06-04-2014 (Queensbury ZBA Meeting 06/04/2014)
QUEENSBURY ZONING BOARD OF APPEALS
SPECIAL MEETING
JUNE 4,2014
INDEX
Notice of Appeal No. 2-2014 Caffry&Flower,Attorneys-at-Law 1.
for Sonnabend,Throne,and Currie
Tax Map No. 289.19-1-23-35
Notice of Appeal No. 3-2014 Caffry&Flower,Attorneys-at-Law 16.
Tax Map No. 278.00-1-77 and 13
THESE ARE NOT OFFICIALLY ADOPTED MINUTE 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 06/04/2014)
QUEENSBURY ZONING BOARD OF APPEALS
SPECIAL MEETING
JUNE 4,2014
7:00 P.M.
MEMBERS PRESENT
STEVEN JACKOSKI, CHAIRMAN
ROY URRICO, SECRETARY
RICHARD GARRAND
MICHAEL MC CABE
JOHN HENKEL
KYLE NOONAN
RONALD KUHL
ZONING ADMINISTRATOR-CRAIG BROWN
TOWN COUNSEL-MILLER, MANNIX, SCHACHNER&HAFNER-MARK SCHACHNER
STENOGRAPHER-SUE HEMINGWAY
MR.JACKOSKI-Hello everyone. Welcome. I'd like to call to order this evening's special meeting for
the Queensbury Zoning Board of Appeals. The agenda is quite simple this evening. We have two
matters in front of us. We're going to start by reading the appeals into the record. We'll ask the
appellants to come to the table and discuss their appeal. The Board will ask questions. We'll bring
other interested parties to present to the Board. We'll open a public hearing, and then public
comment period, and then we'll go from there. So we do have our first item this evening on the
agenda,and, Roy, I'd like you to read the appeal into the record,please.
NEW BUSINESS:
NOTICE OF APPEAL NO. 2-2014 SEQRA TYPE N/A CAFFRY & FLOWER, ATTORNEYS-AT-
LAW FOR SONNABEND, THORNE, AND CURRIE AGENT(S) CAFFRY &FLOWER, ATTORNEYS-
AT-LAW OWNER(S) QUEENSBURY PARTNERS, LLC - FOWLER SQUARE ZONING OFFICE
LOCATION CORNER OF BAY AND BLIND ROCK ROADS APPELLANTS ARE APPEALING THE
ZONING ADMINISTRATOR'S DETERMINATION LETTER DATED NOVEMBER 10, 2011
REGARDING THE OPINION THAT "AN AREA VARIANCE...IS NEEDED FROM THE 300 FOOT
MINIMUM SETBACK REQUIREMENT FROM BAY ROAD FOR RESIDENTIAL DWELLING UNITS."
APPELLANTS CHALLENGE THE ZONING INTERPRETATION AND ARGUE THAT A USE
VARIANCE RATHER THAN AN AREA VARIANCE WAS REQUIRED. CROSS REF AV 61-11; SP
62-11; FWW 6-11; SB 13-99 BRB GROUP WARREN COUNTY PLANNING N/A LOT SIZE
34.05 ACRE(S) TAX MAP NO. 289.19-1-23-35 SECTION 179-14
JOHN CAFFRY, REPRESENTING APPLICANTS, PRESENT; KATHLEEN SONNABEND, PRESENT
STAFF INPUT
Notes from Staff, Notice of Appeal No. 2-2014, Caffry & Flower, Attorneys-At-Law for Sonnabend,
Thorne, and Currie, Meeting Date: May 28, 2014 "Project Location: corner of Bay and Blind
Rock Roads Description of Proposed Project: Appellant is appealing to the Zoning Board of
Appeals relative to a November 10, 2011 determination from the Zoning Administrator regarding a
proposed project on Bay Road within the Office district.
Staff comments:
First, Standing:
Was the appeal taken within the appropriate 60 day time frame and is the appealing party
aggrieved?
The appeal was filed within the required timeframe.
• The Notice of Appeal application was signed and filed with the Town October 18, 2013.
Although the original determination was filed at the Town on November 10, 2011, the
Supreme Court has ruled that the decision is appealable as it was not filed with the Town
Clerk.
1
(Queensbury ZBA Meeting 06/04/2014)
There does not appear to be any obvious direct impact on the appellant to indicate that the
appellants are appropriately aggrieved parties.
• The appellants are not property owners of the parcel in question.
• The appellant's papers do not offer any proof of injury in fact or of a very significant
possibility of future harm that differs from any impacts on the general public as a result of
the decision in question.
The appellant does not appear to have adequate standing for this appeal to move forward.
Second, Merits of the argument if the appellant is found to have standing:
The appellant is appealing a Zoning Administrator interpretation regarding the need for an Area
Variance. It is the appellant's position that a Use Variance is necessary, rather than an Area
Variance.
The November 10, 2011 letter from the Town of Queensbury Zoning Administrator offers an
explanation of the sole issue at hand. It was determined that residential uses must meet a 300 foot
setback from Bay Road. The property owner; Queensbury Partners, applied for and received all
necessary identified approvals including AV 61-2011 issued by this Board and SP 62-2011 issued
by the Planning Board. Discussions during the hearings for AV 61-2011, by the project applicant,
this Board and appellants,made clear reference to the"residential setback"
Please see Sonnabend public comment letter of April 24, 2013 in which she refers to the "...setback
variance..." as well as the minutes from the July 17, 2013 in which she refers to "...the 300 foot
setback." The July 24, 2013 minutes contain a quote from appellant Currie relative to "...reducing
the setbacks." These are a few examples that the appellants were aware and, apparently, agreed at
that time that the issue at hand was an area variance for setback relief and not a use variance."
MR.JACKOSKI-Okay. Thank you for reading that into the record, and before we begin this evening,
I'd just like to set some ground rules for everyone, so everyone's expectations of how we're going to
move forward are understood. This evening, as we listen to each Appeal, we will have a comment
period from the appellants. Then before they actually speak I would like our Zoning Administrator
to explain his decision. Then we'll have the appellants address the Board,followed by the property
owner being given 10 minutes to address the Board, and when I open the public hearing I am going
to adhere to a three minute public comment period for each person. We are going to adhere to
that strictly. There are a lot of people here tonight who would like to speak. In doing so I'd ask you
to please understand that this is not about the actual project. It's not about the merits of the actual
project. This is about the Zoning Administrator's decision on his determination of a Use Variance
or an Area Variance. This is not about sewer capacity. This is not about aesthetics. This is not
about traffic. This is not about those Planning Board type of issues. This is strictly about the
Zoning Administrator's determination, and that's what we're going to adhere to if we can. So, at
this time, again, I'm going to ask Craig Brown to add to the record here, if he wishes, anything he'd
like to add concerning how he made his decision and why. Otherwise we'll go right to the
appellant.
MR. BROWN-Thank you, Mr. Chairman. I don't have a great deal to add. Obviously the Staff Notes
refer to the November 2011 determination. It's pretty well explained in there that it's a setback
variance. The use is allowed within the zone. It's prohibited within a certain distance. So it's a
setback relief. For me it's pretty straightforward, pretty cut and dried. I don't have a lot to add.
Happy to try and answer any questions if they come up throughout.
MR. JACKOSKI-Okay. So I'd like to, welcome Mrs. Sonnabend, how are you, Mr. Caffry. So, we're
going to want to address standing first,if you don't mind. So if we could just address standing now,
we'll start there.
MR. CAFFRY-Thank you. For the record, I'm John Caffry from Caffry and Flower representing the
appellants, Kathy Sonnabend,who's sitting next to me, Mr. and Mrs. Curry, and Mr.Thorne, and just
a brief introduction. As you probably know, we're here because the Supreme Court ordered that
this case be remanded to this Board for a determination on the merits of the question of whether
the 70 apartments and the buildings within 300 feet of Bay Road in the Office district require a Use
Variance or an Area Variance. We initially raised this issue with you in a letter on August 16, 2013
that was filed before your final vote on the project. On August 21 you voted to approve the area
variances for the project without making a ruling on that issue. We then filed suit against the
2
(Queensbury ZBA Meeting 06/04/2014)
Zoning Board and the Planning Board a couple of days later on that issue and a few other issues.
Around that time, we learned for the very first time that on November 10, 2011 Mr. Brown had
made a written determination that arguably said an area variance was needed and not a use
variance. So we filed an appeal of that on August 18, 2013, which was within 60 days of our first
learning of Mr. Brown's determination. The Town and the applicant made a motion in the court to
have that part of the lawsuit dismissed claiming the appeal was untimely,but the court found that it
was timely because Mr. Brown's ruling wasn't properly filed with the Town Clerk as required by the
Town Code. So at this point we don't think timeliness is an issue. The court, again, ordered that
the matter be remanded to this Board for a ruling on the appeal of the use variance. With regard to
standing, we believe we do have standing. I'd also like to submit to you that if you reject this
appeal for lack of standing or latches, another procedural defense raised by the applicant, and don't
reach the merits, what's likely to happen is we'll be back in court. The judge, I think, would
overrule that, and then one of two things will happen. Either he'll remand it again for you to make
a ruling on the merits,which would just delay everything by months, or he could rule on the merits
himself without you having any input on the decision on the merits, which I assume you'd like to
avoid. The judge specifically sought the input of this Board on the merits of the issue. So I'd ask
that you give it to him and not reject the appeal on procedural grounds. As for standing, the State
Town law allows any person aggrieved to file an appeal with the ZBA. The appellants are clearly
aggrieved and have standing. Mr. Thorne is an adjoining property owner and resident at 32 Blind
Rock Road. It's the first house to the west of the site. Mr. Fuller, in his response, said well this
shouldn't count because he only owns a remainder interest. Mr. Fuller pulled his deed, but that's
irrelevant. He lives there with his 80 year old mother who has health problems and he takes care
of her. When she passes away, he will be the full owner of the property. This is a very common
estate planning technique, but he does have a real property interest in the property, and that gives
him standing. Also he lives there at this time. He doesn't have to be the owner. He lives there. If
he was a tenant, he would still have standing. That's all he needs to show. He has concerns about
the impacts to the wetlands near the boundary, and about the additional traffic. There's already a
significant amount of traffic on the road. He has trouble getting out of his driveway as it is. The
Curries own a business property only 200 feet away. It's also in the same Office district. It's also
within 300 feet of Bay Road. In fact, it fronts on Bay Road. So their property and adjoining
properties are subject to the same rule that's the subject of this Appeal. It's basically the second lot
north of Blind Rock Road. It's across the street from the Town Hall, and Ms. Sonnabend is a
property owner and a resident of property that's only 600 feet from the site. Her address is 55
Cedar Court. Now Mr. Fuller, in his papers, said that, well it's 900 feet from her actually house to
the nearest planned building,but the courts will usually look at the distance between the properties
and not at the actual buildings. It's not like you shouldn't count her yard. She has a right to use
her yard. As shown by the cases we cited to you in our letter of June 3rd,which I hope you all got a
copy of, we delivered 10 copies here yesterday, as a matter of law, because of the appellant's
proximity to the site,there's a legal presumption that they have standing. The Staff Notes say,well,
we don't have standing because we're not the property owner. We don't have to be. It's very clear
on the law that a neighbor can file an appeal like this. The Staff Notes also say we didn't prove an
injury in fact or prove a very significant possibility of future harm, but that's not the legal test. As
adjoining owners who have raised the potential for impacts, they have a presumption of standing.
The potential impacts include the additional 24 apartments in that three hundred foot part of the
Office zone, and the resulting traffic. As Ms. Sonnabend's going to discuss, it will impact them due
to the effects on the sewer capacity in the area and the ability of additional neighborhoods to form
sewer districts and hook up to the system, and, again,the Curries could be affected. Their business
is in the same zone, the same district. If you decided only an area variance is needed, other
properties around them could be changed. It would affect the character of the business
neighborhood that they're in,along with the other impacts. So I would like to ask Ms. Sonnabend to
also address the standing issue.
MS. SONNABEND-I understand that the sewer issue is not included in our Appeal, and it has no
bearing on the merits of the Appeal, but it does bear directly on the question of standing that Mr.
Fuller raised, and he did address the sewer issues in his response. I live on Cedar Court, one of the
properties for which the Town purchased and reserved capacity with the Sewer District Extension
Number Seven for Bay Road. Fowler's Square is taking nearly four times the share that was
reserved for them at the expense of other Bay Road properties like Cedar Court. Neither Mr. Fuller
nor Town Engineer Chris Harrington has thoroughly reviewed the public record or really listened
to the engineers that were involved in the 2002 Map Plan Report for Sewer Extension Number
Seven that made the Bay Road sewer possible. The public record is full of discussion about how
unfavorable previous Bay Road sewer proposals have been, due to bedrock and soil conditions
unsuitable for multi-user septic systems. At that time, in 2002, the most recent proposal to bring
sewer to Walker Lane and Bayberry Drive was for two million dollars in 1995. As a result, the
Town had long designated Bay Road for professional offices, which produce much less sewage. In
2002 when Baybridge was under DEC mandate and Rich Schermerhorn needed sewer for his
3
(Queensbury ZBA Meeting 06/04/2014)
Baybrook Professional Park, he agreed to build the Willowbrook pump station and lay the
necessary sewer lines for himself and Baybridge, and for a fraction of the cost otherwise to the
Town he agreed to increase the capacity from 44,000 gallons per day and in my notes I have up to
150,000. That was based on the 2002 Map Plan and Report, but I just found out tonight that it
actually was just 76,000 gallons per day when they finally finish the deal. The Town was supposed
to pay$142,000 for that. Mr. Harrington's August 6, 2013 memo indicated it was 161,000. As well
documented in minutes of the public hearing on September 9, 2002, and in the Map Plan report of
2002, and even Queensbury Partner's 2006 Map Plan report, the Town purchased the excess
capacity to accommodate all of the Bay Road properties, up to and including Cedar Court, according
to their needs under the existing Code, which at that time had a 1,000 foot prohibition on
residences, and this was to be whenever they needed or wanted to hook up in the future. It's
perplexing that Mr. Fuller claims it is unlawful for the Town to do so, because that is exactly what
the Town did, and the Town's law firm opined that it was unlawful. In the minutes of the
September 9, 2002 public hearing, Mr. Hafner is quoted as saying, New York law allows a Town
Board to purchase excess capacity for a sewer or water district if you expect that you need it and
will be able to sell it to future users down the road. Now the Fowler's Square property is
benefitting from that 2002 extension. In both the 2002 Map Plan report and their own 2006 Map
Plan report, the capacity needed for Fowler's Square was estimated to be no more than 12,000
gallons per day,yet this Fowler's Square project will need about 44,000 gallons per day. Mr. Fuller
also mis characterizes the sewer numbers that I submitted last year which admittedly are hard to
understand, and I think you may have seen this before, but I took a second look at it to try to make
it a little bit easier to understand.
MR. JACKOSKI-Mrs. Sonnabend, can I just ask? I mean, I think what you're stating here is that you
believe, because of the sewer capacity matters, that would help generate that you have standing in
this matter because you have a financial, and/or a use of your property restriction.
MS. SONNABEND-A very significant yes.
MR. JACKOSKI-Okay. I mean, I think if we just cut to that, that's basically your claim here. I mean,
you can go through the entire history, but I think it's easy to suggest that that's what you're stating
here is that the sewer capacity is of concern to you, and that's why you have standing.
MS. SONNABEND-And it's very real, and some people have said in the past that it's not a real thing.
That's why I brought all this documentation with me tonight.
MR.JACKOSKI-We understand. If we're going to focus on just this,just to get to standing, it's going
to be a very long night to get to actually the merits of the Appeal.
MS. SONNABEND-Just a couple of more minutes and I'll be finished.
MR.JACKOSKI-Okay.
MS. SONNABEND-Okay. I'd like to pass this out,though,just so if there's any further comment that
this proves that there's sufficient capacity, I want you to see what the real analysis is.
MR.JACKOSKI-And can you please hand it to the secretary of the Board, please. It's a little difficult
for the Board here to actually review that during the middle of a meeting,but.
MS. SONNABEND-I just wanted to point out something that I highlighted on here. I've put down
what the 2002 Map Plan report and the 2006 Map Plan report anticipated for various properties,
and the 2006 report is missing a few. It wasn't as inclusive. I don't know why, but the 2002 Map
Plan report is the lynch pin of what started all this, and the basis of the Town's purchase and
promise, and if you develop all these properties according to the Town Code at the time,which was
the 1,000 foot prohibition of the residences, you're going to need over 200,000 gallons per day
capacity for that Willowbrook pump station. Right now that pump station has 150,000 gallons per
day capacity, and with some minimal costs, up to $60,000, Chris Harrington thinks he can get it up
to 192,000, but it's still short, and this doesn't include the change in the Code from the 1,000 foot
prohibition to this 300 foot prohibition in 2007 which is after this analysis. So we've got a much
bigger impact coming up, and if you also end up giving Fowler's Square a Use Variance, it's going to
compound it even more, all up and down Bay Road, because if you give them a Use Variance, it's
going to be very hard to turn down other property owners on Bay Road in the future. All right. I
will just file the rest of this letter for the record.
4
(Queensbury ZBA Meeting 06/04/2014)
MR. JACKOSKI-Okay. Thank you. Legal counsel, I want to ask a couple of quick questions about
some of the comments made here, and then I believe what I should do is ask the property owner to
possibly address the Board concerning standing.
MR. SCHACHNER-You can if you like.
MR. JACKOSKI-For just a few minutes if that's okay, and then I'll ask to poll the Board. So if the
property owner's representatives could come to the little table, if they'd like to address the Board.
They don't have to. They would, isn't that interesting. Okay. Counsel, could you please help us.
The appellants have noted that the adjoining property owners basically automatically have
standing because they are adjoining property owners. Is that your understanding for us as a
Board?
MR. SCHACHNER-No, and in fairness to the appellant's counsel, I don't think he said automatically.
I think he said there's a presumption,and that's different in law.
MR.JACKOSKI-Okay.
MR. SCHACHNER-So the answer is,no,they don't automatically have standing.
MR.JACKOSKI-Okay. Thank you,and is it necessary to also identify financial harm?
MR. SCHACHNER-No.
MR.JACKOSKI-Okay. Thank you. Mr. Fuller,welcome.
MR. FULLER-Thank you, Mr. Chairman.
MR.JACKOSKI-And if you could maybe limit your comments to three to five minutes.
MR. FULLER-I will try to be brief. It's tough for an attorney. For the record, I'm Matt Fuller with
Meyer and Fuller in Lake George.
MR.JACKOSKI-And, Mr. Fuller,just so you know,this is about standing at this time.
MR. FULLER-Absolutely, and I will keep it to the standing and deal with the rest later. Just briefly,
quick, you know, the question Mr. Caffry raised when we first learned about this letter and things
like that, and he may have learned about it last August because he was retained, you know, mere
days before this Board ruled and the Planning Board ultimately ruled, but for the appellants in
general to say that they knew nothing of this 2011 decision, you know, strange credibility, to be
quite honest with you. That letter is in the file, and admittedly the file is huge, a lot of documents
filed over the years, but, you know, particularly Ms. Sonnabend participated in every hearing that
we had, maybe missed a couple, but all the substantive arguments about variances, the joint
meetings that this Board had with the Planning Board and the Town Board,you know,so to say that
there was some hidden decision that nobody knew about, again, I think strange credibility. Getting
to standing, now, I did file a letter, and I'll deal with the petitioners in order. With regard to Ms.
Sonnabend, Mr. Caffry said I laid my claim at the distance between the property and her house. I
did not. I did note that her house is some 900 feet from the property,but in actuality her property
line is not 600 feet from the property, it's 820 feet, and I pulled that from the GIS website and put it
in the letter that I submitted. That's a sizeable distance, in between which there is a high density
residential development, of which her property is one as well. So, no, we don't think she has
standing. She's not in the Office zone. She's outside the Office zone, and,you know,with regard to
the sewer capacity, I don't want to get into a lengthy discussion on that. I'll limit it to this. She
talked about Mr. Hafner's statements back in 2002. This Board may or may not know, but back
then the Town of Queensbury was negotiating a contract to the City of Glens Falls. The purchased
capacity that she talks about in those comments were relative to that. So, yes, the Town can
purchase excess capacity from another municipality. It's very clear in the law, but what's trying to
be done here is to discriminate against an in district user in favor of an out of district user. Now,
the Town can set aside capacity for certain things,but our argument here is that what they're trying
to do is get capacity that they've said they didn't need, and on the back of my letter from the other
day, I said after all the dates she talks about, in '02, '06 and later, there's a January 6, 2011 letter,
I've read it before, and I'd like to take a minute just to read it again. It says, To Dan Stec, the then
Supervisor, Dear Dan: At a meeting of the Board of Directors of the Cedar Court Homeowners
Association held on January 5, 2011, the Board voted to terminate our interest in establishing a
sewer district for Cedar Court at this time. Two factors influenced our decision. First the
estimated cost associated through the feasibility study was prohibitive by everyone's standards,
5
(Queensbury ZBA Meeting 06/04/2014)
especially considering the number of residents who would have to bear the burden. Second, after
extensive investigation of the health of our current septic system, it was determined that it is
functioning as it was designed. The Board contracted with a separate septic company to uncover
the distribution tanks in our four zone leachfield. Upon inspection, it was found that they are in
perfect working order. In fact, the contractor made that comment that they look brand new. So at
this time the Board is adopting an enhanced maintenance program for our current system and
holds the option of hooking up to the Town's municipal system for the future. So what they would
propose is to hold that capacity open indefinitely, in case people want to tie in. That is the
argument. We're a developer here in the district that is paid not only for capacity but paid to run
the sewer line up to this intersection that has allowed this Town, this facility here, to tie in, Surrey
Fields to alleviate their problem, at my client's expensive, of upwards of a million dollars. Nobody
wants to talk about that fact. My clients ran the line that has allowed this stuff to happen here. So,
yes,we do not think she has standing. As to Mr.Thorne, again, Mr. Caffry wants to pick out the one
part of the deed and completely disregard the other. I said it in my letter. I have no issue with the
life estate. My issue is with the fact that it is, that there's a limited power of appointment that is in
that deed. Now that gets into law, you may or may not know what that is, but somebody can
exercise that power of appointment and completely take away any title interest that might be in
that deed right. That's the argument. So we, again,with regard to the title interest,but even again
with regard to where the property is,yes,there's an adjoining part out in the middle of the wetland,
and the kitchen sink approach of trying to throw everything at this project, we started many years
ago with impact to the school district. That was the big argument, don't put apartments there, and
the most elitist argument ever, because people in apartments procreate more than people in single
family residences. They result in more kids and that's going to overload our school. That was the
big argument back then. The school spoke up and said that's not entirely true. We filed evidence
with the Town, back with the Town Board when it was reviewing the zoning at that time, and that
argument went away. Then we went into traffic. We hired the engineers. We supplied the plan
that fixed the intersection. That argument went away. Tonight for the first time, now we've got a
wetlands argument, which the project has been completely designed around the wetlands to stay
away from the wetlands. So it seems like every time we come back here there's another argument
to try to defeat the project, and we just keep reacting to them. So with regard to Mr. Thorne's
property, he's way on the other side of the wetland. We haven't touched the wetland. We've not
invaded the wetland. The trees are going to stay. We don't think that there's any big impact to
him. With regard to the Currie property,yes,they have,they are in the Office zone. Their property
over there is developed. They're not in the sewer district. The sewer district ends out here, and we
don't believe that the standing claims apply to them either. So just to briefly summarize again, as
applicable to all the appellants, you know, no appellants own property that's located in the sewer
district,or even a proposed sewer district,that would be impacted by our project,and no appellants
have made any claim with regard to how they have been damaged by the decision of Craig Brown,
and with that, Mr. Chairman, I'll limit my comments.
MR. JACKOSKI-Thank you, Mr. Fuller. Mr. Caffry, if you could, or Ms. Sonnabend. Mr. Caffry, is
there anything that you'd like to add at this moment,or can we just ask questions of you as a Board?
MR. CAFFRY-I think Ms. Sonnabend would like to respond to some of the, I guess what I would like
to add is what Mr. Fuller is saying,we keep raising new issues to defeat the project. All these issues
that we talked about tonight, that might, he seems to be misconstruing what we're talking about in
terms of standing for arguments on the merits, and that's my main point, and Ms. Sonnabend would
like to briefly respond to some issues he raised about the sewer standing issue that were part of
what she didn't get to say before.
MS. SONNABEND-Mr. Fuller says that Cedar Court lost its option, and in other public testimony he
claims that Cedar Court would have to run a sewer line over to Meadowbrook. Here's the real story.
With the help of a fellow resident, Frank Hardick, an experienced PE, professional engineer, Cedar
Court developed a plan to hook up to the sewer in 2010 for about$150,000 to $250,000, plus about
$750 dollars per unit, but the Town's Engineering study came back with a cost of $842,000 plus
more than $4,000 a unit, about five times the anticipated cost. That amount for a 42 unit
homeowners association of mostly elderly people on fixed incomes, it was unaffordable, and more
than the State Comptroller's office allows such associations to incur without approval. Since our
septic system remains healthy, the Cedar Court Homeowners Association board declined, but
reserved the right to connect in the future when the costs might be spread over a larger number of
units. It would be more affordable, it would be even more unaffordable if instead of connecting to
Bay Road, Cedar Court would be required to run pipe all the way over to Meadowbrook with an
additional pump station at the low point. The Town didn't want to incur that cost a few years
earlier when the Town Hall septic system failed and they connected at Blind Rock and Bay Road.
Why would it be suddenly now acceptable for a small group of older residents with much fewer
resources when it wasn't acceptable to the Town? His assertion that Cedar Court would have to be
6
(Queensbury ZBA Meeting 06/04/2014)
an out of district user is also false. Mr. Harrington confirmed to me that the Town prefers that
properties submit a map plan report to become a sewer extension. Even Fowler's Square was out
of district until their 2006 map plan report and sewer extension. All of the Bay Road properties
between the existing sewer district extensions and beyond up to Cedar Court still have the right to
join the sewer district, and claim and pay for the capacity the Town advance purchased in 2002.
Queensbury Partners did bring up the sewer line to Bay Road from Walker Lane, but they would
have had to go up there anyway for Fowler's Square, and the Cedars paid for their share of the
project. If the Town wants to show their appreciation to Fowler's Square because the Town was
able to hook up inexpensively when the Town Hall system failed, then perhaps the Town should
consider giving Fowler's Square a break in their buy in at the time of hook up, but don't let them
steal capacity from other properties. That might be unfair to the Cedars which has already paid its
buy in. Cedar Court's system is currently healthy,but it's got to be 25 years old now. It's not going
to last forever, and Cedar Court isn't the only property that's going to have to hook up at some
point. So by allowing this more intensive development without having a proper sewer study
already done is causing a big problem. Mr. Fuller also mis characterizes my comments by saying
that I want Fowler's Square to pay for Cedar Court's sewer connection. I never asked them to pay
for any of the costs described earlier for a Cedar Court extension. That would be ludicrous, and I
want to say that although Supervisor Strough recently thought a complete up to date sewer study
had been conducted,he now understands that a sewer study does not exist that includes the impact
of the zone change in 2007,which moved the prohibition for residences from 1,000 feet to 300 feet,
let alone eliminating that prohibition all together. We're going to have a lot more sewer capacity
needs up and down Bay Road. This is a looming problem,and it's going to come back to haunt us in
the not too distant future.
MR. JACKOSKI-Okay. Thank you. So, Counsel, at this time, we don't need to open the public
hearing in order to determine standing. Correct?
MR. SCHACHNER-That's true, but I guess I just want to say, if this makes it any easier, I would not
advise the Board to deny the Appeal on the grounds of lack of standing, and secondly I'd like to
comment that we're off, in my opinion, having been through, many, many, many more of these
proceedings than probably anyone in the room, I don't think we're off on a great foot in that we've,
more than half of what we've heard so far has absolutely nothing to do with, not only standing, but
nothing whatsoever to do with the Appeal itself. I want to remind the Board, and I hope the public
hears me say this as well, that we're here to discuss an appeal of the Zoning Administrator's
determination, as you said, Mr. Chairman, as to which type of variance was needed. It matters not
one whit whether our sewer study is up to date and competent, grossly out of date and completely
incompetent,whether there is sewer capacity for the underlying Fowler's Square project or there is
not sewer capacity for the underlying Fowler's Square project, or any of the rest of that. You asked
me to try to help chime in if I felt things were not going, and from the meeting management the way
you want them to go,and I felt compelled to do that.
MR. JACKOSKI-No, thank you, and I was simply trying to make sure that I was hearing that there
was some kind of a potential financial impact,which might garner more support for standing.
MR. SCHACHNER-That's fine.
MR. JACKOSKI-Okay. So at this time, Board members, I'd like to poll the Board just to confirm the
belief in whether or not there is standing,and then we can do a consensus vote. Is that fair?
MR. KUHL-I have a question, Mr. Chairman. Is it everybody has standing, or each person
individually?
MR. SCHACHNER-It doesn't really matter if they all have standing. They're a group represented by
counsel. If anyone has standing,then the Appeal proceeds.
MR. KUHL-Okay. Thank you.
MR.JACKOSKI-So I'm going to start with Rick.
MR. GARRAND-Sure. I believe Mr. Thorne being in close proximity, along with the Curries, this
project has a different impact on them than it does the public at large, and I do believe they have
standing.
MR.JACKOSKI-Thank you. Ron?
7
(Queensbury ZBA Meeting 06/04/2014)
MR. KUHL-Yes. I'm not going to go into each person whether I think they have standing or not,but
as long as one person has standing,then we go forward.
MR.JACKOSKI-Kyle?
MR. NOONAN-I also feel that the appellants have standing.
MR.JACKOSKI-Harrison?
MR. FREER-Yes, I agree that there's standing in this case.
MR.JACKOSKI-Mike?
MR. MC CABE-Certainly the Curries have standing,and so therefore the whole group has standing.
MR.JACKOSKI-And Roy?
MR.URRICO-Yes, I believe the appellant has standing.
MR. JACKOSKI-Okay. So I think that we can acknowledge we're unanimous in that there is
standing here for, to hear this Appeal. Do we just simply say aye, or what would you like us to do,
Counsel?
MR. SCHACHNER-You don't need to take a formal vote on that. That's not expressly an issue before
you.
MR.JACKOSKI-Okay.
MR. SCHACHNER-The issue before you is the appeal of the Zoning Administrator's determination.
MR.JACKOSKI-Thank you. Okay. So now we're going to address the merits of the Appeal itself and
we are going to stay very focused on not talking about anything else other than a use variance or an
area variance determination by the Zoning Administrator, and if we could keep those arguments to
specifically that matter,that'll help us greatly here. I'm going to, Roy,you don't have anything more
to read into the record,correct?
MR.URRICO-No.
MR.JACKOSKI-Great. So, counsel for the appellants, if you could, if you'd like to address the Board.
I mean, I realize a lot of what has been discussed already is obviously merit based. Is there
anything you'd like to add before we actually bring the property owners back to the table also and
then have questions from the Board,or would you like to just get questions from the Board?
MR. CAFFRY-I would like to add some,your honor, I mean, Mr. Chairman.
MR.JACKOSKI-I like that. That means my pay just went up. That's wonderful. Excellent.
MR. CAFFRY-Habit,habit. One thing I would like to say preliminarily, Mr. Fuller raised in his papers
the defense of latches. I'll just briefly say we disagree. We don't think it applies, and that's not an
issue for the Board. I assume he just put it in there to preserve the record for the lawsuit that's
already pending. On the merits, our main concern that lead to this Appeal is that the,based on Mr.
Brown's decision, the applicant applied for the wrong type of variance under the Code, and so
instead of applying the strict standard for a Use Variance, the Board wound up applying the looser
standard for an Area Variance. As the judge said in his decision, the Zoning Board of Appeals will
have to look closely at the determination by the Zoning Administrator. If you do that, and if you
look very closely at the Town Code,multiple sections of the Code make it really very clear that a Use
Variance is required. If you look at the definitions of the types, two types of variances, an Area
Variance is a use of land in a manner which is not authorized by the dimensional or physical
requirements of this Chapter. A Use Variance is the use of land for a purpose which is otherwise
not allowed or is prohibited by the Chapter. So now we look to the rest of the Code to see if it's a
dimensional or physical requirement or a purpose which is otherwise not allowed on the land that's
part of this site. If you look at the tables in the back of the Zoning Code, Table Three is the
summary of allowed uses in commercial districts. To vary from this table you need a Use Variance.
The table divides the Office district into two sub districts,greater than or equal to 300 feet and less
than or equal to 300 feet. The 300 feet is not a setback. It's a boundary between different parts of
that district, which have different requirements. This is where the prohibition on all residential
8
(Queensbury ZBA Meeting 06/04/2014)
uses within 300 feet of Bay Road is found. It's listed as a site plan review use in the sub district
beyond 300 feet, but it's not listed as an allowed use at all in the sub district within 300 feet, and if
you look at the table,you'll see it's blank on it within 300 feet of the road, and that means it's not an
allowed use. That falls within the definition of a Use Variance because it's a purpose that is not
allowed or is prohibited in that sub set of the district within 300 feet. On the other hand, if you
look at Table One, the summary of area requirements for all the zoning districts, this contains the
dimensional and physical requirements, minimum lot size, percent of lot coverage, building height,
density, setbacks and all that. To vary from this,you need an area variance. Mr. Brown says that
the 300 foot rule for residences in the Office district is a setback,but this is not in the list of setbacks
on Table One. It's not otherwise listed as a dimensional or physical requirement here or anywhere
else in the Code. So the 300 foot rule is not a dimensional or physical requirement as used in the
Code, and it's not subject to an area variance. If you look at the specific regulations for the Office
district, Section 179-3-040B(2)(a) is the list of uses allowed, and this contains the 300 foot rule. If
you look at sub section b,that contains the dimensional requirements,and there's no mention there
of the 300 foot rule. So, again, it's a use variance, it's not an area variance because it's not a
dimensional requirement. Likewise the 300 foot rule is not within the definition of setback, as Mr.
Brown has argued. The definitions section, 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. This definition doesn't
address the use of the building. It addresses how close it is from the property line. So here the
building would be 75 feet from the road, no matter if it's used for residential use or commercial use
or whatever else, it's 75 feet. So we're not trying to vary the setback. We're trying to vary the use,
or the applicant's trying to vary the use of it. They're not trying to change the distance allowed
from the road. In our original Appeal we cited some court cases. We think they both apply. The
County Planning Department, when it looked at this question, it said, it made its recommendation
based on in part that the uses weren't allowed. The Staff Notes don't really address the merits. All
they say is explained in the November 10, 2011 letter, but that doesn't really explain the basis. It
just says, actually it didn't even say an area variance was required. All it really said was relief is
needed from the 300 foot minimum setback from Bay Road for residential dwelling units. It didn't
even actually address the issue, and the judge found it was rather ambiguous. Mr. Brown has since
clarified it but the point being his defense basically to this Appeal is to say look at my 2011
decision, and the judge already said it was ambiguous he couldn't tell what it said. The Staff Notes
also refer to various times in 2013 when some of the appellants used the term setback or setback
variance and that's captured in minutes or various other writings, as if this was some kind of
binding concession. Well, they were in the dark at the time. They were not represented by
counsel yet. They did not understand the difference between the two types of variances, and so
they were using the same nomenclature that you were using, that Mr. Brown was using, that the
applicant was using. They didn't realize the difference. Also the example cited in the Staff Notes
were not by all of the appellants. Some of them may have said it, but not all of them. So it's not
binding on the other ones. More importantly than who said what when, this Appeal should not be
about that. This Appeal should be about what the Code says and whether or not the Town is going
to read the Code the way it's written and whether or not the Town is going to enforce it in this case.
Now Mr. Fuller said that it's an area variance because the 300 foot rule is a physical requirement is
we ignored this in our written Appeal. Well, in fact,we expressly discussed it in the written Appeal
dated August 13, 2013, and as I've discussed already tonight, we're not arguing about the physical
location or the physical size of the buildings. We're talking about the use that will be made in them,
in their location 75 feet from the road. In conclusion, Mr. Fuller says in his letter that the Code is
ambiguous and so it ought to be construed in his favor. The Code's not ambiguous in the least.
There's not a single section in there that lists 300 foot rule as a setback or as a dimensional
requirement. All the relevant sections, definitions,lists, tables have it in the use category. It's not
in the dimensional category. There's no ambiguity so we're asking you to overrule Mr. Brown's
determination and find that a use variance,not an area variance,is what is required within that part
of the Office district within 300 feet of Bay Road. If you do that, then the applicant can come back
and apply for their use variance or they can modify the project and bring it into compliance. That's
up to them,but we're just asking you to apply the Code the way it's written. So,any questions?
MR. JACKOSKI-At this time, are there any questions from Board members for the appellant before I
bring in the property owner one last time for a quick addressing of the Board?
MR. KUHL-Yes, I have a question. In all of your research of our Codes, what is the setback for
business?
MR. CAF FRY-It varies from district to district. In this particular one I believe it's the 75 feet.
MR. KUHL-Thank you.
9
(Queensbury ZBA Meeting 06/04/2014)
MR.JACKOSKI-Okay. Hearing no other questions, if you give up the table one last time and then I'll
ask Mr. Fuller to address the Board briefly for a couple of minutes, if he wishes to, and then for
those in the audience I promise right after this we'll open the public hearing. We'll read written
comment into the record first and then we'll ask anyone who'd like to address the Board on
anything in addition to that written comment. Mr. Fuller?
MR. FULLER-Thank you, Mr. Chairman, again, members of the Board, first we're going to, let's be
frank,this has nothing to do with the 300 foot setback. It's about density. It's a throw anything at
it. This Appeal is about density. That's where it's heading, and I'll get to that, but when we were
first here with the project,we had apartments outside of 300 feet. Went to the Planning Board,the
Planning Board came back and said we want to see something different. We want to see a mixed
use project here within the 300 feet. I'll keep it brief.
MR. JACKOSKI-Again, it's just about the determination. We've all been through the history of this,
everything that's happened. We all participated in it. We need to address the merits of the Zoning
Administrator's determination.
MR. FULLER-That's what I'm getting to. As those project specs started to mount, I went to Craig,
and I said, Craig, ultimately we've got some variances here. At that point there was a lot of them,
upwards of the 20's, 30, somewhere in there, and I said we're going to need a determination. So
I'm going to apply to you and ask for a determination. Can you review this and let us know what
variances we need. Just as any applicant would, and that's where we got the area variance setback.
Read the Code, interpret it, tell us what variances we need. I don't think Craig's determination is
ambiguous at all. To cast it aside is,you know, can be read five different ways I think is misplaced.
The determination is clear. When Craig looked at the 300 foot as a physical setback, he said it was
an area variance setback. We applied for the variances that were needed. Nobody appealed it at
that time. Again, the discussion that we didn't know is patently false or that, you know, we didn't
know the difference between an area variance or a use variance. Ms. Sonnabend just sat here for
10 minutes and testified to,you know, sewer numbers and figures and how the system was set up.
You can't say you didn't know what the difference between a use variance and an area variance
was. There were discussions throughout the meetings, even before you. On the 300 foot setback,
our argument is this. When you look at that, even in the charts on the back and even in the Office
zone, that variance can be interpreted as an area variance, an area setback, and when you come in
to apply, you have the right to apply for a variance. Craig made the determination. We think at
best that the appellants are raising an ambiguity, and,yes,that is construed in our favor ultimately,
and we're pretty confident in that. It's a physical dimensional. Just because it's titled dimensional
on that last chapter of the zoning does not exclude that. It is a physical setback. On the one hand
you're arguing that it's not about physical location. It is about physical location. That's exactly
what we're talking about, the use of those buildings within that physical location. So, you know,
pointing to the language of Craig's determination and the language that's in the zoning, we think
that there is room for that interpretation in there. We don't think it's as clear cut as the appellants
want to make it out, and when it gets to that point that it's not as clear cut, then we get the benefit
of that doubt. That's how the rules of interpretation are with zoning. Are you going to have
closing at the end?
MR. JACKOSKI-I don't think so. I think we've heard significantly from the sides at this point. I'd
like to open the public hearing and then let the Board determine where they want to go from there.
MR. FULLER-Okay. I did submit a couple of letters. I think you got them both for the record, and
I'll leave it at that for now,unless you've got questions.
MR.JACKOSKI-Thank you, sir. Okay. I'm going to leave the little table open for the public hearing.
I am going to open the public hearing at this time, but I'm going to ask Craig Brown if he'd like to
add anything at this time.
MR. BROWN-If I could just clarify, and I think Attorney Caffry kind of touched on the one point
where the major disagreement is. The way I look at the use table, he claims, or I guess he
interprets it as two sub zones within the Office zone, and I obviously take the other side of the coin
there. If you look at the construct of that table, both of those columns are under one Office zone
heading at the top. All of those uses are allowed within the Office zone. This property is within the
Office zone, and the 300 foot setback is just that, it's a setback. It's not a prohibition of the use
within the zone. It's a prohibition of the location and it's bounded by that 300 foot setback. So just
wanted to clarify that's where my decision came from. The uses are definitely allowed within any
place within the Office zone subject to that 300 foot setback.
10
(Queensbury ZBA Meeting 06/04/2014)
MR.JACKOSKI-Okay. Thank you. So I am opening the public hearing,and, Roy,is there any written
comment to be read into the record?
MR.URRICO-Only what Mr. Fuller had mentioned,that he sort of waived the.
MR. JACKOSKI-Yes, so noted that those letters have been received as written comment to this
Appeal in the record. Okay. So I am going to ask everyone to please be reminded this is not about
the merits of the project,what the project looks like,what the sewer capacity is,what the density is.
This is purely about whether or not this is a use variance or an area variance determination by the
Zoning Administrator. So is there anyone here in the audience this evening who'd like to address
this Board concerning this application? Mr. Underwood. And, Mr. Underwood, please just know
that we're going to try to limit this to three minutes.
PUBLIC HEARING OPENED
JIM UNDERWOOD
MR. UNDERWOOD-Okay. Just to illustrate, I spent a lot of years on the Zoning Board, and finished
out my tenure on the Board after 12 years with this project, and so I think what I wanted to do
tonight is just to clarify for everyone. Along through the whole process, I think what we were
looking at was for information because for the Zoning Board to make a determination as to the
correctness of a project and to provide relief for a project, you have to go over there with all the
information that's available, and I think what we ended up with here, when you guys finally ended
up approving this project,was,you still were missing some of the information. So what I wanted to
do tonight was just to go over a little bit about why this Zoning Administrator's determination here
is incorrect. All right. What we have to remember is, is this is a professional office zone. The
professional office zone was designed because the Town figured that over a period of a decade or
longer,there was going to be a need for professional offices to be built throughout the Town, and so
the Bay Road corridor was designated as one of those corridors. The primary use of that corridor
was for professional office use, and we saw doctor's offices go up. We saw doctor's offices collapse
with the collapse of the medical industry. Some of them have been bought out by the hospital in
the interim process, but in order to look at what's going on here, we have to look at the numbers,
because numbers don't lie. The first number is 14,000, and 14,000 square feet is what's being
proposed as office space within this complex,all right, 14,000 square feet. Remember that number.
Along with that, the Planning Board came into the picture and determined, and, Mr. Krebs, I think
you were quite involved with that process, a lot of people were. Gretchen Steffan was involved at
the time, Chris Hunsinger also. They decided that they didn't want just residential, which was the
original process and proposal for the project. They wanted something a little jazzier, and they
came up with this concept of a town center project. So along with the proposed,that you ended up
with the 14,000 square feet, remember this is a professional office zone, they also came up with
42,000 square feet, which is commercial space. So 42,000 commercial. Now in the process of
determining why we got into this big argument, and the argument started 10 years ago. So keep in
mind that the applicants have been paying out money, and I think the tab is up to about a million
dollars at this point, between legal costs, design costs, re-design costs, and everything else. They
came up with this idea of these two things being incorporated in, 14,000 square feet of professional
office, 42,000 square feet of retail space within the complex, and last of all, the justification for any
project to proceed is going to be the return on your investment of a project. So if you think about
what's going on with the amount of money that's already been spent on this project here, they had
to come up with considerable amount of space that was going to be used as residential housing.
I'm almost done.
MR.JACKOSKI-We really need you to adhere to the three minute rule. Thank you.
MR.UNDERWOOD-Yes,just let me finish up here.
MR.JACKOSKI-Jim.
MR.UNDERWOOD-So last of all,what we ended up with was residential space.
MR.JACKOSKI-Jim.
MR.UNDERWOOD-And residential units in the process were 70 units.
MR. SCHACHNER-Mr. Underwood, the Chairman is trying to get your attention. Mr. Chairman, if
you lose control,we should just adjourn the meeting.
11
(Queensbury ZBA Meeting 06/04/2014)
MR.UNDERWOOD-Just to finish up,you have 14,000 square feet of office space.
MR.JACKOSKI-Jim, I will.
MR. UNDERWOOD-32,000 square feet of commercial, 63,000 square feet of residential, and that's
all within the zone, and that does not include the possible build out of the southern end of the
parcel,nor the part in the back.
MR. JACKOSKI-Thank you, Jim. Please, everyone, if we can adhere to the rules. This is a difficult
process and procedure and we do need to try to keep some semblance here. So if you would
respect the Board as well, and those in the audience, to keep to the three minutes, we would
appreciate it. Is there anyone else here this evening who'd like to address the Board? Sir, could
you please. If you could identify yourself for the record,and welcome.
BOB VOLLARO
MR.VOLLARO-My name is Bob Vollaro. I'm going to use a cheat sheet because at my age you don't
remember everything. I was appointed to the Planning Board in 1998. As a member of the
Planning Board, I was appointed to serve on the Comprehensive Land Use Plan in 2004. When
you're appointed to a committee,you just don't show up now and then and find out what's going on.
You've got to work. I was Vice Chairman of the Planning Board from 2005 and its Chairman in
2006. I worked on that Board for a period of eight years. In 2004 and 2005,the Committee,which
I mentioned before, which is the Comprehensive Land Use committee, tackled the 1,000 foot
setback for residential use on Bay Road, which was the Code at that time, and we worked on that
considerably, talking about the development of the Bay Road, the commercial development, the
residential development and so on, and tried to come up with a number, and we did. We came up
with a number of 650 foot setback. We didn't look at the specifics of the setback rule. We just
looked at how far back that should be from the Bay Road itself, as far as residential units were
concerned. Follow on negotiations established the 300 foot setback for residential use, and that's
where it stands today. There is nothing ambiguous in the wording of the Code. If it were
ambiguous, our very competent Town Counsel would have changed it since an ambiguous Town
law is not enforceable, and that's the beginning of it. It's been talked about as being a degree of
ambiguity in the Code, and there is none. If it was ambiguous at any time, Town Counsel would
have caught that and changed it, but it remains like it was when the Comprehensive Land Use Plan
put that together,and that's my position.
MR.JACKOSKI-Thank you,sir. Sir in the yellow,please.
MIKE WILD
MR. WILD-Hi, my name is Mike Wild. I've been in front of the Board a few times on this project.
For yours, and maybe the public's benefit, I thought it would be a good time to come up because I
was also involved with the development of the Master Plan. I wasn't on the committee, but I sat in
the meeting room for many a long night, and I was also elected to be on the committee that helped
write the zoning laws, the Planning Ordinance Review Committee, and there were many lively
discussions on many points of the law, but what we did, basically, was develop the Zoning Code
based on the foundation of what was defined in the Master Plan, and as part of these discussions,
and I think it's important, I'm not a lawyer, but intent is something that's very important to
understand, and again, we had very lively discussions about what was appropriate, what wasn't
appropriate, what was the best use, what was the Master Plan trying to tell us to do. Now, the
committee made recommendations to the Board that made some changes to the ultimate zoning
laws, but the intent was, is to make it flexible. We tried to. We tried to make it flexible so that
things could happen, and the intent wasn't to impede development. It wasn't to impede people's
ideas. It was to create a framework to allow things to proceed, within a certain construct, and I
think that's important for everyone to consider, because I think the difference between an area
variance and a use variance, I think it's a little bit of minutia to be honest with you. I don't see any
changes in the density, other than what was allowed. So in reality, the ultimate effect of this
property isn't really going to change,whether it's with the 300 foot setback or without the 300 foot
setback. So, that's just my comments. I think you guys are in a tough spot, but,you know, maybe
you can look back at some of the discussions we had during the Planning Ordinance Review
Committees. That was all documented, but there was intent to make this fair and make it
workable. Thanks,gentlemen.
MR.JACKOSKI-Thank you,sir. Yes,sir,please.
12
(Queensbury ZBA Meeting 06/04/2014)
DOUG AUER
MR.AUER-Good evening, everyone. Doug Auer, 16 Oakwood Drive. I'll stick to the knitting as you
requested on this. I'll just simply say this, and I think you know my involvement with this project,
and I'm not going to reiterate that, but if you look at the historical, what has happened, we have
some very clever developers here, Rich Schermerhorn, Dan Valente. Now if there was ambiguity in
this Code, and they also hire some very clever and competent lawyers, it seem to me they would
have come to you with this same argument that Mr. Fuller has previously. Correct me if I'm wrong,
but has anyone done that over the time? I don't think so, because if you look at what's transpired
on Bay Road, all of that has adhered to the Code as we as engineers read it, and we can read black
letter type,trust me,we can. We looked at this when we were asked to do a build out analysis, and
we said, hey, this is crystal clear. At the time it was 1,000 feet. We didn't consider anything less
than that. It was very,very clear. So,that, I'll submit that to you as a consideration. Historical.
MR.JACKOSKI-Thank you, Mr.Auer. Seeing no one else's hands at this time. Sorry, I see two more.
BOB MANZ
MR. MANZ-Well, first of all, I'd like to thank the gentleman for saying I'm a very clever developer.
My name is Bob Manz. I'm a professional engineer. I've been involved in this project for way too
long. I will keep to the point exactly. There's a lot of different dimensions that have been
discussed tonight. Before the 1,000 foot setback, it was 75 foot. It was no setback. Then it went
to 1,000 feet. Then it was contemplated 650 feet. Then it's 300 feet. It isn't ambiguous by any
means. It is a dimensional setback. It is allowed to have residential. It's not an increased density
of residential, but it's allowed to have residential in that zone. The setback has changed. It's an
area dimensional setback. It's very clear. I don't see, I can't even see where it is ambiguous. So I
would ask the Board to look at that very strongly as, is it an allowed use, and if it is an allowed use,
is it because of a dimensional setback. Thank you.
MR.JACKOSKI-Thank you,sir.
DAVE KLEIN
MR. KLEIN-Thank you. My name's Dave Klein, and I'm a property owner and business owner in the
north end of Queensbury. I'm also an engineer,licensed professional engineer, and I think that Mr.
Caffry has presented his case very well. I read it exactly the same way. I think the applicant
requires a use variance, and I've had, you know, similar situations in the Town of Queensbury. I
can remember one property that came through in 2010, went to the Planning Board. We raised
issues that you need variances. It went on for three years, and eventually, one by one, only after
the Town Engineer indicated that they needed variances, Craig accepted that fact, and I believe
there's a whole bunch of other variances that are still required on that project, but unfortunately I
didn't have standing. When I ask for a written determination from Craig, he delays, month after
month, and when I finally get a written determination, it's very ambiguous. He doesn't answer the
questions that I raise. So I can understand how the court system said, they don't understand
Craig's determination. In any event, I'll hope that this Board will save everybody a lot of money,
because if they determine a use variance is not required, then it's going to go back to the court
system. We're going to spend Town money, taxpayers money, the appellants money, and
everything's going to be delayed again. So, the most expeditious way to settle this is follow the
Code as it's written. Thank you.
MR. JACKOSKI-Thank you, sir. Seeing no one else here, I'm going to ask that the appellants please
re-join the table. If they'd like to add anything after hearing public comment, and then I will give
the property owners a couple of minutes to respond as well, and then I'm going to ask the Board to
be polled.
MR. CAFFRY-We have nothing else to add.
MR. JACKOSKI-Okay. Thank you, sir. Do the property owners have anything to add? Okay. So I
guess at this time we should, is there any further discussion Board members want, or do you want
to ask Counsel any questions, or should we simply poll the Board on whether or not we believe that
the appellants are correct, and that a use variance was required and that Mr. Brown's
determination is incorrect? I guess I'll just start, Ron,how about you first today.
MR. KUHL-Yes, I think it's a dimensional setback and I think it required an area variance, and not a
use variance. So I agree with Craig Brown's decision. I also support the decision we had granting
an area variance.
13
(Queensbury ZBA Meeting 06/04/2014)
MR.JACKOSKI-Mike?
MR. MC CABE-The test that I performed was, one, what is the property that is involved here is in a
district that's zoned Office. Residents are allowed in a district that's zoned Office, except they have
to be 300 feet back. So if they need to be closer than that, it's not absolute. That's why we're here.
That's an area variance. If they were looking to put a tavern in,that's not allowed, so that would be
a use variance. So I agree with the Zoning Administrator that, in this particular case, an area
variance is required.
MR.JACKOSKI-Rick?
MR. GARRAND-I'm going to go on a technicality here. Specific variances that were asked for here
are all listed in Table One. As far as the Office district is concerned, there's nothing listed in Table
One as far as dimensional setbacks. I think the determination from the Zoning Administrator at the
time was a little ambiguous,and I'd be inclined to approve the Appeal.
MR.JACKOSKI-Kyle?
MR. NOONAN-When Area Variance 61-2011 was approved, in July 24, 2013, I was one of the two
Board members that had said no at the time. I thought the variance was too significant, too much,
and I still do, and looking at this, I would see this as a need for a use variance and not an area
variance.
MR.JACKOSKI-Harrison?
MR. FREER-So I see residential as an allowed use and a dimensional issue, and that the area
variance is the appropriate way to deal with it for this Board.
MR.JACKOSKI-Roy?
MR. URRICO-I'm in agreement with the appellant, and I think this does require a use variance. I
would be in favor of the Appeal.
MR.JACKOSKI-Okay. My opinion is that it's a dimensional matter, and I'd be in favor of supporting
Craig Brown's determination that the 300 feet is strictly dimensional and that I would deny the
Appeal. So,having polled the Board, I'm going to close the public hearing at this time.
PUBLIC HEARING CLOSED
MR.JACKOSKI-And I'm going to seek a very simple resolution. Would you be able to do that, Ron?
MR. KUHL-Yes.
RESOLUTION TO: Deny Appeal No. 2-2014, Caffry & Flower, Attorneys-at-Law, for
Sonnabend, Thorne, and Currie regarding property owned by Queensbury Partners, LLC -
Fowler Square at the corner of Bay and Blind Rocks Roads,Tax Map No. 289.19-1-23 thru 35;
The Zoning Board of Appeals of the Town of Queensbury has received an application from Caffry&
Flower.Attorneys-at-Law for Sonnabend. Thorne. and Currie pursuant to Section(s): 179-14
of the Zoning Code of The Town of Queensbury in order to appeal the Zoning Administrator's
determination decision.
Appellants are appealing the Zoning Administrator's determination letter dated November
10, 2011 regarding the opinion that "an Area Variance...is needed from the 300 foot
minimum setback requirement from Bay Road for residential dwelling units." Appellants
challenge the zoning interpretation and argue that a Use Variance rather than an Area
Variance is required.
SEQR Type: not applicable;
A public hearing was advertised and held on Wednesday.June 4.2014:
14
(Queensbury ZBA Meeting 06/04/2014)
Upon review of the appeal materials, information supplied during the public hearing, and upon
consideration of the applicable criteria of the Queensbury Town Code and after discussion and
deliberation,we find as follows:
1. The Appeal was filed within the required 60-day timeframe.
2. The Appealing Party is aggrieved and found to have standing.
3. The merits of the argument as provided by the appellant with responses from the Zoning
Administrator have been considered. It is our finding that the positions offered by the
appellant are not sufficient to warrant overturning the Zoning Administrator's decision.
Based on the above findings I make a MOTION TO DENY Appeal No. 2-2014. CAFFRY&FLOWER.
ATTORNEYS AT LAW FOR SONNABEND, THORNE, AND CURRIE, Introduced by Ron Kuhl, who
moved for its adoption,seconded by Michael McCabe:
Reasons for Denial: In the determination and, it was clear in the public hearing that the term
setback was used very regularly and it's the determination that as it was a dimensional matter,that
it was strictly an area variance orientation,that that number was something that could change, and
therefore it was the opinion that the dimensional aspect was the area variance, it was related to
that number,dimension only,not the use,because the uses certainly are allowed in that area.
It feels pretty straightforward that it is dimensional only.
Duly adopted this 4th day of June.2014.by the following vote:
MR. JACKOSKI-And I'm going to ask Counsel, is there anything that we should condition or add or
clarify?
MR. SCHACHNER-Actually I have several clarifications, suggestions, and one addition suggestion.
The clarification suggestions I would make would be, as best I could follow along, the proposed
resolution is to disapprove, it says Notice of Appeal. It wouldn't be a Notice of Appeal. I would
suggest removal of the words "Notice of'. It would be denying, and I would suggest that, and I
think I heard the motion made as, deny the Appeal. My second suggestion is, if I heard correctly,
there was reference to a provision in our Town Zoning Law regarding discontinuance,which I think
has no bearing on this Appeal whatsoever. So I would suggest that that not be part of the motion,
and simply, in the appropriate phrase, as the motion was read, simply replace the words, "specified
in Section 179-13-020 Discontinuance", I would suggest deleting those words and simply put the
adjective "applicable" in front of the word "criteria". So that phrase would read, upon
consideration of the applicable criteria of the Queensbury Town Code. I think the way the motion
was read, Item Three, the last line was read as that the positions offered by the appellants are not
significant to warrant overturning. I believe the word in the draft resolution was sufficient, and it
should be a not sufficient to, and then the last clarification I would suggest is the same one that I
made at the top, which is where the motion is made, there's a motion to deny, it says Notice of
Appeal, I would suggestion deletion of the words Notice of, so it's simply a motion to Deny Appeal
Number whatever. Those are my less important suggestions for clarification. My most important
suggestion is I would urge the Board to include some discussion in the motion of the reasons for the
motion, the reasons for Denial. Obviously this would be incumbent upon the members that feel of
that persuasion. Does my comment, or does my suggestion make sense? What I'm trying to
suggest is that rather than just a bare bones motion that states applying the applicable criteria, we
move to deny the Appeal, I'm suggesting that you add some flesh to the skeleton,whoever made the
motion, in stating the reasons for denial, which basically you did as you went through it polling the
Board. I'm suggesting that they be part of the motion as well.
MR.JACKOSKI-That's fair. I can add some of that, Ron.
MR. KUHL-Okay.
MR. JACKOSKI-To help out a little bit. In our determination, it was clear in the public hearing that
the term setback was used very regularly and it's my determination that when it was a dimensional
matter,that it was strictly an area variance orientation,that that number was something that could
change, and therefore it was my opinion that the dimensional aspect was the area variance, it was
related to that number, not dimension only, not the use, because the uses certainly are allowed in
that area.
MR. SCHACHNER-And you're suggesting that be part of the motion?
1s
(Queensbury ZBA Meeting 06/04/2014)
MR.JACKOSKI-Yes,sir.
MR. SCHACHNER-That seems appropriate tome. The mover has to agree, or you have to change.
MR. KUHL-No,no, I agree.
MR. SCHACHNER-And the second would have to agree as well.
MR. MC CABE-I agree.
MR. JACKOSKI-Is there anything else anyone else would like to add as to the, how we came to the
determination? It may simply be that it feels pretty straightforward that it is dimensional only.
MR. SCHACHNER-Just make it part of the motion,that's all I'm saying.
MR.JACKOSKI-Okay. Is Counsel satisfied with that as it?
MR. SCHACHNER-I am.
MR. JACKOSKI-Great. We do have a motion. We have it amended as poor Maria's going to have to
type it out,but she'll figure it out. Call the vote,please.
AYES: Mr. Freer, Mr. Kuhl, Mr. McCabe, Mr.Jackoski
NOES: Mr.Urrico, Mr. Garrand, Mr. Noonan
MR. JACKOSKI-Okay. Mr. Caffry, thank you. Welcome, everyone. I'd like to reconvene the
meeting this evening and address the second item on our list. For those of you who were not here
earlier, just quickly, we will read the Appeal into the record. We will ask for the Zoning
Administrator's clarification of why he made the decision he made. We'll ask the appellants to
address the Board. We'll then ask the property owner to give a brief statement. When it's
appropriate we'll open a public hearing to listen to public comment on the matter. We'll then,
again of course, ask for the appellants to come back to the table, address the Board if they feel they
need to, followed by the property owner, and then we'll poll the Board and possibly close the public
hearing. So pretty straightforward process,just like we just followed in the last Appeal.
NOTICE OF APPEAL NO. 3-2014 SEQRA TYPE N/A CAFFRY&FLOWER,ATTORNEYS-AT-LAW
AGENT(S) CAFFRY & FLOWER, ATTORNEYS-AT-LAW OWNER(S) BEAR POND RANCH &
FRENCH MOUNTAIN BEAR POND, LLC ZONING LC-10A LOCATION STATE ROUTE 149, OFF
APPELLANT IS APPEALING THE ZONING ADMINISTRATOR'S DETERMINATION OF MARCH 21,
2011 BEAR POND RANCH, LLC AND FRENCH MOUNTAIN BEAR POND, LLC RELATIVE TO THE
PROPOSED ZIP-FLYER BEING AN ALLOWABLE USE IN THE LC-10A ZONING DISTRICT.
APPELLANT CLAIMS THE ZIP-FLYER DOES NOT MEET THE ZONING CODE'S DEFINITION OF
AN "OUTDOOR RECREATION" USE AND IS INSTEAD A "TOURIST ATTRACTION" WITH
MOTORIZED ACTIVITIES. CROSS REF SP 77-11 WARREN COUNTY PLANNING LOT SIZE
74.18 AND 169 ACRES TAX MAP NO. 278.00-1-77 AND 13 SECTION 179-2-010
CLAUDIA BRAYMER, REPRESENTING APPLICANT, PRESENT; DAVID KING, PRESENT
STAFF INPUT
Notes from Staff, Notice of Appeal No. 3-2014, Caffry & Flower, Attorneys-At-Law, Meeting Date:
May 28, 2014 "Project Location: State Route 149, off Description of Proposed Project:
Appellant is appealing to the Zoning Board of Appeals relative to a March 21, 2011 determination
from the Zoning Administrator regarding a proposed project on the Bear Pond LLC property within
the Land Conservation-LC-10A district.
Staff comments:
First, Standing:
Was the appeal taken within the appropriate 60 day time frame and is the appealing party
aggrieved?
The appeal was filed within the required timeframe.
16
(Queensbury ZBA Meeting 06/04/2014)
• The Notice of Appeal application was signed and filed with the Town October 18, 2013.
There does not appear to be any obvious direct impact on the appellant to indicate that the
appellants are appropriately aggrieved parties.
• The appellants are not property owners of the parcel in question.
• The appellant's papers do not offer any proof of injury in fact or of a very significant
possibility of future harm that differs from any impacts on the general public as a result of
the decision in question.
The appellant does not appear to have adequate standing for this appeal to move forward.
Second, Merits of the argument if the appellant is found to have standing:
The appellant is appealing a Zoning Administrator interpretation regarding the classification of the
proposed Zip-Line use. It is the appellant's position that a Use Variance is necessary as the Zip-Line
should be classified as a Tourist Attraction rather than an Outdoor Recreation use.
The March 21, 2011 letter from the Town of Queensbury Zoning Administrator offers an
explanation of the issue at hand. It was determined that the proposed use fit within the definition
of an Outdoor Recreation use.
OUTDOOR RECREATION
Land uses which offer recreation activities primarily outdoors that are operated for
members or on a commercial basis for members of the public.
This definition does not differentiate between Active or Passive Recreation and is therefore implied
to include both while, at the same time, not be limited to the two ( Active and Passive ). The
proposed Zip Line use includes all elements required in the Outdoor Recreation definition.
Merriam-Webster Collegiate Dictionary, 11th Edition defines recreation as:
rec•re•a•tion
noun\,re-kre-'a-shan\
: something people do to relax or have fun: activities done for enjoyment
The Outdoor Recreation definition is a clear and unambiguous fit for the proposed Zip Line use."
MR.JACKOSKI-So the first matter this evening,if you could identify yourself for the record, and then
we'll just focus on standing first.
MS. BRAYMER-Thank you. I'm Claudia Braymer, attorney from Caffry & Flower, representing the
appellant here, Lake George R.V. Park, and beside me I have the President of Lake George R.V. Park,
David King. This matter is relatively straightforward and as I will describe in more detail,
recreation is already defined in the Zoning Code, and it includes only non-motorized activities. The
zip line,the proposed zip line includes numerous motorized elements, and so it cannot qualify as an
outdoor recreation activity, and before I go to standing, I just would like to make one correction,
that the Appeal, our Appeal was filed on March 12, 2014. The question of our client's standing,
which was raised in the Staff Notes to the ZBA, should not detain us long. An adjoining landowner
is presumed to have standing to challenge matters relating to his or her neighbor's property. Here
Lake George R.V. Park is an adjoining landowner. So it's presumed to have standing in this matter.
Additionally, as Lake George R.V. Park's President Dave King will advise you when he addresses you
in just a moment,the zip line would cause direct impacts that would affect Lake George R.V. Park in
a manner that is different than the public at large. Therefore, Lake George R.V. Park has standing in
this matter. We submitted 10 copies of a letter to the Board yesterday,providing the legal citations
for why our client has standing in this matter, and now I would like Mr. King to address the Board
briefly on his points of standing.
MR. KING-Yes,hello, and thank you for hearing me tonight. For over 45 years the Lake George R.V.
Park has been a leader in the outdoor recreation campground industry. Here in Queensbury we've
had the privilege to allure guests from all over the country to enjoy what we offer in our
campground. We offer many outdoor recreational facilities. One that is very special to us and very
unique to a campground in Queensbury is 230 acres of property on French Mountain that features a
17
(Queensbury ZBA Meeting 06/04/2014)
groomed trail to the summit. We've maintained that trail for the purpose of our guests to make a
leisurely climb to the scenic overlook on that Mountain for over 45 years. A zip line at the top of
the Mountain, we believe, would set a new precedent for future development on the Mountain. It
would perhaps create an extension of what we now consider normal outdoor recreation uses. My
guests come to play tennis, to bike, to hike, but to date I don't know any that bring zip line
equipment with them in their RV's and expect to hook on to a cable. So that is not a use that
historically my guests have included in their purview of outdoor recreational uses. The zip line
would also create many other negative impacts that would not allow my guests to have the same
experiences they've had in climbing the Mountain in the past. At first visual impacts can be noted
in the CLA's site renditions of what would happen if the tower was created at the top of the
Mountain. The pictures you see on the board show what would happen when the area is cleared
and the tower is constructed. Now is this as you walk up my trail. From over 1,000 feet away,
when you walk up my trail, you actually look towards the sky, and you actually see the sky at the
top of the Mountain, and that's kind of what brings you to the top. You know you're getting closer
to the summit. So the sky is kind of your destination, so to speak, as you climb to the top of a
mountain, French Mountain being no different, and in this case you can see the visual impact is
significant. This is not off the beaten trail. This is right where you come, this picture is right from
the edge of our property where it meets the applicant's property, and you would actually see a
tower, similar to what you see there, with the four cables running. We think the visual impact is
significant. It changes the feel completely for an outdoor recreational user on our Mountain. For
over 45 years now six generations of campers have returned to my park to have a similar camping
experience. Part of that camping experience is to have a climb up the Mountain for views of this
beautiful area. It does not include manmade structures, nor has it ever in the past. In addition,
noise created by this proposal would create a very different experience once the hikers reach this
summit,to have their picnics,to take in the view, eat their apples and enjoy a bottle of water after a
good hike. This has motorized features involved in it, including a generator at the top of the
Mountain that will operate a retrieval system for the zip line harnesses or chairs that will ride down
on this amusement ride. So there'll be constant noise from the generator at the top of the Mountain
that has never been there before historically on this Mountain that will distract from what the
hiker,the outdoor enthusiast,would expect to experience at the summit. So these noise and visual
impacts are significant, and therefore I feel that my business would be negatively impacted by the
fact that the guests that have returned year after year will no longer be able to have the same
peaceful experience they've had at the top of the Mountain for the last 45 years. So, in addition to
that, I must state that, as a business, I use the Town's Comprehensive Land Use Plan as a guide for
my business as I plan, put together my business plan and look towards the future. I was
instrumentally involved and an interested member of the community when this Town created it's
Comprehensive Land Use Plan in 2007, or adopted in 2007. I was actually at the meetings in 2005
and '06 where the Comprehensive Land Use Plan discussions were had. At that time, there were
many discussions about our vision for the future of this community, and the importance of
maintaining certain areas in our community, or natural resources, and I'd like to read just quickly
from our Comprehensive Land Use Plan adopted on August 6, 2007, Protect important natural
areas and view sheds in the Town, especially unique landforms, ridges and slopes. Promote the
protection of natural resources such as the water, air. Critical Environmental Areas and wetlands,
increasing development in Queensbury does not have to equal a loss of open space, views or
community character. Cutting edge planning techniques allow communities to experience
economic development without losing the features that make them distinctive. In fact, protecting
and enhancing natural resources and view sheds is economically beneficial as well as
environmentally sound. The open spaces and scenic vistas that make Queensbury unique can be
preserved and used as an asset to continue to attract residents and businesses and preserve the
quality of life of existing residents. The Lake George R.V. Park, in creating its business plan for the
last 45 years, has taken into account the important natural resources found here in Queensbury.
The 230 acres on French Mountain and the trails that we maintain there, are very special, not only
to the guests that visit our facility,but to everyone that lives in this area, and I follow these concepts
as we create our future plans for our Park. So taking away this benefit of having this pristine,
historic Mountain where people can enjoy the benefit of a peaceful hike to a top of a mountain with
scenic vistas where they don't see manmade structures or hear manmade machines, is impacting
me in a way that is unfair.
MS. BRAYMER-Do you want us to address merits?
MR.JACKOSKI-No.
MS. BRAYMER-Okay.
MR. JACKOSKI-We're going to a standing first, if you don't mind. I'm going to ask the property
owner representatives to address the Board briefly. I'm going to give them the same amount of
18
(Queensbury ZBA Meeting 06/04/2014)
time that we gave to the previous applicants, which is slightly less, about five minutes. Craig, did
you want anything to,because I skipped you for that?
MR. BROWN-No.
MR. JACKOSKI-Okay. Fine. So, Mr. Lapper, Mr. O'Connor, if you could try to keep your comments
on standing only for five minutes.
JON LAPPER
MR. LAPPER-Standing only. We'll be very brief. For the record, Jon Lapper with Co-counsel Mike
O'Connor. Ralph and Roselee Macchio are here with us. We don't believe that the appellant has
standing because there's no injury in fact in this case. Their property line is 200 feet from where
the tower will be located,which is a pretty great distance,but more than that, I've been to the top of
the Mountain, as has Mike, and when you turn around,you know, it's not pristine. You're looking at
manmade structures. You're looking at the Queensbury Outlets,and you can hear noise from Route
9. So what is proposed here, and it's all in the documentation, is something that is very,very quiet,
and is really only visible if a hiker crosses over onto the Macchio property and trespasses. Because
that rock outcropping is where you'd see it, and that's on the Macchio property and not on the Lake
George R.V. Park property. So we don't feel that there's any injury in terms of hikers because
they're already looking at the Outlets. In fact, we think that their campers who drive these
beautiful motor homes would probably be happy to pay a few dollars to go on the zip line and we
expect that they're going to be customers. It's just something else for people to do when they visit
the region, and people come to Lake George for lots of reasons, for hiking, but also for activities.
We think this is going to be very popular with the campers, including their campers, but with that
said, you know, we're not asking you to make this decision based upon standing because we don't
want to get into an appeal situation. So we'd rather proceed to the merits,but we don't feel there is
standing because there isn't any real injury alleged here.
MIKE O'CONNOR
MR. O'CONNOR-I know that you asked to keep this brief,and I think a lot of what was just discussed
would normally be part of a SEQR discussion,whether or not we have a noise impact,visual impact,
or what type of impact on the property. We've been through that with the APA and I'm not going to
try and get into that. I will say that what is the nearest to the top of the Mountain, it's not on the
top of the Mountain. It doesn't cut through the top of the Mountain that you would see it as a
standalone item. That is a pylon pole, 34 and a half feet high. That is probably 240 feet from their
property line. The actual launch platform is 380 feet at a lower level, and away from their property.
I don't think they can see the launch platform from their property,and I doubt that they can actually
see the pylon from their property. The noise study, and I'll just mention, showed that the increase
in dB is only two decibel increase over the ambient noise that comes from Route 9 and the
Northway. There's, under any noise guidance, there is no need or there's no impact by noise.
Visual,we did four different studies. We actually have videos of the lines that are in operation over
at Bromley. We did them with riders on them. We also put people on the top of the Mountain and
screamed where the launch platform is going to be. I mean, we took care of all the typical SEQR
issues with our review that went through the APA. So I think it's a real stretch to say that we are
going to impact that do go to the Mountain. I've been to the Mountain probably 20 times, 25 times
in the last three years. I've never seen a hiker up there, and I've been there during mostly summer
seasons. We have a caretaker for the property. He has seen hikers up there, and they do trespass.
They don't have a vision of the lake from their property line. They have to come on to the Macchio
property and then walk around the edge to the rock outcropping that you see from Route 9. That
rock outcropping that you see from Route 9 is all on the Macchio property.
MR. LAPPER-You also should mention Mr. King talked about the generator.
MR. O'CONNOR-Okay. The generator at the top does not run the retrieval system for the harnesses
that the riders go down the zip line. The zip line is not a mechanical thing. The zip line is a static
wire. That wire doesn't move. It's not,you go down by gravity. Once it's put in place, it stays in
place. The harnesses come back up,but they're driven back up on a very thin filament line from the
base. All the mechanisms for the zip line are in the Town of Lake George. They're not in the Town
of Queensbury, although I don't think, if you really look at your definition, that makes a difference.
There is going to be a generator. We've talked to APA about that. It's going to be in a soundproof
or a sound retardant compartment up there. The only purpose of that generator up there is to be a
safety device to release a catch at the end of the launch platform when the people at the bottom say
it's okay to send the next rider. That will release that catch. There are no lights up there, will be
no lights up there. So I don't think that a generator itself is going to have any noise that's going to
19
(Queensbury ZBA Meeting 06/04/2014)
be like a household generator, in a compartment. If you can hear it from 10 feet away,you're going
to be lucky.
MR.JACKOSKI-Okay,sir,thank you. Are there any questions at this time from Board members?
MR. GARRAND-Yes. No lights on the tower?
MR. O'CONNOR-None. No lights.
MR.JACKOSKI-Okay. Again,we're just talking about standing at this time if we could,folks.
MR. KUHL-What is the perceived hours of operation?
MR. O'CONNOR-It varies by the season. We've submitted all those to the APA. Daylight hours,
because we don't have any lights, we will start in the morning. We shut down in a time so that
everybody can get off the Mountain,people that are working up there,without using lights.
MR. JACKOSKI-Okay. So we are now tasked with determining whether or not the appellants have
standing in this matter. I'm going to poll the Board. I'll start with Roy this time.
MR.URRICO-Yes. I believe there is standing.
MR.JACKOSKI-Mike?
MR. MC CABE-I believe that the property owner adjacent has standing, and so I would say there is
standing.
MR.JACKOSKI-Harrison?
MR. FREER-I agree that adjacent property owners, we should assume standing, and in this case I
believe they do have standing.
MR.JACKOSKI-Rick?
MR. GARRAND-I believe the applicant has standing.
MR.JACKOSKI-Ron?
MR. KUHL-Yes, I believe he's got standing.
MR.JACKOSKI-Kyle?
MR. NOONAN-I believe the applicant has standing.
MR. JACKOSKI-And so do I. Okay. So let the record note a unanimous decision by this Board that
there is standing for the Appeal to be heard. So having the Appeal already read into the record, as I
did before, I'll ask the Zoning Administrator to just briefly discuss his determination for us.
MR. BROWN-Sure. Thank you, Mr. Chairman. As you can imagine, it's very difficult if not
impossible to create a Zoning Ordinance and identify every single specific use that could potentially
come before the Town or Zoning Board or Building Department. That's the case with this. I don't
think anybody envisioned, you know, zip line as a specific use. So many times in the definitions
you're going to find in the Code are somewhat intentionally generic to be able to include different
uses without being specific for every type of use. This is a particular instance where this use fits a
specific definition. The Staff Notes I've put together talk about the components of this use, outdoor
use operated for members of the public. It's a clear fit, in my mind, for the outdoor recreation use,
and that's the reason I made the decision that I did.
MR.JACKOSKI-Okay. Thank you. Ms. Braymer?
MS. BRAYMER-As for the merits of the Appeal, contrary to the Zoning Administrator's
determination,the zip line does not meet the Zoning Code's definition of an outdoor recreation use.
Outdoor recreation use includes recreation activities. If you turn to the Town Code, it specifically
includes the word recreation in the definition of outdoor recreation, and the term recreation for
both active and passive recreation, is defined in Section 179-2-010 of the Zoning Code as non-
motorized leisure activities. The zip line is a motorized activity, so cannot fit within the definition
20
(Queensbury ZBA Meeting 06/04/2014)
of outdoor recreation. In recognition of that fact, the applicant's attorney has requested that the
Town Board amend the Zoning Code. The beginning of the Definitions section in the Zoning Code
states that the words used in the Zoning Code shall have the meanings given to them in the
Definitions section. If there is no definition for a particular word, then the Code directs that such
words shall have the meaning, their common meaning as defined by the Miriam Webster Collegiate
Dictionary. Since the term Recreation is defined, there is no need here to refer, as the Staff Notes
do, to the Miriam Webster's Collegiate Dictionary definition for the word Recreation. I agree with
the statement in the Staff Notes that the term outdoor recreation includes, does not differentiate
between active and passive, and that both active and passive recreation are encompassed by the
term outdoor recreation. However, I do not agree with the Staff Notes that the term outdoor
recreation thereby impliedly includes any and all activities done for enjoyment,which is the Miriam
Webster's Collegiate Dictionary definition of the word recreation. Again,the Zoning Code provides
a specific definition for recreation. So referring to the common, generic, dictionary definition for
the word recreation in these circumstances is wrong. The zip line includes motorized elements,
several of them. First, there would be motorized transportation to the top of the Mountain by all-
wheel drive vehicles, and I'm not sure what they include,but it would be maybe an open air vehicle,
an open air truck, ATV's or snowmobiles. The applicant stated in its application materials to APA,
and I'm quoting, riders will be transported to the launch platform by all-wheel drive vehicles. The
vehicles will have a varying capacity. The ride up the Mountain will be part of the ambience of the
zip line experience. And I'll file this letter at the end for the ZBA's records. Additionally, the zip
line would include a capstan motor. That's what powers the mechanical retrieval system that
brings the seat and harness system back to the top of the Mountain. As was already mentioned,
there is a generator near the upper tower in the Town of Queensbury that would power a computer
to monitor the zip line system, provide daily, monthly and annual reports, and function to open the
gates on the launch platform so that the riders can exit the platform and enter the ride. The zip line
proposed for French Mountain would be installed by a company called Zip Flyer. According to Zip
Flyer's U.S. patent and trademark information, which I've also filed tonight, the company offers
motorized, cable bound rides and devices, namely amusement park rides. One argument that the
applicant's attorney has already alluded to is that the zip line riders descend the Mountain using
gravity and not a motorized force. However, a rollercoaster also uses gravity to propel the riders
down the tracks, but I think that we would all agree that a rollercoaster is not a non-motorized
leisure activity under the Zoning Code because of its motorized elements. The National Association
for Challenge Course Technology, the professional organization that creates and publishes
standards for zip line technology differentiates between zip lines that use gravity alone, such as
ones you might see at a high ropes adventure course, and those that use sophisticated mechanical
braking systems. According to the applicant's lengthy presentation to the Lake George Planning
Board, this zip line would have an extremely sophisticated mechanical braking system that has
eight patents in the United States and in other countries. The applicants presentation to the Lake
George Planning Board explained in great detail the complexity of this project and the braking
system and proves that this is not a simple gravity only zip line. I have the Lake George Planning
Board minutes that I'll file with you tonight as well. Another argument which the applicant's
attorney has made to the Town Board is that the term Recreation Active is unclear because it
includes the words golf and skiing as examples of this type of recreation. However, a person can go
golfing and skiing without any type of motorized equipment. Think of the guy hitting balls on a
soccer field or a baseball field, or a golfer on the course without a golf cart, or think of a person
cross country skiing at a park. The terms golf and skiing are not inconsistent with non-motorized
active recreation. The drafters of the Zoning Code specifically included separate definitions for
golf course and ski center, which explicitly included lifts and other structures when they wanted to
refer to golf and skiing activities that would include motorized elements and structures. Since the
zip line is not outdoor recreation, this Board must determine what kind of use it really is. It's our
position that this zip line is a tourist attraction. Since the zip line would be a tourist attraction and
such use is not on the list of permitted uses in the LC-10A zoning district, then according to the
Zoning Code the zip line is not a permitted use for the location in which it is proposed. The
applicant's site plan review application to the Queensbury Planning Board, which was part of my
Notice of Appeal, admits that the project is a tourist attraction, and the applicant's representatives
told the Queensbury Planning Board that the zip line would be a tourist attraction. That's
documented in the Planning Board minutes of November 17, 2011, and also part of my Notice of
Appeal. As you may know, both the Town of Lake George and APA considered the zip line to be a
tourist attraction. Additionally the applicant never appealed the APA's jurisdictional
determination dated December 12, 2011 that the zip line was a tourist attraction that required a
permit from APA. Queensbury Zoning Code defines a tourist attraction as any manmade place of
interest open to the general public, and it specifically includes places such as amusement parks.
According to the New York State Department of Labor, the zip line proposed for French Mountain
would be an amusement park ride. It would fall into the same category of regulations as a
rollercoaster. I have two Department of Labor examples of zip lines that I will file with you as well
tonight. Additionally as I mentioned earlier according to Zip Flyer's U.S. patent information, the
21
(Queensbury ZBA Meeting 06/04/2014)
company offers motorized cable bound rides and devices, namely amusement park rides. In
conclusion,the zip line does not meet the Zoning Code's definition of an outdoor recreation use, and
it is actually a tourist attraction. The Zoning Administrator's determination is incorrect and must
be overturned.
MR. JACKOSKI-Okay. Thank you. Are there any questions for the appellant at this time before I
turnover the table to the property owners? Okay. If you wouldn't mind giving up the table just for
a quick minute, and then I'll have the property owner's address the comments there, and then and
then we'll open it up to Board member questions. Again, counselors, if you could,just five minutes
would be great.
MR. LAPPER-The entire project is partly a tourist attraction, but the tourist attraction is in Lake
George, and that's a permitted use in Lake George. Most of the project is in Lake George, and under
the Tourist Attraction definition,putting on shows like the Last of the Mohicans,which happened in
Lake George and part of the project is to add parking and more bathrooms for that. So there's
certainly a tourist attraction component, but not in the Town of Queensbury. It's very simple, just
in terms of those definitions. It's all about what's permitted in Queensbury, and not for different
definitions in Lake George and different definitions in the APA,but it is a gravity ride and you really
don't have to look any farther than Craig's determination,just the definition of Outdoor Recreation
use, which doesn't distinguish anything other than what Craig said, just land uses which offer
recreation activities, primarily outdoors, that are operated for members, or on a commercial basis,
for members of the public. This is a commercial basis outdoors, but the proof of that is, and again,
as Craig said, it's not limited to recreation active or recreation passive. It's just outdoor recreation,
and that certainly encompasses this use, but when you look at recreation active and recreation
passive, recreation active, it says non-motorized leisure activities, but it includes golf and skiing,
and when you look at the definition in Queensbury for skiing,skiing includes Nordic and alpine,and
you certainly can't have alpine without a ski lift. So again the activity itself in skiing is not
motorized,but to get there,just like with a golf cart, it involves motorized components to get there,
but the activity itself here is gravity. So the reason we went to the Town Board was just to ask
them to clarify that it's still a non-motorized activity but that there are motorized components
which we think this definition already includes because it says golf and skiing, but we just wanted
to avoid an appeal, avoid spending money, and avoid the time it takes, because Ralph's not getting
any younger and he'd like to do this, and that's simply it. If there's any ambiguity, it's just the word
non-motorized in terms of the leisure activity, which here it is because it is a gravity ride, but golf
and skiing, skiing has,you know, to answer all your questions in terms of a ski lift with lights, with
all the poles, with all the motors, and that's permitted in this zone as well, and that's really the
simplest, just looking at the Code, and looking at those definitions, we clearly fall within outdoor
recreation, just like Craig said, and then I did just copy the seminal case, just to submit this, that
zoning restrictions are in derogation of the common law and as such must be strictly construed
against the municipality which enacted and seeks to enforce them and any ambiguity in the
language employed must be resolved in favor of the property owner. I'll just hand this in, Bonded
Concrete versus ZBA of Saugerties, that Appellate Division case. So to the extent that that
definition is at all ambiguous because it says non-motorized,but it's the activity itself. When it says
golf and skiing, which are much more intense than this because it's gravity, it certainly has to be
interpreted that this is encompassed and that Craig is correct.
MR. O'CONNOR-I had some comments prepared, but I'm a little confused because I think the
applicant went outside the basis of the Appeal they filed in the Notice of Appeal in the presentation
it made to you, but in the Appeal that was filed to you, they said that this was not a permitted use
because it was a tourist attraction, and that confused me for a while. I could not find any place in
our Ordinance, on our schedules, where tourist attraction is permitted, and it took me a while to
figure out what and why it was there. Outdoor recreation is defined, and it's defined very clearly.
It says land uses which offer recreational activities primarily outdoors which are operated for
members or on a commercial basis for members of the public. There is no restriction in that
definition as to whether it's active or passive recreation. There is no restriction in that definition
that there not be equipment. In fact,if you look at the definition for active recreation,the terms are
used often requiring equipment, and the examples of active recreation, as Jon said, include golf and
skiing. Those are considered outdoor recreation uses because there's no restriction on it. Going
back to the use of the term tourist attraction, I think I figured out why it's in our Ordinance. We
have an approved Land Use plan in the Town of Queensbury, which means that if your land lies
within the Adirondack Park Agency,but is in the Town of Queensbury,you really don't have to go to
the APA for a permit for most activities. However,the APA,when they approved our land use plan,
reserved to themselves the right to require regional permits for what they consider to be regional
projects, and there's an appendix to our Zoning Ordinance. I think it's Appendix 21, and in that is
where, the only place that you find the word tourist attraction, and in this zone it says that if you
are proposing a tourist attraction, in addition to getting site plan review by the Town,you must get
22
(Queensbury ZBA Meeting 06/04/2014)
an APA permit for that. The term in our Ordinance of tourist attraction is not to determine what
use must be, what could be performed or what can be built. It's to give acknowledgement to the
APA that they've reserved jurisdiction for that type of activity. We've gone to the APA and we've
gotten our permit. So I don't think that necessarily is of concern to you,but if you really look at this
thing, it's not on any use schedule, and it's only there to say when you need to go to the APA in
addition to going to the Planning Board for site plan review.
MR. LAPPER-Finally tourist attraction encompasses amusement parks, and if you just think of the
term broadly as we've used it in presentations,the outlets are a tourist attraction. The Lake George
R.V. Park is a tourist attraction. A lot of the reasons why tourists come to the communities, there
are a lot of things that are tourist attractions, but that's not in terms of the zoning. That's maybe a
term of art,but this is an open space,outdoor recreation use,and not a tourist attraction.
MR.JACKOSKI-Okay. Thank you.
MR. O'CONNOR-I'm hopeful that you will make your determination based upon the merits of the
Appeal, is this an outdoor recreation or is it not an outdoor recreation, but for the purpose of the
record, I also want to preserve our rights as to the timeliness of the Appeal. We filed a copy of
Craig Brown's opinion of March 2011 with our application with the APA. The appellant here
FOIL'd the APA 11 different times for information that we filed there. We would ask them to
provide to the Town what material they received from the APA in those FOIL requests, and we
believe that you're going to find that they did receive a copy of Craig Brown's determination
sometime in January of 2012, which is well beyond the 60 day period. I make that statement just
for preserving our rights on the record, and I do want you to make your decision based upon the
definition that's before you, is this an outdoor activity and is it proposed for the class of people that
are permitted to use it?
MR. JACKOSKI-Thank you. Counsel, I need to just ask some guidance here. Did I hear, and if we
could, if you could give up the table and we could have the appellants come back. Our tables of use
do not allow tourist attractions?
MR. SCHACHNER-The Zoning Administrator can chime in on this as well, but that's essentially
correct,but assuming we all understand what you mean by do not allow. There is no place that our
use tables say tourist attractions are not allowed or tourist attractions are prohibited. However, it
is factually correct that in the list of permitted or allowed uses in our various districts, the term
tourist attraction does not appear.
MR.JACKOSKI-So outdoor recreation does appear.
MR. SCHACHNER-Correct. Outdoor recreation does appear in at least one, I think more than one
zone, in more than one zone including this zone. Tourist attraction does not appear listed as an
allowed use in any of the zones. For what it's worth, I have a considerable amount of experience in
this area, and it's likely that the term is defined in our Code solely for the purpose of, or solely
because we are one of 17 or 18, we are one of 18 communities in the Adirondack Park that have
what's called an APA approved Local Land Use plan.
MR.JACKOSKI-Okay. Interesting. Okay. I would like to give the appellants some opportunities to
briefly address the Board concerning anything you just recently heard, and then I'd like to open the
public hearing.
MS. BRAYMER-Thank you. I just would like the Board to hear my position that I do not think that
there is any ambiguity in the Definitions section. It specifically refers, the Outdoor Recreation
refers to recreation which is also defined, and it clearly says non-motorized activity. I well
acknowledge that there is nowhere in the Use Tables where Tourist Attraction is listed. There is, in
the Use Tables, a listing of Amusement Center which includes amusement rides, and that's not in
the LC-10 district. It is in one of the commercial districts, and just to place on the record, the
timeliness of the Appeal. I think your counsel will advise you that we did file a timely appeal. Our
FOIL requests, or when we got those documents or didn't get them is irrelevant. We filed within
the timeframe provided for in your Zoning Code.
MR.JACKOSKI-Okay. Thank you. So, I would like to open the public hearing this evening.
MR. URRICO-There's one issue I think that needs to be clarified. We read in that the Appeal was
made,signed and filed with the Town October 18, 2013,and counsel disagreed with that.
MS. BRAYMER-Right. We filed in March of this year.
23
(Queensbury ZBA Meeting 06/04/2014)
MR.URRICO-And I guess we need to know what date that was.
MS. BRAYMER-I have a stamped copy I can dig out.
MR. JACKOSKI-So would it be okay, counsel, if we go ahead with the public hearing while the
attorney does look for that stamped copy?
MR. SCHACHNER-Absolutely.
MR. JACKOSKI-Is that fair? And we can actually receive it right now. So if you could give it to our
secretary, I'd appreciate that.
MS. BRAYMER-Okay.
MR. JACKOSKI-So I am going to open the public hearing this evening, and I'll ask the appellants to,
again,vacate the front table. Sorry about that. I'm going to ask Roy if there's any written comment
to be read into the record?
PUBLIC HEARING OPENED
MR. URRICO-"Dear Board Members: The Adirondack Council, as a member funded non-profit
organization dedicated to protecting the ecological integrity and wild character of the Adirondack
Park. The Council carries out this mission through research, education, advocacy, and legal action.
On behalf of the Adirondack Council and members we represent living in Queensbury, I would like
to thank you for the opportunity to offer the following comments on the proposed Zip-Flyer project
application that is the subject of the Appeal now before you. As we stated when this project was
considered by the Adirondack Park Agency (APA) in March, the Council has significant concerns
about the visual impacts associated with the removal of trees and other vegetation along a 900-
foot-long corridor on French Mountain. The resulting scar would severely degrade the beauty of
the slope facing the Village of Lake George,the lake itself, and the Adirondack Northway (I-87). We
believe this project will have an impact far beyond the towns of Queensbury and Lake George. The
Zip-Flyer corridor will be seen from a section of the Northway that is, by far, the busiest entrance
and exit for visitors to the Adirondacks. Millions of people pass through your communities each
year and are the place where most of them form their first-and last-impressions of the entire six-
million-acre Adirondack Park. We do not believe adequate measures have been take to avoid,
minimize, or mitigate, to the maximum extent practical, the negative environmental and visual
impacts this proposal will have on the local and regional community character."
MR. JACKOSKI-So, Roy, I'm just going to, is there anything there that specifically addresses the
determination by the Zoning Administrator,not necessarily the merits or the impact of the project?
MR.URRICO-Not that I can see.
MR. JACKOSKI-So in that regard I'm going to as that we just simply note who it's from and who it's
signed for,and that letter is part of the public record.
MR.URRICO-It's signed Rocci Aguirre, Conservation Director.
MR.JACKOSKI-Is there any other written public comment?
MR.URRICO-There is not.
MR. JACKOSKI-Okay. Is there anyone else here in this audience this evening who'd like to address
this Board concerning this particular application? And if you could state your name for the
record, please. Speak into the microphone and note that we do have a three minute time limit on
this matter. Thank you.
DON DANIELS
MR. DANIELS-My name is Don Daniels, and I own several properties in Queensbury. I live in
Queensbury, and I moved up here in 1960, managed a motel and several other properties that I've
owned. There's a term sometimes that was used maybe a long time ago. It was called NIMBY. I
don't know if any of you are aware of that term, Not In My Back Yard. There's a lot of people that
have come up here from other areas and been successful, including the R.V. Park 45 years, and all of
a sudden they don't want anybody else to be successful, Not In My Back Yard. Well,you know that
24
(Queensbury ZBA Meeting 06/04/2014)
letter that you just read over there, a couple of months ago there was somebody that had wrote
something in the newspaper, I think,that said when you're traveling north.
MR. JACKOSKI-Sir, can you address the matter in front of us which is simply was the Zoning
Administrator's determination incorrect,that this is an allowed use.
MR. DANIELS-Yes, I think it's an allowed use.
MR.JACKOSKI-Okay. Thank you.
MR. DANIELS-Do I have another minute?
MR.JACKOSKI-Unless it's relevant to that specific question.
MR. DANIELS-Okay. Well, I think it's an allowed use.
MR.JACKOSKI-Thank you,sir.
MR. DANIELS-Incidentally, there's some zip lines in this Go and Do book here. We have a zip line
that's up in Bolton Landing, the Extreme Adventure zip line. There's a zip line at the Word of Life.
They have a zip line, and everybody in the community's been contributing for many years to the
Hole in the Woods,the Double H Hole in the Woods. They have a zip line.
MR.JACKOSKI-Okay.
MR. DANIELS-There's thousands of them all over the country and the world.
MR. JACKOSKI-Thank you, sir. Thank you. Is there anyone else here this evening who'd like to
address this Board on anything else that's relevant to this matter? Sir?
GEORGE MAGOWAN
MR. MAGOWAN-Good evening. My name is George Magowan. I live about a half a mile north of
this project on Bloody Pond Road. Just as a caveat,when you own a motel,the last thing you want
to have is another motel, and so the list of things to bring to the fore, it's a long laundry list, and I
ask you to just keep that in mind. I mean, as sewer capacity, endangered species, height, visual
impacts,the list is long. In this case,we're hanging this case on the nuanced dictionary. There's a
lot of things that are tourist attractions. There's House of Frankenstein and Fort William Henry
and Wax Life,but sailing over a forest where you might actually be screaming in joy is absolutely an
outdoor recreation,and I would hope you would uphold that.
MR.JACKOSKI-Thank you,sir. The gentleman in the very back. Yes,please,sir.
JAMIE JOHNSON
MR.JOHNSON-Hello.
MR.JACKOSKI-Hello,welcome.
MR. JOHNSON-My name is Jamie Johnson, and I am the owner and operator of the Adirondack
Extreme Adventure course in Bolton Landing, NY. Just to let you guys know,we are inspected and
certified by the Department of Labor because our zip lines fall under the amusement park rides in
their category. We do pay a fee every year to inspect and certify our zip lines. So my definition of
what we have is basically the same as a rollercoaster. It's a gravity fed amusement park ride that
uses a braking system, whether it's magnets or a spring loaded system. I wouldn't see you guys
allowing a rollercoaster up on French Mountain. So I don't see how you would allow this ride.
Thank you.
MR. JACKOSKI-Sir, could I just ask you a question? Do you actually have cable cars that bring the
riders to?
MR. JOHNSON-No, we are a traditional gravity fed zip line. We do not use any braking system
whatsoever. It's gravity fed. So you start it at one point. There's a bow and the cable and it raises
up and you slowly stop it at that point using no braking system at all. This is an amusement park
ride. It's not your traditional zip line. You're not going to find this zip line in any camp, any boy
25
(Queensbury ZBA Meeting 06/04/2014)
scout camp or,you know,religious camp. You're going to find them at amusement parks,and that's
the bottom line. Thank you.
MR.JACKOSKI-Thank you,sir. Is there anyone else here this evening? Yes.
JACK ABRAMS
MR.ABRAMS-My name is Jack Abrams. I was on the Lake George Planning Board for 26 years and I
agree with Craig's determination.
MR.JACKOSKI-Thank you,sir. Sir?
LAWRENCE BENNETT
MR. BENNETT-My name is Lawrence Bennett. My wife operated a horseback riding facility at Wild
West Colonial Riding Stables Incorporated and I would like to think that it was a tourist attraction,
but it certainly was an outdoor activity, a recreational activity, and it operated on French Mountain
going on the trail system. I went to the top of the Mountain there today and had no problem
getting there over a very,very extensive and very well maintained highway. That highway was not
built to take people up and down for a zip line ride. It was obviously built for motorized vehicles to
go up and down the Mountain and it has done so for many, many years and it was a well-traveled
route. I was very puzzled by the concern that this would cause a problem from the property line. I
was very surprised when I walked to the property line and I did not want to trespass upon the
property. So I didn't go any further, but I could see nothing, nothing but forest. There was no
view., I had to go to the Macchio property in order to get to a view, and I also noted that any
picnicking,all those activities that were mentioned,were impossible at the point,maybe I didn't see
below the property line what the issue was that was of a great concern. I know that mule rides
went up and down the Mountain and people went there for observation and so forth. So there've
been many types of activities,recreation,as well,perhaps,as tourist attractions. Thank you.
MR.JACKOSKI-Thank you,sir. Sir?
MIKE SPAULDING
MR. SPAULDING-Hello, folks. My name is Mike Spaulding. We own King Phillips Campground and
Lake George River View Campgrounds. We're also residents of Queensbury. We have a lot of
customers that come to King Phillips. They enjoy the ranch and what Ralph is trying to accomplish
here. I think it would be very much appreciated by our customers, and if you considered the
situation with amusement park and customers and how they want to enjoy the Adirondacks,
everybody's got a different way of trying to enjoy the experience of our townships, and across the
street we have the Magic Forest, and they truly are amusement rides, music, all kinds of things
going on, kids screaming in delight. All of that is something that has been very much appreciated
by the customers of King Phillips. They like to hear that fun. They like to hear people having a
good time. There's not been a problem with it. The music sometimes can be a little bit annoying,
but a zip line where somebody is screaming in joy or delight or something of that nature would not
be a problem for our customers. I do agree with the determination.
MR.JACKOSKI-Okay. It might be fun to hear some people screaming in terror,too,right?
MR. SPAULDING-Why not?
MR. JACKOSKI-Okay. Thank you. Is there anyone else here this evening? Mr. Salvador. And I
won't remind you of the three minute limit, I promise.
JOHN SALVADOR
MR. SALVADOR-Good evening. For the record my name is John Salvador. I'm a resident living in
North Queensbury. My understanding is that the appellant's appeal has to do with whether or not
a zip line ride can be deemed an outdoor recreation land use within the meaning of the Town Code
of the Town of Queensbury. If so then the proposed Zip Flyer would be an allowable use in a Town
Residential zoning district, namely LC-10 Acre zoning district. If the Zoning Administrator's
decision is upheld, we are going to wind up with a commercial activity in a residential zone. The
current version of the Town Zoning Code generally speaks to outdoor recreation as activities which
in addition to being located primarily out of doors, or available first for dues paying members, or to
members of the general public for a fee,but in all cases commercial. However, as commercial use,a
zip line is not allowed in any of the Town's Residential zoning districts of which the applicant's LC-
26
(Queensbury ZBA Meeting 06/04/2014)
10 Acre zone is one. Of all the outdoor recreation activities defined in the Town Code, a zip line
ride is not numbered amongst either of the several active recreation or the passive recreation
activities. There can be no question if a zip line ride were to be classified as a recreation use, it
would be active recreation in a class with other Code defined leisure activities such as baseball,
soccer, basketball, tennis, track and field, golf, and skiing. Since recent Zoning Code changes came
into effect in the Town of Queensbury, it has become difficult to clearly classify a zip line ride as a
tourist attraction for the following reasons. At one time in 1997 in fact a tourist attraction in the
Town of Queensbury had this definition: any manmade or natural place of interest open to the
general public and for which an admittance fee is usually charged. The distinguishing feature
being an admittance fee usually charged. The current Town Code defines tourist attraction as
simply any manmade natural place of interest open to the general public. Notice the deletion of the
phrase for which an admittance fee is usually charged. Why the deletion? Don't tourist
attractions usually charge a fee? Of course they do. The deletion makes no sense.
MR.JACKOSKI-Okay, Mr. Salvador,your time is up.
MR. SALVADOR-I have just a couple more.
MR. JACKOSKI-No, your time is up. We've adhered to the three minute rule for everyone. I
appreciate your comments.
MR. SALVADOR-Is there someone else who'd like to speak?
MR. JACKOSKI-I don't know yet. We'll find out. I've asked everyone to have three minutes, and
that's what I've said from the very beginning of both of these proceedings today. Is there anyone
else here this evening who'd like to address this Board concerning this matter? Okay. Seeing no
one, actually can we do the property owners now, or we should go back to the appellants. Let's go
back to the appellants first as we did before, and then we'll go with the property owners,then we'll
go with the Board. If you wouldn't mind, I'm going to leave the public hearing open, but if the
appellants'lawyers could come back to the table.
MS. BRAYMER-I would just reiterate that your job here tonight is very narrow. It's to interpret the
Zoning Code and not to look at outside influences,and Dave King has one other comment.
MR. KING-Exactly. I mean, we have a Code that's very clear, that non-motorized activities are not
permitted in this zone, but I can't help but think that all the resources expended by this Town on
our Comprehensive Land Use Plan, that it must be considered at every step of the way in the
planning process, and that when something comes to the Zoning Office, Zoning Administrator's
office for determination,yes,indeed,we look at use charts and we look at definitions,and we do our
very best to place the requests in those areas, but we must also look at that Comprehensive Land
Use Plan and, you know, in the Plan, under Enforcement and Administration, it says, effective
enforcement and efficient administration are vital to the success of a Comprehensive Plan. This
does not mean rules have to be draconian, rather regulations must be predictable and fairly
applied. Businesses, individuals and their communities thrive in stable environments. Investment
becomes tricky when rules change from one applicant to the next. A community's long term vision
is only realized when elected officials and Town staff rigidly remain on the path set out by the
Comprehensive Plan. I do not believe that this application falls within the view of a mountain in
the Town of Queensbury. Read the Comprehensive Plan. When you walk up my trail, you see a
silhouetted pylon or tower, whatever you want to call it, on the skyline. In the plan that was
adopted by this Town, it says we do not do that. We're doing that. So we have to look at the
Zoning Code, but we have to look at the principles behind the visions that we created and adopted,
and if we want to change direction, we need to go back to the Comprehensive Land Use Plan,
recreate our visions to allow that. The current Comprehensive Land Use Plan does not allow that.
MS. B RAYM E R-Thank you.
MR.JACKOSKI-Okay. Thank you.
MR. LAPPER-I want to agree with attorney Braymer that this is all about the very specific
definitions in the Code, and just to look at the two that we're talking about, outdoor recreation is a
permitted use in the LC-10 zone. Land uses which offer recreation activities primarily outdoors
operated on a commercial basis for members of the public,and if we fit within that definition,which
Craig has determined we do, and we agree. Recreation activities primarily outdoors on a
commercial basis for members of the public. That's what we are. Even if some parts of this could
also overlap and be part of a tourist attraction, which I don't think it really fits in that definition,
that doesn't mean that it's not an outdoor recreation use, because we fit within that definition of
27
(Queensbury ZBA Meeting 06/04/2014)
outdoor recreation, but then if you look at the full definition of tourist attraction, Mr. Salvador only
read the first clause, any manmade or natural place of interest open to the general public, but then
it goes on to say, including but not limited to animal farms, amusement parks, replicas of real or
fictional places, things or people and natural geological formations. That's not what we have here.
I mean,that's Frankenstein. This is a recreation use, and the whole thing with motorized and non-
motorized, Craig said it in the Staff Notes, that outdoor recreation isn't limited to those two active
and passive,but even look at the definition of active, and that's what we just asked the Town Board
to clarify,but either way,it can have motorized components. The activity,the leisure activity itself,
is gravity here. The fact that the harnesses go up with a motor doesn't knock it out of the box,
because obviously skiing has a motor. So we think it's pretty clear.
MR.JACKOSKI-Okay. Thank you.
MR. O'CONNOR-Okay. Just a couple of factual things. Somebody made a comparison to a
rollercoaster. A rollercoaster is, you're brought up to the top of the hill in the car mechanically.
This is not a mechanical operation. You go off the platform,and by gravity you go to the base. The
braking system is not motorized braking system. It's a mechanical system that slows you down.
This ride also has the large loop in it,and as you come down to the bottom you slow down naturally,
but the cable connection for the thing that you ride in has a tightening grip as it goes down. That's
a mechanical thing. That's not a motorized type of operation. So there's nothing that's motorized
about the zip line itself, and has Jon has said, I think there's no definition or no limitation within the
definition of outdoor recreation that says either active or passive recreation is allowed. They're
both allowed. The other comment I need to make though, and I'm surprised that it wasn't picked
up on. In the Appeal,the applicant said, moreover the 60 day period in which to file an appeal with
the Zoning Board of Appeals of an action of the Zoning Administrator official cannot begin before a
party receives notice of that action, and it cites an appellate case. An appellate case supersedes the
Supreme Court if it's in your jurisdiction, and it says after that, in the alternative, in the absence of
actual notice, the period will begin to run when a party is chargeable with constructive notice
thereof. And the applicants, in response to my comment that I believe that they had because of the
FOIL they filed with the APA said it's irrelevant whether we have it or not. They didn't answer the
question. I believe they had actual notice, and I say that just for the purpose of the record. I ask
you to make your decision based upon the merits of the Appeal, whether it is or is not an outdoor
activity.
MR. LAPPER-Ralph wants to just make a quick comment.
RALPH MACCHIO
MR. MACCHIO-Yes. Quick comment. Mr. King would not have a problem with my zip line for the
most part if he didn't trespass on my property. If he didn't trespass he wouldn't see the so called
towers. When we chose to do this on our property, we looked around for things that were an
Adirondack experience. When we went out to the lookout, my family is who I'm speaking of, with
myself, we saw some of the most beautiful scenery you could imagine. The zip line was chosen
because imagine all that beauty, the high peaks, the lakes, the mountains, the Town, and you're
flying through the air and looking at that. That is a real Adirondack experience which should not
only be shared by people who are trespassing on my property,but many,many more that would get
a great deal of enjoyment out of it. Thank you.
MR. JACKOSKI-Thank you, Mr. Macchio. Thank you, counselors. If Ms. Braymer could comeback
to the table one last time, we do have some questions from Board members I'm sure. The public
hearing has still been left open. I thank everyone for their patience.
MR. KING-I just have to say,though,there's a couple of comments about trespass and property lines
and so forth. For 45 years we've maintained a hiking trail to the summit of French Mountain. The
outcropping we're talking about at the top runs on the western side, so, you know, western side
primarily, and it wraps towards north and to the south. The property line crosses over the
outcropping and you can definitely enjoy a spectacular view of the Adirondacks, of my Park, of
Prospect Mountain, of the Outlet Center, of the whole corridor going down south. From my
property,without trespassing,you can have a picnic,and I welcome any of you,any time,to take the
hike with me,on the trail that we've created and maintained for 45 years and I will buy your lunch.
MS. BRAYMER-We have a location map that indicates where that simulation was taken from, that
photo simulation, and we'll file the simulation as well as the photo location maps, so that you can
see that the location that that photograph was taken from is on the Lake George RV Park lands.
Thank you very much.
28
(Queensbury ZBA Meeting 06/04/2014)
MR. JACKOSKI-Are there any questions of Ms. Braymer, are there any questions from Board
members at this time? I'm going to have a couple,but I'll let other Board members go first.
MR. NOONAN-I have a question.
MR.JACKOSKI-Go ahead, Kyle.
MR. NOONAN-Ms. Braymer,you made a statement that said this particular zip line is different from
other zip lines in that this zip line follows the same regulation as an amusement park ride. That's a
true statement?
MS. BRAYMER-It is.
MR. NOONAN-Okay.
MS. BRAYMER-It's in the Department of Labor regulations. I don't have the section and number for
you at this very moment.
MR. NOONAN-And are all zip lines, do all zip lines follow the same regulation as amusement park
rides?
MS. BRAYMER-It's my understanding that all zip lines, including the gravity braking zip lines, like
the ones at Adirondack Extreme, and this kind of mechanical braking system zip line and, yes
they're both under the same regulations.
MR. NOONAN-Okay.
MR. KUHL-Mr. King,how many of your residents hike up the Mountain?
MR. KING-Well, that's hard to give a definitive answer. Over the years, we've gone from having
guided hikes. So in the 1970's and early 80's we actually guided hikes to the top. At that time we'd
have maybe 30 or 40 per hike go up the Mountain. Not everybody can do that hike, depending on
mobility issues,ages of children.
MR. KUHL-Well,is it more than 50%,less than 50%?
MR. KING-I would say less than 50%, more than 20%, about 20% of our guests use our tennis
courts.
MR. KUHL-Have you ever asked, have you ever given your people questionnaires, how was your
stay,what would you like to see?
MR. KING-All the time. Absolutely,all the time. We're constantly surveying our guests.
MR. KUHL-And nobody ever says a zip line?
MR. KING-Actually not. I've never seen, they don't want a zip line on my property, anyway.
Usually my surveys are specific to the guest experience at my resort. So they do ask for lots of
things,but I've never had them ask us to create a zip line. They do ask us for big long lists of things
that they would like us to add to the resort,and that has not ever been one of them.
MR. KUHL-Okay. When those people go up there and picnic,do you have picnic tables?
MR. KING-No, we've never created any manmade evidence of any manmade structures on the
Mountain. We felt that was, again, a distraction from the experience of being with nature. In our
Park we have picnic tables,but the experience.
MR. KUHL-No,no,this whole issue is French Mountain.
MR. KING-Correct.
MR. KUHL-Let's stay there,let's stay there.
MR. KING-Correct.
MR. KUHL-Thank you.
29
(Queensbury ZBA Meeting 06/04/2014)
MR. JACKOSKI-Any other questions from Board members? So I want to just kind of recap my
experience. I did get a chance to go up to the property, I'm going to say a week or two ago. I
believe I got a chance to see where the pole, pylon was going to be, where the four cable anchor, if
you want to call it, will be at the top. I had an opportunity to see where the flags were for the
property line,which I believe were the flags for the property line, and I actually got to stand out on
that outcropping, which is quite spectacular. My impression was I couldn't believe how noisy it
was up there because of the noise of the freeway, and Route 9. That was surprising to me that it
wasn't as tranquil as I was expecting, but the topography at the top is very steep, and it seemed to
me that the siting of the pylon and the siting of the anchor as I'll call them really were shielded.
They certainly didn't appear to me that they could,judging on sizes of trees, certainly weren't going
to be above the ridgeline. I struggle with that photograph because I can't get a real, that tower in
that photograph, from what I saw, and where I thought the King property was down the
embankment of where I understood where the pylon was going to be and the anchor was going to
be, didn't appear that tall, and that angle looks like that thing could be a lot taller. Do you know,
who actually created that photograph?
MR. KING-Peter Loyola. He's a registered New York State landscape architect. He created, see,we
actually have better geographic data of the Mountain,topography,than actually I think was used by
the applicant because I've actually, we've flown the Mountain and actually done very detailed
topography. So I think what he used to create that was much more detailed data, and he wrote a
whole report which I think we've shared. Right? So there's a whole report that backs up how it
was done.
MR.JACKOSKI-The tower's not going to be above the ridgeline,correct? I mean,that,the way we're
looking at that,that suggests it's way above the trees.
MR. KING-But you're down,so when you're down on my property looking up.
MR. JACKOSKI-Yes, I understand. We did that, because we tried to stand at the pylon and we tried
to stand at the property line and yell to each other, and it was hard to hear each other, but we
purposely did try to yell to each other to see if we could hear each other,and you said, Mr. King,that
your family does own part of the outcropping?
MR. KING-Absolutely.
MR.JACKOSKI-Okay.
MR. KING-If you look at our property line on the, I'm sorry,the majority of the outcropping is on the
applicant's property, but we do own a portion of the outcropping. The outcropping goes down the
Mountain quite a bit. If you walk off our property line, you can walk, if you traverse, you can
actually go right down to the base of the Mountain on that rock face on my property. So it is.
MR. JACKOSKI-I mean, I could see where your trails came up, you know, over to the Macchio
property. I could see where that all was.
MR. KING-Right, and because that, mostly of that 45 year period, that property at the top, prior
landowners never posted it. It only became posted since the road was built to the top of the
Mountain. So, over the years, all the previous property owners, there was more of an
understanding between property owners that everyone enjoyed the Mountain. So to say that there
was ever people going over the line, yes, there probably was, but it was never posted, and it was
never visible as to where a property line existed there until just recent years.
MS. BRAYMER-I just want to make one comment on this. I do appreciate that you went to the site
and visited it so that you could understand more, but, and I have additional arguments that I could
make about how the tower is going to impact the ridgeline, but I won't make those here because
this is not.
MR.JAC KO SKI-Right, I agree,it's all about the use. I understand.
MS. BRAYMER-Yes.
MR.JACKOSKI-Okay. So at this time the public hearing is still open. I am going to poll the Board,if
that's okay with everyone.
30
(Queensbury ZBA Meeting 06/04/2014)
MS. BRAYMER-I'm sorry, I just have one more thing. It's Department of Labor, I found it. It's
Article 27, Carnival Fair and Amusement Park Safety.
MR. LAPPER-Can we just respond to the amusement park,because that's new.
MR. JACKOSKI-Are you okay with that, Ms. Braymer? I mean, it is a departure from my set
standard. It's up to you.
MS. BRAYMER-Yes.
MR.JACKOSKI-She says yes.
MR. LAPPER-I just want to respond to Kyle's question. The issue before you is whether this fits
within that definition of outdoor recreation use. If the Department of Labor classifies this the same
a ski resort, in terms of OSHA standards, that's irrelevant to what's a permitted use. It could
theoretically also be within a tourist attraction or, you know, amusement center in terms of how
that ride is inspected, but the question here is, does this fit the definition of outdoor recreation
activity, and we argue that it does. So it's not inconsistent if OSHA looks at this the same as they'd
look as an amusement ride. It doesn't make it like this is a rollercoaster.
MR.JACKOSKI-Okay. Rick?
MR. GARRAND-Do you want me to go? Certainly. I think the problem here lies with the Code itself.
The ambiguities of the Town Code are detrimental, the person appealing here as well as Mr.
Macchio. They wish to provide a service here. I think they should be able to enjoy their property.
This application,the application came in as a tourist attraction. In our Code tourist attraction says
manmade. This, I believe, is manmade. Outdoor recreation says nothing about manmade. I would
be inclined to support the Appeal 3-2014.
MR. JACKOSKI-And can I just get a clarification from counsel because Rick just said that we have a
definition of manmade,but.
MR. SCHACHNER-I don't believe he said we have a definition of manmade. I believe he said we
have a definition of tourist attraction.
MR. JACKOSKI-Which says it's manmade. I mean the reason I'm stopping here because that's the
first time we've heard that.
MR. SCHACHNER-Craig will check on that,but I think that's correct,but I have a procedural,but, my
Chairman, I do have a process question,which is it sounds like we're beginning Board deliberation.
MR.JACKOSKI-Correct.
MR. SCHACHNER-And if we're beginning Board deliberation, I'm wondering why we're doing that
while the public hearing has not been closed.
MR.JACKOSKI-Well, I normally take a polling of the Board and then close the public hearing if we're
going to move forward.
MR. SCHACHNER-Okay. Yes,it's in the definition.
MR.JACKOSKI-Okay. Thank you. I saw it. Kyle?
MR. NOONAN-Also some thoughts here, that this is in a residential, LC-10A zone. Because zip line
is not listed as something on that table, it had to fit somewhere. Mr. Brown did the best he could to
put it into something that he thought, where it would fit, outdoor recreation is what he came up
with. I don't know, is it recreation? That seems to be the, one of the arguments here. There are
other things that aren't allowed in that same zone. A playground is not allowed in that zone. It
had to fit somewhere. He put it in the outdoor recreation. I don't see that it falls there. I would
also say the Appeal should be upheld.
MR.JACKOSKI-Ron?
MR. KUHL-Well, for me, if they classified the tourist attraction as the Outlets, I sure don't have fun
going shopping in the Outlets. So I don't see a tourist attraction being an outlet. I do believe this
31
(Queensbury ZBA Meeting 06/04/2014)
zip line is something where people could relax and have fun, and I go along with the generic
definition of recreation. So for me I would support the outdoor recreation and deny this Appeal.
MR.JACKOSKI-Mike?
MR. MC CABE-I believe that the zip line is an outdoor recreation, as I read the definition. I think if
there were a series of activities,then that would make it a tourist attraction. So I would agree with
the Zoning Administrator and deny the application.
MR.JACKOSKI-Roy?
MR. URRICO-I believe that the Zoning Administrator's interpretation is correct. I believe that the
zip line should have been classified and it should be classified an outdoor recreation use. That's
where I stand.
MR.JACKOSKI-Harrison?
MR. FREER-I agree. It's impossible to cover every single situation and when they talk, for example
skiing and you think of you're using no motorized vehicle to actually do the activity. To me,this is
very,very parallel to that,and it's certainly consistent that it's a recreational activity.
MR. JACKOSKI-Did I miss anyone? Just myself. Okay. So I agree that it is an outdoor recreation
activity. I support the denial of the Appeal. I also note that if you only paid attention to active
recreation and passive recreation, everything's non-motorized, and some recreation in this life that
we live is motorized. So,to me,this is all about outdoor recreation. So I support the denial of the
Appeal. I'm going to close the public hearing.
PUBLIC HEARING CLOSED
MR.JACKOSKI-And seek a motion,please.
MR. MC CABE-I'll make a motion.
Deny Appeal No. 3-2014, Caffry & Flower, Attorneys-at-Law for Lake George RV Park, Inc.
regarding property owned by Bear Pond Ranch & French Mountain Bear Pond, LLC at State
Route 149,off,Tax Map No. 278.00-1-77 and 13;
The Zoning Board of Appeals of the Town of Queensbury has received an application from Caffry&
Flower. Attorneys-at-Law for Lake George RV Park. Inc. from Section(s): 179-2 of the Zoning
Code of The Town of Queensbury in order to appeal the Zoning Administrator's determination
decision.
Appellant is appealing the Zoning Administrator's determination of March 21, 2011 Bear
Pond Ranch, LLC and French Mountain Bear Pond, LLC relative to the proposed Zip-Flyer
being an allowable use in the LC-10A zoning district. Appellant claims the Zip-Flyer does not
meet the Zoning Code's definition of an "outdoor recreation" use and is instead a "tourist
attraction"with motorized activities.
SEQR Type: not applicable;
A public hearing was advertised and held on Wednesday.June 4.2014:
Upon review of the appeal materials, information supplied during the public hearing, and upon
consideration of the applicable criteria of the Queensbury Town Code and after discussion and
deliberation,we find as follows:
1. The Appealing Party is aggrieved and was found to have standing.
2. The merits of the argument as provided by the appellant with responses from the Zoning
Administrator have been considered. It is our finding that the positions offered by the
appellant are not sufficient to warrant overturning the Zoning Administrator's decision at
hand.
Based on the above findings I make a MOTION TO DENY Appeal No. 3-2014. CAFFRY&FLOWER.
ATTORNEYS-AT-LAW FOR LAKE GEORGE RV PARK, INC., Introduced by Michael McCabe, who
moved for its adoption,seconded by Harrison Freer:
32
(Queensbury ZBA Meeting 06/04/2014)
Reasons for Denial: It's clearly within the definition of an outdoor recreation, and therefore is an
allowed use in this area, and that the tourist attraction is not mutually exclusive from an outdoor
recreation activity.
Part of the determination was the fact that the "ride itself' not necessarily the delivery system, was
the parallel between the activity which was non-motorized and the separation there like a ski lift
and a skier that we took that into consideration as well, that we could understand that that was a
non-motorized activity,the zip flyer itself.
Looking at New York State Law, when there could be an argument for ambiguity, that the property
owner's rights tend to be upheld.
Looking at the passive and active recreation definitions, it was all non-motorized, and that doesn't
seem logical that no recreation here could be motorized at all in the Town.
Duly adopted this 4th day of June.2014,by the following vote:
MR. FREER-I'd second that motion, but I think we need to be more specific on why we feel like this
is a justified ruling by the Administrator and in my view it's clearly within the definition of an
outdoor recreation, and therefore is an allowed use in this area, and I believe that the tourist
attraction is not mutually exclusive from an outdoor recreation facility.
MR. JACKOSKI-Yes, and I'm going to further add to that, and I know Counsel's got to remove some
words in the motion which we'll do. I also want to note that I think that part of the determination
was the fact that the "ride itself' not necessarily the delivery system, was the parallel between the
activity which was non-motorized and the separation there like a ski lift and a skier that we took
that into consideration as well, that we could understand that that was a non-motorized activity,
the zip flyer itself. I want to note,too,that in my decision making,looking at the Code, and I've got
to ask Counsel for the word,isn't there a word that when there could be an argument for ambiguity,
that the property owner's rights tend to be upheld I guess would be the word. I'm not sure.
MR. SCHACHNER-Yes,under New York law,not in our Code.
MR.JACKOSKI-Correct,but what is that term?
MR. SCHACHNER-Derogation of Property Rights. Is that the term you're thinking of?
MR. JACKOSKI-Derogation,yes, thank you, okay, great, and when I looked at the passive and active
recreation, it was all non-motorized, and that doesn't seem logical that no recreation here would be
motorized at all in the Town.
MR. SCHACHNER-So are Mr. Freer's and Chairman Jackoski's comments part of your motion now,
Mr. McCabe?
MR. MC CABE-Yes.
MR.JACKOSKI-And seconded by Mr. Freer.
MR. SCHACHNER-All part of the motion?
MR. FREER-Yes.
MR. SCHACHNER-So my additional suggestions are exactly the same ones that I made on the
previous or the previous Appeal, rather, which is I would suggest using the word deny instead of
disapprove. I would suggest striking the words "notice of so that the beginning of the resolution
is a resolution to Deny Appeal No. 3-, etc. I would urge that the middle phrase of the paragraph
that starts upon review, where it says the criteria specified in Section 179-13-020 Discontinuance
be deleted because that's not the right provision. My suggestion is simply say consideration of the
applicable criteria. I believe the motion included an Item One that the Appeal was filed within the
60 day timeframe. If that's how you feel, keep it in the motion. I want to make sure the Board
knows you're not obligated to make that determination as to timeliness,but you can if you want, an
that's part of your motion so far, that's fine, if you want that to be part of your motion, and lastly, I
guess I would just,again,take out Notice of in front of Appeal number in the last sentence.
33
(Queensbury ZBA Meeting 06/04/2014)
MR. JACKOSKI-Yes, and, Counsel, I think we should not address the 60 day notice, whether we
approve it or not, Mike. I think it would be more appropriate to leave that out since it's not really
required.
MR. SCHACHNER-And all I'm saying is you're not obligated to make a finding on that issue.
MR. MC CABE-Okay then. I'll agree with that.
MR. FREER-And I agree.
MR. SCHACHNER-All right. So the motion no longer includes what was Item Number One of the
draft resolution.
MR. MC CABE-Yes.
MR. SCHACHNER-As I understand it.
MR.JACKOSKI-Is Counsel satisfied?
MR. SCHACHNER-I am.
MR.JACKOSKI-Thank you,sir. Please call the vote.
AYES: Mr. Kuhl, Mr. McCabe, Mr. Freer, Mr.Urrico Mr.Jackoski
NOES: Mr. Garrand, Mr. Noonan
MR.JACKOSKI-Thank you. Is there any other business Board members would like to bring in front
of the Board this evening? Hearing none,could I have a motion to adjourn?
MOTION TO ADJOURN THE SPECIAL MEETING OF THE QUEENSBURY ZONING BOARD OF
APPEALS FOR JUNE 4. 2014, Introduced by Kyle Noonan who moved for its adoption, seconded by
Richard Garrand:
Duly adopted his 4th day of June, 2014, by the following vote:
AYES: Mr.Urrico, Mr. McCabe, Mr. Freer, Mr. Garrand, Mr. Kuhl, Mr. Noonan, Mr.Jackoski
NOES: NONE
MR.JACKOSKI-Thank you and good night.
RESPECTFULLY SUBMITTED,
Steven Jackoski, Chairman
34