10-23-2013 (Queensbury ZBA Meeting 10/23/2013)
QUEENSBURY ZONING BOARD OF APPEALS
SECOND REGULAR MEETING
OCTOBER 23,2013
INDEX
Area Variance No. 35-2012 Blue Moose Tavern/Daniel&Ellen Nichols 1.
FURTHER TABLING Tax Map No. 288.20-1-18 and 19
Notice of Appeal No. 2-2013 Kenneth W. Rohne 3.
Tax Map No. 266.-1-19
Area Variance No. 57-2013 Michael Park 17.
Tax Map No. 295.10-1-29
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.
1
(Queensbury ZBA Meeting 10/23/2013)
QUEENSBURY ZONING BOARD OF APPEALS
SECOND REGULAR MEETING
OCTOBER 23,2013
7:00 P.M.
MEMBERS PRESENT
RICHARD GARRAND,ACTING CHAIRMAN
ROY URRICO, SECRETARY
JOHN HENKEL
JOYCE HUNT
HARRISON FREER,ALTERNATE
MICHAEL MC CABE,ALTERNATE
MEMBERS ABSENT
RONALD KUHL
ZONING ADMINISTRATOR-CRAIG BROWN
TOWN ATTORNEY-MILLER, MANNIX, SCHACHNER&HAFNER-CATHI RADNER
STENOGRAPHER-SUE HEMINGWAY
MR. GARRAND-Thank you for coming and welcome to the Town of Queensbury Zoning Board of
Appeals meeting for Wednesday, October 23, 2013. Prior to setting this hearing in motion, I'd like
to acquaint you with the information that will familiarize you with the responsibilities of the Board
and the mandated legal requirements we are guided by and the procedures for hearing before this
Board. The function of the Zoning Board of Appeals can grant (or deny) two types of relief,
interpretive and variance. In either case, the Board will affirm, reverse or modify the enforcement
officer's decision. In doing so, this Board will either permit or deny the requested relief. If the
appeal is for an interpretation, this Board's decision will be based on the Town of Queensbury
zoning regulations. If the appeal is for a variance, this Board's decision will be based on the
standard of proof contained in NYS Town Law 267-b. Additionally, the Zoning Board of Appeals
may only authorize the minimum variance necessary to relieve the applicant. We invite public
comment on each appeal, however, in the interest of time please be crisp, organized and limit your
comments to only the facts and information given this evening. On opening the public hearing the
public will be allowed a maximum of 5 minutes to comment on a specific appeal. The purpose of
this time limitation is to provide each member of the public an opportunity to be heard, and also to
limit the length of the hearing to a reasonable time. First on tonight's agenda is an administrative
matter.
ADMINISTRATIVE ITEM:
AREA VARIANCE NO. 3 5-2 012 BLUE MOOSE TAVERN/DANIEL&ELLEN NICHOLS
NO FURTHER TABLING-ZBA MAY DENY WITHOUT PREJUDICE
JOHN WRIGHT FOR APPLICANT, PRESENT
MR. GARRAND-It is a request from counsel regarding the Blue Moose Tavern. They're requesting a
further tabling to the December 15, 2013 meeting. Previously this Board has agreed to a tabling.
Board members,how do you feel on this?
MR. HENKEL-I'm not in favor of tabling it again. It's been tabled quite a few times. So I'd have to
say no at this point.
MR. MC CABE-Yes, I don't think a tabling is a big deal. I'd go along with it.
MR. GARRAND-Mr. Freer?
MR. FREER-This is a new item for me, so let me, I understand the issue,but I don't see any rationale
here,in the memo that was on the desk. Do they have a good reason for tabling?
MR.WRIGHT-Yes, I'm here in Jon Lapper's place,if I could just address the Board.
MR. GARRAND-If you'd like come to the table.
2
(Queensbury ZBA Meeting 10/23/2013)
MR. WRIGHT-John Wright with Bartlett, Pontiff. Jon Lapper has another meeting this evening so
here I am in his place,but what he wanted to explain, and, Mr. Freer,this may help you along a little
bit, is that the hold up with this project has been some other financial difficulties with a different
property up in Lake George on our client's behalf. They've been trying to sell that property, it's the
Blue Water Manor property. They just closed that transaction today. They've wanted to move this
project forward, but just haven't been in a position to do it. Now that they've closed that, that
chapter's behind them, they can focus their energies on this project now and they're excited about
doing that. It's obviously a very visible property and now they're in a position to move forward
with both this Board and the Planning Board. The reason that the request for a tabling is probably
a little lengthier than a normal one is that we have to go to the Planning Board first and deal with
some engineering comments and some issues with SHPO and DOT as well there and so the Planning
Board can do SEQR, and then we can come back to this Board. So that's why we'd asked to push it
out to actually I think you said the December 15th meeting. We'd ask for the December 15th
submission date for the January meeting,but,like I said,this isn't something that my clients wanted
to delay on. It was financial considerations mostly and now they're in a position to go forward.
MR.URRICO-It's been postponed seven times. This would be the eighth time,and the last time they
came before us we said that would be the last time we would table it.
MR.WRIGHT-Certainly I think they wanted the transaction to close a lot sooner, and we completely
understand this Board's concern. It's not as if we don't see where you're coming from, but the
closing has now happened,just today. That was the obstacle, that was the impediment. Now that
it's been removed,they're in a position to move forward with the.
MR.URRICO-Where are you with the Planning Board,with it?
MR.WRIGHT-They need to address some issues with DOT and SHPO.
MR.URRICO-They still have to do SEQR,don't they?
MR.WRIGHT-The Planning Board needs to make their SEQR determination.
MR.URRICO-Yes. How long is that going to take?
MR. WRIGHT-I think we're on the November agenda, either November or December agenda for
Planning Board and our hope is to be done then. That's why we're asking for the December 15th
submission date here, so we know that we get the Planning Board out of the way, submit here and
we'll be here in January. That's the plan.
MR. HENKEL-Because all the other previous meetings there was never any representation for
anybody to explain that. There was no one ever here.
MR.WRIGHT-Yes.
MR. FREER-So the alternative is for them to withdraw it and re-submit?
MR. GARRAND-Re-submit.
MR. FREER-And the downside of that is the timeline?
MR. GARRAND-No,the fee that they have to pay to re-submit.
MR.WRIGHT-And there was some delay as well.
MR. HENKEL-Well, after that explanation, I'd be in favor of tabling it again.
MR. GARRAND-Any other comment from Board members?
MR.URRICO-I would give them one more shot.
MR. GARRAND-One more shot for a January meeting.
MR.URRICO-Yes,if they don't make that next meeting,then that's it.
MR. GARRAND-Question for Staff. I don't believe we've determined who's going to be Lead Agent
for SEQR yet on this?
3
(Queensbury ZBA Meeting 10/23/2013)
MR. BROWN-I'm pretty sure the Planning Board is. I think you guys consented to that early on.
MR. URRICO-Yes, I think that was done back, this first was submitted in July of 2012, and I think in
August or the meeting after that we determined that. I don't know if it's in here or not.
MS. RADNER-You are going to need to submit a new SEQR form because the forms changed on
October 7th.
MR.WRIGHT-Very good.
MR. BROWN-Yes, I think that happened early on in the process.
MR. GARRAND-Okay. Do you think we're ready to poll the Board?
MR.URRICO-Just for the record,it was September 2012,the determination for Lead Agency status.
MR. GARRAND-Okay. Would you like to call the vote,tabling until the January meeting.
MS. HEMINGWAY-Okay. You're making the motion?
MR. MC CABE-I'll make the motion.
MOTION TO TABLE AREA VARIANCE NO. 35-2012 BLUE MOOSE TAVERN/DANIEL AND
ELLEN NICHOLS, Introduced by Michael McCabe who moved for its adoption, seconded by Joyce
Hunt:
Until the January 2014 meeting with a December 15th deadline for submittal. With the constraint
that this will be the last tabling.
Duly adopted this 231d day of October, 2013, by the following vote:
MR. FREER-And I think we also should constraint it as this is the, the Board doesn't plan on tabling
it again. I mean,this is sort of the last,don't we want to put that in there?
MR. MC CAB E-With the constraint that this will be the last table. Is that proper,or shall I read the?
MR. GARRAND-That'll do it.
AYES: Mr.Urrico, Mr. Henkel, Mr. Freer, Mr. McCabe, Mrs. Hunt, Mr. Garrand
NOES: NONE
ABSENT: Mr. Kuhl
MR.WRIGHT-Thank you,folks.
MR. FREER-See you in January.
OLD BUSINESS:
NOTICE OF APPEAL NO. 2-2013 SEQRA TYPE II KENNETH W. ROHNE OWNER(S) PAMELA J.
HARRIS ZONING RR-3A LOCATION 219 PICKLE HILL ROAD APPELLANT IS APPEALING THE
ZONING ADMINISTRATOR'S DETERMINATION REGARDING A DECISION THAT SITE PLAN
REVIEW IS NOT REQUIRED FOR THE BUSINESS BEING OPERATED ON PROPERTY OWNED BY
KEITH HARRIS. CROSS REF BP 92-289 BARN WARREN COUNTY PLANNING N/A LOT SIZE
20.89 ACRE(S) TAX MAP NO. 266.1-1-9 SECTION 179-9-010
KENNETH ROHNE, PRESENT
MR. GARRAND-Mr. Secretary,could you read that into the record.
STAFF INPUT
Notes from Staff, Notice of Appeal No. 2-2013, Kenneth W. Rohne, Meeting Date: October 23, 2013
"Project Location: 219 Pickle Hill Road Description of Proposed Project: Appellant is
4
(Queensbury ZBA Meeting 10/23/2013)
appealing to the Zoning Board of Appeals relative to a June 21, 2013 determination from the Zoning
Administrator regarding the Harris Logging operations at 219 Pickle Hill Road.
Staff comments:
First, Standing:
Was the appeal taken within the appropriate 60 day time frame and is the appealing party
aggrieved?
The appeal was filed within the required timeframe.
• The Notice of Appeal application was signed on August 16, 2013 and filed with the Town on
August 15, 2013 with an addendum filed on August 16, 2013.
Is the appealing party aggrieved?
• The appellant is an immediate neighbor,located across the road from the subject property.
• The appellant's papers do not offer any proof of injury in fact or of a very significant
possibility of future harm that differs from any impacts on the general public as a result of
the decision in question.
Second, Merits of the argument if the appellant is found to have standing:
The issue at hand is section 179-13-020, Discontinuance. Which reads:
If a non-conforming use is discontinued for a period of 18 consecutive months, such use shall
he deemed to he abandoned and further use of the property shall conform to this chapter.
The appellant asserts that the business, Harris Logging,was not in operation for more than 10 years
and that the property was listed, in the Town Assessor's records, as vacant in 2005. Further, the
appellant requests Site Plan Review.
The Town Zoning Administrator position, as noted in the referenced June 21, 2013 determination
letter, asserts that a 1989 Warren County Supreme Court ruling (copy attached) allowed the Harris
Logging operation to exist on the property and that subsequent, recent sworn affidavits provided
by Harris shows that the use was continuous and uninterrupted,and as such,may be continued."
MR. GARRAND-Okay. Sir,for the purpose of the record,please state your name?
MR. ROHNE-My name is Kenneth Rohne. I reside at 214 Pickle Hill Road in Queensbury. I'm here
this evening to address the ZBA relative to the recent location of a business operation to Pickle Hill
Road,specifically the business operations of Harris Logging. I trust you are familiar with my Appeal
of a decision made by Zoning Administrator Craig Brown for the Harris business to operate on a
parcel on Pickle Hill Road. I would like to address several matters regarding this situation. I feel
that the information in statements supplied by Mr. Harris to Craig Brown, Zoning Administrator, is
neither truthful nor accurate. I also believe that the decision made by the Zoning Administrator
which was transmitted to the Harris family dated June 21, 2013, must be challenged. I have been a
resident of Pickle Hill for the past 10 years, while Kate Johnson has been living at the same
residence since September of 2001. I have invested a considerable amount of time,money,labor to
improve and maintain my property. We love where we live and we take pride in our surroundings.
Had there been a logging/excavating business located across the road from our address, the
decision to live there would have never been made. So what I'm saying is I've been there for 10
years and there has been no business there. In late August of last year, 2012, that I first noticed a
great deal of activity on the Harris property, both in and around the garage in question. What I
realized was that the Harris business was relocating operations to the Pickle Hill Road location. I
checked the zoning for the address and found it to be RR-3A, so I was a little confused to see how a
business could re-locate to this property. Becoming more concerned, I contacted my councilman,
Tony Metivier, explained the situation, and he suggested that I file a complaint with Mr. Brown. I
first spoke to Mr. Brown September 4th of 2012, shortly after things began to change across the
road. So my question is,why is the, on the property description report that the Town has,which is
public knowledge, why is it classified as Number 312 vacant? I don't understand that. If a
property is listed as vacant, how can there be a business operating there, and it's been vacant for
5
(Queensbury ZBA Meeting 10/23/2013)
quite some time. So I really wanted an answer to that. So this is a commercial business,
supposedly operating in an RR-3A location. There's no record of this business operating there.
I've done a search. I have some information I'd like you folks to look at, and there's nothing.
There's nothing in the last 10 years that shows proof of this business operating at this location.
The only proof that I have,that's been supplied to me, is in the affidavit from Mr. Harris stating that
they've never, they never left that location. So I did some research, and what I found is, what Mr.
Harris doesn't mention in his affidavit is that the late Mr. Harris purchased property in the Town of
Fort Ann. I believe it was in 1995, and he constructed a 16,000 square foot building, and at the
address of 11298 Route 149 in the Town of Fort Ann. He does not mention that the business was
located there for at least 10 years, as well as another business address in the Town of Queensbury
as Mud Pond Road. For whatever reason,the Route 149 property was sold on August 29th of 2012.
So, that's when things began to change. That's when we moved everything to Pickle Hill. There
was nothing there 10 years ago, prior to last August. Again, there's no proof that there's been a
business operating there, and I haven't seen anything, and I would be willing to supply an affidavit
from my attorney stating what I've just said. I would be happy to do that if you feel that to be
necessary. I have several photos of the property from, I have an aerial photo from 2010 which
clearly shows it's vacant. I have some other photos from my neighbors clearly shows there's no
equipment there, and then we have some photos from the last year of what's been going on. I'd like
you to look at those. I'll gladly give them to you. The other thing I wanted to mention was in Mr.
Brown's letter to Mr. Harris, he asked him to supply an inventory list of his equipment. Well, all
this equipment arrived after the fact, there was no equipment there. This place was closed up. It
was full of personal merchandise. I know there was a boat in there. I don't think a boat has much
to do with a logging and excavating business. I received a letter from Mr. Harris dated April 8th of
2013 asking us, his neighbors, to verify that his supplied affidavit was correct. I think you've seen
the affidavit. He also wrote in his note that he did not wish to inconvenience his neighbors in any
way. Well, guess what, he has. I would also like to mention that I understand Mr. Harris is
constructing a new home and will be leaving Pickle Hill Road. If that is true, and he and his family
will be re-locating, but those of us who have made Pickle Hill Road the choice of our residence and
have made investments in our homes and our property, are subject to the disgraceful mess, noises
and fumes which never did exist, at least in the last 10 years that I've been there. Do you have any
questions?
MR. GARRAND-Board members, any questions for Mr. Rohne?
MR. HENKEL-You said you've been living there,what, 10 years you said?
MR. ROHNE-Ten years,yes.
MR. HENKEL-You said within those 10 years you've never seen anything going on? There's never
been any wood stacked behind the place?
MR. ROHNE-No, sir. No wood. I'll gladly show you these photos, and if you look on the GIS,
Washington County, and you look up the Harris property in Fort Ann, and you look on that and you
see what's behind there. That's where they did all their logging. Take a look at it. I mean, I think
it's going to,you'll see what I'm talking about.
MR. HENKEL-And within 10 years you said there was never any equipment stored on trailers?
MR. ROHNE-No. It had nothing to do with the business. The only thing that was there was Mr.
Harris would drive home his company pickup truck. It's no different than me driving a company
truck home each evening. I go that way to work for the last ten years. That's the way I go to work
every day, Monday through Friday,that's the way I come home. So I see it. I'm out in my yard a lot.
I take care of my yard. I just don't think that Pickle Hill Road is a good spot for an operation like
this. I came home a couple of weeks ago and one of these big pulp trucks had come out of his
property. When they go to turn on Ridge Road, that's pretty narrow, Pickle Hill right there is
narrow, and when you take a tractor trailer load of logs, and you want to make a right, it's an
accident waiting to happen. So I just, I think there's plenty of places in the Town of Queensbury,
Warren County,Washington County that's better suited for a business like this. Pickle Hill Road is
not the place, and I think, you know, from an environmental standpoint, I think it's something else
you've got to consider. That is watershed property,and I can show you,there's a spring right down
across from my place. It's a beautiful spring. It's been there forever. I think it's got some history
behind it,and that all goes down and flows down into,you know,down to Pilot Knob area. So I just,
I'm telling you the truth, and that's what I've seen, and my neighbors, I think they're going to tell
you a similar story, but, I mean, I'll show you these records that I have, and nowhere does it state
Pickle Hill Road. It states Fort Ann and it states Mud Pond Road in Queensbury, and like I said,the
business was sold on August 29th over in Fort Ann. Awful coincidental. I haven't complained in 10
6
(Queensbury ZBA Meeting 10/23/2013)
years, and all of a sudden Igo to Craig on September 4th because we have a big problem. Those are
the facts.
MS. RADNER-Sir, are there any documents that you brought with you that you want the Board to
consider to have to submit tonight for the official records?
MR. ROHNE-They can have these, and I've included some letters. They can gladly have these and
review these.
MR. HENKEL-I think those are,are those the letters we already have,or no?
MR. ROHNE-No,you don't have them.
MR. HENKEL-Okay,because we've got letters from the neighbors.
MR. ROHNE-Yes,they're inhere,too. I imagine you probably have those, I'm not sure.
MR. URRICO-So, sir, you're not denying that they had a business there at one time. You just don't
think they had a business there in the last 10 years.
MR. ROHNE-They've never had a business there as long as I've been there for 10 years.
MR.URRICO-But they have had a business there?
MR. ROHNE-Well, there was a, from Judge Dyer many, back in '89, that he was running a business
there, but what I want to get across is that they abandoned this property for at least 18 months.
I'm saying 10 years, that there has been no business operating there, and like I said, if there has
been, somebody's got to show me the proof. I'm not going by a sworn affidavit saying that we
never discontinued. Show me proof. That's what I want to see. Because I haven't seen any. That's
all I'm asking for.
MR. HENKEL-I know, personally, I've gone down that road many, many years since even the early
70's, and I can always remember something being there,going by there, seeing something. I mean,
I don't live on that road.
MR. ROHNE-There you go. You don't live there,you're not.
MR. HENKEL-No, but I can always remember I've been,you know, usually four or five times a year
I'm down that road,still to this day,and I've always seen something going on.
MR. ROHNE-The business was located on Route 149. You can look at the records.
MR. HENKEL-I've seen something going on there,so to say there's no activity.
MR. ROHNE-Well, I differ with you. I'm sorry,but I'm a resident there and have been.
MR. HENKEL-Right. Not to disagree with you,but just as a kid I can remember seeing wood stacked
there way back.
MR. ROHNE-Well, no, he had an operation there, he did have an operation there, and what I'm
saying in '95 he left that, he left there, and he bought that property over there and that's where he
started his logging business. It was not on Pickle Hill Road, and if you look at those photographs,
you'll see that. It's vacant, and again, my question to the Board is if it's on the tax rolls as vacant,
vacant is vacant. I mean, how do you get away with you're running a business and not, and you're
not registered,there's nothing there, it's a vacant piece of property. They're running a commercial
business in an RR-3A. Why was it never re-zoned that way? I don't understand.
MR. HENKEL-Well,it says since 1940,right? So was there any zoning back then?
MR. ROHNE-Well, I mean, they've done changes and everything. I mean, you go through your re-
evaluations and things of that nature. I don't understand.
MR. GARRAND-Any other Board members? Okay. At this time I'll open up the public hearing.
MR. ROHNE-Thank you.
7
(Queensbury ZBA Meeting 10/23/2013)
MR. GARRAND-Anyone from the public who'd like to speak on this Appeal?
PUBLIC HEARING OPENED
ROBERT&CARLY BOLEN
MR. BOLEN-Good evening. My name's Robert Bolen. This is my wife, Carly. We live directly
across from the garage in question. First off I'd like to say I'm disappointed and, quite frankly,
troubled by the decision that was made. My wife and I purchased the property in 2010. The
property had been previously owned by Keith's aunt and uncle, Collin and Joanne Sharp. When I
first looked at the property I knew that it was going to be a little bit of a fixer upper. It was for sale
by owner. I actually saw Mr. Sharp on the side of the road and stopped one day and talked to him a
little bit,and when he explained who he was and who is nephew was, I was excited to buy the house
across the street. I like the Harris'. I've never had any problems with them. My dad really
enjoyed him and his late father, and it saddens me that I've been put in the position here where I
have to go against Mr. Harris. So the only thing that my wife was concerned about when we were
going through to purchase the property was the garage across the street, it looked like a big
construction garage, although we didn't see anything there other than a large boat, maroon boat on
a trailer, and the occasional plow truck with Keith Harris logging. There was no indication of a
logging business or anything going on across the street. I know it has probably no meaning or
anything like that, but I did ask his uncle if that garage was used for the business, and I'll tell you
right now, if he told me it was, or was possible, I would not be living across the street. My
resolution to the garage was eventually when we can afford it, we will block it out. We like our
neighbors. We like the views, the mountains. That's why I bought the property. Unfortunately
now if you look at some of those pictures, the house with the tan siding, that's my house. On the
day or weeks following buying the property, there's nothing there. Now, being told that there was
a logging company operating right across the street from me, for more than two and a half years, it
was a big surprise to me, because I look out my window, and it's not there. There's no trucks. I
enjoy leaving at the same time as Keith in the morning, as we both left for work, and I don't like
sitting up here while my neighbor's behind me and going against what obviously he needs or wants,
but the truth is, when he leaves to his new home, I'm still stuck across the street from a logging
company, from the smells of diesel and smoke, to the dirt and debris coming across onto my yard.
That's what I'm dealing with now. I'm going to miss seeing Keith, but that's null and void. What
I'm stuck with is a logging company. Three a.m., trucks dieseling outside in the winter to warm
them up. I don't have a child or a growing family yet,but I hope to, and that's not what I want them
growing up with. Unfortunately it's up to you guys to make decision whether I'm lying to you right
now, that for two and a half years I looked across out of window and saw nothing, or if I'm telling
the truth. When my wife first saw them starting to move their personal stuff and clearing out their
garage, and told me that commercial trucks were coming in, I didn't want to do anything about it
because I figured maybe it's hard times. Maybe we should just let him get back on his feet until
things get better. I don't know. I never really talked to him about it, but then hearing that he's
building his dream house up on French Mountain,and leaving a new logging company behind,that's
when I knew I had to do something. That's pretty much all I have to say.
MRS. BOLEN-I just want to agree with him. I would have never purchased my property if this was
happening across the street from me. I let him talk me into buying the house with the garage,but it
was just a garage when we bought the house. Every day I woke up, walked down my front door,
got in my car, could see this property, every single day for the past three years. I remember, last
summer, watching them clear out the garage, stood at my window, watched it all happen, and I
mentioned something to him that this is going to be a problem. I don't know what they're doing
over there, but they're emptying everything out of the garage. Ever since then it's been a daily
problem. It's waking up in the morning. It's smelling it. It's dealing with it. They've used it for
parking, and an incredible amount of vehicles, commercial vehicles. I work on a construction site.
I don't need to come home to one every single day, and I'm just really disappointed that I guess I
was, I thought I was buying a house in this beautiful place, in this rural landscape,and now I have to
deal with this on a daily basis, and I just, I think it's wrong that they should be allowed to do this
when it never happened before. I can promise you, since we bought that house, this business was
not occurring until last summer, and that's all I have to say. I would have never bought the house
otherwise.
MR. GARRAND-Thank you. Anybody else from the audience like to speak?
DEBBIE DAVIDSON
MRS. DAVIDSON-I'm Debbie Davidson. I live across the street from the Harris property as well at
236 Pickle Hill Road. I was there back in '86. I was there through the lawsuit. We fought with the
8
(Queensbury ZBA Meeting 10/23/2013)
Town for a long time while Harris was there because the business continued to grow,and finally the
Town told them that a grandfathered use does not allow his property to continue to expand that
business. He had to stay in a certain area. In 1995, that happened, and Mr. Harris could not
continue to spread out over the 20 acres of property that he owned, and he was forced to stay in a
smaller one acre plot that he had claimed he owned, or the one acre plot that he said he used
strictly for commercial. In 1995, he bought property and he moved elsewhere, because there
wasn't room to operate the business that he had. I've lived in bliss for quite a number of years now.
Things started up last summer. We thought, well, the Town will see this has been a dramatic
change and they'll deal with it, and then we got the letter from Craig and realized that it's not going
to change. It's going to grow all over again. So I went upstairs and I pulled out my box,large box,
of files from all the things that went on over all the years, through the lawsuits, through the
continued expansions. My file ended in 1995. There's not another paper in there from '96.
There's not another picture, nothing. It stopped in 1995 across the street from my home. I have a
daycare. I'm a New York State licensed daycare provider and have been since 1987. About seven
years ago, the State changed the regulations for daycare, and we were required to assess all the
areas, all the properties adjoining ours, for safety, for hazards. My inspector came in, asked me
about the garage across the street. We had walked the property, talked about pools and such in
the neighborhood. He wasn't concerned about them. He was worried the garage, and I said I'm
sorry, Joe, or I'm happy to report that garage is vacant. For all I know, there's no business over
there. There hasn't been a business operating there for years. He said if that changes,you call me.
He retired last summer. If he was still inspector,he could come and testify to you that he was at my
house to inspect repeatedly for the last seven years. He had inspected that house, once, twice,
three times. If there had been operations over there, I would have been forced to address the
hazards. Now I'm waiting to find out what we're stuck with so that then I can go back to my new
inspector and figure out what I have to do,to address that,to keep the children I sit for safe. I don't
know how else to tell you that this business was not operating over there. If not for ten years, not
for longer than that. The garage was there. The garage has been there. The garage will continue
to be there, but that's not a business, and boats and trailers and such in it are not business, they're
residential. Beyond telling you that we're shocked to see it come back, I don't know what else to
say,but that's all have to share with you right now. Are there any questions? Thank you.
MR. GARRAND-Anybody else from the public like to speak at this point?
JOHN WRIGHT
MR.WRIGHT-Good evening, again, folks. John Wright with Bartlett, Pontiff. I'm here on behalf of
the property owner, Pam Harris. I've got Pam and Keith Harris, Jr. here with me. The analysis of
this Appeal, I think, has to start with the 1989 court decision, and I think that was attached to the
Staff Notes. You all have it. The court made some very specific factual findings in 1989, and those
were that, included that there was heavy equipment, commercial equipment being stored on the
property, and there were other uses of that property as well that the court determined were lawful,
pre-existing, nonconforming uses. So, as of that point, heavy equipment could be stored on the
property. It could be used for commercial uses, and the court decision doesn't say you can only use
it to operate Harris Logging, Inc. or any other specific business that says here are the uses that you
can perform on your parcel. The issue on the Appeal is whether that use was discontinued, and the
standard for whether the permissible uses were discontinued is whether there was a complete and
total cessation of the commercial use. It has to be complete. So any periodic or minimal
commercial use in the meantime keeps that use alive. So the fact that on the day that the aerial
photos were taken,there was no equipment in the yard,doesn't really prove much, and the fact that
there were days where there were no equipment in the yard or near the garage doesn't really prove
much. I mean,this was equipment that was being used as part of a business. So naturally it would
be stored there at some times and out in use in the business at others. So they may not have been
there every single day,but if you look at the affidavits of Pam and Keith that we provided, as well as
the letters from other neighbors, it's clear that they'll echo exactly what Mr. Henkel said, that there
was always something going on there, and these are people that live on Pickle Hill Road and were
driving by every day. So a decrease in the volume of use, a decrease in the intensity of the use,
doesn't amount to a cessation that would make this cease to be a pre-existing, nonconforming use.
So I asked in my letter earlier today that all those materials be incorporated that we provided to the
Town during Craig's investigation. Mr. Canale's letter, I think, was instructive as well as, I think it
was Herbert Smith. So in terms of how the Assessor classified this property, I don't think that has
any power to overturn a Supreme Court decision. The only thing that's before this Board is
whether,really, since 1989,that use was discontinued for 18 months, and the Assessor can't change
that no matter what, and I think that, you know, the Bolens comments, you know, certainly
understand their concerns, but I think it's notable that they noticed the garage. That's one of the
things I think is important here. A prospective purchaser of the property, any nearby properties,
when they see that garage, know that, you have to know that it's not a residential garage. It puts
9
(Queensbury ZBA Meeting 10/23/2013)
you on some notice that something else is going on there, and the other thing that the Bolens
noticed was a plowing truck with Harris Logging, Inc. on it. I mean, that right there kind of
illustrates what we're saying. There was always something going on at this garage continuously.
So we think that the Zoning Administrator's determination was based on exactly the same type of
information that the neighbor submitted, that the appellant submitted, and that they're just saying
we didn't see it. Well, we've got people who did see it, and were involved in it and lived next door
for the entire applicable time. So, like I said, I have Pam and I have Keith here and they are
certainly willing to answer whatever questions that the Board has.
MR. GARRAND-Board members have any questions for the Harris'?
MR. MC CABE-I have a question. Were the taxes continually paid on the property?
PAM HARRIS
MRS. HARRIS-Yes,they were. They're current,yes.
MR. GARRAND-Question. Do you have power bills and phone bills addressed to Harris Logging at
this location?
MRS. HARRIS-Yes. Always have.
MRS. HUNT-I have a question. What is the property valued at,on the tax rolls?
MRS. HARRIS-$88,000, $85,000,for the garage.
MR.URRICO-I guess I would ask,what operations have you had running there in the last 10 years?
KEITH HARRIS,JR.
MR. HARRIS-We haven't used it as an office. That's why the address is different. The volume was a
lot less within the last 10 years,but my father made it a point to leave a piece of equipment there so
we never lost our rights, because he fought for them, you know, 20 years ago. The neighbors are
complaining, it never had been in the garage, nor do we have a relationship where I'd let them on
the property. Mr. Bolen,you know, I've known from school. I think he's a nice guy,but,you know,
my family fought for this 20 years ago, and we never gave the right up. I'm sorry they're
disappointed, but they probably should have done a little more research on that property, and the
surrounding property,too.
MRS. HARRIS-I was told that Mr. Bolen asked if he could use our backhoe, our skids gear at one
time.
MR. BOLEN-No, Keith offered it to me when I was doing my driveway.
MRS. HARRIS-Okay. He offered it to you.
MR. BOLEN-He did offer it,yes.
MRS. HARRIS-That piece of equipment that was on my property,that is on my property.
MR. HARRIS-And we've always kept equipment there, just out back, just to be nice, you know, it's
just not so,you know, it wasn't an eyesore,but,you know, I don't believe we ever gave any rights to
not be able to run a family business out of that property.
MR. GARRAND-Board members have any other questions?
MR. URRICO-I have a question for Staff. How do we determine if, indeed, there was a business
running there in the last 10 years?
MS. RADNER-I can explain to you what he relied on and what his determination was, your record
before you should have everything that Craig looked at and reviewed in making his determination,
and you want to make sure to take a look at it,but there's an opportunity for members of the Board
here tonight to make determinations on credibility, to weigh the evidence before you, and to
ultimately determine whether Craig's determination is, in fact, supported by the evidence, or
whether it's not, and so you're the ones who have to decide whether or not there's been a cessation,
10
(Queensbury ZBA Meeting 10/23/2013)
based upon the evidence before you. The Assessor's classification of the property is evidence, but
it's not a determination. You have to make that determination.
MRS. HUNT-I have a question of the homeowners in the area. Would you be willing to have a
notarized statement as to what has occurred in the last?
AUDIENCE MEMBER-Yes,ma'am, I would.
AUDIENCE MEMBER 2-Absolutely.
MRS. HUNT-Because that would make a difference to me.
MR. GARRAND-Okay. The public hearing is still open, would you like to let them step up to the
table to speak for a moment?
MR. BOLEN-Robert Bolen, again. Keith mentioned that,you know, I should have done a little more
research into buying my house, and what more research could I do other than asking questions to
the current homeowner, who was his uncle, about what that garage was used for, and he tells me,
personal. There's nothing there, and looking at tax records, vacant property, how am I supposed
to,there's no records of Harris Logging,that I could find, out of that garage. Now I'm offended that,
basically he's calling me, you know, stupid for buying a place across the street from a logging
company. Misinformed, misinformed maybe, because, you know, I took people at their word, and
like I said, I like Keith. I still like Keith,you know, whether this changes whatever relationship we
have or not, that I can't control, but for two and a half years, there might have been a plow truck
come and plow his driveway. He lives right next door. It's his company. He might have driven a
truck home every night. It's his truck. I don't know what's behind it. I've seen what's in the
garage. I stare right into it,when the garage door is open, I can see straight into the garage. I don't
go on the property. As far as him allowing me, or asking me if I want to use his bobcat, his steer,
this was this year. I just did my driveway this year. That has no merit in anything. Now I don't
know what was behind it. I didn't snoop around. I never had any reason to, you know, them
plowing their driveway, if you're considering that use, use that doesn't stop, I guess that's your
decision.
MR. HENKEL-Now when you said you stare into the garage, open doors,you said there was nothing
ever in there?
MR. BOLEN-I've seen boats. I've seen his motorcycle, a four wheeler, you know, I can't ever say
that I've see any logging equipment, and you've seen the logging equipment and the pictures that
we have, you know, if I had seen anything, I'm not the type of person that would, you know, lie
behind his back. If he was running a business there the whole time, and I knew about it but I'm
waiting until now to step up and say something, then shame on me. If there was stuff going on
when I wasn't home or he had something behind it, I don't know.
MR. HENKEL-You said you've been there since 2012 was it?
MR. BOLEN-2010 I bought the house.
MR. HENKEL-2010.
MR. BOLEN-Now, I don't know, I can't tell you, 24 hours a day, what was going on there. I can just
tell you when I woke up, when I came home, weekends, what I've seen, that's all I can tell you. I
wouldn't wait, you know, shame on me for buying a house across the street from a logging
company,if that's what I knew I was doing.
MR. FREER-I have a question for Staff. So, I'm assuming this preponderance of evidence is what
you want us to base our decision on,and not reasonable doubt,per the civil law. Is that right?
MS. RADNER-The preponderance of the evidence,yes.
MR. FREER-Thank you.
MR. GARRAND-Any other Board members wish to comment? Please step to the table.
KEITH, SR.'S MOTHER
11
(Queensbury ZBA Meeting 10/23/2013)
MOM-I'm Keith Senior's mother. That was a really dragged out deal when a couple of the
neighbors that were back here didn't agree with Keith using his garage,felt that it wasn't permitted,
felt that the acreage wasn't right, felt that the footage wasn't right, and if I'm not, maybe I'm not
hearing this right, that nobody can find any proof that there was ever a logging business there?
This is ridiculous. Probably half of you here, before Keith did build the big building and the super
stock,there was a logging business there, and it was all part of the Harris farm in Harrisena, and he
won. He did have a legitimate permit for that building. They were saying that,oh,the building,the
fellow's dead now that comes around and looks at your property and measures it and okays. I
guess there has been activity there. There has been a landscaping business when Keith was alive,
every night they were lined up there, parked there. Nobody's saying it has to be a logging business.
We have Harris trucking also,you know. I mean, we don't have to have logs there, but there were
logs, and I'll vouch for this, over the past 10 years stacked there, not a lot,but if they were going by
and had something up in the woods or up on the mountains or something, I'm sorry, they would
stack a few things there. There's a bulldozer that's been sitting there, of course it doesn't run,but I
really would like you to consider I guess what's happening around our counties, you know, people
move into an area, with the exception of Mr. Bolen, people move into the area, they love it, oh, they
love the land across the road, they love the old farm, which that's where my children were brought
up there. Then they build their houses and then they don't want you around. Thank you very
much.
MR. GARRAND-Thank you. Would anybody else like to speak?
PAUL DAVIDSON
MR. DAVIDSON-Yes. Good evening. I'm Paul Davidson. I live across the road, also,from the Harris
property, and I think, you know, there's no question there was a Harris Logging business there.
There's no question that the Harris'won a legal case and it was allowed. There is also no question
that in 1995 it moved lock, stock and barrel to Route 149. It happened. I've lived there since 1986.
I watched the garage be built. I watched the business expand until the Town stopped its expansion,
and as my wife said, that's when the elder Mr. Harris decided I can't operate on this piece of
property anymore because it's not big enough. So he did build that huge building and bought all
that property,built that huge building and operated there. So,we had this very large business with
all these tools, all his equipment, and a major, major log processing operation in 149. So what
sense, what business sense would there be to have tools and employees shuffling eight miles back
and forth to continue a business? It did not happen. It did not happen. The Harris'journey,he did
mention the court ruling. As far as I'm concerned, we're not here to talk about the court ruling.
The court ruling, everybody agrees. What we're here to talk about is did, in fact,they abandon that
use for 18 months? I contend that they abandoned it from sometime between 1995 and 1996, and
they continued it, re-instituted it in August of 2012. That's when I noticed the fill being brought in
to expand it, and I noticed it. My wife and I talked about it, said I wonder what's going on, and we
saw the activity occurring. In about mid-September I, too, called Craig Brown, unbeknownst that
anybody else had called and I was told, well, Ken Rohne called, and then there was a subdivision
hearing here and I came to that, and Mrs. Bolen was here, and she had mentioned that she had
called to complain. Before that we had never even communicated, but we noticed something was
major different. Now, if we noticed there was something major different, separately and
complained separately, don't you think that that's a sign that something major changed in August
and September 2012? It just makes commonsense. Now, it is, you do also have to, as she stated,
yes, you have to take into consideration credibility of the evidence and the veracity of the
statements. You have two sworn affidavits from the people that want to create, re-create and
expand this formerly pre-existing, nonconforming use that was abandoned. Okay. the people that
want to do that, provided those statements. The people on the other side gladly provide the same.
There are a few people in the area, I wouldn't call them close neighbors, most of them by any
means,that signed a form letter that was shot throughout the neighborhood, and there's only a few
that signed that, and, like I say, at least a couple of them are way down the road, and those two
particular people were either business associates or close friends. So, when you're looking at the
credibility and the veracity of the statements, I think you should consider those factors also. when
it comes down to it, well, what are the things that should be considered, and the statement about
the Assessor. In 2004,by the way, as a point of reference, I'm the former Chairman of the Board of
Assessment Review, so I know a little bit about the way things are done there. In 2004,there was a
revaluation done by the Town Assessor, Mrs. Otte, and a subcontractor, and they went out and they
took physical inventory of all the property. They mailed out forms, people filled them out, and
they also went out and took physical inventory. They went around and they took a physical
inventory, and they came back with that reval, 2004, and I don't have it with me, but my
recollection was that that was vacant land with, I believe, 100 by 100 primary use, and the rest
residual, with one vacant building and no business use, and I believe the assessed value, for 20
acres of land, was only $117,000. Now, if those people had seen anything that would have tipped
12
(Queensbury ZBA Meeting 10/23/2013)
them off that there's a business operating there, that would have been included in that assessment
valuation, and it was not. So,to me,that's more than just a small piece of evidence. That's a Town
document. It's a Town record. So, that's something, I think, that does count, and I notice that Mr.
Henkel said that he does pass through there and he sees things. Do you recall what you've seen?
MR. HENKEL-Throughout the years? Yes.
MR. DAVIDSON-Well, I'm not talking about throughout the years,say,for the last five years?
MR. HENKEL-I definitely have seen logs in the back.
MR. DAVIDSON-You definitely have seen logs in the back?
MR. HENKEL-Yes,and at times seen equipment there.
MR. DAVIDSON-Logging equipment?
MR. HENKEL-What do you consider logging equipment? I didn't see a skidder.
MS. RADNER-I'd prefer you not get into a debate. This isn't really the purpose. Your purpose here
is hear from the public,not to debate with them.
MR. HENKEL-Okay.
MR. DAVIDSON-Well, I've lived across the street,like I said, all those years, and I saw what went on,
and they are right. They were allowed to have that operation. I have some photos of it. I have
photos of what they buried there. All that debris,vehicles, and all that, back when they were such
fine stewards of the property when the business was operating. I have photos of the pigs in our
yard, but the most important photo I have, and I wasn't going to bring this up until Bridget
mentioned that we moved up there and they were already there. This is a photo from 1984 when
we purchased our property. This photo looks right towards the Top of the World from where our
house is. Right there is where the current garage is. As you can see there was nothing there, and
that's why we fought the garage and the business was because when we purchased that property
there was nothing there, and we lost it and we're big people and we said we lost it, but they did
abandon it,and they definitely abandon it for more than 18 months, and I would assert even longer,
and what is going on now is not proper, it's not fair, it's not right, and it's even less fair to these
people, because they bought their property, and I know when they bought their property, they're
telling the truth, there was nothing going on there, and now, especially the Bolens, the people that
owned it, who were related to these people told them point blank to their face nothing happens
there. It's private, and now look what they have to deal with every day. I've had to deal with it.
We had log trucks across the street from our house until the early morning hours, unloading,
loading, diesel exhaust fumes, all that. It went away in 1995, and, as my wife said, it was like bliss
for all those years. It's back, and it will continue to expand and things will be buried out back.
We'll have to keep testing our water, worrying about the contamination, and what we feel is that if
they want to move back there, they abandoned it for more than 18 months, and there's a reason
there's 18 months. The reason that there's 18 months is because somebody could come in, buy a
piece of property, nothing going on, and then all of a sudden it blooms, like it did to the Bolens, and
their property value goes whomp. They can't sell it for what they paid. They don't want to live
there, don't want to raise a family there, but that's okay, because the Harris' were descendants of
Moses Harris and, you know, they're the ones that sold the property for all those people to build
those houses on, so it should be fair that they continue to do what they want on that property, and
move away to a beautiful place on a mountain and have their neighbors, the neighbors of their
business,deal with that,and Moses Harris is listed in my deed. Thank you very much.
MR. GARRAND-Anybody else from the public wish to speak?
MR. WRIGHT-I just want to address what the importance of the '89 decision is. A lot of the
comments you've heard here tonight are fixated on whether Harris Logging, Harris Logging, Harris
Logging has been operating at this property. That's not what the 1989 decision says or permits.
What it says and permits is a variety of commercial uses that includes the storage of commercial
equipment. As Keith told you, a lot of times that was in the garage. Of course aerial photos aren't
going to pick that up. Photos from the neighbor's property aren't going to pick that up. That's the
importance of the decision, is that the use is not just were you operating Harris Logging. Sure,you
know, Keith Harris, Sr. did get another piece of property over in Fort Ann and did operate a
business over there as well,but he never stopped using this property for some commercial purpose,
and that was purposeful, and it was because he fought long and hard and litigated to establish that
13
(Queensbury ZBA Meeting 10/23/2013)
right,and having been through a couple of those type of litigations, I'll tell you,when somebody gets
through with one of those, they're not about to just say, okay, I'm just going to move and let it go.
They were very conscious to keep using that property, and they did, and you look at their affidavits
and you look at the letters from other neighbors, whether they're a little ways down the road or
right across the street, other neighbors that saw this commercial activity continuing, it shows you
that there was never a total cessation, and that's a Court of Appeals standard for this type of case.
It's the applicant's burden to show you that there was a complete and total cessation of that use
you know,we just haven't done it and,you know, Keith and Pam are here to tell you otherwise, and
the letters in the record tell you otherwise. Lastly, any conversations that anyone had with Keith's
uncle or anyone else can't be binding on the property owner. If people had questions about the use
of the property, they could have come to Pam, Keith, Jr., Keith, Sr. when he was still with us, and
they could have come to the Town, and they probably would have been pointed to that 1989
decision. So the resources are there. I don't think anybody is calling Mr. Bolen or Mrs. Bolen any
names. This is not a personal thing. What we're just saying is they have this grandfathered use,
this pre-existing, nonconforming use. They never gave it up. They've been doing it consistently
since decades prior to the '89 decision, and whether it was a dip in intensity, and now it's picked
back up,has no bearing on whether they still have that legal right. So we're asking you to deny the
Appeal.
MRS. HARRIS-Yes, when we built the garage in Fort Ann, before we move out, there was 11 log
trucks on that property. I have pictures of the 11 trucks that were on the property, logging, Harris
Trucking. When we moved out, we've always had a piece of equipment, whether it was a small
backhoe or something whether it was in the garage or behind the garage. My husband was a pilot.
I have photos. He was a pilot, and,you know,just because someone flew over one time and there's
nothing there, they could be out operating some place. He's taken photos of the property with
equipment out back at times and this was five years ago, eight years ago, two years ago. My
husband passed away five years ago, but I have been there and I have equipment there and I don't
have photos on me today, but there's always been a bulldozer. There's always been logs. We've
had Canadians come there and we don't, and someone mentioned that we operate at four o'clock in
the morning. No, there was a complaint, and that was Ace Cardine, and I contacted, as soon as I
found out, I contacted them, and they stopped, as far as I know. Yes, we do not operate until eight
thirty, or, excuse me, seven, seven thirty in the morning, and they're finished by four, and very
rarely work on the weekends. We're not expanding. I don't know what Mr. Davidson's talking
about with fill. There's nothing been buried there.
MR. HARRIS-And, just for the record, I had a false oil spill reported like a month ago. DEC has all
the records of any stormwater or septic, if you guys have any concerns about water quality or
anything like that,too. So,that was just done last week,too,by the way.
MRS. HARRIS-When my husband was alive, when the Davidsons built the house, he has purchased,
or he had planted trees around their property so they would have a little privacy. They've known,
my husband used to work on the side of the road. I have pictures of his log truck on the side of the
road, working. I have pictures of his truck in '84, '89, of vehicles in the yard. I don't know what
he's talking about with a tax assessment, too, being vacant. I have no record of that. It's always
been commercial on my taxes. It's never been vacant. I can prove it. I don't have it with me
because I didn't know I had to do this tonight,but I can prove it,if you need to. I have other people,
too, that can come in and state something, that live behind the garage, if I need to. I just want
peace,you know, we're not expanding. When my husband passed away, I didn't need a 200 by 80
garage in Fort Ann, and I moved, and what I had, I brought back, but there was always something
thereon that property. Thank you.
MR. HENKEL-Just a question. Now, you never received a tax bill that said this is based on vacant
property?
MRS. HARRIS-No,no,no.
MR. HENKEL-Is there any record of that?
MRS. HARRIS-No.
MR. HENKEL-I mean,there's nothing that says that in our packet or anything.
MR. BROWN-Not in what's been submitted,no.
MRS. HARRIS-No.
14
(Queensbury ZBA Meeting 10/23/2013)
MR.WRIGHT-To that point, I'd just note that we all know that the property had a large garage on it
in 2004. So vacant, right off the bat, seems like an error was made, and without the Assessor here,
we don't know what went through the Assessor's mind and don't know what the Assessor knew
about the'89 decision or anything like that. I mean, I think that there's a lot of guessing involved in
what the Assessor did or did not do, and that's, you know, those type of guesses aren't really good
evidence of anything.
MRS. HARRIS-And also the pines on Mr. Rohne's property I had planted myself when they were two
feet tall, just to have some peace with the neighborhood, and if it looks like it's vacant now, it must
be that we've been doing something right to make it more appealing.
MR. GARRAND-All right. Thank you. At this time, if there's nobody else from the public who'd like
to speak on this, I'll close the public hearing.
AUDIENCE MEMBER-I'd just like to mention it does state in those property description reports, as
the property being vacant. So that's where I got that from. If you look on the paperwork that I
gave you folks, it does state 312 Vacant. I think 300 means residential vacant property, and then
something to do with the second two digits as a building.
MR. GARRAND-Thank you. Public hearing closed.
PUBLIC HEARING CLOSED
MR. GARRAND-At this time, I'll poll the Board members.
MR. BROWN-Mr. Garrand,before you start,could I have a chance to just respond to my side of the?
MR. GARRAND-Certainly.
MR. BROWN-This is an appeal of a decision that I made. So I just feel like I should get something
on the record that explains my side of it, in addition to what's in the Staff Notes and my
determination letter. I think it's fair to say this was a struggle to make this determination, and, Mr.
Freer,you hit exactly on the point. What's the standard to make a decision? It's the proof that you
have in front of you at the time you make the decision. How do you gather information to prove
continuance or discontinuance, short of, you know, a live, 24/7 camera on the property. Now
you've got some information that says, here's what happened on this day and this time for the last
30 years. Well, nobody does that. I'm sure Mr. Harris, whenever he visited the property,whether
it was to maintain a piece of equipment or store something or drop off some logs, didn't stop on the
side of the road,take a picture and note the time on his calendar and when he was there. Likewise
I'm sure the neighbors didn't go out every day and take a picture and say this is vacant. That
doesn't make any sense to do that. So short of trying to figure out what kind of information to use
to prove,one way or the other,either it was continued or discontinued,you know, I think it's harder
to prove discontinuance, and the reason I say that is the standard is, in the Town Zoning Ordinance,
it says in order for a nonconforming use to be discontinued or considered discontinued, it has to be
stopped in total cessation for more than 18 months. That means,you know, one day, and then 547
days later,you can go back to the site and change a tire on a truck or you can go back to the site and
change the oil or drop off some logs and then 547 days later. So there's not, it can be a very, very
low level of activity that still, in my opinion, keeps the availability of the use being consistent. It's
still in operation. It may be a very low frequency. It may be not even a blip on the radar, but if
you're there, and the evidence that I received from the Harris', in addition to the court decision
from 1989, that I think everybody agrees that this was found to be a pre-existing nonconforming
use,the affidavits that I received are sworn statements that say just that, something happened, ever
since we got that court decision, something has happened on this property, up to and probably
including the date of that affidavit. So that's the decision that I made and the information that I
used to make the decision. The information that I got from the neighbors was similar. On my scale
it wasn't as heavy. It was letters of here's what I remember, here's what I've seen over the last few
years. Here's what I know has happened or I think I know has happened. Again,if you're not there
every day, do you know exactly what happened? No. Do I live up there, do I drive by it every day?
No. I don't know what happened. So I rely on the information that's submitted. What I used was
the court case as a basis that says this is an allowed use to start. Then I used the sworn affidavits
from the people who own the property and are probably there on an everyday basis, this is what's
happened on the property, and that's the decision that I made, the information that I used to make
that decision. What you've heard tonight are a lot of, I could prove that or I can give you the
information to do that. That's not what I had when I made my decision and that's what you're here
to decide right now is,did the decision I made in June of this year,was it accurate,did I use the right
information? Maybe did not did I use the right information,but did I make the right decision,based
15
(Queensbury ZBA Meeting 10/23/2013)
on the information that I had then. I didn't have a lot of the information you heard tonight, from
either side, but I used what I had, and the decision that I made was that it was a continuous,
uninterrupted use,and that's the decision that's being challenged. So,thank you.
MR. GARRAND-Thank you. Counsel,do you have any last instructions for the Board?
MS. RADNER-No,the Board does not legally have to make a decision tonight,but it can. You've got
62 days from the close of the public hearing to make the decision, unless the Board and the
applicant, which would be Mr. Rohne, in this case, agree to extend it further than that. Otherwise
you have 62 days to make the decision. You can make it tonight or you can take time to review the
evidence that's been presented. I would encourage you,whichever way you go,cite what it is in the
record that supports your decision and why you're making the decision you're making.
MR. GARRAND-All right. Thank you.
MR. URRICO-You might also instruct Mr. Rohne that we have only six Board members tonight, as
opposed to the usual seven.
MR. GARRAND-Yes,we could put this off in lieu of a full Board.
MR. ROHNE-So we would have to present this all over again?
MR. GARRAND-No, we wouldn't have go to over everything that's been presented tonight, but we
would have a seventh member there. What we have here is a Board of six,for,hypothetically,a vote
one way or another would have to include four out of the six members sitting here for a quorum.
MS. RADNER-The standard is that if they've closed the public hearing no new evidence is then
presented. They've got 62 days to make the decision, but there may be additional people here to
vote on that decision is what they're telling you. The people who, the seventh seat would be filled
by somebody who would have an opportunity to review the entire record, the testimony, Craig's
determination and everything that's been presented on both sides.
MR. ROHNE-I would like to have that. I would like to have the other person here.
MR. GARRAND-All right. How does the Board feel about that, Mr.Urrico?
MR.URRICO-I think it should be tabled.
MR. GARRAND-Okay.
MR. MC CABE-Should we do an informal poll to see if it's.
MR. GARRAND-I don't think we should tonight,but we can do that, if we choose to table it,we could
do it at another time.
MS. RADNER-If you choose to table it,just indicate whether you've closed the public hearing or not
because that lets the public know whether they should try and supplement the record or whether
you're going to close the record with what's been submitted this evening, and I'm not sure that
that's been clear. Because you started to close it,but then you.
MR. GARRAND-Yes,we let them speak.
MR. URRICO-I think we should close the public hearing but table it. So they have the preference of
a full Board.
MR. GARRAND-With the evidence currently presented.
MS. RADNER-You can close the public hearing and then not issue a decision. You don't really need
to table it,but you defer the decision until a later date.
MR. GARRAND-Okay. Well, at this point, at the request of the applicant and some of the other
Board members,we can move this to a later date. Is there a date on the calendar we can move this
to when we have a full Board,hopefully have a full Board?
16
(Queensbury ZBA Meeting 10/23/2013)
MR. BROWN-Well, that's the roll of the dice whether you're going to have a full Board the next
meeting. Usually we do. Obviously we have two alternates that are sitting tonight, in place of
regular members. So we can pick a,whatever,what's the first November date?
MS. HEMINGWAY-It's November 20th.
MR. BROWN-November 20th is the first meeting. It might be the only one. We only have enough
applications for one meeting. So, and then with the holidays we probably wouldn't have one.
November 20th is the next available meeting.
MR. GARRAND-Okay.
MR. FREER-Do you want somebody to make a motion to defer the decision until November 20th?
MR. GARRAND-Certainly.
MR. FREER-Okay.
MOTION TO DEFER NOTICE OF APPEAL NO. 2-2013 KENNETH W. ROHNE, Introduced by
Harrison Freer who moved for its adoption,seconded by John Henkel:
Regarding property owned by Pamela J. Harris at 219 Pickle Hill Road Tax Map 266.1-1-9 until the
November 20th hearing.
Duly adopted this 231d day of October, 2013, by the following vote:
MS. RADNER-Now,what I would encourage is that you indicate that you have some Board members
that sat in on the application who are alternates and those alternates should be here to vote
because they've been here, listened to the evidence and had credibility. Then if one of your other
members is also here and has had the opportunity to review the record and feels qualified to vote
on it, that's fine, but the alternates should vote, not the people they're sitting in for. Do you follow
me?
MR. GARRAND-Yes.
MR. HENKEL-And then plus the hearing is closed. There's no public hearing. That has to be in
there,too, right?
MS. RADNER-You've closed the public hearing is my understanding.
MR. HENKEL-Yes,okay.
MR. GARRAND-How do the other Board members feel?
MR. HENKEL-I agree with it.
MR.URRICO-I agree.
MR. GARRAND-Move it to the 20th?
MR.URRICO-Yes.
MR. GARRAND-Joyce?
MRS. HUNT-I would like to see an informal poll right now,but that's up to you.
MR. GARRAND-Mr.Urrico,would you like to comment on it or save it until the 20th?
MR.URRICO-I'm going to save it.
MR. GARRAND-All right. We think we'll save it until the 20th to poll the Board.
AYES: Mr.Urrico, Mrs. Hunt, Mr. Freer, Mr. Henkel, Mr. Garrand
NOES: Mr. McCabe
17
(Queensbury ZBA Meeting 10/23/2013)
ABSENT: Mr. Kuhl
MS. RADNER-And again, when you reconvene, it's the alternates that sat in, they need to be the
people who vote, and then if you've got a seventh member who's available, they can vote as well,
but you cannot have more than seven members that deliberate and decide on this application. Do
you follow me?
MR. FREER-One problem. I won't be here,so hopefully two regular members. I'm an alternate and
will not be.
MS. RADNER-Then you can't end up with more than seven who have deliberated and voted on the
application is the bottom line. So if you can't be here.
MR. HENKEL-You have to have at least seven.
MS. RADNER-But no more than seven that deliberate. You don't have to have at least seven. You
can proceed with less than seven.
MR. HENKEL-Well, I thought that was the whole idea of the thing to have seven for the vote?
MR. FREER-You can have seven to vote, it's just that Mike should vote instead of one of the regulars
who weren't here.
MS. RADNER-The problem is you've created a problem, now, where you've had one person
deliberating and giving input, but that person won't be here to vote. So you're going to end up
with, I would recommend,with six,just a different six. The gentleman at the end is indicating that's
why he thinks you should just vote tonight.
MR. URRICO-Because we actually don't know who's going to be here, other than the regulars that
are scheduled, so, I mean, any one of us could be missing it for another reason as well. That's the
but at least we know there's a possibility of being a full Board. Right now we don't know that is a,
tonight there's definitely not a chance of having seven. So that's what we're voting on.
MR. FREER-I think we just voted,didn't we?
MR. GARRAND-We made motion. Yes we already voted to defer this to the 20th of November. So,
there it is. So,on to the next one.
MS. RADNER-They've deferred the determination.
MR. GARRAND-The public hearing is closed so we don't have to do anything more, just make a
determination on the 20th,and hopefully the other members read it,read the information.
MR. FREER-So,can we do that outside the Zoning Board meeting?
MR. GARRAND-No,that goes in the record.
MS. RADNER-Well, all of your deliberations are supposed to be in public. So you can't,like, meet in
a closed room to discuss the Board's.
MR. FREER-No,but I would be prepared to vote.
MR. GARRAND-You have to be here to vote.
NEW BUSINESS:
AREA VARIANCE NO. 57-2013 SEQRA TYPE II MICHAEL PARK AGENT(S) MICHAEL PARK
OWNER(S) MICHAEL AND DARLENE HAYES ZONING MDR LOCATION 1069 WEST
MOUNTAIN ROAD APPLICANT PROPOSES TO REMOVE EXISTING DETERIORATED 358 SQ. FT.
PORCH AND REPLACE WITH A NEW 358 SQ. FT. PORCH IN THE SAME LOCATION. RELIEF
REQUESTED FROM MINIMUM FRONT SETBACK REQUIREMENT FOR THE MDR ZONING
DISTRICT. CROSS REF BP 2013-357 PORCH; BP 2004-533 GAZEBO & DECK; BP 2004-378
ADDITION; BP 96-776 SEPTIC ALT.; BP 88-811 ADDITION TO GARAGE WARREN COUNTY
PLANNING OCTOBER 2013 LOT SIZE 1.12 ACRE(S) TAX MAP NO. 295.10-1-29 SECTION
179-3-040
MICHAEL PARK, PRESENT
18
(Queensbury ZBA Meeting 10/23/2013)
MR. PARK-I have with me Michael Hayes, the homeowner of this project, and I'm Michael Park, the
builder and person remodeling this,renovating this porch.
MR.URRICO-Do you want me to read this in,Mr. Chairman?
MR. GARRAND-Yes. Certainly.
STAFF INPUT
Notes from Staff, Area Variance No. 57-2013, Michael Park, Meeting Date: October 23, 2013
"Project Location: 1069 West Mountain Road Description of Proposed Project: Applicant
proposes to remove existing deteriorated 358 sq. ft. porch and replace with a new 358 sq. ft. porch
in the same location.
Relief Required:
Parcel will require variance relief from the Zoning Code section 179-3-040 Establishment of Zoning
Districts
Front Setback/MDR zone
Required 30 feet
Proposed S 6.1 ft., N 10.1 ft.
Relief S 23.9 ft., N 19.9 ft.
Criteria for considering an Area Variance according to Chapter 267 of Town Law:
In making a determination,the board shall consider:
1. 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 this area variance.
Minor impacts to the neighborhood may be anticipated.
2. Whether the benefit sought by the applicant can be achieved by some method, feasible
for the applicant to pursue, other than an area variance. Feasible alternatives may be
limited due to the existing house and porch location and configuration.
3. Whether the requested area variance is substantial. The relief requested may be
considered moderate to substantial relevant to the code.
4. Whether the proposed variance will have an adverse effect or impact on the physical or
environmental conditions in the neighborhood or district. Minor to no impact to the
physical or environmental conditions in the neighborhood may be anticipated.
5. Whether the alleged difficulty was self-created. The difficulty may be considered self-
created.
Parcel History(construction/site plan/variance,
BP 13-357: Porch Pending
BP 04-533: Gazebo &deck CC issued 8-25-04
BP 04-378: Addition CO issued 8-17-04
BP 96-776: Septic alteration CC issued 12-17-96
BP 88-111: Addition to garage
Staff comments:
The applicant proposes the removal of a 358 sq. ft. porch and replacement with a 358 sq. ft. porch
in the same location. The applicant that has indicated the existing porch that has deteriorated as
the house was constructed in the 1900's. The information submitted includes the survey showing
the location of the porch,and elevations drawings.
SEQR Status: Type II'
19
(Queensbury ZBA Meeting 10/23/2013)
MR. GARRAND-Thank you, Mr. Secretary. Just a small administrative matter. Never mind. Thank
you. For the purpose of the record,please state your name.
MR. PARK-Michael Park, and with me is.
MICHAEL HAYES
MR. HAYES-Michael Hayes.
MR. PARK-Michael is obviously the owner.
MR. GARRAND-Thank you,and is there anything you'd like to add to the evidence?
MR. PARK-No. What is was is this porch has been deteriorating. They've spoken to me over the
last few years trying to get some ideas on,you know,ballpark numbers of what it was going to cost
so they had put together the money,so to speak,to do it,and it kind of blindsided me. I didn't think
about this process because I thought it was kind of a no-brainer. We're taking this, you know,
dilapidated porch which is truly falling down, and replacing it exactly pretty much as is, obviously,
but to today's standards, if you will. So we were going to maintain architecture from the style of
the railings, everything about it, and not make it any taller, wider, bigger and then Craig, in review,
you know, determined that it didn't really meet the setback requirement, so we hired Van Dusen
and Steves to survey it so that we weren't vague as to where it was, and basically that's why we're
here tonight. So, again, we're not, you know, again, making it taller, bigger, simply just wanted to
replace it as is, and then it was brought to our attention how far off the standard of the setback
requirements were. So I think from a standpoint of, you know, the porch needs to be dealt with.
It's truly falling down. It's not us trying to exaggerate the situation. I mean, it's truly unsafe, and I
think, you know, tearing the porch down and not replacing it, I don't see, you know, it still won't
meet the setback requirements, the house itself, and it certainly is not going to improve the looks.
The house was built in the early 1900's and it's kind of a square, you know, the porch was
somewhat attractive and so on.
MR. GARRAND-Thank you, sir. Board members have any questions for the applicant? Okay. At
this point I'll open up the public hearing. Anybody from the public who'd like to speak on this
appeal?
PUBLIC HEARING OPENED
MR. GARRAND-Okay. Seeing none, I'll close the public hearing.
PUBLIC HEARING CLOSED
MR. GARRAND-Poll the Board. Mr.Urrico?
MR. URRICO-I know some of the relief seems excessive,but this is a similar porch going in the same
location that was existing before. So I would be in favor of it. I think the test is still in favor of the
applicant.
MR. GARRAND-Thank you. Mrs. Hunt?
MRS. HUNT-Yes, I have to agree with Mr.Urrico. I have no problem with this application.
MR. GARRAND-Mr. Henkel?
MR. HENKEL-I also agree with Mrs. Hunt and Mr. Urrico, it does seem like a lot of relief, but they're
not asking for anything that wasn't there. So,go for it.
MR. FREER-So I agree, and I dispute the fact that it was self-created, which is one of our tests. I
think Mother Nature has created it for you, in that, you know, it's just normal wear and tear, that
you guys haven't created this on your own, but rather have been victim to entropy here. So I
definitely support it and just wanted to make the case from that criteria, I think it wasn't self-
created.
MR. MC CABE-I'm well familiar with that property. I've seen it ever since I've lived in Queensbury,
about 4 years,and so I think it's an improvement and I would be in favor.
MR. GARRAND-Okay. Would somebody like to make a motion?
20
(Queensbury ZBA Meeting 10/23/2013)
MR. HENKEL-I'll make a motion.
RESOLUTION TO: Approve , Area Variance No. 57-2013, Michael Park for Michael & Darlene
Hayes,Tax Map No. 295.10-1-29;
The Zoning Board of Appeals of the Town of Queensbury has received an application from Michael
Park for a variance from Section(s): 179-3-040 of the Zoning Code of The Town of Queensbury in
order to remove existing detoriated 358 sq. ft. porch and replace with a new 358 sq. ft. porch
in the same location. Relief requested from minimum front setback requirement for the
MDR zoning district.
SEQR Type II -no further review required;
A public hearing was advertised and held on October 23.2013;
Upon review of the application materials, information supplied during the public hearing, and upon
consideration of the criteria specified in Section 179-14-080(A) of the Queensbury Town Code and
Chapter 267 of NYS Town Law and after discussion and deliberation,we find as follows:
1. Will an undesirable change be produced in the character of the neighborhood or will a
detriment to the nearby properties be created by the granting of the requested area variance?
No because the old porch is in the same exact location and same size of the new project.
2. Can the benefit sought by the applicant be achieved by some method, feasible for the applicant
to pursue,other than an area variance? No.
3. Is the requested area variance substantial? Somewhat because of the Code.
4. Will the proposed area variance have an adverse impact on the physical or environmental
conditions in the neighborhood or district? No. The new project is in the exact same
location and the same size of the old one. So therefore they're not creating any new
effects.
5. Is the alleged difficulty self-created? No, because the applicant is replacing an unsafe entry
to the home.
In addition the Board finds that the benefit to the applicant from granting the requested variance
would outweigh the resulting detriment to the health, safety and welfare of the neighborhood or
community;
The Board also finds that the variance request under consideration is the minimum necessary;
Based on the above findings I make a MOTION TO APPROVE Area Variance No. 57-2013,
MICHAEL PARK FOR MICHAEL & DARLENE HAYES, Introduced by John Henkel, who moved for
its adoption,seconded by Joyce Hunt:
As per the resolution prepared by staff with the following:
A. No conditions
B. The variance approval is valid for one (1) year from the date of approval; you may request an
extension of approval before the one (1)year time frame expires;
C. If the property is located within the Adirondack Park, the approved variance is subject to
review by the Adirondack Park Agency (APA). The applicant is cautioned against taking any
action until the APA's review is completed;
D. Final approved plans in compliance with an approved variance must be submitted to the
Community Development Department before any further review by the Zoning Administrator
or Building&Codes personnel'
E. Subsequent issuance of further permits, including building permits are dependent on receipt of
these final plans;
21
(Queensbury ZBA Meeting 10/23/2013)
F. Upon approval of the application; review and approval of final plans by the Community
Development Department the applicant can apply for a building permit unless the proposed
project requires review, approval, or permit from the Town Planning Board and/or the
Adirondack Park Agency, Lake George Park Commission or other State agency or department.
Duly adopted this 23rd day of October 2013,by the following vote:
AYES: Mr. McCabe, Mr. Freer, Mr.Urrico, Mrs. Hunt, Mr. Henkel, Mr. Garrand
NOES: NONE
ABSENT: Mr. Kuhl
MR. GARRAND-Thank you.
MR. FREER-So, just so that you guys know, we're not harassing you on purpose. The reason that
we do these kind of things and look at sort of new Code is because there's abuse, and so sorry to
have to get a new survey,but invariably we get people who try to stretch it too far, and so,you guys
clearly aren't. I hope it didn't delay the project too much.
MR. PARK-Thank you.
MR. HAYES-Thanks.
MR.URRICO-I make a motion we close the hearing.
MR. HENKEL-Second.
MOTION TO ADJOURN THE QUEENSBURY ZONING BOARD OF APPEALS MEETING OF
OCTOBER 23, 2013, Introduced by Roy Urrico who moved for its adoption, seconded by John
Henkel:
Duly adopted this 231d day of October, 2013, by the following vote:
AYES: Mrs. Hunt, Mr. McCabe, Mr. Freer, Mr. Henkel, Mr.Urrico, Mr. Garrand
NOES: NONE
ABSENT: Mr. Kuhl
On motion meeting was adjourned.
RESPECTFULLY SUBMITTED,
Richard Garrand,Acting Chairman
22