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Appeal Application Caffry & Flower ATTORNEYS AT LAW 100 BAY STREET '? • GLENS FALLS,NEW YORK 12801 (518)792-1582•FAX: 793-0541 JOHN W.CAFFRY CLAUDIA K.BRAYMER KRISTINE K.FLOWER October 18, 2013 OCT 18 2013 R,.) HAND DELIVERED Zoning Board of Appeals Town of Queensbury R EC EIV D 742 Bay Road Queensbury, New York 12801 OCT 18 ",= 3 Re: Appeal of Zoning Administrator' s Decision TOWN OF QUEENSBURY re: Queensbury Partners, LLC/Fowler Square ZONING OFFICE Dear Board Members : • On behalf of our clients, Kathleen W. Sonnabend, David L. Thorne, Lara Currie, and John Currie, we hereby appeal the attached November 10, 2011 letter by the Zoning Administrator, Craig Brown, regarding the above-referenced project . In particular, we are appealing the apparent opinion of the Zoning Administrator that "an Area Variance . . . is needed from the 300 foot minimum setback requirement from Bay Road for residential dwelling units . " The grounds for the appeal are set forth in the attached letter to you dated August 16, 2013 . As you know, this matter is currently in litigation. ' We do not believe that this appeal is required by law, and we believe that the underlying issue can be resolved by the Court . However, the legal counsel for Queensbury Partners, LLC has alleged that such an appeal is necessary. Accordingly, we are filing this appeal so as to preserve our rights in the event that the Court rules that an appeal is necessary. We request that you table this appeal indefinitely, pending a ruling on the related issues from the Court . • - Sonnabend, et al . v. Town of Queensbury Zoning Board of Appeals, et al . , Supreme Court, Warren County, Index No. 59266. Zoning Board of Appeals 2 October 18, 2013 • Re: Queensbury Partners, LLC If you need anything further at this time, please let me know. Sin' orely, / • r Jo . W. Caffry a '@ca= jawor ,—e. com _- JWC/ljs enc. cc: Mark Schachner, Esq. (w/enc. ) Matthew Fuller, Esq. (w/enc. ) Craig Brown (w/enc. ) Clients (w/o enc. ) • C__F_DA"iApubliclCIient.Files\Sonnabend.303I\Appeal.wpd TOWN OF QUEENSBURY 742 Bay Road, Queensbury, NY 12804-5902 518-761-8201 • � November 10, 2011 Matthew F. Fuller, Esq. FitzGerald Morris Baker Firth PC 3019 State Route 4 Hudson Falls,New York 12839 RE: Queensbury Partners Bay Road/Blind Rock Road Fowler Square Dear Mr. Fuller: I am writing to you in response to my review of your plans depicting the proposed construction of the project referenced above. Upon review of the plans submitted to this office, I find that an Area Variance(s), Site Plan Review and a Freshwater Wetlands Permit will be necessary in order for you to construct the project as planned. Specifically, variances from the property line setback, wetland setback, • height, and density requirements of the Office (0) district are needed along with relief from the setback and parking requirements of the Bay Road Travel Corridor Overlay (TCO) district. Further, relief is needed from the 300 foot minimum setback Road for residential dwelling units. Site Plan Review is necessary for rcconstruction of both the commercial components as well as the residential units. The Freshwater Wetlands permit is needed for the land disturbance within 100 feet of a regulated wetland. I understand that you are preparing the necessary applications. Please note our established submittal deadlines when compiling your application materials. Should you have any questions regarding the above comments, please do not hesitate to contact this office. Sincerely, Town of Queensbury Craig Brown Zoning Administrator CB/sh • L:1Craig Brown1201 I Letters\Denial QBY Partners-Fuller 11_10_1 I.doc "HOME OF NATURAL BEAUTY . . . A GOOD PLACE TO LIVE" SETTLED 1763 Caffry & Flower ATTORNEYS AT LAW 'S, 100 BAY STREET • GLENS FALLS,NEW YORK 12801 (518)792-1582•FAX:793-0541 JOHN W.CAFFRY CLAUDIA K BRAYMER KRISTINE K FLOWER August 16, 2013 Zoning Board of Appeals Town of Queensbury Planning Board 742 Bay Road Town of Queensbury Queensbury, NY 12804 742 Bay Road Queensbury, NY 12804 Re: Application of Queensbury Partners, LLC Area Variance No. 61-2011 Site Plan No. 62-2011 Dear Board Members: We represent Kathleen Sonnabend in connection with the above-referenced project. This letter is submitted on her behalf. We request that the applications before you be denied because the applicant has applied for an area variance for the construction of multifamily dwellings within 300 feet of Bay Road, which is an arterial road, rather than applying for a use variance, as required by law. We also request that the variance applications be denied because they are so significant that they equate to a rezoning, which is a legislative function that is reserved for the Town Board. Finally, we believe that the recent adoption of a SEQR Negative Declaration by the Planning Board ("PB") should not have a binding effect the decision that the Zoning Board of Appeals ("ZBA") must make under Town of Queensbury Law") Article 14 when ruling on the evarianceoapplicationZoning A Use Variance is Required to Construct Multifamil Dwellin.s Within 300 Feet of Ba Road There is no dispute that the Zoning Law does not allow multifamily dwellings within 300 feet of Bay Road. The question is what type of variance is required for an applicant to get around that prohibition. A careful analysis of the Zoning Law and other applicable law shows that a use variance is required. 411 Application of Queensbury Partners 2 • Area Variance No. 61-2011 August 16, 2013 Site Plan No. 62-2011 The proposed project is located in the Zoning Law' s "Office" district. Zoning Law Table 3; § 179-3-040.B (2) . is split into two sub-districts: (1) for land lessTthand300rfeet from an arterial road such as Bay Road; and (2) for land more than 300 feet from an arterial road. Zoning Law Table 3; § 179- 3-040 .B (2) (a) Multifamily dwellings are a permitted use in that part of the district more than 300 feet from an arterial such as Bay Road, but are prohibited on that part within 300 feet of an arterial. ZoningfLaw eTabler3, that is 040. B (2) (a) [1] & [2] . Thus, in order to construct multifamily dwellings within 300 feet of Bay Road, a use variance is required. The applicant has only applied for an area variance, and has not yet applied for a use variance for these multifamily dwellings. Therefore, the ZBA should deny the area variance application, ' and the PB may not grant site plan review approval unless and until a use variance is applied for and approved. • The Definitions of "Use Variance" and "Area Variance" Show That a Use Variance is Re.uired Zoning Law § 179-2-010 defines an "area variance" as "the use of land in a manner which is not authorized by the dimensional or physical requirements of this chapter. " It defines a "use variance" as "the use of land for a purpose which is otherwise not allowed or is prohibited by this chapter. " These definitions are identical to those in NYS Town Law § 267 (1) (a) & (b) . The applicant is proposing to use the land within 300 feet of Bay Road for multifamily dwellings, which is a "use of land 1 We understand that the ZBA is voting on this because the application had not been submitted to the Warren gain County Planning Department for its review under General Municipal Law § 239-m. Therefore, the prior vote on July 24, 2013 is a nullity. See Smith v. Town of Plattekill, 13 A.D. 3d 695, 687 (3d . Dept. 2004) ; Zacroreos v. Conklin, 109 A. D. 2d 281, 286 1985) . Thus, the ZBA members' votes on that date are not binding them when they vote again. g Application of Queensbury Partners 3 Area Variance No. 61-2011 August 16, 2013 Site Plan No. 62-2011 for a purpose which is otherwise not allowed or is prohibited", that falls squarely within the definition of a "use variance". Zoning Law § 179-2-010; NYS Town Law § 267 (1) (a) . Thus, a use variance is required for this project. Furthermore, as demonstrated below, the prohibition on multifamily dwellings within 300 feet of Bay Road is not a mere "dimensional or physical requirement" that only requires an "area variance". Zoning Law § 179-2-010; NYS Town Law § 267 (1) (b) . Thus, an area variance is not applicable to this project. The Zoning Law' s Tables Show That a Use Variance is Re uired Table 1 of the Zoning Law is the "Summary of Area Requirements". It contains such dimensional and physical requirements as front setbacks, side setbacks, rear setbacks, minimum lot widths and minimum lot sizes. The prohibition use of land in the Office district within 300 feet of Bay Roadthe for multifamily dwellings does not appear in this table. Therefore, it is not a "dimensional or physical requirement" from which an area variance may be granted. Zoning Law § 179-2-010. Table 3 of the Zoning Law is the "Summary of Allowed Uses in Commercial Districts", which sets forth the allowed uses in the various commercial districts in the Town. Any use not designated on Table 3 as an allowed use is "not permitted" in the district in question. Zoning Law Table 3. This Table includes the "Office" district in which the project site is located. On Table 3, the Office district is divided into two parts, or sub-districts: "S 300 feet from arterial" and > from arterial".2 Each of these two 300 feet own column on the table, which lists the allowed dus srint that its part of the Office district. 2 Bay Road is defined as an arterial road in Z § 179-3-040. B (2) (a) , oning Law 111 Application of Queensbury Partners 5 Area Variance No. 61-2011 August 16, 2013 Site Plan No. 62-2011 Note: Table 3 is included at the end of this chapter. In addition: [1] No residential uses shall be allowed within 300 feet of Bay Road and West Mountain Road. [2] Both commercial and residential uses are allowed beyond 300 feet back from the arterial road. [3] Large offices are prohibited uses in the Gurney Lane Office District . Any variation from this limitation on the "Uses Allowed" in the Office district would require a use variance, which is defined as "the use of land for a purpose which is otherwise not allowed or is prohibited by this chapter. " Zoning Law § 179-2-010. (emphasis added) • Section 179-3-040.B (2) (b) contains the "dimensional requirements" (emphasis added) for the Office district. These include such things as front setbacks, side setbacks, rear setbacks, minimum lot width and minimum lot size. Any variation from these limitations would require an area variance, which is defined as "the use of land in a manner which is not authorized by the dimensional or physical requirements of this chapter. ". Zoning Law § 179-2-010 (emphasis added) . However, the prohibition on the use of land in the Office district within 300 feet of Bay Road for multifamily dwellings does not appear in the list of "dimensional requirements". Zoning Law § 179-3-040.B (2) (b) . It appears allowed". Zoning Law § 179-3-040.8 (2) (a) . h on the nior of "uses rder to vary from it, a use variance is required) not an�area variance. The Prohibition on Multifamily Residences Within 300 Feet of Ba Road is Not a "Setback" The applicant appears to have been laboring under the misunderstanding that the prohibition on multifamily dwellings within 300 feet of Bay Road is a "setback" requirement.5 If so, • 5 Draft July 24, 2013 ZBA meeting minutes, pp. 1-2. Application of Queensbury Partners 4 • Area Variance No. 61-2011 August 16, 2013 Site Plan No. 62-2011 For that part of the Office district which is "< 300 feet from arterial" [i. e. Bay Road] , "multifamily house/condos"3 "apartment house/condosi4 and "apartment house/condos above first floor" are not allowed uses. For that part of the Office district which is "? 300 feet from arterial" [i. e. Bay Road] , these are all allowed uses, subject to site plan review. Zoning Law Table 3; § 179-9-020.A. Because the prohibition on multifamily dwellings within 300 feet of Bay Road appears on Table 3, the "Summary of Allowed Uses in Commercial Districts", and not on Table 1, the S Area Requirements", it is clear that this is a " ose"ry of limitation and not a "dimensional or physical" limitation, so that any variance from it requires a use variance and not an area variance, as defined at Zoning Law § 179-2-010 and NYS Town Law § 267 (1) . • The Zoning Law' s Regulations for the Office District Show That a Use Variance is Re uired The Office district and its applicable regulations are set forth at Zoning Law § 179-3-040.B (2) , which contains the following definition of the allowed uses therein: (a) Uses allowed. The uses allowed in this district are set forth on Table 3 of this chapter. Editor's 3 Zoning Law § 179-2-010 defines a "multiple-family dwelling" or "multifamily dwelling" as " [a] building arranged to house three or more single dwelling units, including but not limited to apartment houses, townhouse developments, certain condominium developments and the conversion of existing single- family dwellings. " Zoning Law § 179-2-010 defines an "apartment house" as " [a] multiple-family dwelling that is a building arranged in single dwelling units and intended or designed to be occupied by three or more families living independently of each other, which • building may or may not have common services and entrances, and which units are rented. " • Application of Queensbury Partners 6 Area Variance No. 61-2011 August 16, 2013 Site Plan No. 62-2011 that would not be correct. Zoning Law § 179-2-010 defines a "setback" as: The established line, measured horizontally from the property line, beyond which no part of a building shall extend, except for the building eaves, which may extend 18 inches into the setback. Under this definition, a "setback" applies to "buildings" regardless of the type of uses that the building would be put to. However, the prohibition on multifamily dwellings within 300 feet of Bay Road does not apply to all buildings, only to those that would be used for multifamily dwellings. Zoning Law § 179_ 3-040.B (2) (a) . Thus, the required variance is not an area variance regarding a "setback" - it would be a use variance regarding the proposed use of the land within 300 feet of Bay Road. • Applicable Precedents Show That a Use Variance is Re uired The analysis above is consistent with the courts' interpretations of similar local laws. See DeGroote v. Town of Greece ZBA, 35 A. D. 3d 1177, 1178 (4th Dept. 2006) (allowing adult bookstore within 1, 000 feet of a dwelling required use variance, not area variance) ; Hotalina v. ZBA of Town of DeWitt, 6 A. D. 3d 1227 (4th Dept. 2004) (locating adult use business within 1, 000 feet of a residential property required use variance, not area variance) . In this case, Zoning Law § 179-3-040.B (2) (a) and Table 3 prohibit multifamily dwellings within 300 feet of Bay Road and West Mountain Road, just like the codes at issue in DeGroote and Hotalinq prohibited adult uses within 1, 000 feet of a residence. Thus, in order for the project to be approved, use variance, not an area variance. DeGroote, su must receive a supra. However, Queensbury �_'for, or received, Queensbur Partners has not applied for, or received, the necessary use variance. This is also consistent with the 2011 findings of the Warren County Planning Board on this same project, in which that Board • recommended denial of 2011 Area Variance No. 61 . In its decision, the Board' s reasons for recommending denial included Application of Queensbury Partners 7 August 16, 2013 • Area Variance No. 61-2011 Site Plan No. 62-2011 "intended uses other than what is listed". A copy of that decision is enclosed herein for your reference. 6 The Applications Should Be Denied The ZBA should deny the area variance application because the applicant has applied for an area variance, rather than a use variance, as required by law.' The PB should deny the site plan review application because it proposes to place multifamily dwellings on that part of the Office district that is within 300 feet of Bay Road, even if the ZBA approves the area variance. The PB may only approve the site plan if the applicant applies for, and receives, a use variance. Approving Such a Large Variance Would Invade the Zoning Powers of The Town Board • A ZBA may not legislate. It may only apply the existing zoning laws to the property in question. Giuntini v. Aronow, 92 A. D. 2d 548 (2d Dept . 1983) ; Fortuna v. Murdock, 257 A. D. 993 (2d Dept. 1939) ; Cohalan v. Schermerhorn, 77 M. 2d 23, 24-25 (Sup. Ct. Suffolk Co. 1973) . In this case, the applicant has applied for a significant variance on a 34 . 05 acre parcel. The variance, regardless of whether it is treated as an area variance, or a use variance, will affect about 3. 2 acres of the parcel, and allow apartments on those 3 . 2 acres, where they are not otherwise allowed. In addition, this could set a significant precedent for the rest of the Office district on Bay Road and West Mountain Road. See Zoning Law § 179-3-040.B (2) (a) . 6 Pursuant to General Municipal Law § 239-m(5) , as a result of this decision, the pending variance application requires a supermajority vote (5-2) by the ZBA for its approval. When a ZBA applies the wrong standard in deciding a variance application, its decision will be overturned if it is • challenged in court. Boyadjian v. Board of Appeals of Village of East Hills, 136 A. D. 548, 550 (2d Dept. 1988) . Application of Queensbury Partners 8 August 16, 2013 411 Area Variance No. 61-2011 Site Plan No. 62-2011 If the ZBA were to grant a variance as significant as this, it "would invade the zoning province of the legislative body". Giuntini, supra (upholding denial of area variance on 31 acre parcel) . Therefore, the variance application must be denied by the ZBA. The PB' s SEQR Negative Declaration Has No Binding Effect on the ZBA' s Variance Decision According to the minutes of the July 24, 2013 ZBA meeting, there was some discussion about what effect the PB' s April 23, 2013 SEQR Negative Declaration would have on the ZBA' s determination on the five factors applicable to an area variance. The negative declaration should have no binding effect on the ZBA' s decision. First, SEQR does not change the jurisdiction between agencies. 6 NYCRR § 617 . 3 (b) . Thus, while the ZBA can take the PB' s opinions into account, it is not bound by them, and must make its own decisions . It should also be noted that the . applicable legal criteria under SEQR and Zoning Law § 179-14-080 are different criteria. Thus, a Negative Declaration answers one question, but the ZBA must answer entirely different questions. Second, according to the DEC SEQR Handbook,8 at page 91: 8. Can a project be denied after a negative declaration? . . . A negative declaration would be a logical conclusion to the SEQR review of this project based on its lack of significant adverse environmental effects, but the Zoning Board of the town would be well within its authority to deny the requests for variances based on the failure of the variance requests to meet the tests for variance issuance. (emphasis added) Thus, the adoption of the negative declaration by the PB does not obligate the ZBA to find, based on the record before the ZBA, that the variance will not create a "detriment to the health, safety and welfare of the neighborhood or community" 8 Available at: www.dec.ny. gov/dots/permits_ej_operations_pdf/segrhandbook.pdf Application of Queensbury Partners 9 August 16, 2013 S Area Variance No. 61-2011 Site Plan No. 62-2011 under Zoning Law § 179-14-080.A (for an area variance) or that it will "preserve and protect the character of the neighborhood and the health, safety and welfare of the community" under Zoning Law § 179-14-080.B (for a use variance) . For these reasons, we request that the applications be denied. Thank you for your consideration of these very important issues . Sincerely, I / J' 11. 1 rY�ca fr fr lawoffice.com JWC/ljs • enc. cc: Kathleen Sonnabend Matthew Fuller, Esq.Miller, Mannix, Schachner & Hafner, Craig Brown Laura Moore (w/enc. ) R:\Client.Files\Sonnabend.30311ZBA.PB.Iet.wpd Decl1-15 Warren County Planning Board • Project Review and Referral Form Reviewed by Board on December 14,2011 , Project Name: Queonsbury Partners,LLC Owner. Queensbury Partners,LLC ID Number: QBY-11-AV-61 i ! County Project11: Dec11-15 Current Zoning: Office Community: Queensbury I _ _. _ a Project Description: Applicant proposes a total of 56,180 sq ft of commercial development distributed between 5 buildings and development of 175 residential apartment units distributed between 11 buildings to include 93 residential units within 4 of the proposed commercial structures. Relief requested from density,front setback,travel corridor setback,residential setback and height requirements of the Office rime. Further,relief requested from wetland setback requirements. Site Location: Corner of Blind Rock Road and Bay Road Tax Map Number(s): 289.19-1-23 thru 35 Staff Notes. Given the scale and scope of the project staff is recommending that the applicant provide the board an overview of the project. Staff recommends discussion • Local actions to date(if any): County Planning Board Recommendation: i Deny Warren County Planning Board reconweends Deny citing concerns regarding phasing, intended uses other than what is listed,access management on Bay and Blind Rock Roads,and proximity to wetlands. Local Actlon:/Plnal Dispensation (Provide reason if local action is contrary to Warren County Planning Board recommendation): .r`ed `J Warren County Planning Board Date igned Local Official Date Signed 0 -----.-____. _ PLEASE RETURN THIS FORM TO THE WARREN COUNTY PLANNING BOARD WITHIN 30 DAYS OF FINAL ACTION.