Minutes of the Town of Lake George Zoning Board of Appeals held on Thursday, July 8, 2004 at 7:00 p.m., at the Town Center, Old Post Road, Lake George, New York. Members Present: Absent: Also Present: Chairman, Peter Smith Scott Walton John Santiago Karen O Carroll Hoddy Ovitt Laura Moody, Alternate Member Robb Hickey, Zoning Enforcement Officer Patty McKinney Jim Grey Attorney Jon Lapper Jim Miller Fred Vogel, Jr. Fred Vogel, Sr. John Salvador Ruth Rist Attorney Bob McNally Attorney Michael O Connor Chris Navitsky Peter Didio Jim White Marge Gilmore Robert Bovee, Jr. Robert Bovee, Sr. Meeting was called to order at 7:00 p.m., by Chairman, Peter Smith. A motion was made by Scott Walton and seconded by John Santiago to accept the June 3, 2004 minutes. PUBLIC HEARINGS 1. Area Variance Application V20-2004 submitted by Vojac, Inc., to request 12 timeshare units to be built at 1,000 square feet instead of the required 750 square feet. Attorney Jon Lapper was present representing the applicant. This is the fourth and final phase. Three prior phases have been approved. Phase 1 and 2 are constructed and three is under construction. The existing motel building will be torn down and replaced by a lodge building for the final phase. That location is significant because it is a great distance from the lake and because of the slope of the hill and the buildings that block it along Route 9N, it s not very visible from the road as well. It is shielded from the neighbors on both sides by vegetation. When the project was approved in 1996, it was approved for a total of 57 units. Attorney Lapper handed the board members a copy of the 1996 Site Plan Approval from the Planning Board. He stated that the approval does not actually say 57 units. What it says is to relocate and expand the existing units, which were 48, and to build 10 new units.
Attorney Lapper stated that Vojac is seeking 1,000 square foot units because that is what the rest of their units are and that is what the minimum industry standard for timeshare units is. He stated that they can build 57 units as long as the last 12 units are all 750 square foot motel units, because a motel unit requires less land than a timeshare unit. Fred Vogel, Jr.: The 750 square foot issue is kind of a big issue for us. Back in 1990, we started campaigning to change the density regulations here in Lake George regarding square footage. At that time, back in 1990, it was 750 square feet and we went through a number of years showing the different boards, whether it was the Planning Board or the Town Board or there were groups that were put together to study the issues and numerous public hearings about it. The 750 square feet can put together a substandard two-bedroom accommodation. We ve geared all of our marketing towards two-bedroom units for families that is 100% of our property and 750 square feet just doesn t cut it. It didn t cut it in 1990 and it doesn t cut it today. There are approximately 5,000 timeshare resorts around the U.S. right now and the units that were built in the 18970 s and 1980 s were smaller units. The buildings that are being built today are 1,500 square feet or more for two bedroom units. Some of the two bedroom units that we ve stayed in over in Vermont and down in Florida have been 1,750 square feet plus outside porches and stuff like that. Back when all these regulations were being discussed there was a general feeling that 1,000 square feet doesn t get too big and isn t too small. There was kind of a long discussion, but that s kind of where we all ended up. Attorney Lapper: In terms of the issue of the number of people, these would be two bedroom units. The 750 square foot would be two bedroom units also, just smaller bedrooms. This would not be putting any more strain on the sewer system, which was designed to accommodate this. In terms of any kind of an environmental impact, the sewage would be treated on site, just the same. This wouldn t allow any more people to stay in the units, so there would not be any more traffic. Fred Vogel, Sr.: When we went through the process of this approval, which was like 3 or 4 years, this was always thought of to be designed for Cresthaven itself. Attorney Lapper: The Environmental Impact Review was done contemplating 57 1,000 square foot units and what was submitted was the Planning Board approvals that the Planning Board approved the Site Plan just before the Town Board approved the timeshare ordinance, so what the Planning Board approval said is that they can go to 1,000 square feet once the Town Board makes the change and that s what happened. It was approved based upon 57 1,000 square foot units. This would not be any more of an impact than what was contemplated at the time of the approvals. Attorney Jon Lapper: The Town Engineer did a review at the request of the Zoning Officer. In terms of the overall project, he stated that upon review of the plans and the application, we offer the following comments: required lot coverage for the RCH-LS zone is 30% max. The total lot coverage for all phases has been calculated to 10.6%. Therefore, lot coverage is acceptable. Required permeability for the RCH-LS zone is 70% minimum. The total permeable area for the lot for all phases has been calculated to 81%. Therefore, permeable is acceptable. Karen O Carroll: The issue is the minimum land area. I know there were several lots on that property. Have those lot lines been formally, legally removed? Is this one parcel at this point? Attorney Lapper: Because the project is being built in phases, each of the four phases is set up for initial sale to a separate association. The Lodges at Cresthaven I, The Lodges at Cresthaven II, III and IV are separate. Once all of the units are sold or 10 years, they will all be merged into the entity which owns the common property which is the Lodges at Cresthaven Community Association, Inc. That entity will ultimately own everything but the footprints of the units. For right now, that entity owns the beach, the restaurant parcel, the parking lots, the office, all of the amenities, game room, and ultimately everything will be in title with the Community Association when it s all sold.
Karen O Carroll: My concern is that I know that we re looking at the minimum land area. The restaurant currently is on its own parcel at this point and down the road could possibly be sold as a separate entity. Attorney Lapper: It can t be because it s not subdivided. It s part of the beach parcel. It s part of the common property. That property is actually owned by the timeshare owners. The title has already been transferred so they own it. That s one of the amenities. Karen O Carroll: Are we looking at this as a motel unit, the final phase IV? Attorney Lapper: I m making the argument that it can be used as a motel unit without needing a variance just in terms of minimizing the relief, to show you that it s minimal relief that we re asking for. Their intention is to do it as 1,000 square foot timeshares just to finish the project as a complete timeshare project. Under the density provisions of the code, they would be allowed to do a mixed use where they would have some timeshare and some motel and I m just trying to show that they could get 750 square foot motel units, 57 units, but they want to build timeshares. Robb Hickey: The actual variance is for 8 1,000 square foot timeshares. Attorney Lapper: I characterized the opposite because I think that I have a stronger argument by saying that we could have 57 units, including 12 750 square foot motel units, but what Robb is saying is also correct, that you can look at it and say how many 1,000 square foot units can they have and if that number is 49, then you could characterize the variance to allow 8 additional 1,000 square foot units. You also can legitimally look at it and say we have the right to build the 750 square foot motel units. Chairman Smith opened the comments up the audience. Chris Navitsky: I had a couple questions or clarifications on the application. First of all, I understand there will be a Site Plan Review for this because with the granting of this and with basically allowing the footprint to increase by 1/3, it appears that there are areas that they are encroaching into their reserve wastewater areas. That the stormwater facilities are being pushed almost within 5 feet of the stream bank so I think that it s an area of concern. I know that your job is to look strictly at the application which is on the square footage of the units however, that does ripple out into the Site Plan and impacts those areas. Also, a consideration, I believe that they say the impact is insignificant on visual and as the facility is, that probably will be the case. However, many do think that that does have an impact on the lake as it is now. I do not know if it could be possible to get a condition of screening if this variance is granted. There is glare out on the lake and some people view this as a facility that might need some more screening and to blend in a little bit more. Thank you. John Salvador: Many of the points made so far this evening are well taken, particularly with regard to the operation of a timeshare facility. You should appreciate that as this area is allowed to become greater for the unit, it s going to have more utility and more salability and this is going to mean increased use. In the past, we ve conditioned our code regulations around the fact that it s pretty much a seasonal operation and things like wastewater and stormwater facilities get a long chance to rest. This would be the case with a timeshare. A timeshare owner seeks to utilize, rent out, in exchange the time that he doesn t want to use it. This would put a huge burden on the wastewater system. It s one thing to talk about a waste treatment facility, but there s another aspect to the whole operation and that s called infiltration. This site has serious, serious limitations when it comes to infiltration. With this timeshare approach and with these larger units, you re going to have more utility and you re going to have less resting time for the infiltration facility. You talked about lot coverage before; I don t know that the Lake George Town Code requires an applicant to reduce the total area by the undeveloped portions of the site. With regard to
permeability, I don t think the code requires you to subtract the area of the infiltration because that shouldn t be counted as permeable. The Waterkeeper s comments are well taken. This site is overstressed. It s like a lot of other sites along the Bolton Road and a serious look should be taken at the wastewater. I think a condition of approval should be that they maybe take another look at their wastewater; their SPEDE s Permit; the criteria for initially establishing that and that that criteria will continue to exists. We talk about motel/hotel type wastewater demand, that s not to be likened with a timeshare that has a dishwasher and a washing machine and a garbage grinder in it. This is an entirely different picture. An entirely different type of use. Thank you. Attorney Lapper: I just want to quickly respond. Part of what is going on here is that these units are two story and when the project was first contemplated everything up until this point was going to be single units with its own footprint. When we came in with the third phase and in anticipation of the fourth phase, the third phase was changed so that instead of having 16 units with their own footprint, they were built two story, so there were only 8 footprints and that made a significant difference in terms of the stormwater aspect, in terms of the permeability. Scott Walton read the application into the record. A motion was made by Karen O Carroll and seconded by John Santiago to accept the application as complete. A motion was made by Scott Walton and seconded by John Santiago to close the Public Hearing. The board will reserve decision to the August 5, 2004 meeting waiting for Warren County Planning Board recommendations. 2. Area Variance Application V16-2004 submitted by James White & Peter Didio to construct 12 vacation/rental townhouses on property known as Mother s. The applicant seeks a 214,983 square foot density variance. Attorney Michael O Connor was present representing the applicant. Also present was Peter Didio and Jim White and also Jim Miller, who is the consultant for the project. Attorney Michael O Connor: Basically this is an area variance that will allow them to build 12 units on this site. They were here and had some discussion with the board. Mr. Didio was here then. They went back and tried to incorporate some of the comments that the board made into the project and what they propose right now is 12 townhouse units. I call them townhouse units because I think that s where they fall within the definition of your ordinance and also because of the desire to have the option or flexibility to sell them if that is something that is possible when they are all said and done with it. This variance, like any other variance, you re balancing what is the benefit to the applicant as opposed to the detriment to the neighborhood or community. I think if you look at the test that you have, you really aren t going to have a great problem saying that this is really a benefit to the community as much as it is to the applicant.
Attorney O Connor presented the board with a plan showing the existing conditions on the site. He stated that the site map shows that it does not conform with the front setback requirements, the side setback requirements and there is a continuous curb cut onto Beach Road and Route 9L. What is proposed will be significantly different than that and will be a benefit to the intersection as well as to the neighbors that adjoin the property. Attorney O Connor stated that the Town in having this as a permitted use says that it fits within the character of the neighborhood; therefore, could not be detrimental. Attorney O Connor stated that the plan conforms with the front setback, the rear setback, the side setbacks, the lot density, the maximum lot coverage and the height. Therefore, the question is whether or not the applicant can use the units as proposed or use that building for some other purpose. What they are proposing is not significant as compared to what is allowed. Attorney O Connor stated that if you look at this from a mathematical point of view, yes it is substantial. However, is the impact substantial? He stated he has case law to show that the impact would not be substantial. He stated this is a unique and very good way of rejuvenating that corner. The traffic has been taken away from the intersection. The traffic will be on the southerly end of the property. There will be guest parking; a one car garage for each unit, under each unit and a parking area behind that one car garage. Along the front of the unit will be sidewalks and landscaping. This site has Town water and Town sewer. Scott Walton asked if anyone had done a site distance. Attorney O Connor stated that what they are looking for from this board is can they build this number of units on there. When they go to Site Plan Review, the Planning Board will do a traffic study; they will also make sure that the stormwater will work. Scott Walton stated that the RCH zoning was meant to slow down the density in that area. Attorney O Connor stated that RCH is supposedly to give some sort of buffer between high commercial and residential and some mix of commercial and residential. That is stated in your ordinance. This is a good attempt to do that. This plan is a lot less seasonal density than if the applicant put a motel on the property. Karen O Carroll stated she liked the project, but feels the number of townhouses there is still substantial. Her concern is the emergency access for a vehicle getting to these last units. John Santiago stated that he felt the variance was substantial and his concern is the safety of the neighborhood. He felt the increase in use could pose a problem. Attorney O Connor asked if would be any less if there was a Stewart s or Cumberland Farms over there. He stated that a convenience store would be allowed with Site Plan Review and no variance. He stated that this proposed use is less traffic than any of the allowable uses available. Chairman Smith opened the comments up to the audience. John Salvador: I ve been following Mr. O Connor around for many, many years and this is the first time I ve heard him say conforming so many times. Basically, I think it s a good project. They re doing the best they can with a lousy site. It was my recommendation last time to reduce it from 14 to 12. I think they ve done a good job with it. It s unfortunate we have the configuration of intersection there that we have; Bloody Pond Road coming in at a bad angle and the steepness of the slope of Beach Road. I don t think they re causing any undue burden on that site having their access down the road the way they have it.
The Warren County Planning Board reviewed this plan when it was at 14. There was a county recommendation of Deny Without Prejudice. Due to the change in the plan (14 units to 12 units), the board has requested that this application be resubmitted to Warren County for their review. Scott Walton stated he liked the idea of condos or rentals, but the number is too high. He felt 5 or 6 would be more appropriate. There would be more green space and this would be less of a visual impact. Scott stated that he felt less people and less building would be good. A motion was made by Scott Walton and seconded by John Santiago to hold the Public Hearing open. 3. Area Variance Application V19-2004 submitted by Ruth M. Rist, Trustee for property located at 43 Trinity Rock Road. The applicant is requesting a 350 foot shoreline frontage requirements variance to meet contractual access requirements. Attorney Bob McNally was present representing the applicant. Attorney McNally stated that the surveyor produced a new survey which indicates that the trust is going to obtain a parcel that has 106.2 feet of road frontage and the lot that is being spun off is on Route 9N and has more than sufficient frontage. Attorney McNally stated that they again looked at the tax maps and the deeds and found out that there are not as many lots as was thought using this beach. There are a total of 44 tax map parcels that have the right to use the beach for bathing or for landing a boat. The new lot would make it 45 parcels. Karen O Carroll asked if everyone who had deeded rights were notified of tonight s hearing? It was stated that anyone within 500 feet was notified. Scott Walton suggested that the clerk notify any person on the list submitted by Attorney McNally who has deeded access to this property of the pending application. Karen O Carroll stated that the town may not be legally obligated to do this, however, this is a significant substantial variance and the people being affected by it should know about it. Chairman Smith opened the comments up to the audience. Marge Gilmore: I ve been here 27 years through the development of Green Harbour and the whole thing. This parcel originally encompassed from what is now Hearthstone north to what is Green Harbour and up the hill. How much of that is now developed. Originally, with every piece on there, you had the right to use that beach, but if these parcels aren t developed yet, you re getting 45 people that have the right, but if the parcel is going to be developed, that could be another 20 home sites that would then have the right to use that beach. I think if you go back to the 1925 deeds, that s what you re going to find. How many parcels up there are not developed? Is there any value to them if they don t have their lake rights anymore? If we essentially say this beach can no longer be used by any more of this property up the hill and we cut it off to the 45 that it would be if this house uses it. The other comment I have is that this property had two right-ofways. There is a 50 foot south right-of-way on the original maps to this property. I tried to walk it this spring before I went away, I left April 15 th and I knew nothing about this then. I tried to walk it this spring with my dog because it s a place in the neighborhood you can go, it s wooded and there are no cars. You cannot walk the south right-of-way any longer. If you drive Route 9, there is a guard rail cut where you are supposed to come down and if you dig through you will find stairs that is the access to that 50 foot right-of-way. I would defy you to try to do it today. You would be
crawling on your hands and knees and digging with a shovel to get down it. I m not saying it s all Rist s fault because I think the other southern property owner has encroached upon their property as he has developed his. I think that for those people up across Route 9, that south easement that everybody is forgetting about is a very important parcel. Now as times have changed, people aren t walking like they used to and we do get a view cars that park on our street as people come down and that s the access to the north parcel off of our road, because the north easement doesn t go all the way up. So be it, the south right-of-way should stay and it should be defined. I think if you go back to the original 1926 maps, you will find it. I live two parcels away. I have my own lakefront. I have rights in my deed to the use of their parcel. I m sure it s the same as everybody else that is broken off as it is in mine. I was not here for the other comment period. Robert Bovee, Jr.: One of the things that was mentioned is that there is only 44 lots that have deeded rights to this property. If there is truly only 44 lots, on Cramer Ridge/Shaw Road, which is the logging road that runs into the back of Green Harbour, there has got to be at least 12 to 15 lots that have been approved. Now they all have, I m not sure if the new deeds, some of the new deeds there have only been two houses built, but they originally had easements to the beach. Now if they still have them, I don t know. The deeds I have pulled all have deeded rights to the beach. We don t have dock rights which was mentioned in the application. On the northern 50 foot right-ofway, according to Lot #9 s deed, it states that the motel is supposed to maintain that property. The beach is supposed to be used for non-commercial use. Right now, it s being maintained by the owner. In that deed, there is also some guidelines that have to be put up. Maintenance is to the greenery to what is going on on that 50 foot right-of-way. None of that has been done. The impact on the road, which is Lakeview and Burhams, is we ve got the hotel guests driving down there. This lot that is being proposed is a residential only supposedly for her son. Her son has a commercial fishing vessel.. Scott Walton stated this is a totally different issue. He goes to where these people are and picks them up. Robert Bovee, Jr.: The way this is set up, I m against it. Not everyone has been notified. This property was built and approved in 1969 to be built on. From 1925 to 1969 to 1972 when it was finished, there s been open space. If you go back to the original deeds, in 1925, it was never to be built on. It was for the 44 lots to have access to that beach and that s it. I think we re intruding on other people s rights and neighborly this is going to have a huge impact. Robert Bovee, Sr.: I ve been up here since 1963 when my father-in-law originally bought the property. The only problem I see with the lot and I ll read the application that says occasional use. When we first met Ruth, she drove our driveway, which is our big problem. I don t mind occasional use. I do not have a problem with people using it occasionally. However, her son used it for one year straight, every day. That is not occasional use, that is daily use. Whether he runs his fishing company out of the house, out of his home or out of his boat, he does bring people down to the boat, puts them on the dock. Scott Walton stated that he should call the Town and file a complaint with the Zoning Officer because that is a violation of the Site Plan Review. Robert Bovee, Sr.: And we also have that problem because the motel guests now use our driveway and we re told we have to call the State Police to have them removed. So it s becoming that we have to call, we have to do this, we have to do that. We just don t want anymore of it. Whether they add one more or whether they build up on Shaw Road Ray who owns Ray Heluva Deli, lives up on Shaw Road, now has beach rights. So it s going to be more than 45 if they sell the lots. People are going to buy the lots. The other problem I have is that you said there s 106 feet of road front. What road front? Attorney Bob McNally stated Burnham Road.
Robert Bovee, Sr.: I don t know where you re getting the 106 feet of road front. Jim Grey: I have trouble with the 44. These are the maps that are on file, the original survey down at the County Center. He pointed out on the maps how many possible lots he felt had deeded rights. Jim Grey: The house itself I don t have a problem with, but when you start giving away my beach rights and you give away the dockage rights that are in the deeds, if they stay with Ruth and she can only put it on her property. If you re going to start giving that dockage right to whoever builds there and whoever builds in the future, I do have a problem with that. Attorney McNally stated that this is exclusively used for residential use. The actual variance is for 507 feet of shoreline frontage. A motion was made by Scott Walton and seconded by John Santiago to hold the Public Hearing open and requests the clerk to contact the Town Attorney to draft an approval and denial for this application for next month. Karen O Carroll requested that the clerk notify all property owners who have deeded rights outside of the 500 feet requirement. John Santiago stated that he felt if one is allowed to gain access without being on the lakefront, it could set a precedence down the road as well. Attorney McNally: Are you the Santiago that is involved with the Slywka s? John Santiago stated he was. Attorney McNally: You are actually involved in litigation with me and you have actually taken the position before hearing this as to the access rights of upland parcels, haven t you? John Santiago stated he has litigation with the Slywka s. This has nothing to do with the Rists. Attorney McNally: And you ve taken the position that basically an upland use is not appropriate for a single family, haven t you? Scott Walton stated he did not feel this was appropriate for the attorney to be questioning the board. Attorney McNally: I would raise that as an issue Mr. Santiago. I think that there is a concern on my part that you are not as fair and unbiased as you could be because of your personal interest in litigation involving this firm, involving this very issue in which you ve taken an expressed written position. Marge Gilmore: This is a copy of the original application. If you go to Page 3, Area Variance #1, the answer is the lake rights are shared as part of a subdivision beach with limited rights to bath and to land a boat. There are dock rights. That is incorrect. There are not dock rights. There can never be dock rights. You have the right to land a boat, meaning pull it up on the shore. You
cannot build a dock there. At least 12 years ago, we had a case before the Lake George Board because one of the people who lives up across Route 9, decided they were going to get mooring rights for this beach. It was determined that they did not have the right to do that. That getting a mooring is the property owners right only. There cannot be any dock rights to this new property. This is worded improperly and it needs to be corrected. A motion was made by Karen O Carroll and seconded by John Santiago to adjourn the meeting at 9:15 p.m. Respectfully submitted, Patricia McKinney Planning & Zoning Board Clerk