2005-08-24
(Queensbury ZBA Meeting 8/24/05)
QUEENSBURY ZONING BOARD OF APPEALS
WORKSHOP MEETING
AUGUST 24, 2005
INDEX
DISCUSSION STAFF DUTIES, POLICIES & PROCEDURES OF ZBA
1.
Presentations by M. Ryba, S. Barden, & C. Abbate
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.
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(Queensbury ZBA Meeting 8/24/05)
QUEENSBURY ZONING BOARD OF APPEALS
WORKSHOP MEETING
AUGUST 24, 2005
7:00 P.M.
MEMBERS PRESENT
CHARLES ABBATE, CHAIRMAN
CHARLES MC NULTY
ALLAN BRYANT
JOYCE HUNT
JAMES UNDERWOOD
LEWIS STONE
LEO RIGBY, ALTERNATE
MEMBERS ABSENT
ROY URRICO
EXECUTIVE DIRECTOR-MARILYN RYBA
LAND USE PLANNER-SUSAN BARDEN
TOWN COUNSEL-MILLER, MANNIX, SCHACHNER, & HAFNER-MARK SCHACHNER
STENOGRAPHER-MARIA GAGLIARDI
MR. ABBATE-A couple of notes here. My sincere thanks to the Executive Director of
Community Development and her Land Use Planner, who all worked with me in the spirit of
cooperation and without their help, this workshop probably would never have materialized.
Thank you, Marilyn, and thank you, Susan. The workshop has four parts. The Executive
Director of Community Development, Mrs. Marilyn Ryba, will do the first part. The Land
Use Planner, Staff procedures, Susan will do the second part. I will do, as Chairman, the
third part, and then we will be open for questions and comments. I do have a request. I
request that you please hold all your questions until completion of all presentations, and the
reason I ask that, it provides for continuity. Thanks for your cooperation.
MRS. RYBA-Hi. I just wanted to say thanks for coming. The ZBA workshop, the seed of
the idea to have the workshop started back when there was that Saratoga workshop. I think,
Chuck McNulty, you went to that, and there were some questions that were asked then, and
things being the way they are with Boards being very busy and it’s difficult. You have
enough on your plate to have two meetings a month with all of the applications that you
review, etc. Here was an opportunity where there was some time, with the second meeting, to
get together. I just wanted to note that one of the reasons this seed of an idea came about
was because we were getting new Staff. Susan Barden is our Land Use Planner, and she is
fairly new, although she’s been here since March 21, I think, and today is actually my one
st
year anniversary as Executive Director. So that’s still fairly new, although it’s hard to
believe it’s been a year, and there have been some changes on the Zoning Board as well as on
the Planning Board. So it’s not because people don’t, let me make this in a positive sense,
people can always learn more. It’s supposed to be this, the intent of this workshop is
supposed to be to answer questions, because I think there are questions that come up that can
be addressed by legal counsel, and that’s why Mark Schachner’s here tonight, is to, I think,
provide some clarification, to try to answer some questions, because Town Counsel, they
defend us when we go to court, and they’re, any kind of responses they give or legal advice
they give is based on their knowledge with working with many municipalities and, Mark, I
don’t know how many municipalities you work with right now. Quite a few.
MR. SCHACHNER-Thirteen.
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MRS. RYBA-Thirteen. Okay, and plus of course the court cases that his entire firm keeps
abreast of. So it’s really a way to protect the Town by learning more, and some of you have
gone through the New York Municipal Insurance Reciprocal classes, in fact, Mr. Bryant just
received a certificate as having finished all of those. So the ZBA’s doing pretty well because
Chuck Abbate and Mr. Bryant, two out of the Board that have completed all ten of the items.
So that’s really good, and it just relates to the public that the Boards are doing the extra
work necessary to learn more and to probably be current, I think is the word, because
certainly all of you have a lot of experience on this Board. Many of you have experience in
other areas as well, and it’s all very helpful. So I wanted to clarify that the intent of doing
this is not meant to be negative. It’s meant to be just a real positive thing. It’s also a way
for, I think, us to try to communicate Staff and as well as the Board, because we’re really here
in a cooperative vein, so that we can work together for the good of the Town, and I think
that’s what it’s all about. One of the things I wanted to relay is a little bit of some of the
changes that have occurred in the past year with the Staff. One of the things that I had
asked for was that we have Staff to work and do the things we needed to do. Previously,
Craig Brown, who was Code Compliance Officer and Zoning Administrator, was working with
this Board. He is doing everything that needed to be done on a day to day basis. Includes a
lot of phone calls. Craig has, I’m trying to remember how many phone calls he had last
month. We had 14,000 phone calls for the entire Department last month. That’s a lot of
phone calls, and I had about 300. I think Craig had 1,000 in some of those, not to mention e-
mails. I have, on an average, 800 to 1,000 e-mails a month. I think the rest of the Staff has
the same kind of thing. So we’re really busy. We get a lot of inquiries from the public. So
what I was trying to do was to try to alleviate some of the workload there, and trying to do
things that made some sense. So, for example, I have asked Bruce Frank, who’s Code
Compliance Officer, who had also been working with the Board, to focus on compliance issues,
to be there when a development starts, at the very beginning, so that he can make sure that
those variances that you granted, that people are doing what they’re supposed to be doing.
What had often happened was because of the workload, sometimes the building would be
built, everything would be in place, and we wouldn’t even find out until everything was in
place that, oops, some things hadn’t been done and they have to come back for a modification
or they have to come back to the Zoning Board, and so I think eventually what will happen is
we’ll start to see fewer of those kinds of problems because we can get Craig, excuse me, Bruce
right out in the very beginning. The other thing I wanted to do was to have one person
reviewing permit applications for both the Planning Board and the Zoning Board, so that
there would be some continuity. Sometimes there are items that go in front of the ZBA before
they go to the Planning Board. Sometimes there’s a few things that you want the Planning
Board to look at first, and it’s real helpful to have one person who’s really on top of both of
those things. So that’s a job for Susan Barden, our Land Use Planner, and Susan’s been
doing a great job, and it’s a lot of work for one person to be going to all of those meetings
every month, in addition to being in to work the very next day, very early, because what
happens is we have to put together all the resolutions, and we have five days to do it, to give
it to the Town Clerk, but we pretty much do it the very same day. We also have a debriefing
meeting the very next morning after a meeting, so that we can try to figure out, how can we
do things better, what happened that we needed to provide more information. What
happened where we could have communicated better. Is there something in the process that
we can do, and actually Mr. Abbate came to our last debriefing meeting. So he can tell you a
lot of what happened there. One of the things you have in front of you, too, is a listing of our
plan review meetings, the kind of things we do when we get together for the agenda. So that’s
a schedule of how we operate. There’s some other schedules, but this gives you a good idea,
but getting back to Staff and those changes, George Hilton, who is now our GIS
Administrator, GIS meaning Geographic Information Systems. He was promoted to GIS
Administrator from Land Use Planner/GIS Administrator. What was happening there was
he was doing two jobs as well. He was working for the Planning Board, doing the Staff notes,
and among also putting together all of our databases for Geographic Information Systems,
and what helps us there with the database is that we can layer the wetlands, the slopes, the
soils, all of those things, so that what Staff does is they put that information, we bring it up
when there’s an application to see, is there something that we need to be aware of. We have a
huge database, and it’s called a Meta Date file. What had happened, though, is George has
become extremely popular in the Town. He works for the Recreation Department. He works
for the IT Department. He works for every Department in the Town and he was really being
stretched in a lot of different directions and so since we have an additional person with Sue,
he was made full time GIS Administrator, and that’s really helpful because the Town has
some new requirements that are going to take a lot of time, and are taking a lot of time, one is
stormwater management. We have to identify and locate every single piece of drainage
equipment that the Town owns. We have to map it. We also have something called Gazby
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34 Accounting procedures, which means that we have to identify and locate and map every
single piece of equipment that the Town owns, such as fire hydrants, the water lines, the
sewer lines, all of those things. So that’s something that George is putting together. It’s
really a very big job. That alone is a very big job. He’s also doing, works on special projects.
He’ll also be working with the Planning Ordinance Review Committee to do whatever kind of
scenarios are needed to do the revisions for the Comprehensive Land Use Plan and the Zoning
Ordinance and Subdivision Regulations. So he’s doing that so that we could save some
money in terms of working with the consultant, Saratoga Associates, and we also have Stuart
Baker, who took my previous position. What Stuart does is I had previously worked on grant
applications, the housing programs, housing improvement programs, long range studies,
things like a community profile. That’s something that I had started that Stuart’s continuing
to work on. The Open Space Plan was a very large undertaking. I had worked on, really had
pretty much done most of that work and with that particular activity, even though we had
consultants helping us, it was for very, what the consultants thought was a small amount of
money. I’m sure most of us thought it was a fairly large amount, but we basically did all of
the formatting, all of the editing, a lot of work went into that. The consultants had some
great ideas, but we are the ones who carried it through. So that’s just a small portion of what
Stuart does. Stuart has the responsibility, right now, too, of being the liaison person with the
Planning Ordinance Review Committee, and Staff and the consultant. So he’ll really be doing
a lot of work in this next year, and he’s very excited about that. For a Planner, that’s
something that you aspire to, to be able to do that kind of fun, I call it fun work, and not
necessarily administrative type things. The other thing we did was we hired an additional
Building Inspector, and the reason we have an additional Building Inspector is because we are
so customer responsive to people who are looking for inspections that we rarely have a
Building Inspector in the office. They are out in the field all the time. Meanwhile, people
come in, and people don’t often call ahead to make sure somebody’s going to be around. They
come in and then they’re very disappointed when there isn’t someone to talk with. What we
want to do, and we’re still training Charles Dyer, who is our new Building Inspector. We
want to get Charles so he’s out in the field more and have Dave Hatin stay in the office to be,
Dave has the most experience, to be available to answer questions for people, so that, once
again, that’s helping our customer service that we really have somebody in place there most
of the time. In addition, we have Barbara Edmunds, who is my Administrative Assistant.
Barb is doing a lot of the things that have never, ever been done in our office before. We did
not have an inventory of all of our files. Each one of us kept resource information. So, for
example, if we wanted information on the Adirondack Park, we could have four or five Staff
members calling the APA asking for the same information. What we’ve done is we’re
consolidated, all of those files, done some rearranging in the office and so, in terms of
administrative things, I think there’s an awful lot going on that we’re trying to do to make
the process work smoother, to be more efficient, and Barb’s helping with that. Barb’s also
doing something called process mapping, which is, it’s a systems analysis to see how we all
work together, because, and that takes, there’s really, it’s taking some time. I mean,
everybody’s been very independent working. There’s a lot going on. There’s not often a lot of
time for communication, and so we’re working on that more. One of the changes I’ve
instituted is maybe we would have a Staff meeting once a month, once every three months.
We have Staff meetings for 15 to 20 minutes every Monday morning and every Friday
morning. Summer’s been a little difficult because we’ve, like for example Friday and Monday
we had a lot of Staff out on vacation. That’s really helped to say, at the beginning of the
week we say, what’s going on this week that everybody should know about, and on Fridays
we say, what happened this week that everybody should know about. So, I just wanted to
spend a couple of minutes to go through some of the changes that we’re working on, at least
in the Planning and Building and Codes and how we work together, because I think there are
some misconceptions, too, on the part of the public. A lot of people ask, well, how could
somebody get a Certificate of Compliance when they haven’t met what they were supposed to
do in their zoning. For example, maybe they haven’t done landscaping, well, that’s because
the building permit is an administerial action. It comes under a different set of laws, and as
long as somebody has met the requirements for that building, it only applies to the building.
It doesn’t necessarily apply to the site. So we have, so there are some distinctions there that
we’re going to try to communicate in the future. Right now I’ve been the last year focusing
more on our in-house activities, and will aspire to next year work on some communications
with the development community and some changes that we plan on making, and of course
next year is going to be a big year with the changes in the Zoning Ordinance that we’ll have
and also in the Subdivision Regulations that we’ll have. We also have the Fire Marshals in
the Community Development Department. The Fire Marshal we had for a number of years,
Steve Smith, he recently resigned. So Mike Palmer, who was the Deputy Fire Marshal, he
was made the Fire Marshal. We’re currently advertising for a Deputy Fire Marshal position.
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They go out and do inspections. They have to inspect every commercial building. They have
to inspect multi family apartments. They’re supposed to be doing this, every building every
year, and that’s a lot of work. One of the things that they’re working on right now, too, is
something called pre-plans. What that is is when they do an inspection, they’re doing little
drawings right now to show, here are all the exits. If it’s a multi family dwelling, here’s where
there are closets because maybe children, that’s where they tend to go hide if there’s a fire.
When there is a fire, they’re right there at the scene. They give those pre-plans to the Fire
Chief. So the Fire Chief can go out and have that in place. The other thing that’s happening
is we’re working on some new technology to make things more efficient. We’re doing
something called electronic pens. The guys are used to filling out forms. They can do the
drawings, can actually download the pen, there’s a camera in the pen, download it, and what
will happen is that information can then be read, go into the file, so that they’re not having to
come back and retype everything that they write. So they’re actually doing things twice. So,
we’re using them as a pilot program, and if it’s successful, we’ll do it in other parts of what
we’re working on, such as the Building and Codes Department, and then last but not least, we
have Animal Control Officer, and that’s Joe Lombardi. Joe is great. He works on his own.
He works very hard. He had really put together some plans to try to work with the City of
Glens Falls. Right now that’s kind of on hold, but to see if we can share municipal services
and he put together all of the plans, all the numbers, everything himself, and that was really
a big job, and I would be negligent if I didn’t mention our long term Staff who have really
been holding up for many, many years and doing a lot of hard work, and that’s John O’Brien
and Joel Clugstone, and I’ve mentioned Dave Hatin and Charles Dyer in the Building
Department, Building and Codes Department. Our support Staff. Maria, how long have you
been here?
MS. GAGLIARDI-Sixteen years.
MRS. RYBA-Sixteen years, typing, doing transcription, every single day. In addition to
radio dispatch, answering phones and a number of other things, and then we also have
Pamela Whiting and Susan Hemingway who have also been, I believe, and Sandy Kruger,
probably each one of them close to 20 years, and they’re our support Staff. So I just wanted
to do a quick overview to let you know changes, who is on board, what we do, and also to
offer, if you ever have any questions, please feel free to call. That’s what we’re here for, and
it’s always best to try to get any questions or things resolved in advance to the degree we
possibly can, and I think that’s all I have. I just wanted to let you know that in the
newsletter, I do have a description of some of the changes in Staff and what people are doing.
It’s only the first installment. There will be two other installments, and that’s all I have for
now. Thanks.
MR. ABBATE-Thank you, Marilyn. We have next on the agenda the Land Use Planner,
Staff procedures, Mrs. Susan Barden, please.
MRS. BARDEN-Thank you. I’ve been asked to present Staff procedures, and what I’ve done
is I’ve put together a couple of slides that are directly from the Zoning Code book, and then,
from a practical standpoint, Marilyn handed out our, this worksheet that has the deadline
day, our first agenda meeting, Staff plan review, when our referrals go out, and a final agenda
meeting. So this is kind of the practical aspect of what I’m going to go through from the Code
book from when an application is made, what that application, what documentation, what
needs to be submitted with that application before it comes to the Board, after a decision is
made by the Board, enforcement, Stop Work Orders, and some duties of the Zoning
Administrator in there as well. So these slides, again, are directly from the Code Book, and
some of them are verbatim, and some of them are paraphrased. In the meantime, did
everyone get the New York Planning Federation Conference? Just let me know if you’d like
to attend for one day, for two days. Well, I’ll tell you what, we’ll do it the old-fashioned way.
In Section 179-14-030, Application For Variance, Variances may be instituted by filing an
application with the ZBA using forms supplied by the Board which shall include all
information reasonably considered by the Board as necessary to make its findings under 179-
14-080, which you all know very well. Section 179-14-030 is, this is more information on what
is required in the application for a variance. A legal description of the property, a map
showing the property and all properties within a radius of 500 feet, plans and elevations
necessary to show the proposed variance and other drawings or information reasonably
considered necessary by the Board of Appeals to an understanding of the proposed use and its
relationship to surrounding properties. Referrals, Section 179-14-050. The Zoning Board of
Appeals, at its discretion, may refer any completed variance application to the Planning
Board for its report and recommendation when it is determined that further planning concept
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review is needed, and where required by Section 239-M of the General Municipal Law to the
County Planning agency having jurisdiction for the report and recommendation. Continued
in that same Section, in the case of any variance application involving land, buildings or
structures located in the Adirondack Park, and any land use area except a hamlet or any
variance involving the shoreline regulations, the Zoning Board shall submit a copy of the
application to the APA , together with such pertinent information as the Agency shall
reasonably deem necessary. Review of Application by Other Agencies, 179-14-060, any
variance application within the following thresholds shall be referred to the Warren County
Planning Board for its review and comment, within 500 feet of the Town boundary, within
500 feet of an existing or proposed County or State park or recreation area, right of way,
parkway, thru way, road or highway, stream, drainage channel or easement or public building
or institution. The Zoning Administrator section, 179-16-010, the Zoning Administrator shall
have the power and duty to administer and enforce the provisions of this Chapter, specifically
the Zoning Administrator shall have the following powers and duties to interpret the
Ordinance, unless such interpretation is overturned by the Zoning Board, determine the
completeness of all applications submitted, enforce the conditions of any variance, site plan
review, or special use permit, enforce the specific provisions of this Chapter and administer
the specific provisions of this Chapter. Notice of Public Hearing, Section 179-16-080, each
notice of hearing, upon an application for review of a variance application or upon an appeal
to the Zoning Board from an action of the Zoning Administrator shall be published once in
the official newspaper of the Town at least five days prior to the date of the hearing. Notices
shall be mailed to all owners of the property within 500 feet of the exterior boundary of the
property for which the application is made. Expiration of Variance. This was new
information to me, 179-14-090, unless otherwise specified or extended by the ZBA, a decision
on any request for a variance shall expire if the applicant fails to undertake the proposed
action or project, to obtain any necessary building permit to construct any proposed new
building or change any existing building or to comply with the conditions of said
authorization within one year, and I think that that came up one night fairly recently. 179-
17-010, Penalties for Offenses. Any person owning, controlling or managing any building,
structure, land or premises wherein or whereon there shall be placed on or there exists or is
practiced or maintained anything or any use in violation of any of the provisions of this
Chapter shall be guilty of an offense and subject to fines or imprisonment as follows, and I
don’t continue. You can look that Section up. Stop Work Orders. The Town Board grants
the Zoning Administrator the administrative responsibility of immediately terminating any
actions which are in violation of this Chapter by posting a Stop Work Order on the premises
wherein the violation has occurred, and complaints, Section 179-17-050. Whenever a
violation of this Chapter occurs, any person may file a complaint in regard thereto. All such
complaints shall be filed with the Zoning Administrator. The Zoning Administrator shall
have the complaint properly investigated and report thereon to the governing body. So that’s
just a couple of Sections out of the Code that talk about when an application, what is needed
to come before the Board for you to make a decision, and what the process is after that, and
now, and we’ve told you this before, and Marilyn reiterated this as well, that Bruce Frank is
now in the field doing site inspections right from when a building permit is issued on any
variances that are granted or site plan approvals, and watching those for Code Compliance.
So that is about it. You are welcome to come to any of these agenda meetings. One
clarification. The Staff plan review, down on the bottom, that’s kind of for us and has our
initials, but that Staff plan review is a review of both agendas, Planning Board and Zoning
Board agendas, by representatives from the Buildings and Codes Department and the Fire
Marshals. So that meeting is attended by the Zoning Administrator, myself, everyone in
Community Development, the Fire Marshal, Dave Hatin from Building and Codes, and so
that we all kind of take a piece and know who should be looking at what applications.
Anybody have any questions?
MR. ABBATE-We’re going to wait until last, Susan, for questions and discussion, so we have
continuity.
MRS. BARDEN-Okay.
MR. ABBATE-Thank you so very much.
MRS. RYBA-I realized I went through all the Staff item and I didn’t go through what I do.
I don’t know if you really want to hear everything, but I’m working on the Main Street
Improvement Program, that’s close to, it’s between, well, I’d say it’s about an eight million
dollar project at this point. There’s a lot involved. There’s working with the County on the
resurfacing and widening of the roadway. There’s the connector road improvement for traffic
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to go from Main Street to Luzerne to the Veterans Road Industrial Park. There’s gateway
improvements there, looking at amenities, bikeway improvements, etc. I also really, we have
$50 million worth of permits going through, last year I think it was $54 million of permits
going through our office. So there’s a lot there. I spend 30% of my time on personnel issues.
That’s a lot of time. Last year has been really significant, I think, because it’s always difficult
when there’s change, and there’s also a lot going on when we have a larger Department and
diversity. As I explained, working with my Administrative Assistant on process mapping, in
addition, I work with the Adirondack/Glens Falls Transportation Council on a number of
projects there. We’re just one of many communities. What happens, the reason why the
A/GFTC, as it’s known, is put together is because there’s only so much money available for
transportation studies, and so it gets doled out by the Federal government and the State
government and we all come into agreement, this is Washington County, Warren County and
part of Saratoga County, to determine where that funding will go, and right now the Number
One priority for that funding is the Main Street program, also working on the Route 9/254
intersection project. So I am, just had a meeting with Warren County DPW on Bay Road
and some ideas for access management. There’s a study that’s occurring there as well as some
traffic information. So there’s some things coming down the pike. So I’m trying to work on a
number of access management issues, in addition to working on the grant applications and
really sitting down, devising plans with Staff for their work programs for the coming year.
Right now my budget is due on Friday, and since I’ve been Zoning Administrator as well for
the last two weeks, there’s just a lot going on. The last year, I know the first year is very
busy, but I have worked, until summer started I was 60 hours a week, and I’ve been working
50 hours a week since then. So I think I’m busy. I couldn’t begin to tell you everything. I
tried to count up the projects. I have 67 different projects that I’m working on right now. So
that’s all I can tell you, but if you want to know more, you’re welcome to come and talk to
me.
MR. ABBATE-Okay. Well, it appears that our electronic piece is working now. What I want
to do this evening is emphasize and probably come up with some of the fundamental rules in
avoiding common oversights that that, based upon my research, that a number of ZBAs
make, but before getting under foot, be mindful of the fact that there may very well be
restructured versions of the procedures and statutes that I’m going to quote this evening, and
as such, I encourage everyone to bring to my attention any up to date information I may
have missed. I’d like to start out with a quote that says it pretty well. The Zoning Board of
Appeals The powers and duties of the Zoning Board of Appeals are quite specifically set forth
in the statutes. The Zoning Board of Appeals is a quasi-judicial body, and has been given
direct appellate jurisdiction by State law, and you’ll see a number of the references up there.
Appellate jurisdiction is the power to hear and decide appeals from decisions of those officials
charged with the administration and enforcement of the Zoning Ordinance or the law. That is
the ZBA is vested only with the appellate power of review and revision of the enforcement
officer’s decision. Now at this point, it would be helpful, as part of the workshop, if we keep
in mind several central themes. One, equal protection. We have to simply understand what
that means. Equal protection asserts that a land use classification or decisions treat one
parcel or a few parcels of land differently than similarly situated parcels with no apparent
justification for being treated differently, and, two, we have to be aware of procedural due
process as well. Procedural due processes are brought when a community fails to follow a
statutorily prescribed process or rushes to judgment on a land use decision thereby violating
the rights of individual parties to receive notice, be given an opportunity to be heard, and this
is important for us, or enjoy the benefit of a deliberate and thoughtful process on the part of
the decision makers. Now Town Law 261 grants basic land use authority to local
governments and allows them to regulate the details of land development and building
construction and alteration. Now this may be done for the purpose of promoting the health,
the safety, the morals or the general welfare of the community. Procedures for hearing.
Koontz said it pretty well, New York State Government, quote, Procedural matters are rarely
the most exciting aspect of anything, whether it’s getting a driver’s license, buying a house, or
even getting married, yet they are of singular importance in the administration and the
enforcement of the community zoning law. Because, when something comes up before the
ZBA, it means, and it always means, a potential lawsuit. Unless otherwise provided by the
local law or ordinance, the jurisdiction of the Board of Appeals shall be appellate only, and
shall be limited to hearing and deciding appeals from and reviewing any order, requirement,
decision or interpretation or determination made by the administrative official who is charged
with the enforcement of any ordinance or local laws adopted by the town. Now it should be
noted that an appeal may also be taken to the ZBA from a decision of the enforcement officer
issuing a permit. This hearing should be adequate in that all interested persons, and I say
again, all interested persons should be given an opportunity to be heard. Again, it is
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important to point out that the ZBA must concern itself with the evidence on the record. If
an application for permission to build is made to the zoning enforcement officer, or local
building inspector, that does not comply with the literal requirements of the zoning law, the
proposal must be denied. If the reason for the denial is that the proposed development
violates the use or area provisions of the zoning law, the applicant may then apply for a
variance to the Zoning Board of Appeals. Now what is an appeal. The appeal seeks an
interpretation. It’s an appeal to the Zoning Board of Appeals claiming that the decision of
the enforcement official was incorrect. The process. How do we go about doing it. Well, in
Section 267A-5, Town Law, a new paragraph was added, Paragraph B, and it states, quote,
an appeal shall be taken within 60 days after the filing of any order, requirement, decision,
interpretation or determination of the administrative official by filing with such
administrative official, and with the Board of Appeals, a notice of appeal specifying the
grounds therefore and the relief sought. The administrative official from whom the appeal is
taken shall forthwith transmit to the Zoning Board of Appeals all the papers constituting the
record upon which the action or appeal from was taken. What can we do? Well, the Zoning
Board of Appeals may reverse or they may affirm, wholly or partly, or may modify the order,
requirement, decision, interpretation or determination appeal from and shall make such order
requirement, decision, interpretation of the administrative official charged with the
enforcement of such ordinance or local law and to that end shall have all the powers of the
administrative official from whose order, requirement, decision, interpretation or
determination the appeal is taken. Again, I emphasize that the Zoning Board of Appeals is
an administrative body, not a legislative body. It does not have any legislative functions.
Some areas we have to be cautious of, and we’re all guilty of this. Meandering and
hypothesizing is not only a waste of time, at a ZBA meeting, but go off the rails from the
intended purpose of that meeting. The role of the ZBA is to address and only address the
evidence in the record. Worth mentioning, the ZBA is not bound to follow advice it may
receive from a Planning Board or any other municipal agency. It is the function of the ZBA
to listen and consider all evidence that may bear upon the issue it is deciding. The ZBA must
have a quorum of members in attendance for the ZBA to vote on an appeal, and a concurring
vote of a majority of the members of the Board to reverse the administrative official’s
decision or to grant a variance, if a quorum of the ZBA is present, but fails to muster the
concurring vote of the majority of its members, then the administrative official’s decision
remains in effect, and the ZBA’s vote constitutes a defacto default denial of the appeal. Now,
the courts have held that a tie vote was equivalent to a no action, since the Board did not
muster a majority in favor or against the application the application. This no action is
explained by the fact that Section 275 B does not contain its own numerical voting
requirements, above and beyond the requirement that a majority of the Board participate in
a voting on a matter. In the event of a tie, as Chairman, I would put forward a motion for a
denial, with a request for a vote call, so that each member’s vote is recorded for the record.
The Area Variance. The Area Variance has been defined as one where the owner still must
comply with the Zoning Ordinance’s limitations on the use of land, but is allowed to build or
maintain physical improvements which deviate from the Ordinance’s limitations. Town Law
Section 267-1, quote, Area Variances shall mean the authorizations by the Zoning Board of
Appeals for the use of land in a manner which is not allowed by the dimensional or physical
requirements of the applicable zoning regulations. Now, Koontz ZBA Local Government
New York State, it should be noted that, and I’m going to say this carefully. It should be
noted that there is no overall test, as such, that has to be met by an applicant for an Area
Variance, as compared to Use Variances. However, the Statute provides that in balancing
the issues of the applicant and those of the neighborhood or community, the ZBA, Board of
Appeals, must consider the five factors, which I do believe we follow, but it’s worth
mentioning again. One, whether an undesirable change will be produced in the character of
the neighborhood or a detriment to nearby properties will be created by the granting of the
Area Variance. Two, whether the benefit sought by the applicant can be achieved by some
method for the applicant to pursue other than an Area Variance. Three, whether the
requested Area Variance is substantial. Four, whether the requested Area Variance will have
an adverse effect or impact on the physical or environmental conditions in the neighborhood
or district, and, Five, whether the alleged difficulty was self-created, which consideration
shall be relevant to the decision of the Board of Appeals but shall not necessarily preclude the
granting of the Area Variance. In other words, in view of the fact that it might be self-
created, that, in itself, is not reason to defeat the request for variance. Okay. What is a Use
Variance. An authorization by the ZBA for the use of land for a purpose which is otherwise
not allowed or is prohibited by the applicable zoning regulations, and the appropriate criteria
is up there. We have to be conscious of the fact, and we must be made aware of these facts
when reviewing Use and Area Variances, and I’d like to start with the Use Variance. Before
this Board may exercise its discretion and grant a variance upon the grounds of unnecessary
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hardship the record must show that, One, the land in question cannot yield a reasonable
return if used only for a purpose allowed in that zone, and, Two, that the plight of the owner
is due to unique circumstances and not to the general conditions in the neighborhood, which
may reflect the unreasonableness of the Zoning Ordinance itself, and, Three, that the use to
be authorized by the variance will not alter the essential character of the locality. Now, in
order to prove such unnecessary hardship, the applicant shall demonstrate to the ZBA that
for each and every permitted use under the zoning regulations for the particular district where
the property is located, the following: One, the applicant cannot realize a reasonable return
provided that lack of return is substantial, as demonstrated by competent financial evidence.
A mere showing of present loss is not enough. In order to establish a lack of reasonable
return, the applicant must demonstrate that the return from the property would not be
reasonable for each and every permitted use in that district. A mere showing of present loss is
insufficient. The applicant must demonstrate factually, by dollars and cents proof, an
inability to realize a reasonable return under existing permissible uses. Two, that the alleged
hardship relating to the property in question is unique and does not apply to a substantial
portion of the district or the neighborhood. The findings of uniqueness have been referred to
by the Court of Appeals as that of singular disadvantage by the virtue of a Zoning Ordinance.
Three, that the requested Use Variance, if granted, will not alter the essential character of the
neighborhood. Four, that the alleged hardship has not been self-created. Now I have a
number of references up there, and it goes on and goes on and goes on. Court cases that just
basically support what I just said. The Area Variance. The Area Variance has been defined
as one where the owner still must comply with the Zoning Ordinances on use of the land, but
is allowed to build or maintain physical improvement which deviates from the Zoning
Ordinances non use limitations. The Statute provides that in balancing the interests of the
applicant and those of the neighborhood or community, the Zoning Board of Appeals must,
not may, must consider the following five factors. One, whether an undesirable change will be
produced in the character of the neighborhood or a detriment to nearby properties will be
created by the granting of the Area Variance. Two, whether the benefit sought by the
applicant can be achieved by some method feasible for the applicant to pursue other than an
Area Variance, or, Three, whether the requested Area Variance is substantial. Four, whether
the proposed variance will have an adverse effect or impact on the physical or environmental
conditions in the neighborhood or district, and, Five, whether the alleged difficulty was self-
created, which consideration shall be relevant to the decision of the ZBA but shall not
necessarily preclude the granting of the Area Variance. Final word on Use Variances. The
rules laid down by the Otto case, and it’s available on the Internet, and I have a copy for
those who wish to have it, and the rules set forth in the Statutes are requirements. They must
be used by the Zoning Board of Appeals in reviewing applications for all Use Variances.
Furthermore, the ZBA must find that each test has been met by the applicant.
Interpretations. In its simplest terms, an appeal seeking an interpretation is an appeal to the
ZBA claiming that the decision of the enforcement official was incorrect. Re-hearing. A
motion for the ZBA to hold a re-hearing to review any order, decision or determination of the
ZBA previously re-heard, may be made by any member of the Zoning Board of Appeals. A
unanimous vote of all members present is required for such re-hearing to occur. Upon such a
re-hearing, the Zoning Board of Appeals may reverse, modify, or annul its original order,
decision or determination upon the unanimous vote of all members then present, providing
the Board finds that the rights vested in persons acting in good faith in reliance upon the re-
heard order, decision or determination will not be prejudiced thereby. Imposition of
Conditions. The Zoning Board of Appeals shall, in the granting of both Use Variances and
Area Variances, have the authority to impose such reasonable conditions and restrictions as
are directly related to and incidental to the proposed use of the property. Now, an important
procedural requirement. The requirement that the Zoning Board of Appeals fix a reasonable
time for the hearing. After an appeal is taken to the ZBA or an application is submitted for
an other approval it has the power to grant, the ZBA must fix a date in the reasonable future
for the required hearing. This means that the ZBA, as a body, must fix the hearing date. The
ZBA should adopt a formal resolution fixing the date for the hearing on any matter coming
before it, and once that’s done, then the notice of the hearing can be given. Koontz again,
ZBA local government New York State, spells this out quite well when he states, quote, this
means that after an appeal is taken to the Board or an application is submitted for any other
approval it has the power to grant, the Board of Appeals must fix a date in the reasonable
future for the required hearing, and again I quote the case of Bloom versus the Zoning Board
of Appeals 149, and this is available. This statutory requirement was held to mean that the
Board of Appeals, as a body, must fix the hearing date, because no formal action of the Board
set the date for the hearing, the variance which was granted was invalidated. The lesson is
that courts will construe this requirement strictly. The Board should adopt a formal
resolution fixing the date for the hearing on any matter coming before it, and once that is
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done, the notice of the hearing can be given. While it may be true that this Board has never
had a decision reversed based upon its revision, even so, we should not ignore this statutory
requirement. Conduct of the Hearing. The purpose of the hearing is to determine the facts
involved in the application, and the purpose of the hearing is to determine whether the
applicant is entitled to he or she may be asking. Courts will not approve a conclusion or
decision for which no evidence appears on the record. Hearings should be adequate in that all
interested parties, persons should be given an opportunity to be heard. Without a proper
record and evidence to support a ZBA determination courts will order a new hearing. In fact,
the court may very well use such words as we were arbitrary and we were capricious. The
important point to remember is that the hearing should concern itself only with the evidence
in the record. The Decision. The Zoning Board of Appeals has 62 days from the final hearing
on the matter to render its decision. The decision itself must make findings of fact to support
the final decision. The final decision must be supported by the concurring vote of a majority
of the members of the ZBA. For example, if there is a five member Board, three must agree
in order to reach a decision. A vote of two out of the three of the members there present is not
sufficient. In the case of a seven member Board, such as us, with five members present, four
must agree. Certain ZBA actions must be referred to the County or regional Planning Board
before final action is taken. However, the Zoning Board of Appeals may overrule. I’m not
suggesting that we would do this, but the Zoning Board of Appeals may overrule a
recommendation, disapproval or modification by such Planning Board only by a majority
plus one vote of its membership. When granting variances, the ZBA shall grant the minimum
variance that it shall deem necessary and adequate, and at the same time, preserve and
protect the character of the neighborhood and the health, safety and welfare of the
community. Time of Decision. The Zoning Board of Appeals shall decide upon the appeal
within 62 days after conduct of such hearing. Now the time within the ZBA must render its
decision may be extended by mutual consent of the applicant and the Zoning Board of
Appeals. Enforcement and Remedies, and I can’t say this strong enough. The Zoning Board
of Appeals has no enforcement authority. The Code of the Town of Queensbury addresses
this issue as well as provides penalties for offenses, alternative remedies, stop work orders,
misrepresentation and the proceedings for filing complaints, and you’ll find it under Code of
the Town of Queensbury Article 17. The Chairman and Staff. Staff has pretty much spelled
out their procedures. So I’ll stay with just the Chairman’s procedures. All the meetings of
the ZBA shall be held at the call of the Chairperson, in cooperation with Staff. The
Chairperson is given the power to call meetings and set the order of business, which shall be a
reasonable time and date. Now I must say that I have had a number of meetings, very, very
successful meetings, with the Executive Director of Community Development and her Staff,
Susan, and we have come to a mutual agreement, in the spirit of cooperation, in terms of
reviewing applications and setting the order to be heard. In other words, after reviewing the
application, then it will be decided in which order we will hear this, hear the case, and the
reason behind that basically is this. The more complicated cases should probably be held
until last to give those folks who are only applying for, to build a garage, basically
insignificant thing, an opportunity to be heard and go home, if you will. In addition to that,
Staff has been kind enough to invite the Chairperson to sit in on the debriefing of the ZBA
hearings. The Town has the authority to mandate training as a requisite for Board members.
Procedural matters are inherently dull, but there’s a reason for them, and the courts will
uphold them. The Zoning Board of Appeals actions effect the property rights of individuals,
and the procedural requirements of the statutes are meant to protect these rights as well as
those of the community. Now, I have been asked more than once, by two Board members,
why do you place so much emphasis on procedures and statutes. One Board member went so
far as to ask me, look me directly in the eye, why are you so anal about procedures? The
answer is, after spending 40 years in the field of criminal justice, 20 years as a practitioner, 20
years as an academic, it’s a habit. I would never be able to justify not following procedures
by claiming I was not aware of the legal minefield, and a good example, and Town Counsel
will appreciate this, the fruit of the poisonous tree. There is a lesson in that, for the Zoning
Board of Appeals. We have the Town Attorney with us this evening, and I hope he gives me
at least a wink for the following statement. The Town Attorney has the burden to defend the
actions and decisions of this Board. His defense of our actions and decisions would make his
job straightforward, unproblematic, IF, and I repeat, IF, we follow procedures and statutes.
It’s as simple as that. This concludes my portion of the workshop. I thank you for your
attention, and the workshop is now open for questions and discussions.
MR. BRYANT-I’d ask a question.
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(Queensbury ZBA Meeting 8/24/05)
MR. ABBATE-Mr. Bryant. By the way, I’m going to insist upon the fact that during this
workshop there will be no mention or suggestion or referral to any pending Zoning Board of
Appeals applications, or past. Thank you.
MR. BRYANT-First a comment. You went too fast. I couldn’t take all my notes. I have a
number of questions. If Staff could just review.
MR. ABBATE-Who is this directed to, your questions?
MR. BRYANT-Actually, I have a number of questions for Staff.
MR. ABBATE-Okay. Thank you.
MR. BRYANT-Okay. What is the proper procedure or avenue for a ZBA member if he
recognizes a violation, Code violation?
MR. ABBATE-Now when we say Staff, let’s make sure that we include the Town Attorney
on this, please.
MR. BRYANT-Yes, well, he’s included.
MR. SCHACHNER-No different than any other citizen of the Town of Queensbury, or not
citizen. I shouldn’t limit it to that. No different than John Q. Public or Josephine Q. Public.
The Zoning Board of Appeals, as your Chairman indicated, is not part of enforcement of the
Town Code. So you have no different right or obligation or opportunity than any other
member of the public.
MR. BRYANT-Okay. Since you’ve got the microphone, let me ask you a question directly.
MR. SCHACHNER-That’s fine.
MR. BRYANT-Should the Town Attorney be present at all the ZBA meetings?
MR. SCHACHNER-There’s no rule that says either way. It’s entirely up to the ZBA, and
that’s how we work it.
MR. BRYANT-But I’m just saying as a practical.
MR. SCHACHNER-Well, I can tell you that there are just under 1,000 Towns in this State.
There are also cities and villages. The majority, the vast majority do not have counsel
present at every meeting. The vast majority do what you all do, which is they say, if they’re
having a particularly sensitive issue that they think they’re going to need legal guidance on,
they ask the Town Counsel to show up. That’s what the vast majority do. Some have
counsel at every single meeting. Many, many, many, many never have counsel at any
meeting ever under any circumstances. We don’t think that makes sense. We think that the
way you’ve worked this practice so far has been very appropriate, very efficient and very
successful in that you know if there’s a sophisticated, complicated legal issue that’s likely to
arise you ask us to participate, and we participate.
MR. BRYANT-I just have a question for Mrs. Ryba, if you can. You talked about the new
Staff members and their involvement in different aspects of the process, and you mentioned
Mrs. Barden. Now, when Craig was involved and Bruce Frank was involved, they were the
ones that were actually doing the preliminary interviews of the applicants, and they were also
doing site visits to see the actual conditions. Is Mrs. Barden involved in any site visits?
MRS. RYBA-Absolutely. When applications come forward, Staff always visits a site. You
have to do that. It gives you a better sense. You see for yourself. For example, in terms of
planning, if there were site limitations on the site, you experience, is the property wet, is there
stormwater drainage problems. All of those kind of things, and also in terms of pre-
application meetings, which, incidentally, is something that we started back in 2000 when I
first came on board, because if you can remember, and maybe you can or you can’t, and there
are certainly some newer members, but there were some pretty poor applications that came
in, I mean, literally on napkins. There were a couple, and so we wanted to do this pre-
submission process to really help applicants and to help the Board, so that they would be
definitely more complete, more complete for review, and so Susan sits on the Staff pre-
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(Queensbury ZBA Meeting 8/24/05)
application meetings with the applicants, as does Craig Brown, and sometimes other Staff as
well. For example, petitions for re-zonings, Stuart Baker handles all of those, or a Planned
Unit Development, Stuart handles those as well, because they’re usually a little bit more
complicated, and then of course if you have Staff who’s out for vacation, you know, other
kinds of things, other Staff may have to chip in. It’s really been a lot of Staff cooperation in
the last several months until we could try to get Susan on her feet to see how we work and
how the Boards work, so that she’s definitely becoming more proficient and competent in
working with applicants. We try to have two people at the pre-application meetings, because
we get a lot of, well, I wasn’t told this or I wasn’t told that. If there’s two Staff members,
then we can certainly vouch for one another. The other thing is the pre-application form. We
write out what is really required. Now, we’re going to be making some changes there because
once again, human nature, application deadlines are the 15 of every month, and human
th
nature is we have one in particular who shall remain nameless, who likes to show up at our
doorstep at 4:15 when our offices close at 4:30. So what I hope to do is, as I said, my goal for
this next year is to have some more communication with our usual applicants and relay that
we need to have probably a pre-submission deadline as well, so that we can have some time to
look at things and follow up with people to make sure they have everything that they need,
and it also puts together a much better application. As far as the Code is concerned, that
requirement is only required in site plan, for pre-application meetings. That was done in
2002. We will get that in the Subdivision Regulations when they’re updated. So that, and
some other, I think it’s, well, in site plan I believe Special Use Permits. We want to put that
in so that it’s required for everything that comes forward. So while we encourage it for
everything, it was only put as a requirement in the Code under the Zoning Ordinance, but we
want to get it in for the Subdivision Regulations as well.
MR. BRYANT-Thank you.
MRS. RYBA-You’re welcome.
MR. BRYANT-I’m going to let somebody else have a chance. I still have more questions.
MR. RIGBY-Can I follow up on something that Allan asked with the Town Attorney? If we
see a condition where we see non-compliance with a variance that we passed before, what
would be the process for this Board to go through? Would we discuss it in a Zoning Board
meeting and say that, well, we’ve all seen this condition. It doesn’t really follow what we had
intended, and then give it to the Chairman and have the Chairman present it as a
representative of the Zoning Board? Is that the process that we should follow?
MR. SCHACHNER-There is no formal process that’s required. You could certainly do that.
There would be nothing wrong with doing that. You could even go so far as, and please
understand, I’m not saying you should or must do what I’m about to say, but you could go so
far as to enact a resolution, as a Board, a formal resolution. We have noticed that Joe Smith,
the applicant, has failed to comply with a condition of whatever. We request that Staff
initiate enforcement action. Again, please understand, I’m not saying you must do that or
have any obligation to, but that would be the most formal step you could take. You could, as
individuals at any time, call Staff and say, hey, I drove by Jane Doe’s property. I noticed
that she’s not complying with the condition of our variance approval. There’s no formal
requirements, nor is there any obligation to do any of that, but if you wish to do those things,
you can do those things, at any level of formality you wish.
MR. RIGBY-Okay. Good. Thank you.
MRS. RYBA-May I add something to that. I would suggest, though, that if there truly is a
violation, there is a violation, but it’s helpful to make sure that there truly is one, rather than
what might be an appearance of one, and so that’s just a caution.
MR. ABBATE-Yes, and let me follow up, too. In the event we do follow Counsel’s advice and
pass a resolution, I think it’s extremely, we have to be extremely careful, cautious in the type
of verbiage that we use, so as not to be interpreted as facts when in fact they may not be.
MR. SCHACHNER-Yes, that’s a good point. I mean, use words like apparent, there seems to
be and appears to be, what have you, and again, remember, I’m not suggesting you do these
resolutions, but that would be the most formal action you could possibly take and the least
formal would be somebody, on an individual basis, calling Staff and saying, hey, I drove by,
you know, Jane Doe’s property and I thought I saw such and such.
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(Queensbury ZBA Meeting 8/24/05)
MR. STONE-In reference to what Mark is saying, I know my own practice, as a member of
the Board, if I see something, I’ve always brought it to Staff’s attention, just informally,
because I think we are as knowledgeable, if not more knowledgeable, about what might be a
violation of our Zoning Code, and just bring it to Staff’s attention and let them do whatever
they do.
MR. SCHACHNER-Yes, if I could add to that, and you haven’t really asked for my
recommendation, but I’d like to throw in a recommendation. I think that, absent some truly
exceptional circumstances, I think as a Board you’re better off not going the formality route,
because you’re not the zoning police. We have zoning police, but you’re not it. I’m not it,
either, and when you take formal action, formal action can be subject of challenge, formal
legal challenge, judicial review, what have you, and since you’re not the zoning police
anyway, absent some real extreme circumstances, I would suggest that the most appropriate
avenue would simply be the informal telephone call. I was driving by, I noticed whatever I
noticed.
MR. ABBATE-And that way there, Counselor, the individual acts as a citizen of the Town of
Queensbury, rather than as an official on the Zoning Board of Appeals.
MR. STONE-Right.
MR. SCHACHNER-That’s exactly right.
MR. ABBATE-And we don’t worry about litigation that way.
MR. SCHACHNER-And my first answer to the first question was you have no different
standing than any other citizen, that’s correct.
MR. ABBATE-Right.
MR. MC NULTY-As long as we’re dancing around this, is there anything wrong, if you see
what appears to be a violation or you see something and you say, boy, that’s not what I
envisioned when we set conditions on this particular place. Is there anything wrong with
asking the rest of the Board, is this how you feel, too, bringing it to the Board’s attention, not
necessarily in the formal sense?
MR. SCHACHNER-Well, you can ask, and if you do so, of course, you should be doing so at
an open public meeting. What I would not do, though, is get into any significant discussion
of the merits of, well, you’re saying if there’s no application pending? In other this is post-
application, post-decision?
MR. MC NULTY-This is after the application.
MR. SCHACHNER-Post-decision.
MR. MC NULTY-Post-decision, happened to drive by the site, that’s not what I envisioned
when I passed it.
MR. SCHACHNER-You’re allowed to say, generally speaking, you’re allowed to say
whatever you want, so long as it’s an open public meeting.
MR. MC NULTY-It brings up two points. One, maybe it’s a violation, but if it’s not a
violation, and it doesn’t match what our general perception was at the time, then we need to
figure out what we did wrong with setting conditions or whatever.
MR. SCHACHNER-Sort of as a learning experience.
MR. MC NULTY-If it’s not a violation, okay, so be it, but how do we not do that again.
MR. SCHACHNER-Yes, as a learning experience for future reference, that’s perfectly fine.
You can do that.
MR. UNDERWOOD-I would ask the question, too. I know, Marilyn, you mentioned that
you spent considerably time on the Main Street proposals, and, you know, we occasionally
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(Queensbury ZBA Meeting 8/24/05)
have Main Street questionable variances come up before us, and not to talk about any that
have happened or will happen in the future, but I think it’s important for Staff to identify
that the Main Street guidelines are very important. If we’re hoping to achieve those
guidelines, that that should come into play, and that sometimes the Boards, I think, need to
be reminded of the fact of what those guidelines are, you know, when a specific variance
comes before us, and it’s something that’s maybe not going to fit in with what we visualize
the future’s going to be down there, that’s something that maybe Staff should identify, or
even have a little mini-insert, you know, in the discussion, you know, as the proposal is
presented by the appellants that we, that that is important in our decision-making, because I
think that in the past we’ve gone through considerable discussion on projects, and I think
there was a lack of understanding of what those guidelines were, and I think, you know, not
to justify that, but I think that in the eleventh hour we may have given the impression to
applicants possibly they were going to get what they were requesting, and then when all of us
were reminded by one of us, one of the Board members, by bringing up those guidelines,
people did change their minds, and I think that is important to consider.
MR. SCHACHNER-Could I jump in on that? I’d be a little careful there, as a Board, because
remember that, unlike the Planning Board, which has much wider discretion to consider
things like Main Street guidelines commercial development, corridor guidelines,
Comprehensive Plan, Master Plan, and the reason the Planning Board has much wider
discretion to consider those things is because the law says so. You, as a Board, really are
doing one of three things, typically. Either you’re ruling on a Use Variance application,
which has very rigid, very strict standards for granting or denial; a variance application,
which has not as rigid, but still a set of standards and criteria for granting or denial, or you’re
reviewing in what’s called the interpretation/appeal mode, some administrative decision made
by our zoning officer and in none of those three functions are you really statutorily or legally
authorized to look to Planning documents like Main Street guidelines. So I’d be very careful
there. I’m not suggesting you have to be completely ignorant of such things, but you also, for
example, couldn’t really rely on a provision from a planning tool guideline in rendering a
decision. So I’d be careful. I’m just urging a little bit of caution on that. I’d be a little
careful there.
MR. UNDERWOOD-My question related to discontinuous use, because I think we’ve had
uses that were traditional in that area of Town, and they weren’t maybe continuous uses of a
sort.
MR. SCHACHNER-The law addresses that. Once a pre-existing, nonconforming use is
discontinued for a certain limited period of time, which is 12 months or 18 months, it’s either
one or the other, it’s either 12 months or 18 months, I can’t remember which, the use is
deemed abandoned and then you have to comply with zoning or apply for a variance.
MR. STONE-Mark, to follow up on Jim’s situation, we do have a couple of areas in Town
where there are guidelines. Main Street, Upper Glen Street, and, I mean, each one of us can
make the applicant aware that these exist, I would assume, not forcing him to do something,
but wouldn’t you like to be a good citizen of Queensbury and think about them at least?
MR. SCHACHNER-That’s fine. I mean, you can sort of editorialize, suggest, even urge what
you like, but remember, that’s not your role, legally, in reviewing applications.
MR. STONE-I understand.
MR. SCHACHNER-So again, I would, generally speaking, I sort of view things a little bit on
the straight and narrow. I’d be careful not to go much beyond your statutory authority.
MR. STONE-Okay. Thank you.
MR. SCHACHNER-Suggesting things, I mean, you can suggest all sorts of things, but what
you can’t do is require.
MR. STONE-Right. I understand.
MR. ABBATE-The Zoning Board of Appeals has tremendous power, but we are constrained
by statutes and Town laws cases have been brought before the Supreme Court, and we really
have to stay well within those statutes, and really should only address, this is my opinion, as
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far as I’m concerned, the only thing we should address in the application is the evidence that
appears there.
MR. SCHACHNER-Yes, there’s no question about that, but remember that some of your
criteria, for example, in certain instances you have to look at effects or impacts on the
conditions in the neighborhood or district. I mean, I could make an argument that says that
if you’re looking at the effect on the neighborhood or district, if the neighborhood or district is
one that’s subject to these new development guidelines, and the neighborhood or district is
developing in accordance with those guidelines, you know, I could make a case for a nexus
there, as long as you’re doing it in that context. So it’s not maybe as rigid or black white as
we’ve been painting the picture thus far, but my answer to the question is, or my answer to
the question and the comment both is that you just need to be mindful of what you’re
authority is and what your limits are.
MRS. HUNT-Mark, am I interpreting you right that you were saying that we have to be very
careful about the conditions we put on these variances?
MR. SCHACHNER-I don’t remember saying anything about that, but it’s a true statement.
What Chuck said in his presentation was that you have the authority, under law, to impose
conditions on variance approvals, but what he said, I’m going to paraphrase but I’ll bet you
I’ll be real close to what he said, he said those conditions must be reasonable and must be
related.
MR. ABBATE-Exactly.
MR. SCHACHNER-Believe it or not, this is not the very first time I’ve done this. The
conditions must be reasonable and thus be related to the application and the grounds on
which you’re approving the application. I say approving because obviously you’re imposing
conditions. You’re not going to be doing that by way of denial. So that, for example, if an
applicant comes before you with an Area Variance for a setback on a gigantic property,
enormous property, and the setback variance is, you know, on the northern border. You
likely don’t have the authority to impose some condition relating to something thousands and
thousands of feet away on the southern border, on an Area Variance case, okay. Use Variance
you probably would because the Use Variance situation involves the use of the entire parcel
of property.
MR. STONE-Just for example, if somebody comes in with a very messy property, and wants
an Area Variance, nothing to do with the mess, we can condition it, I believe, that there will
be some clean up involved?
MR. SCHACHNER-Did you say can or cannot?
MR. STONE-Can.
MR. SCHACHNER-I don’t know that you could do that. I would be very leery of doing
that. When you say messy and clean up, it depends on the extent to which, as you call the
mess, relates to the criteria for approval. If the mess is already there, and it’s an Area
Variance for some minor thing, this would fall under the category of what I earlier said you
can suggest and encourage, but the law wouldn’t really authorize you to say, as a condition of
approving the Area Variance over here, you’ve got to clean up your junk vehicles, I’m
making this up, over here. The law wouldn’t support that.
MR. STONE-Okay.
MR. BRYANT-While you’re on the subject of conditions, just a comment and then a
question. I don’t think Mr. Abbate, in his presentation, mentioned, when we put a condition
on a commercial piece of property, we have to make sure that we don’t limit their ability to
do business. For example, we can’t tell a gas station turn off the lights at nine o’clock. I
don’t think that that’s an acceptable condition. Okay. Because we restrict their ability to do
business. If I’m correct, you know, if I’m not correct, tell me.
MR. SCHACHNER-Well, many conditions restrict someone’s ability to do business. So I
would not agree with the general proposition. Many, many, many conditions, almost any, no,
I’m not going to say almost any, many conditions that are imposed as variance approvals or
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site plan approvals, or special use permits by your sister Board, the Planning Board, impose
impediments on commercial business. So I don’t agree with that as a general proposition.
MR. BRYANT-Okay. I’m going to look up that reference and I’ll send it to you.
MR. SCHACHNER-Okay. You might have found something that was specific to hours of
operation. I notice you mentioned something about turning off lights at nine o’clock. I’m
guessing there are several cases that refer specifically to restricted ability to limit hours of
operation as an unpermissible infringement upon business. So I think that’s probably what
you saw. As to limitation on hours of operation, that’s dangerous ground, but where I took
issue maybe, Allan, was with the general proposition that conditions in general can’t limit
business. I don’t agree with that. Limitations on hours of operation have to not
unreasonably restrict one’s ability to do business. That’s probably what you saw.
MR. BRYANT-Okay, and just one question on top of that. What kind of mechanism does
Staff have in place to follow up all these conditions? I mean, it seems, as time goes on, we’re
getting more and more involved in these conditions on all these applications, and what do we
have in place to actually do something about it?
MRS. RYBA-It’s very difficult, and that is one reason why, when there’s conditions that are
there, conditions that are suggested, we will often pipe up and say, think about it, is it really
enforceable, and that’s one of the reasons why I’m trying to devote one Staff person to Code
Compliance or enforcement, because it does take a lot to follow up on these items, and we
have to be careful, and I’m not ask quick on my feet as Mark in terms of trying to think of an
example without thinking of an actual application that’s come before any Board right now,
but if I think of one, I’ll let you know, but in general, I’d say being specific is good. Here’s an
example. An example is there’s a requirement that we have to follow up on once a year to
make sure let’s say that there’s a new lease or something like that, you know, to put the onus
on Staff is a little difficult because somewhere we have to put into our calendars for the next
however long the person or the use, I should say the use is continuing on the property to do
that once a year. So it can be a little difficult. So the enforcement condition should really be
something that is probably done and then done with, that we don’t have to continuously
follow up on.
MR. BRYANT-So to just go one step further, I mean, if an application came before us and
somebody said, well, as long as a particular tree is alive, you’ll never cut that tree down.
Well, how in the world does Staff keep track of that? What do they do, drive around every
month and see if the guy cut the tree down? I mean, it doesn’t make any sense. I’m just
questioning the validity of those types of conditions, and whether they’re, we should even go
that way. You know what I mean?
MR. SCHACHNER-Yes, and from my perspective, I think that your questioning that is
very, very appropriate, and a lot of times in what I call the heat of the moment, the applicant
wants approval, the Boards, and this is by no means unique to this Board, the Board is
saying, yes, let’s help the applicant along. Let’s move along our agenda. Let’s approve the
thing. Some representation like that will be incorporated as a condition, and as Marilyn said,
when we sit here counseling and guiding the Boards, one of the things we say is, you know,
think about that. That’s really going to be difficult if not impossible to enforce. So to the
extent that you get, again, not this Board only, but any Board, gets bogged down in that sort
of thing, for what it’s worth, I think your concern’s very appropriate. I many times Boards
get bogged down in stuff that when push comes to shove will not be enforceable, not because
it’s not legally enforceable, but it’s just not enforceable as a practical matter. Because as you
say, if we approve, between the two Boards, 20 items per month, most of them have
conditions, nobody could possibly, no matter what car they had and how many hours they
put in to the office, nobody could possibly go around seeking to enforce each and every one of
those conditions.
MRS. RYBA-I will say, however, that the good citizens of Queensbury do a great job of
informing us, and that’s why we’ve had so many phone calls.
MR. ABBATE-Maybe the one exception might be this, that if an applicant came before us for
a variance and the history of the application indicated that a previous variance conditioned
an approval upon a particular tree not being cut down, that would be interesting, Counselor.
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MR. SCHACHNER-Well, we get all sorts of applicants that have past compliance problems
and I think, empirically, as a practical matter, Staff watches them more carefully than others,
just like law enforcement, and you would know far more about this than I, but my impression
is law enforcement personnel have an extra sharp eye for those who have run afoul of the law
in the past. That makes good commonsense. There’s no difference, I think, in that municipal
enforcement.
MR. ABBATE-And let me say this, that at our meeting, when I met with the Executive
Director and Planning Staff, we discussed this, and part of our approvals, if there are
conditions, we now have a provision in there that I make sure that the applicant acknowledge
the fact that there are conditions, and that he has to bring it to the attention of the Zoning
Administrator, and I’m sure, Marilyn, you recall that, Susan. So that kind of locks it in
somewhat.
MR. SCHACHNER-Yes. That’s actually enormously helpful to us in the defensibility of
your decisions. To the extent you can gain explicit, on the record, consent to your conditions
from the applicant, that’s actually enormously helpful in enforcement. There have been
cases, not recently, but many years past, and again, not just here but elsewhere, where
applicants say, hey, yes, they imposed that as a condition. I didn’t know it, I mean, I don’t
tend to buy that, but people say I didn’t know it, I didn’t agree to it. It doesn’t really matter
that you have the right to impose conditions, whether they agree or not, but it really makes
our job easier, which I’m a big believer in, if you can get them to affirmatively and explicitly
consent to the various conditions on the record. That’s terrific. I agree.
MR. ABBATE-And, Counselor, believe me, I do that. I ask like a teacher to a student, do
you understand this condition, on the record.
MR. UNDERWOOD-I’d like to address a hypothetical situation. I know that, you know, to
the south of us, you know, when we go to Clifton Park and further down the line, even in Fort
Edward, we’ve had kind of a history of, you know, an occasional mega project that comes up,
you know, which may be, in a sense, an unpalatable situation to the community, you know,
where you have sort of a ground swell of people out there who don’t buy into that scheme,
and I’m wondering, you know, we have the PORC Committee, but it seems to me like much
of what’s been done there has been useful, but it’s been reactive to previous existing
situations that we’ve run into that we tried to remedy, but I think there needs to be more pre-
essence on the part of the Town and Staff and legal representation. I think that your
perspective, because you’re out there in many communities, not just our own community, but
it would seem to me that it would be imperative that we, in the future, look at what’s
happened elsewhere, because I would think that we’re kind of at the edge of a bubble of
what’s going to be, you know, a change in the way that our Code is administered. I mean, I
think that we’re all pretty much on board with what we’re doing here, in regards to the
present Code, but I’m thinking in the future, you know, as population density increases in the
area, there’s going to be situations where things are going to have to change. Is the Town
going to be astute enough to recognize and preserve the areas of Town as we have them, you
know, like, and I’m thinking like the south end of Town, where you have more reasonable
housing and things like that, like as real estate prices go up in the future, you know, I know
that in some instances to the north there’s like Lake Placid, many of the more lower income
people have been forced out of those communities as a result of changes, you know, in the
valuation of the property. Is that something we’re going to be dealing with, or do you foresee
that in the future? I mean, I don’t know.
MR. SCHACHNER-You’re looking at me, but that’s clearly not a legal question. So I can’t
answer that. I don’t really think it’s a bad question, either.
MRS. RYBA-Yes. I’m just trying to get a handle because there were so many, I think, items
that were brought up there, and what I’m hearing is how you address change, and I think
that that’s where the changes in the Comprehensive Land Use Plan, Zoning Ordinance, and
Subdivision Regulations are really important and where the participation of all of the Board
members and the public really comes into play, to see how we can address what you really
want to visualize your community to look like, and, Mark, I think you have a legal response
to my comment.
MR. SCHACHNER-Yes. Well, my response is very blunt. More power to Jim and anyone
else who wants to participate in those exercises, but short, blunt, not meant to be rude
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comment from Counsel is this has nothing to do with the Zoning Board of Appeals. Just so
that’s clear. Go for it is my other comment.
MR. BRYANT-I have just a couple of questions for Mr. Abbate on his presentation that I
didn’t quite understand. You talk about a 62 day timeframe to render a decision. From what
point is that? Is that from what?
MR. SCHACHNER-Do you want to answer or do you want me to answer?
MR. ABBATE-I don’t care. Go ahead, Counselor.
MR. SCHACHNER-It’s 62 days from the close of public hearing.
MR. BRYANT-Okay. So what you’re saying is, conceivably, we could hear a case, close the
public hearing, and decide, for example, and this goes to one of my next questions. A lot of
times you get attorneys bringing information at the last minute to the hearing, and they’re
photographs and detailed drawings and all this.
MR. SCHACHNER-Sometimes people do that who aren’t attorneys.
MR. BRYANT-Yes, well, we’re expected to absorb it, and then make a decision. Now, my
question is, in that case, would it be better to hear the application, have the public hearing
and then render a decision at the next meeting?
MR. SCHACHNER-I can’t say whether it’s better to, but what I can tell you is you
absolutely have the right to do that, and to the extent that you feel that applicants, or
anyone else, ever puts guns to your head and say, we need to know tonight, they don’t need
to know tonight. This happens all the time, all kidding aside, attorneys are notorious for it,
but others are as well. You have 62 days from the close of public hearing in which to render a
decision, longer with applicant’s consent, but by law, 62 days from the close of public hearing.
So this hasn’t come up that much here, but it comes up all the time, or, I shouldn’t say all the
time, but relatively frequently at the Planning Board. You’re not obligated to make a
decision the night you close a public hearing. There’s an expectation, because you all have
done a good job of, to the customer, so to speak, of creating, you know, we’re user friendly, we
try to move things along promptly. We try to make decisions on a reasonable timeframe and
what not, but the law is very, very clear. You have 62 days from the close of public hearing.
That typically means, depending upon how the calendar falls, you could make your decision
on something that you close the public hearing on at next month’s meeting or even at the
earlier of the following months.
MR. BRYANT-Okay. On that train of thought, does that also apply to an appeal?
MR. SCHACHNER-It applies to anything.
MR. BRYANT-Okay. So if somebody has an appeal that’s very complicated, and they bring
all of what they perceive is all the evidence, we can.
MR. SCHACHNER-You don’t have to decide at that point, and in fact, you’ve exercised that
right in the past. I can think, off the top of my head, of one example.
MR. BRYANT-We’ve never done that, okay.
MR. SCHACHNER-Yes, you have.
MR. BRYANT-I don’t remember.
MR. SCHACHNER-No, I’m absolutely certain. I’m not going to name a specific case
because the Chairman said not to mention any specific cases, but I can tell you for sure, I can
think of a specific case, which I’ll discuss on an individual basis with you after the show, if
you like, where you availed yourself of that exact opportunity. You felt it was very
complicated. I tend to agree with you, by the way, and you decided that you were not going
to decide the matter on the night that the proceeding was concluded. You decided to convene
at a future time to deliberate and decide the matter, not on the night of when the proceeding
was held, and you were absolutely within your right to do that.
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MR. BRYANT-And do you have to re-open the public hearing?
MR. SCHACHNER-No.
MR. BRYANT-No.
MR. SCHACHNER-You should not re-open the public hearing. The public hearing has
ended. You’re doing this at an open public meeting, but you’re not re-opening the public
hearing.
MR. BRYANT-And all you have to do is render your decision, or go do the motion, whatever.
MR. SCHACHNER-Correct.
MR. ABBATE-Marilyn and I and Susan discussed it before, Counsel. This is a new
procedure, guys, by the way, that I’m introducing, effective immediately. Counsel, let’s do a
little role playing here, because I don’t want to name any other attorneys that come before
us. Mr. Schachner comes before us, and first thing he does is hands us out a stack about six
inches of new information.
MR. SCHACHNER-The first thing he does is get disbarred because he’s not supposed appear
before a Board he represents.
MR. ABBATE-That’s minor, put that aside. Now the first thing I’m going to say, Mr.
Schachner, Counselor, how critical is this new information you wish to introduce into the
record at this late hour to this appeal, and he’s going to say to me, crucial, and I’m going to
say, Mr. Schachner, you have two choices. Ask, Number One, for a tabling of this appeal or,
Number Two, ask we hear your appeal without this new evidence in view of your last minute
maneuver to introduce it. Let me explain to you, Mr. Schachner, my rationale. Each
applicant should be able to enjoy the benefit of the deliberate and thoughtful process on the
part of all members of this Board, and in order to do so, we must be able to assimilate that
information and come to a fair and unbiased decision, and as such, Mr. Schachner, we need
time to read this newly acquired evidence, and for the record let me make it clear to you, Mr.
Schachner, abundantly clear, I’m not rejecting this new evidence, but merely asking for time
to assimilate it in order to provide the appellant a fair and unbiased hearing. Now the
decision is yours.
MR. SCHACHNER-And I’m the applicant.
MR. ABBATE-You’re the applicant.
MR. SCHACHNER-As long as I’m the applicant, that’s perfectly appropriate. Remember,
however, that if I were not the applicant, but let’s say I’m the attorney for a neighbor who’s
opposing something, if the public hearing is open, I have the absolute right to submit, and it’s
up to you whether that delays it or not.
MR. ABBATE-Now we’re talking about this last minute maneuver, and may I say this, in a
very delicate way, that includes Staff, too. I’m not going to accept anymore documentation
at the last minute. It’s inappropriate.
MRS. RYBA-Define last minute.
MR. ABBATE-Thank you, ma’am.
MR. BRYANT-While we’re on that train of thought. We’re talking about notes and
evidence and all that stuff, a question for Staff. Mrs. Ryba, you mentioned that when Mr.
Frank or Mr. Brown go out to visit a site, they take notes, etc., and you guys have meetings
and discuss whatever’s going on. You have a mechanism. I’m assuming some kind of project
folder or something, and you share those notes with the other Staff people, like Mrs. Barden,
if she’s not there at the visit and Mr. Brown is there and he notices this is in the wrong place,
he takes notes and there’s some mechanism for Mrs. Barden to see these notes. Right?
MRS. RYBA-Correct.
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MR. BRYANT-They’re all shared. The question I want to ask is why, when you have those
kinds of visits, and those types of notes exist, why isn’t that part of the package? Why isn’t
that part of the evidence?
MRS. RYBA-There’s interoffice communication. It doesn’t, it’s something that isn’t brought
into the record because it’s what we’re doing to review the application. I mean, there could
be an awful lot of paperwork, too. So there’s a practical matter of how much is really
necessary for the Boards to see, and that’s, I think that’s a large part of it, is the practical
nature of it. The other aspect is that there may be some very mundane things that you really
don’t need, and there’s, as I said, there’s a lot of information that I just don’t think you
necessarily have to see. I mean, the fact that Susan does, perhaps goes to the site, takes some
pictures, and says, here’s everything I’ve noticed, and then finds out two days later, after
doing further research that, here’s the reason for this, here’s the reason for that, or this other
thing was incorrect. So there’s been some resolution, and if somebody’s only reading up to
Point A, and they haven’t read Point B, there could be some misinterpretation, too. So I
think there’s a bit of a danger there as well. I don’t know, Susan, do you have any comments
or thoughts on that?
MRS. BARDEN-Well, I think, for me now, being fairly new, I rely a lot on the experience of
Craig and Bruce, and a lot of applicants that make application have a history, or the parcel
itself has history, and I go through that history and I give you what I think is relevant
information for you to make a decision on what’s in front of you, and all of the records are
always open to you to come and look through, but it’s not just practical, as Marilyn said, to
supply you with a ton of information. So I think you rely on Staff in general to kind of sift
through this stuff and give you what we think is pertinent.
MRS. RYBA-I do want to make a point, though, that certainly anything that the applicant
submits, of course, goes to everyone, and of course Staff notes, and that’s what the intent of
Staff notes is, is to condense our observations, to condense what we’ve sifted through. I
mean, we have some checklist information, and the Zoning Board works a little differently
than the Planning Board, and the Planning Board, we prepare resolutions where included in
that resolution is every single item that goes through, in terms of, that’s relevant to the
application, and that may not be, for example, in some instances there’s attorney
correspondence, which is held confidential, because it’s attorney/client. So that’s the intent of
the Staff notes, and I don’t know, I mean, there’s that balance between how much is too
much, and how much is not enough, and typically what we’ve heard is less is more. I mean,
there’s certainly a lot of information that’s available. There’s minutes that are on our
website. We keep an awful lot on our website. There are minutes from past meetings. So you
can find that out. Once again, if there are questions about, we do the history and the
agendas. If there are questions on that, certainly anyone’s welcome to come in and look, you
know, we have to get the records out of the archives and go through that, although typically
we get those out of the archives anyway when we’re reviewing an application.
MR. BRYANT-When you talk about history, in recent months, there’ve been a number of
cases, and I don’t remember them offhand, where they have had applications that were either
withdrawn or postponed or tabled or whatever, and where we had discussion, the Board had
discussion, but all those incidents were not included in the history, the actual parcel history.
So what happens then, I know it’s not part of the real history, but what happens is then
individually we’ve got to read the minutes of a particular ending meeting to locate a reference
to another date, go back to those minutes, so that you can see what the disposition of the
Board and the discussion about what the conditions were. So, I mean, there’s got to be some
kind of something to do with the history to change that.
MRS. RYBA-Well, if the history, it depends, too, on how much the history impacts what the
applicant is asking for right now. I mean, here’s an example where I think you may be
leading, but if an applicant’s asked for, let’s say there’s a setback for 30 feet, and the
applicant’s asked for a variance, five years ago, and they want 10 feet of relief, and then five
years later they ask for another five feet of relief and 10 years after that they ask for another
10 feet of relief and next thing you know, is that what you’re getting at, that you want to
know what the history is there because you think that will impact your decision of what’s
being asked currently?
MR. BRYANT-That’s one type of case, okay, where it might be beneficial to read the
minutes of the meeting for the previous variance, okay, but that clearly listed on the Staff
notes on the history, but then there are other indications, and I don’t remember the cases,
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where it was postponed. We had a discussion, and then it was tabled to another, the same
variance was tabled, and so that’s not included as a line item in the history, and therefore in
order to actually, you’ve got to do a lot of research to get back to site one, if you know what
I’m saying.
MRS. RYBA-Well, if an application was withdrawn, and somebody comes back with their
changes, then they’re starting from Square One again, but if there’s a tabling, you still should
have that history of the previous information.
MR. BRYANT-Yes, but it hasn’t always been included, and there’ve been some cases, I don’t
remember which ones they were specifically, where in fact I had, I don’t remember the cases,
and I had to send a slew of e-mails to Sue Hemingway, and she was very quick to find all the
minutes, but it was a question of reading the minutes to realize that that petitioner had been
before us for the same thing about something, you know what I mean, and it wasn’t recorded
in the history. So I’m just wondering how that history is actually recorded.
MRS. RYBA-Well, if it’s the history of an approval or a denial, that’ll be in the record.
MR. BRYANT-It wasn’t concluded.
MRS. RYBA-Well, if it wasn’t concluded, and then they dropped it without withdrawing. Is
that what? That’s the only situation where I can.
MR. UNDERWOOD-I think he’s maybe thinking of like a starry decisis type situation,
where if you hadn’t gone back and read the old record, you wouldn’t have understood the
context, because I think a lot of times we’re placed in a position where we’re looking at
something in its present day usage where you have a nonconforming use that’s been there for
many, many years, and then you’re supposed to be making your decisions based upon the
Code as it exists now. In that situation, unless you went back and researched when this place
came into existence and over the years how it changed and things like that, that should
probably come into play in our decision, as opposed to just looking at it through the present,
you know. I mean, you’ve got to look at the past. You’ve got to look at the future, also, I
would think, in our decisions. I don’t thin that they’re just focused on the now exclusively,
because if you did that, many of our variances that we pass would not pass, you know, as a
result of that.
MR. ABBATE-At our meeting, Marilyn and I and Susan addressed that sort of thing, and I
think one of the purposes of what we did, I think, I think it was last Friday, or whenever it
was, over these applications, was went through them and took a close look and said, gee,
maybe there’s some history that we should include in the minutes of the meeting that and
provide it to the ZBA. So I think we may have addressed that.
MRS. RYBA-I mean, we can provide certainly, if it’s old minutes, we can look up old minutes
and provide those, because obviously they won’t be on the website. I mean, certainly that’s
something we can try, but you’ll have to fill us in if you think it’s too much information.
That’s all.
MRS. BARDEN-One last thing. If an application has been withdrawn or tabled, it has the
same application number, and you should have the resolution and the minutes from your
previous discussions. If, and this kind of goes to what Mark was saying earlier, if you’re
looking at a setback for a garage, if that same parcel or applicant had been requesting a
variance to put a pool in their side yard, they might not have anything to do with one
another. So I guess it’s, you know, my discretion, and if you what more, or if you feel like
you’re missing information and you’d like some more information, just let me know.
MR. BRYANT-This exactly speaks to conditions. Because as you made that sample there,
example, where somebody had gotten 10 feet of setback at one point and now they’re
requesting another five, well, without reading the minutes, when they got the variance for the
10 feet, we’d never know that one of the conditions was, they’re never going to build anything
on that side of the house again. Do you follow what I’m saying?
MRS. BARDEN-Yes.
MR. BRYANT-So I don’t remember the case. If you go back through Sue’s e-mails, you’re
going to find there’s two or three cases.
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(Queensbury ZBA Meeting 8/24/05)
MRS. RYBA-Well, I think that, and this gets to a point where there’s a difference between a
condition in a resolution and something that the applicant may have promised as part of the
meeting record, and we do, you know, have the conditions, for example, conditions are placed
on a plat, or conditions may be placed on a plan, but that would be based on the resolution
only, but if there’s something that’s in the minutes that somebody said, well, yes, we think
this is a good idea and everybody agrees it’s a good idea, and then the applicant changes his
mind and says, it’s not part of the resolution, I guess I don’t really have to do this. So that’s
something else to be aware of, and part of our research is when we do research we do look at
the past history. So I would hope it would be a rare instance where a condition hadn’t been
included as part of our review.
MR. ABBATE-I’d like to change gears for just a second, and we have a number of folks in the
audience, and perhaps if any of you have any questions with limitations, and I’ll describe to
you what the limitations are, any questions you’d like to raise? Any discussions you’d like to
make.
JOHN SALVADOR
MR. SALVADOR-What’s the limitation?
MR. ABBATE-Is that Mr. Salvador? Sixty seconds.
MR. STONE-That’s a limitation.
MR. ABBATE-Yes. My fellow Board member just whispered in my ear to remind the
members of the audience that I will not allow any discussion of a pending variance or a past
variance.
MR. SALVADOR-Thank you, Mr. Chairman.
MR. ABBATE-You’re welcome.
MR. SALVADOR-During your presentation, Mr. Chairman, tonight, I heard the term,
appeal of an administrative official used, as well as an appeal of a decision of an enforcement
official. Are those two positions mutually exclusive? Are they inclusive? What does the
appeal apply to? There are many administrative officials in the Town. There are several
enforcement officials in the Town, and to what type of officials does an appeal apply? Whom
can I appeal?
MR. ABBATE-That’s an excellent question. Counselor?
MR. SCHACHNER-I’m going to urge that that question not be answered.
MR. ABBATE-Thank you.
MR. SCHACHNER-And the reason I’m going to urge it is because the individual who asks it
is the single individual who has initiated more litigation actions against the Town of
Queensbury than any other individual, as far as I know, in the history of the Town of
Queensbury, and one of the source of one of the topics of some of the litigation has been
germane to the very question he asks. So I’m going to suggest that that question not be
answered.
MR. SALVADOR-Okay. Is there a statute of limitations on a violation? The violation I’m
referring to is a violation of a condition that has been issued as a result of a variance approval,
either Area or Use. Marilyn said she receives many telephone calls, and these are telephone
calls from just people passing by, if you will, that recall that things are not as they had
thought they would be, and so they are calling. Frequently this just, it’s just a telephone call
and you wait for something to happen, and nothing happens. No follow up is taken. No
enforcement is undertaken. What does the person do?
MR. ABBATE-Is that your question, what does a person do?
MR. SALVADOR-Yes. What is the next step?
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(Queensbury ZBA Meeting 8/24/05)
MR. ABBATE-Okay. Another darn good question.
MR. SCHACHNER-Two part answer. First part, same advice, as to the specific question, or
the specific question about Statute of Limitations, and I apologize for giving that advice. I
feel that the open forum portion of this proceeding is not going as well as we hoped, but that’s
my advice, but as to the second part of the question, I will answer that. The second part of
the question, enforcement is discretionary. Enforcement is discretionary. People have a lot
of trouble understanding that, but just as I will confess, even in this open public meeting,
that I occasionally drive a small number of miles per hour in excess of the speed limit, okay.
If you see me driving at 46 miles an hour on Bay Road in some place where the speed limit is
45 miles per hour, and you call the State Police, and you say I saw this car going 46 miles per
hour, the State Police has the right to come seek to charge me with speeding, but not the
obligation to do so. Enforcement is discretionary. This gentleman and anybody else who
wishes can, and frequently people do, as Marilyn indicated, many, many, many people,
dozens and dozens and literally hundreds of people make complaints about alleged violations
in the Town of Queensbury. Everyone has the right to make those complaints, but there is
actually no legal obligation for anyone to follow up on them, and enforcement is
discretionary. Obviously, people do follow up on them, and I would never suggest that people
don’t follow up on any, but enforcement is actually discretionary.
MR. BRYANT-Well, that basically speaks to the condition question that I asked, and when
we have a lot of conditions that are not enforceable, that’s where the discretionary thing
comes in.
MR. SCHACHNER-It does, and again, from our standpoint, we try to counsel you to be
careful about conditions that just sort of lend themselves to difficult enforcement because of
that exact reason. You’re correct.
MRS. RYBA-I would like to add, too, a large number of the phone calls we get, and I’m glad
Mark Schachner had mentioned alleged, because what we find out in many, many instances
it’s neighborhood feuds, and situations that really may or may not have anything to do with
the zoning code. I can give you an example, homeowners association covenants. Those are
private deed restrictions that we do not have any authority or power to enforce, and I could,
some day when I retire I’ll write a book and you can buy it from me, in terms of all the
wonderful situation where neighbor against neighbor and they’re looking for a mediator and
they often call us. So the term alleged is a good one. So sometimes we have a good sense
when we have 10 neighbors calling about the same thing, and we’ve been out there four or
five times, do we have to follow up on the other five phone calls, not necessarily because
we’ve done it a number of times and we know what the situation is. So I think there is some
discretion involved there as well.
MR. SCHACHNER-There’s an enormous amount of discretion, and many alleged zoning
violations pan out and have a basis and are well founded, meaning the allegations, and many
are unfounded, and don’t pan out.
MR. ABBATE-Well, right, in the final analysis, enforcement is discretionary. It’s as simple
as that. There’s no other way to explain it.
MR. SALVADOR-All right. I would interpret, and I’m speaking to a specific line item in a
variance. I’m not talking about general things. I’m talking about a variance has been
granted, there’s a condition in there of approval, okay, and it’s being violated.
MR. ABBATE-Wait a minute. There’s an approval. You mean in addition to the approval,
there’s a condition?
MR. SALVADOR-Yes. It’s based on, the approval has been based on a criteria.
MR. ABBATE-In addition to a condition? See, I’m not following your question.
MR. MC NULTY-No. He’s talking about the same kind of thing we were talking about
earlier. You give somebody a variance to exceed the height limit on building their garage by
three feet, as long has he does not cut that beautiful maple tree.
MR. ABBATE-Okay.
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(Queensbury ZBA Meeting 8/24/05)
MR. MC NULTY-Now somebody cuts the maple tree.
MR. SALVADOR-Let’s make it more specific. Let’s say the variance was granted for three
feet, and nothing was done by the Town to determine that the applicant lived within the
three feet, and the applicant actually built five feet. It hasn’t come to the Town’s attention,
but someone notices, three years later, five years later, that, gee, that’s not three feet, that’s
five feet, and calls the Town, and let’s assume the Town undertakes no action whatsoever. I
interpret that to be a lack of determination on the part of someone, an official of the Town.
Is that lack of determination appealable to this Board? Where do I go for relief?
MR. ABBATE-Is that lack of determination appealable to the Board? By whom? Who has
the standing to appeal it?
MR. SALVADOR-The person who notices that there’s a violation. Just driving, happens to
notice that there’s a violation.
MR. SCHACHNER-Mr. Chairman, the gentleman has asked the same question in a different
context in another municipality that I represent, but I don’t mind sharing a one sentence
answer. It’s our opinion that people have the right to appeal determinations, not lack of
determinations.
MR. ABBATE-And let me say this, and I thought I made it clear when I gave my little
presentation. We are limited by what we may hear. We may only hear, basically a denial. If
there has been no denial, we can’t hear a case.
MR. SCHACHNER-Right. His question has nothing to do with the Zoning Board of
Appeals. He’s asking a question about enforcement.
MR. ABBATE-We have nothing to do with enforcement.
MR. SCHACHNER-I understand that.
MR. ABBATE-So that’s an inappropriate question to the Board.
MR. BRYANT-Yes, but I just want to, something you just said struck my funny bone. I
understand what Mr. Salvador is trying to say, okay, and what Mr. Abbate has said, we have
nothing to do with enforcement. I agree with that 100%. However, I think the question that
Mr. Salvador is asking is relative to Staff being inactive on a complaint. Now, and you just
said that he has a right to appeal, but not lack of, whatever.
MR. SCHACHNER-Right, and I apologize. His question does have something to do with the
Zoning Board of Appeals. I apologize. That was not a correct statement.
MR. BRYANT-But isn’t lack of effectiveness or lack of, whatever, what’s the word?
MR. SALVADOR-Omission.
MR. BRYANT-Whatever.
MR. SCHACHNER-Right, acting by omission. I seldom try to put words in this gentleman’s
mouth, but I think what his position is, or he wishes to assert a position that an omission can
be deemed an appealable action, a failure to act can be deemed an appealable action.
MR. BRYANT-Isn’t that in itself an act, though?
MR. SCHACHNER-I’ve told you already, our opinion is it’s not, and I think that’s
supported by State law. I’m not saying it shouldn’t be, and I’m not saying whether I
philosophically agree with them or disagree with them, but what I’m telling you is under New
York State law I don’t believe that, I think that someone has the right to appeal the
determination. If somebody requests a determination be made, and it’s never made, I think
the failure to act is not an appealable determination, and I think New York State law
supports that position.
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(Queensbury ZBA Meeting 8/24/05)
MR. STONE-It’s kind of like in baseball, an error is a lack, a commission. The fact that the
guy didn’t go get a ball, if it goes over his head, he doesn’t make a very good effort, that’s
omission. It’s not an error. It’s the same kind of thing.
MR. SALVADOR-Well, I’ll conclude with this statement. Before this issue of the Zoning
Ordinance before you, the old Zoning Ordinance included the word omission.
MR. STONE-Okay.
MR. SALVADOR-You could appeal an omission. It was in there. Somehow, someway, it got
dropped out of this issue. Thank you.
MR. ABBATE-Thank you, Mr. Salvador. Anyone else have any comments? Yes. Mr. Bob
Vollaro, I believe. Okay.
ROBERT VOLLARO
MR. VOLLARO-One of the things I just want to address is something that the Chairman
addressed, and that’s when we at the Planning Board, at least, convene on applications, very
often on the night of the meeting we are handed additional information. The Planning Board,
as every other Board, is under a certain amount of pressure to complete an application in
order to limit back log, and so very often the Board remains silent, and I’ve noticed this, the
Board will remain silent when new information is placed before it, and continue its
deliberations, and I’ve often said, as one sitting member of that Board that, you know, I’ve
said to the Chairman, we should not be accepting information on the night of the meeting
that cannot be easily digested. We do have a point of departure. If it’s a one page thing and
it might be very, very small, we can set that side and do it, but very often that’s not what’s
dropped on us. I mean, for example, we may not get a complete reply to our engineering
comment, the comment that the engineer makes on our application, our engineer, the
engineer is C.T. Male, to be specific. We don’t get those comments answered by the applicant,
and we make it a condition that those questions be answered. I mean, what we’re doing in
some sense is abdicating that responsibility to our Staff, and it’s my position, as one Board
member, that we should have the obligation to read and understand the criteria that is laid
down by our employed engineer, and also understand the answers very clearly to those
questions, and that comes from my own background. I tend to look at those kind of things.
So, I appreciate, Mr. Chairman, your position that you will not accept, I think you made that
very emphatic from standing at this podium, that you would not accept information on the
night of the meeting, unless it’s trivial.
MR. ABBATE-I don’t like to admit it publicly, but there will certainly be a gray area like a
photograph. If you’re going to submit a photograph, I can make an exception.
MR. VOLLARO-I agree with that, but in some instances, that’s not what happens, and the
applicant is constantly maneuvering to try to get himself through the process on the night
and get what he hopes to be an approval, and the Planning Board, very often our Board, kind
of, you know, doesn’t exactly, nobody seems to stand up and say we’re not going to look at
this tonight.
MR. ABBATE-It would be inappropriate for me to comment on any of the Planning Board,
but I can assure you that, as Chairman of the Zoning Board, I will not be mute. I will be
quite vocal on it.
MR. VOLLARO-Okay, and that’s my only comment. Thank you very much.
MR. ABBATE-You’re welcome.
MR. SCHACHNER-Could I ask a question? I was confused by something that Mr. Vollaro
just said. It’s characterizing what you said earlier. I thought, well he said that you were very
strong stating you would not, that the ZBA would not accept information on the night of the
meeting. I thought what you said was, if an applicant offers information on the night of the
meeting, you will say to the applicant, look, applicant, it’s not fair of you to dump this on us
tonight and expect a decision tonight. Your choice is either we’ll accept the information, but
then we may not decide your case tonight, or we won’t accept the information. Your choice.
Wasn’t that what you said?
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(Queensbury ZBA Meeting 8/24/05)
MR. ABBATE-I’ll tell you, our Town Attorney is good. For the record, let me clear it up.
We did a little play acting here, and basically what I said, when an individual was attempting
to introduce into the record at a late hour, I basically said that to the attorney or to the
appellant, it doesn’t matter, you have two choices, one, this is for the record, ask for a tabling
of this appeal, or ask we hear your appeal without this new evidence in view of your last
minute maneuver to introduce, and then I said, allow me to explain my rationale, and I went
on to rationale, and then I said that let me make it abundantly clear I’m not rejecting this
new evidence, but merely asking time for the members of the Zoning Board of Appeals to
have an opportunity to assimilate that information, so that we may provide not only you but
your client a fair and unbiased hearing.
MR. SCHACHNER-Yes, precisely. So I guess the point I was making, Bob, is I want to
make sure you didn’t misunderstand what Chuck said earlier. It’s not the ZBA’s policy, as I
understand it, to not accept the information. It’s the ZBA’s policy to not subject themselves
to the pressure of, I want you to take the information and I want you to decide the case
tonight, and you know that the Planning Board has the right to do that. I don’t disagree, by
the way, with your characterization of the Planning Board’s reluctance to flex that muscle
thus far, but the Planning Board has every right, just as does the ZBA, to say to an
applicant, hey, it’s not fair to hand us this stuff tonight and to try to force us to make a
decision tonight. It’s your choice.
MR. ABBATE-Do we have any other comments or questions from either the folks in the
audience or from this Board? I have a final comment. I would like to really, for the record,
express my appreciation to Marilyn and Susan and for Town Counsel, and I also would like to
express my appreciation for an outstanding job, for the next individual I’m going to
recognize, because she rarely receives any credit, and that’s Maria. Thank you, Maria, for the
great job that you’re doing. Any other questions or answers or discussion? Then the
workshop is closed, and thank you so very much, ladies and gentlemen.
On motion meeting was adjourned.
RESPECTFULLY SUBMITTED,
Charles Abbate, Chairman
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