments, I would respectfully remind you, again, that at this point the only issue we have to decide is this. Did the Appellant present a compelling argument for a re-hearing, and if any Board member believes this to be true, they may make a motion to re-hear. However, at this point in the proceedings, we may not address any other issue. I will now request members to offer any comments. Please. Do any of the Board members wish to offer any comments before I ask for a motion? MR. BRYANT-I do, Mr. Chairman. MR. ABBATE-Mr. Bryant, please. MR. BRYANT-This Appeal that we’re talking about, which (lost word) Zoning Administrator’s opinion in August, and then we had, we tried to re-open this thing in November, and at that time I was in favor of re-hearing this thing. Frankly, I think you’re absolutely correct, Counselor, when you talk about consistency. There really is 22 (Queensbury ZBA Meeting 6/22/05) no consistency between the August determination and the December determination, and you’re absolutely correct when you talk about consistency in the other cases that come before this Board where we don’t include space that’s not habitable, and I don’t know how we got there, but it’s something that we need to re-hear. MR. ABBATE-Any other Board members have any comments before I ask for a motion? MR. URRICO-Mr. Chairman, I’m in agreement with Mr. Bryant. I also believe that enough evidence has been presented to warrant a re-hearing. MR. ABBATE-Anyone else wish to be heard before I ask for a motion? MR. MC NULTY-As long, I hesitate to say anything, because I don’t want to get into the merits of the issue, but since we’re talking a little bit about habitable space here, there are, I gather, four pictures on the screen up there. The implication, the way they’re set up, is that there’s about three feet of space in the middle where a person could stand up. Is that an accurate representation? MR. LAPPER-Approximately, yes. MR. BROWN-These are not Town photos. These are provided by the applicant. MR. MC NULTY-I understand that. It just leaves me that it would be easy to slide that those towards each other and make it look like there was very little space there and I don’t have a picture that shows me what space is really in the middle. That leaves me questioning. MR. LAPPER-If we get the re-hearing, we will come back with more photos to address that. MR. MC NULTY-Okay. So we’ll get to that later, but I wouldn’t rely totally on the way those are, the way they’re represented as. MR. ABBATE-Well stated, Mr. McNulty. No problem. Anyone else on the Board have any particular comments they’d like to make before I ask for a motion? MR. STONE-I have a point of information I would like to ask of Counsel. Since Mr. Lapper refers to their inability to present additional information, after the public hearing was closed, and I was sitting as Chairman at the time, if I abstain from any vote, that doesn’t count? Does that count as a negative vote? MS. RADNER-You would be encouraged to not only abstain but to leave the room, because we need a unanimous vote of all members present. MR. ABBATE-Absolutely. I agree. MS. RADNER-If you don’t feel comfortable voting on this issue, you should recuse yourself and leave the room. MR. STONE-Okay. Then I will. MR. ABBATE-Thank you, Mr. Stone. That’s an admirable thing to do. I appreciate that. MR. MC NULTY-Mr. Chairman, I’ve got one further comment before we get to a vote. Looking at this, I’m inclined to agree with Mr. Kelly’s attorney that the issue here has nothing to do with whether what was built matches any plans. I think this is a spurious argument in this case. We did not consider that when we approved this Appeal originally. We looked at whether or not the area in the attic was additional floor area 23 (Queensbury ZBA Meeting 6/22/05) that should have been counted, and we also looked at whether or not the portion of that second story that crossed the setback line was an expansion of a nonconforming structure, and I haven’t heard any argument that leads me to believe otherwise at this point. MR. ABBATE-All right. Thank you, Mr. McNulty. Any other comments from the Board members before I ask for a motion? If there are no other comments, please listen carefully. Based on the argument presented by Counsel for the Appellant, for a re- hearing, is there a motion? I’m going to ask one more time, is there a motion? MR. BRYANT-I’ll make the motion, Mr. Chairman. MR. ABBATE-Mr. Bryant. MR. URRICO-Mr. Chairman, do you want Mr. Rigby to sit in on the vote? MR. ABBATE-Yes. I’m terribly sorry. Mr. Rigby, would you be kind enough to join us, please. It’s up to you. If you feel uncomfortable, you do not have to. We make a unanimous vote on the members who are present. LEO RIGBY MR. RIGBY-Is that okay, Counsel? MR. ABBATE-Have you signed a voucher for this evening? MR. RIGBY-I will. MR. ABBATE-Then sit down. MS. RADNER-You’ve been present and you’ve listened to all of the statements made, correct? MR. RIGBY-Yes. MS. RADNER-And you feel competent to vote on the issue raised? MR. RIGBY-Yes. MS. RADNER-Okay. MR. ABBATE-All right. Great. MOTION TO APPROVE REQUEST TO REHEAR NOTICE OF APPEAL NO. 04-2004 JOSEPH RIITANO, Introduced by Allan Bryant who moved for its adoption, seconded by Roy Urrico: 16 Sunset Lane. The applicant is requesting that the ZBA re-hear the referenced Appeal and consider additional information. This is primarily on the basis that the determination in August of 2004 and the determination by this Board in December of 2004 are inconsistent when it comes to habitable living space being applied to Floor Area Ratio, and also that policy, the determination by this Board in August of 2004 is inconsistent with many of the other applications relative to habitable space in these types of variances. So, for that reason, I move that we re-hear this Appeal No. 4-2004. Duly adopted this 22 day of June, 2005, by the following vote: nd 24 (Queensbury ZBA Meeting 6/22/05) MRS. HUNT-Before I vote, I’d like to hear the original determination. Do we have that somewhere? MR. BRYANT-The original determination? MR. ABBATE-I think I made the motion to deny, if I’m not mistaken. Is that what you want to hear? MRS. HUNT-I want to hear what you determined. MR. LAPPER-Craig’s determination. MRS. HUNT-I mean. MR. BRYANT-The original determination was that it was not an expansion of a nonconforming structure because the attic was not habitable space. MR. ABBATE-Correct. MR. BRYANT-And then it came before this Board in August 2004, and the Board voted to overturn the position of the Zoning Administrator and then Riitano came back in November of 2004 and requested this thing be re-opened, and it was rejected at that point. MR. UNDERWOOD-I think if you look at your, I can read it. Okay. “MOTION TO UPHOLD NOTICE OF APPEAL NO. 4-2004 CAFFRY AND FLOWER FOR MICHAEL KELLY, Introduced by Charles Abbate who moved for its adoption, seconded by Charles McNulty: 16 Sunset Lane. This appeal of the Zoning Administrator’s decision, the Appellant is appealing the determination rendered by him regarding the structure at 16 Sunset Lane. This evening Counsel has presented, in my opinion, overwhelming documentary evidence and has stated, given testimony, that in fact vertical expansion does constitute an expansion. It constitutes growth. The Appellant has also, in several other instances, based his appeal on, one, that the roof structure, independent of the unapproved front porch, and associated roof overhang constitutes expansion of a nonconforming structure, and violates the Zoning Codes Section 179-13-010.A.1 and 179-13-010.E, and as a result of these violations violates 179-13-010.F. That was the basis of the Number One, Summary of Grounds of Appeals. Number Two, he also indicates that the new unapproved roof structure, independent from the unapproved front porch and associated roof overhang violates front and both side setbacks, and he also stipulates that, Three, the second floor created by the new unapproved roof system should be included in the Floor Area Ratio calculation, and as such, it causes a violation of the Floor Area Ratio maximum allowed. Based on the documentation that was submitted and the verbal testimony before this Board this evening, Mr. Chairman and fellow Board members, I move that we approve the Appellant’s position that the Zoning Administrator did, in fact, err. Let me further add that the Appellant has also submitted documentation dated June 10, 2004, in which there was Exhibit A, B, and C, which is, in fact, a matter of record, as part of his original argument. Duly adopted this 25 day of August, 2004, by the following vote: th AYES: Mrs. Hunt, Mr. Underwood, Mr. Abbate, Mr. McNulty, Mr. Stone NOES: Mr. Hayes, Mr. Urrico” MR. ABBATE-Thank you, Jim. Mrs. Hunt, are you comfortable with that? 25 (Queensbury ZBA Meeting 6/22/05) MRS. HUNT-Yes, I am. AYES: Mr. Urrico, Mr. Rigby, Mr. Bryant, Mr. Abbate NOES: Mrs. Hunt, Mr. McNulty, Mr. Underwood MR. ABBATE-The vote count is four for a re-hearing and three against. Am I correct, Ms. G.? MS. GAGLIARDI-Yes. MR. ABBATE-Okay. Thank you. Counsel for the Appellant, please be advised, that failing to muster a unanimous vote of all present, your request for a re-hearing is denied. AREA VARIANCE NO. 47-2005 SEQRA TYPE II JOSEPH RIITANO AGENT(S): JONATHAN LAPPER, STEFANIE BITTER OWNER(S): JOSEPH RIITANO ZONING: WR-1A LOCATION: 16 SUNSET LANE APPLICANT HAS CONSTRUCTED A 1678 SQ. FT. SINGLE FAMILY DWELLING AND SEEKS RELIEF FROM THE MAXIMUM ALLOWABLE FLOOR AREA RATIO REQUIREMENTS AS WELL AS RELIEF FROM THE CONTINUATION REQUIREMENTS. CROSS REF. NOTICE OF APPEAL 09-2004, NOTICE OF APPEAL 06-2004, NOTICE OF APPEAL 04-2004, AREA VARIANCE 29-2004, AREA VARIANCE 89-2003, AREA VARIANCE NO. 26-2002 WARREN COUNTY PLANNING JUNE 8, 2005 LOT SIZE: 0.17 ACRES TAX MAP NO. 226.19-1-9 SECTION 179-4-030, 179-13-010 MR. LAPPER-Mr. Chairman, I would ask, at this time, if the Board would table our Variance, which is the next item on the agenda, until next month, so we can consider that in light of the decision tonight. MR. ABBATE-Counsel for Area Variance No. 47-2005 has requested that this appeal be tabled for a total of a maximum of 60 days. MOTION TO TABLE AREA VARIANCE NO. 47-2005 JOSEPH RIITANO, Introduced by Charles Abbate who moved for its adoption, seconded by Roy Urrico: 16 Sunset Lane. Until such time as Counsel may discover some new additional information to present to the Board. Duly adopted this 22 day of June 2005, by the following vote: cd MR. BROWN-Mr. Chairman, could I just ask? Do you plan on submitting new information or? MR. LAPPER-I’m not sure. We really need to consider. MR. BROWN-Okay. Then I wouldn’t table it for a specific date. I’d table it for up to a period of time, that if he submits new information, it meets the submission deadline. MR. ABBATE-Okay. AYES: Mr. Urrico, Mr. Rigby, Mr. McNulty, Mr. Underwood, Mrs. Hunt, Mr. Bryant, Mr. Abbate NOES: NONE MR. ABBATE-I believe the vote is seven to zero, and Area Variance No. 47-2005 is indeed tabled. 26 (Queensbury ZBA Meeting 6/22/05) MR. LAPPER-Thank you. MR. ABBATE-You’re very welcome. MR. BROWN-Mr. Chairman, could I just make a point about the two items that were first on the agenda tonight? MR. ABBATE-Yes. MR. BROWN-I think the Board should probably pass a resolution or entertain a motion to table those two applications, the Girl Scouts until such time as they submit new information, and the other one at the request of the applicant, the Hoffman application. MR. ABBATE-Okay. OLD BUSINESS: AREA VARIANCE NO. 37-2005 SEQRA TYPE II ADIRONDACK GIRL SCOUTS AGENT(S): TOM HUTCHINS, PE & MATT STEVES ZONING SFR-1A LOCATION 412 MEADOWBROOK ROAD APPLICANT HAS CONSTRUCTED AN ADMINISTRATION BUILDING (4,420 SQ. FT.) THE BUILDING WAS COMPLETED WITH A FRONT PORCH/RAMP TOTALING 1,098 SQ. FT. RELIEF REQUESTED FROM FRONT SETBACK REQUIREMENTS. 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 MR. ABBATE-Based upon a request by the applicant of Area Variance No. 37-2005, they’ve requested a table. MOTION TO TABLE AREA VARIANCE NO. 37-2005 ADIRONDACK GIRL SCOUT COUNCIL, Introduced by Charles Abbate who moved for its adoption, seconded by James Underwood: 412 Meadowbrook Road. Tabled for a period of 60 days. Duly adopted this 22cd day of June 2005, by the following vote: AYES: Mr. Underwood, Mr. Bryant, Mr. Urrico, Mrs. Hunt, Mr. McNulty, Mr. Abbate NOES: NONE ABSTAINED: Mr. Stone MR. ABBATE-Okay. I believe the vote is six to zero. If there’s no challenge, then Adirondack Girl Scouts, Area Variance No. 37-2005, will be tabled for a period of 60 days. NEW BUSINESS: AREA VARIANCE NO. 46-2005 SEQRA TYPE II JEAN M. HOFFMAN AGENT(S): WILLIAM KENNY, ESQ. OWNER(S): JEAN M. HOFFMAN ZONING: WR-1A LOCATION: 159 CLEVERDALE ROAD APPLICANT HAS CONSTRUCTED AN OVERSIZED BOATHOUSE WITH 1170 SQ. FT. SUNDECK AND SEEKS 3.5 FT. OF RELIEF FROM THE MAXIMUM HEIGHT REQUIREMENTS FOR SUCH STRUCTURES. CROSS REF. AREA VARIANCE 90-2004, SITE PLAN 50-2001, SUBDIVISION 15-2003, AREA VARIANCE 91-2001, SITE PLAN 15-2001, AREA VARIANCE 30-2001, SUBDIVISION 14-1999, AREA VARIANCE 60-1999 WARREN 27 (Queensbury ZBA Meeting 6/22/05) COUNTY PLANNING JUNE 8, 2005 LOT SIZE: 3.43 ACRES TAX MAP NO. 227.17- 1-9.11 SECTION 179-5-050 MR. ABBATE-Area Variance No. 46-2005, Jean M. Hoffman, has requested that that be tabled for a period of 60 days. MOTION TO TABLE AREA VARIANCE NO. 46-2005 JEAN M. HOFFMAN, Introduced by Charles Abbate who moved for its adoption, seconded by Joyce Hunt: 159 Cleverdale Road. Tabled for a period of 60 days. Duly adopted this 22 day of June, 2005, by the following vote: nd AYES: Mrs. Hunt, Mr. Stone, Mr. McNulty, Mr. Underwood, Mr. Bryant, Mr. Urrico, Mr. Abbate NOES: NONE MR. ABBATE-I believe the vote is seven to zero. If there’s no challenge to the vote, Area Variance No. 46-2005 will be tabled for a period of 60 days. Thank you, Board members. AREA VARIANCE NO. 42-2005 SEQRA TYPE II KEITH CAVAYERO & ELYSA BARON AGENT(S): CURTIS DYBAS OWNER(S): KEITH CAVAYERO & ELYSA BARON ZONING WR-1A LOCATION 87 MASON ROAD APPLICANT PROPOSES TO DEMOLISH AN EXISTING 1, 798 SQ. FT. 2-STORY, 4-BEDROOM SEASONAL RESIDENCE WITH A 242 SQ. FT. DETACHED GARAGE TOTALING 2040 SQ. FT. AND TO CONSTRUCT A 3 BEDROOM, 2 STORY SINGLE FAMILY RESIDENCE WITH ATTACHED GARAGE TOTALING 2959 SQ. FT. CROSS REF. AREA VARIANCE NO. 26-2005, SITE PLAN NO. 7-2004, AREA VARIANCE NO. 69- 2003 WARREN COUNTY PLANNING JUNE 8, 2005 ADIRONDACK PARK AGENCY YES LOT SIZE 0.22 AND 0.09 ACRES TAX MAP NO. 226.12-1-21, 226.12- 1-39 SECTION 179-4-030 CURT DYBAS, REPRESENTING APPLICANT, PRESENT; KEITH CAVAYERO, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 42-2005, Keith Cavayero & Elysa Baron, Meeting Date: June 22, 2005 “Project Location: 87 Mason Road Description of Proposed Project: The applicant proposes to demolish an existing 1,798 sq. ft. 2-story, 4-bedroom seasonal residence with a 242 sq. ft. detached garage and construct a 2,959 sq. ft. 3- bedroom single-family residence, with attached garage. The project will also provide for a new, on-site septic system and roof stormwater management system. The applicant proposes “hooking” two noncontiguous parcels (9,243 sq. ft. lakefront and 3,680 sq. ft. Eastside of Mason Road). The applicants have indicated that Warren County will allow hooking of the two parcels, creating one parcel of 12,923 sq. ft. Relief Required: The applicant requests 7.5-feet of relief from the 15-foot minimum side setback requirement, per §179-4-030 for the WR-1A, Waterfront Residential-1 Acre zone. As well as relief from the maximum FAR (.22), if combined parcels, FAR would be .23. Parcel History (construction/site plan/variance, etc.): 28 (Queensbury ZBA Meeting 6/22/05) AV 26-2005: Denied 4/20/05, Similar application as this, requesting 8.5-feet of side setback relief and 2% FAR relief. SP 7-2004: Approved 2/24/04, Proposed addition to boathouse and proposed addition to existing residence. AV 69-2003: Approved 9/17/03, relief from FAR requirement for proposed addition to existing residence, and maximum height and side setback relief for the existing boathouse. BP 2004-79: 3/10/04, 678 sq. ft. boathouse. Staff comments: This proposal is a 165 sq. ft. reduction in size of the residence (from 3,124 sq. ft. to 2,959 sq. ft.) than was proposed in the AV 26-2005 request. This results in 1-foot less relief from the side setback (was 8.5-feet, proposed 7.5-feet) and 1% less FAR (combined parcels, was 24%, now 23%). Again, the proposal places all the development, the 2,959 sq. ft. residence and the septic system on the lakefront lot (.21-acres), the vacant lot would remain as open space. This is a redevelopment, the lot and buildings should be made as compliant as possible. The proposal would have the residence situate 18.5-feet from the N. neighbor’s residence, and 18.5-feet from the S. neighbor’s residence. A feasible alternative would be redesigning the new residence, narrower and longer so that it does not encroach on the (S) side setback. If the vacant parcel was also a lakefront lot transferring the density might be justified, but this lot is across the road and will not help to lessen the potential visual impacts of this 2,959 sq. ft. structure from the lake, nor will it lessen the apparent overdevelopment of the shoreline by permitting all development on the lakefront lot. The applicants have submitted a request form from Warren County to consolidate the parcels. Verification of this from the County should be submitted.” MR. UNDERWOOD-“Warren County Planning Board Project Review and Referral Form June 8, 2005 Project Name: Cavayero, Keith & Baron, Elysa Owner(s): Dr. Keith Cavayero & Dr. Elsya Baron ID Number: QBY-05-AV-42 County Project#: Jun05-23 Current Zoning: WR-1A Community: Queensbury Project Description: Applicant proposes to demolish an existing 1,798 sq. ft. 2-story, 4-bedroom seasonal residence with a 242 sq. ft. detached garage and construct a 3-bedroom, 2-story 2959 sq. ft. single family residence with an attached garage. Tax Map Number(s): 226.12-1-21 226.12-1-39 Staff Notes: Area Variance: The applicant proposes to demolish an existing 1,798 sq ft (living area) seasonal residence and a 242 sq ft detached garage to construct a 2843.06 sq ft (living area) 3-bedroom single family dwelling. The new home is to be located 7.5 ft from the south property line, where 15 ft is required. The information submitted shows the location of the existing and proposed structure, septic system location and capacity, building elevations, and storm water management. The County Planning Board reviewed a similar application at the Apr2005 mtg where this proposal is slightly smaller – the applicant pulled the application at the local level. 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 06/10/05. MR. BRYANT-Mr. Chairman, I do want to correct the Staff notes relative to this. It indicates under Staff notes that Area Variance 26-2005 was denied on 4/20. It was actually voluntarily withdrawn by the applicant, if you read the minutes. MR. ABBATE-Thank you, Mr. Bryant. Your modification is noted, and I’m sure the Zoning Administrator has noted that as well. Would the petitioner of Area Variance 42- 29 (Queensbury ZBA Meeting 6/22/05) 2005 please come to the table, speak into the microphone, and for the record identify yourself, your place of residence and/or your relationship with this appeal. MR. DYBAS-My name is Curt Dybas. I reside at 19 Deer Run in Lake George, New York, and I am an agent for the owner of the property. MR. ABBATE-Okay. Thank you. DR. CAVAYERO-My name is Keith Cavayero. I reside at 12 Willowbrook Drive in Saratoga Springs, and I am the owner of the proposed property at 87 Mason Road. MR. ABBATE-Thank you, sir. If you are prepared, please start. MR. DYBAS-Thank you. The first thing, I want to thank the Board for correcting the Staff comments. I was going to bring that up first thing. Second item of business is that you have in your packet the application that was made to Warren County for a combination of the parcels, and you should also have in your packet, I delivered to the Zoning Office, the Warren County Real Property approval. So the two parcels in question are now one, and are under one tax map number, which was one of the requests that this Board made at the April review of the previous variance. The second item that they wanted us to look at was reducing the FAR ratio. We went back and looked at the building in question and reduced area on the second floor, and removed a foot of building from the south side of the structure and went from an 8.5 request of relief to the 7.5 foot request. The FAR ratio is now at .229, which is approximately, well, there’s a four percent increase over the twenty two percent requirement. Also, I’d like to mention to the Board that the project still will have a new septic system, and doing survey work of my own on the site, there is a magnificent maple tree, if anyone’s visited the site. It’s grade is such in a location that we will be required to put the septic field on the parcel on the east side of Mason Road, because we will obviously tilt the tree if we try to put it where it’s noted on the site plan. We are still going to manage stormwater on the site. We’re still at approximately 74% permeable area. The overall width of the structure, one thing the Staff comment says is the visual impact from the lake. This building that we’re proposing is about six and a half percent wider than the existing that’s there, and it’s about seven and a half percent higher than what’s there, and whether or not the garage is located on this parcel, as far as the visual impact from the lake, it makes absolutely no difference, and as far as the profile view from the road, it makes absolutely no difference. The only visual impact would be from the two sides elevation, and since we have 18 and a half feet to the neighbor’s parcels, which are, as you can see, approximately 18 and a half feet away, the side elevations will not be visible unless you remove those structures on either side. As far as the openness and the view down through from Mason Road, I think it’s more important that the Board consider the removal of the existing one car garage, which is right up by the road, as far as the visual impact down through the lake, and also with the neighbors, we’re maintaining a 50% openness down through to the lake. I think we’ve made every attempt to meet the requirements that were brought before this Board two years ago in July of 2003, with regard to development of a garage on the east side of Mason Road. Several neighbors, and I read through the minutes last evening, and Mr. Stone mentioned the problems that were developed over the Mooring Post Marina when he came on the Board, and also I read Mr. Weatherbee’s comments about fragmented development, contrary to zoning, and the concerns of Mr. Wheeler, a neighbor, as far as runoff from this garage, and if you recall, we came back in September of 2003 and removed any development from the parcel on the east side, at the request of this Board, and again, this proposal that we’re making, all the development is on the lake side, west side parcel now, and although we’re considering the entire parcel as part of the FAR, whether or not the garage is on this west side parcel or we go back and put it on the east side parcel, the FAR remains basically the 22%. It’s a matter of where it goes, and as I’ve mentioned before, their profile view, it doesn’t matter from either the lake or the road. I think we have made a modest proposal. There is approximately, when you consider New York State 30 (Queensbury ZBA Meeting 6/22/05) definition, there’s about 1330 square feet of occupied space in this structure, and you might say, well, where did it all go. You lose 1/3 for circulation, hallways, walls, the garage, everything else. So as far as someone saying that this is a mansion, I don’t believe that’s what we’d call it. There was a mention by one Board member at the last presentation that the Great Room is 22 by 35. Well, inside it’s 730 square feet , and that’s the only occupied space, by definition, on the first floor, and there’s 500 and some square feet of occupied bedroom space on the second floor. So we don’t think that this is an outrageous proposal for this parcel, given the lot widths and what’s before the Board. Keith, would you like to add anything? MR. ABBATE-All right. Thank you very much, gentlemen, that was very informative. Do any of the Board members have any questions? MR. BRYANT-I have a question. I’m looking back through the minutes of April 20, th and I’m looking at Mr. Rigby. The house is too large for the property. Mr. Underwood, I don’t think any of us would be adverse to replacing that house as it exists, but I think an expansion this side would be extraordinary. Mrs. Hunt, a compliant building could be constructed, and I, of course, talked about the Great Room. I mean, basically the difference in this application and the other is one foot away from the side setback. You’re talking about it’s not an extraordinary sized house. Nothing has really changed. The square footage of the building has changed only 200 square feet from this application in April. MR. DYBAS-Well, in dealing with a lot that is 12,900 square feet, that reduction is one and a half percent in the FAR ratio, and we are approaching 22. MR. BRYANT-I asked the question, last time, and I’m going to ask the same question. You’re starting from scratch. You have the opportunity to build a compliant building. Why aren’t we building a compliant building? MR. DYBAS-Because the client desires to have the lake frontage which he is, I believe, entitled to. MR. BRYANT-Well, I’d like to have a bigger house, too, but I have a small lot, and you can only build, you know what I mean? It’s only so. MR. DYBAS-Mr. Bryant, the Board requested that we combine these lots, and that request goes back two years. We have combined these lots to try to make conformance to the 22% FAR ratio, which we are trying to do. MR. BRYANT-Why don’t you just come up with the correct Floor Area Ratio and setback and you don’t have to be here? That’s my question. That was the whole discussion at the last meeting. Went through everybody’s statements, everybody said it’s too much house for the lot, and nothing has changed. I think Mrs. Hunt made a point that combining these two lots really. MR. DYBAS-Mr. Bryant, can I bring up something that was the third item that was read into the record pertaining to this parcel? MR. BRYANT-Sure. MR. DYBAS-In September of 2003, we were granted a variance to reconstruct the existing building with an addition on the north side, and the variance was granted for the FAR ratio only, and we left the existing one car garage on the property. That variance, because of whatever reason, expired. I came back to the Board in April, and this building has inherent structural, mold, and entity deficiencies which I said made it probably economically infeasible to reconstruct, but if you put enough money in anything, you can reconstruct it. Going back to the original variance that was requested, 31 (Queensbury ZBA Meeting 6/22/05) we had a, I believe, 419 square foot addition on this building, which was in compliance. We were in height compliance with the certification that’s given on the survey. We now have combined the lots. We are permitted to build an 800 square foot garage on the east side, and reconstruct this house with this addition, and not make any variance request of this Board, and we are trying to comply with the wishes of the neighborhood, and not develop the green space. That’s why we are here. Now, we have this opportunity, and if the Board so wishes, we would withdraw the variance and reconstruct and build an 800 square foot garage on the east side parcel and just go and apply for a building permit. Now am I correct in my assumptions as far as not requiring a variance if I make all those regulations part of the building permit? MR. ABBATE-Is that correct, Mr. Brown? MR. BROWN-Yes, I think if you come in with a plan that meets all the floor area ratio requirements and setback requirements, yes, even if it’s across the street, you meet the setback and size requirements, you can, yes, just a building permit. MR. BRYANT-Fine. MR. ABBATE-He can get a building permit. Well, that sounds like a feasible alternative to me, unless I’m missing something. MR. DYBAS-Well, the thing that we’re trying to do is, we heard the public speak out in July of 2003 that Mr. Weatherbee was very eloquent in saying he did not want to see any development in the green space. Mr. Wheeler, he was concerned about the runoff that would occur by building a structure there. Mr. Stone made a reference to the Mooring Post. We tried, by this proposal, to meet those requirements. Now we’ve been, the original proposal had the development across the road and was rejected, and I have it in the minutes that they recommended that we develop, put all the development on the lake lot, which we did, and when we came back before the Board, we’re putting all the development back on that lake lot, and now you’re telling me, no, we’re going to go back to what we did two years ago. We’re trying to meet the public demand. MR. ABBATE-Don’t say that. We’re really not telling you no. What you’re hearing is the opinion of one of the Board members. We still have six Board members to go yet. MR. DYBAS-Fine. MR. ABBATE-So we’re not taking a position on that. DR. CAVAYERO-Yes. I would like to just add in that we strongly did take the Board’s recommendations and we spent a lot of time, I spent a lot of time with Mr. Dybas reviewing this, my wife and myself. Although we had a lot of outcry in letters, no one, we were never approached individually, which we are very approachable individuals, but we were never approached, other than what was stated in these hearings and letters, and we did listen to all that. We did listen to the Board, and that’s where these accommodations, on a lot this size, this gentleman over here is saying that that’s not really a big compromise. We just made the house 200 something square feet smaller. When you’re dealing with a three bedroom, one room family room, to me, that’s substantial. MR. BRYANT-Yes, but the reality is, and let me just respond to that, because you’re making it seem like I’m not acknowledging your changes. All I’m saying is you have the opportunity to build a compliant structure. It’s not that the lot is deformed and you can’t. DR. CAVAYERO-That is true, but it doesn’t sit right compared to the other houses on the lake. It actually wouldn’t look right compared to what’s there, but more 32 (Queensbury ZBA Meeting 6/22/05) importantly, if we go back, this is why there is a Zoning Board. This is why you gentlemen are here tonight, because if we didn’t come in front of this Board, and we just applied for a permit, we wind up with the same, the northern, the southern point of the front of the house stays where it is. The southern portion, now it becomes two feet bigger than what we’re proposing, because it is conforming and we’re adding to a conforming area which we are able to do with a permit, and now you have a wider than what we’re even asking for, and we’re trying to listen to all the feedback from everybody and make these accommodations. I mean, that’s why we’re here trying to, that’s why we withdrew the application last time. We went back to the drawing board. We tried to think how we could accommodate our neighbors, how can we accommodate this Board, and how can we get what we want, and we feel that we’ve really made a strong attempt to satisfy all these needs. If the Board had, like I said, if they put us in a position with the neighbors or whatever, now your green space is going to be encroached, and again, I do not need a variance, just apply for a permit and put up an 800 square foot garage on that property on the east portion of the lot, and extend the house to the width, which is even wider than what we’re discussing now. So that’s why we’re here tonight, and we’re trying to listen. We tried to listen, and we’re trying to answer everyone’s needs, and I know certain people are unhappy, and I don’t think the neighbors truly understand, you know, they’re coming out, speaking out. I’m sure they’re going to have a lot to say, but I don’t think they understand that, without coming in front of this Board, what we can do, and we’re here to try and make that compromise, and that’s why we’re here for the third time. MR. ABBATE-That was well spoken, and I think you cleared the air as to what you may or may not do, and, you know, rest assured that the ZBA is a vehicle for the public to use. Definitely, guaranteed that. DR. CAVAYERO-Right. MR. MC NULTY-Along that line, I guess a question for Staff, to make sure I’m clear on this. Is this a conforming house now? MR. BROWN-It’s a pre-existing, nonconforming house. MR. MC NULTY-Okay. MR. BROWN-On the southern side it doesn’t meet the minimum setback requirement. MR. MC NULTY-All right, and the variance that they requested back several years ago has since expired? MR. BROWN-For Floor Area Ratio, that’s correct. MR. MC NULTY-So if they were to simply put an addition on this house now, they’d need a variance for an expansion of a nonconforming structure? MR. BROWN-Only if it was more than 50% of the square footage of the original house. You can expand a nonconforming structure up to 50%, as long as that expansion meets the setbacks, and I think, and I’m certainly not speaking for the applicant, but I think what I heard is that on the northern side of the building, they could construct an addition that meets the setbacks, stays under the Floor Area Ratio. The southern portion of the house stays exactly where it is, versus their proposal that they have in front of you where they’re going to move the house a foot or two feet. MR. DYBAS-One foot eight inches. MR. BROWN-Yes. Two feet to the north. I think that’s what they’re saying what the alternatives are. 33 (Queensbury ZBA Meeting 6/22/05) MR. MC NULTY-Okay. So their alternative, if we should not approve this variance, one of the alternatives, would be to do that kind of an expansion, not a tear down. DR. CAVAYERO-Right, correct. MR. BROWN-Correct. MR. STONE-Just for confirmation, again. It’s conforming on the north side, now, and would be conforming on the north side. It’s not conforming on the south side, and would be less nonconforming if they built this? MR. BROWN-It would be less nonconforming? Yes, I guess that’s it. It would be more conforming with the proposal they have before you, yes. That’s correct. MR. STONE-More conforming, yes. MR. ABBATE-Any other members of the Board have any questions? MR. URRICO-I guess my point from the last time still remains the same, and that is, we seem to have a choice of either having green space on one side of the road or the other side of the road. On the one hand, we can keep the green space on the northern side of the road, by not having a structure there, okay, the contiguous property that has been hooked in, but where the current house exists, we’re taking away some green space that was there before, and that’s the problem I’m having. You’re entitled to put a garage there, but the point about having green space there is taking one for the other. DR. CAVAYERO-Let me interject. We’re also tearing down that garage, which is a real eyesore. That now comes down, which is at the edge of the road. Then you’re going to gain that green space back. MR. URRICO-But it’s on the other side of the road. MR. STONE-No, that’s on the lakeside. MR. URRICO-The same side, that’s right. MR. DYBAS-If I may interject. Another thing is the visual impact that one must relate to. You’re looking at the back of the existing structure right now. The actual cross section of view that you’re looking at, whether the garage is in front of that or not there, that silhouette remains the same when looking at the road, from when you’re standing on Mason Road and looking at the house, and the green space that’s created, as Keith said, when you tear down this garage, you create about 35 and a half feet of openness, up to the back of the garage. MR. STONE-Is the house going to be, new house, if allowed to build, is going to be as high or lower or higher than the existing structure? MR. DYBAS-The existing structure is certified approximately 26 feet. The new residence would be 28 feet or less. MR. STONE-Under the 28, but slightly higher. MR. DYBAS-Slightly higher than what’s there because right now the existing house has nonconforming ceilings, Number One, ceiling heights are nonconformance in the building as far as New York State Code is concerned. MR. STONE-Thank you. 34 (Queensbury ZBA Meeting 6/22/05) MR. UNDERWOOD-Craig, what’s the difference between the FAR in the present house and the one proposed, without the hooked lot? MR. BROWN-I think maybe Mr. Dybas could probably answer that question easier. I don’t have the plans in front of me. MR. UNDERWOOD-They must be over, they must be right at the 22% or over it already, what’s there. MR. BROWN-The existing Floor Area Ratio? MR. DYBAS-The existing Floor Area Ratio is. MR. BROWN-On only the lake side lot? MR. DYBAS-With what is on there now is like 22 and change. MR. BROWN-Not counting the lot across the road? MR. DYBAS-Not counting the lot across the road, including the garage and the area that’s in the existing structure. MR. BROWN-So it’s over 22%. MR. DYBAS-Slightly over, yes. MR. BROWN-And your request tonight is slightly over 22%. MR. DYBAS-Well, I don’t have a. MR. UNDERWOOD-You’re going to be 23 with the lot on the other side. MR. DYBAS-If someone has a calculator. MR. ABBATE-Probably 23% with that lot. MR. STONE-You’ve got 22.9 on the drawing. MR. DYBAS-No. I think the question was asked, what is the existing FAR ratio of that lot, and the existing house is, and garage, is 2040 square feet, and if I’m smart enough to run this thing and divide it by the existing lot, is 22.070, 22%. MR. ABBATE-I was close, all right. DR. CAVAYERO-And we’re asking for 22.9. MR. ABBATE-Yes, okay. MR. DYBAS-So by combining the lots we increase the site area to 12,923 square feet. MR. ABBATE-Okay. MRS. HUNT-But if you just consider the lakefront lot. MR. DYBAS-That’s no longer just one lot. MRS. HUNT-All right, but what you’re going to build on the lakefront is .31% FAR ratio. 35 (Queensbury ZBA Meeting 6/22/05) MR. DYBAS-But that’s not how you can calculate it now, ma’am. MRS. HUNT-Well, all right, that’s how much of the property is going to be taken up by building. MR. DYBAS-No, the property is one lot now. MRS. HUNT-I’m talking just the lakefront part. MR. DYBAS-You can’t do that. Because conversely, if you do the second option of renovating an addition and building an 800 square foot garage on the east portion of the parcel, it’s still 22%. It’s a matter of what you’re considering property, you know, what is the lot now? The Board has requested that we combine these parcels into one lot, which we did, and this goes back two years, as far as the Board would not consider this variance until we combined the lots, which we have done that. MRS. HUNT-Yes, but they are not both on the lakefront. MR. DYBAS-There are many parcels on Lake George that have, are divided by right of ways and roads, and I don’t think the Board, I could be incorrect in this statement, and I would stand corrected. I don’t think the Board, for instance, when they consider a lot with a road running through the front of it, as just the property on the lake as being buildable. They consider the entire parcel. You consider that as far as the setbacks because it’s a public right of way, but once you hook or join lots, it becomes one. MRS. HUNT-It’s just that that parcel that you added is not on the lakefront. So the density of the lakefront section would be much more than it is now. MR. DYBAS-If you only considered that as the case, but what there is being gained in developing the first proposal for this variance that’s on the table, the eastern lot will always remain green. It can never be built on for any way, shape, form or manner because of the FAR ratio. So as far as green space, it’s guaranteed as always being green. It can never be developed. MR. STONE-And it can’t be subdivided either, because it would be a nonconforming lot. MR. DYBAS-That is correct. So you have locked it. By doing this, my clients have committed themselves to combining these lots, but it also gives you the right now, if you have the primary residence on the lakeside, of building an accessory structure on the east side, whereas you could not do that before with two separate lots because you can’t have an accessory structure without a primary structure. MR. ABBATE-All right. Thank you. Do any other Board members have any questions? If there are no additional questions, I’m going to open up the public hearing, and again, to ensure a fair and open process, the public hearing is open for Area Variance No. 42- 2005, and the Board invites public comments on the appeal. We ask you to please be crisp, organized, and your statement will be limited to five minutes, and I ask Ms. G. to please monitor the time. Do we have any public input concerning Area Variance No. 42- 2005? PUBLIC HEARING OPENED JAMES FINNECY MR. FINNECY-I am James Finnecy, and live at 82 Mason Road. I spoke at the prior meeting against this application, and my position remains the same. The Town had good reasons when it enacted the current regulation restricting improvements on 36 (Queensbury ZBA Meeting 6/22/05) property to a ratio of 22% of the lot size. Such regulations, along with setback requirements, preclude neighborhoods from duplicating the overcrowding that exists on Rockhurst, which, in some places, looks almost like an urban street of row houses. Approval of this variance application, even for a minor increase, would set a precedent which makes future requests more difficult to deny. MR. ABBATE-Thank you, sir. TERRENCE HOLOHAN MR. HOLOHAN-Good evening, sir, Staff members. My name is Terrence Holohan. I reside at 200 Sophie Lane, Altamont, New York, and I own the property adjacent to the property that’s being discussed tonight at 329 Cleverdale Road. As a matter of fact, it shows in one of these videos. It has been brought to my attention, through my own investigation, that there is a potential difference in the, one of the boundary lines of the adjoined property that’s been added to the parcel. When I purchased the property approximately 16 months ago, I was lead to believe that the property was a certain size and a certain shape, and all the information that I got that went with those statements made me think the property line was at a certain spot, and upon pulling some dimensions that I could apply for a building permit to build a deck in my own property, I’ve realized that the property line has another set of markers on it, and those set of markers are a set of markers that were put in place by a survey that was conducted on the parcel that’s being discussed tonight. So, in my estimation, I actually went and saw my lawyer yesterday, and I actually went and saw my lawyer yesterday, my attorney, Attorney Bruce Carr in the Village of Lake George. You may be familiar with him, and he has advised me to get a survey of my property to re-establish where that back line truly exists. There’s a difference of approximately 350 square foot of space. If the outcome of the survey is in Keith and Elysa’s favor, their square footage and their FAR’s would remain the same. If the outcome of the survey is in my favor, it would reduce their square footage of the new adjoining lot by approximately 355 square feet, and that’s what I had to say about it. As far as my aspirations for their development of their land, I don’t see, from listening to everything that I’ve listened to tonight, I don’t have any, as a neighbor, as a very close neighbor, I don’t have any complaints or any issues with their aspirations on the development of their property, the changes they want to make, with the requests or their options, as far as where they place anything that they wish to do, but the issue that is, that has been brought to the forefront is the fact that the property line is in question, on the, for their property, it would be the eastern property line, on the adjoined lot that was added to the lot across Mason Road. MR. ABBATE-For the record, so we get it straight, sir, you are suggesting that there may be a possible overlap of boundary lines? MR. HOLOHAN-Yes, sir. MR. ABBATE-Okay. Well, one of the things we could do to satisfy all the individuals, if indeed we are going to approve this, is put a condition. MR. HOLOHAN-Sure, absolutely. MR. ABBATE-Okay. That way that will be fair to all parties involved, including the Town as well. So I’m glad you brought that to our attention because it’s critical. MR. HOLOHAN-Yes. It is not my attempt or my desire to slow down any progress in this, especially after being here tonight and seeing how the Board runs its operations here tonight. I can see it’s very technical in nature. It can be rather stressful at times. I can see that, but it has to be exact. MR. ABBATE-Is that a compliment, for the record? 37 (Queensbury ZBA Meeting 6/22/05) MR. HOLOHAN-Yes. I’m actually from Guilderland, and I very oftentimes watch the Guilderland Town Board in action, and, for the record, you guys have got it all over the Guilderland Town Board. MR. ABBATE-In all seriousness, you’ve done us a valuable service by bringing that to our attention, as well as a service to the Town as well. MR. URRICO-Could I ask a question? Which property do you own? MR. HOLOHAN-It’s 329 Cleverdale Road. It’s actually that one right there. MR. STONE-It backs on that one. MR. HOLOHAN-Right. Yes, there’s a fence that exists there, and there are markers there that exist that are about five feet behind that fence. MR. URRICO-Okay. MR. HOLOHAN-Now, whether those markers have any meaning at all or not, I don’t know. I know that they are old looking markers. The pipes have been driven in the ground. They’re the older, larger sized pipes that were used in surveys that were done whenever that generation of pipe size was used. Now on this new survey that’s done, you can tell, even the pipe dimension has gotten smaller, and for whatever reason, the line was moved. MR. ABBATE-Well, there will be a safety net included, in the event that there is an approval, I can assure you. MR. HOLOHAN-Yes. For my purposes, I need to know where that line is, because I’m going to be coming to the Zoning Board. MR. ABBATE-And there’s one other thing you also have to know, your five minutes is up. MR. HOLOHAN-Well, thank you. MR. ABBATE-Thank you very much. I appreciate that, sir. MR. HOLOHAN-Thank you. CHRIS NAVITSKY MR. NAVITSKY-Good evening. Chris Navitsky, Lake George Water Keeper. First, for the record, I’d like to correct my addressee on the Chairman. I addressed it to the previous Chair, Mr. Abbate. I didn’t realize you were the new Chair. It wasn’t on the website. MR. ABBATE-No offense taken. MR. NAVITSKY-Okay. My concern is regarding the stormwater management on the proposed project. I come not in suppor4t or against the application, but again, I feel that under Section 179-14-020, that the Zoning Board of Appeals can impose conditions to provide site plan review usage and protect the best interest of the surrounding property neighborhood and the Town, and what I’m saying is I would like the project considered as if it was new development, and have stormwater management on the entire structure, not just the new impervious. I discussed this with Staff today, and it’s my opinion that, even if they take a look at the new impervious, it’s greater than 1,000 square feet, and 38 (Queensbury ZBA Meeting 6/22/05) they fall about 40% short of what they need, based on one and a half gallons per square foot. They need approximately 1850 gallons. They’re providing around 1100. What would that mean? That means increasing the drywells possibly from two to three, or increasing the size of the drywells themselves, larger diameter. So, again, I would encourage the Board to take a look at this and put a requirement on requiring stormwater management on the entire development, not just the new impervious structures. Thank you. MR. ABBATE-Thank you for your input, appreciate that. Do we have any other public input? There doesn’t appear to be any other public input. MR. UNDERWOOD-I have one letter. MR. ABBATE-I’m going to ask the Secretary to read into the record a letter that we’ve received, please. MR. UNDERWOOD-There was one letter received on June 20, 2005, RE: The proposed construction at 87 Mason Road, Cleverdale, NY “A proposal has been made by the applicant to join two parcels, located on either side of Mason Road, with the eastern portion as an accessory and the western portion (87 Mason Road) as the building lot. Merging these two parcels does not decrease the density of the construction on this lakeshore lot. It is merely a subterfuge. Lot redevelopment should conform with the regulations. Density and negative visual impact on this sixty foot wide lot have not been mitigated. There are three bedrooms and three bedrooms planned. A fairly large septic system will be required. Open land area is needed for evaporation and to avoid overflow and contamination of the lake i.e. our drinking water. The regulations were written with specific floor area requirements for good reason: to prevent just this sort of overcrowding. If a large, well designed, beautiful home is desired, then it only stands to reason that a large well landscaped lot should be purchased to accommodate this home! This lot is 60 feet wide, less than ¼ acre and is just too small for what is proposed. This Board surely realizes that there will be many more of these requests in the near future, and any precedent that you set now will make it much more difficult subsequently to follow the Code that has been written. Joan A. Robertson, year round resident 286 Cleverdale Road, Cleverdale, NY” MR. ABBATE-Okay. Thank you, Mr. Secretary. I believe you wanted to make a statement? DR. CAVAYERO-I believe there’s another letter by the direct next door neighbors, Mr. and Mrs. Tabner, on file. MR. UNDERWOOD-Was that from the old meeting? DR. CAVAYERO-That was from the last meeting. MR. BROWN-Just for matter of the record, if it was from a previous application submitted under a previous application number, it wouldn’t automatically be transferred to this file. So if it wasn’t resubmitted, it might not make it to the file. DR. CAVAYERO-What I’d just like to interject, that it was a very positive letter in favor of the project, from the direct north neighbors of the project, on the lakeside. MR. UNDERWOOD-I’m sorry. I don’t have that one. MR. ABBATE-That’s noted for the record. Okay. Thank you. DR. CAVAYERO-That’s Mr. and Mrs. Tabner. Thank you. 39 (Queensbury ZBA Meeting 6/22/05) MR. ABBATE-Now you wanted to make a statement, I believe. DR. CAVAYERO-No. Again, I’m hearing all the statements here, and again telling the Board we did really try to meet all these needs and make these accommodations, and not revert to, you know, keeping the open green space and keeping, making the nonconforming a little less nonconforming and answering these questions and trying to get, satisfy all parties. That’s how I want to close on that note. MR. ABBATE-Okay, and I thank you so very much, gentlemen, for your input. MR. DYBAS-This matter of the survey, we were discussing it out, and I agree with the board, it has to be resolved. We’re only going by a certified survey from Matt Steves, which agrees with the Warren County tax maps. Where this is, I don’t know, but it will be resolved. MR. ABBATE-Thank you. Thank you very much. Do we have any other public input? If not, I’m going to request our ZBA members to offer any commentary if they have any, and do we have a volunteer? Well, let’s start with Mrs. Hunt, please. MRS. HUNT-All right. Thank you. I think I made my point clear that joining these two parcels does not mitigate the effect of the structure on the lakeside. I think it is overdevelopment of that size lot, and I would be against it. MR. ABBATE-All right. Thank you, Mrs. Hunt. Mr. Bryant, please. MR. BRYANT-Going back to the minutes, I think Mr. Stone was the only one that was really gung ho about the hooking. Mr. Urrico was opposed. I was opposed. So, you know, I think I made myself clear back in April. I think it’s too much house for the lot. You’re an architect. You could have designed something that would be totally compliant and you wouldn’t have to be here. It wouldn’t be necessarily less comfortable, but it would be compliant, and I’m of the same opinion, that I think that’s the feasible alternative. MR. ABBATE-Thank you, Mr. Bryant. Mr. Stone, please. MR. STONE-Well, I’ve been referred to a couple of times tonight, and I’m usually very concerned about the lake. However, I know that new construction will protect the lake better than old, modified construction, because obviously septic has to be brought up to Code. I’m also aware that the visibility from the lake is probably going to be slightly improved because the house isn’t going to be quite as wide at the current house. It may be a little bit higher by a half a foot. One of the things we do get concerned about is sight lines from the lake. I’m also pleased that this lot across the street is going to be taken out of circulation, in a sense, and it will stay green and certainly will benefit the neighborhood, and that’s one of the things that we have to be concerned with. The fact that the garage is coming down is going to have a marked effect on the neighborhood and the visibility of passersby. The new garage is obviously going to come closer to the road than the current house is, but it doesn’t bother me very much. I’m inclined, unless I hear some dramatic comments from people, I’m inclined to say that the benefits to the applicant, the benefits to the area, outweigh any detriment. MR. ABBATE-Okay. Thank you, Mr. Stone. Mr. McNulty, please. MR. MC NULTY-Well, this is a close call. In some ways there’s not a lot of difference between the house that’s there now and the house that’s being proposed, as far as the visibility to the lake, visibility from the lake. I don’t like approving a variance in that area, but my first reaction is, as was mentioned earlier, that Rockhurst is wall to wall. We don’t have that kind of wall to wall in this portion now, and I don’t want to encourage that or allow it, if I can possibly avoid it. So my gut first reaction would be to 40 (Queensbury ZBA Meeting 6/22/05) say no. On the other hand, there’s going to be some site improvements in some of the ratios and setbacks with the new proposed house. It will get the garage that’s there now out of there, which certainly is a visual improvement. The new proposal would avoid putting that garage on the other side of the road, which I think is a plus also. Given all that, and given that, in spite of what our natural inclination is on this Board, allowing or disallowing one variance does not establish a precedent that should be considered on the next variance. Variances, Area Variances are considered independently by themselves each time. Given all that, I think I’m inclined to agree with Mr. Stone that there’s certainly a benefit to the applicant. The applicant can get what he would like to have, but I think in some ways there is a also a benefit to the neighborhood. While the neighborhood might prefer, and the rest of us might prefer the existing house to be torn down and something half that size built there, that’s not what’s going to happen. So we’ve got to make the judgment based on the alternatives that are presented to us, and I think in this case the new proposal on the whole is going to benefit both the applicant and the neighborhood in the long run. So I’ll be inclined to approve. MR. ABBATE-Thank you, Mr. McNulty. Mr. Underwood, please. MR. UNDERWOOD-I would have to place my vote with the earlier people who spoke this evening. I still think that the hook in to these two lots is not a great idea. I don’t think it has any bearing on the impact on the lake. I think that what’s being proposed here, that the square footage proposed is a gain of over 1,000 feet of impermeable area on that lakefront. I think also that rather than building the garage attached to the structure, I would rather see it on the other side of the road, frankly speaking, because I think it has less of an impact, even though it will be the only garage on the street there, on that side of the road. I think that the reserve area behind the house could be used for the septic system, which would greatly increase it’s distance from the shore of the lake. I think as proposed in the construction plan and plot, it’s only going to be 50 feet or so from the water, which seems absolutely ridiculous, and I think going, dropping from four bedrooms to three bedrooms is a good idea, but, you know, three toilets on there and there bathrooms, I don’t know if those are three full baths on that house. I assume that they’re not, but still think that it’s going to be a huge impact as far as the septic future on that proposal. It’s going to be right on the property line where the septic field is going to be, and as mentioned by one of the neighbors, you do have to think about where the water goes, and in a wet year like this, I think it’s very apparent that the sub soils being as thin as they are up there aren’t able to handle the amount of flows that are produced, and it’s just a matter of time before you run into failures when you chock a block full of houses that close together. So I would not be in favor of it. MR. ABBATE-Thank you, Mr. Underwood. Mr. Urrico, please. MR. URRICO-First of all, I do appreciate the applicant, the effort that’s been made in trying to improve or change the application. However, I think in looking at the test, which is to provide minimum variance necessary, and looking at the criteria, I really think, we ask whether the benefit can be achieved by other means feasible to the applicant, you can. It may not be a great, it’s a tradeoff, but there are other feasible means, smaller house, moving the garage, those are feasible means. The ones that concern me, the one in particular is the undesirable change in the neighborhood character, and I think, here’s where, yes, you have, as far as the Floor Area Ratio, you’ve balanced it by hooking the properties together, but it does not change the visual impact, and the visual impact, to me, is what determines what the character of the neighborhood is, and that, to me, really comes down on the negative side quite severely in my estimation. I don’t see any adverse physical or environmental effects, but I do think this has been self-created, and so I would be on the negative side on this. MR. ABBATE-Thank you, Mr. Urrico. It doesn’t really matter how I vote, quite frankly. However, I would like to participate in this. I would agree with Mr. Bryant, Mr. Underwood, Mr. Urrico, and Mrs. Hunt. I think that you folks could build a compliant 41 (Queensbury ZBA Meeting 6/22/05) structure, and I think there may very well be other alternatives, feasible alternatives, and I would probably come down, and I will come down on a no vote. However, I will offer you an opportunity, if you wish to take it, before calling for a motion, to table. It’s entirely up to you. I must warn you, however, that at the present time there appears to be a total of five members not in favor. MR. DYBAS-We could withdraw this also? MR. ABBATE-No, let me explain what the difference is. You have a choice of withdrawing your application, or you can table it. If you table it, we could give you up to 60 days to come back again. I want to make sure you understand that. MR. DYBAS-I understand that. MR. ABBATE-Do you wish to come back to us again? DR. CAVAYERO-I’m not sure. I’ve been through this a few times, and I’ve tried to really accommodate, and the Board, what you’re telling me is you’d rather now have a wider structure on the lake, instead of having something that’s keeping the south end point a foot in closer and the south end now which would be four feet wider, I still need, it’s not 50% greater of construction. It meets all of the allowable uses, and it sounds like everything the Board doesn’t want, that’s what we’re going to wind up doing, because you’re going to now have a wider lakefront house. You’re going to have a garage on an open spot land that shouldn’t be there, and that’s what doesn’t make, that’s not what’s making sense to me right now. The Board, after going through this process for the last year and a half or two years, and really digesting and listening and sitting with Mr. Dybas and listening to what my neighbors have to say, it sounds like, is this really what they want? They’re saying one thing and they’re going to wind up getting the opposite now, and that’s my concern now. MR. ABBATE-You have a choice. You have a choice of tabling. DR. CAVAYERO-I guess we’ll table it. I have the option to return, I guess, I will table it. I probably won’t be back, but, you know, there’s an expression. MR. ABBATE-Well, it’ll give you an opportunity. All right. So here’s what we’re going to do. The applicant then has requested that his variance number 42-2005 be tabled for a period of 60 days. Do I have a second? MR. BRYANT-Second. MOTION TO TABLE AREA VARIANCE NO. 42-2005 KEITH CAVAYERO & ELYSA BARON, Introduced by Charles Abbate who moved for its adoption, seconded by Allan Bryant: 87 Mason Road. Tabled for a period of 60 days. Duly adopted this 22nd day of June, 2005, by the following vote: AYES: Mr. Bryant, Mr. Urrico, Mrs. Hunt, Mr. Stone, Mr. McNulty, Mr. Underwood, Mr. Abbate NOES: NONE MR. ABBATE-If my figures are correct, we have a vote of seven in favor of tabling Area Variance No. 42-2005 for a period of 60 days. Thank you, gentlemen. DR. CAVAYERO-Thank you. 42 (Queensbury ZBA Meeting 6/22/05) MR. ABBATE-You’re welcome. SIGN VARIANCE NO. 40-2005 SEQRA TYPE UNLISTED SEAN GARVEY OWNER(S): PETER, SEAN & MARC GARVEY ZONING LI LOCATION 483 QUAKER ROAD APPLICANT HAS CONSTRUCTED A 16 SQ. FT. FREESTANDING SIGN AND SEEKS RELIEF FROM THE MINIMUM SETBACK REQUIREMENTS. CROSS REF. SITE PLAN 24-2005, SIGN VARIANCE 79-2004, USE VARIANCE 62-1997, SITE PLAN 36-1997 WARREN COUNTY PLANNING JUNE 8, 2005 LOT SIZE 3.99 ACRES TAX MAP NO. 303.6-1-5 SECTION 140-6 SEAN GARVEY, PRESENT MR. STONE-Mr. Chairman, I have a point of order. I wish to make a statement. MR. ABBATE-Please do. MR. STONE-Several weeks ago, when I did not know that Mr. Garvey would be appearing before the ZBA at this early date, I expressed concern to several people about the behavior of Mr. Garvey at an earlier Town Board meeting. In order to eliminate any perception of bias on my part, I recuse myself from hearing his variance application. Although I know my previously expressed feelings would have no impact on my decision making in this matter, I prefer to err on the side of caution. Thank you, Mr. Chairman. MR. ABBATE-Mr. Stone, I appreciate that very much, and it is an honorable thing to do. Mr. Rigby. STAFF INPUT Notes from Staff, Sign Variance No. 40-2005, Sean Garvey, Meeting Date: June 22, 2005 “Project Location: 483 Quaker Road Description of Proposed Project: Applicant has constructed a 16 sq. ft. freestanding VW sign that is 15-feet high. The sign is located over the front property line. Relief Required: The applicant requests relief from the minimum front setback requirement of 15-feet, per §140-6. The applicant desires to locate the sign -2-feet from the front property line, requiring 17-feet of relief from the front setback. Parcel History (construction/site plan/variance, etc.): SV 79-2004: Approved 11/24/04, for second free-standing sign. Staff comments: The applicant has submitted a permit from Warren County DPW indicating that the current placement of the sign in the County R.O.W. is acceptable. The sign is setback 55- feet from the edge of Quaker Road.” MR. UNDERWOOD-“Warren County Planning Board Project Review and Referral Form June 8, 2005 Project Name: Garvey, Sean Owner(s): Sean Garvey ID Number: QBY- 05-SV-40 County Project#: Jun05-28 Current Zoning: LI Community: Queensbury Project Description: Applicant is requesting 17’ of setback relief for an existing 16 sq. ft. freestanding sign. Project Location: 483 Quaker Road Tax Map Number(s): 303.6-1-5 Staff Notes: Sign Variance: The applicant requests setback relief for a 50 sq ft sign. The applicant is in the process to apply for an addition to an existing building when it was 43 (Queensbury ZBA Meeting 6/22/05) confirmed that the 50 sq ft sign was located on the property line and not at the required 15 ft setback. The information submitted shows there is 55 ft from the Quaker Road edge to the existing sign where the 55 ft is the County right of way. The applicant has also received a permit from Warren County DPW to leave the pole in its existing location. 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 6/10/05. MR. ABBATE-I see the gentleman is at the table. Would you speak into the microphone and for the record identify yourself and your relationship with this appeal, please, sir. MR. GARVEY-Good evening. My name is Sean Garvey and I’m one of the owners of Garvey Volkswagen at 483 Quaker Road. MR. ABBATE-All right. Are you prepared to present your? MR. GARVEY-Yes, I am. MR. ABBATE-Please do. MR. GARVEY-I have no problem with Mr. Stone sitting. I’m not quite sure what he was speaking in reference to. I spoke, as other citizens did, at a number of meetings throughout the Town. So I would have no problem if he chose to sit, because it would seem like he’s been very impartial. I’m sorry to make the Board sit through this a second time. There’s been errors made in the original application, some made by the Town but most made by myself, and I was hoping if you could turn to Page Five of my application, they’re not numbered, I apologize. It’s an addendum. It’s a type written page that starts with the words “Sign Variance”, and it says Addendum to General Information Page. On November 24, 2004, the ZBA granted Garvey Volkswagen, Inc. a variance to install a second pole sign (a VW logo) at the 483 Quaker Road dealership. (See second attachment) The sign was then installed exactly as it was staked out on site and has served our needs without incident. Garvey is currently applying for a building permit to expand the showroom at this 483 Quaker Road location. On April 11, 2005 during the preapplication meeting with Craig Brown, he questioned the VW sign’s location, asking if it met the 15’ setback requirement. My architect Ethan Hall and I agreed that the VW sign’s exact location would be determined by Rucinski Hall Architecture while producing the plot plan for the building permit-site plan application. The following Sunday Ethan found the VW pole sign actually straddled the front property line. Craig Brown suggested that I proceed with this second sign variance application. That’s why I’m here tonight. I apologize to make you have to go through this a second time. If the ZBA members would be so kind as to note: The KIA pole sign on site is 50 square feet. Since current ordinance requires a 25’ setback for such a sign I simply measured from the leading edge of the KIA sign 10’ towards the road to acquire the 15’ setback for the proposed new VW sign, which brought me to the pavement edge. I then placed the stake and sign variance notification poster there. After the November 24, 2004 sign variance approval, I ordered the VW pole sign and placed it in said location. I was wrong not to locate the front property line’s exact location. I have since learned that many of the current zoning ordinances were originally adopted by the Town Board in 1988. The KIA pole sign predates the 1988 ordinances and was installed in 1986 without the 25’ setback as I had assumed. If I could give the members a site plan map from the previous application, which you approved. You have it on file, but just for ease of recognition. MR. ABBATE-Thank you, Mr. Garvey. MR. GARVEY-If you could look at, this map was the original map used for the original Sign Variance application of November 2004. If you could note the Volkswagen sign’s 44 (Queensbury ZBA Meeting 6/22/05) location on the map. It’s just off the paved area. Excuse my third grade printing of the Volkswagen, but where the arrow ends up is at the edge of the paved area. If you also could notice the 68 foot measurement from the corner of the building to the edge of the property line, just a second arrow that I’m going to point out to. If the members would be so kind to go to the last page of my application, it’s a small fold out map of the site plan. You may also have a larger map, but I think that’s a little bit more convenient to use. On my application, I think I’ve highlighted the Volkswagen existing location and showed where it straddles the front property line, and if you could also notice the measurement, the exact measurement of the edge of the property line and the building which is 77 feet, not the 68 which is on this other map that was produced in ’89 by McCormack surveyors. So basically there was two errors. Obviously, where the paved area ended and of course the distance of the building from the edge of the property line. I have since acquired a Warren County right of way permit for the sign’s current location, which is, of course, straddling the front property line. The County has no problem with its current location. It’s 55 feet from the paved, it’s 55 feet from the edge of the pavement. The right of way for Quaker Road is 150 feet, which is unusually wide. So from the very edge of the Quaker Road, on the pavement, the sign is 55 feet exactly from the edge of the road. Obviously, as you all well know, there’s many signs in the Town that, in different corridors, which the signs are a lot closer to the road. Besides the financial hardship of moving the sign, if the Volkswagen sign is moved to meet the current Sign Ordinance regulations, it would be placed in a traffic lane. I believe this would pose a traffic hazard, which we mentioned before, and especially a hazard to delivery and emergency vehicles. So I’m respectfully and humbly, for the second time now, asking the whole Board’s approval for the Volkswagen sign’s current location. MR. ABBATE-Thank you, Mr. Garvey. Do members of the Board have any questions for Mr. Garvey? MR. BRYANT-Mr. Garvey, I have a question. The sign now is on County property. Is that it? MR. GARVEY-Actually, it’s on my property and the County property. It straddles the front property line. MR. BRYANT-Okay. MR. GARVEY-So one leg’s on the County and one leg is on my side. MR. BRYANT-So it’s somewhere in between and you’re asking for an additional 17 feet? MR. GARVEY-Yes, 17 feet if you want to call it. MR. BRYANT-So all these concrete pads and all these other vehicles, they’re all on the County property, right? MR. GARVEY-That car is parked on County property. That is correct. MR. BRYANT-Okay. Thank you. MR. GARVEY-I have a permit for the use of it. MR. BRYANT-Okay. MR. ABBATE-Any other Board members have any questions? All right. If not, I’m going to be generous this evening. I’m going to have unlimited public hearing. Okay. MR. BRYANT-I do have another question. You said you have a permit to use that area to park vehicles or whatever? 45 (Queensbury ZBA Meeting 6/22/05) MR. GARVEY-Yes. If you go to Page Nine of my application, it’s a right of way permit. MR. BRYANT-So then you need a special permit now, besides that for the sign? MR. GARVEY-This is the right of way permit that allows me to put the sign there. I guess you could say I don’t really have one for the cars. I don’t think there’d be a problem getting it. They’re pretty casual in giving this out. It didn’t seem to be a major concern, because it’s so far back from the road. MR. BRYANT-Yes. Okay. MR. ABBATE-Okay. I’m going to open a public hearing, for a fair and open process. Do we have any public comments? The public is invited to speak. PUBLIC HEARING OPENED MR. GARVEY-One of the concerns, I believe, of some of the members last time was the visual impact of the sign, and you can see it’s there now. It’s fairly small. The actual square footage of the sign is, I think, 12 square feet, and the square footage of the logo is like seven, and it doesn’t impact the corridor too much. It was a concern. You’ve seen it now, and if you could just consider everything I’ve said, and I have not tried to deceive anyone. I used what I thought was accurate maps. I put the sign exactly where I said I was going to put it. You gave me permission to put it there, and later on it was found that it was obviously not the 15 foot setback which I thought it would have. Thank you. MR. ABBATE-You’re welcome. Apparently there are no public comments. So what I’m going to do now, I’m going to ask the ZBA members to offer their comments on Sign Variance 42-2005. May I start with Mr. Rigby, please. MR. RIGBY-Yes. I recall our last meeting on this when we were talking about a variance, the original variance, and I think, you know, where the sign is, it’s in a good spot. I mean, I think that I probably would have approved it, had I known what I know now. Anyway, I probably would not have approved minus two. I probably would have approved 15, but not 17, had it originally been proposed. I think I’m going to come down on the side of approving the variance. MR. GARVEY-Thank you. MR. ABBATE-Okay. Thank you. Mrs. Hunt, please. MRS. HUNT-Thank you. Yes, I think it’s an innocuous sign. It’s not unattractive, and it certainly doesn’t impact visually on the road, and I would be in favor. MR. GARVEY-Thank you. MR. ABBATE-Thank you. Mr. Urrico, please. MR. URRICO-Yes. Mr. Garvey sort of stole my thunder a little bit. The first time I think I was opposed to the application, but mainly from the standpoint of dual signs, which we seem to be granting on a more regular basis than we have in the past, but having seen the sign, you know, it really has a minimal impact. It’s up off the road. It’s really not level with the road. So that minimizes it as well. It makes it more visible, but at the same time, it makes it less of a problem in my mind, and the biggest problem is the unusual large right of way that we have in that section, and I think even if the road was ever expanded, it still would be further away than some of the signs which almost sit near the road, and so I really don’t have a problem with the sign. I think it’s well placed for the area, and I would be in favor. 46 (Queensbury ZBA Meeting 6/22/05) MR. GARVEY-Thank you. MR. ABBATE-All right. Thank you. Mr. Underwood, please. MR. UNDERWOOD-Yes. I would have to agree. It’s a minimalist sign when you’re coming from the Dix Avenue, from that direction, you hardly even notice it, even when it’s turned on. It’s a very small sign. As far as the other signs on Quaker Road, the Della sign and the Saturn dealership, those are right off the road. I think we’ve granted variances for those and they’re much closer to the road. So I don’t have a problem with it whatsoever. MR. ABBATE-Thank you. MR. GARVEY-Thank you. MR. ABBATE-Mr. McNulty, please. MR. MC NULTY-Well, if you’d come to me originally proposing it there, knowing that it was a full 15 foot setback, I would have said no. I would have said, no, put it over into the parking area. The other sign is in the paved parking area, and I would have said no reason why this couldn’t go there, too. It might be inconvenient, but nevertheless, it would be a doable thing. Also there’s the section in our Sign Ordinance that says a variance should not be given unless the applicant would be deprived of reasonable use of his sign if he weren’t given the variance on it. So, again, if it was a fresh thing and we knew everything back then that I know now, I would have said no. Having said all that, I’ll agree. It’s a relatively small sign. It’s not obtrusive. While I would have preferred not to have two signs on the property, I don’t think it’s objectionable, and I think the reasonable thing to do in this case is to balance detriment to the neighborhood versus benefit to the applicant, and I don’t think there’s any detriment to the neighborhood, and obviously, if you were forced to move it, it would be a detriment to the applicant, so I think the benefit falls to the applicant. So I’d be in favor, too. MR. GARVEY-Thank you very much. MR. MC NULTY-Thank you, Mr. McNulty. Mr. Bryant? MR. BRYANT-I agree with my fellow Board members. Now that I see the sign, I probably would have been opposed to it initially, but now that I see it, it’s not intrusive, and it is in a better position, as Mr. Underwood pointed out, than the Saturn sign or the Della sign. MR. GARVEY-I’d agree. MR. BRYANT-Of course you would. That being said, I’ll be in favor of this application. MR. ABBATE-Thank you. MR. GARVEY-Thank you. MR. ABBATE-The public hearing is now closed. PUBLIC HEARING CLOSED MR. ABBATE-And I also would agree with my fellow Board members, with everything they had to say, and I would support the application. I’m going to ask for a motion for Sign Variance No. 40-2005. Do I hear one? Do we have a Short Environmental Assessment Form? 47 (Queensbury ZBA Meeting 6/22/05) MOTION THAT THE SHORT ENVIRONMENTAL ASSESSMENT FORM PROVIDED BY THE APPLICANT INDICATES THAT THERE ARE NO SIGNIFICANT NEGATIVE IMPACTS CAUSED BY THIS PROJECT, AS SUCH I WOULD MOVE TO ACCEPT THAT BASIS IN ANTICIPATION OF NO NEGATIVE RESPONSES, Introduced by Charles Abbate who moved for its adoption, seconded by Allan Bryant: Duly adopted this 22 day of June, 2005, by the following vote: nd AYES: Mr. Bryant, Mr. Urrico, Mrs. Hunt, Mr. Rigby, Mr. McNulty, Mr. Underwood, Mr. Abbate NOES: NONE MR. ABBATE-I believe the vote is seven to zero to approve. Now, may I please hear a motion for Sign Variance No. 40-2005? MOTION TO APPROVE SIGN VARIANCE NO. 40-2005 SEAN GARVEY, Introduced by James Underwood who moved for its adoption, seconded by Joyce Hunt: 483 Quaker Road. The applicant has constructed a 16 square foot freestanding “VW” sign that is 15 feet high, and the sign is located over straddling the front property line. The applicant is requesting relief from the minimum front setback requirements of 15 feet per Section 140-6, and he desires to leave the sign where it’s been erected with minus 2 feet of relief from the front property line, requiring 17 feet of relief total for the front setback. Again, this was as a result of mis-measuring from the previously erected sign on the property there. The Board doesn’t seem to feel that there’s going to be any negative impact on this, and due to the fact that the right of way is 150 feet on this road, this is why the great amount of relief is requested. The sign seems to be placed in a logical area where it’s visible from the roadway, and placing it any further back would kind of put it out of the sight line when traveling down the road. So I would move for its approval. Duly adopted this 22nd day of June, 2005, by the following vote: AYES: Mrs. Hunt, Mr. Bryant, Mr. McNulty, Mr. Underwood, Mr. Rigby, Mr. Urrico, Mr. Abbate NOES: NONE MR. ABBATE-The vote for Sign Variance No. 40-2005 is seven in favor, zero against. Is there a challenge to the tally? If not, then Sign Variance No. 40-2005 is approved. MR. GARVEY-Thank you. Thank you all very much. MR. ABBATE-You’re welcome. Okay. Now, do we have any other business before the Board? Because I’m looking for a very calm sea. If there is no other business, then this Board is adjourned. On motion meeting was adjourned. RESPECTFULLY SUBMITTED, Charles Abbate, Chairman 48