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Zoning Board of Appeals March 18, 2020 Minutes

Chair Douglas Purcell opened the public hearing at 7:05pm.

Chair Douglas Purcell: for the record that this meeting is being conducted as a tele-conference in compliance with New York Governor Andrew Cuomo's Executive Order of March 12th, 2020 - No. 202.1, which states in part:

“Pursuant to the authority vested in me by Section 29-a of Article 2-B of the Executive Law to temporarily suspend or modify any statute, local law, ordinance, order, rule, or regulation, or parts thereof, of any agency during a State disaster emergency, if compliance with such statute, local law, ordinance, order, rule, or regulation would prevent, hinder, or delay action necessary to cope with the disaster emergency or if necessary to assist or aid in coping with such disaster, I hereby temporarily suspend or modify, for the period from the date of this Executive Order through April 11, 2020 the following:”

one of those is

“Article 7 of the Public Officers Law, to the extent necessary to permit any public body to meet and take such actions authorized by the law without permitting in public in-person access to meetings and authorizing such meetings to be held remotely by conference call or similar service, provided that the public has the ability to view or listen to such proceeding and that such meetings are recorded and later transcribed;”

therefore, the reason for recording.

Chair Douglas Purcell: I’m going to ask at this point for our Clerk to take the call of roll not only of those that are members, but we’ve had four more people call into this, so at the end, if you don’t hear your name I would ask that you please identify yourself. James, go ahead.

Members of the Zoning Board of Appeals in attendance by roll call were:

Chairperson Douglas Purcell — present
Kenneth Coirin — absent
Frank Malagisi — present
Kathleen Ellerby — present
John Byrnes — present

Members of the public in attendance (not all were present for the entire meeting): Eugene Schramm, Kenneth L. Ayers, Esq., Lenore Bellinger, John Bellinger, Barbara Pedley, Lorraine Mott, Fred Franko, David Fink, Al Kozakiewicz, Linda Gilbert, Treg Lewis, Lynn Garski, and several unidentified participants.

Chair Douglas Purcell: At this point I’ve got a few things I want to cover, so I’m going to mute everybody so I can cover a couple items before I open it up.

[At this point, one more attendee joined and identified herself.]

Chair Douglas Purcell: Everybody is muted right now. I just have a few things that I want to cover. First of all, I want to thank all the participants for their quick response to the change in format for this meeting. Before beginning any discussion, I want to set a few ground rules. As a reminder, the discussions are to be directed to the Board members. There should not be discussion taking place between public participants. Further, should such conversations begin, I will warn the speaker to stop and if that persons does not stop, I will warn them I’m going to mute them and then mute them. These are two-part hearings for each application: a public session and a closed session. We will hear from the applicant. During this portion, the Board will refrain from questions or comments, as this will be done during the closed session. We will entertain comments from the public and hear any correspondence. The applications will be reviewed in the order in which they were received. We are going to start tonight’s proceedings by reopening the review of application Z2019-07 by Lenore and John Bellinger for a Use Variance to build a dock at 325 East Stoner Lake Road. This application was tabled pending the review by the Fulton County Planning Board in accordance with General Municipal Law 239-m and a referral for comment by the Town of Caroga Planning Board. Before I open it for public sessions, I have a few housekeeping items: To start, Frank Malagisi was not present when this application was presented to the Board at our January 30 meeting of the ZBA.

Chair Douglas Purcell: Frank [Malagisi], for the record, I would ask that you please confirm that you have reviewed the application, minutes, and the other materials pertaining to this proposal.

Frank Malagisi: I did.

Chair Douglas Purcell: OK, thank you very much, Frank.

Chair Douglas Purcell: I also, for the record, want to acknowledge the following ex parte conversations with Lenore Bellinger. On January 7, Mrs. Bellinger called for assistance to prepare for the Short Environmental Assessment Form. At that time I really did not have time to talk to her. I then later called her back in the afternoon and assisted Mrs. Bellinger with her questions. During that conversation, there was some confusion about the scope of this project as to whether it included both the boardwalk and the dock and she suggested that I review with the Code Enforcement Officer and the Town Supervisor why they were instructed to submit this as a “Use Variance”. I met with them [Town Supervisor and Town Code Enforcer] on January 8, so I called back to Mrs. Bellinger on January 9 asking her to please submit the Short Environmental Assessment Form.

Chair Douglas Purcell: I will comment to the Bellingers and I noticed in reviewing the materials once again that the EAF is not dated and therefore incomplete and it’s been later brought to my attention that there were a couple other questions that were missed. When we get into the discussion, I am going to ask you for a review that, and ask for your approval to update that, if we are going to proceed.

Chair Douglas Purcell: Further, on January 31, Mrs. Bellinger called me for clarification of the tabling of the application and the referral of the applications to the Fulton County Planning Board and Town of Caroga Planning Board. During that conversation, she expressed concern that we were referring these with opinions. I pointed out that these were strictly referrals and we were making no recommendations to either board. Further on February 3, I called Mrs. Bellinger to confirm the dates of the Fulton County Planning Board meeting was to take place and Town of Caroga Planning Board meeting was going to take place. And finally, on February 6 Mrs. Bellinger called here. At that time, I instructed Mrs. Bellinger to please cease and desist with all these ex parte conversations and that she should direct any further questions to either the Code Enforcement Officer or Zoning Board of Appeals Clerk.

Chair Douglas Purcell: Also, for the record, I want to review the results of the referrals to the Fulton County Planning Board and Town of Caroga Planning Board. The Fulton County Planning Board in their review of this application in accordance with Section 239-m of the General Municipal Law recognized no regional implications that could occur from this proposed action and they indicated that they will be offering no recommendation to the Town of Caroga Zoning Board of Appeals regarding this Use Variance application.

Chair Douglas Purcell: Recognizing that Al Kozakiewicz is online and the chairperson of the Planning Board for the Town of Caroga, if I misspeak I will give him the opportunity to correct me, but the Town of Caroga Planning Board reviewed the Zoning Board of Appeals application for comments at their meeting on February 5, 2019 [2020] and determined that the Planning Board made an oversight in not allowing docks on R-10. Further, Chairman Al Kozakiewicz said that is one change to the Zoning Ordinance we should probably make. He had done research on riparian – and I’m putting in a correction that there is also littoral rights, which deal more with lakes, riparian more with streams and moving water. Going back to quoting what was said at the meeting, Al stated that: “There is a limited right. you can't prohibit it. It has to pass a reasonableness test. The main thing was that it was never the Planning Boards intent to disallow docks in R-10.”

Chair Douglas Purcell: Al, do you feel I properly summarized what was said at the Planning Board meeting?

Al Kozakiewicz: Perfectly.

Chair Douglas Purcell: Great.

Chair Douglas Purcell: At this point I have unmuted the audience and I am opening the meeting for input and I’ll start by asking the applicants, John and Lenore Bellinger, whether or not you have anything that you would like to add before this Board takes your application into consideration.

John Bellinger: Hello? Yes, at this time, I had also gone to the Fulton County Planning Board meeting, just in case there was any questions. I brought all my information, just like I did with the Town. At that time, they said the same thing: that they didn’t feel it was anything that they needed to address and it came back to the Town. As far as anything else goes, I thought we had everything in order for you.

Lenore Bellinger: Lenore Bellinger. I also reached out the Beth Magee at DEC [Deputy Regional Permit Administrator] who verbally told me she did not have a problem with my project boardwalk.

Chair Douglas Purcell: Lenore, Lenore, I missed part of what you were saying. Could you back up a little bit?

Lenore Bellinger: OK. I also reached out to Beth Magee New York State Department of Environmental Conservation, DEC, for a judicial determination. She did give me a verbal determination on August 15, 2018 where she didn’t see a problem with the boardwalk/dock at all. I also – the Army Corps of Engineers. Both of them had visited the site and that neither one had a problem with the project. I then told her that I was backing off from the boardwalk and that we were just asking for the dock and that she could please – I wanted to apply for a permit. She then sent me a letter back stating that I didn’t need a permit from them – that what I was asking for did not require anything from them, so I was good on their end. I did look at the paperwork that I sent you, page 3 of 3, Short Environmental Assessment Form. I see I didn’t date it, but I can also send that back to you. I’m sorry I didn’t date it. But, its all filled out other than me dating it.

Chair Douglas Purcell: There is a question with regard to whether or not your proposal is consistent with the – now I’ve got to pull it up in front of me – the Town Comprehensive Plan. I think it is something like question maybe 5B?

Lenore Bellinger: 5B? On what page? Of what?

Chair Douglas Purcell: First page.

Lenore Bellinger: Check all land use that occurs or adjoining… What was the problem with 5B? Oh, here. I don’t, I don’t, I don’t have the answer to that question and probably did not know it. What does that mean?

Chair Douglas Purcell: It means whether or not what you are proposing is consistent with what the Town is trying to do with that property. So, it would require you looking at the Comprehensive Plan and making a determination.

An unknown speaker spoke a few unintelligible words.

Chair Douglas Purcell: Somebody said something and I didn’t catch it.

The unknown speaker spoke a few more unintelligible words.

Chair Douglas Purcell: That was caller #12 who I actually haven’t identified. It was somebody new that’s on the line. Who is speaking?

The unknown speaker spoke a few more unintelligible words.

Chair Douglas Purcell: You are not coming – I don’t know how far you are away from where you are speaking, but you are not coming through.

Clerk James Long: The Clerk cannot decipher that.

Chair Douglas Purcell: I see caller trying to speak but it is really not coming through. I suggest that you hang up and retry.

Chair Douglas Purcell: Alright, so, was there anything else, John and Lenore, that you wanted to add at this point?

Lenore Bellinger: We don’t understand question “B”. That’s probably why I didn’t fill it out. We still don’t understand. We did not hear caller 12 coming in.

Chair Douglas Purcell: We didn’t either.

Chair Douglas Purcell: There is a Comprehensive Plan which details what the Town desires to do with the properties within the Town of Caroga. And, Al [Kozakiewicz] you can certainly chime in at any point and help them since this is a Planning Board document.

Chair Douglas Purcell: Would you like help explain what the Comprehensive Plan does?

Al Kozakiewicz: Let me get my microphone out. Everybody hear me OK?

Chair Douglas Purcell: Yes, you are fine.

Al Kozakiewicz: OK. Good. The Comprehensive Plan is basically when a town decides that it is going to write a zoning ordinance. It kind of – to speak in computer engineering terms – it is the requirements document for the project. In other words, it spells out what the town is trying to accomplish with the town as a whole. So, for example, if you look at – I’ll just give you one very clear example. If you look at our Comprehensive Plan, it spells out – it’s actually, in the first couple of pages – it’s literally a paragraph – you can ignore the other fifty pages of the document. But, it says that the Town of Caroga wants to be a destination for tourism. It wants to have – it lays out a vision for the Town Center – but, the Hamlet area in APA speak – you know, what that to be like. And then it has all the supporting documentation in terms of things like demographics, what businesses are in the town, what infrastructure is there, so that somebody looking at the Comprehensive Plan could get an idea of what the Town could offer, should they wish to avail themselves of, you know, one of the many uses we’d like to attract to the Town. Long-winded, that’s pretty much what it is.

Chair Douglas Purcell: Thank you very much Al. I appreciate that’s a very, very succinct explanation.

Lenore Bellinger: My answer would be yes, then. I would hope to think that the town, since I talked to John Duesler and some of them, would like to see us with a dock, enjoying the lake like everyone else is and not prohibiting us so that we’re the only ones looking out at everyone having fun on the lake. So, I don’t think we’re trying to do anything that anyone else hasn’t already done on that lake.

Chair Douglas Purcell: That would be what I thought you would answer and would appreciate it if you would so correct the form and get the form and get it to us as quick as you can. Is there was anything else that you would like to add?

John Bellinger: No.

Chair Douglas Purcell: Alright. Then at this point, I’m going to ask those in the audience with an interest in this application if they’d like to take a turn to speak. Caller 3, go ahead. No, that’s Kathy Ellerby. I’m sorry. Anybody?

There were multiple speakers speaking at the same time at this point.

Attorney Kenneth Ayers: This is Ken Ayers calling.

Clerk James Long: Given the multiple speakers speaking other than Attorney Kenneth Ayers, who just identified himself, in the future please identify yourselves when you start to speak, just for the benefit of the Secretary/Clerk. Thank you.

Attorney Kenneth Ayers: Sure, I’d be glad to. My name is Kenneth L. Ayers. I am an attorney. I live in Palatine Bridge, New York. I represent Philip Thibodeau and the other owners of property at 233 East Stoner Lake Road. And, we are calling in tonight to oppose the application by the Bellingers for a 200 foot dock extending out into East Stoner Lake. If I could just, for a second while we’re here, go back to the point on the EAF that was just mentioned regarding the section 5B not being completed. I do not think it’s sufficient for the land owner to say “I don’t know what it means, but I hope we’re in compliance, so I’m going to answer yes.” That’s an objective question, not a subjective question: You either are in compliance or you are not and guessing that you are without knowing what it even means is not an answer. The second thing about the EAF, I would say, is that there is also a question 13 which says that if you are going to be in a wetlands area, you have to provide a calculation of the amount of area that is affected by the proposed use of that wetlands for a dock, for example in this case. That calculation is not there. Absent that information, the ZBA does not know the maximum amount or the extent of the intrusion into the wetlands of the proposed dock. So, that is a key element that needs to be in the EAF in order to make a reasoned elaboration of whether or not there is or is not a negative impact on the environment. I would also like to go back to what Mrs. Bellinger said with regard to the DEC letter of February 21, 2020. What we have going on there is the DEC saying that because we understand that you are modifying your project and it is not going to include a 170 foot boardwalk, only a 200 foot dock, that means that it doesn’t fall within the jurisdiction of DEC. It was not an approval by DEC of the project in any way, shape, or form and actually it’s a way around having DEC take a look at the project because you’re splitting out one part of the project from the environmental review. So, I don’t think that is appropriate. In the information that I provided to the ZBA Chairman and the Planning Board Chairman this afternoon, I also addressed the issue of segmentation of the EAF. Here we have a situation where the applicant admits they are going to not build the boardwalk now, but intend to construct it at a later date. This was an improper segmentation of the environmental review. So, for the purposes of the EAF and the environmental review, the ZBA needs to consider that as one project being completed in phases. And, the total environmental effect of the boardwalk and the dock have to be considered together at one time. That’s not what’s being done by the way they’ve modified their application. And again, it’s another way to avoid a serious environmental review of the scope of this otherwise massive project that is intrusive into the lake. So, those are things that I just wanted to address to deal with comments made by Mrs. Bellinger when she made her presentation. I would also like [speaker was interrupted by Lenore Bellinger] – I would also like [speaker was interrupted again by Lenore Bellinger]

Lenore Bellinger: I don’t have an attorney, so you’re an attorney. I am not an attorney. This is Mrs. Bellinger. I would like to speak. I do not understand what “B” was, OK? I do understand it now. If I need to get an attorney, I will. OK? First of all, if you’d give me second, I can play you an email from Mrs. Beth Magee, OK? Also, Senator Tedisco’s office is well aware of it and Mike McNeely is working with me. Now, it a [speaker was interrupted by Attorney Kenneth Ayers]

Attorney Kenneth Ayers: Mr. Purcell [speaker was interrupted by Lenore Bellinger]

Lenore Bellinger: Now, in a telephone message from her – please, it’s my turn to speak. From a telephone message from her, she did not have a problem with my entire project at all. OK? So, right now we are asking for a dock. I am also disabled and under the Individuals with Disabilities Act, I have a right, everyone else on that lake, to enjoy the lake. I am not saying that we are putting a boardwalk in may be [the Chair muted her microphone at this point].

Chair Douglas Purcell: I just muted you Lenore and also muted Kenneth temporarily. I said very specifically earlier that I did not want discussions going on between the members of the audience. So, I’m going to ask that you discontinue that and please address the Board in all future discussions and I’ll unmute you.

Attorney Kenneth Ayers: Mr. Purcell, I wonder if I could finish my comments and then Mrs. Bellinger can answer all her questions.

Chair Douglas Purcell: Yes.

Attorney Kenneth Ayers: So, may I continue?

Chair Douglas Purcell: Yes, please do.

Attorney Kenneth Ayers: OK. Let me just say that all of the things that Mrs. Bellinger said in response to what I said previously is not part of the record. It’s just not part of the record and it shouldn’t matter what outside of the Zoning Board of Appeals hearing or information in the record – whatever conversation she had doesn’t matter. Now, earlier to this afternoon, I submitted, approximately, a six-page letter to the ZBA and I understand it has been accepted and received and I don’t not want to belabor this meeting by reviewing all of the things that are in that. [The Chair interrupted at this point.]

Chair Douglas Purcell: And, I appreciate that.

Attorney Kenneth Ayers: I have a couple of key points that I would like to just address. The application in the record that’s before the ZBA is what it is as of right now, but the record is absolutely devoid of any information or evidence which is necessary for the applicant to submit to show that they are entitled to a Use Variance. The Zoning Board of Appeals has a certain limited authority under the Town Law §267-b which relates to when a Use Variance can be issued and the applicant has the burden to prove that it has met, or can meet, or has met, all of the four different standards that are set forth in §267-b(2)(b). And I looked at the record that was online available for this meeting. I also looked at some meeting minutes from the Planning Board. There’s absolutely no evidence in the record which satisfies the proof of hardship that is required to be proven by the applicant to justify the grant of a Use Variance. Now, two issues that have come up by the applicant on their reasons for why they should be granted a Use Variance because of hardship: One of those is, has to do with they want to add value to the investment that they made in their property on the lake and I provided a lot of legal information in my letter that talks about what is necessary in order to prove that there has been no reasonable return on their investment.

Chair Douglas Purcell: And, I appreciate that [Chair was interrupted by Attorney Kenneth Ayers]

Attorney Kenneth Ayers: What they have to show: that their – the landowner has to show that they can not yield a reasonable return if they use the property in any way that is permitted by the zoning ordinance. Well, they’ve built a beautiful new house there and that’s permitted by the zoning ordinance and they made an investment in rural land and have built a brand new beautiful house. So it is very difficult – I think impossible – for them to argue that then can not get a reasonable return if they wanted to. The applicant’s failure to demonstrate the ability to realize a reasonable return on their investment bars the applicant from being granted a Use Variance by the Zoning Board of Appeals. There is also, with regard to the next item that they say that is a reason why they support their application, is that, that the variance would observe the spirit the ordinance: it would not change the character of the district because the dock will be eighteen (18) inches off of the water to prevent disturbing the water or the vegetation. And, in my letter, I go into great detail about how that is not evidence which is directed at the issue of what is the character of the neighborhood, what is the intent and purpose of the local zoning law in an R-10 district and they simply don’t address it. So, there’s no proof whatsoever in the record that they are entitled to a Use Variance because their property is in character with their proposed use – is in character with and in harmony with the district. Now, another thing that I thinks needs to [speaker was interrupted by Lenore Bellinger]

Lenore Bellinger: This is Mrs. Bellinger. When do I get to speak?

Chair Douglas Purcell: When he’s done.

Lenore Bellinger: Because, you are an attorney. And, you’ve just been rattling on and rattling on about this law and that law and as far as I know [speaker was interrupted by the Chair].

Chair Douglas Purcell: Lenore, I’m going to mute you.

Lenore Bellinger: To the Board, what is this person? He’s just an attorney? It [speaker was muted by the Chair].

Chair Douglas Purcell: He is an observer of this meeting and he is allowed to speak so he would appreciate if you would allow him to finish and then you will get a chance to speak as well.

Attorney Kenneth Ayers: The other issues – there are four standards that have to be met and I won’t go over what they are. One of them is that they are entitled to a Use Variance because of a hardship created by the uniqueness of their parcel of land. Well, as the record in this case shows there are at least fifteen (15) other parcels in the R-10 district which do not have the right under the zoning ordinance to have a dock attached to their property and go out into the lake, so their property is absolutely not unique. The hardship that they have to show is that there is something special and peculiar and unique about the applicant’s property that allows the ZBA to grant a Use Variance to them. There’s nothing so special about this property that’s not any different than the other fifteen (15) properties in the R-10 district. Now, while I’m – because the applicant has failed to demonstrate an undue hardship on three of the four standards upon which a Use Variance may be granted, the ZBA should deny their application. I would also like to mention a little about – in closing – a little bit about a comment on the Planning Board’s comments that were part of the February 5 meeting. It may very well be that when the zoning ordinance was enacted in January 1, 2019 that it was not the intent to limit or prohibit the use of docks in an R-10 zoning district, however, that is what the Zoning Ordinance now says and the Zoning Board of Appeals may not change the Zoning Ordinance by granting a use permit – excuse me – granting a Use Variance for this project because this sets – if you do that, it sets a precedent for every other parcel in that zoning district to have the same right as would be granted to the Bellingers if they were granted a Use Variance, so it would completely emasculate the zoning and I think if I read those meeting minutes correctly, the Planning Board Chairman I think you recognize that the proper remedy here is, number one, you should deny the Use Variance application by the Bellingers and the Town should seek to amend its local zoning to change what you think was a mistake or an oversight was made when it was enacted originally. All of these factors factor toward the requirement that the ZBA deny this application because it is not consistent with the character and nature of the neighborhood. There’s no undue hardship that was created because their property is not unique. They have not shown an undue hardship because there has been an inability to use that property for any permitted use that is in the district. So, just by the simple fact that the record doesn’t provide you with any evidence to support their claim, the ZBA should deny their application. Now, I would like to reserve some time, if I could, to respond to whatever other comments might be made by others.

Chair Douglas Purcell: Sure. I appreciate everything that you’ve had to say. I will say that we had not gotten much into the review of this application as a Planning Board. That when we first had this presented to us, it was obvious to us that there were some referrals that were necessary so, as a Board, we have not had a chance to even start talking about the completeness of the SEQR application and, quite honestly, I remember talking to Mrs. Bellinger about the need to calculate that percent. And, my understanding was that she was going to have John Bellinger calculate that for her when he returned – he was away at work that day and I missed seeing it was there. There were a couple of other things that were obviously missed. We never even got close to doing a SEQR determination on this property. OK, Lenore [speaker was interrupted by Attorney Kenneth Ayers].

Attorney Kenneth Ayers: Mr. Purcell, if I may just respond quickly. It really didn’t matter what’s in their application or whether it is complete or whether the EAF is complete or not. Based on the information that is before the ZBA tonight, there is simply no proof – no proof of financial hardship in dollars and cents – which is required to be submitted at the time the Public Hearing takes place. There is no proof that the property is unique and therefore should not be granted a Use Variance. There is no proof in the record that the dock, which extends 200 feet out into the waters of the lake, which is approximately – I think – ten times larger than any other dock on the lake, is in keeping with the character of the neighborhood or is in harmony with the Zoning Ordinance as it was adopted. You can’t let that – you shouldn’t [speaker was interrupted by the Chair].

Chair Douglas Purcell: You are repeating yourself.

Attorney Kenneth Ayers: You can’t say say you should have done this, should have done that: what was adopted controls. [speaker was interrupted by Lenore Bellinger]

Lenore Bellinger: First of all, can Mrs. Bellinger have a chance to speak?

Chair Douglas Purcell: Please let Lenore speak. You’ve had [speaker was interrupted by Lenore Bellinger].

Lenore Bellinger: You are an attorney.

Attorney Kenneth Ayers: Thank you very much for your patience.

Chair Douglas Purcell: Go ahead.

Lenore Bellinger: First of all, please address who was speaking, he, and where he’s from and how does he fits into this whole scenario. He’s an attorney. He’s an attorney. If I knew that we were bringing in attorneys, I guessed I would have had my attorney overlook things. First of all, I told the Town – I told the ZBA – I told everybody that I am disabled. OK? I have a right to access my shoreline. There is the Individuals with Disabilities Act. I’ve been asking for a simple way to access my shoreline to be able to enjoy the lake like everybody else has. I’ve gone through every permit. I’ve done everything that everyone has asked me to. I’m not a lawyer, so I don’t know what all these laws mean. But, at the end of the day, I don’t have – I’m not going to sit on my deck and watch everybody have fun on that lake and I’m being denied that. And, when I started this process, there wasn’t something that didn’t allow me to do it. You changed the law in January in the middle of me, knowing what I was doing – in the middle of my game plan. So, it seems like you changed the law so that Mrs. Bellinger wouldn’t have that right to ever access her shoreline. There is a hardship. And, if I need an attorney to go against Fulton County because they auctioned off a piece of property, that to us, was waterfront rural property. It was never indicated to us that it was wetlands. All we were asking for: a little boardwalk or a little access, so that I can access the shoreline, but this attorney being able to talk, and talk, and talk, and talk for hours and I’m not able to say nothing [speaker was muted by the Chair after several attempts to by the Chair to speak].

Chair Douglas Purcell: Lenore, you’re, you’re repeating yourself and I just had to mute you because you’re not listening to me try to, to stop you. Your – I hear you and I understood this. He has every right, as does any public person, to participate in a public meeting. Alright? This is one of the concerns that you raised in your meetings: why these people were being allowed to speak. It is this Board’s responsibility to weigh the merits of your application compared to the merits of those individuals that are expressing their concerns, and make some sort of decision. I hope that clarifies that for you.

John Bellinger: John Bellinger. I have one thing that I wanted to add to this.

Chair Douglas Purcell: Yes.

John Bellinger: Not only did I explain why we’re were putting a dock out to 200 feet and everybody that was sitting there on the Board understood there was only an inch of water up to two feet so he can put a small boat of some sort in. That’s all I’m asking for. Nobody, unless you’re in a canoe, can even use that any closer than that 200 feet. They can not bring one of their motorboats or anything else into that. We were just asking only because of the water depth that far out is so shallow. That’s the only reason.

Chair Douglas Purcell: OK. Are there any others in the public that wish to speak?

Treg Lewis: Yes. Can everybody hear me?

Chair Douglas Purcell: Yes.

Treg Lewis: So, my name is Treg Lewis. I had submitted a letter previously in advance of the last meeting. And, I know that there had been some follow-up responses. I’ve done my best to keep up on all the materials distributed. First off, I’d like to say it’s an unusual time in the state and the country and I appreciate the Board’s efforts to make this happen – if not remotely, I certainly wish there was an ability to [inaudible] in person and humanize this a little bit. But, we are where we are. So, I’m hoping for the health of everybody at home. Just to begin with that. I’d like to address the situation from the perspective of a neighbor on the lake. Our family has been on the lake for some time. We own several surrounding lots. That includes, two lots, I believe, at least, that are zoned R-10, of those fifteen lots zoned R-10 on the lake. In that regard, I think that my perspective would actually limit the ability of those lots. So, I hope that maybe that adds a little bit of credence to our opinion that they really – there really shouldn’t be a precedent that they be developed. We don’t see a need to build a boardwalk over the wetlands and, in fact, we do have the opinion – and I’m not a member of the DEC – I will leave it to the proper protocols that the state follows for approval on that, meeting with the APA and the DEC. With that being said for me personally and as a neighbor, I did feel compelled to express a little bit of the perspective of what we see in that area. Since childhood, we’ve watched the loons go in and out of there. They obviously nest in that region. It’s a perfect place for them to nest. I think everybody on this call could probably agree significance of loons to the Adirondack state Park and the overall appeal of the lake life and what people on East Stoner Lake and probably across the Adirondack Park deem as kind of a symbol of that area. So, from that perspective, we did certainly feel compelled as a family to react to the idea of building what would really be an unprecedented dock through that area. I think I would agree with the previous caller that isn’t a typical dock for the lake. This isn’t something that everybody else has had access to. This is not only a hearing to rezone and area but to set a very large precedent for that rezoning for R-10 districts on the lake. I think to start, a 200-foot boardwalk to access the water: it’s a very tall precedent to set for those other areas that may in the future wish to develop. So, from that perspective, I think that it does set a precedent and that would be a concern for us as neighbors on the lake and I think predominantly for the wildlife in that area. Again, we’ll leave it to the proper channels. The second thing that I would like to talk about is really just the fact that, you know, it is a small lake. We certainly don’t have any personal animus involved in this. Simply speaking from a zoning perspective [speaker’s voice was suddenly lost]

Chair Douglas Purcell: OK. You finished, Mr. Lewis? Thank you for your comments.

Lenore Bellinger: Hello? Anyone want to talk about loons on the lake?

Treg Lewis: [audio suddenly starts working again, but still breaking up] … again, as other participants or R-10 districts on the lake, it’s always been [inaudible] and we’ve seen that, I guess, in action over the years, as we’ve seen the wildlife in that area. So, I guess I’ll leave it at that. I just wanted to clarify a little bit of our perspective on that – on the environmental impact that we see just from [inaudible] being there and seeing the wildlife come back in that area and also a little bit of a concern about setting a precedent for other R-10 areas on the lake that I really think could get out of hand down the road. I’ll end by saying I appreciate everybody’s time again. I know these are somewhat extreme efforts to get the meeting done. So, thank you for everybody’s time.

Chair Douglas Purcell: Thank you. Thank you.

Chair Douglas Purcell: Would you like to respond?

John Bellinger: Yes. I would like to respond in the fact that the – I did do research on Adirondack loons and ducks in the area and loons do not come up on the land or the marsh area. They just go to the edge and they nest there. I do not see any effect that that would put on no matter what: because it’s going to be a walking trail and in the Adirondacks, Newcomb – I believe it’s a pond – the state has the same style walking path, or if you want to call it, boardwalk slash over water and I have a video of loons going right underneath people walking there. So, I don’t feel that will affect them and as far as ducks go, I’ve seen ducks on top of docks on that lake and they come up and people feed them bread and that. I don’t believe their affected. As far as the frogs and some of the other things that are in that water, I really don’t believe a four foot dock, no matter how long it is, is going to affect anything that is in that water.

Chair Douglas Purcell: OK. Thank you, John. Is there any other member of the audience who would like to speak?

Attorney Kenneth Ayers: May I ask – this is Ken Ayers again – may I ask an opportunity to say a couple things?

Chair Douglas Purcell: Go ahead.

Attorney Kenneth Ayers: I would just like to tell Mrs. Bellinger or everybody in the group that I represent one of her neighbors. I’m not just a lawyer out looking for something to do on a Friday night.

Chair Douglas Purcell: I believe you stated that at the beginning.

Attorney Kenneth Ayers: Yes. I just wanted to make sure she understands that. And, the other thing is, this is not intended – our objection to her project is not intended to address her disability.

Chair Douglas Purcell: Right.

Attorney Kenneth Ayers: I put in my letter to you that what’s at issue here in the question of uniqueness: It focuses on the property and not the owner.

Chair Douglas Purcell: Understood.

Attorney Kenneth Ayers: A Use Variance can not be granted simply to ease the personal difficulties of the landowner. It’s not the landowners that’s the focus of the review. The focus is the uniqueness of the land.

Chair Douglas Purcell: OK.

Attorney Kenneth Ayers: As far as the dock going out, I’d have to agree with Mr. Lewis: that we’ll have fifteen docks 200-foot long at this end of the lake. We will have no water left to put a boat on because it will all be covered by – or the navigation on the lake will be interfered with by all of these docks if this is allowed to go forward.

Chair Douglas Purcell: OK.

John Bellinger: To response to that – this is John Bellinger – that piece of parcel – if you look at it, which I’m sure all of the Board members have and some of the other people that even and might be talking today. My parcel owns a lot of that that goes to the lake. There’s not going to be fifteen docks there. We weren’t asking for that and there’s not fifteen pieces of property on that end of the lake that could have a dock either. Just to put that out there to everybody that’s on the Board.

Chair Douglas Purcell: OK.

Lenore Bellinger: I also – this is Mrs. Bellinger – wanted to indicate again that you guys changed the rules when you knew what we were doing. We were going through the four entities that you asked us to: the APA, Town of Caroga, Army Corps of Engineers, and DEC. And, when we came to our finish line in January of last year, you changed the rules when you knew that we were going through this since some-wheres in June 2016. So, you have changed the rules pretty much to discriminate against me, based on my disability. I have been saying all along I need to access my shoreline. I have said that to the ZBA. I have said that to the Town of Caroga, Army Corps, DEC, and APA. I do have a special need. And, I have a right under the Individuals with Disabilities Act to access my shoreline like everybody else on that property and [speaker was interrupted by Chair Douglas Purcell]

Chair Douglas Purcell: OK.

Lenore Bellinger: as far as the loons.

Chair Douglas Purcell: Lenore, you’re repeating yourself and covering grounds that we’ve already covered. We’re never going to get through this meeting if I allow you to continue. If you have nothing new to add, I’m going to ask one more time for any public comment and then I’m going to let the Board go into discussion. You are unmuted now. Do you have anything new that you’d like to add?

Lenore Bellinger: They did not let me speak.

Chair Douglas Purcell: I did let you speak.

Lenore Bellinger: Treg Lewis’s comment but I’m not allowed to speak. I just listened to his lawyer speak for thirty minutes.

Chair Douglas Purcell: No, you didn’t.

Lenore Bellinger: But, I’m not allowed to speak.

Chair Douglas Purcell: Lenore, you’re, you’re not discussing. You’re arguing. You’re not allowing us to discuss. You’ve made points. We’ve listened to your points. Is there anybody else in the audience that wants to speak?

Chair Douglas Purcell: If not, I’m going to close the open session and allow the Board to go in. So, I’m going to mute all of the audience except those that are members of the Board so we can discuss.

Chair Douglas Purcell closed the open session at 7:48pm.

Chair Douglas Purcell: Alright. So, John [Byrnes] I think you’re muted yourself, aren’t you?

John Byrnes: Yes. Can you hear me now?

Chair Douglas Purcell: Yes. I got you. And, Frank [Malagisi] is Caller 04. I’ve got Kathy [Ellerby]. James [Long, Clerk], you muted yourself?

Clerk James Long: Yes, sir.

Chair Douglas Purcell: If you want to add, you can. Alright. James would you please go on and let me know if there’s any additional correspondence, other than what we’ve already talked about? We’ve got the letter from the lawyer. We’ve got the letter from DEC. And, we’ve got Lenore Bellinger’s letter.

Clerk James Long: Yes. The last communication to be posted to the we was Attorney Kenneth Ayers letter of today and that immediately went on the web and the PDFs were circulated to the ZBA members and they were notified that they should review the application materials online.

Chair Douglas Purcell: I would add to send a copy – do you have an email address for the Bellingers so that we could send it or mail it to them, so that they’re aware of it?

Clerk James Long: I believe I do. Yes.

Chair Douglas Purcell: John and Lenore, do you have access to a computer where you could take a look at this letter, just so you know.

Lenore Bellinger: No James Long. We talked about that on Sunday – that I live near the nuclear base and everything going on with the coronavirus, we do not have access to internet. I’m so glad I was able to review the lawyer’s comments and his fifteen pages and he was able to speak for over a half hour without my attorney being

Clerk James Long: I would say that – I would remind the Board – I would remind the ZBA that I understand that you have devices to get on the web from your location and have had a chance to review that.

Chair Douglas Purcell: We’re getting background noise from you, James, I believe. [It was John Byrnes microphone]

Chair Douglas Purcell: Kathy, have you got anything that you’d like to ask or say?

Kathleen Ellerby: I know that she has several times claimed and talked about this disability, but nowhere do we know what the disability is. I mean, disability can fall under carpal tunnel. I mean, what is this disability that it’s necessary for such a long dock? It’s a ambulatory? What is this?

Chair Douglas Purcell: I’m not sure it is germane, but go ahead if you want to explain what it is.

Lenore Bellinger: My doctor actually sent a letter to John Duesler back in 2016, what my disabilities were. And, I really don’t think that’s any public knowledge under the HIPAA laws, that it needs to go out to everyone.

Chair Douglas Purcell: OK.

Lenore Bellinger: But, I assure you I have disabilities. I’ve been in four major car accidents. One, I had to be cut out of the car. I have a hairline fracture in my back. I’m going to need a complete knee replacement. OK. I have – I have a lot of things wrong with me. OK? But, that’s really none of the Board’s or anybody else’s business under the HIPAA law.

Chair Douglas Purcell: I agree with you. You don’t need to go any further.

Lenore Bellinger: I assure you I have sent John Duesler.

Kathleen Ellerby: I understand that. I just – with the way the disability thing keeps throwing out, is that going to cause us any other legal issues with this?

Chair Douglas Purcell: Anything else, Kathleen?

Kathleen Ellerby: No, I guess not.

Chair Douglas Purcell: Frank?

Frank Malagisi: In the Bellinger’s letter they talk about a ten by a hundred-foot pathway to access the shoreline somewhere on the property. I mean, does it exist? To the Bellingers?

Lenore Bellinger: Yes, can I explain – it’s awful staticky – when we first bought the property, it was auctioned off as waterfront rural property. Never in my wildest dreams did we know we were buying wetlands and that’s after we did research in Fulton County. Then, the Assessor’s Office came out and they reassessed the property and they said here, this is your ten by one hundred footpath.

Frank Malagisi: So, you know where it is?

John Bellinger: They didn’t tell us exactly.

Lenore Bellinger: They didn’t tell us exactly where it was, but we paid taxes on it and they told us that’s where I’d be able to access my shoreline, which again has been false.

Frank Malagisi: OK. So, when you purchased the property, you bid it and you were granted it by a bid through a quick deed, right?

Lenore Bellinger: Yes.

Frank Malagisi: Is that how you obtained the property?

Lenore Bellinger: Yes.

Frank Malagisi: So, when you take that property and you obtain it the way that you did, you take on the responsibility as-is. The property as-is is yours. It was up to you to decide if you wanted the property or not. Did you actually go out and visit the property, when you bid on it?

Lenore Bellinger: Yes. I went out to visit the property. I went to the County. I did research. I went to Fulton County and asked about the property. They said that the former owner was paying taxes on rural waterfront property. There’s a difference between taxing somebody on rural waterfront property than there is wetlands.

Frank Malagisi: But, you had a visual – you had a visual on what you were buying, correct?

Lenore Bellinger: I understand, but I also indicated to Fulton County: is this so? They said that this is waterfront property. I did my research. I even went to the Army Corps of Engineers. I did research to see if there was any wetland maps on that property: none existed. The only thing I ever found was after my husband and I invited the Army Corps of Engineers to come out was APA, Mary Odell came out in 2009 and put some flags out, apparently, but she never documented that that was wetlands. The Army – we invited the Army Corps of Engineers on July 7, 2016 to come out. OK? And they told us what was wetlands and what wasn’t. Otherwise, there was no wetland map. There was nothing. And, Fulton County was collecting taxes on waterfront rural property. Otherwise, I would never have invested my money on a piece of property that has a half acre of wetlands. Then I’m just supposed to sit there and watch everybody enjoy the lake.

Frank Malagisi: But, it was your [speaker was interrupted by Lenore Bellinger]

Lenore Bellinger: Give me a [inaudible]

Frank Malagisi: It was up to you at that point, mam. It was up to you at that point, because you bid on the property, you agreed to take access of it as-is when you made the bid.

Lenore Bellinger: I understand when properties are auctioned off – and, I still have the book – they’re auctioned off as in-arrears, wetlands, waterfront, corner lots. And, I still have the book. It says rural beautiful waterfront property. That’s what it says. I still have that book from Fulton County.

John Bellinger: And that’s how it was taxed when we [speaker was interrupted by Lenore Bellinger]

Lenore Bellinger: That’s how it was taxed. So, when the Assessor’s Office came

[Multiple people speaking simultaneously.]

Frank Malagisi: That ten foot by hundred-foot pathway: you don’t know where it is? Have you done any research on that?

John Bellinger: They changed that afterwards. After we had bought that, they changed that.

Lenore Bellinger: Yes. After we bought that and we brought it up to them that they had fraudulently mislead us to believe that it was something else, the Assessor’s Office came out and they said – the same pathway that I want to access my shoreline that APA says, oh no, you can’t walk over that, because that’s wetlands, the Assessor’s Office came out and said, right here, this is ten foot by hundred-foot pathway. You can use this to access the shoreline. I have never, ever walked to the edge of that property. I can’t walk to the edge of that property.

Frank Malagisi: So, you know where that ten-foot right-of-way is?

Lenore Bellinger: I believe I know where it is.

John Bellinger: You – you, as the Town of Caroga, changed that, not us. So, you never gave the coordinates of where is. I own, like, three hundred fifty feet there. So, is that where I can put it in the best I can? Nobody gave me coordinates of what it said.

Lenore Bellinger: And, we’ve been fighting this since 2016.

[Lenore and John Bellinger spoke at the same time.]

John Bellinger: We put it in where it was best for the environment, without trying to go through a little creek or anything else to get to it.

Frank Malagisi: So, is it possible that the ten by hundred-foot pathway does have access to the water?

Lenore Bellinger: Not as far as the APA is concerned. Because, when they came out, they said no, because where your Assessor’s Office said we could put it, now they say no. I’ve been through four entities. I’ve been doing this since 2015, before you changed the law. Before you changed the law. Every year I sit up there and watch everybody having fun and I can’t even walk to my shoreline.

Chair Douglas Purcell: Frank [Malagisi], do you have anything further you’d like to ask?

Frank Malagisi: No, I don’t. I don’t.

Chair Douglas Purcell: Alright. John [Byrnes]?

John Byrnes: Yes. Hi. Can you hear me?

Chair Douglas Purcell: Yes.

John Byrnes: I just wanted to say I feel for Lenore. You know, anybody who owns lakefront property certainly would like to access the shoreline, but I do have two concerns with the, with the dock. First of all, having, like it was stated earlier, you know, most docks are twenty feet long. This one, we’re talking about two hundred, sticking well out into the water. I’m just thinking, you know, safety concerns. People running into it at night. People running into it on a foggy day. Things like that. Second of all, the dock, I was told, was going to be a permanent structure. So, it’s not going to be taken in and out every winter. I don’t know if we’re voting on that tonight, but, I just wanted to say that, you know, any dock that is a permanent structure on one of these lakes around town most likely is going to be – is going to be ripped out in the winter time by the ice. That’s what I’ve seen around town anyway. Those are the two issues I had. Thanks.

Lenore Bellinger: Who was that speaking?

Chair Douglas Purcell: That was John Byrnes, who is a member of the Zoning Board of Appeals.

Lenore Bellinger: OK. Thank you. He didn’t [inaudible].

Chair Douglas Purcell: That’s OK. That’s right. Well is it? He and I are looking at each other, so he knows he’s the one speaking, but, we lose track – this is Doug – we lose track of the fact that not everybody is seeing who is speaking. Does anybody want to – would you like me to go through the criteria? Would you – the Bellingers entertain – we are forty-two days into our sixty-two days’ worth of time to make a final determination on this. There’s been a lot of things brought up that are shortcomings. The way I see it, this meeting – this application has three routes. One would be approval, which I doubt at this point in time would ever happen, given some of the things that have been brought up. That’s just my opinion. The second would be to allow for a tabling of this application and allow you, the Bellingers, more time to put together some of the information that has been highlighted that is missing. Or, the third would be for us to go through the criteria, which has been described and see whether or not you meet the criteria in order to proceed with this application, which could very well result in a denial and have you resubmit it at a later date with the rest of the information. I’m not sure how the rest of the board feels with regard to that. If you’d like to weigh in, certainly feel free to.

Frank Malagisi: Doug [Purcell], I think we need to address the application as is.

Chair Douglas Purcell: OK.

Frank Malagisi: I think we need to go through the criteria and then we should make a decision.

Chair Douglas Purcell: Does the rest of my Board agree with that? John [Byrnes], Kathleen [Ellerby], you happy with that?

Kathleen Ellerby: Yes.

John Byrnes: Yes.

Chair Douglas Purcell: John [Byrnes], I see you shaking your head.

John Byrnes: Sorry, I was on mute. Yes.

Chair Douglas Purcell: That’s all right. I’m going to go through the criteria. Then, we’ll see if we proceed. To allow use, not otherwise allowed in zoning, an applicant must demonstrate to the Board unnecessary hardship. Such demonstration includes all of the following for each and every permitted use.

Chair Douglas Purcell: Number one, cannot realize a reasonable return, substantially shown by competent financial evidence. [Noise from John Byrnes PC] Frank [Malagisi], do you feel they’ve done that?

Frank Malagisi: You came in all broken up Doug [Purcell]. I only heard parts of it.

Clerk James Long: I’m going to ask – wait, wait Doug [Purcell]. Hold on a second. This is James Long speaking.

Chair Douglas Purcell: Got you.

Clerk James Long: John, John Byrnes, I’m – it’s really your mic, I think, that is having the noise problem.

Lenore Bellinger: Can’t hear nothing.

Chair Douglas Purcell: OK. Muted it. [Muted John Byrnes microphone.]

Clerk James Long: OK. Much better. Thank you. Thank you.

Chair Douglas Purcell: Alright. I’ll go through it again. To allow use, not otherwise allowed in zoning, an applicant must demonstrate to the Board unnecessary hardship. Such demonstration includes all of the following for each and every permitted use.

Chair Douglas Purcell: Number one, cannot realize a reasonable return, substantially shown by competent financial evidence. Frank [Malagisi]?

Frank Malagisi: They didn’t say anything about financial evidence.

Chair Douglas Purcell: OK. Kathleen [Ellerby], you agree with that?

Kathleen Ellerby: Yes, I do.

Chair Douglas Purcell: John [Byrnes], you agree with that?

John Byrnes: Yes.

Chair Douglas Purcell: And, I agree that they have not demonstrated.

Chair Douglas Purcell: Secondly – John [Byrnes] mute. Thank you. The alleged hardship is unique and does not apply to a substantial portion of the district or neighborhood. Frank [Malagisi]?

Frank Malagisi: It is unique, because of the location of the property on the lake. I’ll say that.

Chair Douglas Purcell: OK. Kathleen [Ellerby]?

Kathleen Ellerby: I’ll agree to that, too.

Chair Douglas Purcell: John [Byrnes]?

John Byrnes: I agree.

Chair Douglas Purcell: My, my comment would be that it is unique in that it is one of the few properties abutting lake within the Town of Caroga where docks are not permitted. I will acknowledge that there are some fifteen other parcels, at least, on that lake or other smaller lakes that have the same restriction.

Chair Douglas Purcell: Number three, that the requested variance will not alter the essential character of the neighborhood.

Frank Malagisi: It will alter the characteristics of the neighborhood. It’s, it’s very big.

Chair Douglas Purcell: OK. Kathleen [Ellerby]?

Kathleen Ellerby: I agree, because it’s so long – even though the water’s shallow – it, it, yes, it would.

Chair Douglas Purcell: OK. John [Byrnes]?

John Byrnes: I agree. It will alter it.

Chair Douglas Purcell: And, I agree, primarily with the comments from the audience that allowing that has the potential of setting a precedent that we’ll have a whole series of docks, potentially – once you open the floodgate for one, then you open it for all.

Chair Douglas Purcell: Number four, alleged hardship has not been self-created. Frank?

Frank Malagisi: I don’t think it’s been self-created. No.

Chair Douglas Purcell: Kathleen [Ellerby]?

Kathleen Ellerby: I don’t think it was either.

Chair Douglas Purcell: And, John [Byrnes]?

John Byrnes: No. I don’t think so.

Chair Douglas Purcell: And, I will say that I do not believe that it was self-created. I think it’s unfortunate that the process of obtaining a dock permit from the groups that were responsible for permitting this took so long that during this process of it, our Zoning Ordinance changed and that there is some merit as to whether or not the Planning Board at some point in time, wants to go back and go through and review whether or not these types of properties, in general, should be allowed to have Use by Right for docks.

Chair Douglas Purcell: On that basis, if we approve – first of all, technically, since we have not answered these in the affirmative, for each of the cases, there is no way we can grant this, so I’m going to ask if there’s a motion to deny the Use Variance?

Frank Malagisi: Doug [Purcell], the way that the application was presented, I make a motion to deny.

Chair Douglas Purcell: Is there a second?

Kathleen Ellerby: I’ll second.

Chair Douglas Purcell: James [Long, Clerk], I’m going to ask you to do the roll call vote.

Clerk James Long: Yes, sir.

Chair Douglas Purcell: A yes vote denies the application. A yes vote is a no action.

Clerk James Long: A no vote is no action. Let me just correct you on that.

Chair Douglas Purcell: OK. A yes vote denies the variance. A no vote is a no action.

Clerk James Long: No action by the Zoning Board of Appeals and further action would be required.

Chair Douglas Purcell: Yes.

Clerk James Long: OK. I’m going to start with Chair Douglas Purcell?

Chair Douglas Purcell: Yes, I vote to deny.

Clerk James Long: OK. Kathy Ellerby?

Kathleen Ellerby: Yes.

Clerk James Long: John Byrnes?

John Byrnes: Yes.

Clerk James Long: And, Frank Malagisi?

Frank Malagisi: Yes to deny.

The motion to deny the variance was approved unanimously.

Chair Douglas Purcell: Alright. John and Lenore, you’re still on there speaking. I apologize that this has taken as long as it has and further apologize that we don’t feel at this point that your application meets the criteria necessary to grant this. You can pursue a re-submission with the proper information, if you think you can address those issues that we’ve raised, or keep your fingers crossed that the Planning Board at some point will go through a review and rezone that property – they aren’t going to rezone it – but at least review whether or not a Use by Right for docks is appropriate for that. I appreciate your time and [speaker was interrupted by Lenore Bellinger]

Lenore Bellinger: Well, you guys will be hearing for our attorneys. Thank you and have a very nice night.

Chair Douglas Purcell: Alright. Thank you.

Treg Lewis: Thanks everybody.

Chair Douglas Purcell: I appreciate everybody’s patience in waiting for the other applicants.

Chair Douglas Purcell: At this time, I will open the public portion of the meeting [8:07pm] to hear Application Z2020-02, by Lynn Garski for an Area Variance to build a garage at 621 South Shore East Caroga Lake Rd. The issues for this request are both area coverage and side yard setbacks. Lynn, I would ask you to describe what is proposed.

Lynn Garski: We are looking to put a garage on the property replacing one that was on the property and removed previously. We can locate the garage where the previous garage was, however, this variance request is due to the increase in coverage exceeding the 10% maximum allowed and I am looking to have the garage located on the other side of the property where there is currently a driveway, access to the propane tanks and the entrance to the residence instead of the left hand side. This will eliminate the need to create and maintain two driveways and therefore more efficient maintenance and a better looking property. The plan is to plant grass on the left hand side of the home. The size garage that is proposed is a standard size garage, 12 foot by 24 foot, which takes the coverage over the 10% allowed. The location of the garage, in order to line up with the driveway, results in an encroachment of 3.2 feet on the right hand side yard setback.

Chair Douglas Purcell: I would to point out that the proposed structure results in a total coverage of 12%, 2% over the allowed coverage of 10% maximum, not a 10% overage.

Chair Douglas Purcell: Is there anybody in the audience that wishes to make any comments relative to this application?

Chair Douglas Purcell: Hearing none, James, was there any correspondence?

Clerk James Long: No, there was no correspondence.

Chair Douglas Purcell: With no further comments, we’ll close the public session of this meeting [8:18pm] and the board will go into closed session to discuss the application.

Chair Douglas Purcell: Kathleen, I’ll start with you.

Kathleen Ellerby: You mentioned snow plowing, is the property was used seasonally or all year-round?

Lynn Garski: We do use the property during the winter from time to time. Therefore, in order to access the property, the driveway does need to be maintained.

Kathleen Ellerby: In as much as the original garage was removed due to the condition of the structure and to reduce existing coverage and allow for the addition of porches for the main structure, I can see where there is a need for a garage.

Lynn Garski: Yes, there need for a garage for storage as well.

Chair Douglas Purcell: I can concur with the need for a garage as I face the challenges of owning two cars with a one car garage.

Frank Malagisi: Are there any other sheds on the property?

Lynn Garski: No.

Frank Malagisi: Do you have a survey map of the property, specifically for the side yard line in question?

Lynn Garski: There was a drawing was included with the application.

Frank Malagisi: I’m more concerned about a survey.

Lynn Garski: A survey was done previously, however, the markers are no longer present. However, Steve Smith who provided the drawing for the application, used the prior survey as reference for the drawing and nothing has changed.

Frank Malagisi: My concern is without the line marked, I want to assure that the garage is not inadvertently placed on a neighbor’s property.

Lynn Garski: The structure is not going to be on a neighbor’s lawn.

Frank Malagisi: My concern is that with the pins moved or missing, there can be no assurances that the garage is properly located.

Lynn Garski: Are you asking us to provide the survey or resurvey the property prior to construction.

Frank Malagisi: A full survey might not be required, but at least the property line on the right hand side where the garage is being constructed.

Chair Douglas Purcell: For clarification purposes, Frank are you indicating that a condition might be placed should a motion be made to approve the application that the line be surveyed prior to the permit being issued.

Frank Malagisi: Yes.

Lynn Garski: That would be acceptable.

John Byrnes: I have no additional concerns or comments.

Chair Douglas Purcell: My questions have been answered as the proposed garage could be located on the left hand side of the property without requiring a variance for side yard setback, however, the Area Variance for area coverage would still have been required.

Chair Douglas Purcell: With no further questions or comments, I will go through the criteria for an Area Variance: In making its determination on an Area Variance application, the ZBA shall balance benefit to the applicant with detriment to health, safety and welfare of the community. In making such determination, the ZBA shall also consider:

1. Whether the benefit can be achieved by other means feasible to the applicant.

Kathleen Ellerby: It could be achieved by locating the garage on the left hand side of the property.

Chair Douglas Purcell: I agree, but an Area Variance for percent coverage would still be required.

Frank Malagisi: I agree but the overage in percent coverage is not substantial.

John Byrnes: No.

2. Whether an undesirable change in the neighborhood character or detriment to nearby properties.

All ZBA members said no.

3. Whether the requested Area Variance is substantial.

All ZBA members said no.

4. Whether the request will have an adverse physical or environmental effect.

All ZBA members said no.

5. Whether the alleged difficulty is self-created, which is relevant, but not determinative.

All ZBA members said no.

Chair Douglas Purcell: If approved, the ZBA shall grant the minimum variance necessary and may impose reasonable conditions. Could I have a motion.

Frank Malagisi: I make the motion to approve the Area Variance with the condition that the applicant provide a survey of the line between the two points representative of the left side yard boundary where the structure was to be built.

Kathleen Ellerby: I second the motion.

Chair Douglas Purcell: A yes vote will be to grant the application and a no vote will be to deny it.

Roll call vote:

Douglas Purcell: yes.

John Byrnes: yes.

Kathleen Ellerby: yes.

Frank Malagisi: yes.

Chair Douglas Purcell: This approval will be referred by the ZBA to the Adirondack Park Agency (APA). The APA has 30 days after it receives a complete referral to reverse the granting of the variance. If the variance is granted by the ZBA and not reversed by the APA, then building plans would be reviewed and a determination made about whether to issue a building permit by the Town of Caroga Code Enforcement Department.

Lynn Garski: Could someone explain the process of the referral and review to the APA.

Clerk James Long: A decision letter and the minutes of this meeting will need to be prepared and put together with an application for referral to the APA. At that point, the APA determines if the package is complete and once deemed complete the 30 day clock starts. At the end of the 30 days, there could be a reversal, ruled non-jurisdictional or no response.

Chair Douglas Purcell: At this time, I will open the public portion of the meeting [8:28pm] to hear Application Z2020-03 by Eugene Schramm for an Area Variance to build a deck at 166 North Shore West Caroga Lake Rd. Shoreline set back is at issue. Eugene Schramm would you please describe what is proposed.

Eugene Schramm: I am looking to replace an existing approximately forty-year-old, unstable deck down by the waterfront on the property which I recently purchased. I am looking to make the deck a little bigger, 8 feet by 20 feet, which is greater than 100 square feet and therefore requires a variance. The reason for wanting a deck a little larger is so my family and grandchildren have a place to go down by the water to relax and enjoy the lake and the dock. The house is situated on the other side of the road from the lake with no attached deck to view and enjoy the lake. I want to have something down by the water that will accommodate quite a few people, to enjoy the lake and at the same time clean-up the lakefront.

Chair Douglas Purcell: Is there anybody in the audience that wishes to make any comments relative to this application?

Chair Douglas Purcell: Hearing none, James, was there any correspondence?

Clerk James Long: No, there was no correspondence.

Chair Douglas Purcell: With no further comments, we’ll close the public session of this meeting [8:30pm] and the board will go into closed session to discuss the application. Kathleen, I’ll start with you.

Kathleen Ellerby: Would it be possible to enlarge from the existing deck which is 5 by 8 and increasing it to 5 by 20 which would meet the 100 square foot limitation?

Eugene Schramm: In working with the contractor and the terrain limitations with the property being on downhill from the road to the lake front that the 8-foot-wide and 20-foot-long would fit best in the area.

Kathleen Ellerby: Would it be possible to reduce the width from 8 ft. to 5 ft.?

Eugene Schramm: The 5 ft. width would be too small to hold very many people with lounge chairs or lounge in the sun. A 5 ft. width would be kind of tight.

Frank Malagisi: Is this going to be a permanent fixture?

Eugene Schramm: It is going to be permanent. It would not be in the water. The deck is going to be on the ground, the dock is going to be removable. The 8 by 20 deck just fits in a level spot on the property by the dock.

Frank Malagisi: Is this a separate parcel from the house?

Eugene Schramm: It is all one parcel.

Frank Malagisi: Is the current deck 5 by 12 or 5 by 10?

Eugene Schramm: It is approximately 5 by 10.

Frank Malagisi: Why is the structure needed with all of the grass area?

Eugene Schramm: The grassy area is either wet or on a slope whereas the deck provides a nice platform to hang out on.

Frank Malagisi: A little excavation could make it flat and patio pavers could give you that area that you need.

Eugene Schramm: That is probably the case, but that I am looking to put a deck in.

Frank Malagisi: Is there a decking system all the way down from the steps, midway down?

Eugene Schramm: No, there is a small deck at the top of the hill with steps that go down the hill a little bit before it goes onto grass, probably 100 feet down to the water.

Chair Douglas Purcell: I agree with Eugene’s description of the existing structures on the lake side of the property.

Frank Malagisi: Would you consider an 8 foot wide by the current length?

Eugene Schramm: Again, I would not be able to get very many people, maybe 5 people, on a deck that small. I would like to have a deck where people can sit or lie out and not need to be on the grass.

John Byrnes: I have no additional concerns or comments.

Chair Douglas Purcell: My questions have been partially answered but there is some confusion in that the variance application states that this structure replaces an existing 8 foot by 5 foot structure, while the original building permit application stated that this structure replaces an existing 8 foot by 12 foot structure. Based on my inspection, the existing structure appears to be closer to the 8 foot by 12 foot structure with a 5 foot wide portion that is cut out to avoid a rock formation, which appears to be difficult to work around under the best of circumstances.

Eugene Schramm: I did not prepare the application by measuring with a tape measure, but from the inspection it should be apparent how small the existing structure is and how few people it could accommodate.

Chair Douglas Purcell: There is also a roughly 5 foot by 4 foot staircase by the existing deck leading down to the deck and there is no mention of this structure in the proposal.

Eugene Schramm: The stairs onto the existing deck are going to be removed, but that the new deck would have a few steps depending on how the new deck sits. I thought he had added them on the drawing.

John Byrnes: The steps are indicated in the top left corner of the drawing.

Chair Douglas Purcell: OK, I see them now.

Frank Malagisi: Doug, could you confirm your measurements?

Chair Douglas Purcell: The existing structure is 8 feet by 12 feet, essentially 96 square feet with 20 square feet of steps. There is a small cut out area getting around the rock. There was also a wooden structure off to the side that might have been support at some time.

Eugene Schramm: Again, the existing structure, after 40 years, is in poor shape and may have had portions taken away at some point in the past. I am looking to clean things up down there so there is a decent place to sit by the water.

Frank Malagisi: Are the 4 foot by 12 foot dock sections planned to be removable every year?

Eugene Schramm: Yes, they are.

Chair Douglas Purcell: If there are no further questions or comments, we can proceed to the SEQR review. As this is an Area Variance construction or expansion of a primary or accessory, nonresidential structure or facility involving less than 4,000 square feet of gross floor area, this is a Type II Action and no further SEQR review is needed.

With no further questions or comments, I will go through the criteria for an Area Variance: In making its determination on an Area Variance application, the ZBA shall balance benefit to the applicant with detriment to health, safety and welfare of the community. In making such determination, the ZBA shall also consider:

1. Whether the benefit can be achieved by other means feasible to the applicant.

Kathleen Ellerby: No

Frank Malagisi: No

John Byrnes – No

Chair Douglas Purcell: I feel that the applicant could achieve the desired result with a 96 square foot deck which would not require a variance.

2. Whether an undesirable change in the neighborhood character or detriment to nearby properties.

All ZBA members said no.

3. Whether the requested Area Variance is substantial.

Kathleen Ellerby: No

Frank Malagisi: No

John Byrnes: No

Chair Douglas Purcell: I feel that the request is substantial in that the proposed structure is at the shoreline, but agree that seems like the logical place for such a structure but it is twice the size that I would like to see. One other way to achieve enjoyment of the lake would be to have a wider dock in as much as the current ordinance allows the dock width to be 8 feet wide.

4. Whether the request will have an adverse physical or environmental effect.

All ZBA members said no.

5. Whether the alleged difficulty is self-created, which is relevant, but not determinative.

Kathleen Ellerby: Yes

Frank Malagisi: Yes

John Byrnes: No

Chair Douglas Purcell: No

Chair Douglas Purcell: If approved, the ZBA shall grant the minimum variance necessary and may impose reasonable conditions. Could I have a motion?

John Byrnes: I make the motion to grant the Area Variance.

Kathleen Ellerby: I’ll second the motion.

Chair Douglas Purcell: A yes vote will be to grant the application and a no vote will be to deny it.

Roll call vote:

Kathleen Ellerby: yes.

John Byrnes: yes.

Frank Malagisi: yes.

Chair Douglas Purcell: no.

Chair Douglas Purcell: This approval will be referred by the ZBA to the Adirondack Park Agency (APA). The APA has 30 days after it receives a complete referral to reverse the granting of the variance. If the variance is granted by the ZBA and not reversed by the APA, then building plans would be reviewed and a determination made about whether to issue a building permit by the Town of Caroga Code Enforcement Department.

Clerk James Long: A decision letter and the minutes of this meeting will need to be prepared and put together with an application for referral to the APA. At that point, the APA determines if the package is complete and once deemed complete the 30 day clock starts. At the end of the 30 days, there could be a reversal, ruled non-jurisdictional or no response.

Chair Douglas Purcell: At this time, I will open the public portion of the meeting [8:46pm] for a review of Application Z2020-04 by Robert Baker & Lorraine Mott for an Area Variance to demolish two camps and a garage and rebuild two new structures and a new garage at 118/120 Webster Road. At issue are shoreline setback, side yard setback, front yard setback and area coverage. Fred [Franko], presuming that you are here to speak on behalf of the applicant, I would ask you to describe what is proposed.

Fred Franko: Ms. Mott and Mr. Baker are interested in converting a couple of existing camps that are in questionable shape to a couple of permanent residences. The existing camps are small and built the way that camps were built back in the old days so they are not up to contemporary standards in terms of stair slopes and room size. The intent is to keep as much as we can to the existing footprint, but to do some minor enlargements to the camp in order to make it more suitable for contemporary standards and a permanent residence. We have used, and you can take a look at the site plan to see, I have a conceptual site plan that we have included, there are shaded areas on the proposed plans that show where we are actually expanding from the existing footprints. So the intent is that it’s a very minor expansion as much as possible. If you take a look at the site plan and you were going to go by contemporary ordinance requirements, you basically end up with a 10 to 12 foot swatch through the middle of the property that really is the only buildable area on that site. Recognizing that we are trying to minimize the impact on any of the setbacks as well as the shoreline setback, we’ve used the existing buildings as kind of an anchor and built out from them as little as we could do, but bringing them up to contemporary standards. The overall intent of the design of the building is to make it in the Adirondack style and I actually included a rendering that I did up that represents some of the great camps of the Adirondacks. So it’s intended to be in the spirit and sort of general design that you look for in the Adirondacks. That’s what I’ve got at the moment.

Chair Douglas Purcell: Is there anybody in the audience that wishes to make any comments relative to this application?

Barbara Pedley: I’m the next door neighbor and we don’t have any objections to the building. We saw the plans and we think they’re fine.

Chair Douglas Purcell: Thank you for your tenacity in staying with us to comment. Anybody else?

Lorraine Mott: Speaking on behalf of Bob and myself, thank you Barbara, thank you Fred and thank you ZBA for your time and consideration for this. We summered at this lake for 5 years and really thoroughly enjoyed our property. We both recently retired and we decided to make this our permanent home. We sold our home and therefore we have to make our seasonal lake houses into four seasons. The reason for our design that Fred has done for us is that we’ve both grown up in the Adirondacks and we definitely respect its beauty. We are stewards of this wonderful resource and we plan to play a large part in keeping it that way. We are proposing to do this in two phases starting with the small cottage and garage and then moving onto the larger home, maybe a year or two later. As Fred said, as most camps go, the space is limited. When we sold our home this past summer, we realized how limited we really were with no closets, no storage. That’s why we are proposing what we are.

Chair Douglas Purcell: Thank you for our comments. Being someone who retired up here and went through similar circumstances some 14 years ago, I can appreciate all of the comments you just made.

Chair Douglas Purcell: Are there any others who would like to comment?

Chair Douglas Purcell: James, was there any correspondence?

Clerk James Long: No, there was no correspondence.

Chair Douglas Purcell: With no further comments, we’ll close the public session of this meeting [8:57pm] and the board will go into closed session to discuss the application. Fred, I wanted to point out to you that I note that you on behalf of the applicant has asked for a review of the decision of the code officer in your application for the Zoning Board of Appeals. I think that is probably a mistake on your part, just not familiar with the question on the form. But clearly, the Code Enforcement officer did make a proper decision in denying the original building permit. The only way that he would have been able to approve the building permit would have been if the dimensional standards were such that it covered the same footprint. But as long as the dimensional standards that are being proposed do not meet it, he had every obligation to deny the building permit. Again, Fred, I believe it’s just a mistake on your part.

Fred Franko: Absolutely, and I’ll be happy to amend that if you’d like.

Chair Douglas Purcell: No, that’s not necessary. Kathleen, I’ll give you the opportunity to ask any questions, make any comments about this application.

Kathleen Ellerby: If I’m looking at this drawing where it says Baker/Mott residence concept site plan on the very first page, where you have the diagram of the proposed residence, the proposed garage slash storage shed and proposed camp, where on this drawing are the side entrances to the house and the camp?

Fred Franko: The side entries?

Kathleen Ellerby: Yes.

Fred Franko: Is that what you’re asking? In the area between the two buildings, the camp and the residence, you can see in that plan a couple of doors that are in-swinging on either side of that area between them.

Kathleen Ellerby: OK.

Fred Franko: If you look at the 42 foot dimension between them, one door’s to the left of that and one door’s to the right of that and that’s how you enter the camp. There’s also a front door out just above where the name proposed residence is and that’s another entry into the main house.

Kathleen Ellerby: Why I was asking is because if you moved the proposed breezeway to connect where those side doors are that would push the garage, storage shed back and give you move footage in the front. That’s my reason for asking.

Fred Franko: Understood, so you’re proposing like maybe sliding it right up to where the edge of the breezeway shows now, is that correct?

Kathleen Ellerby: Where the breezeway is now, put the breezeway where the side entrances to the two buildings are.

Fred Franko: The only thing that makes that a little challenging is the access to the garage is from the left hand side of the garage itself. The further that gets pushed up, the less you, you really don’t have much room to get a car in through the doors there.

Chair Douglas Purcell: I can see that.

Fred Franko: Is that clear?

Kathleen Ellerby: OK. In all of the other papers, there was nothing that showed what the garage actually looked like. This is why I was asking. It was just to get more footage in the front.

Fred Franko: Understood.

Chair Douglas Purcell: Did you have any other issues or concerns Kathy?

Kathleen Ellerby: The only other thing that I see is that being as it is a single family residence, then why is it still listed as a camp on one side and a main house on the other? It just seems like it’s still two different residences, not one.

Fred Franko: I think that the intent is that they’re sort of connected to each other. The breezeway sort of brings the whole assembly together. The intent is that the camp itself, which is the smaller building, would be constructed first, just because it’s deeper into the site. Then you’re working from the deepest part of the site and then you have construction access as you back out of the site. Both of the buildings were existing on the property so I can’t speak to the original intent. Again, our main story was that we were trying to, as much as possible, maintain the footprint.

Kathleen Ellerby: OK, thank you, that’s all I had.

Chair Douglas Purcell: Frank?

Frank Malagisi: Is this all one parcel, or is it two?

Fred Franko: That’s correct, it’s one parcel.

Frank Malagisi: With two camps on it?

Fred Franko: Two structures, yes. Two camp structures, yes.

Frank Malagisi: How much closer to the water are we going?

Fred Franko: About six feet.

Lorraine Mott: Just in that small area, right?

Fred Franko: Correct, that would be on the left hand side of the proposed residence. I think there’s a dimension on the left hand side that actually says six foot.

Frank Malagisi: And there’s only one septic system?

Fred Franko: Correct, but there’s also included in the package, the existing septic system, and Lorraine, you correct me if I’m wrong, is just a pumped out tank system?

Lorraine Mott: That’s correct.

Fred Franko: We’re putting in a full septic system and in the package we’ve included a right of way and description of were that leach field is. It’s going to be pumped uphill. This is courtesy of the Pedleys, that are allowing a right of way onto their property for that. Again, that agreement is included in the application package. So we’re taking, it doesn’t really have a full septic system. They pump it out half a dozen times a year. We’re converting that into a fully legal and certified septic system.

Frank Malagisi: That’s the proposed camp?

Fred Franko: The residence, and I think really both that will be feeding it.

Lorraine Mott: Yes.

Frank Malagisi: The location of the well for the proposed residence, is right in the back and its close to the septic system.

Lorraine Mott: Yes, that is not a useful well. We will be drilling another well, around by, behind the storage shed or something like that I think.

Frank Malagisi: Behind the storage shed? OK.

Chair Douglas Purcell: There’s a storage shed over on the left hand side.

Fred Franko: I apologize that the existing survey included that well as an existing feature of the site.

Lorraine Mott: Yes, currently we take the water from the lake so we will have to drill a well to be year-round.

Frank Malagisi: And each structure is going to have their own kitchen, bathroom?

Lorraine Mott: Yes

Fred Franko: Yes, but the septic system will be sized accordingly.

Frank Malagisi: I know, but if it’s on one parcel, I know it’s pre-existing now. Is there any way we can make that six feet going closer to the water go away?

Fred Franko: We stand on our request, but obviously it’s within your purview to adjust it however you see fit. We are pleased to follow the rules.

Frank Malagisi: It looks like a deck, how big of a deck is that without the six feet?

Fred Franko: That’s actually not a deck, that’s part of the building itself.

Frank Malagisi: That’s part of the building?

Kathleen Ellerby: Is that part of the master bedroom and the patio?

Fred Franko: Correct. The bedroom is the bump out and then it just a solid patch of ground outside of the door to the master bedroom.

Frank Malagisi: I don’t have any other questions Doug.

Chair Douglas Purcell: John?

John Byrnes: I was just going to ask about the septic system as well, to make sure that it covers, to make sure that it’s big enough to cover both camps. And it sounds like it is.

Chair Douglas Purcell: I think some of my concerns have already been covered. When I was reviewing the property, I noticed the well behind the one structure and what looked like a concrete structure in the ground behind what’s called the camp and I assume was probably where your septic or pump out is. Those are the two issues that would prevent you from instead of moving closer to the lake moving back. And now that you’ve described the issue with the garage and access to the garage, I also understand why you wouldn’t want to move back because you wouldn’t be able to get in the garage.

Fred Franko: Correct.

Chair Douglas Purcell: I do have some concerns about the garage moving closer to the front setback. I recognize that, as things currently stand, it does not appear that that portion of the road is maintained by the town highway department, however, that doesn’t mean that at some point in time in the future, that it wouldn’t be maintained by the highway department. So I clearly have some concerns about the fact that the garage is moving closer to the road. And the other issue is one that Frank has alluded to, I really hate moving closer to the lake. And based on my prior experiences with variances, the Adirondack Park Agency is not always that amenable to those instances when we have granted it, to allow you to go closer. So I guess my question is instead of moving things closer, couldn’t you have availed yourself of some of the land in between, which becomes kind of the courtyard for your great camp, such that the bump outs went to the inside as opposed to towards the lake? And I’m going to guess, Fred, from what you’ve said that you’d like us to weigh on the merits of what you’ve presented as opposed to us trying to put additional conditions or restrictions on you.

Fred Franko: Yes and no. We’re happy to work with, as I say, we play by the rules. The one thing I will say, regarding the garage, the actual access to the road is off in, I’ll call it the north corner, the left hand side of that site plan rather than along the property line next to where the garage is. That’s actually an adjacent property, and it’s pretty heavily wooded and overgrown and a long way away from the next parcel, the next building. That being said, there certainly is an opportunity, we could reconfigure the space and expand into that courtyard a little bit. In essence, I don’t know how it plays with the APA, but that is still expanding within the shoreline set back, it’s just not headed towards the water.

Chair Douglas Purcell: Correct, I totally agree with you Fred, I’m just throwing it out there. Now, I’m going to ask the question a little bit differently than what Kathleen did, I think I know where she was going, and it’s one of the questions in the back of my mind I had as well. Why do we need two structures? Why do we need a cottage and the house? Why not tear the both of them down and build one? Would that give you the space that you feel that you need, other than the fact that you’ve got existing footprint?

Lorraine Mott: From our point of view, we have a large family. We have three daughters. We’ve just started with grandkids. We know there will be more. And this is that kind of space for when the families are there to visit. We need that extra space.

Chair Douglas Purcell: And I want you to understand that I would be remiss in not at least asking the question to clearly understand. In my mind, that’s what I thought, but I really shouldn’t make any assumptions. I wanted to hear you as the applicant say that. We took a different approach. We expanded out towards the lake, stayed outside the 75 foot setback and increased our space on our second floor, which we never use, except when we have company, but to each his own. I clearly understand, I just wanted to hear you say it.

Frank Malagisi: Was it ever two parcels?

Fred Franko: Honestly, I have no idea.

Lorraine Mott: Not that we are aware of.

Frank Malagisi: Because when the address says 120 Webster and 118, I think it is. That’s what kind of threw me off a little bit.

Chair Douglas Purcell: Well, I a little bit confused about that as well, because in all honesty, the application references two parcels.

Frank Malagisi: I mean if it’s two parcels

Fred Franko: If I could clear that up, if you look at the site plan, both of them for that matter, there’s a triangular wedge, up on the left hand side, the north side of each site. That’s the second parcel that was added, I believe I’ve got documentation included that notes how that was added to the property. That’s the second parcel. It took me a little while prowling around the website to discover that.

Chair Douglas Purcell: Then, I’m going to ask the next obvious question. When you talk about the lot coverage and the site square footage, is it both parcels or one?

Fred Franko: It’s the entire singular parcel that includes that triangular area and everything else around the total boundary of the site.

Chair Douglas Purcell: Without those two parcels being combined as one, I don’t believe you can calculate the coverage including that square footage. You would need to exclude it.

Fred Franko: Understood, but they are combined as one. The documentation that did that is actually, I think, included in the documentation I submitted on that. They were platted together.

Clerk James Long: Asking a question, hopefully not out of order, are you saying that you have filed with Real Property, paperwork to merge those two parcels into one so that they are legally one parcel?

Fred Franko: It’s been already done, I believe.

Clerk James Long: Thank you.

Frank Malagisi: Because I purchased a piece of property and merged it with my current property. One of the things that I had to do was show that I didn’t have a kitchen or a bathroom in the second structure that was coming into the existing property.

Fred Franko: Understood.

Frank Malagisi: We have two bathrooms, two kitchens, the bathrooms aren’t, the kitchens because it was eating space. That’s why I asked the question if it was separate parcels or one current parcel. Because I don’t think it’s correct, at that point, to have both. Just going off my own experience.

Fred Franko: Again, just so I’m clear, the parcels, it’s the big parcel which is the sort of trapezoidal shape, that’s what was listed as the one parcel. And then, the second parcel was the triangular slice on the left hand side. And as I say, I think I’ve got the documentation included that shows the transaction of the big larger piece and the little tiny wedge.

Kathleen Ellerby: The only thing I see here on the warranty deed with lien covenant is it says parcel 1, which is 52.14-2-24 is 0.03 acres of land more or less. Parcel 2, which ends in the 23, there’s no mention of what size that lot is at all on this.

Fred Franko: Yeah and that’s how I kind of figured it out because it was such a small piece. That’s how I determined that that was the triangular slice that was included.

Kathleen Ellerby: And then you go back further on the indenture and it’s still listing parcel 1 and parcel 2. I don’t see anywhere on this thing where it was combined.

Fred Franko: I would have to check. I’m not 100% sure. As I have it up on my screen, it is maybe the third page. The document that combines the two parcels, done by the Brandows, the previous owners, parcel 1 containing 0.03 acres of land more or less and then parcel 2, which has the actual boundary description on it. I don’t see the actual total of the acreage. When I looked at it, that included the whole shooting match. Everything in the bigger area and then it was just the triangular piece that was included, which was the 0.03 acres.

Frank Malagisi: Hey Doug,

Chair Douglas Purcell: Are we ready to move forward with making a determination on this?

Frank Malagisi: I would like to talk to John before we actually move forward. I’d like to table it if possible.

Chair Douglas Purcell: Would you like to make a motion to that effect?

Frank Malagisi: I’d like to make the motion to table it so we can talk to the Code Enforcement Officer.

Chair Douglas Purcell: And get some clarification about whether we’ve got one or two parcels here. Is there a second?

Kathleen Ellerby: I’ll second it.

Fred Franco: Can I interject something for a moment?

Chair Douglas Purcell: Go ahead.

Fred Franco: I believe that that package also included a survey that was done by Charlie Ackerbauer. Yeah, Charlie Ackerbauer, which was a survey that described the parcel, it was called existing site survey, and that pretty much shows that as a single parcel, as defined by a licensed surveyor.

Chair Douglas Purcell: Well, Fred, I’ve actually got that map in front of me, it’s a stamped survey by Charles Ackerbauer, and on it, it says tax map numbers 52-14-2-23, 24, which doesn’t really indicate to me that they’ve been combined.

Fred Franco: Fair enough, I think that they used the old names to reference that. Whatever you need in terms of jurisdictional things, there you go.

Chair Douglas Purcell: I think that, given what we’re looking at here, tabling this review at this point in time, we’ve had only had one week, first of all we’re just now accepting, reviewing and accepting whether or not this is a complete document. We’ve got some concerns about whether or not there is a combination of the two or not so I think we need to get that taken care of before we proceed any further. I have a motion on the table and a second. So unless there is some additional discussion from John or myself, I guess I’m going to call for a vote. James – a yes vote will table, a no vote will continue discussion.

Roll call vote:

Chair Douglas Purcell: yes.

Kathleen Ellerby: yes.

John Byrnes: yes.

Frank Malagisi: yes.

Chair Douglas Purcell: Fred and Lorraine, fortunately by tabling, we don’t have quite as much length of time in terms of trying to set this up. In all honesty, with these conference calls, setting up a new meeting is a lot faster than some. I think the difficulty may be trying to get to John Duesler, but it’s very possible that may be by conference call with a conversation between Frank and John Duesler to get some clarification and let Frank report back to us with what the findings are. Because in all honesty, if I try to put too many more people into it, I’m back to having a meeting. Frank, you don’t have a problem taking care of that?

Frank Malagisi: No

Chair Douglas Purcell: So we will get back to the applicants and you, Fred, with this as quickly as we can. I’ll try not to make it last any more than two weeks for sure. If I can do it faster than that, I will. I think it’s reasonable to expect that it might not be until April 1st but we’ll try to do better than that. OK?

Fred Franko: Fair enough.

Lorraine Mott: OK

Fred Franko: If there’s anything I can do to help expedite this I’d be happy to be of assistance.

Chair Douglas Purcell: All right. And again, we’ve barely had this application even presented to us for more than a week. We’re moving as quick as we can. I appreciate everybody’s patience of conducting meetings in this new environment. Other than the fact that it took 2 hours and 20 minutes that it was a fairly good meeting. I appreciate everybody’s efforts. At this point, I would ask for a motion to adjourn. Unless there’s any more business.

Frank Malagisi: I’ll make the motion to adjourn.

Chair Douglas Purcell: Second?

Kathleen Ellerby: I’ll second it.

Chair Douglas Purcell: I’m not going to call for a roll call vote. All those in favor say I.

Kathleen Ellerby: Aye

John Byrnes: Aye

Frank Malagisi: Aye

Chair Douglas Purcell: The meeting is closed.

The meeting adjourned at 9:24pm.

Respectfully submitted
James McMartin Long
Town of Caroga Town Board Member,
acting as Zoning Board of Appeals Clerk and Zoning Board of Appeals Secretary

Copyright © James McMartin Long 2017-2021