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11-20-2013 (Queensbury ZBA Meeting 11/20/2013) QUEENSBURY ZONING BOARD OF APPEALS FIRST REGULAR MEETING NOVEMBER 20,2013 INDEX Notice of Appeal No. 2-2013 Kenneth W. Rohne 2. Tax Map No. 266.1-1-9 Use Variance No. 48-2013 Cellco Partnership d/b/a Verizon Wireless 8. Tax Map No. 265.00-1-52; 252.00-1-5.2, 13.1, 11 Area Variance No. 58-2013 Swordfish Realty, LLC 15. Tax Map No. 252.00-1-75.1 THESE ARE NOT OFFICIALLY ADOPTED MINUTES AND ARE SUBJECT TO BOARD AND STAFF REVISIONS. REVISIONS WILL APPEAR ON THE FOLLOWING MONTHS MINUTES (IF ANY) AND WILL STATE SUCH APPROVAL OF SAID MINUTES. 0 (Queensbury ZBA Meeting 11/20/2013) QUEENSBURY ZONING BOARD OF APPEALS FIRST REGULAR MEETING NOVEMBER 20,2013 7:00 P.M. MEMBERS PRESENT STEVEN JACKOSKI, CHAIRMAN ROY URRICO, SECRETARY RONALD KUHL RICHARD GARRAND KYLE NOONAN JOYCE HUNT MICHAEL MC CABE,ALTERNATE ZONING ADMINISTRATOR-CRAIG BROWN LAND USE PLANNER-LAURA MOORE TOWN COUNSEL-MILLER, MANNIX, SCHACHNER&HAFNER- CATHI RADNER MR. JACKOSKI-Welcome, everyone. I'd like to open this evening's meeting of the Zoning Board of Appeals for the Town of Queensbury on this November 20, 2013 here at the Queensbury Community Center. It's a little bit after seven. For those of you who haven't attended in the past, this is quite an easy process. We do have some Old Business to attend to this evening, some housekeeping and then some New Business, but for those of you who haven't been there before, there is a sheet out on the back table that explains the process. We will call up each application or appeal and have a presentation when necessary. The Board will then ask questions. We'll open up a public hearing for when there is a public hearing scheduled. We may or may not close the public hearing at some point, we may or may not poll the Board at some point, and then we will make a determination on the application or the appeal that's in front of us. We do have some miscellaneous housekeeping to accomplish this evening. So I'd like to start with the September 18th and 25th meeting minute approval. Can I have a motion to approve the minutes of the 18th? APPROVAL OF MINUTES September 18, 2013 MOTION TO APPROVE THE QUEENSBURY ZONING BOARD OF APPEALS MEETING MINUTES OF SEPTEMBER 18, 2013, Introduced by Roy Urrico who moved for its adoption, seconded by Joyce Hunt: Duly adopted this 20th day of November, 2013, by the following vote: AYES: Mr. Garrand, Mrs. Hunt,Mr.Urrico, Mr.Jackoski NOES: NONE MR.JACKOSKI-And just for the members of the audience,some of the other members weren't here, so they won't vote on that. The minutes of September 25th? MR. KUHL-I'll make the recommendation to approve. September 25, 2013 MOTION TO APPROVE THE QUEENSBURY ZONING BOARD OF APPEALS MEETING MINUTES OF SEPTEMBER 25, 2013, Introduced by Ronald Kuhl who moved for its adoption, seconded by Michael McCabe: Duly adopted this 20th day of November, 2013, by the following vote: AYES: Mr. Garrand, Mrs. Hunt,Mr. Kuhl, Mr. McCabe NOES: NONE 1 (Queensbury ZBA Meeting 11/20/2013) MR. JACKOSKI-Okay. There. Housekeeping's done. For those students who may just be joining us, you're going to want a signature at some point at the end of the meeting, just so you know. We're going to move on with Old Business. We are going to continue a discussion on an appeal regarding the property of a Pamela J. Harris at 219 Pickle Hill Road. It is Notice of Appeal No. 2- 2013. 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. JACKOSKI-And, Roy, I don't think we need to read anything more into the record, but I understand that Mrs. Hunt had asked for some additional information to be added to the file. Was that accomplished? MR. URRICO-1 don't know. MR. ROHNE-Yes, it was. That you had requested a sworn affidavit. MR. URRICO-This here? This is the formal affidavit dated November 5t" and it says "I submit the following sworn statement in support of my appeal regarding the Harris property, 219 Pickle Hill Road (Tax Map No. 266.1-1-9), Queensbury, NY: I have been a resident of 214 Pickle Hill Road, Queensbury, NY for ten years; During this time, the Harris Logging/Excavating business did not operate from 219 Pickle Hill Road, until an apparent relocation of heavy equipment, timber, employees, etc. late August 2012; There was never any type of signage or evidence of any business operating from that property; The Harris parcel was listed, with the Town Assessor as vacant in 2005; Our 214 Pickle Hill property would never have been purchased or enhanced to its current condition had there been evidence of a business operating across the road; In 1995 Keith Harris purchased 11298 Route 149, Fort Ann, NY and constructed a 16,000 square foot building for operation of his business; This property was sold August 29, 2012; We supplied the ZBA photography clearly revealing the Harris Pickle Hill location as inactive in various seasons of several years; I maintain a minimum of 18 consecutive months has transpired, during my residence at 214 Pickle Hill Road, whereas no commercial business operations have occurred (abandoned) at 219 Pickle Hill Road (section 179-13-020, Discontinuance). We request the ZBA insist a Site Plan Review of the 219 Pickle Hill Road property be performed. We request an appeal of the Zoning Administrator's determination regarding a discussion that Site Plan Review is not required, be overturned. I maintain the decision made by the Zoning Administrator which was transmitted to the Harris Family dated June 21, 2013 be challenged. Thank you for your consideration of my request. Kenneth Rohne" MR. JACKOSKI-Okay. So for a little bit more housekeeping on this particular application, so that we follow the advice of counsel, I want to just make sure that all Board members who were not present last month feel confident in being part of the deliberations this evening concerning this particular application, that they have read the record, they have read the draft minutes, and that, for those in the audience, myself, Ron and Kyle were not present. So, Kyle, do you feel comfortable that you can, in fact, deliberate on this application this evening? MR. NOONAN-1 read the minutes and what's in front of me. MR. JACKOSKI-Okay. Thank you, and, Ron? MR. KUHL-Yes, I have no problem. MR. JACKOSKI-And neither do 1. MS. RADNER-May I just address one other issue for the record, just so we're clear? MR. JACKOSKI-Yes. MS. RADNER-You did close the public hearing last time. MR. JACKOSKI-Correct. 2 (Queensbury ZBA Meeting 11/20/2013) MS. RADNER-The statement Roy just read into the record, though, was a statement provided from someone who was here and provided testimony last time. So all parties had a chance to rebut that information. It's just in a different form, because a sworn statement was requested. MR. JACKOSKI-Correct. Right, that's the only reason I've allowed it is because it was requested. Any other letters that may have come in that were miscellaneous, they were public record, but we're not going to re-open the public hearing. I have had advice from counsel that we could request information from anyone here in the audience this evening and ask specific questions of those people in the audience, but that we would not allow them to make general statements on their own, so that we aren't re-opening the public hearing, but we could ask questions, should we need to, for our own information. Okay? Okay. So, Mr. Rohne, welcome. Thank you. This is a little bit of a unique situation because we have, in fact, had this in two parts. So I think at this time I'd like to have Board members ask any additional questions of Mr. Rohne, and we'll also bring up the Harris' at some point as well, if they have any other information to ask of Mr. Rohne. I do have some questions. I spent a bit of time on this project recently trying to do my own research. I was able to meet with the Assessor. I'd like to inform my Board of what I've learned, my Board, my fellow Board members, what I've learned about this particular application, what I saw in the minutes that I wanted to have a better understanding of, and try to get some reasonable semblance of what we're going to accomplish here this evening. The Assessor's Office in particular has information in their folder from 2008, e-mail exchanges from Mr. Harris as well as Craig Brown requesting that the assessment be changed from other storage, which is a commercial designation, to vacant with improvements. I emphasize the phrase with improvements because there seemed to be some concern last time that vacant was the wrong classification. The assessments did go down as a request of those 2008 e-mails to about half, when it was changed from a commercial designation to a residential designation, and this is information coming out of the Assessor's Office. I do have copies of those e-mails to pass to my fellow Board members. The next thing I did was to contact our Fire Marshal to determine if he has ever done any inspections on the property, because as they being designated commercial, there should be some at least every three years, inspections by the Fire Marshal, at least this is what the Fire Marshal is telling me. He has no records that that property was ever visited by him or his staff as a designated commercial property. His response was it would have come to him if there had been a Certificate of Occupancy issued, which then would have triggered them to do their inspections, which then lead me to go to Building and Codes to see if Building and Codes had every issued a Certificate of Occupancy on the property, which they could not find one. I then called Counsel and asked them if the court case that was decided was, in fact, something that could be substituted for the Certificate of Occupancy. Counsel suggested no. I then went and started to look at how recently this property was subdivided. In a commercial subdivision, and I'll look to Mr. Brown for clarification of this, but an administrative subdivision, better known as a simple two lot subdivision, cannot be done with a commercial property, however, I think that could mean the commercial zone, not necessarily a commercial entity on a residential zone. So I need a little bit of clarification from Craig about how that subdivision actually went through, was it considered residential at the time, which is how they got it, versus having to go through Planning Board review of subdivision with it being commercial in nature. MR. BROWN-Well, I guess the quick answer, well, the property in question is in the Adirondack Park, and we can't do any administrative subdivisions for two lot subdivisions for properties that are in the Park. So this property that was subdivided had to go to our Planning Board because we can't do it administratively, whether it's residential or commercial. So it was subdivided by the Planning Board because it's in the Park. MR. JACKOSKI-Okay. That's great, yes, because Building and Codes didn't have any record of that for me. Okay. That's good. Thank you. So now we need to go back and better understand Mr. Harris' e-mails, and I'll pass this around, requesting that the, with the Assessor and with Mr. Brown, changing the assessment from a commercial designation to a residential designation. Sothis is an e-mail exchanged dated September 25, 2008 at 11:10 a.m. from Terri Ross to kphrr5 aol.com, which is Mr. Harris, and I will read this is what it says. Thanks for coming into the office today, Tuesday, to discuss your assessments. I've been able to work on the parcels in question with the additional information you provided. This is parcel 266.1-1-9. This is before the subdivision because the tax map now says it's 9.1 and 9.2. This parcel was inventoried as having a warehouse located on it. You asked me to inquire about the ability to lease out the building and our Zoning Department stated that the parcel is actually in a residential zone. So I have altered the inventory data to reflect a garage on a residential parcel instead of a warehouse on a commercial parcel. The current assessment is $248,800, and for the July 2009 assessment roll it will be reduced to $143,400. This was sent, and there's other additional information on here, but these are other parcels that Mr. Harris owns. We go back into the files and we find out that they've looked through a bunch of the files for the property and find no approvals for a warehouse, etc. This is not to say that he can't rent it, and this is coming 3 (Queensbury ZBA Meeting 11/20/2013) from Craig Brown, much like you or I wanting to rent a house. The tricky part, at least for us, is what use do the renters want to do. So this is talking about whether or not the Harris family could actually rent the parcel out and change its use, and it continues on more about the lawsuit, but I want to pass this around to the fellow Board members here so that they have an understanding of what was done and requested by Mr. Harris, and that Mr. Harris knew that the parcel was being changed to a residential classification. Okay. I think one of the biggest questions I have for Craig and Counsel is the perpetuation of the actual current use and at what I understand is in order to stay a commercial use you need to be making money at it or at least attempting to make money at it. So is the parking of a bulldozer on the property for a long period of time considered a commercial use? MR. BROWN-1 guess there's really nothing that I'm aware of in the Town Zoning Ordinance that says you have to make money. I think that a commercial use, or retail use, actually, is defined as the offering of goods or services for a fee. That's a retail component. To answer your question does the parking of a bulldozer on a piece of property constitute a commercial use? I don't know how you could say that it does. I don't know how you could say that it doesn't. I'm not trying to be vague here. I just don't know what question you're asking. MR. JACKOSKI-Well, I guess we need to get into if there was or was not a cessation of actually a commercial enterprise being conducted there. That is the question at hand. MR. BROWN-Right, that's the question. MR. JACKOSKI-And storing product there, not attempting to make money with the land, which is a commercial aspect, has the usage changed, and then how is it that we determine that, I mean, at what point is there a preponderance of proof that there's been commercial activity there? MS. RADNER-You have to decide that. There's no bright line rule that in order for a commercial use to be going on there has to be a profit segment to it. For example, we routinely prosecute cases based upon our Junkyard Ordinance because they're using the property as a junkyard. It doesn't matter if they're deriving income from it or not for that in order to be classified as a junkyard. For a commercial use there's nothing that defines commercial use for these purposes as generating a stream of revenue. So you're remaining with the hard question, based on all of these factors, including the money making factor, what's been done in the past, what the court cases have said in the past. It's up to those of you sitting on the Board tonight to determine whether or not there's been a continuation of use or not. MR. JACKOSKI-Okay. MS. RADNER-There's no easy answer. MR. BROWN-Or proof that it's stopped. MR. JACKOSKI-Okay. MR. KUHL-Well, can I make a comment to what you just said, Steve? MR. JACKOSKI-Yes, please. MR. KUHL-If you look in the 1989 findings under conclusion of law, action one, it says here the 40 by 60 structure, constructed by the defendant on his property, is not an illegal structure according to the Town of Queensbury Zoning Ordinance and in fact constitutes a permitted ancillary use of the defendant's residential parcel. So, when you're going commercial back to residential, the '89 findings said that that building could be used, and, I mean, it goes on further to say what it could be used for, but it stipulates it was a residential parcel. So it never changed to commercial, or they got the approval here in '89 for a residential parcel. MR. JACKOSKI-Correct. I think that's correct. Nobody's arguing that it's always been designated as, well, at least during this time period, that it's always been designated a residential zone. The question becomes why did Mr. Harris request, in 2008, for it to go down from a commercial structure to a residential structure? And it could have something to do with the fact that they moved their operations to 149, and discontinued use, but I want to hear from the Harris side because I think it's important that we try to address all these things that are in the file. I mean, the Town of Queensbury right now, Fire Marshal doesn't designate this as a commercial structure. He hasn't been inspecting it, and he should be, at least I believe he said he should be if it's being used for commercial. We have the Assessor having changed its classification from commercial to residential based on interaction with the owner of the parcel, and now I understand the subdivision. So, if there are no other questions from Board members for Mr. Rohne, I'd like to have the Harris party come forward and try to help us get through some 4 (Queensbury ZBA Meeting 11/20/2013) of this, if they could. Okay. Thank you. So is anyone here from the Harris group that would like to come and speak to the Board for a bit? Okay. JON LAPPER MR. LAPPER-I'll speak. My law firm represents the Harris', and I think that because the public hearing was closed, they're not here tonight, so I guess if this is additional information, perhaps the fairest thing to do would be to table it and allow them to come to the next meeting, open it as a public hearing, and let them respond on the record to these. MR. JACKOSKI-We're not going to open the public hearing again, Jonathan. MR. LAPPER-What's the difference between asking them to speak and opening a public hearing? MR. JACKOSKI-Because we are doing our own investigation and we're allowed to investigate. They knew we were going to be meeting this evening. I was just going to give them an opportunity to try to help me understand the e-mails that are the paper trail in the Queensbury file, but I'm not going to open up the public hearing. MR. LAPPER-1 can respond as best. I haven't been principally handling this, but I know that in the record that they were aware of the case, that it wasn't about, you know, whether it was inspected by the Fire Marshal or not. The case says that it was grandfathered, and because they were aware of that grandfather decision, I know that it's in the record that they were careful to always make sure that they had equipment on the site, that they did use the site for that commercial purpose to make sure that the grandfather wouldn't expire and that that's what they would say if they were here. MR. JACKOSKI-Okay. MR. LAPPER-And if they tried to save money on the assessment, it doesn't really affect the use. The use is really what's at stake here, and what they've said and what Craig reviewed was that there was no 18 month period where it lapsed, and regardless of whether they had another operation, they had lots of Harris operations all over the place, but they were careful to make sure that this property was always in commercial use. MR. JACKOSKI-Okay. MR. LAPPER-Okay. MR. JACKOSKI-So I'm inclined, at this point, to, without even thinking about a motion on this matter, whether we are going to uphold the Zoning Administrator's decision or we are not, I think I'd like to try to poll the Board and get a general feeling for where you think you're going to come down on this particular matter. Is that fair? Does anybody want to volunteer to go first? MR. KUHL-Sure. MR. JACKOSKI-Thank you, Ron. MR. KUHL-You're welcome. First of all, I read the minutes of the October 23rd meeting and the supporting information, and I found that being able to read it without the instance of everybody's personal feelings was very good. First of all, Mr. Rohne, you have followed all the proper channels to get this situation resolved once and for all regarding the Harris Logging operation at Pickle Hill. In reading the documentation, Mrs. Davidson stated he, Harris, had to stay in a certain area. He was forced to stay in a smaller one acre plot that he claimed he owned or the one acre plot that he said he used strictly for commercial. Mr. Davidson, her husband, stated I watched the business expand until the Town stopped its expansion, and as his wife stated previously, that's when the elder Harris decided he couldn't operate on this piece of property anymore because it was not big enough. The question is, how much of his equipment did he, Harris, move to the new location at 149? 1 don't know, it doesn't state. Nobody knows. Mr. Wright, the Harris lawyer, he claims if you would interpret the, as he interprets the 1989 court decision it permits a variety of commercial use at this Pickle Hill location. Based on this assumption it would appear that any time a family member would bring to the Pickle Hill location any commercially registered vehicles, the nonconforming use would be extended. However, as I read the 1989 decision, I did not see any mention of one acre use restriction. Furthermore, the 1989 finding states, quote, use of Pickle Hill location is for repair of his own vehicles. Garage was intended to use for storage, maintenance of equipment used in is, Harris', timber harvesting business, unquote. Therefore Mr. Wright's interpretation of a variety of commercial uses is incorrect as I see it. Also I see the use of the property for any items relating to supporting to the 5 (Queensbury ZBA Meeting 11/20/2013) timber business, as I interpret that, this could be Mr. Harris could keep parts for his timber business, tools, you know, chainsaw blades, nuts, bolts, even a spare tire for his truck, and these would just extend the use, must less the trucks or even logs laying in the backyard. One question by Board members about were taxes for the address in question paid as a business. Mrs. Harris answered yes. On additional questions, Mrs. Harris, questions to her, do you have power and phone bills addressed to the Harris location, she answered, always have. Mr. Boland had stated occasionally he saw a plow truck with the name Keith Harris logging at the Pickle Hill location. Mr. Boland talked about vehicles that were idling at 3 a.m. in the morning that were noisy. Yes, diesel motors are a bit noisier than gasoline cars and trucks. Perhaps the Town has some rule on quiet hours that I don't know. However, I can see when a logging company has to be some distance away, let's say Albany or Syracuse, say by the start of business, 7 or 8 o'clock in the morning, they have to get up early. I personally own a diesel powered motor home that has 24 quarts of oil, which I start and idle a good 30 minutes before I drive it away. Also, with all the new fuel additives, I find the exhaust no longer has the negative odors that it used to. Even if we would consider Mrs. Davidson's daycare inspector and the '05 revaluation with the inspector rating it as vacant, these are just snapshots in time. Considering all of the aforementioned items, I would have to believe this nonconforming use was never abandoned, and I would have to find in favor of Mr. Brown, and that the positions offered by the appellant are not sufficient enough to warrant overturning the Zoning Administrator's decision at hand. MR. JACKOSKI-Thank you, Ron. Anyone else like to volunteer to go next? MR. MC CABE-Sure. MR. JACKOSKI-Mike. MR. MC CABE-1 considered all the evidence presented here, and what I found significant was, one, the ruling by Judge Dyer establishing the business at this location, so that the business was legitimate at this location. The second thing that I found significant was that the taxes were paid, and this was always maintained as a business billing address. I did not find it unusual that the base of operation would change location from time to time. I think that's nature of timber harvesting. I did not find it unusual that there weren't piles of logs all over the place. I think the logs ought to be going to the customer, not stored by a warehouse. In terms of equipment, you don't need a tree harvester and a slasher and a skidder and a premise loader and a debarking drum. The basic elements of tree harvesting are an axe and a saw, and the Harris' were aware of the provision that some piece of equipment had to be kept there all the time, and they were, after the expense of their court case, they were careful to do this. This being, I would have to agree with Craig Brown on this application, but I volunteered for the Zoning Board as a service to the community, and I don't find myself doing a service when I cause consternation among neighbors, and I would hope that the neighbors in this particular case could get together and mitigate this situation in a non-hostile environment. MR. JACKOSKI-Okay. Rick? MR. GARRAND-All right. I'm going to take a little different approach. According to everything that's been presented in the record, the Harris' have gone through numerous steps, including asking for a revaluation and a re-classification of the property to indicate a discontinuance of the logging operation on this site. I think the mere keeping of one bulldozer on site for a number of years does not indicate a continued commercial use in any means whatsoever. They also moved their operations over to 149, which is the big giveaway right there. I'd approve the Appeal. MR. JACKOSKI-Kyle? MR. NOONAN-Based on the minutes that I've read and the evidence I have in front of me, I would uphold the Zoning Administrator's opinion. MR. JACKOSKI-Roy? MR. URRICO-While I think there's ample evidence that the business was scaled back over the years, I think there's still not a preponderance of evidence to show that they completely abandoned the business. In fact, there seems to be enough indications that they kept it running, even under their basis. So I would support the Administrator's decision. MR. JACKOSKI-Joyce? 6 (Queensbury ZBA Meeting 11/20/2013) MRS. HUNT-I'm thinking just of the last 18 months, and I don't think the Harris' have proved that they have used the property for commercial use for the last 18 months. So I would not agree with the Administrator. MR. JACKOSKI-Okay. Based on the information that I had, especially with the e-mails that I had from Mr. Harris requesting that it be, you know, classified down to residential, and not having a commercial enterprise toward it, I would agree with Joyce and Rick and I would not uphold the Administrator's decision. Now, this evening, we, as a Board, have the option of a couple of things here. We can put forth a motion. We can table the matter and let our Counsel help us draft a motion because I do have some concern that this could go to litigation and maybe it would be appropriate for our Counsel to draft that resolution for us, or we could take a break here this evening and try to draft the resolution right now in a 15 minute time period. So I'm looking for the Board's thoughts on that. MR. GARRAND-Will a simple motion to approve or deny suffice? MR. JACKOSKI-It's certainly something we could accomplish, and if that's the way we want to handle it, that's perfectly fine. MS. RADNER-1 would encourage whoever makes the motion to set forth in detail the reason for the motion and what evidence in the record supports their motion, because then you will have a much more defensible determination. MR. JACKOSKI-So my thoughts on this is that we table making a decision on this matter and allow our Counsel to help us draft a resolution. Would that be reasonable? I mean, it seems right now we have the votes necessary to uphold the Zoning Administrator's decision. MR. MC CABE-1 feel we put this off the last time when shouldn't have, and I don't see anything to be gained by putting it off again. MR. JACKOSKI-I'll entertain a motion if you folks want to do one. MR. MC CABE-1 make a motion that we take a vote on the proposal before us to approve or deny the ruling made by the Zoning Administrator. MS. RADNER-1 think you need to make one way or the other. You need to set forth whether you're making a motion to approve or a motion to deny and you have to set forth your reasons. MR. MC CABE-So I'm acting as an individual at this point? MS. RADNER-A member of the Board. MR. JACKOSKI-No, Mike. What you're doing is you're actually putting forth the actual motion to uphold the Administrator's decision. MR. MC CABE-Okay. 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. MOTION TO UPHOLD THE ZONING ADMINISTRATOR'S DECISION FOR NOTICE OF APPEAL NO. 2-2013 KENNETH W. ROHNE, Introduced by Michael McCabe who moved for its adoption, seconded by Ronald Kuhl: My reasons for this are that this was a legitimate business. The business maintained operation continuously. It was not discontinued for a period of 18 months. I make this decision based on the evidence presented, particularly the fact that taxes were paid. It was maintained as a billing address,and it was acknowledged that commercial equipment was stored there. Duly adopted this 20th day of November, 2013, by the following vote: MR. GARRAND-I'm going to say no with an added statement that there was no evidence presented when asked if this was the,in fact,billing address of this business. 7 (Queensbury ZBA Meeting 11/20/2013) AYES: Mr.Urrico, Mr. Noonan, Mr. Kuhl, Mr. McCabe NOES: Mrs. Hunt, Mr. Garrand, Mr.Jackoski MR. GARRAND-Okay. The Appeal has been denied. NEW BUSINESS: USE VARIANCE NO. 48-2013 SEQRA TYPE APA JURISDICTIONAL CELLCO PARTNERSHIP d/b/a VERIZON WIRELESS AGENT(S) NIXON PEABODY, LLP -JARED C. LUSK, ESQ. OWNER(S) LOST CHALETS, LLC ZONING PUD LOCATION NEAR 441 LOCKHART MOUNTAIN ROAD APPLICANT PROPOSES A NEW 101 FT. +/- MONO POLE TELECOMMUNICATIONS TOWER AND AN 11 FT. 7 IN. BY 30 FT. TELECOMMUNICATIONS SHELTER. LOCATION TO BE WITHIN THE TOP OF THE WORLD PUD. RELIEF REQUESTED FROM THE USE REQUIREMENTS FOR PUBLIC UTILITIES. CROSS REF SP 50-2013 WARREN COUNTY PLANNING OCTOBER 2013 ADIRONDACK PARK AGENCY ALD LOT SIZE 670.88 ACRE(S) TAX MAP NO. 262.00-1-52 (TOWER PARCEL); ACCESS PARCELS: 252.00-1-5.2, 13.1, 11 SECTION 179-5-130, 179-3-060 JARED LUSK & SARA COLEMAN, REPRESENTING APPLICANT, PRESENT MR. JACKOSKI-This is an APA jurisdictional SEAR. I will turn it over to Roy to be read into the record. This is near 441 Lockhart Mountain Road. STAFFINPUT Notes from Staff, Use Variance No. 48-2013, Cellco Partnership d/b/a Verizon Wireless, Meeting Date: November 20, 2013 "Project Location: near 441 Lockhart Mountain Road Description of Proposed Project: Applicant proposes a new 101 foot monopole Telecommunications Tower and an 11 foot 7 inch by 30 foot telecommunication shelter. Location to be within the Top of the World PUD. Relief Required: Parcel will require area variances as follows: Relief requested from the use requirements for public utilities. Criteria for considering an Area Variance according to Chapter 267 of Town Law: The four (4) criteria usually associated with a use variance are different in this case. Verizon Wireless is consider a public utility under New York decisional law (Cellular Telephone Company v. Rosenberg, 82N.Y.2d 364(1993) and a provider of "personal wireless services" under the Telecommunications Act of 1996. As a result of these decisions, the following are to be shown by the public utility in order to gain a use variance: 1.) That the proposed improvement is a public necessity in that it is required to render safe and adequate service. The applicant has provided detail information about the gap in service of this area and the ability to place a structure with minimal impact to the surrounding area. 2.) That there are compelling reasons, economic and otherwise, for permitting the variance. The applicant has provided that service gap will be reduced by the placement of the structure and the height of the structure. 3.) Where the intrusion or burden on the community is minimal, the showing required by the utility should be correspondingly reduced. The applicant has provide site evaluation and is working with the APA for tower position and height to be at a minimal and still provide the capacity needed for the area of coverage. Parcel History(construction/site plan/variance,etc.): 8 (Queensbury ZBA Meeting 11/20/2013) SP 50-2013: Pending Town Board Resolution No. 77, 1984 Authorized PUD; The Town Board approved the final design and construction of the PUD. PUD Site Plan Review No. 28-2011, Top of the World Golf Course; expansion of the 9-hole golf course to 18-holes. Staff comments: The applicant proposes to construct a 101 ft.cell tower with associated equipment buildings,access road, and site improvements. The zoning code only allows Telecommunication Towers in the Commercial Light Industrial (CLI) and Heavy Industrial (HI) zones and the applicant proposes to locate the Tower at the Top of the World PUD. The Board's review of the use variance for a public utility is specific to address the placement of the utility. Board Information:Application materials submitted for review included : Exhibit A Completed Town applications for Use Variance and Site Plan, Exhibit B Project description, Exhibit C Applicable Legal Standards, Exhibit D Compliance with ordinance, Exhibit E Compliance with the Use Variance, Exhibit F Site Selection and justification, Exhibit G FFC Licenses, Exhibit H Copy of Lease, Exhibit I EAF Not applicable, Exhibit Inter-municipal notification, Exhibit K co location policy, Exhibit L tower removal, Exhibit M Deed, Exhibit N preliminary view shed, Exhibit 0 EME letter compliance with exposure, Exhibit P FAA compliance,Exhibit Q landowners consent, and Exhibit R Project Site Plan SEQR Status: N/A-APA Jurisdictional" MR. JACKOSKI-Hello. Welcome. Some of these have been in front of us before. So it's kind of an easy process, but if you could state your name for the record and just maybe add a little bit to the record if you'd like. MR. LUSK-Good evening, ladies and gentlemen of the Board. My name is Jared Lusk from the law firm of Nixon Peabody here representing Verizon Wireless. With me is Rick Andress. He's to my immediate left. He's the RF design engineer for Verizon Wireless network in this part of the world, and Sara Coleman is the real estate contractor that's been hired by Verizon Wireless to help identify the location of the tower and why it's here. I'm going to assume for the sake of brevity that you've all had the opportunity to review our application. There's a lot of information in there regarding why the project is necessary. I can, if anybody would like some specific details in a moment I'll hand the microphone over to Rick to layout the basis, what he's trying to do with this site, but suffice it to say that there's a lack of coverage in our Pilot Knob cell, what's called our Pilot Knob cell,and my friend Rick, I think,names it the Pilot Knob cell. So if you want to know why it's named that, but that's, each site has a name as opposed to a number, and as set forth in Exhibit E and F to the application,there's a gap, and it's best delineated by the pictorial within Exhibit E. Currently, a picture tells a thousand words, but this is the existing coverage, and the green area is the coverage which will be provided by this tower, particularly this area you can see will now have coverage where none exists. If you'd like to have some further detail, Rick, you can describe basically what you're trying to provide with this site. RICK ANDRESS MR. ANDRESS-Yes, so just to reiterate, when looking at the map, so basically the coverage gap begins and also exists along Route 149 through the Town of Queensbury, and in particular 9P north heading north towards Lake George there's a rather large area of, not that there's no coverage whatsoever,but it's unreliable, spotty, some,you'll be in and out of service dropping calls and what not, and the gap continues to 9P up towards Dunham Bay and then as it heads back west and southwest back towards the Village. So the intent of the tower is to cover that rather large gap. I don't remember the exact distance. I believe it's five mile-ish along NP north of Route 149, as well as cover the central portions of the lake,which I'll define as,you know,between lake George Village and Bolton Landing. So we currently have service in Bolton Landing and the Sagamore Resort and we have sites in the Village but nothing I between to cover the major routes running north and south between Lake George Village and Bolton Landing. 9 (Queensbury ZBA Meeting 11/20/2013) MR.JACKOSKI-And just for the record for when folks do read the minutes, it's actually Route 9L, not 9P. MR.ANDRESS-My apologies. MR.JACKOSKI-That's no problem. We know where it is,believe me. MR. LUSK-So that's the basis of the site. We set forth, the search area is identified within Exhibit E that's basically the Top of the World area, within the Top of the World PUD is really where we would need to place a tower to provide coverage to that area, and that's, we located a site next to the golf course and have been, filed an application with the APA and that process is continued with photo balloon fly, which I believe you were all notified of and invited to, and in Exhibit W to the application that we submitted, we submitted the photo simulations of the visibility of the tower, and as you can tell from the tower, from the photos, the top portion of the 101 foot tower will be mono pine branching, the part that stands above the trees, to blend with the existing trees, and that's a request that was made by the APA to make the tower comply with its substantial visibility standard. So based upon that review, and the standard which Mr. Urrico discussed,we believe that the tower, the impact on the neighborhood, the surrounding area will be minimal based upon its substantial invisibility as determined by the APA. Otherwise if anybody has any questions, I think the bulk of our information is in the application itself,in the materials that were submitted. MR.JACKOSKI-Okay. Thank you. At this time are there any questions from Board members? MR. GARRAND-Yes. MR.JACKOSKI-Rick? MR. GARRAND-There is a tower on Pilot Knob, Sprint tower. What upstream, downstream frequencies do they use the conflict with yours as per the report? MR.ANDRESS-I didn't realize we had a report. There are no conflicts. MR. GARRAND-There are no conflicts? So you could co-locate on the Sprint tower? MR. ANDRESS-We can, but the available centerline on that tower is far too low now it's buried in the trees, and we, actually that was how we got the name Pilot Knob. That was the original intent was to co-locate on that tower. MR. GARRAND-So you did make an effort? MR. ANDRESS-We ran tests. We actually went up there with a crane, hung antennas at the available centerline,and it did not provide the coverage. MR. GARRAND-Okay,because your report cited conflicts with the Sprint service. MR. ANDRESS-Yes, unless that's what we were referring to is that the centerline is too low to provide the applicable coverage, but as far as the frequencies interfering with each other, that's not an issue. MR. GARRAND-Okay. MR.JACKOSKI-Any other questions from Board members before I open up the public hearing? MR. KUHL-So the APA required that you put up one of those big weed things, is that what it's going to look like? MR. GARRAND-A Frankenpine. MR. KUHL-Is that what it's going to be,a Frankenpine? MR. LUSK-It's a lot different than a Frankenpine. I received similar questions last night from the Planning Board. I think there's general concern that it would be a Frankenpine. We've done several of these mono pine towers throughout the APA. They're a lot different than the Frankenpine. They're much more sophisticated now and they, frankly, for many locations you won't know that they're there because they will blend with the tower, and the fact that they're 10 (Queensbury ZBA Meeting 11/20/2013) designed to be more of a white pine now. The APA is very specific in the appearance, and it's a lot different than what it used to be. MR.URRICO-Is it like the one up on Schroon Lake? MR. LUSK-They're very similar. There's one I did that we did at Paul Smiths. You drive by, it's actually right up along the road,you won't see it because it sits amongst the trees. The key to it all is context,that it's within the pines itself. If you were to take any of these mono pines and put them in the field of maple trees, it's going to not look so great,but if you put them in an area where there are other pines,they really blend with the existing surroundings. MR. URRICO-Now is this to improve the geographic locations of the towers to spread their ability to pick up signals, or is this just because of the use,there are more people using cell phones and smart phones and we need greater coverage for that? MR. ANDRESS-It's actually a combination of the two. There are certainly areas where there is minimal to no coverage throughout the area shown in the green on the map, as well as particularly during the summer months, the very, very heavy usage, not only on the lake, but, you know, the Lake George Village area. So the sites in the Lake George Village area aren't capable of, you know, serving all the customers and usage that is generated across the lake and north as you head up toward Bolton Landing. MR. URRICO-So when you erect this tower, will that satisfy the problem, or will there need to be additional towers,smaller ones,put up to help supplement that? MR.ANDRESS-This should correct the issues for several years. It's always very difficult to tell,you know, even three or four or five years out, let alone 10 years out, but fortunately, you know, the cells are dropping down in height, like as an example the site and the tower on top of Prospect Mountain is,you know,the ultimate goal would be to take that down because right now it just more or less generates noise throughout the whole area. It is actually detrimental to the network versus helping it. MR. KUHL-In your documentation you said the next step was to go to Glen Lake. MR.ANDRESS-Yes,and that's actually the existing radio tower. MR. KUHL-That tower,you're going to use that tower? MR.ANDRESS-Yes. MR. KUHL-Okay. So it won't be a Frankenstein. MR.ANDRESS-No. MR. KUHL-Frankenpine,sorry. MR. LUSK-That question was asked last night by somebody that lived in that area. He was very interested in that. Maybe,do you live in that area? MR. KUHL-You betcha. I also am a retiree of Verizon. So it's something that everybody has cell phones but nobody wants to see the towers. Yet my feelings are the towers blend into the skies. You don't see them when you're riding along the roads,but when you do the Frankepines,they stick out like a sore thumb,but that's my own opinion. MR. LUSK-Again, with the APA, they're so strict on the substantial invisibility that we oftentimes will end up using a tower, if there's, if it sufficiently warrants it, based upon the surrounding tree cover, but in this instance they've determined that the mono pine structure crown top is the way to keep it substantially invisible. MR. KUHL-Just out of curiosity,if I might ask another question, Steve. MR.JACKOSKI-Go ahead. MR. KUHL-You have co-location stipulations in there. Do you build these to sell space on or do you build them just for Verizon's benefit? 11 (Queensbury ZBA Meeting 11/20/2013) MR. LUSK-They're designed to accommodate up to three co-locators. The problem with it is that the APA likes these things to be just above the trees, and for the same reason that we couldn't use the Pilot Knob site, in other words our antennas can't be within the trees and transmit, it's problematic because most of the time very rarely will somebody want to go below Verizon Wireless on the tower to be able to transmit because they'll be blocked by the trees. So it's a dual edged sword, substantial invisibility or co-locatability. The towers are designed to be able to accommodate them. In theory, when somebody wants to co-locate, what's likely to happen is, A, they're either going to seek a 10 or 15 foot extension above Verizon Wireless on the existing tower, which our foundations are generally designed to accommodate, or, what's more likely to happen is the people use the same compound and they'll seek to build a second tower in the same compound at the same height. So they call that horizontal co-location instead of vertical co-location,but again, it's been very difficult. That same question, again, was asked last night, and it's hard for, throughout the network, other than the APA, there's two and three and four antenna sets on each pole. Here, given the invisibility standard, it's very difficult to do that and maintain stacking antennas. MR. KUHL-Okay. Thank you. MR. NOONAN-I have a question. How close will the closest neighbor be to the, I just have, I know I've got all the maps right here, but is it, I mean, the Top of the World buildings, I can see them on the map here,is it going to be closer to the golf course or closer to the town homes? MR. LUSK-It's a long way away. The condos are, I guess I could show you where they are. I haven't mentioned it,but they're up here,all the way up this way. MR. NOONAN-Miles? MR. LUSK-No. It's,in terms of feet,this is, I would say 1500 feet. MR. NOONAN-And what's the safe distance? MR. LUSK-I didn't measure that. That was my finger quickly. So,just for the record. MR. NOONAN-And I guess the idea is, what's, where I'm going with this is I guess a safe distance to live from such high energy,you know, for the neighbors and the neighborhood. Is there a concern that, when it's not being checked, that the frequency or the energy can be up higher than maybe what it allowed? I know your answer's probably going to be no,but I know there are many studies done that say this energy's turned up so much and then it becomes kind of a public announcement that they're going to check the frequency, and then it gets turned down to check it. Trucks drive away,it gets turned back up again,and that's not good for neighbors. MR. LUSK-Well, as you, Verizon Wireless has an obligation to maintain the operating, the RF frequencies at the FCC levels, and would never, ever be in a position to (lost word), but the reality is, and Rick can talk more to this, there's more RF energy coming from your phone than you would ever receive from the antennas that are coming from that building now. If you were to climb a ladder and put your face next to the antenna, not a good idea, but the areas where this is operating it's less than,similar RF energy that you get from the fluorescent lights that are in this room. MR. NOONAN-Okay. MR. ANDRESS-And also, if I could just add to that. The report that's included in the application is done at an absolute worst case scenario, assuming that we are operating 100% of the time, 24 hours a day, 7 days a week at the absolute maximum power that the FCC allows for the licensee, which, in fact, not only your phone but the radios communicating with your phone from the tower only operate when being communicated with. So that analysis is by far so over the top worst case scenario that. MR.JACKOSKI-Any other questions from Board members at this time? MR. GARRAND-Yes, just one. I've got some concerns about work that's going to be done to the tower as far as the access and stuff. There was some documentation in the packet from Chazen, I think it was,regarding mitigation steps that you guys should take. Are those going to be monitored during and post construction? MR. LUSK-By law they have to be and they will be. I know that over the last few days, we received those engineering comments last Friday. There's been conversations, multiple conversations,with 12 (Queensbury ZBA Meeting 11/20/2013) the Chazen representative and our engineers, and they're working through those issues, but obviously drainage, the maintenance of our drainage facilities is required, presumably by any approval that's granted,but also by law. MR. GARRAND-Okay. Because we had some issues on a tower that was sited on West Mountain, and we had some serious environmental issues there. MR. LUSK-I'm unaware of that, but at the West Mountain Road, it may have been the one that I was here getting approved. So I don't know what issues you're talking about. MR. GARRAND-There was a wash out up there. MR. LUSK-Okay. Did you speak to the Verizon operational folks? MR. GARRAND-No, I tend not to talk to them. MR. LUSK-All right. I'm sorry,but did this Town? MR. GARRAND-The Town dealt with it. I was there for another reason. MR. JACKOSKI-Any other questions, Board members? We do have a public hearing scheduled this evening. I'd like to open the public hearing. PUBLIC HEARING OPENED MR. JACKOSKI-Is there anyone here in the audience who'd like to address this Board concerning this particular application? Seeing no one,is there any written comment, Roy? MR.URRICO-No. MR.JACKOSKI-And we did have the positive referral from the Planning Board,correct? MR.URRICO-Yes. MR.JACKOSKI-Okay. MR. URRICO-The Planning Board, based on its limited review, did not identify any significant adverse impacts that cannot be mitigated with the current project proposal, and that was approved unanimously. MR. JACKOSKI-Okay. So we have a unanimous approval from the Planning Board on that. I'm going to leave the public hearing open for a bit. I'd like to poll the Board and see where they stand at this time. Does anybody want to volunteer to go first? MR.URRICO-Can I text it to you? MR.JACKOSKI-Text it to me? Technology. Are you on Sprint or Verizon? MR.URRICO-I'm on Sprint. I would be in favor of the application. MR.JACKOSKI-Thank you. Joyce? MRS. HUNT-Yes. I have no problem with it. MR.JACKOSKI-Mike? MR. MC CABE-I would be in favor. MR.JACKOSKI-Rick? MR. GARRAND-I think that Cellco is doing what it can to mitigate the impacts of this project, and I also think the APA's doing their due diligence on this also. So I'd be in favor of it. MR.JACKOSKI-Thank you. Ron? MR. KUHL-Yes. I'd be in favor of it. Unfortunately my wife will be able to get a hold of me now. 13 (Queensbury ZBA Meeting 11/20/2013) MR.JACKOSKI-Kyle? MR. NOONAN-I actually would, I'm reading the application, I see what the application says,but part of me thinks maybe there's a spot farther away from people where it can go. So I'd say no. MR. JACKOSKI-Okay. I'm in favor, too, and I'm actually looking forward to having that coverage on the lake. So it will be kind of nice. So I'm going to close the public hearing at this time. PUBLIC HEARING CLOSED MR. JACKOSKI-So we'll deem it closed, and I'm looking for a motion. Thank you for volunteering, Rick. MR. GARRAND-Gee,thanks. The Zoning Board of Appeals of the Town of Queensbury has received an application from Cellco Partnership d/b/a Verizon Wireless located near 441 Lockhart Mountain Road - Top O'The World for a variance of Section 179-5-130; 179-3-060 of the Zoning Code of The Town of Queensbury in order to construct a new 101 ft. +/- mono pole Telecommunications Tower and an 11 ft. 7 in. by 30 ft. telecommunication shelter. Location to be within the Top of the World PUD. Relief requested from the use requirements for public utilities. The four (4) criteria usually associated with a use variance are different in this case. Verizon Wireless is consider a public utility under New York decisional law (Cellular Telephone Company v. Rosenberg, 82N.Y.2d 364(1993) and a provider of "personal wireless services" under the Telecommunications Act of 1996. As a result of these decisions, the following are to be shown by the public utility in order to gain a use variance: 1. Whether the applicant cannot realize a reasonable rate of return As stated by the applicant, this isn't about a reasonable rate of return. It's about providing upgrades to the inadequacies of the signal strength in that area. 2. Is this hardship unique and does not apply to a substantial portion of the district or the neighborhood. The hardship is unique and is a function of Verizon Wireless's need to construct infrastructure in the proposed site location to achieve improvements in coverage. 3. Will the variance alter the essential character of the neighborhood? This Board seems to believe it will not alter the neighborhood. The tower is being shielded by a plastic canopy. The ancillary building will not be seen by anybody unless they're on the site. 4. Is this hardship self-created? I don't think Verizon created the topography that requires a tower in this area. So I don't think it's self-created. 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 USE VARIANCE NO. 48- 2013. CELLCO PARTNERSHIP, Introduced by Richard Garrand who moved for its adoption, seconded by Joyce Hunt: As per the resolution prepared by staff with the following: A. 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; B. 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' C. Subsequent issuance of further permits, including building permits are dependent on receipt of these final plans; D. 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 14 (Queensbury ZBA Meeting 11/20/2013) 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 20th day of November 2013,by the following vote: AYES: Mr.Urrico, Mr. Kuhl, Mr. McCabe, Mrs. Hunt, Mr. Garrand, Mr.Jackoski NOES: Mr. Noonan MR.JACKOSKI-Congratulations. Good luck. Hurry up and get it up. MR. LUSK-Thank you. MR.JACKOSKI-You're welcome. AREA VARIANCE NO. 58-2013 SEQRA TYPE II SWORDFISH REALTY, LLC AGENT(S) JONATHAN C. LAPPER, ESQ, BPSR, TOM HUTCHINS, HUTCHINS ENGINEERING OWNER(S) SWORDFISH REALTY, LLC ZONING WR LOCATION 2999 STATE ROUTE 9L APPLICANT PROPOSES TO DEMOLISH EXISTING POLE BARN AND CONSTRUCT A 40 FT. BY 60 FT. ACCESSORY STRUCTURE TO BE USED FOR EQUIPMENT STORAGE DOWNSTAIRS AND OFFICE SPACE UPSTAIRS. RELIEF REQUESTED FROM MAXIMUM HEIGHT RESTRICTIONS OF 16 FT. FOR THE WR ZONING DISTRICT; APPLICANT PROPOSES HEIGHT OF 28 FT. CROSS REF SP 55-2013; BP 2013-148; 2013-072; 2010-548; 2007-369; 2007-089; 2007-090; 2007-088; 2007-093; 2007-091; 2007-087; 2007-095 WARREN COUNTY PLANNING NOVEMBER 2013 ADIRONDACK PARK AGENCY ALD LOT SIZE 13.54 ACRE(S) TAX MAP NO. 252.00-1-75.1 SECTION 179-3-040; 179-5-020 JON LAPPER&TOM HUTCHINS, REPRESENTING APPLICANT, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 58-2013, Swordfish Realty, LLC, Meeting Date: November 20, 2013 "Project Location: 2999 State Route 9L Description of Proposed Project: Applicant proposes to demolish existing pole barn and construct a 40 ft.x 60 ft. accessory structure to be used for equipment storage downstairs and office space upstairs. Relief Required: Parcel will require variance relief from the Zoning Code section 179-3-040, 179-5-020 Height Required 16 feet Proposed 28 feet Relief 12 feet 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 to no 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 as any new structure constructed on the site that is not part of the main facility would require a variance for height. 3. Whether the requested area variance is substantial. The relief requested may be considered minimal 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. 15 (Queensbury ZBA Meeting 11/20/2013) 5. Whether the alleged difficulty was self created. The difficulty may be considered self created. Parcel History(construction/site plan/variance, SP 55-13: Pending 2013-148 Comm alteration-entrance to laundry room BP 2013-072 CO Only-new owner, Swordfish Realty, LLC BP 2010-548 SEPTIC ALTERATION COMMERCIAL BP 2007-369 450 sq.ft.residential alteration BP 2007-095 DUNHAM'S BAY RESORT: conversion of third floor storage area into a one bedroom suite BP 2007-093 CABIN#6 DUNHAM'S BAY RESORT: 1296 sq.ft.commercial alteration conversion of two hotel units into one BP 2007-091 CABIN#5 DUNHAM'S BAY RESORT: 1296 sq.ft.commercial alteration conversion of two hotel units into one BP 2007-090 CABIN #4 DUNHAM'S BAY RESORT: 1296 SQ. FT COMMERCIAL ALTERATION CONVERSION OF TWO HOTEL UNITS INTO ONE BP 2007-089 CABIN#3 DUNHAM'S BAY RESORT: 1296 sq.ft.commercial alteration conversion of two hotel units into one BP 2007-088 CABIN #2 DUNHAM'S BAY RESORT: 1296 SQ. FT COMMERCIAL ALTERATION CONVERSION OF TWO HOTEL UNITS INTO ONE BP 2007-087 CABIN #1 Dunham's Bay Resort: 1296 sq. ft. commercial alteration conversion of two hotel units into one BP 2002-369 THE CHASE HOUSE RESTAURANT&LOUNGE 20 SQ. FT WALL SIGN AS PER PLOT PLAN SPECIFICATIONS BP (Sign Permit) 2001-645 TEMPORARY SIGN AS PER APPLICATION EXPIRES 9/19/2001 BP (Sign Permit) 2000-692 16 SQ. FT TEMPORARY SIGN AS PER APPLICATION SP 65-2012 Capital Region Properties Applicant proposes a modification to a previously approved site plan for a new stormwater management system for the outside banquet patio. Modification to an approved site plan requires Planning Board review and approval. SP 34-2010 CAP. REGION PROPERTIES Applicant proposes a 5,650 sq.ft. outside patio banquet area with covered bar,seating and seasonal tent. Project to include stormwater controls and landscaping commercial expansion. Commercial Expansion in the RR zone requires Planning Board review and approval. 16 (Queensbury ZBA Meeting 11/20/2013) Use Variance No. 23-2008 Alan Goldstein d/b/a Dunham's Bay Resort Applicant proposes construction of ground level patio and deck onto existing restaurant for additional outdoor dining. Expansion of a nonconforming use requires a Use Variance. Notice of Appeal No. 2-2008 Capital Region Properties, LLC d/b/a Dunham's Bay Resort Appellant is appealing a November 29, 2006 Zoning Administrator determination regarding the expansion of a nonconforming use. Staff comments: The applicant proposes to remove an existing maintenance building to construct a new maintenance building with a second story area for office space. The project includes additional parking for the building a septic system,and stormwater control measures for the project area. The plans show the location of the existing and proposed structure,elevations,and site details. The new building is to be 28 ft. in height where the first floor is designed to accommodate the storage, maintenance area for equipment and materials for site operations; the second floor is to be used for office space also to assist with site operations. The applicant has indicated allowing for a two story structure would have less impact on the site than construction of two separate accessory structures for the office and maintenance building. The project is also subject to site plan review for site improvements in the waterfront zone. SEQR Status: Type II -no further review required." MR. URRICO-And the Queensbury Planning Board also based on its limited review did not identify any significant adverse impacts that cannot be mitigated with the current project proposal, and that was adopted on November 19th by a unanimous vote. MR.JACKOSKI-Welcome. MR. LAPPER-Okay. Good evening, everyone. For the record, Jon Lapper with Rich Gordon the property manager, and Tom Hutchins,the project engineer. The very simple presentation is to say that we want to replace this,which I know you've all seen,with this. MR.JACKOSKI-But the first one's so authentic Adirondack. MR. LAPPER-It is authentic. It'll actually be brown instead of red,but the point is easy to see. We believe, essentially, that the 16 foot height on accessory structures is intended, in the Waterfront Residential zone, for houses, because you don't want to block your neighbor's view, and this is sort of a unique use in this zone, to have the resort and it's not as applicable. There's, certainly in this case where it's built in the wooded side of the property, not near any residence, it doesn't block anyone's view of anything, certainly not anyone's view of the lake, and this could have been attached to the building whereby it would have been part of the principal structure and this wouldn't have counted, but that, it would be inefficient to do that, and as the application stated, it could have been built as either a longer building or two separate buildings,but it would just a much nicer, more efficient design, less soil disturbance to just put the offices on top. Because here nobody's going to be disturbed by this view because of where it's located behind the resort. So really a pretty simple story,but we're here to answer any questions. MR.JACKOSKI-Okay. Thank you, Mr. Lapper. Any Board member questions at this time? MR. GARRAND-Yes. What's going to happen to the stand of trees that are behind the lean to now? MR. HUTCHINS-There will be clearing in slightly behind, this is the outline of the existing building. The new building goes essentially on the footprint of the existing building. It does overlap a little bit to the rear so that there will have to be some cutting behind it, and (lost word) clearing limits as well as we can. We do have to cut for, we do have to do a wastewater system. We have to do stormwater controls. So, yes, there will be some cutting. We've kept it as tight as we can around the building. MR. JACKOSKI-But you are keeping the trees kind of, that create that peninsula that kind of shields the building from the main building,right,as you look at that northwest view? 17 (Queensbury ZBA Meeting 11/20/2013) MR. HUTCHINS-Yes,right here. MR.JACKOSKI-Yes. MR. HUTCHINS-We do have to have a few parking spaces in there, but, yes, but right there we're keeping,and there's a (lost words). MR. KUHL-The upstairs is going to be heated,right? MR. HUTCHINS-Yes. MR.JACKOSKI-Any other questions before I open up the public hearing? Okay. I'll open the public hearing at this time. PUBLIC HEARING OPENED MR. JACKOSKI-Is there anyone here in the audience who'd like to address this Board concerning this particular application? Seeing no one,is there any written comment, Roy? MR.URRICO-No written comment. MR. JACKOSKI-No written comment. Okay. So we're at the point where we can poll the Board, I guess and see what your general feelings are of the application. Kyle? MR. NOONAN-It seems pretty straightforward. I'd be in favor. MR.JACKOSKI-Ron? MR. KUHL-Yes. No, I have no issue at all with this. Like he said, it's a simple thing. I'd prefer the way they're doing it rather than do two 16 foot buildings. MR.JACKOSKI-Rick? MR. GARRAND-I agree with Mr. Kuhl. I think it's a lot more environmentally friendly to have it, to build up instead of out on a parcel like this. MR.JACKOSKI-Michael? MR. MC CAB E-I think it's an improvement. I'd be in favor of it. MR.JACKOSKI-Joyce? MRS. HUNT-Yes. I'd be in favor of it. I think it won't be visible from the road or anywhere. So I'd be in favor. MR.JACKOSKI-Roy? MR. URRICO-I think it satisfies the key criteria. I think 12 feet seems excessive, but I think in this instance there's a reason for it and I would be in favor of the application. MR. JACKOSKI-And I would be in favor as well given I like what they've done to try to balance everything on that site. So I guess at this time,with the public hearing closed, I'd look for a motion. PUBLIC HEARING CLOSED The Zoning Board of Appeals of the Town of Queensbury has received an application from Swordfish Realty. LLC for a variance from Section(s): 179-3-040; 179-5-020 of the Zoning Code of The Town of Queensbury in order to demolish existing pole barn and construct a 40 ft. by 60 ft. accessory structure to be used for equipment storage downstairs and office space upstairs. Relief requested from maximum height restriction of 16 ft. for the WR zoning district; applicant proposes height of 28 ft. They're asking for 12 feet of relief. SEQR Type II -no further review required; A public hearing was advertised and held on November 20.2013; 18 (Queensbury ZBA Meeting 11/20/2013) 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? Minor to no impacts on the neighborhood may be anticipated. 2. Can the benefit sought by the applicant be achieved by some method, feasible for the applicant to pursue, other than an area variance? Feasible alternatives may be limited, as any new structure constructed on the site not part of the main facility would require a variance for height. 3. Is the requested area variance substantial? The relief requested may be considered minimal relevant to the Code. 4. Will the proposed area variance have an adverse 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. Is the alleged difficulty self-created? The difficulty may be considered self-created. 6. 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. 58-2013, Swordfish Realty, LLC, Introduced by Kyle Noonan, who moved for its adoption, seconded by Michael McCabe: As per the resolution prepared by staff with the following: A. 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; B. 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; C. Subsequent issuance of further permits, including building permits are dependent on receipt of these final plans; D. 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 20th day of November 2013,by the following vote: AYES: Mr.Urrico, Mrs. Hunt, Mr. Kuhl, Mr. Noonan, Mr. Garrand, Mr. McCabe, Mr.Jackoski NOES: NONE MR. JACKOSKI-Good luck. Congratulations. Thank you very much. A couple of things this evening. Do we have pay sheets or timesheets? MS. HEMINGWAY-I think they fell out of my box, I apologize. I will send them to you. MR.JACKOSKI-So,for the record, Sue lost them. Okay. MS. HEMINGWAY-I will send them to you in the mail with a return addressed stamped envelope. MR.JACKOSKI-Or if we can stop by your,so we don't have to do that,that's fine. 19 (Queensbury ZBA Meeting 11/20/2013) MS. HEMINGWAY-Sorry about that. MR.JACKOSKI-We also have in our information this evening the calendar for 2014. Do you want to talk about that a little bit? MRS. MOORE-Correct. Sure. This is standard. The meetings are generally the third and fourth Wednesdays of each month and the calendar indicates the times of holidays and when that changes and when due dates are for each of the applications that needed to be submitted for Staff review. MR.JACKOSKI-Okay. Do we need to approve this tonight? MRS. MOORE-Apparently last year you did a motion to approve the 2014 calendar. So we made this as part of your resolution packet. MOTION TO APPROVE THE YEAR 2014 CALENDAR Introduced By Michael McCabe,seconded By Joyce Hunt: Duly adopted by the following vote: AYES: Mr. Garrand, Mr.Urrico, Mrs. Hunt, Mr. Kuhl, Mr. Noonan, Mr. McCabe, Mr.Jackoski NOES: NONE MR. JACKOSKI-The next item in our packet was the annual election of officers for the Year 2014 by the Zoning Board of Appeals, addressing Chairman, Vice Chairman and Secretary. In this matter, each year I request that we don't elect the Chairman position because that is an appointment by the Board, and I don't see the necessity of doing so on our Board because it is a Town Board matter,but I do think we should move forward with electing the Vice Chairman and the Secretary,but I'll leave that up to the Board. MOTION TO ELECT: Roy Urrico for Secretary of the ZBA during the year 2014. Introduced By: Richard Garrand Seconded By: Michael McCabe: Duly adopted this 20th day of November, 2013 by the following vote: AYES: Mrs. Hunt, Mr. Kuhl, Mr. Noonan, Mr. McCabe, Mr. Garrand, Mr.Jackoski NOES: NONE ABSTAINED: Mr.Urrico MR.JACKOSKI-Thank you. Concerning Vice Chairman. MOTION TO ELECT: Richard Garrand for Vice Chairman of the ZBA during the year 2014. Introduced By: Roy Urrico Seconded By: Ronald Kuhl: Duly adopted this 20th day of November, 2013 by the following vote: AYES: Mr.Urrico, Mrs. Hunt,Mr. Kuhl, Mr. Noonan, Mr. McCabe, Mr.Jackoski NOES: NONE ABSTAINED: Mr. Garrand MR.JACKOSKI-Hearing no other motions. MRS. HUNT-There's a correction here. It says that my term expires this December. It's 2014. MRS.MOORE-No,we have your term expiring December of 2013. MRS. HUNT-I have papers at home that say 2014. MRS.MOORE-Okay. Can you give us a heads up then? MS. HEMINGWAY-Can you bring it in tomorrow,please. Thank you. 20 (Queensbury ZBA Meeting 11/20/2013) MR. GARRAND-That's another thing,term expirations,they haven't always been consistent. MR. JACKOSKI-Okay. So we are going to have Staff review term expirations based on the information provided to us this evening and Joyce's concerns about that particular notation as noted. MRS.MOORE-Yes. MR.JACKOSKI-Can I have a motion to adjourn? MOTION TO ADJOURN THE QUEENSBURY ZONING BOARD OF APPEALS MEETING OF NOVEMBER 20, 2013, Introduced by Ronald Kuhl who moved for its adoption, seconded by Roy Urrico: Duly adopted this 20th day of November, 2013, by the following vote: AYES: Mrs. Hunt, Mr. McCabe, Mr. Garrand, Mr. Kuhl, Mr. Noonan, Mr.Urrico, Mr.Jackoski NOES: NONE MR.JACKOSKI-Thank you. For those students who didn't have us sign anything to let your teachers know that you've been here, please come on up and we'll go ahead and sign something for you. On motion meeting was adjourned. RESPECTFULLY SUBMITTED, Steven Jackoski, Chairman 21