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.