MINUTES OF ZBA MEETING

Date: October 10, 2007

Town Hall - 5910 Sacandaga Road

Galway, New York 12074

Meeting called to order at 7:30 p.m. by Chair, Jon Hallgren. Clerk called the roll

MEMBERS PRESENT: Jon Hallgren, Herb Kopper, Tim Bogdan, Brian Hendrie, Mark Kindinger

MEMBERS ABSENT: None

ALSO PRESENT: Carol DeLorme, Clerk; George Weed, town board liaison; and two people (applicants) in the audience.

Chair introduced Mark Kindinger as new member of the ZBA.

PURPOSE AND PROCEDURE OF THE ZONING BOARD OF APPEALS

Chair reviewed and explained the purpose and procedure of the Zoning Board of Appeals and criteria for granting an area variance.

REVIEW AND APPROVAL OF THE MINUTES OF THE PREVIOUS MEETING

All members of the Board previously reviewed the minutes of the August 8, 2007 meeting. Motion by Tim Bodgan to approve the minutes as presented. Seconded by Brian Hendrie. Voice vote: All ayes. Motion carried.

PUBLIC HEARING OPENED by Chair @ 7:32 P.M.

Clerk read the legal notice as it appeared in the Daily Gazette on 10/01/07.

Application #07-014 – Request of David Garrison and Carl and Brenda Horstmann for an area variance for relief from Section 280-a of NYS Town Law (no frontage on a public highway) as related to creation of a 4-acre lot from a 62+ acre parcel located within the Town of Galway at 1498 Peaceable Street, Tax parcel #214.-1-10

Mr. Garrison and Mr. Horstmann were both in attendance. Mr. Horstmann presented the application. Mr. Garrison owns property situated in towns of Galway, Charlton and Milton. Mr. Horstmann is looking to subdivide a 4-acre lot from the 62+ located in the town of Galway, however, this lot would not have any road frontage. They anticipate using a driveway (easement) that lies in the town of Charlton (reportedly has existed for 40+ years) for access to the lot. Chair: Introduced a letter from ZBA attorney, Peter Reilly, who did some research regarding this application and a recent Appellate Division decision regarding land-locked parcels (referring applicants/board members to paragraph 4 of said letter, attached). Mr. Reilly referenced a recent Appellate Division, Third Department (whose decisions are binding in this area of the State) decision that held that a zoning board of appeals lacked authority to grant an owner of a land-locked property a variance from the requirement that the property in question have frontage on a public street or highway. The decision held that “if access is, as here, via a right-of-way or easement, a permit can only issue upon the town board’s passage of a resolution establishing the area to be an open development area”. It is Mr. Reilly’s contention, therefore, that [ZBA] lacks the authority to grant a variance in regard to this application. Chair stated his belief that the applicants would first have to go to the Town Board and ask for a resolution declaring the area an ‘open development area’. Chair asked if applicant has tried to buy some road frontage (40’ for a keyhole lot) from adjoining property owner. Mr. Horstmann responded that he has, but the adjoining landowner is not interested in selling. Chair – Also raised concern over the fact that the easement is located in the town of Charlton; not sure they have the authority to grant a variance for property that lies in another town. Mr. Horstmann related that, based on a past conversation with Mark Concilla, he had the town of Charlton highway superintendent look at the driveway. He reportedly stated that as far as he was concerned [Mr. Horstmann] was “good to go” but needed to go back to town of Galway to proceed [with subdivision]. Tim Bogdan stated his opinion that if Mr. Horstmann is creating a landlocked parcel, it would constitute a self-created hardship [reason for denial]. Chair reiterated his belief that the applicants need to go to the town board to request a resolution (as previously stated) as the next step. No further discussion. Motion by Tim Bogdan to close the public hearing. Seconded by Mark Kindinger. Voice Vote: All ayes. Motion carried. Public hearing closed.

PUBLIC MEETING

Application #07-014 … Request of David Garrison and Carl and Brenda Horstmann … Tax parcel #214.-1-10

Chair – Since there is no way of considering approval of this application, no need to review SEQRA issues.

Motion by Mark Kindinger to deny the request of David Garrison and Carl and Brenda Horstmann (Application #07-014) for an area variance for relief from Section 280-a of NYS Town Law (no frontage on a public highway) to allow use of a 60’ (w) utility easement located in the Town of Charlton as access to a 4-acre lot being subdivided from a 62+ acre parcel located in the Town of Galway at 1498 Peaceable Street, Tax parcel #214.-1-10, based upon advisement from Board Counsel that the zoning board of appeals lacks authority to grant an area variance of this type (citing (Indelicato v. Town of Lloyd, 34 AD3rd, 1056) … “if access is, as here, via a right-of-way or easement, a permit can only be issue upon the town board’s passage of a resolution establishing the area to be an open development area”) as it requires a resolution by the Town Board declaring the area to be an open development area. Mark Kindinger posed the question that it might take a resolution by the Charlton Town Board. No further discussion. Motion seconded by Brian Hendrie. Roll call vote: Jon Hallgren, yes; Herb Kopper, yes; Brian Hendrie, yes; Mark Kindinger, yes; and Tim Bogdan, yes. Motion carried. REQUEST FOR VARIANCE DENIED. Brian Hendrie – Posed question that, even if the Town Board did pass a resolution, the application would still have to come back to the ZBA for consideration. Other members agreed.

PRIVILEGE OF THE FLOOR – None requested

OTHER BUSINESS

Brian Hendrie asked about the status of the Sheets property – heard it may be coming back to the board for a Use variance. Chair – There is concern about the use of the hangar. Has been informed by George Hargrave that Mark Concilla and the town are currently investigating the garage being used as a hangar (did not recall all the details).

Motion to adjourn by Tim Bogdan. Seconded by Mark Kindinger. Voice Vote: All ayes. Motion carried.

Meeting adjourned at 8:15 p.m.

Respectfully submitted,

Carol L. DeLorme, Clerk

10/16/07