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Staff Notes Staff Notes ZBA Meeting Wed . , November 20, 2013 Zoning Board of Appeals - Record of Resolution Town of Queensbury 742 Bay Road Queensbury, NY 12804 (518) 761-8238 Steven Jackoski, Chairman Roy Urrico, Secretary TO: Kenneth W. Rohne APPELLANT(S): Kenneth W. Rohne 214 Pickle Hill Road Property Owner: Pamela Harris Queensbury, NY 12804 Property Location: 219 Pickle HillI Road Tax Map No. 266.1-1-9 Notice of Appeal No. 2-2013 Application for an Appeal from the Zoning Administrator's Decision (File NOA 2-2013) ZBA Meeting Date: Wed., October 23, 2013 MOTION TO TABLE 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 23rd day of October, 2013, by the following vote: AYES: Mr. Urrico, Mrs. Hunt, Mr. Freer, Mr. Henkel, Mr. Garrand NOES: Mr. McCabe ABSENT: Mr. Kuhl Steven Jackoski, Chairman Queensbury Zoning Board of Appeals SJ/sh cc: Pamela Harris Approval of the application means that the applicant can now apply for a Building Permit unless your lands are Adirondack Park Jurisdictional or other approvals are necessary (such as review by the Queensbury Planning Board.) Town of Queensbury Zoning Board of Appeals Community Development Department Staff Notes Appeal No.: 2-2013 Appellant: Kenneth W. Rohne Project Location: 219 Pickle Hill Road Meeting Date: September 25, 2013 Information requested:I Appellant is 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. Applicant:Rohne Date:September 25, 2013 Page -2- 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 be deemed to be 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. L:\Laura Moore\Staff Notes\ZBA\09-25-13\NOA 2-2013 Rohne 9_17_13.doc Zoning Board of Appeals Community Development Department Staff Notes 0 rasa STATE OF NEW YORK SUPREME COURT COUNTY OF WARREN FRANCES J. WALTER. BETTY MONAHAN, RONALD S . MONTESSI , STEPHEN J. BORGOS , GEORGE KUROSAKA, JR. , as and constituting the Town Board of the Town of Queensbury Plaintiffs -against- MEMORANDUM ORDER KEITH L. HARRIS ACTION NO. 1 Defendant PAUL DAVIDSON, DEBORAH DAVIDSON, DOROTHY M. BURNHAM. MARY TAENZER, PHYLLIS MARVIN, RICHARD MARVIN and FRED BURNHAM Plaintiffs -against- ACTION NO. 2 ` KEITH L. HARRIS Defendant COURT CONTROL NO. 87 . 0632 IAS NO. 2160 NO . 87 . 0282 NO. 1726 PRESENT: HON. JOHN G. DIER, Justice Supreme Court ACTION NO. 1 seeks a determination by the Court : 1 . That a detached garage is an illegal structure in contravention of the Town of Queensbury Zoning Ordinance. 2 . That the defendant is conducting_ business on the north side of Pickle Hill Road in violation of the Town of Queensbury Zoning Ordinance . 3 . That the defendant is operating a mechanical and heavy automotive repair shop in violation of the Town of Queensbury Zoning Ordinance . 4 . That the defendant is operating a junkyard in violation of the Town of Queensbury Zoning Ordinance . 5 . That the structure on the premises in question constitutes a public nuisance . Action No . 2 seeks a determination by the Court: 1 . That the defendant be enjoined from any operations in violation of the Town of Queensbury Zoning Ordinance . 2 . That the defendant be required to tear down the structure in question. 3 . That defendant be required to pay the sum of $10 , 000 in damages to each of the plaintiffs for depriving plaintiffs of the full use and enjoyment of their property and homes . 4 . That the defendant be required to pay the sum of $50 , 000 in punitive damages for the creation and maintenance of a public nuisance . The issues in these two consolidated actions having regularly come on for trial before me, one of the Justices of this Court , at a trial term thereof on November 17 , 1988 , and at an adjourned trial term on January 11 , 1989 , and having heard the allegations and proofs of the various parties hereto , and due deliberation having been had thereon, Now, after hearing Peter A . Firth, attorney for plaintiffs in Action No . 1 ; Earl F. Matte , attorney for plaintiffs in Action No . 2 ; and Walter 0. Rehm III , attorney for defendant in Actions 1 and 2 , I do hereby decide and find the essential facts , which I deem established by the evidence , and make conclusions of law as follows : FINDINGS OF FACT I . In Action No . 1 , plaintiffs are the former supervisor and Town Board members of the Town of Queensbury, as said Board was constituted in 1987 . 2 . In Action No . 2 , plaintiffs are home owners and property owners on the south side of Pickle Hill Road in the Town of Queensbury. 3 . The defendant in both actions is Keith Harris , a resident of the Town of Queensbury, who owns a home and surrounding land on the north side of Pickle Hill Road. 4 . Defendant ' s property consists of a parcel of land on which his home is located , and to the east an adjacent 20 acre parcel on which is situated a new 40 'x60 ' structure . 5 . The defendant has owned or utilized said property since 1980 for the storage , maintenance and repair of various types of heavy equipment used by him in connection with his timber harvesting business . 6 . The property in question has been continuously under the control of defendant ' s family for over 200 years . The area in which the property is located is in fact known as "Harrisena" . 7 . Defendant ' s grandfather and father conducted timber harvesting as well as wood processing on said property from the mid 1940 ' s through 1980 . 8 . Defendant' s residence has been occupied by his family or his ancestors for many years with the exception of a two year period from 1978 to 1979 when the residence was occupied by Ralph Flewelling who stored heavy equipment including bulldozers , backhoes , and large trucks used by Mr. Flewelling' s employer . 9 . The property in question has thus been continuously used for the storage of heavy equipment used in the timber or construction business for approximately the past 45 years . 10 . On March 27 , 1986 , defendant applied to the Town of Queensbury for a building and zoning permit in order to construct a 40 'x 60 ' garage . 11 . Defendant discussed with the Town of Queensbury Zoning Inspector, Mack Dean, that he intended to use the garage for the storage, maintenance and repair of equipment used in his timber harvesting business . 12 . On March 28 , 1986 , the Town of Queensbury Building Administrator issued a building permit to defendant. Defendant in reliance on said permit constructed the 40 'x60 ' garage , without formal objections from either Town of Queensbury - officials or defendant ' s neighbors on Pickle Hill Road. 13 . Defendant has used said garage for his logging business since that time . 14 . The within actions were commenced on February 20 , 1987 , and May 20 , 1987 , respectively. CONCLUSIONS OF LAW Based on the foregoing Findings of Fact , the Court makes the following conclusions of law: As to Action No . 1 : 1 . The 40 'x 60 ' structure constructed by defendant on his property is not an illegal structure according to the Town of Queensbury Zoning Ordinance and in fact constitutes a permitted accessory use of defendant ' s residential parcel . -3- 2 . The defendant is conducting his- own business on the North - side of Pickle Hill Road in the Town of Queensbury, but said - business is not in violation of the Town of Queensbury Zoning Ordinances , since it is a pre-existing nonconforming use of said property. 3 . Defendant is not operating a mechanical and heavy automotive repair shop for anything other than the repair of his own vehicles . There was insufficient evidence presented by plaintiffs to establish this claim. 4. The defendant is not operating a junkyard on his premises . There was insufficient proof offered by plaintiffs to establish this claim. 5 . The structure on defendant ' s premises and the activities conducted by defendant do not constitute a public nuisance, since plaintiffs failed to prove that either the structure ' -or defendant ' s activities were illegal , a necessary element for, -, _ establishing that a public nuisance exists . As to Action No . 2 : 1 . Plaintiffs ' application for an injunction is denied since defendant is not in violation of the Town of Queensbury Zoning Ordinance and thus plaintiff has failed to establish all the elements necessary for the court to grant an injunction. 2 . Plaintiffs ' application for an order compelling defendant to tear down the structure in question is likewise denied. 3 . Plaintiffs ' application for compensatory- damages is also denied since plaintiffs have failed to establish that defendant ' s structure and activities constitute a public nuisance. 4 . Lastly, plaintiffs ' application for punitive damages is -also denied since plaintiffs have not only failed to establish the existence of a public nuisance , but have also failed to establish - the willful and malicious intent by defendant necessary for an award of punitive damages . THE WITHIN CONSTITUTES THE DECISION OF THIS COURT. Attorney for defendant shall submit an order in accordance with the terms of this decision . ' JOH , G. DIER Ju- tice Dated : January 27 , 1989 - Earl F . Matte Peter Firth Walter O. Rehm III -4- ZONING BOARD OF APPEALS SAMPLE SCRIPT—AREA VARIANCE Board member can state the following four (4) items to begin the motion: 1. As per the resolution prepared by staff; therefore it will not be necessary to repeat the project description or the code section; 2. We will provide responses to items 1-7; 3. Based on our responses to Items 1-7; we will make a motion to approve / disapprove; 4. We will add specific conditions or state that there are no conditions other than the "boilerplate conditions" C through F (if a condition of approval is discussed throughout the meeting but is not inserted into the approving resolution it doesn't exist) ZONING BOARD OF APPEALS SAMPLE SCRIPT—NOTICE OF APPEAL Board member can state the following three (3) items to begin the motion: 1. As per the resolution prepared by staff; therefore it will not be necessary to repeat the project description or the code section; 2. We will provide responses to items 1-3; 3. Based on our responses to Items 1-3; we will make a motion to approve / disapprove; ZONING BOARD OF APPEALS SAMPLE SCRIPT—PUBLIC UTILITY USE VARIANCE Board member can state the following four (4) items to begin the motion: 1. As per the resolution prepared by staff; therefore it will not be necessary to repeat the project description or the code section; 2. We will provide responses to items 1-4; 3. Based on our responses to Items 1-4; we will make a motion to approve / disapprove; 4. We will add specific conditions or state that there are no conditions other than the "boilerplate conditions" C through F (if a condition of approval is discussed throughout the meeting but is not inserted into the approving resolution it doesn't exist) Zoning Board of Appeals - Record of Resolution Town of Queensbury 742 Bay Road Queensbury, NY 12804 (518) 761-82 Steven Jackoski, Chairman _,: Roy Urrico, Secretary TO: Kenneth W. Rohne 5,. PROJECT FOR: Appeal By Kenneth W. Rohne 214 Pickle Hill Road Property Owner: Pamela J. Harris Queensbury, NY 12804 ZBA Meeting Date: Wed., November 20, 2013 RESOLUTION TO: Approve , Disapprove Notice of Appeal No. 2-2013, Kenneth W. Rohne, regarding property owned by Pamela J. Harris at 219 Pickle Hill Road, Tax Map No. 266.1-1-9; The Zoning Board of Appeals of the Town of Queensbury has received an application from Kenneth W. Rohne from Section(s): 179-9-010 of the Zoning Code of The Town of Queensbury in order to appeal 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. SEQR Type II - no further review required; A public hearing was advertised and held on September 25, 2013 and October 23, 2013. The public hearing was CLOSED 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 179-13-020 Discontinuance of the Queensbury Town Code and Chapter 267 of NYS Town Law and after discussion and deliberation,we find as follows: 1. The Appeal was filed, was not filed within the required 60-day timeframe. 2. The Appealing Party is, is not aggrieved and were found to have, not have standing. 3. The merits of the argument as provided by the appellant with responses from the Zoning Administrator have been considered. It is our finding that the positions offered by the appellant are, are not sufficient to warrant overturning the Zoning Administrator's decision at hand. Based on the above findings I make a MOTION TO APPROVE / DENY Notice of Appeal No. 2-2013, KENNETH W. ROHNE , Introduced by ,who moved for its adoption, seconded by Duly adopted this 20th day of November 2013, by the following vote: AYES; NOES: Steven Jackoski, Chairman Queensbury Zoning Board of Appeals SJ/sh A cc: Pamela J. Harris 4 Approval of the application means that the applicant can now apply for a Building Permit unless your lands are Adirondack Park Jurisdictional or other approvals are necessary (such as review by the Queensbury Planning Board.)