Town of Bolton
ZONING BOARD OF APPEALS
MINUTES
Tuesday, March 20, 2012
6:30 p.m.
SEQR = State Environmental Quality Review
PB = (Town of Bolton) Planning Board
LC-LGRPB = Lake Champlain/Lake George Regional Planning Board
APA = Adirondack Park Agency
LGPC = Lake George Park Commission
DEC = Dept of Environmental Conservation
Present: Jason Saris, Donald King, John Michaels, John Famosi, David Ray, Counsel Michael
Muller, Zoning Administrator Pamela Kenyon
Absent: Jeff Anthony and Tony DePace
The meeting was called to order at 6:30 pm.
Jason Saris asked if there were any corrections or changes to the February 14, 2012 minutes.
John Michaels stated that he was not present at the meeting and was included as present.
RESOLUTION:
Motion by David Ray to approve the February 14, 2012 minutes as amended. Seconded by Don
King. John Michaels abstained. All Others in Favor. Motion Carried.
Jason Saris informed all applicants that since two Board members were absent, an approval would
require four of the five remaining votes. Any applicant, at any time, may table their application to
be heard before a full Board.
1) MARKI, BERNARD & PATRICIA. Represented by Atty. David Pentkowski. In accordance
with Section 200-72 of the zoning ordinance, seeks to appeal the Zoning Administrator’s
interpretation whereby determining that because animal rehabilitation is not an allowed use in the
RCM1.3 zone and no permits (certificates of compliance) were issued for the structures, Bernard
and Patricia Marki are in violation of Section 200-21(Application of Regulations) and 200-78A(1)
(Building Permits) of the zoning ordinance as a new land use (animal rehabilitation) has been
established and is being use in such a manner that is not in conformity with the regulations set forth
in the RCM1.3 zoning schedule thus requiring a use variance and no permits(certificates of
compliance) were issued to construct the structures in which the wild birds are housed. See
interpretation/determination dated October 24, 2011 for specifics. Section 171.07, Block 2, Lot 37,
Zone RCM1.3. Property Location: Braley Point.
David Pentkowski stated that there are two issues they would like to address with the Board; 1) the
term structures and 2) the use being described. The term animal rehabilitation does not exist in the
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code so he is not sure what activity that is being engaged that is prohibited by the code. This is a
residential area and the uses that have been put to this area are accessory uses. He stated that this
activity is in conjunction with what other people would normally do with their home. There is no
business or commercial activity on this property, however having birds in some form has led to this
determination and put the Marki’s in violation. David Pentowski stated that they need to have a
more specific definition of what animal rehabilitation is. He feels that this same activity goes on
elsewhere in the community and for some reason the Marki’s have been singled out to strictly
enforce what seems to be a very vague definition. He stated that the code does not define it and
therefore the applicants were not aware that it was not allowed. He equated it to the code not
saying anything about having a b-b-q in your backyard; yet it is an activity that is consistent with
anyone’s use of their property. Since it is not defined he feels that the Code Enforcement has made
an incorrect interpretation. If the Town did not want this, they would have written the ordinance to
prohibit it.
David Pentowski stated having a pet is not expressly allowed in the Code but it is assumed that it is
allowed. He stated that it is presumed for dogs and cats and thought it would apply for birds as
well. There may be some level of activity at which it becomes offensive conduct in some way and
they may want to prohibit it, but it is not currently in the Code. He does not understand how they
can arbitrarily tell someone that what they are doing is prohibited. He stated that there are
ordinances that specifically talk about that. In other communities there are issues with kennels and
dogs and they have had to specify the amount of animals allowed on the property. In other
instances there is a specific criterion limiting operation in certain areas. He stated that if the Board
is going to uphold the appeal they need some information as to how it is not a violation.
With regard to the term structures, David Pentowski stated that he would not call what is used to
house the birds as structures. It is more like a dog run, in this instance they are cages for the birds.
He stated that if they find these cages as structures than anyone with a fence for a dog would be
subject to this ordinance. He stated that it may be different than what others may have on their
property but it doesn‘t mean that it is a violation of the code.
David Pentowski stated that in all of his 30 plus years, he has never seen a search warrant executed
to enforce a code. To do that in this situation, seems that there is something at work beyond the
ordinary. It is a most unusual step just to view the property. He stated that if they needed a search
warrant to see the cages then they weren‘t offending anyone and questions what precipitated such
an extreme measure.
David Pentowski requested that the Board look at this again to find that the Code Enforcement
Officer has made an incorrect determination as to what the code says with regard to animal
rehabilitation.
With regard to the definition of structure, Jason Saris stated that it is well defined in the Code and it
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March 20, 2012
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does include fences. He stated that it makes no difference what the structure is constructed out of.
David Pentowski asked if every dog run or fencing would need a permit. Jason Saris stated that
this doesn’t seem to look like a dog run and could be compared more to a shed because it is of size.
David Pentowski stated that these are open and not constructed on any foundation. Jason Saris
stated that sheds are often not on foundations either. The definition does not require it to have a
foundation, it says a structure is anything over 100 sq. ft and 6 inches above grade. John Michaels
added that fences that are larger than what is allowed by code requires site plan approval.
John Michaels stated that he would like to hear about the description of the activity that occurs on
this property. He stated that they are being asked to make a determination and he would like to
know how the property is being used and what is going on in these structures. David Pentowski
stated that they are not here to address what the code determined. If they were there to review an
application for a special use permit they would address it but that is not what they are there for.
John Michaels asked the applicant to provide some information as to the intended use for the
property.
Bernard Marki stated that the property is a vacant lot of approximately 7 acres of wild forested land
that is adjoining his property. He stated that he and his wife are State licensed wildlife
rehabilitators, which is another volunteer thing they do. They do not earn any money or receive
any compensation for the work they do. They take injured and orphaned wildlife from the
Adirondacks, try to rehabilitate them under their care or a vet’s care to get them ready to go back
into the wild again.
Jason Saris asked if there was a residence on this lot. Bernard Marki replied no. Jason Saris stated
that in this scenario, these are accessory structures without a primary, which would require a
special use permit. David Pentowski stated that these structures are portable. Jason Saris stated
that it does not matter what materials are used or the fact that they are portable they are still
considered structures. He stated that if it is not landscaping and is larger than what is allowed by
code, it is considered a structure. David Pentowski stated that anyone that wants to put up a dog
run or fence has to come in for a special use permit. Jason Saris replied no, they need to get a
building permit. A special use permit would only be required if there was no primary structure on
the property. An accessory use requires a primary structure. They have had people come before
this Board for that variance.
Pam Kenyon stated that they have dealt with portable kennels before and the ZBA did determine on
January 23, 2006 that a portable kennel is considered a structure. Bernard Marki asked if they
could put a fence up without any permit. Jason Saris replied no, a fence would still require a
special use permit because there is no primary structure.
With regard to the use, John Michaels stated that Pam Kenyon’s interpretation is much different
than someone having a dog. This is taking wildlife, rehabilitating them and releasing them again; it
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is a transient operation. David Pentowski stated that there is no question that it is different but what
they want to know is where it is defined or prohibited in the code. He stated that he understands
the issue with the cages being on the separate lot with no primary structure; he originally thought it
was one parcel. However if this were to be on the main property than this would not be an issue. It
would be a matter of accessory use and if the Town thinks it is a structure. Jason Saris stated that
accessory structures are allowed where there is a primary structure but they have to meet setbacks
and the only question would be about the use.
David Pentowski stated that will become the issue because they do have property around the house
and have plenty of room. John Michaels stated that if that were the application they could discuss
that but as far as the structure goes, these cages are not allowed on this property without a primary.
David Pentowski stated that they are discussing whether or not this activity violates the code. They
want to know whether they can rehabilitate these animals on their property. John Michaels stated
that this seems to be more of an operation like a veterinarian office. David Pentowski stated that
vets are a business and get paid for a commercial activity. John Michaels stated that if a vet
decided not to charge, it does not change the use. John Michaels stated that he does not feel that
they are going to overturn Pam’s determination because this activity is occurring on the vacant lot.
David Pentowski stated that the Code Enforcement told his clients that they were in violation of the
ordinance. He wants to know where they are violating the ordinance. He understands that the fact
that the accessory use is on the vacant lot; however he is seeking information on the use itself.
Jason Saris stated that any use on the vacant lot requires a use variance because there is no primary
structure. He understands their point about not being defined in the code. However the ordinance
can’t list everything. It says non-commercial; it doesn’t list every business but it says noncommercial. John Michae’ls point is that if it operates the same as a veterinary clinic but does not
charge for services, in spirit it is just like a veterinary clinic and covered by the fact that it is not
supposed to be commercial. Bernard Marki stated that his property is zoned for commercial. It is
RCM1.3; he could apply to have an accessory use for a motel, restaurant of a number of other
commercial businesses.
Patricia Marki asked if they would be permitted to keep their dogs in the structures on the other lot.
Jason Saris replied no. David Pentowski stated that they are asking the applicants to comply with
the code, but there is nothing in the code to define compliance. He feels that anyone should be able
to read the code and know what is allowed or not allowed on their property. John Michaels stated
that in RCM1.3 the only thing that is permitted as of right are detached single family homes and
accessory uses are a garage, storage shed, boat, boathouse, swimming pool, guest cottage, dock,
amusement device or an accessory structure less than 1500 sq ft. There is nothing in there that says
they can run a veterinary clinic. David Pentowski stated that it also says nothing about having dogs
or a dog house but logic tells you can. John Michaels stated that looking at the ordinance they
wouldn’t think they would be able to open up a facility to rehabilitate animals. The code tells you
what you can do; if someone wants to do something different from that they have to go to the Town
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to see if it is allowed.
Pam Kenyon stated that she is not prepared to talk about the property on the opposite side of the
road that has the house. With regard to this property she reviewed the ordinance and tried to pick
up anything that she could conceivably come up with. In her statement she talks about agricultural
uses, she finds that the birds are not useful to man like cows, horses and chickens would be. The
structures are not considered agricultural use structures because there is no agricultural use
involved. The structures were not considered a barn because there is no agricultural use involved.
The structures are classified as buildings because they are structures that are intended for sheltering
animals which is in the code. Pam Kenyon stated that although animal rehabilitation does closely
resemble a game preserve it does not provide unique natural character for habitat, food or shelter
for the wildlife. The buildings are classified as structures because they are constructed on the land,
are more than 6” above grade and larger than 100 sq. ft. Jason Saris asked if she had any input as
to why this isn’t an allowable use. Pam Kenyon stated that she did not find anything in the code
that would consider this an allowable use. With regard to these animals being considered pets she
does not find that animals kept in cages are pets. Patricia Marki stated that Pam Kenyon is friends
with Molly Gallagher and asked if Molly was required to get permits to use on her property when
she was rehabilitating animals. Pam Kenyon replied that she is not prepared to discuss that. John
Michaels added that it does not pertain to this application.
David Pentkowski stated that Pam Kenyon’s comments would indicate that one would not be able
to have a canary because they are in a cage. John Michaels stated that was not what she said; she
had a very reasonable analysis. Pam Kenyon stated that she would consider a canary a household
pet. David Pentowski stated that there is nothing in the ordinance that differentiates whether you
have one in your house or outside of your house. John Michaels stated that this could be monkeys,
the zoning ordinance is never going to list every species.
Jason Saris asked if there were any comments from the public in attendance.
John Tiger, neighbor, stated that he understands the discussion about the code. However he feels
that it is also important that the Board understand how it affects the neighborhood. He stated that
the Markis are doing something that is very admirable and they should be commended. They are
contributing to the community and helping the environment. With regard to how it affects the
neighborhood, John Tiger stated that he had to be shown these cages because until the leaves fell
this fall he could not see the cages and he drives past them all the time. He stated that they are well
hidden and blend into the environment. With regard to the animal rehabilitation, he stated that he
sees 100% more domesticated animals from the surrounding neighbors; he has never seen a bird or
owl on the Marki’s property. He usually doesn’t know what was there until they tell him. Given
that it does not affect the neighborhood and that they are doing a noble thing he is saddened by
what is going on down there. He understands the history of what has taken place; he lives it and
has even been a victim of it himself.
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Dottie Coon, Trish Marki’s mother, stated that she watches what goes on with the animals. She
stated that the animals and all of the permits that the Marki’s have, are regulated by the State and
Federal government. For the most part, the animals are only here for the summer season. Trish
Marki brings them up here because she stays here for the summer. Once the birds are injured they
have to go through one molting period so their feathers grow back fully so they have the ability to
fly. These animals have been hit by cars, trains, etc. and the Marki’s take the injured animals in.
The animals are stabilized, then are seen by a vet and brought back to the property to rehabilitate.
Dottie Coon stated that the animals do not get out every day to fly around like homing pigeons.
Once the birds are rehabilitated they are returned to the area from which they came to allow them to
regroup with their own flock. Dottie Coon stated that the bald eagle they recently had was taken to
exit 17 and released on the River to rejoin with her mates. A DEC officer was in charge of those
birds and he was the one who released her. Dottie Coon stated that DEC calls the Markis to pick up
an injured bird or animal.
Dottie Coon stated that Trish also provides education programs. There are some birds that can
never be returned to the wild; they are well and can be used for educational purposes. One such
program was held in the Rec Center last summer and it was a huge success.
Dottie Coon requested that the Board take a closer look at this issue again because it does not
offend anyone. These birds are not on display; it is not like a petting zoo.
Trish Marki stated that it was a violation for Pam Kenyon to enter her property and look at the birds
without giving her notice to move them. It is against DEC law to view the birds while they are
rehabilitating. She should have been given notice before she executed her search warrant to look in
her cages so that she wouldn’t disturb them while they are recovering. Trish Marki also indicated
that Irish Setters are not part of the raptor’s diet so they can let Mr. DePace know that his dog is
safe.
John Michaels stated that he does not think anyone on the board is anti-bird. He thanked Dottie
Coon for her description of the activity occurring on the property because the explanation provided
a compelling argument for a special use permit. All the Board is saying that the structures need to
be permitted properly. With regard to the use, they could refer to the dogs and kenneling; if you
have more than 4 dogs you are considered a kennel. In this instance it would be if the applicants
had more than 4 birds, they need to look at commercial use and proper permitting. However, that is
not what is before the Board tonight; they need to address whether or not they are going to uphold
the ZA’s determination.
Dottie Coon stated that these are not roofed structures, there is wire across the top and one section
has a little shelter to allow the animals a place out of the elements. Jason Saris stated that their
definition of a structure is very vague and is that way on purpose so that everything falls under it
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and needs to be reviewed. If you start to list materials and don’t list every material under the sun,
someone will find something that was left off the list and make it out of that.
Trish Marki stated that these are cages and not sheds like Mr. Saris likened them to. She stated that
it cannot be used to store stuff in an attempt to keep it dry and no one would want to sleep in it.
Jason Saris stated that a cage can be a structure just like a fence can be a structure. He stated that
they can’t differentiate because they are liable to not have a conclusive list. He stated that a fuel
tank is a structure and no one would want to sleep in that either. Trish Marki stated that there is a
fuel tank less than 16’ from her house and the Town has not done anything about that. Jason Saris
asked Trish Marki to keep it on task and subject.
David Pentowski stated that if there is any ambiguity in the language of the regulations they have to
be resolved in favor of the property owner. He stated that when the use is addressed he does not
feel that it is a violation of the ordinance.
Counsel Muller read the following correspondence:
1. Letter from Alexander Keeler individually and representing Alkin LLC who is opposed to any
approval for structures and/or land use involving rehabilitation of any and all wildlife animals.
2. Letter from Mary Hyman, not opposed to animal rehabilitation but is opposed to construction of
structures that may affect aesthetics of neighborhood. Also indicated opposition to structures that
are built without the proper permits or variances. She also voiced concern over the release of the
animals once rehabilitated.
3. Letter from Nancy Teichner, in favor of the applicants.
Counsel Muller provided some case law for the Board members. He stated that they need to make
a determination as to whether or not they will uphold the Zoning Administrator’s interpretation. He
stated that if they feel as though there is any ambiguity they will need to rule against the Town and
in the favor of the property owner.
John Michaels stated that he feels they should uphold the ZA’s interpretation. As identified the
structures are accessories to nothing on that lot, had no permits and would not be allowed. With
regard to use, he feels that it is more like a veterinary office which would need a permit, rather than
just a pet. If they have more than 4 dogs it is considered a kennel so they could use that same
interpretation for birds would be more like a veterinarian which would need a special use permit.
Jason Saris stated that he applauds what the applicants do. However, the fact that it requires as
much permitting from the State and Federal government, tells him that it is not like having a
household pet. He feels that it would be best for the applicants to seek a special use permit to allow
the opportunity for the activity to be thoroughly discussed and hashed out in a public forum with all
interested parties. He does not want to discuss whether or not this is an allowable use at this time
because that is not what they are seeking tonight.
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March 20, 2012
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RESOLUTION
Motion by John Michaels to uphold the Zoning Administrator’s interpretation and determination
with regard to the activity occurring on Bernard and Patricia Marki’s property located on Braley
Point Tax Map Section 171.07 Block 2 Lot 37. Seconded by John Famosi. All in Favor. Motion
Carried.
2) V12-01 SAGBOLT, LLC. Represented by Atty. Benjamin Pratt. In accordance with Section
200-93A (other regulations applicable to Planned Unit Developments), seeks area variance (PUD
Amendment) to amend V11-23 to berth the Morgan at the dock extending from the north end of the
former boat museum rather than parallel to the shore. Section 171.16, Block 1, Lot 16, Zone PUD.
Property Location: 110 Sagamore Road. Subject to LC-LGRPB, ZBA, PB, APA and TB review.
Subject to SEQR. This portion of the application was tabled at the February meeting pending
additional information.
Note: This item was tabled at the applicant’s request.
3) V11-58 SALAMONE, KEN. Represented by the Phinney Design Group. For the construction
of a proposed single family dwelling, seeks area variance for 1) a deficient shoreline setback: 75’ is
required, 18.8’ is proposed; 2) Height: 35’ is allowed, 39.5’ is proposed; 3) Length: 120’ is
allowed, 146.10’ is proposed; and 4) Garage bays: 3 bays are allowed, 3 exist and 1 is proposed.
Section 215.05, Block 1, Lot 6.1, Zone RM1.3. Property Location: 4124 Lake Shore Drive. Subject
to LC-LGRPB review and APA review. This item was tabled at the February meeting pending a
recommendation from the PB.
4) V12-02 SALAMONE, KEN. Represented by the Phinney Design Group. For a proposed lot line
adjustment between those parcels designated as Section 215.05, Block 1, Lot 6.1 & 6.2, seeks area
variance for a deficient lot width on Lot 2. 150’ is required, 124’ was approved on 5/16/05 under
V05-17 for lot 2, 60’ is now proposed. Zone RM1.3. Property Location: Lake Shore Drive. Subject
to LC-LGRPB review and APA review.
Note: Items 3 & 4 were heard together.
Mike Phinney stated that at the last meeting the lot line adjustment was referred to the PB for a
recommendation. In the past few months they did go back to the PB and had a good discussion
with them about the project. One of the graphics presented to the PB was a study of what could
happen on the neighboring lot if the variance was granted and lot line adjustment made. Mike
Phinney provided information and a graphic showing house placement for lot 2. The location
would meet the minimum lot width requirements as per their zoning ordinance and would still have
room for a detached garage. The original plan that was approved had a designated septic area
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which will remain. Mike Phinney stated the lot lines were done intentionally to create a staggering
of the homes. The original subdivision proposed to have 2 houses side by side right by the water.
Mike Phinney stated that they feel that they have been less impactful with what they are proposing.
They have changed the design and location of the house to be more environmentally sensitive. A
lot of work has been done on these lots; they have removed 7 cottages, another house, a concrete
pad as well as a portion of the gravel driveway. Additional improvements include the installation
of the septic which was previously approved and renovations to the guest and boathouse.
Mike Phinney stated that the applicant was on the verge of getting a building permit for the
originally approved massive 3 story house right on the lake. Mike Phinney stated that they
convinced Mr. Salamone to pull the massive scale of the building down and move it back from the
lake. They felt that they could give him a lot of the program he was looking for in a smaller scale.
The original house and previously approved house were both approximately 9,000 sq. ft. The
house needed to be taken down sooner than the applicant wanted due to structural and liability
concerns.
Mike Phinney provided details to the plan. The proposed house is approximately 6,000 sq. ft.
They kept the elements that the applicant wanted but built them further back from the lakeshore
beyond the 75’ setback. This will be visually appealing as well because there is a fair amount of
mature trees to provide a buffer. Mike Phinney stated that they have added a large green roof.
With regard to comments about the project being segmented, Mike Phinney stated that this project
was previously approved and if they were to be combined this with all they have done the pre-and
post evaluation of pervious versus impervious area would be so great that it would not require any
stormwater management. They had 2 primary structures, an asphalt driveway, 7 cottages and a
concrete pad, which have all been removed and pervious area restored. He stated that everything
associated with this subdivision and the prior approval and variances granted was done except the
applicant decided not to build the approved house. By doing that, it created what they need to do
today because the 2 year timeline expired from the time the applicant took down the house.
Mike Phinney stated that they had a good discussion with the PB. They also met with Chris
Navitsky to see if they could come closer on their perspectives on what to do with this project. The
PB made a favorable recommendation. There was a new application that had to be made, due to
the legal requirement for the lot line adjustment and the PB did ask that the Town engineer to
review the LA Group’s work. Tom Center reviewed the application and there was a comment letter
that was provided. Since that meeting they have reviewed Tom Center’s comments, responded and
received notification that their engineering is complete. Tom Center also agreed that this is a minor
stormwater management project.
Mark Tabor, LA Group, stated that the PB wanted the applicant to go to Town Engineer review to
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take a closer look at the stormwater and make sure that they were in compliance with the minor
permit and that the minor permit was applicable. He stated that they had that meeting with Tom
Center and the Zoning Administrator to review the amount of disturbance and found it to be under
the 15,000 sq. ft. One change is that previously they were counting the existing structure as
impervious area in their calculations for stormwater management. Based on their numbers they
were not required to do any stormwater management, however they volunteered to do so due to the
site location and the sensitivity of it.
Tom Center asked them to look at the project without including the previously existing house in
their calculations. Mark Tabor stated that they recalculated their stormwater and found that they
had a little bit more impervious area proposed then previously existed. Their existing impervious
area was roughly 5,310 sq.ft, which included the existing gravel driveway and asphalt. With
implementation of the green roof and the removal of a significant portion of the gravel driveway
and installing permeable pavers they were able to minimize their impervious area down to 5,370 sq.
ft. The total difference is 60 sq. ft of additional impervious area. Based on a minor stormwater
permit application, which the Town Engineer reviewed and approved, they are required to treat a
total of 12 cubic feet of stormwater. That number is a lot smaller than what they anticipated
because they designed the rain garden to accommodate roughly 300 cubic feet of stormwater,
which is well above and beyond what is required.
Mark Tabor stated that they are keeping the rain garden sized the way it is because it is more robust
and appropriate given the situation and area. The Town Engineer also had a few comments about
locations of under drains and drains on the green roof. They worked with him to resolve or clarify
what their intentions were. Tom Center did make one request to have a discharge or level spreader
to allow the water to sheet flow and have better filtration on grass area. Mark Tabor stated that
they have taken a project that had absolutely no stormwater management and provided above and
beyond what was required.
Jason Saris stated that the ZBA was looking for some clarification regarding a tree cutting plan
with condition from the previous approval of the original subdivision. Mike Phinney stated that the
condition of approval was the “no tree removal is to be conducted”. However, if you are to read
the deed it goes on to say “prior to the certificate of compliance”. When the original 3 lot
subdivision was made the intent of the language reflected a survey and plan regarding what trees
were to stay or go. It also was when the applicant was not the owner of lot 1. The original owner
wanted to maintain privacy in the event of a house bring built on lot 2. Once the subdivision was
approved and the certificate of compliance was issued the tree removal requirement ended.
However it does go on further to say, “site plan review will still be required for lots 2 and 3”. The
person who put this deed together wanted to protect the attributes of lot 1, agreed to make any
improvements to lots 2 and 3 subject to site plan review, which would include tree removal.
Mike Phinney stated that they did do a survey to illustrate the amount of trees that will be removed
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and protected. Mark Tabor provided information about the trees that are proposed to be removed.
He stated that originally they proposed to remove 10 and this new proposal 11 will be removed so
there is a net of one more. John Michaels asked why trees 15-17 have to come down. Mark Tabor
replied that most of it had to do with the stormwater management and the grading for the lawn area.
Mike Phinney stated that is some of the irony they deal with; in many instances when creating an
area for infiltration, rain gardens or stormwater control measures they have to take down trees. He
stated that is one of the things that they talked about with Chris Navitsky.
Mark Tabor stated that when the LA Group was contracted they went out and evaluated the site and
the trees. They determined which trees were to be removed based on view shed, house placement,
soil protection, etc. He provided more details to the tree cutting plan.
Mike Phinney read into the record their justification of what they feel is the practical difficulty.
The applicant has been actively repairing and restoring the property for the past several years and
has consistently worked with the Town to acquire all necessary approvals and variances to do so.
In anticipation of building a new primary residence within the footprint of the existing nonconforming primary residence, now demolished due to its state of disrepair and liability to the
owner, the applicant installed a new 7 bedroom capacity septic system. This system is capable of
treating sewage from both the guest house, a 2 bedroom facility, and the new house, proposed as a
5 bedroom maximum. The applicant has renovated and reconstructed the existing guest and
boathouse and built a new garage storage building adjacent to Route 9N. Each improvement was
completed in accordance with town approvals while maintaining the integrity of the original site
design. The original site design must be maintained due to a large rock outcropping on the site that
significantly limits buildable areas and constrains site access. As a result, renovation
reconstruction to date has been completed in anticipation of siting the new primary residence on the
same footprint on the previously existing primary residence as outlined under Section 200-57, nonconforming buildings and structures. As such renovated structures require utilities and
infrastructure and new construction to date have been designed to be compatible with the location
of the previously existing primary residence and have utilized the remaining limited amount of
buildable land areas on the site. As a result no other practical options or economically feasible
alternative house locations exist. These factors constitute the practical difficulty from which the
applicant seeks variances from the strict application of the code alleviating such hardships without
causing serious detriment to the application and purposes of the ordinance.
Counsel Muller read the following correspondence:
1. Letter from Todd Fellegy in opposition to the project.
2. Email from Amy and Doug Hoyt and Joan and Marvin Dobert opposed and requested that the
applicant be required to apply for a major stormwater permit.
Chris Navitsky, Lake George Waterkeeper, stated that they did meet with the applicant’s agents to
discuss recommendations that would improve the project. However it does not seem that they
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made any additional improvements and therefore oppose the project as requested. He feels that
granting the variances will have an adverse impact to the environment. The reduction of the
required 75’ shoreline setback results in impervious surfaces closer to Lake George and additional
clearing to accommodate the buildings length and size and close proximity to the lake which will
negatively impact water quality.
Chris Navitsky stated that the proposed project will significantly increase run-off from existing
conditions since the building that the applicant claims to exist and accepts credit for in stormwater
calculations to reduce required stormwater volume has not existed for 3 years. He provided photos
of what exists now.
Chris Navitsky stated that there is a lot less impervious area than is claimed. He stated that there
has been reference to 7 cottages that were on the site; those had to be removed as conditions of
approval and should not be germane to the discussion. They have heard about a change in design
for the rain garden. However previously it was stated that the rain garden was designed for
minimal stormwater management of one ½” of rain events on the roof area only. Based upon 2010
rain events provided by Darrin Freshwater Institute, 30% of the storms in the Town would be
discharged, so it wouldn’t handle the stormwater from a third of the storms which is inadequate.
The applicant proposes pervious pavement which requires 2’ of stone beneath the surface to
provide the storage for percolation, they have not provided any test pits for that and there is ledge
rock behind that so they are not sure that it will even work. Chris Navitsky stated that they need
more information before the Town can determine if some of these claims are justified.
Chris Navitsky stated that the site conditions are constrained due to the limited depth to bedrock
and available soils which will provide the adequate stormwater treatment necessary. The current
stormwater management proposal will create conditions promoting the growth of the invasive
species Asian Clam which will negatively impact Lake George. Boon Bay currently has the largest
infestation of Asian Clam which is over 5 acres and extends in front of this property. The Asian
Clam is a filter feeder and thrives in conditions with excessive nutrients which are conveyed by
run-off. It is in the best interest of the Town to maximize stormwater management and treatment of
any project especially located in this area for the benefit of the residents in the Town.
Chris Navitsky stated that it is troubling to see the approach taken by the Planning Department
which is satisfied with minimizing stormwater management and treatment, creating conditions
beneficial to the growth of the damaging invasive species that undermines expensive eradication
efforts. The task force is looking to spend over $200,000 in this area. Chris Navitsky stated that
this property is located in the critical environmental area. By the Town regulations, the Town can
just require a major stormwater plan regardless of what they are disturbing.
Chris Navitsky stated that there are alternatives to the applicant to achieve the intended benefit
other than an area variance. There is sufficient area outside the shoreline setback for construction
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12
of a residence. The applicant provided an alternative house location for lot 2 and asked why they
can’t do the same for lot 1.
Chris Navitsky stated that the variance requested is not the minimum necessary for the applicant.
The proposed 18.8’ shoreline setback is based on the previous location and the applicant is
justifying that on a building that was removed. Existence of a non-conforming structure is not just
cause to grant this significant variance.
Chris Navitsky stated that site development as proposed should be considered segmented and a
comprehensive review is warranted. The applicant put in a very large garage that never got site
plan review. They are playing games with the amount of impervious area that was there. He feels
that this lot has not been looked at comprehensively.
Regarding the proposed project and requested variances, Chris Navitsky stated that it would violate
the conditions of approval of the previous subdivision. The applicant did go to the PB, however in
the PB’s recommendation they did not lift their conditions of approval as originally placed on the
subdivision.
Chris Navitsky feels that the variances should be denied based on the impacts to the environment,
impacts to the neighborhood, that there are alternatives available and that this is not the minimum
variance that is requested.
Melissa Vito, Diamond Point, stated that she has recently received notification regarding the
application for the eradication effort for Asian Clams.
Melissa Vito stated that it is clear to any observer of the lake’s current state of degradation that this
community has lost sight of the miracle of nature that is Lake George. The amazing coincidence of
the lake’s small watershed with the forested slopes where trees break the force of the rain; the duff
on the forest floor that filters the rainwater and holds the soil on the hillside; the small brooks and
underwater springs that bring in clean water instead of large rivers that would feed polluted water
into the basin; the temperate climate and deep lake bed that keep the water cool; the limestone on
the bottom of the lake that buffers acid rain; even the low calcium levels of the water where zebra
mussels can’t thrive. All these features just happened to be present in this one spot and created this
glorious body of water.
Melissa Vito stated that if we remove the forests, allow eroded soils, fertilizers, pesticides, and all
those other pollutants to flow into the brooks and the lake, we can expect to lose it all. The beauty
of the forests and the clarity of the water and the smooth, clean rocks and sand and docks under that
clear water.
Melissa Vito stated that the scientists have worked hard to research the phenomena and warned us
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13
that we would lose the lake as the great resource we knew if we didn’t start to protect it from
stormwater runoff and other pollution sources. Environmental engineers worked hard to develop
building codes so we don’t inadvertently cause pollution. And town, planning, and zoning boards
have been appointed to enforce those codes. The public’s trust rests in you to do that job.
Melissa Vito stated that the boards are appointed to stand guard for the lake in the face of all the
pressure from people wanting their dream house on the lake they say they love. It can’t be love,
though. Love acts. And love of this lake would only be manifest in protecting it any way and
every way you can.
Melissa Vito stated that the applicant’s neighbors are all pleased that the site has been tidied up, but
asked how could that benefit possibly be used as a ticket to do whatever else he wants to on those
lots. She stated that of course, he would clean up the lot. And in fact, the benefits of removing the
blacktop were probably offset by the removal of the very beneficial layer of duff all over the
property, which took place there last month. The place is tidy looking, but the lake doesn’t know
from tidy. It knows from what junk is in the water that runs into it from the land. The Asian clams,
though, thrive on the junk. And with millions of dollars and thousands of man hours being spent to
get rid of the horrible nuisance at our shorelines, it doesn’t seem like a good way to show our
gratitude to be feeding the clams lunch. Those extra nutrients are only going to nourish the nasty
critters, undoing the generous efforts of all the people involved in trying to get rid of them. We on
Boon Bay, especially, should be donating money to the cause and feeding the divers lunch.
Melissa Vito stated that the pressures on the boards to allow the owners to have every whim and
desire fulfilled are very strong. People focus on what they’ve always wanted and may not realize
what is going to happen to the lake. We understand that. Nevertheless, if this miracle of nature is to
survive in any semblance of its original glory, you, the boards, are the ones who must have the
strength of character to stand firm against those pressures. She stated that you must use your best
judgment, and your common sense, your concern for the natural resources and community aspects
of the town that are highlighted and detailed in the town’s comprehensive plan.
Melissa Vito stated that you must be honest in exposing any conflict of interest you have in any
application, such as when a relative is an applicant, or when one may gain financial benefits from
an applicant obtaining a variance. This applicant, for instance, owns performance boats that are in
the garages that require the variance as well as needing the services of a good mechanic. Some of
the neighbors, in fact, have suggested Mr. Saris could be one of those, though I have no personal
information about it. Irregularities in the deliberations of any board will no doubt result in the
failure to protect the lake in some way.
Melissa Vito stated that no one in this room can deny how much of the glory of this lake has
already been sacrificed to those big dreams. The thick algal blooms in Boon Bay and all along the
western shoreline; the dead zone down near the Village; the impaired state that has been declared
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14
pursuant to the Clean Waters Act. These were all preventable tragedies that have already occurred
to this miraculous lake. Our boards no longer have the luxury even to think about compromising
the minimal protection our codes offer. The only decisions we can make now absolutely must be
the ones that protect the lake to the greatest extent possible.
Melissa Vito stated that the zoning codes, with those questions you have to answer before granting
a variance, and SEQR law are your tools for manifesting that protection. You are entrusted to
apply those regulations and laws to protect this great resource we are poised to lose if you don’t.
It’s critical that you grant only the minimum variance necessary—always considering whether a
variance is necessary at all.
Melissa Vito stated that we pay the zoning enforcement staff and retain a lawyer to assist you in
making the laws stick. They must also be brought into this effort. The board must insist they start
giving you all the information you need to know the law and then enforce it and call you on it if
you overlook anything.
Melissa Vito stated that she knows that she is not walking in the Board’s moccasins, but the
variance procedure looks quite simple to her. There are those questions you must ask yourselves
and answer as honestly as you can.
 Will it have an adverse effect on the environment?
 Are alternatives available for the applicant to achieve the benefit of a dwelling other than an
area variance?
 Is the variance requested the minimum necessary for the applicant?
 Is the variance applied for a significant departure different from Code?
Melissa Vito stated that with this particular application there are other compelling reasons of
previously established restrictions that must be adhered to. One, that there has been no
comprehensive review of the entire subdivision as required, and two, the project and requested
variances violate conditions of approval for the Wide Waters Subdivision established in November
2005, such as that there must be no tree removal, conditions the planning board has not formally
removed.
Melissa Vito stated that she feels the answers are pretty obvious. If the house is built and situated
on the lot according to code there is no need for the lot line to be changed and a nonconforming lot
created. She encouraged the Town to get on board. She stated that we have got to stop turning our
eyes away from the evidence at hand that tells us our protection has been grossly inadequate. We
have got to say no when people request permits to do things on the land that we all know can only
pollute the water, no matter what the engineers tell their clients and the boards.
Melissa Vito feels that the engineers and architects have to get on board, too. They must know, and
on some level, they must care, that every tree removed is protection lost. It’s scientific fact that the
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March 20, 2012
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best stormwater controls possible will still allow nutrient loading of 10 to 15 times the amount
native forest will allow. And the stormwater management design for this project is a far cry from
the best. The architects and engineers must begin to act according to their professional honor to
work to protect this great resource, too. She feels that this is the Board’s opportunity to show those
who are depending on them to protect this great lake, that they have the spine and the will to honor
their trust and deny these variances.
Melissa Vito asked if you could imagine how the tourists are going to laugh at us when they take a
swim and come out covered in algae slime and their skin is all itchy, and while we call Lake
George the Queen of American Lakes.
Melissa Vito stated that it is unfair to have these proceedings in March when so many people they
affect are out of town and unaware of them. She would like to reiterate all the points Chris
Navitsky makes that are totally valid and not asking any more of this board than to follow the law,
which would appear to be entirely reasonable. Melissa Vito stated that it would all fall into place if
they will just refocus their vision onto the fundamental job they have to do. That job is to look at
these plans and acknowledge just how far they are from anything that can be called sound
development for our watershed lands. You can’t help but see how inappropriate is the size of
structures for this Adirondack setting, the dreadful loss of beautiful and protective trees there will
be, the awful permanent source of pollution it will become, and how it is all completely
unnecessary and undesirable in every way. She stated that knowing that your job is to uphold the
code, laws, and provisions already established for this subdivision, you will have the moral strength
to vote these variances down for good.
Melissa Vito read an email from Connie and John Daniels who are opposed to the project.
Frank McDonald stated that he attends these meetings month after month and sees the Waterkeeper
take objection against almost every application that comes before the Board. He wonders who is
right or if he has all the knowledge to compete against some of the applicant’s agents. It bothers
him because the Board has to sit up there and listen to somebody that seems to have all the
information and absorb that and then listen to an applicant who seems to have gone through all the
paces to make sure that they are accurate and in accordance with all of the zoning. Apparently the
Waterkeeper had an opportunity to sit down with them and if he didn’t inject the things that were
applied for today seems like it might be his fault and not the applicant’s.
Pam Kenyon stated that there was no action taken by the LC-LGRPB. Additionally there were
recommendations from the PB as follows: 1) that the stormwater portion of this project, minor or
major, is reviewed by Town Engineer Tom Nace, 2) that permanent vegetation be required to
remain to break up the massive structure of the complex to the south side of the house as presented
in diagram A3.1.2, dated December 21, 2011 and 3) that any exterior lights on the structures be
downward facing and shielded to be dark sky compliant.
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Jason Saris stated that he has worked on Mr. Salamone’s boat. He stated that he has worked on this
boat before Mr. Salamone owned this property and he also works on his father’s boat. He sees no
conflict and whatever he decides here will be based on the ordinance and the application and how it
meets the criteria for a variance. Jason Saris stated that he sees a lot of applicants who are his
customers, which is the way it is in a small town.
Pam Kenyon stated that after meeting with Tom Center and Mark Tabor it was determined that it
would be up to her whether or not to make this a major or minor stormwater project. She stated
that based on the engineers recommendations she decided to keep this as a minor stormwater.
Mike Phinney commended the Waterkeeper and Melissa Vito for standing up and speaking their
opinions. He stated that he gets emotional hearing that someone would think that they have not
done more or enough. When the reality is that they have gone out on a limb and really pushed the
envelope to do more. With regard to the Chris Navitsky’s comments about not counting certain
structures or impervious area because they were removed in the past, Mike Phinney stated that they
have looked at the whole project. He stated that this was not a virgin forested site, this was a
heavily developed site that had multiple large structures on it. All of that existed on the property
before Ken Salamone even dreamed about buying this property. Once he did buy the property he
adhered to all the requirements of the subdivision and made additional improvements beyond what
was required of him. With regard to the comments that they are not doing enough to treat storm
water, Mike Phinney stated that they are treating 28 times the amount required. He stated that they
are trying to do very much the same things that Chris and Melissa are trying to do although they
differ in their opinions.
Mike Phinney referred to the Section 200-57B 1a states that a non-conforming structure shall be
maintained in such condition as will not constitute a danger to the health, safety or general welfare
of the public. The applicant was conforming to this requirement when he decided to take this
structure down and that clock has now run out on him which is the reason that he needs to be reapproved. Mike Phinney stated that the applicant has done an admirable job in trying to make
everyone happy and to be a responsible owner and responsible steward of the lake.
John Michaels asked for Mark Tabor to provide details about the driveway. Mark Tabor stated that
they don’t have 2’ of stone but they did do test pits on the property and they found bedrock within
1-2.5’ of the surface. With regard to the pervious pavers there are 2 reasons they would do that: 1)
to have a storage device to store additional volumes of storm water and allowing it to perc and
infiltrate, and 2) purely to be treated as a permeable surface, similar to a lawn, rainwater does not
collect in a big area and percs through the ground. They are taking the second approach.
However, both approaches are outlined with DEC’s current manual which talks extensively about
green infrastructure practices. The depth of stone required in this particular application is at the
discretion of the engineer. He provided further details regarding determining depth. Mark Tabor
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stated that there is also extensive research that has been done by the University of New Hampshire
and a lot of their specifications speak similarly. He stated that DEC requires 2” of choker stone and
4-8” of a filter layer, both of which they have included in this. Mark Tabor stated that they have
14” and they have installed an under drain as a conservative measure.
Joan Dobert, neighboring property owner, stated that Mike Phinney has answered the question
regarding the depth. She stated that she is glad that the applicant has enough money to build
whatever he wants and she has no objection with the size. However with the Asian Clam issue in
Boon Bay she does have an issue with the location of the house. She would like to see the house
built back beyond the 75 feet.
Don King asked if the pervious materials acted as a filter within itself. He understood that they
wouldn’t necessarily need a reservoir or containment especially where there is rock. The applicant
is looking to filter and contain some of the inertia and sheet flow that they might get, this system
will filter and distribute the water. Mark Tabor stated that it correct and what will occur in this
scenario. The filtering occurs in the top 6-8” of bedding sand and stone then is allowed to perc and
re-charge back into the ground water. Mark Tabor stated that there has been a lot of talk about
doing more for storm water. However the applicant could have kept the driveway the way it was
with the gravel and allow the water to sheet flow down the hill, picking up the sediment towards
the lake. There will be 2,000 sq. ft of permeable pavement and at that cross section is expensive to
install. Mark Tabor stated that if they were to remove that 2,000 sq. ft out of the equation and their
limit of disturbance is down closer to 12,882 sq. ft, which puts them less than the limit of
disturbance and below the threshold for a minor storm water permit. However that would not be
responsible to fix the conditions that exist today.
Chris Navitsky, Lake George Waterkeeper, stated that when you put stuff through the permeable
pavement, sand and stone, there is no real contact for filter. The filtering and removal of nutrients
happens in the soils, especially when they put in an overflow like they are proposing. That will
discharge it and really concentrate it. He stated that there are obviously two perspectives on this
and he looks at it from the maximum protection of the lake.
Don King stated that it is their obligation to look at all aspects of the equation and take a balanced
view that they feel is proper and fair.
Jason Saris stated that personally his concerns with the PB aspect of it have been addressed. John
Michaels feels that they have addressed this application thoroughly. Looking at the site as it exists
today or previously existed, the proposal is a vast improvement. There were 2 houses previously
existing, the applicant could have built a much larger structure without their approval. The biggest
mistake was that the applicant took the house down until he got this approval.
Melissa Vito stated that everyone can say that this proposal is a lot better and prettier. However,
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March 20, 2012
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what they have is a chance to make it right and move it back from the lake. She stated that they
should make it right and not just better. This project is not going to prevent pollution. This is the
same attitude that she has spoke about. This is not an attitude that says that they have to make the
projects water tight. She wants this project to be something they can be proud of. She stated that it
is better but it is not the best that can be done and the Board can require that.
John Michaels stated that knowing your job to uphold the code, laws and provisions already
established with the subdivision. He feels that they also have the responsibility to the land owner,
when the purchase a piece of property. This applicant could have torn down the existing house and
replaced it in kind in the same location without any storm water and the ZBA and PB would not
have had any say in it. He feels that they have a balance.
Jason Saris stated that they could discuss whether or not the code is adequate with protecting the
lake. For now, it is what it is. He does not know if this Board is the proper place to strengthen the
code. As John Michaels stated the property owner also has rights and it is their job to find the
balance between the criteria given to them and see if the applicants have addressed those things.
Counsel Muller asked Mike Phinney if there had been any work on a deed covenant with regard to
house placement on lot 2. Mike Phinney replied that there was discussion on that issue. They
spoke with the applicant and the applicant’s attorney. When his attorney looked at potential
language they looked at the paperwork already on file with the property and feels that since site
plan review is required on lot 2 he felt it would be redundant and in conflict with creating a second
layer of approval. Mike Phinney stated that they will meet with the PB again and they can address
it there as well.
Upon consent of the applicant’s agent, the ZBA acted on both variance application requests in one
resolution.
RESOLUTION
The Zoning Board of Appeals received an application from Ken Salamone (V11-58 and V12-02)
for an area variance as described above.
And, due to notice of the public hearing of the ZBA at which time the application was to be
considered having been given and the application having been referred to the Lake ChamplainLake George Regional Planning Board;
And, whereas the Lake Champlain-Lake George Regional Planning Board determined that there
was no County impact by the Lake Champlain-Lake George Regional Planning Board;
And, after reviewing the application and supporting documents of the same, and public comment
being heard regarding the application;
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March 20, 2012
19
this Board makes the following findings of fact:
The application of the applicant is as described in Items #3 & 4 of the agenda.
The Board makes the following conclusions of law:
1) The benefit could not be achieved by any other means feasible to the applicant besides
an area variance; the applicant had an existing right to re-build the exact same house in the exact
same location and had a permit to build a larger structure closer to the lake. The current proposal is
preferable to what was previously approved and what the applicant had a right to build.
2) There will be no undesirable change in the neighborhood character or to nearby
properties, this is an improvement to the property, even to the pre-existing structure. It should have
no effect on adjoining properties; the trees that will be left are stated on the site plan and although
they cannot restrict Lot 2 from applying for a variance in the future it is an important part of the
approval that any structure be built further back from the lake.
3) The request is not substantial; in relation to the size of the property. A 5 bedroom house
on a lot of this size is not unreasonable especially considering the structure that previously existed.
4) The request will not have an adverse effect or impact on the physical or environmental
conditions in the neighborhood or district; the applicant has taken steps to mitigate the effects better
than the previous condition which had no stormwater. Additionally the applicant has installed a
new septic system and proposes a new driveway with permeable pavers.
5) The alleged difficulty is self-created, because the applicant took the house down too
early. However he risked an approval that he already had to build right on the lake to propose a
better plan.
The practical difficulty is with the lot itself and probably why the original house was built in the
location it was and why it is the only location that is practical for this construction. The prior house
was a pre-existing non-conforming structure and the new construction does not further encroach
upon non-conformity.
The benefit to the applicant is not outweighed by the potential detriment to health, safety and
welfare of the community.
Now, upon motion duly made by John Michaels and seconded by Don King, it is resolved that the ZBA does
hereby approve the variance requests V11-58 & V12-02 as presented with the following recommendations
of the PB: 1) That permanent vegetation be required to remain to break up the massive structure of the
complex to the south side of the house as presented in diagram A3.1.2, dated December 21, 2011 and 2) that
any exterior lights on the structures be downward facing and shielded to be dark sky compliant. All in
Favor. Motion Carried.
5) V12-03 MASCHEWSKI, KEVIN. (Adirondack Builders/Designers). To alter non-conforming
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March 20, 2012
20
seawall on Lots 2 & 3(combined), specifically to demolish and rebuild docks, seeks area variance
to alter pre-existing non-conforming structure in accordance with Section 200-57B(1)(b). Section
186.07, Block 1, Lots 6.2 & 6.3(combined), Zone RCH5000. Property Location: Lake Shore Drive.
Subject to LC-LGRPB review.
6) V12-04 MASCHEWSKI, KEVIN. (Adirondack Builders/Designers). To alter non-conforming
seawall on Lot 4, specifically to demolish and rebuild docks, seeks area variance to alter preexisting non-conforming structure in accordance with Section 200-57B(1)(b). Section 186.07,
Block 1, Lot 6.4, Zone RCH5000. Property Location: 4824 Lake Shore Drive. Subject to LCLGRPB review.
Note: Items 5 & 6 were heard together.
Kevin Maschewski stated that he is the new owner of what used to be the Victorian Village. Going
back in recent history of property and its subdivision, there was a requirement by the PB for the
subdivision to remove the existing docks. This application is to replace the existing 3 docks.
However, it is his understanding that the seawall is a pre-existing non-conforming structure which
is why he is looking for the variance. The wall that is on the northernmost property is 103’ long
and 2.5’ tall. The larger lot at 4818 Lakeshore Drive has 152’ of lakefront, and that seawall above
high water is also about 2.5’ tall. Both walls are pre-existing non-conforming and he is looking to
construct and attach new standard wood crib docks. The docks will be built to LGPC requirements
and conforming with LGPC setbacks which are stricter than 20’ required by Bolton.
John Michaels asked if they started to fix the seawalls. Kevin Maschewski replied yes they began
in January to repair and re-point the wall. When he went to see Pam Kenyon for permits she
indicated that as long as it was being repaired in kind they would not require permits. The seawall
work has since been completed. Kevin Maschewski stated that this application is to attach the
docks to the seawalls.
With looking at the first application on the agenda, Kevin Maschewski stated that parcel 4818
Lakeshore Drive has no existing residence on it and therefore would be considered an auxiliary
structure. However, an application for site plan review and stormwater management have been
submitted. He understands that if granted approval tonight that it would be conditional upon
getting site compliance and approval for the new home. Jason Saris clarified that the applicant is
here to be heard for an area variance for the existing dock and not a use variance.
Pam Kenyon stated that there was no LC-LGRPB impact. There were no comments from the
public in attendance.
RESOLUTION
Bolton Zoning Board of Appeals Minutes
March 20, 2012
21
The Zoning Board of Appeals received an application from Kevin Maschewski (V12-04) for an
area variance as described above.
And, due to notice of the public hearing of the ZBA at which time the application was to be
considered having been given and the application having been referred to the Lake ChamplainLake George Regional Planning Board;
And, whereas the Lake Champlain-Lake George Regional Planning Board determined that there
was no County impact;
And, after reviewing the application and supporting documents of the same, and public comment
being heard regarding the application;
this Board makes the following findings of fact:
The application of the applicant is as described in Items# 5 & 6 of the agenda.
The Board makes the following conclusions of law:
1) The benefit could not be achieved by any other means feasible to the applicant besides
an area variance; the applicants are restricted based on the linear feet of seawall available and the
existing location of the current docks. There is no other place to locate the docks and conform to
the setbacks.
2) There will be no undesirable change in the neighborhood character or to nearby
properties, the new docks will be replacing old docks in the same location. They will be an
improvement.
3) The request is not substantial; this is like in kind. No other structures or boathouses will
be installed. There would be no significant change to what currently exists.
4) The request will not have an adverse effect or impact on the physical or environmental
conditions in the neighborhood or district; the docks are compliant and within the proper
dimensions.
5) The alleged difficulty is not self-created, there is no other location to put the docks given
the seawall and linear feet available for the dockage. It was a pre-existing condition.
The benefit to the applicant is not outweighed by the potential detriment to health, safety and
welfare of the community.
Now, upon motion duly made by Don King and seconded by John Famosi, it is resolved that the
ZBA does hereby approve the variance requests V12-03 & V12-04 as presented with the following
condition:1) that 4818 Lakeshore Drive receives a permit for a primary structure to support the
accessory use of the docks. All in Favor. Motion Carried.
Bolton Zoning Board of Appeals Minutes
March 20, 2012
22
7) V12-05 SMITH, REBECCA & COFFEE, MICHAEL. Represented by Robert Flansburg, PE.
To alter non-conforming single family dwelling, specifically to raise the roof, and add solar panels,
solar thermal panels, shading device on south wall, new canopy on southeast corner, mechanical
room under existing concrete balcony, corrugated metal screen on north wall, canopy for sub-entry
on north wall and new canopy for main entry on north wall, seek area variance for 1) a deficient
front yard setback. 75’ is required, 5’ is proposed; and 2) to alter pre-existing non-conforming
structure in accordance with Section 200-57B(1)(b). Section 155.00, Block 1, Lot 43, Zone RL3 &
LC25. Property Location: 606 Edgecomb Pond Road.
Bob Flansburg, from Dreamscapes Unlimited, stated that this application is to alter a pre-existing
non-conforming structure due to the front yard setback. It is a small structure built in the early
1940’s by the applicant’s late father David Smith. The applicant is proposing to improve the
structure’s overall thermal performance and make it a more livable space. This will remain a single
family dwelling but will perform better and be more aesthetically pleasing. He introduced Sandro
Mapillero to provide more details of the project.
Sandro Mapillero stated that the primary goal of the project is to upgrade this structure by making it
more livable and current with the environmental standards. The real spirit of the project is to
restore the studios that David Smith built. They would like to restore all of the glazing on the north
side. He provided details of the existing conditions; over the years additions were made. The
purpose of the project is to bring the property back to its original look.
Sandro Mapillero stated that one issue is that many of the windows have been altered and partially
closed, they would like to bring back the original renovation on the north and east side of the
structure. In order to do so they want to make sure that the living conditions of the space are
adequate to meet the current standards. They want to keep the existing structure joists that
supported the original roof and they are seeking a variance to install an insulation blanket over the
roof which is what will raise the roof 7”. By raising the roof 7” it will unify the surface.
Sandro Mapillero stated that they are also doing some construction under the existing deck for the
mechanical roof but it will not be visible. They are also extending the existing canopy on the south
side on the outer windows to provide shelter from the sun. They are also proposing to re-open the
large door on the north side, they will introduce a screen which will prevent the glazing from being
transparent.
Jason Saris asked if the only expansion of the footprint is from the canopies. Sandro Mapillero
replied yes. Jason Saris asked if any of the additions would further encroach the setback. Sandro
Mapillero replied no, it will not increase the non-compliant condition of the footprint.
John Michaels asked about the location of the septic system. Fred Brown indicated the locations of
the septic tanks, pump tank and leach fields on the plan. He stated that the leach field is uphill 200’
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March 20, 2012
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from the pond. John Michaels asked when the septic was installed and was it for the same amount
of bedrooms. Fred Brown replied 1996 and it was the same amount of bedrooms. There will be no
expansion in the amount of bedrooms for this project.
Jason Saris stated that he does not see any issues with this project. It is a pre-existing nonconforming structure that does not further encroach upon the setbacks. He feels that the
renovations and upgrades are more like maintenance for the home. John Michaels agreed.
Pam Kenyon stated that there was no correspondence. There were no comments from the public in
attendance.
RESOLUTION
The Zoning Board of Appeals received an application from Rebecca Smith and Michael Coffee
(V12-05) for an area variance as described above.
And, due to notice of the public hearing of the ZBA at which time the application was to be
considered having been given and the application having been referred to the Lake ChamplainLake George Regional Planning Board;
And, whereas the Lake Champlain-Lake George Regional Planning Board determined that there
was no County impact;
And, after reviewing the application and supporting documents of the same, and public comment
being heard regarding the application;
this Board makes the following findings of fact:
The application of the applicant is as described in Items# 7 of the agenda.
The Board makes the following conclusions of law:
1) The benefit could not be achieved by any other means feasible to the applicant besides
an area variance; this is more of maintenance to the current structure.
2) There will be no undesirable change in the neighborhood character or to nearby
properties, it will be an improvement to the neighborhood with the improved building.
3) The request is not substantial; it is a minimal request.
4) The request will not have an adverse effect or impact on the physical or environmental
conditions in the neighborhood or district; there is no increase in bedrooms, the septic has been
recently been renovated.
5) The alleged difficulty is not self-created, it is a pre-existing non-conforming structure.
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The benefit to the applicant is not outweighed by the potential detriment to health, safety and
welfare of the community.
Now, upon motion duly made by John Michaels and seconded by Don King, it is resolved that the
ZBA does hereby approve the variance request as presented. All in Favor. Motion Carried.
The meeting was adjourned at 9:43 pm
Minutes respectfully submitted by Kristen MacEwan.
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